Roman Law

ROMAN LAW

Between 753 b.c. and a.d. 1453, the legal principles, procedures, and institutions of Roman law dominated Western, and parts of Eastern, civilization. The legal systems of western Europe, with the exception of Great Britain, are based on Roman law and are called civil-law systems. Even the common-law tradition found in the English-speaking world has been influenced by it. In the United States, the common law has been paramount, but Roman law has influenced the law of the state of Louisiana, a former French territory that adopted a French civil-law code.

Roman law began as an attempt to codify a set of legal principles for all citizens. In 450 b.c. the Twelve Tables were erected in the Roman Forum. Set forth in tablets of wood or bronze, the law was put on public display, where it could be invoked by persons seeking remedies for their problems. Though the texts of the tablets have not survived, historians believe they dealt with legal procedures, torts, and family law issues.

From 753 to 31 b.c., the Roman republic developed the jus civile, or civil law. This law was based on both custom and legislation and applied only to Roman citizens. By the third century b.c., the Romans developed the jus gentium, rules of international law that were applied to interactions between Romans and foreigners. Over time the jus gentium became a massive compendium of law produced by magistrates and governors.

Romans divided the law into jus scriptum, written law, and jus non scriptum, unwritten law. The unwritten law was based on custom and usage, while the written law came from legislation and many types of written sources, including edicts and proclamations issued by magistrates, resolutions of the Roman Senate, laws issued by the emperor, and legal disquisitions of prominent lawyers. Roman law concerned itself with every type of legal issue, including contracts, inheritance of property, family law, business organizations, and criminal acts.

Roman law steadily accumulated during the course of the empire, and over time it became contradictory and confusing. In the early sixth century a.d., the Byzantine emperor justinian i, appointed a commission to examine the body of law and determine what should be kept and what should be discarded. From this effort came the Corpus Juris Civilis, a codification of Roman law that became the chief lawbook of what remained of the Roman Empire.

The decline of the Roman Empire also led to the diminution of interest in Roman law in western Europe. The Corpus was unknown to western scholars for centuries. During the twelfth century, however, Roman law studies revived in western Europe. In the late eleventh century, a manuscript containing part of the Corpus was discovered in Pisa, Italy. The remainder of the compilation was soon recovered, and schools where Roman law could be studied were established in Bologna, Italy, and then elsewhere in Europe. By the twelfth century, commentaries on the Corpus Juris Civilis appeared, and in time men trained in Roman law found posts in secular and ecclesiastical bureaucracies throughout Europe.

As a result, the legal systems of the Catholic Church and of almost every country in Europe were influenced by Roman law. Around the year 1140, the scholar Gratian prepared the Concordance of Discordant Canons, or Decretum. The Decretum was the largest and best-organized compendium of canon (church) law up to that time. Gratian used the Corpus Juris Civilis as his model, and later canonists studying the Decretum used the same methods that Roman lawyers applied to the Corpus Juris Civilis. Many scholars became masters of both Roman and canon law.

Among the nations of western Europe, England, which had already established a viable common-law tradition and a system of royal courts by the time that Roman law became accessible, felt the impact of the revival of Roman law the least. Nevertheless, english law drew upon Roman admiralty law, and the crimes of forgery and libel were based on Roman models. English ecclesiastical courts applied canon law, which was based on Roman law, and the universities of Oxford and Cambridge taught canon and Roman law. Scholars have noted the similarities between the Roman and English actions of trespass, and the equitable method of injunction may have been derived from canon law. Much of western European commercial law, which contained Roman law, became part of English law without much change.

The legal systems of most continental European nations owe their basic structures and categories to Roman law. Scholars point to several reasons for this "reception" of Roman law. In some areas such as southern France where remnants of Roman law had survived the collapse of the Roman Empire, the Corpus Juris Civilis helped to explain the institutions that were already in existence. More important in ensuring the reception of Roman law were the political principles that it contained. Law that had been produced in a centralized state under a sovereign emperor could be used to buttress the arguments of the European rulers as they struggled to assert their sovereignty over the feudal nobility.

At the same time that many of these rulers were consolidating their power, they were also expanding royal administration. This created new positions in government that often were filled by men with training in Roman law. Such men compiled collections of unwritten customs, drafted statutes, and presided over the courts, all of which provided opportunities for the penetration of Roman law.

Roman law did not displace local customs. Instead, its influence was subtle and selective. A compiler of unwritten German customs might arrange the collection according to Roman principles of organization. A royal judge confronted with an issue on which customs of different regions in the kingdom disagreed might turn to Roman law, the only law in many cases that was common to the entire kingdom. Similarly, Roman law could be used when local customs offered no solutions. For example, the Roman law of contracts was particularly influential because European customary law had developed in an agrarian economy and was often inadequate for an economy in which commerce played an increasingly larger role.

After 1600 the reception of Roman law slowed in most countries but did not entirely disappear. In nineteenth-century Europe, the Corpus Juris Civilis provided inspiration for several codifications of law, notably the French Code Napoléon of 1804, the Austrian code of 1811, the German code of 1889, and the Swiss codes of 1889 and 1907. Through these codes, elements of Roman law spread beyond Europe. The Code Napoléon served as a model for codes in Louisiana, Québec, Canada, and most of the countries of Latin America. German law influenced Hungarian, Brazilian, Japanese, and Greek law, and Turkey borrowed from Swiss law. In addition, the law of both Scotland and the Republic of South Africa derives from Roman law.

Commentators, while noting the differences between common law and civil law, which is based on Roman law, also point out that these differences can be overemphasized. Common-law countries, like the United States, enact statutes and even comprehensive codes, such as the uniform commercial code, while civil-law countries have laws that have been developed by the courts and not enacted through legislation. Roman law itself contained these conflicting impulses of codification and judicial interpretation.

further readings

Appel, Peter A. 2002. "Intervention in Roman Law: A Case Study in the Hazards of Legal Scholarship." Georgia Journal of International and Comparative Law 31 (fall).

Astorino, Samuel J. 2002. "Roman Law in American Law: Twentieth Century Cases of the Supreme Court." Duquesne Law Review 40 (summer).

Hoeflich, M.H. 1997. Roman and Civil Law and the Development of Anglo-American Jurisprudence in the Nineteenth Century. Athens: Univ. of Georgia Press.

cross-references

Napoleonic Code.