Roman law

Roman law the legal system of Rome from the supposed founding of the city in 753 BC to the fall of the Byzantine Empire in AD 1453; it was later adopted as the basis of modern civil law . Most authorities, however, disregard the largely static period following the reign of Justinian I (527-65).

Early Roman Law

Roman law in the earliest period known is typically expressed in the Twelve Tables with their marked formalism. The usual early procedure was also stereotyped; it was the legis actio, a form of charge and denial the words of which had to be followed exactly by the parties at the risk of losing the suit. Exact knowledge of the words constituting the legis actiones was limited to a body of patrician priests, the College of Pontiffs. The reduction of these forms to writing (c.250 BC) was a victory for the plebeians and a step in reducing the religious and formal element in the law. Soon the primary source of law became the lex (plural leges ), a statutory enactment that was proposed by a magistrate and accepted by a popular assembly. Among the assemblies empowered to enact leges was that of the plebeians.

Expansion and Development

In the late 3d cent. BC, Roman law could no longer limit itself to the inhabitants of the republic but was forced to take account of the surrounding non-Roman peoples. Thus, to the jus civile, which governed relations among the Romans and those admitted to Roman status, was added the jus gentium, the law applied in dealings with a foreigner. The jus gentium incorporated much of the highly developed commercial law of the Greek city-states and of other maritime powers. Such provisions, being better adapted to Rome's expanding economic needs than the unyielding provisions of the jus civile, in time tended to be applied universally.

The development of new principles was especially vigorous after c.100 BC, an important source being the jus honorarium, i.e., the law of the praetors (chief magistrates). On assuming office the praetor announced the principles, sometimes novel, that would govern his decisions. The praetors also contributed greatly to making practice more flexible. In place of the legis actiones, they often used the formulary system. A formula, like a legis actio, was a device for determining the issue between the parties; but instead of being a mere interchange of prescribed speeches, it provided a structure for discussing the actual dispute. Whichever method was used, when the nature of the dispute was agreed upon, the parties brought their case before the judex, a private functionary, who considered the evidence and gave judgment.

Under the Empire

After the establishment of the empire, the development of law largely passed from the praetors (the practice of issuing new edicts ended c.AD 125) and from the popular assemblies into the hands of the emperors, sometimes operating through the senate. Various types of imperial enactments called constitutions were issued in abundance.

Legal problems attained great complexity, and the aid of a specially trained class of scholars was enlisted for their solution. Those jurists with a special license from the emperor could write responsa to guide the judges in deciding cases. Most prominent among the jurists was Papinian ; his work, with that of Gaius , Modestinus , Paulus , and Ulpian , attained the highest authority. The employment of jurists was a step in making the whole of Roman procedure official; in this process the institution of judex was abolished and the trial placed entirely in the hands of a judge.

By the early 4th cent. most branches of Roman law were fully developed. The system was generally responsive to legal needs and allowed sufficient variety to meet local customs. A grave disadvantage of the system, however, was that the vast corpus of legal matter included much that was confused, contradictory, or redundant; reduction to code form was required. The Theodosian Code (438), the earliest attempt, was followed by the Breviary of Alaric (506). Finally the task was accomplished with the culminating work of Roman legal scholarship, the Corpus Juris Civilis (completed 535) under the direction of Tribonian .

Continuing Influence

After the mid-6th cent., Roman law persisted as a part of the Germanic laws and was in effect in the Byzantine Empire . Revival of classical studies during the Renaissance prepared the way for the partial resurrection of Roman law as the modern civil law in a large part of the world. The jus gentium is perhaps the most widely represented in modern legal systems, for it is the basis of commercial law even in those countries that follow common law .

Bibliography

See W. W. Buckland, A Text-Book of Roman Law from Augustus to Justinian (3d ed. 1964); H. J. Wolff, Roman Law (1976); T. Honore, Emperors and Lawyers (1982); J. A. Crook, Law and Life of Rome (1984); D. Earl, The Moral and Political Traditions of Rome (1984); B. W. Frier, The Rise of the Roman Jurists (1985).

Roman Law American law has developed apart both from other common‐law jurisdictions and from civil‐law countries. Yet other legal systems have influenced American law. Among those, Roman law is one of the most significant.

The role played by Roman law in shaping the thinking of American jurists and in the development of substantive law in the United States can be easily exaggerated. There was never any possibility that Roman law might displace common law in the United States as a whole, though in those territories once under civil‐law systems, such as Florida and Texas, Roman law did play a dominant role for a time. In the Supreme Court, however, Roman law was always peripheral and served, at most, as a backdrop or counterpoint to American common law. Some specific characteristics of the influence exerted by Roman law are clear and consistent. First, Roman and civil law provided a model of systematic legal structure, especially in their organizational and conceptual framework. Second, Roman law provided a wealth of precise terminology to express complex legal concepts. Third, and most importantly, Roman law provided a source for comparative materials by which to judge American rules, as well as the historical substrata upon which many American and English rules used in the United States rested. Many Supreme Court opinions attempted to provide not only a theoretical justification for legal rules laid down, but also a historical rationale for these rules. Citations to Roman law are common in this context.

Finally, Roman law citations found their way into Supreme Court opinions because individual justices were interested in Roman law. The greatest of the Romanist justices were Joseph Story and Oliver Wendell Holmes, though no Supreme Court justice, including Story and Holmes, was a true scholar of Roman law.

M. H. Hoeflich