Roman law, the law of ancient Rome from the time of the founding of the city in 753 BCE until the fall of the Western Empire in the 5th century CE. It remained in use in the Eastern, or Byzantine, Empire until 1453. As a legal system, Roman law has affected the development of law in most of Western civilization as well as in parts of the East. It forms the basis for the law codes of most countries of continental Europe (see civil law) and derivative systems elsewhere.
The term Roman law today often refers to more than the laws of Roman society. The legal institutions evolved by the Romans had influence on the laws of other peoples in times long after the disappearance of the Roman Empire and in countries that were never subject to Roman rule. To take the most striking example, in a large part of Germany, until the adoption of a common code for the whole empire in 1900, the Roman law was in force as “subsidiary law”; that is, it was applied unless excluded by contrary local provisions. This law, however, which was in force in parts of Europe long after the fall of the Roman Empire, was not the Roman law in its original form. Although its basis was indeed the Corpus Juris Civilis—the codifying legislation of the emperor Justinian I—this legislation had been interpreted, developed, and adapted to later conditions by generations of jurists from the 11th century onward and had received additions from non-Roman sources.
Development Of The Jus Civile And Jus Gentium
In the great span of time during which the Roman Republic and Empire existed, there were many phases of legalistic development. During the period of the republic (753–31 BCE), the jus civile (civil law) developed. Based on custom or legislation, it applied exclusively to Roman citizens. By the middle of the 3rd century BCE, however, another type of law, jus gentium (law of nations), was developed by the Romans to be applied both to themselves and to foreigners. Jus gentium was not the result of legislation, but was, instead, a development of the magistrates and governors who were responsible for administering justice in cases in which foreigners were involved. The jus gentiumbecame, to a large extent, part of the massive body of law that was applied by magistrates to citizens, as well as to foreigners, as a flexible alternative to jus civile.
Roman law, like other ancient systems, originally adopted the principle of personality—that is, that the law of the state applied only to its citizens. Foreigners had no rights and, unless protected by some treaty between their state and Rome, they could be seized like ownerless pieces of property by any Roman. But from early times there were treaties with foreign states guaranteeing mutual protection. Even in cases in which there was no treaty, the increasing commercial interests of Rome forced it to protect, by some form of justice, the foreigners who came within its borders. A magistrate could not simply apply Roman law because that was the privilege of citizens; even had there not been this difficulty, foreigners would probably have objected to the cumbersome formalism that characterized the early jus civile.
The law that the magistrates applied probably consisted of three elements: (1) an existing mercantile law that was used by the Mediterranean traders; (2) those institutions of the Roman law that, after being purged of their formalistic elements, could be applied universally to any litigant, Roman or foreigner; and (3) in the last resort, a magistrate’s own sense of what was fair and just. This system of jus gentium was also adopted when Rome began to acquire provinces so that provincial governors could administer justice to the peregrini (foreigners). This word came to mean not so much persons living under another government (of which, with the expansion of Roman power, there came to be fewer and fewer) as Roman subjects who were not citizens. In general, disputes between members of the same subject state were settled by that state’s own courts according to its own law, whereas disputes between provincials of different states or between provincials and Romans were resolved by the governor’s court applying jus gentium. By the 3rd century CE, when citizenship was extended throughout the empire, the practical differences between jus civile and jus gentium ceased to exist. Even before this, when a Roman lawyer said that a contract of sale was juris gentium, he meant that it was formed in the same way and had the same legal results whether the parties to it were citizens or not. This became the practical meaning of jus gentium. Because of the universality of its application, however, the idea was also linked with the theoretical notion that it was the law common to all peoples and was dictated by nature—an idea that the Romans took from Greek philosophy.
Written And Unwritten Law
The Romans divided their law into jus scriptum (written law) and jus non scriptum (unwritten law). By “unwritten law” they meant custom; by “written law” they meant not only the laws derived from legislation but, literally, laws based on any written source.
There were various types of written law, the first of which consisted of leges (singular lex), or enactments of one of the assemblies of the whole Roman people. Although the wealthier classes, or patricians, dominated these assemblies, the common people, or plebeians, had their own council in which they enacted resolutions called plebiscita. Only after the passage of the Lex Hortensia in 287 BCE, however, did plebiscita become binding on all classes of citizens; thereafter, plebiscita were generally termed leges along with other enactments. In general, legislation was a source of law only during the republic. When Augustus Caesar established the empire in 31 BCE, the assemblies did not at once cease to function, but their assent to any proposal became merely a formal ratification of the emperor’s wishes. The last known lex was passed during the reign of Nerva (96–98 CE).
The earliest and most important legislation, or body of leges, was the Twelve Tables, enacted in 451–450 BCE during the struggle of the plebeians for political equality. It represented an effort to obtain a written and public code that patrician magistrates could not alter at will against plebeian litigants. Little is known of the actual content of the Twelve Tables; the text of the code has not survived, and only a few fragments are extant, collected from allusions and quotations in the works of authors such as Cicero. From the fragments it is apparent that numerous matters were treated, among them family law, delict (tort, or offense against the law), and legal procedure.
A second type of written law consisted of the edicta (edicts), or proclamations issued by a superior magistrate (praetor) on judicial matters. The office of praetor was created in 367 BCE to take over the expanding legal work involving citizens; later, a separate praetor was created to deal with foreigners. Upon taking office, a praetor issued an edict that was, in effect, the program for his year in office. The curule aediles, who were the magistrates responsible for the care and supervision of the markets, also issued edicts. During the later stages of the republic, these praetorian and magisterial edicts became an instrument of legal reform, and leges ceased to be a major source of private law.
The Roman system of procedure gave the magistrate great powers for providing or refusing judicial remedies, as well as for determining the form that such remedies should take. The result of this magisterial system was the development of the jus honorarium, a new body of rules that existed alongside, and often superseded, the civil law. The edicta remained a source of law until about 131 CE, when the emperor Hadrian commissioned their reorganization and consolidation and declared the resulting set of laws to be unalterable, except by the emperor himself.
A third type of written law was the senatus consulta, or resolutions of the Roman senate. Although these suggestions to various magistrates had no legislative force during the republic, they could be given force by the magistrates’ edicts. In the early empire, as the power of the assemblies declined and the position of the emperor increased, senatus consulta became resolutions that endorsed the proposals of the emperor. As the approval of the Senate became increasingly automatic, the emperor’s proposals became the true instrument of power. Consequently, emperors ceased referring proposals to the Senate and, not long after the early imperial period, ended the practice of legislating through the Senate.
A fourth type of written law consisted of the constitutiones principum, which were, in effect, expressions of the legislative power of the emperor. By the middle of the 2nd century CE, the emperor was, essentially, the sole creator of the law. The chief forms of imperial legislation were edicts or proclamations; instructions to subordinates, especially provincial governors; written answers to officials or others who consulted the emperor; and decisions of the emperor sitting as a judge.
The last type of written law was the responsa prudentium, or answers to legal questions given by learned lawyers to those who consulted them. Although law, written and unwritten, was originally a rather secretive monopoly of the college of pontiffs, or priests, a recognizable class of legal advisers, juris consulti or prudentes, had developed by the early 3rd century BCE. These legal advisers were not professionals as such but men of rank who sought popularity and advancement in their public careers by giving free legal advice. They interpreted statutes and points of law, especially unwritten law, advised the praetor on the content of his edict, and assisted parties and judges in litigation. Augustus empowered certain jurists to give responsa with the emperor’s authority; this increased their prestige, but the practice lapsed as early as 200 CE.
During the early empire, numerous commentaries were written by the great jurists on individual leges, on civil law, on the edict, and on law as a whole. In the 5th century a law was passed stipulating that only the works of certain jurists could be cited. Legal scholarship declined in the postclassical period.
The Law Of Justinian
When the Byzantine emperor Justinian I assumed rule in 527 CE, he found the law of the Roman Empire in a state of great confusion. It consisted of two masses that were usually distinguished as old law and new law.
The old law comprised (1) all of the statutes passed under the republic and early empire that had not become obsolete; (2) the decrees of the Senate passed at the end of the republic and during the first two centuries of the empire; and (3) the writings of jurists and, more particularly, of those jurists to whom the emperors had given the right of declaring the law with their authority. These jurists, in their commentaries, had incorporated practically all that was of importance. Of these numerous records and writings of old law, many had become scarce or had been lost altogether, and some were of doubtful authenticity. The entire mass of work was so costly to produce that even the public libraries did not contain complete collections. Moreover, these writings contained many inconsistencies.
The new law, which consisted of the ordinances of the emperors promulgated during the middle and later stages of the empire, was in a similarly disorganized condition. These ordinances or constitutions were extremely numerous and contradictory. Because no complete collection existed (earlier codices were not comprehensive), other ordinances had to be obtained separately. It was thus necessary to collect into a reasonable corpus as much of the law, both new and old, as was regarded as binding and to purge its contradictions and inconsistencies.
Immediately after his accession, Justinian appointed a commission to deal with the imperial constitutions. The 10 commissioners went through all of the constitutions of which copies existed, selected those that had practical value, cut all unnecessary matter, eliminated contradictions by omitting one or the other of the conflicting passages, and adapted all the provisions to the circumstances of Justinian’s own time. The resulting Codex Constitutionum was formally promulgated in 529, and all imperial ordinances not included in it were repealed. This Codex has been lost, but a revised edition of 534 exists as part of the so-called Corpus Juris Civilis.
The success of this first experiment encouraged the emperor to attempt the more difficult enterprise of simplifying and digesting the writings of the jurists. Thus, beginning in 530, a new commission of 16 eminent lawyers set about this task of compiling, clarifying, simplifying, and ordering; the results were published in 533 in 50 books that became known as the Digest (Digesta) or Pandects(Pandectae). After enacting the Digest as a lawbook, Justinian repealed all of the other law contained in the treatises of the jurists and directed that those treatises should never be cited in the future, even by way of illustration; at the same time, he abrogated all of the statutes that had formed a part of the old law. An outline of the elements of Roman law called the Institutes of Justinian (or simply Institutiones) was published at about the same time.
Between 534 and his death in 565, Justinian himself issued a great number of ordinances that dealt with many subjects and seriously altered the law on many points. These ordinances are called, by way of distinction, new constitutions (Novellae Constitutiones Post Codicem); in English they are referred to as the Novels.
All of these books—the revised Codex Constitutionum (the original work was revised four and a half years later), the Digest, the Institutes, and the Novels—are collectively known as the Corpus Juris Civilis. This Corpus Juris of Justinian, with a few additions from the ordinances of succeeding emperors, continued to be the chief lawbook in what remained of the Roman world. In the 9th century a new system known as the Basilica was prepared by the emperor Leo VI the Wise. It was written in Greek and consisted of parts of the Codex and parts of the Digest, joined and often altered in expression, together with some material from the Novels and imperial ordinances subsequent to those of Justinian. In the western provinces, the law as settled by Justinian held its ground.
Categories Of Roman Law
The law of persons
“The main distinction in the law of persons,” said the 2nd-century jurist Gaius, “is that all men are either free or slaves.” The slave was, in principle, a human chattel who could be owned and dealt with like any other piece of property. As such, he was not only at the mercy of his owner but rightless and (apart from criminal law) dutiless. Even though the slave was in law a thing, he was in fact a man, and this modified the principle. A slave could not be a party to a contract nor own property, but he could be given a de facto patrimony, which could be retained if he were freed; if he made a “commitment,” it could ultimately be enforced against his master. A manumitted slave became, in most instances, not only free but also a citizen.
