How has ancient Rome influenced European law

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Statue of Lady Justice in Bern, Switzerland

“Jus eat ars boni et aqua” – the law is the art of goodness and equity. That is how Roman’s jurist Celsus defined law. This definition represents and encompasses the desires of Roman people and their will to create and implement laws, a desire that indeed managed to comprehensively cross the barriers of time and reach out to the modern world as we know it today. Roman law is the stable foundation on which modern legal culture has developed and evolved upon as a whole. The Civil law system [1] is based on the late Roman law and its most distinctive feature - that its core principles are codified into a system which servers as the primary source of law.

Importance of the Roman Law: from ancient times to modern law systems

It is claimed that the European identity is built on three pillars: Christianity, Aristotelian philosophy and Roman law. The very term “Roman law” refers to the legal system of ancient Rome from the time of the city founding in 753 BC until the fall of the Western Roman Empire in the 5th century CE. Later it was used in the Byzantine Empire (Eastern Roman Empire) until 1453. “Roman law” is also used to denote the legal systems implemented in the significant part of Western Europe until as late as the 18th century. This is the law implied in the Holy Roman Empire and at the same time the law of countries that were never subject to the Roman rule. Roman law has influenced the national legal systems not only in Europe but also in America, Africa and Asia. It forms the basis for the bourgeois civil codifications in most countries in continental Europe and derivative systems elsewhere. Nonetheless it has a significant influence on the formation of nations and modern statehood.

Early legislation development

The system of Roman law has developed during the continuous existence of Roman Republic and Empire. Between 753-31 BC the jus civile (civil law) has been developed. This legislation was exclusively applied to Roman citizens. However, there were many cases in which foreigners were also involved. These cases were subject to justice by different magistrates and governors and hence the need of another type of law occurred. This other type of jurisdiction was then called jus gentium (law of nations) and was applied to both the Romans themselves and the foreigners. It became a flexible alternative to jus civile applied by the magistrates. In its essence jus gentium consisted of the following elements: 1. The existing mercantile law used by the Mediterranean traders; 2. Institutions of Roman law that could be applied universally; 3. The magistrate’s own sense of what was fair or just. By the 3rd century AC when citizenship was extended throughout the empire, the practical differences between jus civile and jus gentium ceased to exist. The term jus gentium obtained a more universal meaning referring to the same legal results whether the participated parties were citizens or not.

The First Code of Law

An important divisions of Roman law became what is now known as jus scriptum (written law) and jus non scriptum (unwritten law). The term unwritten law was strictly referred to customs, while written law represented literally all law based on any written source and evidence. There were various types of written law, the first of which consisted of leges or enactments of one of the general assemblies of the Roman people. They were source of law only during the Republic. With the establishment of the Empire in 31 BC the function of the assemblies was reduced to formal ratification of the emperor’s wishes. The most important leges or legislation were the Twelve Tables, enacted in 451 BC. This is the first attempt by the Romans to create a code of law in order to prevent political struggle between classes. Little is known of the actual content of the Twelve Tables. Unfortunately the authentic text of the code has not completely survived to date and only a few fragments are presently preserved. However, these fragments clearly show that numerous key legal matters were treated by the code such as family law, delict and legal procedure. Many of today's laws throughout the world can be tied back to the earliest of beginnings with the Twelve Tables.

Other types of written law were: the edicta (edicts) or proclamations, issued by a superior magistrate on judicial matters; the senatus consulta or resolutions of the Roman senate; constitutiones principum which were expressions of the legislative power of the emperor as by the middle of the 2nd century AC the emperor was the sole creator of the law; and the responsa prudentium or answers to legal questions given by learned lawyers to those who consulted them.

Roman law: key historically determined postulates and principles

The sources of our knowledge of Roman law in the ancient world include statutes, deeds and the written content left by legal scholars. Among these the Institutes of Gaius, an unfinished manuscript of lections, dated from the 2nd century AC, must be mentioned. Gaius invented a system of private law based on the division of all material into personae (persons), res (things) and actiones (legal actions). This system was used for many centuries that followed after. However, the most important source of information is the Corpus Juris Civilis, ordered by the emperor Justinian I. The emperor formed a commission of jurists to compile all existing Roman laws till date into one unified body.

