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| © Copyright Peter Crawford 2016 |
IUS CIVILE - ROMAN LAW
INTRODUCTION
Roman law is the legal system of ancient Rome, including Roman Military Jurisdiction and the legal developments spanning over a thousand years of jurisprudence, from the 12 Tables (c. 449 BC), to the Corpus Juris Civilis (AD 529) ordered by Eastern Roman Emperor Justinian I.
Roman law is the legal system of ancient Rome, including Roman Military Jurisdiction and the legal developments spanning over a thousand years of jurisprudence, from the 12 Tables (c. 449 BC), to the Corpus Juris Civilis (AD 529) ordered by Eastern Roman Emperor Justinian I.
The historical importance of Roman law is reflected by the continued use of Latin legal terminology in legal systems influenced by it.
After the dissolution of the Eastern Roman Empire, the Justinian Code remained in effect in the Eastern Roman Empire, known in the modern era as the Byzantine Empire (331–1453). From the 7th century onward, the legal language in the East was Greek.
"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 in place longer under the Holy Roman Empire (963–1806).
Roman law thus served as a basis for legal practice throughout Western continental Europe, as well as in most former colonies of these European nations, including Latin America, and also in Ethiopia.
English and North American common law were influenced also by Roman law, notably in their Latinate legal glossary (for example, stare decisis, culpa in contrahendo, pacta sunt servanda).
Eastern Europe was also influenced by the jurisprudence of the Corpus Juris Civilis, especially in countries such as medieval Romania (Wallachia, Moldova, and some other medieval provinces/historical regions) which created a new system, a mixture of Roman and local law.
Also, Eastern European law was influenced by the "Farmer's Law" of the medieval Byzantine legal system.
The Twelve Tables
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 first legal text is the 'Law of the Twelve Tables', dating from the mid-5th century BC.
The plebeian tribune, C. Terentilius Arsa, proposed that the law should be written, in order to prevent magistrates from applying the law arbitrarily.
After eight years of political struggle, the plebeian social class convinced the patricians to send a delegation to Athens, to copy the Laws of Solon; they also dispatched delegations to other Greek cities for like reason.
In 451 BC, according to the traditional story (as Livy tells it), ten Roman citizens were chosen to record the laws (decemviri legibus scribundis).
While they were performing this task, they were given supreme political power (imperium), whereas the power of the magistrates was restricted.
In 450 BC, the decemviri produced the laws on ten tablets (tabulae), but these laws were regarded as unsatisfactory by the plebeians.
A second decemvirate is said to have added two further tablets in 449 BC.
The new 'Law of the Twelve Tables' was approved by the people's assembly.
It is now considered, however, that a second decemvirate ever took place.
The decemvirate of 451 is believed to have included the most controversial points of customary law, and to have assumed the leading functions in Rome.
Furthermore, the question on the Greek influence found in the early Roman Law is still much discussed.
It unlikely that the patricians sent an official delegation to Greece, as the Roman historians believed.
Instead, it is probable that the Romans acquired Greek legislations from the Greek cities of Magna Graecia, the main portal between the Roman and Greek worlds.
The original text of the 'Twelve Table's has not been preserved.
The fragments which did survive show that it was not a law code in the modern sense.
It did not provide a complete and coherent system of all applicable rules or give legal solutions for all possible cases, rather, the tables contained specific provisions designed to change the then-existing customary law.
Although the provisions pertain to all areas of law, the largest part is dedicated to private law and civil procedure.
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 the consuls was 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.
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 .
Pre-classical Period
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.
In fact, praetoric law was so defined by the famous Roman jurist Papinian (Amilius Papinianus—died in 212 AD): "Ius praetorium est quod praetores introduxerunt adiuvandi vel supplendi vel corrigendi iuris civilis gratia propter utilitatem publicam" ("praetoric law is that law introduced by praetors to supplement or correct civil law for public benefit").
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 its greatest degree of sophistication.
The law of this period is often referred to as the 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:
The jurists also produced all kinds of legal punishments.
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 LEGAL CONCEPTS
Cicero, author of the classic book 'The Laws', attacks Catiline for attempting a coup in the Roman Senate.
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, Octavian 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.
Private Law
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.
Status in Roman Law
In Roman Law 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).
Status civitatis - 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 hostes.
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.
Status libertatis - 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 3rd 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.
Legal Status
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 slaves could use to purchase their freedom.
Means of Becoming a Slave
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 his or her mother was free, even for a short period of time, during the pregnancy.
There were a number of means by which a free man could become a slave in Roman society.
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.
The old civil law (ius civile Quiritium) recognized a number of different kinds of manumissions:
These limitations were implemented by two laws: Lex Fufia Caninia and Lex Aelia Sentia.
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).
Litigation
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 extraordinarem 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.
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.
The Twelve Tables
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 first legal text is the 'Law of the Twelve Tables', dating from the mid-5th century BC.
The plebeian tribune, C. Terentilius Arsa, proposed that the law should be written, in order to prevent magistrates from applying the law arbitrarily.
After eight years of political struggle, the plebeian social class convinced the patricians to send a delegation to Athens, to copy the Laws of Solon; they also dispatched delegations to other Greek cities for like reason.
In 451 BC, according to the traditional story (as Livy tells it), ten Roman citizens were chosen to record the laws (decemviri legibus scribundis).
