Roman law


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Roman law,

the legal system of Rome from the supposed founding of the city in 753 B.C. to the fall of the Byzantine Empire in A.D. 1453; it was later adopted as the basis of modern civil lawcivil law,
as used in this article, a modern legal system based upon Roman law, as distinguished from common law. Civil law is based on written legal codes, a hallmark of the Roman legal system, in which disputes were settled by reference to a written legal code arrived at
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. Most authorities, however, disregard the largely static period following the reign of Justinian IJustinian I
, 483–565, Byzantine emperor (527–65), nephew and successor of Justin I. He was responsible for much imperial policy during his uncle's reign. Soon after becoming emperor, Justinian instituted major administrative changes and tried to increase state
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 (527–65).

Early Roman Law

Roman law in the earliest period known is typically expressed in the Twelve TablesTwelve Tables,
early code of Roman law. Most modern authorities accept the traditional date of 450 B.C., but several place the work later. The tables were supposedly written in response to the plebeians' protest that the patrician judges were able to discriminate against them
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 with their marked formalism. The usual early procedure was also stereotyped; it was the legis actio, a form of charge and denial the words of which had to be followed exactly by the parties at the risk of losing the suit. Exact knowledge of the words constituting the legis actiones was limited to a body of patrician priests, the College of Pontiffs. The reduction of these forms to writing (c.250 B.C.) was a victory for the plebeians and a step in reducing the religious and formal element in the law. Soon the primary source of law became the lex (plural leges), a statutory enactment that was proposed by a magistrate and accepted by a popular assembly. Among the assemblies empowered to enact leges was that of the plebeians.

Expansion and Development

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

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

Under the Empire

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

Legal problems attained great complexity, and the aid of a specially trained class of scholars was enlisted for their solution. Those jurists with a special license from the emperor could write responsa to guide the judges in deciding cases. Most prominent among the jurists was PapinianPapinian
(Aemilius Papinianus) , d. 212, Roman jurist. He was a close friend of the Roman emperor Septimius Severus, under whom he was libellorum magister [master of the rolls] and later Praetorian prefect; but Severus' son Caracalla had Papinian put to death for reasons
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; his work, with that of GaiusGaius
, fl. 2d cent., Roman jurist. He is known for the Institutes (repr., 2 vol., 1967; Vol. I is a translation of the text, Vol. II consists of commentaries), a legal textbook that contributed materially to modern knowledge of early Roman law.
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, ModestinusModestinus, Herennius
, fl. c.A.D. 250, Roman jurist; student of Ulpian. Under the Roman Empire he was one of the five jurists, including Papinian, whose views were considered decisive in resolving legal controversies.
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, PaulusPaulus
(Julius Paulus) , fl. c.200, Roman jurist. He was extremely prolific and is thought to have written some 300 books. His surviving work displays keen analysis of the opinions of other jurists and trenchant expression of his own views.
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, and UlpianUlpian
(Dometius Ulpianus) , d. 228, Roman jurist. He was a member of the council of the jurist Papinian. As Praetorian prefect from 222, he enjoyed the favor of the emperor Alexander Severus, and he was murdered by the jealous Praetorian Guard.
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, attained the highest authority. The employment of jurists was a step in making the whole of Roman procedure official; in this process the institution of judex was abolished and the trial placed entirely in the hands of a judge.

