Roman Law: Types, Codes, Organization | Early European History And Religion

ROMAN LAW

Romulus murdered Remus and didn't seem to suffer severe legal consequences for his act

Roman law was perhaps Rome's greatest contribution to mankind. It was credited with holding the Roman Empire together, helping it endure as long as it did and bringing an element of fairness to an otherwise unfair world. The Romans decided to put more trust in written laws than in the whims of their human rulers. This concept is summed up in the Harvard Law School Inscription: " Non sub homine sed sub deo et lege " ("It is not by men but God and the law [that we are governed]." The Romans borrowed from the Greeks the notion that laws were ways in which individuals could be protected from each other and the power of the state. The Romans, however, were the ones who codified the abstract notions of laws and put them into daily use.

Roman law left behind a huge body of statutes and case law that first appeared in written form in 450 B.C. as the Twelve Tables, bronze tablets on which the first codified laws of the Roman Republic were inscribed. In A.D. 534, Emperor Justinian finished the daunting task of compiling all the Romans Laws that existed at that time into the Institutes, Digests and the Revised Code. These momentous legal works provided the foundations for modern Western Law.

Roman law defined property, contracts and crimes. People who were found guilty of crimes and legal authorities who lost their positions for abusing the laws were imprisoned or placed in chains. In the colonies, "Roman citizens had the right to appeal legal cases to Rome, while the others had to rely on local magistrates."

According to World Eras: Roman law was created both by legislative bodies and by individual magistrates in the government. It also received a substantial contribution from private legal specialists known as “jurists.” The state had an elaborate apparatus for resolving disputes according to the law. Parties (usually represented by professional advocates) argued their case and presented their evidence before a court. Their cases were then judged by a single judge or set of jurors. This similarity in outline to the modern legal system makes it easy to use many of the same terms when speaking of the Romans. However, the detail of each part of the Roman system turns out to be much different from modern custom. Therefore, one must be careful not to take too much for granted on the basis of similar terminology. [Source: World Eras, Encyclopedia.com]

Lack of Organization of Roman Law

According to Encyclopedia.com: While there was a lot of Roman law, especially by ancient standards, it was never systematically organized by modern standards. Neither the laws (leges) nor juristic decisions were ever collected before the fall of Rome. Much less did Roman law ever become a “code” — a set of laws all composed and enacted as a body. There are several reasons for this development. First, the American and British legal systems are self-organizing because of their reliance on precedent: later courts are required to follow the decisions of earlier ones. Roman courts were not similarly bound. In fact, since decisions were not published, precedent was hardly even available. The emperors had the authority to make binding interpretations but in practice could do so in only relatively few cases. Second, the jurists were not interested in a system. They worked in a strictly “casuistic” (case-by-case) manner; this manner presented the index with many models for judgment in a new case, but few general rules. Finally, the legislative process itself was unhelpful. Romans tended not to repeal or emend outdated laws. Often they would simply ignore them or reinterpret them beyond all recognition. Thus, the “paper trail” of the law could be quite confusing or misleading. [Source: Encyclopedia.com]

This disunity was doubtless confusing for the aspiring jurist or prospective litigant. It may, moreover, have had deeper implications for the law itself. Without much legal theory the Romans appear never to have solved certain problems simply because they never entirely recognized them. For instance, Roman jurists agreed that a person had to be at “fault” to be legally liable for damage to another’s property. They never agreed, however, whether this fault was subjective (one was not as careful as one could be) or objective (one was not as careful as the ordinary person would be). They never decided this fault because they did not define their terms so abstractly. But the abstract difference can make a huge difference in individual cases. In modern terms this distinction between subjective and objective fault is what makes “negligence” much easier to prove than “recklessness” and means the former is almost never sufficient to convict someone of a crime. Similarly, they never discussed in general what it means to “cause” something. This lack of fault made it tricky to assign responsibility in complicated cases such as a multiple car pileup. Who “caused” which collisions?

