Roman law

Definition of Roman law

Further reading

Not to be confused with civil law (legal system), which is descended from Roman law.

The term Roman law denotes the legal system of ancient Rome, and the legal developments which occurred before the seventh century AD - when the Roman-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 (ca. 449 BC) to the Corpus Juris Civilis (AD 529-34) ordered by Emperor Justinian I. This Roman law, the Justinian Code, was effective in the Eastern Roman (Byzantine) Empire (330-1453), and also served as a basis for legal practice in continental Europe, as well as in Ethiopia, Japan, and most former colonies of European nations, including Latin America.

Introduction

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 (962-1806); 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 law substance

Concepts

• ius civile, ius gentium, and ius naturale - the ius civile ("citizen law", originally ius 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 ius 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. Ius 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.
• ius scriptum and ius non scriptum - the terms ius 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 ius dispositivum, and they are used when party shares something and are not in opposition.

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.