By the early 4th cent. most branches of Roman law were fully developed. The system was generally responsive to legal needs and allowed sufficient variety to meet local customs. A grave disadvantage of the system, however, was that the vast corpus of legal matter included much that was confused, contradictory, or redundant; reduction to codecode,
in law, in its widest sense any body of legal rules expressed in fixed and authoritative written form. A statute thus may be termed a code. Codes contrast with customary law (including common law), which is susceptible of various nonbinding formulations, as in the legal
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 form was required. The Theodosian CodeTheodosian Code
, Latin Codex Theodosianus, Roman legal code, issued in 438 by Theodosius II, emperor of the East. It was at once adopted by Valentinian III, emperor of the West.
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 (438), the earliest attempt, was followed by the Breviary of AlaricBreviary of Alaric
, Visigothic code of Roman law issued (506) by King Alaric II for his Roman subjects in Spain and S Gaul. It is also known as the Lex Romana Visigothorum.
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 (506). Finally the task was accomplished with the culminating work of Roman legal scholarship, the Corpus Juris CivilisCorpus Juris Civilis
, most comprehensive code of Roman law and the basic document of all modern civil law. Compiled by order of Byzantine Emperor Justinian I, the first three parts appeared between 529 and 535 and were the work of a commission of 17 jurists presided over by the
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 (completed 535) under the direction of TribonianTribonian
(Tribonianus) , d. 545?, Roman jurist. Under the command of Justinian I, he directed the compilation of the Corpus Juris Civilis. It is not possible to determine exactly what Tribonian himself contributed; in all likelihood he wrote largely from his encyclopedic
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.

Continuing Influence

After the mid-6th cent., Roman law persisted as a part of the Germanic lawsGermanic laws,
customary law codes of the Germans before their contact with the Romans. They are unknown to us except through casual references of ancient authors and inferences from the codes compiled after the tribes had invaded the Roman Empire.
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 and was in effect in the Byzantine EmpireByzantine Empire,
successor state to the Roman Empire (see under Rome), also called Eastern Empire and East Roman Empire. It was named after Byzantium, which Emperor Constantine I rebuilt (A.D. 330) as Constantinople and made the capital of the entire Roman Empire.
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. Revival of classical studies during the Renaissance prepared the way for the partial resurrection of Roman law as the modern civil lawcivil law,
as used in this article, a modern legal system based upon Roman law, as distinguished from common law. Civil law is based on written legal codes, a hallmark of the Roman legal system, in which disputes were settled by reference to a written legal code arrived at
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 in a large part of the world. The jus gentium is perhaps the most widely represented in modern legal systems, for it is the basis of commercial lawcommercial law,
the laws that govern business transactions, except those relating to the maritime transportation of goods (see maritime law). Commercial law developed as a distinct body of jurisprudence with the beginning of large-scale trade.
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 even in those countries that follow common lawcommon law,
system of law that prevails in England and in countries colonized by England. The name is derived from the medieval theory that the law administered by the king's courts represented the common custom of the realm, as opposed to the custom of local jurisdiction that
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.

Bibliography

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

Roman law

the code of LAW developed in ancient Rome, which today forms the basis of many modern European codes of law, e.g. in Scotland. It is characteristic of such codes of law that they have received systematic codification. In contrast, it is characteristic of English law, a common law system, that it is based far more on judge-made precedent and, in relative terms, lacks such systematic codification.

Roman Law

 

the most highly developed system of slave-holding law, which was formulated in Rome, the most important state of the ancient world. Roman law upheld the class interests of slaveholders and the exploitation of slaves.

Roman jurists divided law into public law (Jus publicum) and private law (jus privatum). Public law dealt with the organization of the Roman state, while private law was concerned with the individual. First described by Ulpian, this division reflected the contradiction inherent in society based on the class antagonisms between the private and public interests; it later became the foundation of the legal systems of bourgeois states.

The provisions of public law, including state and criminal law, reflected the class relationships of the slaveholding society of ancient Rome and did not have a significant effect on the history of law. Roman private law did have a great influence on future law. It was based on a clearly expressed individualist principle and guaranteed significant legal and economic autonomy to the individual. Equality in civil defense was characteristic of private law and in 212 was extended to all freemen. Roman law never considered slaves to be subjects of the law. Slaves were viewed as things, and they did not have political rights.

