English for Lawyers II
ROMAN LAW 3
Q&A ON ROMAN LAW
What is Roman Law?
In Medieval times (from about the 11th century onward) there was a renewed interest in the law of the Romans. Initially, Roman Law was only studied by scholars and taught at the universities, Bologna being the first place where Roman Law was taught. Soon Roman Law came to be applied in legal practice--especially in the area of civil law. This process of (re-) adoption (reception) of Roman Law occurred at varied times and to various extents across all of Europe ( England being the most important exception). Thus from about the 16th century onward, Roman Law was in force throughout most of Europe . However, in the process of adoption/reception many Roman rules were amalgamated with, or amended to suit, the legal norms of the various European nations. Thus, Roman rules, applied in Europe at this period, were by no means identical with Roman Law from antiquity. Nonetheless, because the law that had evolved was common to most European countries, it was called the Ius Commune (common law).
In the form of the Ius Commune, Roman Law was in force in many jurisdictions until national codes superseded these rules in the 18th and 19th centuries. In many regions of the German Reich, Roman Law remained the primary source of legal rules until the introduction of the German Civil Code in 1900. Even today a special branch of the Ius Commune, known as Roman-Dutch Law, is the basis of the legal system in the Republic of South Africa .
To what extent did Roman Law influence the English legal system?
England did not adopt Roman Law as the other countries in Europe had. In England, ancient Roman texts were never considered as rules having the force of law. Nonetheless, Roman Law was taught at the Universities of Oxford and Cambridge, just as it was taught at Bologna. Scholars, who had studied Roman Law on the Continent (the so-called Civilians), did have considerable influence on the development of certain areas of law. Some substantive rules, and more importantly concepts and ways of reasoning, developed by continental legal scientists, based on the Roman legal tradition, influenced the English legal system.
What does the term, Classical Roman Law, mean?
The Romans were the first people to make law into a science. During the first two centuries of the Common Era, Roman legal science was the most fertile. This age is called the classical period of Roman Law, because the law during this time period, as it was taught and practised, best exemplified the classic characteristics of the Roman legal tradition.
How do we know about Roman Law ?
A rich variety of written documents concerning Roman Law during antiquity has come down to us including: statutes, deeds and the writings of legal scholars. The most important text among all these is the Corpus Iuris Civilis . In addition to the Corpus Iuris, the Institutes of Gaius from the middle of the second century of the Common Era must be mentioned; these Institutes constitute a beginners' textbook on Roman Law.
What is the Corpus Iuris Civilis?
In the sixth century A.D., the Eastern Roman Emperor, Justinian (Iustinianus), ordered the compilation of several law codes. These codes were based on much older sources of law, mostly statutes and legal writings from the classical period . They were:
the Institutes ( Institutiones )
a book largely copied from the Institutes of Gaius - written 300 years prior!-- and like it may be considered a beginners' textbook. The rules contained in the Institutes were given legal force in many countries; consequently the work may be regarded as both a textbook and a statute.
the Digest ( Digesta or Pandectae)
a collection of fragments from scholarly writings. Like the rules contained in the Institutes, the legal opinions expressed in these fragments were often given legal force.
the Code ( Codex )
a collection of imperial statutes.
Justinian had planned to add another collection to these three: a collection of new pieces of legislation which had come into force after the compilation of the Code ( novellae constitutiones ). This plan was never realized. There exists today only private collections of these novellae constitutiones. These form, together with the three codes, the Corpus Iuris Civilis.
The Corpus Iuris is by far the most important written source of Roman Law that has come down to us. The texts transmitted therein constituted the basis of the revival of Roman Law in the Middle Ages. As well, most of the insights gained by modern research on Roman legal history are owed to the analysis of texts from the Corpus Iuris.What is the Gloss?
When the Medieval scholars started to study the old texts of the Corpus Iuris again, they first wrote explanations concerning the meaning of single words in the texts (glosses). Based on earlier works of this kind, at the beginning of the 13th century, Accursius of Bologna, wrote a collection of such glosses to the texts of the Digest and the Code. This seminal work destined previous piecemeal attempts to oblivion. It was simply called The Gloss ( glossa ordinaria ) and all further elaboration of the Ius Commune proceeded from Accursius' gloss.
Why is Roman Law still important today?
Today Roman Law has been replaced by modern codes. These codes, however, did not create new law from scratch. But rather, to a large extent, the rules of Roman Law which had been transmitted, were placed in a statutory framework which provided a modern, systematic order. This is particularly true in regard to the German Civil Code. So, in order to fully understand the German Civil Code, it is necessary to know about the legal foundation upon which it rests. As this is true in regard to German law, it is eqully true in regard to most modern European legal systems.
Most important of all, Roman Law will have great significance in regard to the formation of uniform legal rules which further the process of political integration in Europe . Roman Law is the common foundation upon which the European legal order is built. Therefore, it can serve as a source of rules and legal norms which will easily blend with the national laws of the many and varied European states.
