<<Let’s be slaves of the laws to be able to live in freedom>>
One of the areas in which Rome would leave a deeper and lasting footprint in the Western world and in all those countries that, in one way or another, have received the influence of Western culture (with the notable exception of the Anglo-Saxon countries) was undoubtedly the legal. And it is that Roman Law is, as Angel Latorre points out in his Introduction to Law, a classic, and perhaps the quintessential classic in the field of legal knowledge.
Indeed, today there are two large legal families with global reach: on the one hand, the right belonging to the so-called Roman-French System or the Roman-German-French System, also known as the European Continental Law System, whose origins lie in Roman law (among other sources and influences). On the other hand, the Common Law System, based on the Anglo-Saxon legal system. It is enough to take a look at the map that appears below these lines to realize the enormous influence of the Roman-based legal system:
When we think about the importance of learning Roman Law today, we should highlight two fundamental reasons why its knowledge is valuable:
-First, for historical reasons. It is difficult, if not impossible, to achieve a deep knowledge of Roman society without taking into account the fundamental rules that governed the life of the inhabitants of the city of Rome and later of the Empire. Similarly, it is difficult to understand the profound evolution experienced by Rome in the more than one thousand years that elapsed since the founding of the city until the fall of the Western Roman Empire, without taking into account the evolution of Roman legal thought and practice, since the legal norms that govern any human community are a reflection of their internal balances at the political, economic and social level, and their knowledge helps in a great way to understand the society in which these norms are created and applied. On the other hand, the historical influence of Roman law extends far beyond the fall of the Western Roman Empire in 476 AD. In this regard, it should be noted that its validity and evolution continued, albeit under the influence of Greek culture, in the Eastern Roman Empire, and was there, in Byzantium, where it gave rise under Emperor Justinian (483-565 AD) to one of its most extraordinary and eminent manifestations. In the West, for its part, Roman law continued to be in force, under successive interpretations and compilations, until the great codifications of the 19th century. Until that moment, it could not be considered a historical legal system. Instead, it was part of the positive normative, in force and applicable, in most large European countries. As an example of its long duration and influence it should be noted that in much of Germany, a country of which only a small portion of territory belonged to the former Roman Empire, the Roman law was in force until January 1st of the year 1,900, when the German Civil Code entered into force.
-In the second place, and beyond general historical considerations, knowledge of Roman Law is important for strictly legal reasons. For jurists of most countries of continental Europe (and countries whose legal systems have been inspired by these, as is the case of Latin American countries, as well as many African and Asian countries), knowledge of the history of law of their respective countries necessarily passes through prior knowledge of the Roman legal system. On the other hand, and beyond the historical understanding and contextualization of the different national rights, it is difficult to achieve a deep understanding of private law and specifically continental civil law without at least a general understanding of the norms of Roman legal institutions, particularly of those relating to obligations.
Let us see very generally what were the main stages through which Roman law passed through the long history of Rome and beyond:
THE ARCHAIC AGE (Until the middle of the 3rd century BC)
The origin of Roman law is found in an initially tiny community with a rural lifestyle. A city-state that in its beginnings lacked influence beyond the original city. Roman economic and political life revolved in this phase (and even much later continued to do so) around the ownership of land and a class, that of the patricians, who owned most of it. Together with them, the great mass of the people were the plebeians, excluded from public office and in general with very few rights.
In the lowest stratum were the slaves who, as horrible as it may seem today, in the conception of the time were not considered people but animated things.
Originally, at the peak of power there was a king, who was at the same time military leader, politician and representative of the community before the gods. When the Monarchy fell, it was replaced by magistrates who had military and political power limited in time, while the religious aspects were reserved to the school of the pontiffs.
Although in modern eyes it may be difficult to conceive, in early Rome the knowledge of law was a privilege of the patrician class. This prerogative was exercised through the College of the Pontiffs. Therefore, those who were subject to law did not know the rules that governed them and were subject to the arbitrariness of the class that had the monopoly of their knowledge. After the fall of the Monarchy and the social struggles that followed, the plebeians obtained the publicity of the law, reflected in the law of the XII tables.