Private, Public and Religious Laws in Ancient Rome

humiliation was a punishment under Roman military law

According to World Eras: Private law covered disputes between individual parties. (These were normally individual people, since Roman law did not really create “artificial persons” such as corporations.) This area is like modern “civil” law, though somewhat broader. Private law touched on areas such as commerce, property disputes and damage, family and inheritance, marriage and dowry, slavery, and defamation. It also included some matters that would be considered crimes today. [Source: World Eras, Encyclopedia.com]

Public law deals with matters which interest not just the parties but the whole community. It can be divided into two main branches. One includes most of what is called “criminal” law today. The other might be described as “constitutional.” It controls the structure and functioning of the government, including standards of eligibility for office or rules for advance notice of pending legislation.

Some parts of sacred law could be considered “merely” religious, such as requirements for holding priesthoods or rules for repeating sacrifices in case of ritual errors. Other parts of the sacred law could have a more dramatic impact on the human world. Consecration to the gods or use for burial took land out of the realm of human ownership. A Roman noble was once forced to tear down his house because it blocked the view of the priests whose job was to watch for omens in the sky. Others had to resign from the state’s highest office when it was later discovered that rituals had not been carried out properly at their elections.

Types of Laws in Ancient Rome

According to World Eras: In modern nations of the “common law” tradition (including the United States and England) there are two primary sources of law. First, there is “statute” law — the enactments of legislative bodies such as Congress, Parliament, local councils, state legislatures, and the like. Second, there are judicial precedents — interpretations of these statutes and of long-standing conventions by judges. The sources of Roman law were similar, but not identical. Moreover, the balance of importance between sources was radically different. [Source: World Eras, Encyclopedia.com]

Statute Law: The Romans had statute law called lex (plural leges). Leges were the enactments of the various popular assemblies. Compared to any modern nation, however, they passed few of these laws. Those that were passed tended to be concentrated in certain areas such as governmental structure and procedure, declarations of war and peace, and distribution of land. Other areas, notably including most private law, were neglected.

Magisterial Edicts: By contrast, the role of the executive was much more important in shaping the law. The chief magistrate in charge of the administration of justice was called the urban praetor. At the beginning of his term, he would publish an edict listing the actions he would allow to be brought in court, that is, the circumstances in which someone could be sued in a Roman court. In a few instances these actions were mandated by statute law, but most were allowed solely on the basis of the praetor’s authority. In principle the praetor was free to include or reject whatever he wished. In practice the edict tended to evolve slowly, with each praetor deviating only slightly from his predecessor’s edict. Finally, in the second century A.D. the emperor had the praetor’s edict fixed permanently. Several other officials of the Roman government also issued edicts explaining how they would carry out their respective offices, and some of these touched on specific judicial areas (e.g., the “aediles” were in charge of the markets, so their edict had some effect on commercial law). However, the urban praetor’s edict was much broader and in any case tended to serve as a model for the others. Under the empire, the word of the emperor, in several formal guises, naturally became a crucial source of law.

Juristic Opinion: A third source of law, and at least equally important, was the work of legal scholars known as “jurists.” Authoritative interpretation of statutes and edicts was carried out not by courts but by these jurists. Moreover, “interpretation” was capable of changing the meaning of laws drastically. For instance, an early law stated that a son who was sold by his father three times (presumably he came back home in between sales) would thereby be emancipated or freed from paternal control. Later jurists interpreted this law to mean that a daughter (not covered by the original law at all) would be emancipated by being sold only once. A few jurists of the early empire are known to have been granted a “right of responding” to legal questions by the emperor. It is not clear what this right meant, but in general, individual jurists did not have formal, legal authority. Nonetheless, judges sought out their advice, and where the jurists were in agreement, that consensus seems to have had the practical force of law.

Mos Maiorum

The first laws in ancient Rome were unwritten traditional or customary laws — like those still found in tribal societies today — known as mos maiorum,. ("ancestral custom" or "way of the ancestors" in Classical Latin). Mos Mairoum was a source of ancient Roman social norms and a core concept of Roman traditionalism. It differed from but was dynamic complement to written law and defined time-honoured principles, behavioural models, and social practices that affected private, political, and military life in ancient Rome. [Source: Wikipedia]

Michael Van Duisen wrote for Listverse: “The mos maiorum was an unwritten code pertaining to behavioral customs mostly derived from the traditions of the Romans’ ancestors. Much like the Jews in the first song in Fiddler on the Roof, the Romans loved tradition and felt that moral decay would occur if they strayed too far from the ideals of the past. Therefore, obedience to the mos maiorum was seen as tantamount to maintaining a proper civilized Rome and was almost given legal standing. [Source: Michael Van Duisen, Listverse, February 13, 2014]

“There were occasions where breaking tradition was seen as subversive; in the case of legislation, it was considered customary to bring proposals before the Senate. Any magistrate who neglected to perform this duty ran the risk of being labeled a traitor. Even with the strict punishment handed down for certain offenses, it was still considered unwritten. As such, the transmission of the mos maiorum from one generation to the next was said to be the duty of the family, especially the paterfamilias (head of the household).”