The definition of citizenship was important for the purposes of private law because certain parts applied only to citizens (jus civile). Noncitizens could be either Latini, inhabitants of Roman settlements that had the rights of members of the original Latin League, or peregrini, who were members of foreign communities or of those territories governed but not absorbed by Rome. The great extension of the citizenship by the emperor Caracalla in 212 CE reduced the importance of this part of the law.
The chief characteristic of the Roman family was the patria potestas (paternal power in the form of absolute authority), which the elder father exercised over his children and over his more remote descendants in the male line, whatever their age might be, as well as over those who were brought into the family by adoption—a common practice at Rome. Originally this meant not only that he had control over his children, even to the right of inflicting capital punishment, but that he alone had any rights in private law. Thus, any acquisitions made by a child under potestas became the property of the father. The father might indeed allow a child (as he might a slave) certain property to treat as his own, but in the eye of the law it continued to belong to the father.
By the 1st century CE there were already modifications of the system: the father’s power of life and death had shrunk to that of light chastisement, and the son could bind his father by contract with a third party within the same strict limits that applied to slaves and their masters. Sons also could keep as their own what they earned as soldiers and even make wills of it. In Justinian’s day, the position regarding property had changed considerably. What the father gave to the son still remained, in law, the father’s property, but the rules concerning the son’s own earnings had been extended to many sorts of professional earnings; and in other acquisitions (such as property inherited from the mother), the father’s rights were reduced to a life interest (usufruct). Normally, patria potestas ceased only with the death of the father; but the father might voluntarily free the child by emancipation, and a daughter ceased to be under her father’s potestas if she came under the manus of her husband.
There were two types of marriage known to the law, one with manus and one without, but the manus type of marriage was rare even in the late republic and had disappeared long before Justinian’s day. Manus was the autocratic power of the husband over the wife, corresponding to patria potestas over the sons.
Marriage without manus was by far the more common in all properly attested periods. It was formed (provided the parties were above the age of puberty and, if under potestas, had their father’s consent) simply by beginning conjugal life with the intention of being married, normally evidenced by the bringing of the bride to the bridegroom’s house. The wife remained under her father’s potestas if he were still alive; if he were dead, she continued (as long as guardianship of women continued) to have the same guardian as before marriage. Both spouses had to be citizens, or if one was not, he or she must have conubium (the right, sometimes given to non-Romans, of contracting a Roman marriage). In marriage without manus, the property of the spouses remained distinct, and even gifts between husband and wife were invalid.
Divorce was permitted to the husband in early Rome only on specific grounds. Later, divorce was always possible at the instance of the husband in cases of marriage with manus; in marriage without manus, either party was free to put an end to the relationship. A formal letter was usually given to the spouse, but any manifestation of intention to end the relationship—made clear to the other party and accompanied by actual parting—was all that was legally necessary. The Christian emperors imposed penalties on those who divorced without good reason, including prohibitions on remarriage, but the power of the parties to end the marriage by their own act was not taken away.
Concubinage was recognized in the empire as a “marriage” without a dowry, with a lower status for the woman, and with provisions that the children were not legally the father’s heirs. A man could not have both a wife and a concubine. In the 4th century the emperor Constantine first enacted a law enabling the children of such unions to be legitimated by the subsequent marriage of their parents. Medieval civil law extended this rule to all illegitimate children.
Persons under the age of puberty (14 for males, 12 for females) needed tutores if they were not under patria potestas. Such tutors could be appointed under the will of the father or male head of the household. Failing such an appointment, the guardianship went to certain prescribed relatives; if there were no qualified relations, the magistrates appointed a tutor. Originally, children were considered adults at the age of puberty; but, after a long development, it became usual for those between the ages of puberty and 25 to have guardians who were always magisterially appointed. Originally, all women not under patria potestas or manus also needed tutores, appointed in the same way as those for children. By the early empire, this provision was little more than a burdensome technicality, and it disappeared from Justinian’s law.
The Romans did not develop a generalized concept of juristic personality in the sense of an entity that had rights and duties. They had no terms for a corporation or a legal person. But they did endow certain aggregations of persons with particular powers and capacities, and the underlying legal notion hovered between corporate powers, as understood in modern law, and powers enjoyed collectively by a group of individuals. The source of such collective powers, however, was always an act of state.
Four types of corporation were distinguished:
1. Municipia (the citizen body, originally composed of the conquered cities and later of other local communities) possessed a corporateness that was recognized in such matters as having the power to acquire things and to contract. In imperial times, they were accorded the power to manumit slaves, take legacies, and finally—though this became general only in postclassical law—to be instituted as an heir.
2. The populus Romanus, or the “people of Rome,” collectively could acquire property, make contracts, and be appointed heir. Public property included the property of the treasury.
3. Collegia—numerous private associations with specialized functions, such as craft or trade guilds, burial societies, and societies dedicated to special religious worship—seem to have carried on their affairs and to have held property corporately in republican times. The emperors, viewing the collegiawith some suspicion, enacted from the beginning that no collegium could be founded without state authority and that their rights of manumitting slaves and taking legacies be closely regulated.
4. Charitable funds became a concern of postclassical law. Property might be donated or willed—normally, but not necessarily, to a church—for some charitable use, and the church would then (or so it appears from the evidence) have the duty of supervising the fund. Imperial legislation controlled the disposition of such funds so that they could not be used illegally. In such cases ownership is thought to have been temporarily vested in the administrators.
The law of property and possession
In Roman law (today as well as in Roman times), both land and movable property could be owned absolutely by individuals. This conception of absolute ownership (dominium) is characteristically Roman, as opposed to the relative idea of ownership as the better right to possession that underlies the Germanic systems and English law.
Mancipatio, or formal transfer of property, involved a ceremonial conveyance needing for its accomplishment the presence of the transferor and transferee, five witnesses (adult male Roman citizens), a pair of scales, a man to hold them, and an ingot of copper or bronze. The transferee grasped the object being transferred and said, “I assert that this thing is mine by Quiritarian [Roman] law; and let it have been bought by me with this piece of copper and these copper scales.” He then struck the scales with the ingot, which he handed to the transferor “by way of price.”
In jure cessio was a conveyance in the form of a lawsuit. The transferee claimed before the magistrate that the thing was his, and the transferor, who was the defendant, admitted the claim. The magistrate then adjudged the thing to the transferee. (The sham-lawsuit theory, however, is not acceptable to all modern scholars, principally because the judgment of ownership was valid against any possible private claimant, not merely against the defendant, as in a true lawsuit.)
Usucapio referred to ownership acquired by length of possession. In early Roman law, two years of continuous possession established title in the case of land, one year in the case of movables. In the developed law, possession must have begun justifiably in good faith, and the thing must not have been stolen (even though the possessor himself may have been innocent of the theft) or acquired by violence.
In terms of occupatio, ownerless things that were susceptible to private ownership (excluding such things as temples) became the property of the first person to take possession of them. This applied to things such as wild animals and islands arising in the sea. In some views, it also applied to abandoned articles.
Accessio worked in this manner: if an accessory thing belonging to A was joined to a principal one belonging to B, the ownership in the whole went to B. For example, if A’s purple were used to dye B’s cloth, the dyed cloth belonged wholly to B. By far the most important application of this rule asserted that whatever is built on land becomes part of the land and cannot be separately owned.
Specificatio was somewhat different. If A made a thing out of material belonging to B, one school of thought held that ownership went to A, and another held that it remained with B. Justinian adopted a “middle opinion”: B retained ownership if reconversion to the original condition was possible (a bronze vase could be melted down); A obtained ownership if it was not (wine cannot be reconverted into grapes).
According to thesauri inventio, or treasure trove, the final rule was that if something was found by a man on his own land, it went to him; if it was found on the land of another, half went to the finder, half to the landowner.
Traditio was the simple delivery of possession with the intention of passing ownership and was the method of conveyance of the jus gentium. If A sold and merely delivered a slave to B, under the jus civile, A remained the owner of the slave until a specified length of time had elapsed. The praetors, however, devised procedural methods of protecting B’s possession in such a way that A’s title became valueless, and B was said to own the thing in bonis. This was a remarkable triumph for informality in the granting of title. From the phrase in bonis, later writers coined the expression “bonitary ownership.” Justinian abolished the theoretical distinction between civil and bonitary ownership.
The ordinary leaseholder had no protection beyond a contractual right against a landlord and could not assign tenancy. But there were certain kinds of tenure that did provide the tenant protection and that were assignable: agricultural and building leases granted for a long term or in perpetuity often enabled leaseholders to enjoy rights hardly distinguishable from ownership.
There were also servitudes, in which one person enjoyed certain rights in property owned by another. Rights of way and water rights were rustic servitudes; rights to light or to view were urban servitudes. Ususfructus was the right to use and take the fruits (such as crops) of a thing and corresponded to the modern notion of life interest. A more restricted right, likewise not extending beyond the life of the holder, usus permitted merely the use of a thing; thus, a person could live in a house but could not let it, as that would be equivalent to “taking the fruits.”
Since ownership was absolute, it was sharply distinguished from possession, which the civil law did not protect as such. Any owner wishing to interfere with an existing possessor, however, had to bring legal action to prove his title. If he interfered on his own authority, the praetor would see that the original state of affairs was restored before adjudicating the title.
Obligations were classified by classical jurists into two main categories, according to whether they arose from delict or contract. Justinian’s law recognized two further classes of obligation, termed quasi-delict and quasi-contract.
As early as the 6th and 5th centuries BCE, Roman law was experiencing a transition from a system of private vengeance to one in which the state insisted that the person wronged accept compensation instead of vengeance. Thus, in the case of assault (injuria), if one man broke another’s limb, talio was still permitted (that is, the person wronged could inflict the same injury as he had received); but in other cases, fixed monetary penalties were set. Theft involved a penalty of twice the value of the thing stolen, unless the thief was caught in the act, in which case he was flogged and “adjudged” to the person wronged.
By the early empire, reforms had substituted a fourfold penalty in the case of a thief who was caught in the act, and the court assessed all penalties for injuria (which by then included defamation and insulting behaviour). The law of damage to property was regulated by statute (the Lex Aquilia), which in turn was much extended by interpretation. Additionally, there were situations in which a person could be held liable for damages even though he was not personally responsible. In Justinian’s Institutes only four delicts were dealt with: theft, robbery with violence, damage to property, and verbal or physical assault.
In the early republic, a law of contract hardly existed. There was, however, an institution called nexum, of which little can be said with certainty except that it was a kind of loan so oppressive in character that it could result in the debtor’s complete subjection to the creditor. It was obsolete long before imperial times. The contracts of classical law were divided into four classes: literal, verbal, real, and consensual. The literal contract was a type of fictitious loan formed by an entry in the creditor’s account book; it was comparatively unimportant and was obsolete by Justinian’s day. The verbal contract required set words or patterns of words to be spoken. The stipulatio was the most important form of verbal contract, for it established a form in which any agreement (provided it was lawful and possible) could be made binding by the simple method of reducing it to question and answer: “Do you promise to pay me 10,000 sesterces?” “I promise.” Originally it was absolutely necessary that the words be spoken, but by Justinian’s day a written memorandum of such a contract would be binding, even though, in fact, nothing at all had been spoken.
If an agreement was not clothed in the form of a stipulation, it must, to be valid, fall under one of the types of real or consensual contracts. A real contract was one requiring that something should be transferred from one party to the other and that the obligation arising should be for the return of that thing. Real contracts included loans of money, loans of goods, deposits, and pledges. Consensual contracts needed nothing except verbal or written agreement between the parties, and though there were only four such contracts known to the law, they were the most important in ordinary life—sale, hire of things or services, partnership, and mandate (acting upon instructions). In Justinian’s day there was a further principle that in any case of reciprocal agreement, such as an agreement for exchange (but not sale), if one party had performed, he could bring an action to enforce performance by the other. In addition to the foregoing contracts, a few other specific agreements were recognized as enforceable, but the general recognition of all serious agreements as binding was never achieved by the Romans.