The elaboration of this law took place in the middle of the 5th century BC. and was developed thanks to the insistence of a tribune of the plebs called Terentillus Arsa and was inspired, according to tradition, in the legislation of the Greek ruler Solon, although most likely the bulk of the rules were composed of customary rules already applied in a usual way before being collected in the written and public standard. It is difficult to confirm or deny very specific details with respect to this law, since it has not reached us completely.
Without analysing its exact content, which would exceed the purpose of this section, it is important to note that the law of the XII tables contained mainly rules on civil procedural law, family law and inheritance, obligations, rights, criminal law, religious law and on the complementary tables XI and XII, different rules such as the one that allowed the intermarriage between patricians and plebeians, which until the approval of this law had been prohibited.
The interpretation and development of the law of the XII tables was a monopoly of the college of the pontiffs until the beginning of the 3th century BC, and the activity of this body represented at this stage the core of Roman jurisprudence.
Subsequently, the influence of the laws voted by the citizens on the proposal (rogatio) of the magistrate empowered to do so increased. Initially it was the centuriate elections that used to legislate under this formula, but after the approval of the lex Hortensia in 286 BC, which declared obligatory for all citizens the agreements of the plebs, most of the laws were voted in the concilium plebis at the proposal of the tribune of the plebs.
EXPANSION OF ROME AND THE EMPIRE (From the middle of the 3rd century BC until the middle of the 3rd century AD)
After the subjugation of Italy, which took place in 265 BC, the victory of Rome over Carthage (219-201 BC) made the Romans the owners of the western half of the Mediterranean. Later, and in a relatively brief period, Rome expands its borders to the East, reaching the Euphrates and the Black Sea, covering territories heavily influenced by Greek culture and becoming the greatest power of antiquity.
This enormous empire constituted a political unit but, far from being subject to a single body of norms, it was endowed with a legal system of enormous complexity. To the highest possible extent, Rome left a certain autonomy to the subjects of the newly occupied territories in many cases keeping in force the legal norms of the conquered territories.
Until the beginning of the 1st century BC Italy was formed by two territorial masses:
-The Roman state territory (ager Romanus), which initially coincided with the city of Rome and where Roman law was valid.
-The territory of the allies (socii), linked to Rome through treaties. These territories had autonomy and they usually applied their own standards.
On the other hand, a Roman governor (consul or praetor, depending on the circumstances) was in charge of the direction of the provinces outside of Italy, and in them the indigenous norms continued to apply to the native population for a long time. Even in the universal empire of the end of the Republic and the beginning of the principality, the principle of the personality of the laws continued, according to which the legal rules applicable to each person depended more on their specific legal situation than on the territory where they were located applying the law. Thus, the Roman ius civile applied only to Roman citizens, regardless of where they lived, while local rights were applied to the indigenous population when litigating before their own courts. However, if non-Roman citizens litigated before the Roman courts, the ius gentium was applied, as we shall see later.
As regards the sources of law, these varied throughout Roman history, but at the time of maximum splendor of Roman law were recognized as such the agreements of the popular assemblies (leges and plebiscite), the decisions of the Senate (senatus consulta), the orders issued by the emperors (constitutiones principis), the edicts or ordinances of the magistrates (citizens endowed with public power), and the doctrine of the jurists, that is, of the citizens specialized in the study of the law. This last source was the most characteristic of Roman law, so that it was constituted on the basis of jurisprudence (a curious parallelism with the current Anglo-Saxon legal system), much more than on the basis of law. In fact, the most outstanding creations of the era of greatest splendor of Roman law have their origin in jurisprudence.
At this time (approximately at the end of the Republic) the direction of the application of the law was in the hands of the jurisdictional magistrates: in Rome, mainly the urban praetor, the pilgrim praetor and the competent councilmen in the litigation of the market. In the provinces, the governors and the provincial quaestors instead of the aediles.
