ROMAN LAW

the law of ancient Rome from the time of the founding of the city in 753 BC until the fall of the Western Empire in the 5th century AD. 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 Civilisthe codifying legislation of the emperor Justinian Ithis 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. the law of ancient Rome from the time of the founding of the city of Rome in 753 BC until the fall of the Western Empire in the 5th century AD. 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. Roman law was first truly realized with an attempt at codification. The Twelve Tables (see Twelve Tables, Law of the) were promulgated about 451450 BC to collect and make known rulings and procedures that had hitherto been confined to the pontiffs (pontifices), members of the ruling patrician class. Erected in the Roman Forum on tablets of wood or bronze, the lawpublic and sacred, private and criminalwas now in effect public property and could be appealed to by any Roman citizen. The importance of the Twelve Tables was such that even obsolete rules went unrepealed until Justinian's recodification of all Roman laws in the 6th century AD. Roman law concerned itself with matters of succession (who was to inherit what), obligations (including contracts, such as loans, entered into by individuals), property and possessions, and persons (which included family, slaves, and citizenship). In the early period, near-absolute power (patria potestas) was retained by the paterfamilias, the landowner and head of the household. It was he who legally owned all the property (including slaves), even what property would normally be thought of as belonging to his wife or children. A daughter remained under her father's potestas until she might decide (or have it decided for her) to marry; thereafter she would be put under her husband's power. In time, many of the harsher aspects of this system were mitigated, but much remained until the very end. Some hint of the multifarious nature of Roman law may be gained from just some of the ways in which ownership of property was established. Under usucapio (taking title by use), land was claimed as one's own after two years of continuous use; this later developed into occupatio, whereby anything ownerless (and able to be owned) could be claimed. Transfer of property, however, required the presence of a magistrate before whom there was a formal legal yielding (in jure cessio). In addition to ownership, there were several forms of leasing property: usus allowed simply for the use of something and was distinguished from ususfructus, the use of the object and the right to profit from it (say, by eating fruit grown on the property or by renting the property to another). At first, when Rome was an insignificant town, all laws naturally pertained only to citizens (cives), regulating their behaviour with one another. The early law was essentially personal rather than territorial. That is, a foreigner (peregrinus) staying in Rome had no rights whatsoever, unless his state and Rome had entered into a formal alliance. The civil law (jus civile), as this was called, developed in part by the promotion of unwritten custom to the rank of written law and in part by the need for new legislation as Rome grew increasingly wealthy. Before 287 BC, laws (leges) were passed by assemblies dominated by the patrician families, whereas the plebs, or common people (still citizens, however), regulated their own behaviour with plebiscites (plebiscita), which had the force of law. With the passage of the Lex Hortensia in this year, however, plebiscites became binding on all citizens. By the middle of the 3rd century BC, especially after the First Punic War (264241), Rome began to be a regional power, visited by peregrini of all sorts, all of whom felt the need for legal protection in their dealings with Roman citizens. Hence, although the extent of the jus civile spread as Roman citizenship was granted to those living outside the city, there now developed the jus gentium (law of the nations), which at first regulated commercial activity between citizens and peregrini, but which later gained wide currency throughout the Roman Empire for all subjects. Because Rome eventually granted citizenship to all under its power, by the 3rd century AD there were, in effect, no peregrini left, so that, for all practical purposes, there was no difference between jus civile and jus gentium. Laws had, however, different means of enactment; whereas the jus civile was the result of legislation, the jus gentium developed from the rulings (edicta) of various magistrates (usually a praetor). The first emperors used another means of enacting laws, the senatusconsultum (resolution of the Senate), but later emperors directly issued their own constitutiones principium (decrees of the emperors), bypassing other forms of legislation. The body of Roman law was now so complex that learned jurists were called upon to interpret the law with responsa prudentium (answers of wise men), which, since they themselves had the force of law, rendered the overall situation even more confusing, especially since the various edicts, laws, responses, etc., were usually not to be found in the same place. Although various attempts had been made by the 5th century AD to gather and simplify all existing laws, the successful execution of the plan was