Quasi-delict covered four types of harm, grouped together by no clearly ascertainable principle. They included the action against an occupier for harm done by things thrown or poured from his house into a public place and the action against a shipowner, innkeeper, or stablekeeper for loss caused to customers on the premises through theft or damage by persons in his service.
Quasi-contract embraced obligations that had no common feature save that they did not properly fall under contract, because there was no agreement, or under delict, because there was no wrongful act. The most noticeable examples were, first, negotiorum gestio, which enabled one who intervened without authority in another’s affairs for the latter’s benefit to claim reimbursement and indemnity, and second, the group of cases in which an action (condictio) was allowed for the recovery by A from B of what would otherwise be an unjustified enrichment of B at A’s expense, such as when A had mistakenly paid B something that was not due (condictio indebiti). This notion of unjust enrichment as a source of legal obligation was one of the most pregnant contributions made by Roman law to legal thought.
The law of succession
The law of succession is one of the most complex areas of Roman law. Any Roman citizen who was of age could make a will, but several very formal requirements had to be met for the will to be valid. The first requirement was the appointment of one or more heirs. An heir, in the Roman sense of the term, was a universal successor; that is, he took over the rights and duties of the deceased (insofar as they were transmissible at all) as a whole. On acceptance, the heir became owner if the deceased was owner, creditor if he was creditor, and debtor if he was debtor, even though the assets were insufficient to pay the debts. It was thus possible for an inheritance to involve the heir in a loss. Until Justinian’s day this consequence could be avoided only by not accepting the inheritance, though certain categories of heirs could not refuse. Justinian made one of his most famous reforms by providing that an heir who made an inventory of the deceased’s assets need not pay out more than he had received. Freedom of testation, furthermore, was not complete: a man was obliged to leave a certain proportion of his property to his children and in some cases to ascendants and brothers and sisters.
With regard to intestate succession, or succession without a will, those first entitled in early times were the deceased’s own heirs—that is, those who were in his potestas or manus when he died and who were freed from that power at his death. Failing these heirs, the nearest agnatic relations(relations in the male line of descent) succeeded, and, if there were no agnates, the members of the gens, or clan, of the deceased succeeded. Later reforms placed children emancipated from potestason an equal basis with those under potestas and gradually gave the surviving spouse (in marriage without manus) greater rights of succession. By Justinian’s day the system had evolved as follows: descendants had the first claim, and failing these heirs, came a composite class consisting of ascendants, brothers and sisters of full blood, and children of deceased brothers and sisters. Next came brothers and sisters of the half blood and, finally, the nearest cognates (relations in the female line). Husband and wife were not mentioned, but their old rights were kept alive in the absence of any of the preceding categories. Justinian also gave a “poor” widow a right to one-quarter of her husband’s estate unless there were more than three children, in which case she shared equally with them. If, however, the heirs were her own children by the deceased, she received only a ususfructus(life interest) in what she took.
The law of procedure
The earliest law suits (legis actiones) were conducted orally in two stages: a preliminary one before the jurisdictional magistrate, in which the issue was developed; and then the actual presentation of evidence to the judex, or judge. The first stage required that set forms of words be spoken by the parties and, sometimes, by the magistrate. The parties making an assertion of ownership, for instance, would grasp the thing in dispute and lay a wand on it, after which the magistrate would intervene and say, “Let go, both of you.” So formal was the procedure that a plaintiff who made the slightest mistake lost his case. For the second stage, before the judex, there were no formal rules. However, the plaintiff had the burden of proof, was responsible for physically producing the defendant in court and, often, for carrying out the sentence.
Under new procedures developed in the 2nd and 1st centuries BCE, the issue at the magisterial stage was formulated in written instructions to the judex, couched in the form of an alternative: “If it appears that the defendant owes the plaintiff 10,000 sesterces, the judex is to condemn the defendant to pay the plaintiff 10,000 sesterces; if it does not so appear, he is to absolve him.” A draft of these written instructions was probably prepared for the plaintiff before he came into court, but there could be no trial until it was accepted by the defendant, for there was always a contractual element about a lawsuit under both the new and the old systems. Pressure, however, could be exercised by the magistrate on a defendant who refused to accept instructions that the magistrate had approved, just as a plaintiff could be forced to alter instructions that the magistrate had disapproved, by the magistrate’s refusal to otherwise give the order to the judex to decide the case.
In late republican times, still another system developed, first in the provinces, then in Rome. Under the new system the magistrate used his administrative powers, which were always considerable, for the purpose of settling disputes. He could command: thus if one person brought a complaint against another before him, he could investigate the matter and give the order he thought fit. As imperially appointed officers superseded republican magistrates, this administrative process became more common. The result was that the old contractual element in procedure disappeared as did the old two-stage division. Justice was now imposed from above by the state—not, as originally, left to a kind of voluntary arbitration supervised by the state.Herbert Felix JolowiczRaphael PowellMaurice Alfred MillnerMary Ann GlendonPaolo Carozza
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Law of the Twelve Tables
Law of the Twelve Tables, Latin Lex XII Tabularum, the earliest written legislation of ancient Roman law, traditionally dated 451–450 BC.
The Twelve Tables allegedly were written by 10 commissioners (decemvirs) at the insistence of the plebeians, who felt their legal rights were hampered by the fact that court judgments were rendered according to unwritten custom preserved only within a small group of learned patricians. Beginning work in 451, the first set of commissioners produced 10 tables, which were later supplemented by 2 additional tables. In 450 the code was formally posted, likely on bronze tablets, in the Roman Forum. The written recording of the law in the Twelve Tables enabled the plebeians both to become acquainted with the law and to protect themselves against patricians’ abuses of power.
The Twelve Tables were not a reform or a liberalizing of old custom. Rather, they recognized the prerogatives of the patrician class and of the patriarchal family, the validity of enslavement for unpaid debt, and the interference of religious custom in civil cases. That they reveal a remarkable liberality for their time with respect to testamentary rights and contracts is probably the result not of any innovations by the decemvirs but rather of the progress that had been made in commercial customs in Rome in an era of prosperity and vigorous trade.
Because only random quotations from the Twelve Tables are extant, knowledge about their contents is largely derived from references in later juridical writings. Venerated by the Romans as a prime legal source, the Twelve Tables were superseded by later changes in Roman law but were never formally abolished.
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The next major episode after the creation of the plebeian tribunate in the annalistic version of the struggle of the orders involved the first systematic codification of Roman law. The plebeians were supposed to have desired a written law code in which consular imperium would be circumscribed to guard against abuses. After years of tribunician agitation the Senate finally agreed. A special board of 10 men (decemviri) was appointed for 451 BC to draw up a law code. Since their task was not done after one year, a second board of 10 was appointed to finish the job, but they became tyrannical and stayed in office beyond their time. They were finally forced out of power when one commissioner’s cruel lust for an innocent maiden named Verginia so outraged the people that they seceded for a second time.
The law code was inscribed upon 12 bronze tablets and publicly displayed in the Forum. Its provisions concerned legal procedure, debt foreclosure, paternal authority over children, property rights, inheritance, funerary regulations, and various major and minor offenses. Although many of its provisions became outmoded and were modified or replaced in later times, the Law of the Twelve Tables formed the basis of all subsequent Roman private law.
Because the law code seems not to have had any specific provisions concerning consular imperium, the annalistic explanation for the codification appears suspect. The story of the second tyrannical board of 10 is an annalistic invention patterned after the 30 tyrants of Athenian history. The tale of Verginia is likewise modeled after the story of Lucretia and the overthrow of Rome’s last king. Thus the second secession, which is an integral part of the story, cannot be regarded as historical. On the basis of existing evidence, one cannot say whether the law code resulted from any social or economic causes. Rome was a growing city and may simply have been in need of a systematic body of law.
The Law of Persons
The Roman law of persons is defined as the body of rules concerned with the legal position of the human person (persona) comprising their rights, capacities and duties. It pertained to the various aspects of a persons status (status or condicio) as an individual, as a member of the community and as a member of a family hence it includes the law of marriage and family relations. Although the concept of persona underwent a long process of evolution, it has meant simply human being(homo) since the classical period. Hence even slaves (servi) were considered persons, despite the fact that in modern legal doctrine a slave was a legal object of rights and duties whereas a free person was a legal subject or a holder of rights and duties. Although Roman law also recognized non-human subjects of rights and duties, such as private corporations and public enterprises (labelled in contemporary law as juristic persons), these entities were not considered persons for the reason that in the eyes of the law only the natural person was a persona.
The Law of Persons
Law in Ancient Rome
Roman law is the legal system of ancient Rome, and the legal developments which occurred before the 7th century AD - when the Roman Ð Byzantine state adopted Greek as the language of government. The development of Roman law comprises more than a thousand years of jurisprudence - from the Twelve Tables (c. 439 BC) to the Corpus Juris Civilis (AD 529) ordered by Emperor Justinian I. This Roman law, the Justinian Code, was effective in the Eastern Roman (Byzantine) Empire (331-1453), and also served as a basis for legal practice in continental Europe, as well as in Ethiopia, and most former colonies of European nations, including Latin America.
Historically, "Roman law" also denotes the legal system applied in most of Western Europe, until the end of the 18th century. In Germany, Roman law practice remained longer, having been the Holy Roman Empire (963-1806); thus the great influence upon the civil law systems in Europe. Moreover, the English and North American Common law also were influenced by Roman law, notably in the Latinate legal glossary - stare decisis, culpa in contrahendo, pacta sunt servanda. In contrast, Eastern Europe, though influenced by the Byzantine Empire, was not much influenced by the jurisprudence of the Corpus Juris Civilis; however, they did accept the Roman influence of the Farmer's Law.
Roman Legal Development
Before the Twelve Tables (754-449 BC), private law comprised the Roman civil law (ius civile Quiritium) that applied only to Roman citizens, and was bonded to religion; undeveloped, with attributes of strict formalism, symbolism, and conservatism, e.g. the ritual practice of mancipatio (a form of sale). The jurist Sextus Pomponius said, "At the beginning of our city, the people began their first activities without any fixed law, and without any fixed rights: all things were ruled despotically, by kings". It is believed that Roman Law is rooted in the Etruscan religion, emphasizing ritual.
The Twelve Tables
Procedure: for courts and trials
Rights of fathers (paterfamilias) over the family
Legal guardianship and inheritance laws
Acquisition and possession
Torts and delicts (Laws of injury)
- 1. If anyone summons a man before the magistrate, he must go. If the man summoned does not go, let the one summoning him call the bystanders to witness and then take him by force.
2. If he shirks or runs away, let the summoner lay hands on him.
3. If illness or old age is the hindrance, let the summoner provide a team. He need not provide a covered carriage with a pallet unless he chooses.
4. Let the protector of a landholder be a landholder; for one of the proletariat, let anyone that cares, be protector.
6-9. When the litigants settle their case by compromise, let the magistrate announce it. If they do not compromise, let them state each his own side of the case, in the comitium of the forum before noon. Afterwards let them talk it out together, while both are present. After noon, in case either party has failed to appear, let the magistrate pronounce judgment in favor of the one who is present. If both are present the trial may last until sunset but no later.
- 2. He whose witness has failed to appear may summon him by loud calls before his house every third day.