While they were performing this task, they were given supreme political power (imperium), whereas the power of the magistrates was restricted.
In 450 BC, the decemviri produced the laws on ten tablets (tabulae), but these laws were regarded as unsatisfactory by the plebeians.
A second decemvirate is said to have added two further tablets in 449 BC.
The new 'Law of the Twelve Tables' was approved by the people's assembly.
It is now considered, however, that a second decemvirate ever took place.
The decemvirate of 451 is believed to have included the most controversial points of customary law, and to have assumed the leading functions in Rome.
Furthermore, the question on the Greek influence found in the early Roman Law is still much discussed.
It unlikely that the patricians sent an official delegation to Greece, as the Roman historians believed.
Instead, it is probable that the Romans acquired Greek legislations from the Greek cities of Magna Graecia, the main portal between the Roman and Greek worlds.
The original text of the 'Twelve Table's has not been preserved.
The fragments which did survive show that it was not a law code in the modern sense.
It did not provide a complete and coherent system of all applicable rules or give legal solutions for all possible cases, rather, the tables contained specific provisions designed to change the then-existing customary law.
Although the provisions pertain to all areas of law, the largest part is dedicated to private law and civil procedure.
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 the consuls was 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.
A tort is a civil wrong. There are three general types of torts that may cause injury to another person. In civil law, torts are grounds for lawsuits to compensate a grieving party for any damages or injuries suffered.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 .
Pre-classical Period
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.
In fact, praetoric law was so defined by the famous Roman jurist Papinian (Amilius Papinianus—died in 212 AD): "Ius praetorium est quod praetores introduxerunt adiuvandi vel supplendi vel corrigendi iuris civilis gratia propter utilitatem publicam" ("praetoric law is that law introduced by praetors to supplement or correct civil law for public benefit").
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 its greatest degree of sophistication.
The law of this period is often referred to as the 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.
The jurists also produced all kinds of legal punishments.
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).
ROMAN LEGAL 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. 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.
- ius scriptum and ius non scriptum – meaning 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 rules 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 not used when party shares something and are in contrary.
Cicero, author of the classic book 'The Laws', attacks Catiline for attempting a coup in the Roman Senate.
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, Octavian 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.
Private Law
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.
Status in Roman Law
In Roman Law 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).
Status civitatis - 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 hostes.
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.
Status libertatis - 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 3rd 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.
Legal Status
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 slaves 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 his or her mother was free, even for a short period of time, during the pregnancy.
There were a number of means by which a free man could become a slave in Roman society.
- According to Twelve Tables: - Æris confessi rebusque iure iudicatis XXX dies iusti sunto. A person who admits to owing money or has been adjudged to owe money must be given 30 days to pay. Post deinde manus iniectio esto. In ius ducito. Ni iudicatum facit aut quis endo eo in iure vindicit, secum ducito, vincito aut nervo aut compedibus XV pondo, ne maiore aut si volet minore vincito. Si volet suo vivito, ni suo vivit, qui eum vinctum habebit, libras faris endo dies dato. Si volet, plus dato. After that, the creditor can lay hands on him and haul him to court. If he does not satisfy the judgment and no one is surety for him, the creditor may take the defendant with him in stocks or chains.
- Also citizens involved in the false presentation of slavery for benefit could become slaves. If a free man were sold as a slave, then after proving that he is free he shared proceeds from the sale with the party that sold him. A praetor could deprive the seller of his freedom (vindicatio in libertatem).
- Convicts (most of them sentenced to death), could become slaves, and their property would belong to state.
- A female Roman citizen could become a slave (under senatus consultum Claudianum form 52) if she had "mutual living" (contubernium) with another man's slave despite the master's objection.
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.
The old civil law (ius civile Quiritium) recognized a number of different kinds of manumissions:
- Manumissio censu, was done by a master in the time of the Centuriate assembly. A master wishing to free his slave needed only to enter him in the censor's list as a citizen.
- Manumissio vindicta, was the liberation of a slave by a fictitious plea for freedom (vindicatio in libertatem). It was done before a magistrate when some citizen (adsertor libertatis) touched a slave by a stick (vindicta), and by right words said that the slave is a free man. If a master did not object to that claim (in iure cessio), a magistrate would validate the slave's freedom (addictio). This had been done under the old civil law (ius civile Quiricium)
- Manumissio testamento, was the liberation of a slave by a will. In a will master usually said "Stichus servus meus liber esto", and the slave would be free and without patron.
- Manumissio testamento fideicommissaria, was when a master asked his successor to release a slave. If that slave was made free, the man who released him became his patron.
- Manumissio inter amicos, was liberation of a slave by a statement in front of friends. Praetors protected these free slaves (by the Lex Junia Norbana, these people lived as free but died as slaves). This kind of manumission originated at the end of the republic.
- Manumissio per epistulam, same as above, just done by a statement in a letter.
- Manumissio per mensam was similar to the above manumissions. This one was not as formal as manumissions in time of old civil law, but had the same value as praetoric manumissions. Manumissions of this kind originated in the time of empire.
- Manumissio in ecclesia, were manumissions made in the time of Christian emperors in front of a priest.
These limitations were implemented by two laws: Lex Fufia Caninia and Lex Aelia Sentia.
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).
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| © Copyright Vittorio Carvelli 2016 |
Litigation
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 extraordinarem 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.
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.
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| © Copyright Peter Crawford 2016 |