Among the most prominent jurists of this long period were Quintus Mucius Scaevola, Servius Sulpicius Rufus, Gaius, Papinian, Paulus, Ulpian and Modestinus.
To overcome and complement the norms of the old ius civile or quiritarian law that governed the relations between Roman citizens in the context of the city-state that Rome was in its origins, and to give solution to the increasingly complex life of the Empire, the Roman jurists realized a kind of syncretism between the Stoic idea of the natural law established by natural reason and the ius gentium, a body of norms developed in Rome to solve the litigation between Roman citizens and those who were not.
With the growth of commercial exchange and relations between people with diverse legal conditions, the praetors empirically developed a system of rules that they based on what they considered a virtue required of all men, whatever their legal status: the fides, which initially was considered simply as the duty to comply with the given word, but it was expanded over time to include a generic duty to behave correctly in relationships with others.
In this way, a set of more flexible rules than the old quiritarian law applicable to Roman citizens was developed. This ius gentium, for its simplicity and greater adaptation to the new circumstances, ended up being adopted even by many citizens for their legal relationships, and the Roman jurists identified it with the idea of the ius naturale, an idea of Greek origin according to which there existed a right based on natural reason. Later, under the influence of Christianity, the concepts of ius gentium and ius naturale ended up separating.
Observed from today, the ability of Roman rulers and jurists for building all the bureaucratic and legal apparatus that allowed them the administration of such a vast empire from the base of the limited law of a city-state, is truly admirable.
Finally, and as the Romanization of the provinces deepened, the right of Roman citizenship was progressively extended, until Caracalla extended Roman citizenship to the entire empire, by the constitutio Antoniniana of the year 212 AD. At this time, Rome definitively leaves behind the formal structure of city-state that was maintained throughout the Republic and much of the Principality, and Roman citizenship acquires the status of citizenship of the Empire. With Caracalla, the empire becomes truly universal, not only in content but also in form.
THE LATE AGE
The Roman state of the 3rd century AD already had a very different carácter from the one that prevailed at the time of Augustus.
Many institutions, such as the Senate and the magistracies had lost their political significance and, progressively, the power was occupied by a kind of absolute monarchy based on the military power. At this time, a serious economic and financial crisis was installed in the Empire, and the distinction between Roman citizens and non-citizens was progressively replaced by a division of society in professional, sometimes hereditary, strata that became rigid barriers.
In this context, the state order founded by Diocletian and developed by Constantine the Great, reflected the spirit of an absolute monarchy, with an important bureaucratic administration and a progressive limitation of personal freedom.
The civil servants of more category in this epoch were praefecti praetorio, in number of four, two in the Eastern part of the Empire and two in the western one. They represented the emperor, particularly in the field of law, and administered taxes and a large part of finances. On the other hand, the quaestor sacri palatii was at this stage a kind of minister of justice.
A feature of Roman state law that was of great importance for the future of the Empire was the division of its control among several emperors. Its author was Diocletian, and prefigured what would later become the Roman Empire of the East and the Western Roman Empire.
In this period, and as a reflection of the rupture of the old equilibria of power, the art of jurisprudence fell to a great extent, plunging into a progressive decadence, and the imperial rescripts (administrative act issued in writing granting a privilege, a dispensation or other grace, at the request of the interested party) reached great importance, a reflection of the new function and absolute power of the emperor. At the same time, Vulgar law and Germanic influences began to occupy an important place in the legal practice developed in the different territories of the empire.
Of this age it should be highlighted the Codex Theodosianus, as well as the codifications of the Roman right in the Germanic empires in western Roman territory, such as the Edictum Theodorici, and the Lex Romana Visigothorum (also known as Breviarum Alarici), elaborated and published in the year 506 AD (therefore, after the fall of the Western Roman Empire) by King Alaric II.
In the eastern part of the empire the knowledge of Roman law was preserved with greater fidelity. And it was precisely there, under Justinian, that a great compilation that would mark a milestone in world legal history and determine the subsequent influence of Roman law was made.