- 1. One who has confessed a debt, or against whom judgment has been pronounced, shall have thirty days to pay it in. After that forcible seizure of his person is allowed. The creditor shall bring him before the magistrate. Unless he pays the amount of the judgment or some one in the presence of the magistrate interferes in his behalf as protector the creditor so shall take him home and fasten him in stocks or fetters. He shall fasten him with not less than fifteen pounds of weight or, if he choose, with more. If the prisoner choose, he may furnish his own food. If he does not, the creditor must give him a pound of meal daily; if he choose he may give him more.
2. On the third market day let them divide his body among them. If they cut more or less than each one's share it shall be no crime.
3. Against a foreigner the right in property shall be valid forever.
- 1. A dreadfully deformed child shall be quickly killed.
2. If a father sell his son three times, the son shall be free from his father.
3. As a man has provided in his will in regard to his money and the care of his property, so let it be binding. If he has no heir and dies intestate, let the nearest agnate have the inheritance. If there is no agnate, let the members of his gens have the inheritance.
4. If one is mad but has no guardian, the power over him and his money shall belong to his agnates and the members of his gens.
5. A child born after ten months since the father's death will not be admitted into a legal inheritance.
- 1. Females should remain in guardianship even when they have attained their majority.
- 1. When one makes a bond and a conveyance of property, as he has made formal declaration so let it be binding.
3. A beam that is built into a house or a vineyard trellis one may not take from its place.
5. Usucapio of movable things requires one year's possession for its completion; but usucapio of an estate and buildings two years.
6. Any woman who does not wish to be subjected in this manner to the hand of her husband should be absent three nights in succession every year, and so interrupt the usucapio of each year.
- 1. Let them keep the road in order. If they have not paved it, a man may drive his team where he likes.
9. Should a tree on a neighbor's farm be bend crooked by the wind and lean over your farm, you may take legal action for removal of that tree.
10. A man might gather up fruit that was falling down onto another man's farm.
- 2. If one has maimed a limb and does not compromise with the injured person, let there be retaliation. If one has broken a bone of a freeman with his hand or with a cudgel, let him pay a penalty of three hundred coins If he has broken the bone of a slave, let him have one hundred and fifty coins. If one is guilty of insult, the penalty shall be twenty-five coins.
3. If one is slain while committing theft by night, he is rightly slain.
4. If a patron shall have devised any deceit against his client, let him be accursed.
5. If one shall permit himself to be summoned as a witness, or has been a weigher, if he does not give his testimony, let him be noted as dishonest and incapable of acting again as witness.
10. Any person who destroys by burning any building or heap of corn deposited alongside a house shall be bound, scourged, and put to death by burning at the stake provided that he has committed the said misdeed with malice aforethought; but if he shall have committed it by accident, that is, by negligence, it is ordained that he repair the damage or, if he be too poor to be competent for such punishment, he shall receive a lighter punishment.
12. If the theft has been done by night, if the owner kills the thief, the thief shall be held to be lawfully killed.
13. It is unlawful for a thief to be killed by day....unless he defends himself with a weapon; even though he has come with a weapon, unless he shall use the weapon and fight back, you shall not kill him. And even if he resists, first call out so that someone may hear and come up.
23. A person who had been found guilty of giving false witness shall be hurled down from the Tarpeian Rock.
26. No person shall hold meetings by night in the city.
- 4. The penalty shall be capital for a judge or arbiter legally appointed who has been found guilty of receiving a bribe for giving a decision.
5. Treason: he who shall have roused up a public enemy or handed over a citizen to a public enemy must suffer capital punishment.
6. Putting to death of any man, whosoever he might be unconvicted is forbidden.
- 1. None is to bury or burn a corpse in the city.
3. The women shall not tear their faces nor wail on account of the funeral.
5. If one obtains a crown himself, or if his chattel does so because of his honor and valor, if it is placed on his head, or the head of his parents, it shall be no crime.
- 1. Marriages should not take place between plebeians and patricians.
- 2. If a slave shall have committed theft or done damage with his master"s knowledge, the action for damages is in the slave's name.
5. Whatever the people had last ordained should be held as binding by law.
The Twelve Tables is the earliest attempt by the Romans to create a Code of Law and is also the earliest (surviving) piece of literature coming from the Romans. In the midst of a perennial struggle for legal and social protection and civil rights between the privileged class (patricians) and the common people (plebeians) a commission of ten men (Decemviri) was appointed (ca. 455 B.C.) to draw up a code of law which would be binding on both parties and which the magistrates (the 2 consuls) would have to enforce impartially.
The commission produced enough statutes (most of them were already 'customary law' anyway) to fill Ten Tablets, but this attempt seems not to have been entirely satisfactory especially to the plebeians. A second commission of ten was therefore appointed (450 B.C.) and two additional tablets were drawn up. The originals, said to have been inscribed on bronze, were probably destroyed when the Gauls sacked and burned Rome in the invasion of 387 B.C.
The Twelve Tables give the student of Roman culture a chance to look into the workings of a society which is still quite agrarian in outlook and operations, and in which the main bonds which hold the society together and allow it to operate are: the clan (genos, gens), patronage (patron/client), and the inherent (and inherited) right of the patricians to leadership (in war, religion, law, and government).
The Law of the Twelve Tablets (Latin: Leges Duodecim Tabularum or, informally, Duodecim Tabulae) was the ancient legislation that stood at the foundation of Roman law. The Law of the Twelve Tables formed the centerpiece of the constitution of the Roman Republic and the core of the mos maiorum (custom of the ancestors). The Twelve Tables must be distinguished from the unrelated - and much older - "twelve shields" of King Numa Pompilius.
The Twelve Tables came about as a result of the long social struggle between patricians and plebeians. After the expulsion of the last king of Rome, Tarquinius Suberbus, the Republic was governed by a hierarchy of magistrates. Initially only patricians were eligible to become magistrates and this, among other plebeian complaints was a source of discontent for plebeians.
In the context of this unequal status, plebeians would take action to secure concessions for themselves using the threat of secession. They would threaten to leave the city with the consequence that it would grind to a halt, as the plebeians were Rome's labour force. One of the most important concessions won in this class struggle was the establishment of the Twelve Tables, establishing basic procedural rights for all Roman citizens as against one another.
Patricians long opposed this request, but around 451 BC, the first decemviri (decemvirate - board of "Ten Men") was appointed to draw up the first ten tables. They allegedly sent an embassy to Greece to study the legislative system of Athens, known as the Solonian Constitution, but also to find out about the legislation of other Greek cities. Modern scholars believe the Roman assembly most likely visited the Greek cities of Southern Italy, and did not travel all the way to Greece. In 450 B.C., the second decemviri started work on the last two tables.
The first decemvirate completed the first ten codes in 450 BC. Here is how Livy describes their creation,
- "...every citizen should quietly consider each point, then talk it over with his friends, and, finally, bring forward for public discussion any additions or subtractions which seemed desirable." (cf. Liv. III 34)
In 449 BC, the second decemvirate completed the last two codes, and after a secessio plebis to force the Senate to consider them, the Law of the Twelve Tables was formally promulgated. The Twelve Tables were drawn up on twelve ivory tablets (Livy says bronze) which were posted in the Roman Forum so all Romans could read and know them. It was not a comprehensive statement of all law, but a sequence of definitions of various private rights and procedures. They generally took for granted such things as the institutions of the family and various rituals for formal transactions.
For such an important document, it is somewhat surprising that the original text has been lost. The original tablets were destroyed when the Gauls under Brennus burnt Rome in 390 BC. There was no other official promulgation of them to survive, only unofficial editions. What we have of them today are brief excerpts and quotations from these laws in other authors. They are written in a strange, archaic, laconic, and somewhat childish and sing-song version of Latin (described as Saturnian verse). As such, though we cannot tell whether the quoted fragments accurately preserve the original form, what we have gives us some insight into the grammar of early Latin. The belief is that the text was written as such so plebians could more easily memorize the laws, as literacy was not commonplace during early Rome.
Like most other early codes of law, they were largely procedural, combining strict and rigorous penalties with equally strict and rigorous procedural forms. In most of the surviving quotations from these texts, the original table that held them is not given. Scholars have guessed at where surviving fragments belong by comparing them with the few known attributions and records, many of which do not include the original lines, but paraphrases. It cannot be known with any certainty from what survives that the originals ever were organized this way, or even if they ever were organized by subject at all.
Early Law and Jurisprudence
Many laws include Lex Canuleia (445 BC; which allowed the marriage - ius connubii - between patricians and plebeians), Leges Licinae Sextiae (367 BC; which made restrictions on possession of public lands - ager publicus - and also made sure that one of consuls is plebeian), Lex Ogulnia (300 BC; plebeians received access to priest posts), and Lex Hortensia (287 BC; verdicts of plebeian assemblies - plebiscita - now bind all people).
Another important statute from the Republican era is the Lex Aquilia of 286 BC, which may be regarded as the root of modern tort law. However, Rome's most important contribution to European legal culture was not the enactment of well-drafted statutes, but the emergence of a class of professional jurists (prudentes, sing. prudens, or jurisprudentes) and of a legal science. This was achieved in a gradual process of applying the scientific methods of Greek philosophy to the subject of law, a subject which the Greeks themselves never treated as a science.
Traditionally, the origins of Roman legal science are connected to Gnaeus Flavius. Flavius is said to have published around the year 300 BC the formularies containing the words which had to be spoken in court to begin a legal action. Before the time of Flavius, these formularies are said to have been secret and known only to the priests. Their publication made it possible for non-priests to explore the meaning of these legal texts. Whether or not this story is credible, jurists were active and legal treatises were written in larger numbers the 2nd century BC.
Among the famous jurists of the republican period are Quintus Mucius Scaevola who wrote a voluminous treatise on all aspects of the law, which was very influential in later times, and Servius Sulpicius Rufus, a friend of Marcus Tullius Cicero. Thus, Rome had developed a very sophisticated legal system and a refined legal culture when the Roman republic was replaced by the monarchical system of the principate in 27 BC.
In the period between about 201 to 27 BC, we can see the development of more flexible laws to match the needs of the time. In addition to the old and formal ius civile a new juridical class is created: the ius honorarium, which can be defined as "The law introduced by the magistrates who had the right to promulgate edicts in order to support, supplement or correct the existing law." With this new law the old formalism is being abandoned and new more flexible principles of ius gentium are used.
The adaptation of law to new needs was given over to juridical practice, to magistrates, and especially to the praetors. A praetor was not a legislator and did not technically create new law when he issued his edicts (magistratuum edicta). In fact, the results of his rulings enjoyed legal protection (actionem dare) and were in effect often the source of new legal rules. A Praetor's successor was not bound by the edicts of his predecessor; however, he did take rules from edicts of his predecessor that had proved to be useful. In this way a constant content was created that proceeded from edict to edict (edictum traslatitium).
Thus, over the course of time, parallel to the civil law and supplementing and correcting it, a new body of praetoric law emerged. Ultimately, civil law and praetoric law were fused in the Corpus Juris Civilis.
Classical Roman Law
The first 250 years of the current era are the period during which Roman law and Roman legal science reached the highest degree of perfection. The law of this period is often referred to as classical period of Roman law. The literary and practical achievements of the jurists of this period gave Roman law its unique shape.
The jurists worked in different functions: They gave legal opinions at the request of private parties. They advised the magistrates who were entrusted with the administration of justice, most importantly the praetors. They helped the praetors draft their edicts, in which they publicly announced at the beginning of their tenure, how they would handle their duties, and the formularies, according to which specific proceedings were conducted. Some jurists also held high judicial and administrative offices themselves.