Subsequently, by blending the old outdated laws with the new laws of the Roman empire, emperor Justinian I effectively cleansed and updated the Roman law thus selecting only those rules that had real practical value of the time leaving behind all obsolete principles and postulates. The first book of the so-called Corpus Juris Civilis is the Codex Constitutionum. It represents a selection of the imperial constitutions that had some practical value or their provisions were adapted to the circumstances of Justinian’s own time. The second book or a set of book volumes consists of 50 more book volumes that became known as Digest (Digesta) or Pandects (Pandectae). They contained a selection of the writings of the jurists and were pronounced to be a law book and no other jurist’s writings could be cited any more. At about the same time the Institutes of Justinian was published. It contained an outline of the elements of the Roman law. The last book is known as the New constitutions or the Novels and consists of ordinances issued by the emperor himself.

 

Further development and contributions of the West

This Corpus Juris of Justinian continued to be the main law book of what was left of the Roman imperial world long after Justinian’s ruling. His system of law continued to develop even further in the Eastern Empire until the very fall of Constantinople to the Turks in 15th century. However, the real resurrection of Roman law occurred in the West. Corpus Juris Civilis was rediscovered in Bologna, Italy, at the end of 11th century and became the reason for the establishment of Europe’s first university and the first law faculty. From there Roman law spread across all Catholic Europe with England being an important exception.

By the 16th century Roman law was in force throughout most of Europe. However, in the process of adoption, many Roman rules were mixed up or changed in way to better suit the legal norms and specifics of the various European nations. In general the rules that were applied by the European countries at that period were identical to the Roman law from Justinian’s time. Nonetheless, the law that has evolved was common to the most European countries and so it was called Ius Commune (common law) [2]. In this form Roman law was in force in many countries until national codes were later created in 18th and 19th centuries. For example - in Germany Roman law remained the primary legal source until 1900 when the German Civil Code was first introduced.

Anglo-Saxon v.s. Continental Roman Law

As for England - it did not adopt the Roman law as the rest of the European countries. The Roman rules never had the force of law in the country, though they were taught in the Universities of Oxford and Cambridge. However, some substantive rules, concepts and ways of reasoning based on the Roman legal tradition did heavily influence the English legal system on its own regard. That is because Roman law also offers specificity and a power: it has the ability to reduce a problem to one or two sentences and from that come up with a rule. This makes it very similar to the Anglo-Saxon law, on which English legal system is based. Despite that, unlike the Continental European law system, the Anglo-Saxon law system, also known as Common law system, is based on judge-made decisional law which gives authority of a precedent to prior court decisions. The main principle here lays in the statement that it is unfair to treat similar facts differently on different occasions.

Roman law and Modern codes

Today Roman law has been replaced by modern codes. These codes were created by transmitting [3] the rules of Roman law and placing them in a framework which provided a modern, systematic order. This is particularly true in regards to the German Civil Code and is equally true in regard to the most modern European legal systems and Constitutions. However, some Roman rules were implemented directly and even today they apply to all of us. For example the fact that we can return faulty purchases to the shop during a certain “grace” period of time has a Roman origin. At the time of Justinian this principle was extended to all contracts and as such was taken by some European legal systems.

Moreover, Roman law is the common foundation upon which the European legal order is built. Therefore, it serves as a source of rules and legal norms which easily blend within the European countries own national laws. Roman law is not only effectively mixed in the widely used common law and continental law norms and practices, but its set of fundamental principles and/or established rules pre-defines, shapes and provides law sources in accordance to which states are governed in general. Nowadays, these rules altogether make up, i.e. constitute, what the entity is all about and what is also commonly referred to as Nations’ Constitutions [4].

Truly, the Roman Empire may have left countless marks on the modern Western world, though, its greatest contribution to it is its law. It still has a very direct influence today and we can derive the conclusion that Rome’s main legacy is in the field of law, because Roman law has had an enormous influence on the development of law in Europe and in what is referred to as Continental Law in general. It’s no coincidence then that Roman law remains a compulsory subject in our law faculties and modern studies. We still refer to that very same old Roman law all the time even today. And last, but in no way least, it’s then vital to note that – while in all other fields the influences are mixed [5], and apart from Latin language obviously – law is the only contribution to the modern world that is derived solely from ancient Rome.

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  1. ↑ also known as Continental European law system
  2. ↑ N.B.! to be distinguished from the Common law system, based on precedent
  3. ↑ i.e. transposing
  4. ↑ i.e. Nation Main Law(s)
  5. ↑ i.e philosophy and architecture also have Greek influences

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