Where can I get more information about Roman Law?
On the Net
• In English
• Parts of the Digest and the Institutes in English (from the Medieval Sourcebook , Paul Halsall, Fordham University)
• Codes An introduction to the history of Justinian's codes by Peter Quinton (Director, Law Reform, Australian Capital Territory Government)
• The Law of Actions Outline of a chapter of a companion to the Institutes . (Prof. Dr. Ernest Metzger, University of Aberdeen)
• Roman Law Course Materials (University of Cape Town) Tests from a Roman Law course. Find out what you have learned so far!
• In French: Cours de Droit romain , principes et analyse critique de textes Droit romain, questions spéciales (Prof. Dr. R. Vigneron, Université de Liège). A complete introductory course on Roman Law on the net!
Books
There is a large body of literature on Roman Law. These suggestions are therefore by necessity somewhat arbitrary.
A translation of the Institutes:
J.A.C Thomas: The Institutes of Justinian, Text, Translation, Commentary, 1975.A translation of the Digest:
A. Watson: The Digest of Justinian, text and translation, Philadelphia 1985.A textbook for beginners:
J.A.C. Thomas: Textbook of Roman Law, 1976.I am very grateful to Prof. Stephen Ross Levitt, Legal Studies, Nova Southeastern University <levitts@polaris.acast.nova.edu> who helped me translate this FAQ into English.
Thomas Rüfner
I plan to add more information to this page from time to time. So if you have any suggestions, corrections or further questions write to me.IusRomanum
A forum for the discussion of Roman Law on the Internet
A new mailing list is available on the Internet. The list is called IusRomanum. It is run in the framework of the Roman Law branch of the Law-related Internet Project at the University of Saarbrücken .
Scope and participants
IusRomanum has been initiated with the purpose to create a forum for scholarly discussion of all aspects of Roman Law. Possible topics include the history of Roman Law from the Twelve Tables to Justinian's codes as well as its continued presence in the early Middle Ages, its renaissance in 12th century Bologna , the development of the Ius Commune and the importance of Roman Law for the understanding of modern legal systems and the formation of European Private Law. The use of modern electronic resources for research in related fields may be a subject as well. The list is open to everyone interested in the discussion of questions connected to Roman Law. Jurists and historians are invited to take part. The participation of persons from a large variety of professional backgrounds will add to the list's value.
Archive
All postings to the list will be archived. The archive will be accessible through the World Wide Web. Thus a database containing information on Roman Law will come into existence.
Technicalities
IusRomanum is run by the Majordomo list management program. To subscribe, send a message containing the following text in its body (NOT in the subject line):
subscribe IusRomanum <your mail address> to Majordomo@jurix.jura.uni-sb.de .
Please note that you have to put your mail address in place where you would have to put your name with other list management programs. To remove yourself from the list send a message with the text unsubscribe IusRomanum to Majordomo@jurix.jura.uni-sb.de .
Postings to the list have to be directed to IusRomanum@jurix.jura.uni-sb.deA notice of the opening of IusRomanum has been sent to CLASSICS, HISLAW-L and EURO-LEX. Please forward this information to everyone who may be interested and does not read the the lists mentioned. If you have any further questions, write e-mail to me ( ruefner@jura.uni-tuebingen.de ). If you experience technical difficulties in receiving mailo from the list, please contact owner-iusromanum@jurix.jura.uni-sb.de .
Ancient History Sourcebook:
The Twelve Tables, c. 450 BCECicero, De Oratore , I.44: Though all the world exclaim against me, I will say what I think: that single little book of the Twelve Tables, if anyone look to the fountains and sources of laws, seems to me, assuredly, to surpass the libraries of all the philosophers, both in weight of authority, and in plenitude of utility.
Table I.
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.
Table II.
2. He whose witness has failed to appear may summon him by loud calls before his house every third day.
Table III.
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.
Table IV.
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.
Table V.
1. Females should remain in guardianship even when they have attained their majority.
Table VI.
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.
Table VII.
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.
Table VIII.
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.
Table IX.
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.
Table X.
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.
Table XI.
1. Marriages should not take place between plebeians and patricians.
Table XII.
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.
Source:
From: Oliver J. Thatcher, ed., The Library of Original Sources (Milwaukee: University Research Extension Co., 1901), Vol. III: The Roman World , pp. 9-11.
Scanned by: J. S. Arkenberg, Dept. of History , Cal. State Fullerton . Prof. Arkenberg has modernized the text.
This text is part of the Internet Ancient History Sourcebook . The Sourcebook is a collection of public domain and copy-permitted texts related to medieval and Byzantine history.
Unless otherwise indicated the specific electronic form of the document is copyright. Permission is granted for electronic copying, distribution in print form for educational purposes and personal use. No representation is made about texts which are linked off-site, although in most cases these are also public domain. If you do reduplicate the document, indicate the source. No permission is granted for commercial use.
© Paul Halsall, June 1998
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Željko Rišner, B.A.