The jurists also produced all kinds of legal commentaries and treatises. Around AD 130 the jurist Salvius Iulianus drafted a standard form of the praetor's edict, which was used by all praetors from that time onwards. This edict contained detailed descriptions of all cases, in which the praetor would allow a legal action and in which he would grant a defense. The standard edict thus functioned like a comprehensive law code, even though it did not formally have the force of law. It indicated the requirements for a successful legal claim. The edict therefore became the basis for extensive legal commentaries by later classical jurists like Paulus and Domitius Ulpianus. The new concepts and legal institutions developed by pre-classical and classical jurists are too numerous to mention here. Only a few examples are given here:
- Roman jurists clearly separated the legal right to use a thing (ownership) from the factual ability to use and manipulate the thing (possession). They also found the distinction between contract and tort as sources of legal obligations.
The standard types of contract (sale, contract for work, hire, contract for services) regulated in most continental codes and the characteristics of each of these contracts were developed by Roman jurisprudence.
The classical jurist Gaius (around 160) invented a system of private law based on the division of all material into personae (persons), res (things) and actiones (legal actions). This system was used for many centuries. It can be recognized in legal treatises like William Blackstone's Commentaries on the Laws of England and enactments like the French Code civil or the German BGB.
By the middle of the 3rd century, the conditions for the flourishing of a refined legal culture had become less favourable. The general political and economic situation deteriorated as the emperors assumed more direct control of all aspects of political life. The political system of the principate, which had retained some features of the republican constitution, began to transform itself into the absolute monarchy of the dominate. The existence of a legal science and of jurists who regarded law as a science, not as an instrument to achieve the political goals set by the absolute monarch, did not fit well into the new order of things. The literary production all but ended.
Few jurists after the mid-3rd century are known by name. While legal science and legal education persisted to some extent in the eastern part of the Empire, most of the subtleties of classical law came to be disregarded and finally forgotten in the west. Classical law was replaced by so-called vulgar law. Where the writings of classical jurists were still known, they were edited to conform to the new situation.
Roman Law Substance
jus civile, Jus gentium, and jus naturale - the jus civile ("citizen law", originally jus civile Quiritium) was the body of common laws that applied to Roman citizens and the Praetores Urbani, the individuals who had jurisdiction over cases involving citizens. The jus gentium ("law of peoples") was the body of common laws that applied to foreigners, and their dealings with Roman citizens. The Praetores Peregrini were the individuals who had jurisdiction over cases involving citizens and foreigners. Jus naturale was a concept the jurists developed to explain why all people seemed to obey some laws. Their answer was that a "natural law" instilled in all beings a common sense.
Jus scriptum and jus non scriptum - the terms jus scriptum and ius non scriptum literally mean written and unwritten law, respectively. In practice, the two differed by the means of their creation and not necessarily whether or not they were written down. The ius scriptum was the body of statute laws made by the legislature. The laws were known as leges (lit. "laws") and plebiscita (lit. "plebiscites," originating in the Plebeian Council). Roman lawyers would also include in the ius scriptum the edicts of magistrates (magistratuum edicta), the advice of the Senate (Senatus consulta), the responses and thoughts of jurists (responsa prudentium), and the proclamations and beliefs of the emperor (principum placita). Ius non scriptum was the body of common laws that arose from customary practice and had become binding over time.
ius commune and ius singulare - Ius singulare (singular law) is special law for certain groups of people, things, or legal relations (because of which it is an exception from the general principles of the legal system), unlike general, ordinary, law (ius commune). An example of this is the law about wills written by people in the military during a campaign, which are exempt of the solemnities generally required for citizens when writing wills in normal circumstances.
ius publicum and ius privatum - ius publicum means public law and ius privatum means private law, where public law is to protect the interests of the Roman state while private law should protect individuals. In the Roman law ius privatum included personal, property, civil and criminal law; judicial proceeding was private process (iudicium privatum); and crimes were private (except the most severe ones that were prosecuted by the state). Public law will only include some areas of private law close to the end of the Roman state. Ius publicum was also used to describe obligatory legal regulations (today called ius cogens - this term is applied in modern international law to indicate peremptory norms that cannot be derogated from). These are regulations that cannot be changed or excluded by party agreement. Those regulations that can be changed are called today jus dispositivum, and they are not used when party shares something and are in contrary.
The Roman Republic's constitution or mos maiorum ("custom of the ancestors") was an unwritten set of guidelines and principles passed down mainly through precedent. Concepts that originated in the Roman constitution live on in constitutions to this day. Examples include checks and balances, the separation of powers, vetoes, filibusters, quorum requirements, term limits, impeachments, the powers of the purse, and regularly scheduled elections. Even some lesser used modern constitutional concepts, such as the block voting found in the electoral college of the United States, originate from ideas found in the Roman constitution.
The constitution of the Roman Republic was not formal or even official. Its constitution was largely unwritten, and was constantly evolving throughout the life of the Republic. Throughout the 1st century BC, the power and legitimacy of the Roman constitution was progressively eroding. Even Roman constitutionalists, such as the senator Cicero, lost a willingness to remain faithful to it towards the end of the republic. When the Roman Republic ultimately fell in the years following the Battle of Actium and Mark Antony's suicide, what was left of the Roman constitution died along with the Republic. The first Roman Emperor, Augustus, attempted to manufacture the appearance of a constitution that still governed the Empire. The belief in a surviving constitution lasted well into the life of the Roman Empire.
Stipulatio was the basic form of contract in Roman law. It was made in the format of question and answer. The precise nature of the contract was disputed, as can be seen below.
Rei vindicatio is a legal action by which the plaintiff demands that the defendant return a thing that belongs to the plaintiff. It may only be used when plaintiff owns the thing, and the defendant is somehow impeding the plaintiff's possession of the thing. The plaintiff could also institute an actio furti (a personal action) to punish the defendant. If the thing could not be recovered, the plaintiff could claim damages from the defendant with the aid of the condictio furtiva (a personal action). With the aid of the actio legis Aquiliae (a personal action), the plaintiff could claim damages from the defendant. Rei vindicatio was derived from the ius civile, therefore was only available to Roman citizens.
In Roman law, status describes a person's legal status. The individual could be a Roman citizen (status civitatis), unlike foreigners; or he could be free (status libertatis), unlike slaves; or he could have a certain position in a Roman family (status familiae) either as head of the family (pater familias), or as a lower member (filii familias).
In the Roman state, according to Roman civil law (ius civile), only Roman citizens had the full civil and political rights. In regard to status civitatis, in the Roman state, there were cives, Latini and peregrini, and foreigners. Outside the Roman state, there were externi, barbari and hosts.
Status familiae is the legal status of an individual in the family. The pater familias had the authority in the family (patria potestas), and everyone was subjected to him based on adgnatio (kinship only from father's side). This had an impact in private law. There is a distinction between alieni iuris (persons under patria potestas) and sui iuris (persons autonomous of patria potestas, who could only be the pater familias himself). Filius familias had ius suffragii and ius honorum, but in the area of private law he was restricted because of patria potestas.
The social and legal status of slaves in the Roman state was different in different epochs. In the time of old civil law (ius civile Quiritium) slavery had a patriarchal shape (a slave did the same job and lived under the same conditions as his master and family). After Rome's victorious wars, from the third century BC, huge numbers of slaves came to Rome, and that resulted in slave trade and increased exploitation of slaves. From that time on, a slave became only a thing (res)- servi pro nullis habentur.
The legal state of slaves was based on the fact that the slave was not a subject but an object of law. A master had the right of ownership over the slave. He could sell him, give him in pawn but certainly could not harm or kill him. If someone injured his slave, a master could initiate legal proceedings and demand protection. The ownership over the slave was called dominica potestas, and not dominium like the ownership of objects and animals.
In the Roman legal system, a slave did not have a family. His sexual relationships with other slaves was not marriage (matrimonium), but a cohabitation (contubernium), without legal consequences. Masters could also give over a certain amount of property (such as land, buildings), known as peculium, to a slave for his management and use. This peculium was protected under Roman law and inaccessible by the owner. This was another tool a slave could use to purchase their freedom.
The oldest means of becoming a slave was to be captured as an enemy in war. However, even a foreigner could become free again and even a Roman citizen could become a slave. Slavery was hereditary, and the child of a slave woman became a slave no matter who the father was. However, according to classical law, a child of a slave became free (ingenuus), if her mother was free, even for a short period of time, during the pregnancy.
After the Punic wars, Rome started the mass exploitation of slaves. However, the development of industry, trade and other branches of economy required skilled free workers that took interest in their jobs. A slave could get free by the act of manumission, by which a master would release him from his authority. Manumissions were different in different epochs. According to Roman law, slaves that were freed (libertinus, in regard to his master libertus) became Roman citizens, but they had many fewer rights than Roman citizens that were born free (ingenuus). The slave's former master now became his patron (patronus), and the libertus still had obligations towards him (this was regulated by law). The libertus had to be obedient and respectful to his patron (obsequium et reverentia). The patron could punish a disobedient libertus, In older times he could even kill him (ius vitae necisque), but later he could not. In some circumstances he could even ask a magistrate to turn the libertus into a slave once again (accusatio ingrati).
The history of Roman Law can be divided into three systems of procedure: that of
- legis actiones,
- the formulary system,
- and cognitio extra ordinem.
The periods in which these systems were in use overlapped one another and did not have definitive breaks, but it can be stated that the legis actio system prevailed from the time of the XII Tables (c. 450 BC) until about the end of the 2nd century BC, that the formulary procedure was primarily used from the last century of the Republic until the end of the classical period (c. AD 200), and that of cognitio extra ordinarem was in use in post-classical times. Again, these dates are meant as a tool to help understand the types of procedure in use, not as a rigid boundary where one system stopped and another began.
During the republic and until the bureaucratization of Roman judicial procedure, the judge was usually a private person (iudex privatus). He had to be a Roman male citizen. The parties could agree on a judge, or they could appoint one from a list, called album iudicum. They went down the list until they found a judge agreeable to both parties, or if none could be found they had to take the last one on the list.
No one had a legal obligation to judge a case. The judge had great latitude in the way he conducted the litigation. He considered all the evidence and ruled in the way that seemed just. Because the judge was not a jurist or a legal technician, he often consulted a jurist about the technical aspects of the case, but he was not bound by the jurist's reply. At the end of the litigation, if things were not clear to him, he could refuse to give a judgment, by swearing that it wasn't clear. Also, there was a maximum time to issue a judgment, which depended on some technical issues (type of action, etc.).
Later on, with the bureaucratization, this procedure disappeared, and was substituted by the so-called "extra ordinem" procedure, also known as cognitory. The whole case was reviewed before a magistrate, in a single phase. The magistrate had obligation to judge and to issue a decision, and the decision could be appealed to a higher magistrate.
In the East
When the centre of the Empire was moved to the Greek East in the 4th century, many legal concepts of Greek origin appeared in the official Roman legislation. The influence is visible even in the law of persons or of the family, which is traditionally the part of the law that changes least. For example Constantine started putting restrictions on the ancient Roman concept of patria potestas, the power held by the male head of a family over his descendents, by acknowledging that persons in potestate, the descendents, could have proprietary rights. He was apparently making concessions to the much stricter concept of paternal authority under Greek-Hellenistic law. The Codex Theodosianus (438 AD) was a codification of Constantian laws. Later emperors went even further, until Justinian finally decreed that a child in potestate became owner of everything it acquired, except when it acquired something from its father.