left to the Byzantine emperor Justinian, resident in Constantinople, who in 529 promulgated his Codex Constitutionum as the chief source of Roman law. Any law not included herein was declared obsolete. This book and his later Digest, the Institutes, and the Novels, or New Constitutions, formed the Roman Empire's legacy to legal history. Like Roman law, Roman legal procedure evolved over centuries; in its later stages it formed the basis for modern procedure in civil-law countries. There were three main, overlapping stages of development: the legis actiones, which dates from the 5th-century-BC law code known as the Twelve Tables until the late 2nd century BC; the formulary system, from the 2nd century BC until the end of the classical period (3rd century AD); and the cognitio extraordinaria, in operation during the postclassical period. The procedure under the legis actiones was divided into several steps. First, the plaintiff approached the defendant in public and called for him to come to court. If he refused, he could be taken there by force. The trial itself was divided into two parts. The first was a preliminary hearing held before a magistrate who decided whether there was an issue to be contested and, if so, what it was. Each step in this procedure was extremely formal. If the wrong words were used by either party, that party might lose the case. After the issues were delineated and sureties set, both parties agreed upon a judex, who was neither a lawyer nor a magistrate but a prominent layman, to try the case. The proceedings before the judex were more informal: advocates spoke and gave evidence, and witnesses often appeared. The judex made a decision but had no power to execute it. If the defendant refused to pay the fine or make restitution within a certain period of time, he could be brought by force to the magistrate. Then his property could be seized, or he could be made slave to the plaintiff to work off the debt or property claim. During the later republic, as cases became more complex, the issues that had to be presented to the judex had to be written down, thus leading to the formulary system, under which the defendant was still summoned by the plaintiff to appear in court and there were still two parts to the trial but under which the magistrate had greater power to determine whether the case would go to the judex. Under the cognitio extraordinaria much greater power was placed in the hands of the magistrate and the courts. The summons was issued by the court, the trial was held exclusively before the magistrate, and the court became responsible for the execution of the sentence. Further, there developed a system of appeal. Thus, the state became involved in the administration of justice and the enforcement of its rules of law in a manner similar to that of modern European states. Additional reading W.W. Buckland, A Text-book of Roman Law from Augustus to Justinian, 3rd ed. rev. (1975), is the standard reference in English. Other general introductions are R.W. Leage, Roman Private Law Founded on the Institutes of Gaius and Justinian, 3rd ed. edited by A.M. Prichard (1962); M. Kaser, Roman Private Law, 3rd ed., trans. by Rolf Dannenbring (1980; originally published in German, 10th rev. ed., 1977); Barry Nicholas, An Introduction to Roman Law (1962, reprinted 1975); and J.A.C. Thomas, Textbook of Roman Law (1976). For a scholarly treatment of Roman law in the classical era, see F. Schulz, Classical Roman Law (1951, reprinted 1954). For civil procedure, see M. Kaser, Das rmische Zivilprozessrecht (1966); and Leopold Wenger, Institutes of the Roman Law of Civil Procedure, rev. ed. (1955; originally published in German, 1925). See also Tony Honor, Emperors and Lawyers (1981).For the historical development of Roman law, see the scholarly and highly readable accounts by H.F. Jolowicz and Barry Nicholas, Historical Introduction to the Study of Roman Law, 3rd ed. (1972); and Hans Julius Wolff, Roman Law: An Historical Introduction (1951, reprinted 1981). Leopold Wenger, Die Quellen des rmischen Rechts (1953), is a detailed historical study that relates Roman legal development to that of the surrounding legal systems. For the early history, see C.W. Westrup, Introduction to Early Roman Law, 5 vol. (193454). For a bibliographical appendix, see Wolfgang Kunkel, An Introduction to Roman Legal and Constitutional History, 2nd ed. (1973, reprinted 1975; originally published in German, 6th ed., 1971).For the reception of Roman law in Europe, see Paul Koschaker, Europa und das rmische Recht, 4th ed. (1966); and the briefer account by Paul Vinogradoff, Roman Law in Medieval Europe, 2nd ed. (1929, reissued 1968). An interesting study may be found in W.W. Buckland and Arnold D. McNair, Roman Law and Common Law: A Comparison in Outline, 2nd ed. rev. by F.H. Lawson (1952, reprinted 1965). For classified references to modern literature, see A. Berger, Encyclopedic Dictionary of Roman Law (1953, reprinted 1980). Periodical literature from 1800 is elaborately indexed by L. Caes and R. Henrion, Collectio Bibliographica Operum ad Ius Romanum Pertinentium (194978), issued in two series with supplements. The volumes of Iura (irregular) contain bibliographies of current literature, including articles and reviews. Maurice Alfred Millner Peter G. Stein Max Rheinstein Albert Roland Kiralfy John N. Hazard Mary Ann Glendon