Roman Law

Roman Law in Europe

Roman Law has been described as the Roman´s “most enduring contribution to world history”. Its roots began with the Twelve Tables, which were regarded as the fount of “equal law”, the ideas that were equally binding on all citizens. It distinguished two main components, the “ius civile” (state law) and the “ius gentium” (international law).

The complexity and antiquity of legal practice inevitably gave rise to the science of jurisprudence, and the long line of Roman jurists.

Most of the Empire´s law codes fell into disuse with the disintegration of the Roman Empire, and had to be rediscovered in the Middle Ages.

In some countries, such as France, a balance was achieved between Roman and customary traditions. In most of Germany, the Roman law arrived in the 15th century.

Roman Private Law

This subject is an introduction to the legal concepts and legal thought of Roman private law, which inspired and influenced European (and later, all America) modern private law. Important primary materials are the texts from Gaius (second century AD) and Justinian (sixth century AD). See also the entry about Rompan public law.

Content of this subject has five sections:

  • Sources of Law and the Scheme of the Institutes
  • Roman family law, including roman divorce law
  • Property
  • Obligations: Contract and Delict (Tort)
  • Influence of Roman Private Law.

The vulgar Roman law

A system of personal laws implies rules by which a “conflict of laws” may be appeased, and of late years many of the international or intertribal rules of the Frankish realm have been recovered.72 We may see, for example, that the law of the slain, not that of the slayer, fixes the amount of the wergild, and that the law of the grantor prescribes the ceremonies with which land must be conveyed. We see that legitimate children take their father’s, bastards their mother’s law. We see also that the churches, except some which are of royal foundation, are deemed to live Roman law, and in Italy, though not in Frankland, the rule that the individual cleric lives Roman law seems to have been gradually adopted.73 This gave the clergy some interest in the old system. But German and Roman law were making advances towards each other. If the one was becoming civilized, the other had been sadly barbarized or rather vulgarized. North of the Alps the current Roman law regarded Alaric’s Lex as its chief authority. In Italy Justinian’s Institutes and Code and Julian’s epitome of the Novels were known, and someone may sometimes have opened a copy of the Digest. But everywhere the law administered among the Romani seems to have been in the main a traditional, customary law which paid little heed to written texts. It was, we are told, ein römisches Vulgarrecht, which stood to pure Roman law in the same relation as that in which the vulgar Latin or Romance that people talked stood to the literary language. Not a few of the rules and ideas which were generally prevalent in the West had their source in this low Roman law. In it starts the history of modern conveyancing. The Anglo-Saxon “land-book” is of Italian origin. That England produces no formulary books, no books of “precedents in conveyancing,” such as those which in considerable numbers were compiled in Frankland,76 is one of the many signs that even this low Roman law had no home here; but neither did our forefathers talk low Latin.

The new birth of Roman law

As to the more or less that was known of the ancient Roman texts there has been learned and lively controversy in these last years. But, even if we grant to the champions of continuity all that they ask, the sum will seem small until the eleventh century is reached. That large masses of men in Italy and southern France had Roman law for their personal law is beyond doubt. Also it is certain that Justinian’s Institutes and Code and Julian’s Epitome of the Novels were beginning to spread outside Italy. There are questions still to be solved about the date and domicile of various small collections of Roman rules which some regard as older than or uninfluenced by the work of the Bolognese glossators. One critic discovers evanescent traces of a school of law at Rome or at Ravenna which others cannot see.

The current instruction of boys in grammar and rhetoric involved some discussion of legal terms. Definitions of lex and ius and so forth were learnt by heart; little catechisms were compiled; but of anything that we should dare to call an education in Roman law there are few, if any, indisputable signs before the school of Bologna appears in the second half of the eleventh century. As to the Digest, during some four hundred years its mere existence seems to have been almost unknown. It barely escaped with its life. When men spoke of “the pandects” they meant the bible.

The romantic fable of the capture of an unique copy at the siege of Amalfi in 1135 has long been disproved; but, if some small fragments be neglected, all the extant manuscripts are said to derive from two copies, one now lost, the other the famous Florentina written, we are told, by Greek hands in the sixth or seventh century. In the eleventh the revival began. In 1038 Conrad II., the emperor whom Cnut saw crowned, ordained that Roman law should be once more the territorial law of the city of Rome. In 1076 the Digest was cited in the judgment of a Tuscan court. Then, about 1100, Irnerius was teaching at Bologna. (…)

Revival of Roman law

We have told above how Irnerius taught at Bologna. Very soon a school had formed itself around his successors. The fame of “the four doctors,” Bulgarus, Martinus, Jacobus, Hugo, had gone out into all lands; the works of Placentinus were copied at Peterborough. From every corner of western Europe students flocked to Italy. It was as if a new gospel had been revealed. Before the end of the century complaints were loud that theology was neglected, that the liberal arts were despised, that Seius and Titius had driven Aristotle and Plato from the schools, that men would learn law and nothing but law. This enthusiasm for the new learning was not soon spent; it was not spent until in the middle of the thirteenth century Accursius had summed up its results in the Glossa Ordinaria and Azo of Bologna had taught Bracton what a law-book should be.

Cosmopolitan claims of Roman law.The keenest minds of the age had set to work on the classical Roman texts and they were inspired by a genuine love of knowledge. Still they were far from regarding their study as mere historical research; indeed for a critical examination of ancient history they were but ill prepared. The Roman law was for them living law. Its claim to live and rule was intimately connected with the continuity of the empire. A vast part, if not the whole, of the civilized world owed obedience to the Caesar for the time being. The German Henries and Fredericks were the successors of Augustus and the Antonines; the laws of their ancestors had not been repealed and therefore were in force. Even in those kingdoms in which it was impossible to press the claims of a German prince, the king might theoretically be regarded as holding the place of an emperor. Henry I (of England) was he not Gloriosus Caesar Henricus? But, such theories apart, the Roman law demanded reverence, if not obedience, as the due of its own intrinsic merits. It was divinely reasonable.

Source: Sir Frederick Pollock, The History of English Law before the Time of Edward I (1895)

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