The codes of Justinian, particularly the Corpus juris civilis (529-534) continued to be the basis of legal practice in the Empire throughout its so-called Byzantine history. Leo III the Isaurian issued a new code, the Ecloga, in the early 8th century. In the 9th century, the emperors Basil I and Leo VI the Wise commissioned a combined translation of the Code and the Digest, parts of Justinian's codes, into Greek, which became known as the Basilica. Roman law as preserved in the codes of Justinian and in the Basilica remained the basis of legal practice in Greece and in the courts of the Eastern Orthodox Church even after the fall of the Byzantine Empire and the conquest by the Turks, and also formed the basis for much of the Fetha Negest, which remained in force in Ethiopia until 1931.
In the West
In the west, Justinian's political authority never went any farther than certain portions of the Italian and Hispanic peninsulas. Law codes were edicted by the Germanic kings, however, the influence of early Eastern Roman codes on some of these is quite discernible. In many early Germanic states, ethnic Roman citizens continued to be governed by Roman laws for quite some time, even while members of the various Germanic tribes were governed by their own respective codes.
The Code and the Institutes of Justinian were known in Western Europe, and along with the earlier code of Theodosius II, served as models for a few of the Germanic law codes; however, the Digest portion was largely ignored for several centuries until around 1070, when a manuscript of the Digest was rediscovered in Italy.
This was done mainly through the works of glossars who wrote their comments between lines (glossa interlinearis), or in the form of marginal notes (glossa marginalis). From that time, scholars began to study the ancient Roman legal texts, and to teach others what they learned from their studies. The center of these studies was Bologna. The law school there gradually developed into one of Europe's first universities.
The students who were taught Roman law in Bologna (and later in many other places) found that many rules of Roman law were better suited to regulate complex economic transactions than were the customary rules, which were applicable throughout Europe.
For this reason, Roman law, or at least some provisions borrowed from it, began to be re-introduced into legal practice, centuries after the end of the Roman empire. This process was actively supported by many kings and princes who employed university-trained jurists as counselors and court officials and sought to benefit from rules like the famous Princeps legibus solutus est ("The sovereign is not bound by the laws", a phrase initially coined by Ulpian, a Roman jurist).
There have been several reasons why Roman law was favored in the Middle Ages. It was because Roman law regulated the legal protection of property and the equality of legal subjects and their wills, and because it prescribed the possibility that the legal subjects could dispose their property through testament.
By the middle of the 16th century, the rediscovered Roman law dominated the legal practice in a lot of European countries. A legal system, in which Roman law was mixed with elements of canon law and of Germanic custom, especially feudal law, had emerged. This legal system, which was common to all of continental Europe (and Scotland) was known as Ius Commune. This Ius Commune and the legal systems based on it are usually referred to as civil law in English-speaking countries.
Only England did not take part in the wholesale reception of Roman law. One reason for this is that the English legal system was more developed than its continental counterparts by the time Roman law was rediscovered. Therefore, the practical advantages of Roman law were less obvious to English practitioners than to continental lawyers. As a result, the English system of common law developed in parallel to Roman-based civil law, with its practitioners being trained at the Inns of Court in London rather than receiving degrees in Canon or Civil Law at the Universities of Oxford or Cambridge.
Elements of Romano-canon law were present in England in the ecclesiastical courts and, less directly, through the development of the equity system. In addition, some concepts from Roman law made their way into the common law. Especially in the early 19th century, English lawyers and judges were willing to borrow rules and ideas from continental jurists and directly from Roman law.
The practical application of Roman law and the era of the European Ius Commune came to an end, when national codifications were made. In 1804, the French civil code came into force. In the course of the 19th century, many European states either adopted the French model or drafted their own codes. In Germany, the political situation made the creation of a national code of laws impossible. From the 17th century Roman law, in Germany, had been heavily influenced by domestic (common) law, and it was called usus modernus Pandectarum. In some parts of Germany, Roman law continued to be applied until the German civil code (Burgerliches Gesetzbuch, BGB) came into force in 1900.
Colonial expansion spread the civil law system and European civil law has been adopted in much of Latin America as well as in parts of Asia and Africa.
Roman Law Today
Today, Roman law is no longer applied in legal practice, even though the legal systems of some states like South Africa and San Marino are still based on the old Ius Commune. However, even where the legal practice is based on a code, many rules deriving from Roman law apply: No code completely broke with the Roman tradition. Rather, the provisions of Roman law were fitted into a more coherent system and expressed in the national language. For this reason, knowledge of Roman law is indispensable to understand the legal systems of today. Thus, Roman law is often still a mandatory subject for law students in civil law jurisdictions. As
steps towards a unification of the private law in the member states of the European Union are being taken, the old Ius Commune, which was the common basis of legal practice everywhere, but allowed for many local variants, is seen by many as a model.
Corpus Iuris Civilis
Corpus Iuris Civilis is de niet-klassieke naam van de in het latijn gestelde wetgeving die tot stand kwam onder de regering van de oostromeinse keizer Justinianus I (527-565). De naam C.I.C. vindt (vermoedelijk) zijn oorsprong in een editie (1583) van de Justiniaanse wetgeving door de franse rechtsgeleerde en humanist Dionysius Gothofredus.
Het wetgevingswerk van Justinianus moet gezien worden als een aspect van diens levensideaal om het grootse Imperium Romanum op politiek en cultureel vlak te vernieuwen en te herstellen. Op juridisch vlak werd de behoefte aan een nieuwe en voor de eigen tijd begrijpbare synthese van het romeinse recht gevoeld. Het sterk casuïstische en verfijnde karakter van het klassieke romeinse recht met zijn historisch gegroeide rechtsinstellingen en zijn eigentijdse problematiek was moeilijk als zuiver gerecipieerd recht te hanteren door de oostromeinse juristen van de 6e eeuw. Anderzijds was na een periode van verval van de rechtswetenschap (sinds de dood van Alexander Severus in 235 nC) het klassieke romeinse recht weer het voorwerp geworden van intense wetenschappelijke studie aan de bloeiende rechtsscholen van Berytus en Constantinopel (vooral 5e eeuw nC). Dit geheel van historische omstandigheden verklaart Justinianus' grootse plan om het romeinse recht - en vooral het klassieke - in een aan de eigen tijd aangepaste vorm te ordenen, te vervolledigen en als een sluitend geheel van geldende rechtsregelen te proclameren.
Het C.I.C. bestaat uit vier groepen rechtsnormen, die elk hun eigen aard en specifiek doel hadden. In chronologische volgorde zijn dit de Codex (Justinianus), de Digesta, de Institutiones en de Novellae.
1. De Codex is een coördinatie van de bestaande Constitutiones of keizerlijke wetten en met name van de reeds vroeger tot stand gehomen verzamelingen (codex) van Gregorius (Codex Gregorianus), Hermogenianus (Codex Hermogenianus), en Theodosius II (Codex Theodosianus) en van de nadien van kracht geworden Constitutiones. De Codex Justinianus werd door de Constitutio 'Summa' van 7 april 529, met rechtsgeldende kracht van 16 april af, gepubliceerd. Hij werd kort daarop opnieuw uitgegeven met bijvoeging van recente Constitutiones als Codex repetitae praelectionis, op 16 november 534 met inwerkingtreding op 26 december. De Codex is ingedeeld in 12 boeken en ieder boek is onderverdeeld in een variërend aantal titels. Hij schafte alle oudere niet opgenomen Constitutiones af en bleef als enige rechtsbron op dit gebied bestaan.
2. De Digesta (letterlijk 'geordende verzameling') of Pandectae (letterlijk 'alomvatters') vormen - vooral rechtshistorisch gezien - het kernstuk van de justiniaanse wetgeving. Dit is een verzameling en coördinatie van het belangrijke en omvangrijke juridische oeuvre van de klassieke juristen, vooral van Papinianus, Paulus en Ulpianus. Deze monumentale opdracht werd in 530 door Justinianus toevertrouwd aan een commissie van juristen onder het voorzitterschap van Tribonianus, een hoge ambtenaar. Reeds op 16 december 533 was het werk klaar en werd het gepubliceerd door de Constitutio 'Tanta'; het kreeg kracht van wet op 30 december 533. Het is ingedeeld in 50 boeken en ieder boek in een variërend aantal titels. De invloed van de Digesta op de vorming van het hedendaagse westeuropese recht is enorm geweest. Rechtshistorisch gezien, is het ook aan de Digesta te danken dat we een betrekkelijk volledige en overzichtelijke kennis hebben van het klassieke romeinse recht, dat een van de geniaalste creaties is gebleken van het juridisch denken en de romeinse beschaving.
3. De Institutiones werden nog vóór de Digesta gepubliceerd door de Constitutio 'Imperatoriam' van 21 november 533, maar verkregen pas kracht van wet op dezelfde dag als de Digesta. Ze vormen een in vier boeken ingedeeld leerboek, bestemd voor het juridisch onderwijs. De rechtsnormen die het bevat, zijn echter, evenals de Codex en de Digesta, geldend recht. De Institutiones werden geïnspireerd door het gelijknamige klassieke werk van Gaius, dat tot stand kwam onder de regering van Antonius Pius (138-161).
4. Novellae tenslotte heet een verzameling van diverse eigentijdse wetten die na de publicatie van de Codex repetitae praelectionis uitgevaardigd werden. Deze werden niet meer door Justinianus zelf in één werk verzameld. Wel bestaan er min of meer volledige particuliere verzamelingen van.
Lit. Uitgaven: beste kritische editie: P. Krüger/T. Mommsen/ R. Schoell/W. Kroll, Corpus iuris civilis, I. Institutiones, Digesta19 (Berlin 1966), II. Codex13 (ib. 1963), III. Novellae8 (ib. 1963). - M. Kaser, Römische Rechtsgeschichte² (Göttingen 1965) 214-233. W. Kunkel, Römische Rechtsgeschichte4 (Köln 1964) 143-154. B. Hermesdorf, Schets der uitwendige geschiedenis van het Romeinse recht (Utrecht/ Nijmegen 1961) 279-293. [De Keyser]
Romeins recht is nog altijd actueel
NICO DE FIJTER 16 november 2011, 0:00
Het heeft een kwart eeuw geduurd, maar gisteren kon emeritus hoogleraar rechtsgeschiedenis Jop Spruit de laatste delen van de eerste complete Nederlandse vertaling van het Corpus Iuris Civilis presenteren. Dat Romeinse recht - samengebracht in de zesde eeuw - heeft grote invloed gehad op het Europese en dus ook het Nederlandse recht.
1 Dat is nogal een klus geweest.
"Ik heb het wel eens vergeleken met het vertalen van de Bijbel: daar doe je ook wel even over. Het gaat om een grote hoeveelheid meestal heel technische Latijnse en Griekse teksten."
2 Wat is het Corpus Iuris Civilis?
"Het is ontstaan in de zesde eeuw, in opdracht van de Romeinse keizer Justinianus. Hij wilde graag dat er eenheid van recht in het Romeinse imperium zou bestaan. Het bestaat uit vier delen. Het eerste - de Institutiones - is een fantastisch inleidend leerboek. Elke rechtenstudent zou het moeten lezen. Er staan allerlei beginselen van het recht in die we nu nog steeds kennen. Het tweede is de Digesta, vijf boeken die je zou kunnen typeren als een bloemlezing uit het oeuvre van Romeinse juristen. En dan zijn er nog de Codex, een verzameling van keizerlijke verordeningen en de Novellen, ook een collectie verordeningen."