THE CODIFICATION OF JUSTINIAN
Unlike what happened in the West, in the East of the empire a fairly deep knowledge of classical legal literature survived, particularly in the law schools of Berito (now Beirut) and Constantinople. The accumulation of a great mass of rules throughout the centuries, caused awareness on the necessity of a compilation and ordering of the Roman Law to guarantee an application of it adapted to the reality of the age.
It was under the government of Justinian, between the years 527-565 AD, that this enormous task was undertaken. This emperor, who stood out for his political and intellectual brilliance, appointed Tribonian as president of the compiling commission, which began his work in 528 and completed his tasks in 529, resulting in the Codex Justinianus, which collected the imperial laws included in the Gregorian, Hermogenian and Theodosian codices. This code repealed all the old codices and imperial laws that had not been included in it, and eliminated contradictions in ancient texts. It was valid for a few years and its text has not been preserved.
Between the year 530 and 533 AD and with the participation of Justinian himself the Digest was drafted, which collected and ordered the law of Roman jurists such as Mucius Scaevola, Arcadio Carisio and Hermogenian, with predominance of texts from Paulus and Ulpian. Almost at the same time, the Institutes were published, which were an official treatise for beginners. Finally, the Codex repetitate praelectiones and the Novels were published. The latter included various laws relating to private law, particularly family and inheritance law. The set of Codex, Digesta, Institutes and Novels constituted a unitary legislation and a colossal effort of compilation and purification of the enormous amount of legal norms of the Roman law that were applied at the time. This group is known under the name of Corpus Iuris Civilis, although it is important to keep in mind that this name comes from the Modern Age.
The contribution of Justinian to the legal history of the West is immeasurable. Without his effort, without his concern to preserve, order and interpret the Roman law that preceded him and that was applied in its time, and without his codifications, the knowledge of most of the Roman legal system would have been lost forever, and without doubt the legal history of Europe and much of the Western world would have been very different.
SURVIVAL OF ROMAN LAW
In the year 476 AD the Western Roman Empire falls, ending the Ancient Age and beginning the Middle Ages. However, in practice the germ of the Middle Ages took time to develop within the Empire, in the midst of a progressive decline in the economic, political and legal fields. On the other hand, the validity and influence of Roman law, despite this decline, as well as the very idea of the empire, continued to have a decisive influence on the course of European history after the fall of Rome.
During the Early Middle Ages the Vulgar Roman law dominated in the West, being based fundamentally on the Lex Romana Visigothorum. Only in Italy the codification of Justinian was applied, although partially.
From the 11th century, with the activity of the school of Bologna under the impulse of Irnerius, who studied in depth the Digest, the study of Roman law gained great dynamism. Thanks to this school and to the Italian jurists (both glossaries and commentators) and to its profound study of the Corpus Iuris, Justinian codifications penetrate the mentality and legal practice of Italy and most of the West. In this regard, it is worth noting the reception of Roman law in Germany from the Late Middle Ages, under the influence of commentators. It was precisely in Germany where some of the most influential theories and interpretations of Roman Law were elaborated, already in Modern and Contemporary times, Friedrich Karl von Savigny (1779-1861), founder of the historical school of law, stood out on this task.
In parallel, after the fall of the Western Empire, in the Eastern Empire Rome remained alive for many centuries, not only in the legal sphere but also as a political entity, although subject to a profound evolution.
In short, as we have seen in these very brief and, for reasons of space, necessarily superficial notes on the Roman Law, it is possible to say that among all the historical legal systems, the Roman law is the one whose learning is still more useful and necessary nowadays, both because of its vast validity in space and time and because of the imprint that this prolonged presence has left on the law, politics, institutions and Western culture in general, as well as because its importance for training contemporary jurists, who can find in the spirit of Roman Law and in the eminently practical character of the Roman jurists an example of adaptation of legal norms to the continuous evolution of society, economy and politics, as well as a method with permanent value.
Author: Leo Moreta Bufill