The basic element of Roman law was the right to private property, which was worked out thoroughly and carefully, as were other forms of real right, such as possession and easement. Ways to acquire, renounce, and protect property rights were established, and an owner’s legal faculties were determined. The law of obligations, especially in regard to the contract (contractus), was an important institution of Roman private law. The system of contracts developed by Roman jurists covered the most diverse economic relationships in a society of simple commodity producers and ensured the stability and durability of commodity turnover. Roman law developed such important legal concepts as legal capacity, the juristic person, limitation, and citizenship. It was also concerned with the problems of legal civil liability, and it carefully regulated inheritance.

The comprehensive character of Roman law and the detailed elaboration of relationships related to commodity turnover made Roman law the “classical juristic expression of the vital conditions and conflicts of a society in which private property reigns supreme” (see F. Engels in K. Marx and F. Engels, Soch., 2nd ed., vol. 21, p. 412). Many of the principles of Roman law were used to regulate private-property relationships in different historical periods and were used successfully to protect the property interests not only of slaveholders but also of feudal lords and capitalists. K. Marx wrote that “Roman civil law is civil law in its classical form” (ibid., vol. 1, p. 347). This explains the revival of the precepts of Roman law in the law of feudal and bourgeois states. This revival was particularly significant in the countries of Western Europe during the age of feudalism.

Roman law has been exceptionally important in the history of law and of human culture because of its highly developed legal nature. The precision and simplicity of its definitions and its logical argumentation and formulations have made Roman law a model of legal art. Many terms and principles have been preserved in the laws of numerous countries, and codes of laws have been based on the institutional system introduced by Roman law.

REFERENCES

Kapustin, M. Institutsii rimskogoprava. Moscow, 1880.
Grimm, D. Lektsii po dogme rimskogo prava, 5th ed. St. Petersburg, 1906.
Baron, J. Sistema rimskogo grazhdanskogo prava, 3rd ed., fascs. 1–4. Kiev, 1908–10. (Translated from German.)
Rimskoe chastnoe pravo. Moscow, 1948.
Pereterskii, I. S. Digesty lustiniana. Moscow, 1956.
Novitskii, I. B. Osnovy rimskogo grazhdanskogo prava, 3rd ed. Moscow, 1972.

O. A. ZHIDKOV

References in periodicals archive ?
At the risk of some over-simplification, it may be said that, 'to Roman law we owe the origins of Legalism; to the common law we owe the fusion of Legalism with the rule of law'.
It is this notion of the Roman law and the English common law emerging as a byproduct of individuals' private efforts to vindicate their rights that leads Leoni (presaging Hayek) to observe that law in this sense is something to be discovered, not something to be made: "Both the Romans and English shared the idea that the law is something to be discovered more than to be enacted and that nobody is so powerful in his society as to be in a position to identify his own will with the law of the land" (1991, p.
One tragedy of the consolidation of Roman law that took place in the sixth century CE is that it involved an attempt to suppress every part of the law library that was not chosen for preservation.
In the case of Germany, the Roman law was formally "received" (185) as binding law long before Germany was unified in 1871.
Baragwanath said that legal practitioners continue to turn to Roman law "to discern principles to solve the real life disputes that are a result of our humanity," and cited the court's statute as evidence of the continued influence of Roman law.
The common law developed within a procedural framework of causes of actions--a structure, interestingly enough, phenotypically very close to classical Roman law.
However, unfortunately, we are building stadiums while not having sport, we are building antique courts while still not having mastered Roman law and building antique theatres without having a public.
Washington, January 27 (ANI): Researchers at University College London's (UCL's) Department of History have discovered part of an ancient Roman law code previously thought to have been lost forever.
in the main, on Roman law rather than convoluted surmise.
Islamic Imperial Law is a very rich and enormously detailed book and as it would be too much to discuss here all its aspects and arguments, I will focus on the two main theses, to wit, that there was a codification of Islamic law just before the end of the eighth century and that this codification was based on Byzantine Roman law.
As modern international law began to emerge in the sixteenth century, it borrowed from Roman law distinguishing between bellum (war with legitimate enemies) and guerra (war against pirates, brigands, outlaws, and other common enemies of mankind).