3 Maar wat kunnen we daar nu nog mee?
"Grote delen van ons recht komen er rechtstreeks uit voort. Die invloed stamt uit de elfde eeuw. Toen werd het Corpus, vijfhonderd jaar na Justinianus, herontdekt. En het vulde toen op prachtige wijze een vacuüm. Er ontstonden veel steden in die tijd en waar steden zijn, leven veel mensen samen en waar veel mensen samenleven ontstaan conflicten. Het Corpus kon direct gebruikt worden in die conflicten. Vanaf die tijd is het Corpus een zegetocht door Europa begonnen. In Nederland kenden we tot 1809 Romeins recht. Daarna kregen we weliswaar onze eigen wetboeken, maar de invloed van het Romeinse recht op die wetboeken is onmiskenbaar."
4 Kunt u daar voorbeelden van geven?
"Het testament. Dat komt rechtstreeks uit het Romeins recht. Net zoals heel veel andere onderdelen van het erfrecht. Nog een voorbeeld: de zogenoemde beneficiaire aanvaarding van een erfenis. Dat wil zeggen dat je een nalatenschap aanvaardt, maar niet met de schulden van de erflater wordt opgescheept. Dat komt één op één uit het Corpus. Hetzelfde geldt voor flinke delen van ons huurrecht, arbeidsrecht of familierecht."
5 Het Corpus geeft dus haast universele regels die de tand des tijds kunnen weerstaan?
"Exact. Het niveau van de teksten is zeer hoog, de wetten zijn scherp en afgewogen, met oog voor beide partijen. Het heeft een erg hoog billijkheidsniveau. Dat we daar nu nog gebruik van maken, zegt genoeg. En juist daarom ben ik ook zo blij dat het Corpus Iuris Civilis nu in onze eigen taal beschikbaar is. Want zelfs veel juristen kennen het niet. Dat is toch te gek voor woorden?"
Corpus Iuris Civilis
Het Corpus Iuris Civilis is een verzameling van wetten en rechtskundige uitspraken betreffende burgerlijk recht samengesteld in opdracht van de Byzantijnse keizer Justinianus I tussen 529 en 534, en gold in die tijd als het Burgerlijk Wetboek (BW). Romeins strafrecht is grotendeels “privaat recht”, het strafrecht is opgenomen in de boeken 47 en 48 van de Digesten, die een onderdeel vormen van het Corpus Iuris Civilis.
Het Corpus Iuris Civilis bracht veel bronnen samen die tot dan toe de wetten (leges) vormden, zoals besluiten van de senaat (senatus consulta) en keizerlijke decreten, maar ook rechtszaken en de meningen en interpretaties van juristen (responsa prudentum).
Het Corpus Iuris Civilis zou een grote rol gaan spelen in met name de Westerse rechtsgeschiedenis. De bestudering van het Corpus Iuris Civilis doorheen de Middeleeuwen, alsook de rationeel geordende structuur van het Corpus, zijn een belangrijke bron geweest voor het continentaal Europese recht. Ook het huidige Nederlandse burgerlijk recht grijpt qua inhoud nog steeds terug op het Romeins recht zoals te vinden in het Corpus Iuris Civilis. De betiteling Corpus Iuris Civilis stamt overigens pas uit de zestiende eeuw.
Tribonianus, quaestor sacri palatii (minister van justitie) onder keizer Justinianus, leidde het redactiewerk, hij was voorzitter van de commissie van compilatoren (compilare = plunderen, roven, plagiëren). Het Corpus Iuris Civilis werd uitgegeven in drie delen:
- Codex Justinianus,
- Digesten en
Eerdere schriftelijk vastgelegde verzamelingen van Romeins recht waren de Twaalftafelenwet uit de vijfde eeuw voor Christus, en de Codex Theodosianus, gemaakt in opdracht van keizer Theodosius II.
Het woord codex betekende destijds simpelweg boek, en een codex kon dus niet-juridische inhoud bevatten. Vooral door de Codex Justinianus kreeg het woord ‘codex’ sindsdien echter vooral de betekenis van wetboek.
De Codex Justinianus bestaat uit een aantal keizerlijke verordeningen (constitutiones), die voornamelijk golden ten tijde van Hadrianus. Deze werden verkregen uit de Codex Theodosianus en enkele verordeningen die waren beschreven in particuliere werken, zoals de Codex Gregorianus en de Codex Hermogenianus.
De Codex, het eerste deel van het Copus Iuris Civilis, kwam gereed op 7 april 529.
Digesten of Pandectae
In 530 begon een commissie aan het samenstellen van de Digesten of Pandekten. Deze commissie begon met het op schrift stellen en ordenen van de juristengeschriften, iets wat honderd jaar eerder ten tijde van Theodosius II ook al geprobeerd was. Ze zijn uiteindelijk uitgegeven in 533 en bevatten het werk van Romeinse juristen, en enkele andere bronnen (edicten).
De Instituten of Elementen bestaan uit vier leerboeken, waarin de grondbeginselen van het Romeins recht overzichtelijk uiteengezet werden. De Instituten van Justinianus zijn gebaseerd op de Instituten van de jurist Gaius uit de tweede eeuw. Op 30 december 533 werd dit leerboek ook wetboek en verkregen de Instituten samen de Digesten de kracht van wet. Ze dien(d)en vooral als leerboek voor studenten rechtsgeleerdheid.
Codex repetitae praelectionis
De Codex werd in herziene versie opgesteld, omdat na de uitvaardiging van de Digesten en de Instituten de Codex van 529 verouderd bleek te zijn. Formeel was de herziening echter niet nodig. De Digesten namelijk waren als één keizerlijke constitutie uitgevaardigd. Krachtens de regel Lex posterior derogat legi priori (de latere wet zet de eerdere wet opzij) golden de Digesten boven eventueel verouderde constituties die in de Codex waren opgenomen. Het is mogelijk dat Tribonianus de Codex slechts aanpaste zodat deze onder zijn leiding zou zijn uitgevaardigd. In de eerste samenstellingscommissie was hij namelijk slechts een onopvallend lid geweest.
De Novellen zijn later toegevoegd, maar vormen officieel geen onderdeel van het Corpus Iuris Civilis.
'Teksten zijn duizend jaar later nog bruikbaar'
Een klus van 25 jaar zit erop. Het Corpus Iuris Civilis is vertaald in het Nederlands.
GEERTJE DEKKERS16 november 2011, 0:00
UTRECHT - Het Corpus Iuris Civilis, een invloedrijke verzameling van Romeins recht uit de 6de eeuw n.Chr., is in het Nederlands vertaald. Gisteren nam minister Opstelten van Veiligheid en Justitie de twaalf dikke delen in ontvangst.
De Utrechtse Emeritus-hoogleraar rechtsgeschiedenis prof.dr.mr. Jop Spruit, begon een kleine 25 jaar geleden aan de vertaling van de teksten die sinds de Middeleeuwen in heel Europa de grondslag voor het recht hebben gevormd.
Hoe is het Corpus Iuris Civilis ontstaan?
'Van de 4de tot de 6de eeuw heerste er rechtschaos in het Romeinse Rijk. Niemand wist meer welke wetten nog golden en wat achterhaald was. Keizer Justinianus I gaf opdracht om het geldende recht in een wetboek onder te brengen. Zo ontstond een compilatie van teksten die pas later, in de 16de eeuw, het Corpus Iuris Civilis is genoemd.'
Hoe kwam het tot stand?
'Justinianus benoemde commissies die eeuwenoude juridische boeken moesten lezen. De leden bepaalden welke regels nog wel golden en welke niet meer, onder het toezicht oog van de keizer. Wat niet in het Corpus was opgenomen, miste rechtskracht, was het standpunt van Justinianus.'
Hoe heeft het Corpus latere wetgeving beïnvloed?
'In West-Europa is het Corpus snel vergeten, maar in de 11de eeuw werd het herontdekt. Het bleek heel bruikbaar voor rechtstoepassing in steden die in die tijd sterk opkwamen. In de eeuwen daarna bestudeerden en interpreteerden juristen de teksten steeds opnieuw. Ze werden als het ware gehersenspoeld met Romeins recht. Het bestuderen en toepassen was een zichzelf versterkend proces dat eenheidsbevorderend heeft gewerkt in Europa.'
Ook in Nederland?
'In de 19de eeuw kregen landen ieder hun wetboek in de eigen taal. De juristen die daaraan werkten, waren nog steeds doorkneed in het Romeins recht. Tot aan de herziening in 1992 was de indeling van ons Burgerlijk Wetboek dezelfde als die van de Institutiones, het inleidende deel van het Corpus Iuris Civilis.'
Hoe kon het Romeins recht eeuwen later nog worden gebruikt in totaal andere samenlevingen?
'De Romeinen waren vooral meesters in het oplossen van juridische gevallen. Die staan in de teksten scherp gejuridiseerd verwoord, vaak zonder informatie over de concrete situatie.'
Een monnikenwerk, zo'n vertaling?
'Corpus Iuris Civilis is vaak cryptisch en moeilijk te vertalen. Maar door de abstracte bewoording lijken veel teksten als het ware losgekoppeld van de maatschappij waarin ze ontstonden en daardoor bruikbaar in na-middeleeuws Europa. Als de inhoud niet meer toepasbaar was, kon de ratio er achter duizend jaar later nog wel worden gebruikt: ideeën over de relatie tussen een slaaf en zijn eigenaar zijn gebruikt om de werkrelatie tussen werknemers en bazen vorm te geven.'
J.E. Spruit, J.M.J. Chorus, L. de Ligt, Corpus Iuris Civilis. Tekst en vertaling (Amsterdam University Press, 1993-2011)
Via hem krijg je toegang tot de rechter:
1. Hoe werkt het Romeins procesrecht?
2. Wat is een praetor?
3. Is er een wet voor het doden van slaven? (Lex aquilia)
4. Welke regels geeft die wet?
1. Hoe werkt het Romeins procesrecht?
Om te beginnen was het Romeinse procesrecht anders dan het huidige procesrecht.
De procedure was namelijk opgesplitst in twee fasen. Eerst moest de zaak
aangebracht worden bij de magistraat diegene die de toegang tot de rechter
verleende. Daarna kwam het proces pas voor de rechter die dan uiteindelijk het
De geschiedenis kent drie procesvormen:
Het legis actio-proces.
Dit proces was gebaseerd op het uitspreken van vaste spreuken. Het eerste gedeelte
van het proces gebeurde door de eiser. Deze sprak dan tijdens de zitting een aantal
vaste spreuken uit, waar geen fouten in mochten zitten. Mochten die er wel zijn dan
was het proces voor hem verloren.
Het proces verliep dus mondeling en is rond 17 voor Chr. verdwenen.
Het formula-proces. Dit wordt ook wel gezien als het gewone burgerlijke proces.
Ook deze vorm kent weer twee fasen. Het begint met de eerste fase waarin de
praetor, de magistraat die toegang tot de rechter verleent, een rechtsmiddel verleent
aan de eiser.
Tijdens deze zitting onderhandelde de partijen samen met de praetor over de inhoud
van de instructie die de praetor aan de rechter zou geven. Deze instructie omvatte
het rechtsmiddel dat de rechter zou moeten toepassen en werd de formula genoemd.
De formula begon vrijwel altijd met de woorden Si paret… (als blijkt dat…).
Daarna werden voorwaarden gesteld. De rechter keek in de tweede fase of
hieraan was voldaan. De rechter hield zich dus vooral bezig met de
Met de formula gaf de praetor de rechter de taak om een beslissing in het geschil te
nemen. Deze formula moest erg gedetailleerd zijn en met een duidelijke instructie
komen, aangezien de rechter meestal een leek was. Dit kwam door het feit dat de
Romeinen wanneer het om hun privébelangen ging, niet door een magistraat maar
door een gelijken berecht wilde worden.
De formula bevatte niet alleen de algemene rechtsregels (edicten), die de praetor
had opgesteld maar ook een aantal standaardmodellen voor de procesformulieren.
Hieraan was de praetor niet gebonden, gezien het feit dat hij in een concreet geval
en naar eigen inzicht veranderingen kon aanbrengen in deze voorbeeld modellen,
zodat ze in het concrete geval paste. Dit werd ‘naar het voorbeeld’ (a exemplum)
Daarnaast kon hij ook een geheel nieuw procesformulier maken dat volledig was
gebaseerd op het concrete geval. Dit werd actio in factum genoemd.
De tweede fase was bij de rechter die het geschil diende op te lossen. De rechter
keek of de voorwaarden van de formula waren vervuld. Hij hield zich dus bezig met
het vaststellen van feiten en hiervoor was geen juridische kennis vereist.
Mocht de rechter toch voor een punt staan waarvoor juridische kennis is vereist kon
hij altijd het advies van een jurist inroepen. Dit kon de praetor overigens ook,
wanneer iets niet duidelijk was voor hem.
Om het vonnis van de rechter ten uitvoer te leggen moest er een nieuw proces
Het formula-proces raakte rond 250 na Chr. in ongebruik en werd in 342 na Chr.
Als de juridische situatie niet kon worden ondergebracht in de
rechtsmiddelencatalogus van het edict, had de praetor drie mogelijkheden:
- Actio utilis: Hij kon een formula verlenen van eigen maaksel die een wel in
het edict opgenomen formula als voorbeeld had. Er wordt dan ontheffing
verleend van één van de vereisten voor het verlenen van een bestaande actie.
De praetor verleent in dit geval een decretale actie, terwijl hij in normale
gevallen een actie op grond van het edict (edictale actie) verleende. Zijn
bevoegdheid hiertoe berust op zijn gezag als magistraat.
- Actio in factum: Dit deed hij in gevallen waarin hij het ontoelaatbaar zou
vinden dat er geen enkel rechtsmiddel aanwezig was. Hij kon dan een nieuwe,
nog niet bestaande, actie verlenen die op de concrete feiten gebaseerd was.
Bij gebleken succes kon een volgende praetor deze actie van een naam
voorzien en in zijn nieuwe edict opnemen. Op deze manier breidde het aantal
formulae zich uit.
- Denegatio actionis: Dit was toepasselijk in het geval dat de praetor niets in
de zaak zag. Hiermee weigerde hij de eis tot het verlenen van een
rechtsmiddel. Dit middel maakte een onmiddellijk eind aan het proces.
Bij dit proces staat de keizerlijke ambtenaar als rechter. Deze ambtenaar onderzoekt
de zaak, beslist over het geleverde bewijs en wijst tenslotte vonnis.
De rechter gedurende dit proces advies vragen aan de keizerlijke kanselarij,
waardoor er advies (een rescriptum) wordt gegeven dat enigszins op de formula lijkt.
In dit proces is de rol van de rechter veel minder lijdelijk en minder afhankelijk van de
argumenten die door de partijen worden gegeven, aangezien hij het zelf ook allemaal
uitzoekt. Dit in tegenstelling tot de rechter bij het formula-proces.
Voor de tenuitvoerlegging van het vonnis is geen nieuw proces nodig, ook dit is een
verschil met het formula-proces.
Dit proces heeft lang stand gehouden en heeft zich in de middeleeuwen laten
omvormen onder kerkelijke invloed tot een burgerlijke procesvorm die we
tegenwoordig in veel landen zien.
Posterioriteitsbeginsel. Indien twee geschreven wetten of regels hetzelfde regelen, dan geldt de nieuwste.
De Nederlandse vertaling van lex posterior derogat legi priori/anteriori.: een nieuwe wet gaat voor een oude wet
De Engelse vertaling is: the younger law overrides the older law
Lex specialis, superior en posterior.
Conflictregels (lex specialis, superior, posterior)
Voor de Nederlandse burger bestaan er enorm veel wetten waar hij zich aan moet houden, waar hij rechten uit verkrijgt en waar hij door beschermd wordt. Het aantal wetten is enorm, het aantal artikelen uit die wetten nog veel groter. Het betreft immers niet enkel de wetten die ‘Den Haag’ maakt, maar ook wetten die van andere wetgevers komen. Er kan worden gedacht aan gemeentelijke en provinciale regelgeving, maar ook aan Europese regels en andere internationale verdragen.
Doordat er zoveel regels zijn, is het onvermijdelijk dat ze met elkaar gaan botsen. Soms valt iets zowel onder de ene regel, als onder de andere. Welke regel moet dan gevolgd worden?
Welke regel geldt? Lex specialis, superior en posterior.
Zoals de titel van dit artikel al aangeeft zijn er conflictregels om de bovenstaande situaties op te lossen. Er zijn drie van deze algemene conflictregels, te weten: Lex specialis, Lex superior en Lex posterior.
Lex specialis – Speciaal voor algemeen
Lex specialis is een afkorting van Lex specialis derogat legi generali, dat eigenlijk simpelweg betekent dat speciale wetsbepalingen voorgaan op algemene wetsbepalingen.
Het duidelijkste voorbeeld kan worden gezien bij regels die lijnrecht tegenover elkaar staan: regel 1 zegt dat iets niet mag, regel 2 zegt dat iets wel mag. Een voorbeeld in het Nederlandse recht zit bijvoorbeeld in het leerstuk van noodweer ingebakken.
Artikel 351 lid 1 van het Wetboek van Strafrecht zegt:
Vreemd genoeg zegt artikel 41 van het Wetboek van Strafrecht:
Niet strafbaar is hij die een feit begaat, geboden door de noodzakelijke verdediging van eigen of eens anders lijf, eerbaarheid of goed tegen ogenblikkelijke, wederrechtelijke aanranding.
Degene die iemand uit zelfverdediging/noodweer neerslaat zou dus strafbaar zijn volgens artikel 351 lid 1, maar zou tegelijkertijd niet strafbaar zijn volgens artikel 41.
In dit geval wordt de conflictregel lex specialis gebruikt. De speciale regel die meer op het geval toegesneden is, heeft voorrang op de algemene regel volgens de regels van lex specialis. Dat is dus de regel die gaat over het niet strafbaar zijn in het geval van noodweer. Degene die iemand neerslaat uit noodweer is dus niet strafbaar.
Lex superior – Hoger voor lager
Lex superior is een afkorting van Lex superior derogat legi inferiori. Deze Latijnse term houdt in dat hogere wetgeving voorgaat op lagere wetgeving.
Een voorbeeld daarvan is de gemeente die een regel instelt waarin staat:
- Een koopovereenkomst voor een woonhuis kan in de gemeente Almere enkel mondeling gesloten worden.
- In het Burgerlijk Wetboek artikel 7:2 BW, dat is gemaakt door de formele wetgever (=Regering en Staten-Generaal) staat echter: (https://nl.wikipedia.org/wiki/Wet_in_formele_zin)
De koop van een tot bewoning bestemde onroerende zaak of bestanddeel daarvan wordt, indien de koper een natuurlijk persoon is die niet handelt in de uitoefening van een beroep of bedrijf, schriftelijk aangegaan.
Dat zou dus betekenen dat een burger die wil verhuizen en in de gemeente Almere woont zowel een koopovereenkomst mondeling als schriftelijk zou kunnen sluiten. Beiden zouden rechtsgeldig zijn en beiden zouden (volgens de andere regel) niet rechtsgeldig zijn. Dat geeft tegenstrijdigheid. Lex superior geeft dan de oplossing: de hogere regelgeving is belangrijker en moet gevolgd worden.
In dit geval is dat de regelgeving van de formele wetgever. Hoewel andere overeenkomsten wellicht mondeling aangegaan kunnen worden, is de koopovereenkomst van een woonhuis dus enkel geldig wanneer deze schriftelijk wordt aangegaan. De hoogste wetgever is de baas.
De rangorde voor lex superior is in beginsel de volgende, met uitzondering van het feit dat een formele wet niet aan de grondwet getoetst mag worden volgens artikel 120 Gw:
Lex posterior – Jong voor oud
Lex posterior de laatste van de drie conflictregels. Lex posterior is een afkorting van Lex posterior derogat legi priori/anteriori. Dit houdt in dat jongere wetten vóór oudere wetten gaan. In de praktijk is deze regel niet van groot belang, aangezien er bij het maken van wetgeving vrijwel altijd wordt gekeken naar de oudere wetgeving die daarmee zou kunnen conflicteren. Meestal wordt deze oudere wetgeving bij het invoeren van de nieuwe wetgeving ingetrokken. Is dat niet het geval, dan gaat de nieuwe (en waarschijnlijk beter op de hedendaagse maatschappij toegespitste) regel vóór de oudere regel.
Conflictregels (lex specialis, superior, posterior) – Conclusie
Wetten kunnen met elkaar in tegenspraak zijn en zullen dat heel erg vaak ook zijn. Daarom zijn lex specialis, lex superior en lex posterior ontstaan. Hoewel ze in juridische stukken nauwelijks expliciet terug te vinden zijn, worden ze uiteraard wel aan de lopende band toegepast. Kortom: de specifiekste, hoogste en jongste wetgeving heeft de meeste waarde.
Er zijn veel situaties denkbaar, waarin ook bovenstaande conflictregels geen uitkomst bieden. Soms is het niet duidelijk of er wel een tegenstelling is. Soms lijkt een jongere algemene wet in strijd met een oudere specifieke wet en is onduidelijk welke conflictregel voorgaat.
Twijfelt u in een specifiek geval, dan is het verstandig om contact op te nemen met een jurist om te bekijken welke regels in uw geval van toepassing zijn.
mr. B.G.N. (Bart) Gubbels
handels- en ondernemingsrecht, arbeidsrecht, contractenrecht
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Formeel betekent 'officieel' of 'zoals het hoort'. Het tegenovergestelde van formeel is 'informeel'.
1) Ambtelijk 2) Bepaald 3) Constructie van hout of staal 4) Conventioneel 5) De vorm betreffende 6) De vorm hebbend 7) Echt 8) Formalistisch 9) Instrumentair 10) Naar de vorm 11) Officieel 12) Plechtig 13) Slechts de vorm betreffend 14) Stijfjes 15) Uitdrukkelijk 16) Uiterlijk 17) Volgens de norm 18) Volgens de regel
De jure en de facto worden gebruikt in de betekenis van respectievelijk "formeel" en "in de praktijk" wanneer men politieke of juridische situaties beschrijft.
Internalional (public) law
Statutes of the Netherlands
Constitution of the Netherlands
The General Assembly has adopted several multilateral treaties throughout its history, including:
- Convention on the Prevention and Punishment of the Crime of Genocide (1948)
- International Convention on the Elimination of All Forms of Racial Discrimination (1965)
- International Covenant on Civil and Political Rights (1966)
- International Covenant on Economic, Social and Cultural Rights (1966)
- Convention on the Elimination of All Forms of Discrimination against Women (1979)
- United Nations Convention on the Law of the Sea (1982)
- Convention on the Rights of the Child (1989)
- Comprehensive Nuclear-Test-Ban Treaty (1996)
- International Convention for the Suppression of the Financing of Terrorism (1999)
- International Convention for the Suppression of Acts of Nuclear Terrorism (2005)
- Convention on the Rights of Persons with Disabilities (2006)
- United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea (2008)
- Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (2008)
Secularisme (van Latijn saecularis, "wereldlijk, tijdelijk")