Edicts in Ancient Rome

Edward Gibbon wrote in the “Decline and Fall of the Roman Empire”: “The silence or ambiguity of the laws was supplied by the occasional edicts of those magistrates who were invested with the honors of the state. This ancient prerogative of the Roman kings was transferred, in their respective offices, to the consuls and dictators, the censors and praetors; and a similar right was assumed by the tribunes of the people, the ediles, and the proconsuls. At Rome, and in the provinces, the duties of the subject, and the intentions of the governor, were proclaimed; and the civil jurisprudence was reformed by the annual edicts of the supreme judge, the praetor of the city. [Source: Chapter XLIV: Idea Of The Roman Jurisprudence. Part III, “Decline and Fall of the Roman Empire,” Vol. 4, by Edward Gibbon, 1788, sacred-texts.com]

As soon as he ascended his tribunal, he announced by the voice of the crier, and afterwards inscribed on a white wall, the rules which he proposed to follow in the decision of doubtful cases, and the relief which his equity would afford from the precise rigor of ancient statutes. A principle of discretion more congenial to monarchy was introduced into the republic: the art of respecting the name, and eluding the efficacy, of the laws, was improved by successive praetors; subtleties and fictions were invented to defeat the plainest meaning of the Decemvirs, and where the end was salutary, the means were frequently absurd.

A jurisdiction thus vague and arbitrary was exposed to the most dangerous abuse: the substance, as well as the form, of justice were often sacrificed to the prejudices of virtue, the bias of laudable affection, and the grosser seductions of interest or resentment. But the errors or vices of each praetor expired with his annual office; such maxims alone as had been approved by reason and practice were copied by succeeding judges; the rule of proceeding was defined by the solution of new cases; and the temptations of injustice were removed by the Cornelian law, which compelled the praetor of the year to adhere to the spirit and letter of his first proclamation. It was reserved for the curiosity and learning of Adrian, to accomplish the design which had been conceived by the genius of Caesar; and the praetorship of Salvius Julian, an eminent lawyer, was immortalized by the composition of the Perpetual Edict. This well-digested code was ratified by the emperor and the senate; the long divorce of law and equity was at length reconciled; and, instead of the Twelve Tables, the perpetual edict was fixed as the invariable standard of civil jurisprudence.

“From Augustus to Trajan, the modest Caesars were content to promulgate their edicts in the various characters of a Roman magistrate; and, in the decrees of the senate, the epistles and orations of the prince were respectfully inserted. Adrian appears to have been the first who assumed, without disguise, the plenitude of legislative power. And this innovation, so agreeable to his active mind, was countenanced by the patience of the times, and his long absence from the seat of government. The same policy was embraced by succeeding monarchs, and, according to the harsh metaphor of Tertullian, "the gloomy and intricate forest of ancient laws was cleared away by the axe of royal mandates and constitutions."

Civil Law in Ancient Rome

Edward Gibbon wrote in the “Decline and Fall of the Roman Empire”: The jurisprudence of the first Romans exhibited the scenes of a pantomime; the words were adapted to the gestures, and the slightest error or neglect in the forms of proceeding was sufficient to annul the substance of the fairest claim. The communion of the marriage life was denoted by the necessary elements of fire and water; and the divorced wife resigned the bunch of keys, by the delivery of which she had been invested with the government of the family. The manumission of a son, or a slave, was performed by turning him round with a gentle blow on the cheek; a work was prohibited by the casting of a stone; prescription was interrupted by the breaking of a branch; the clinched fist was the symbol of a pledge or deposit; the right hand was the gift of faith and confidence. [Source: Chapter XLIV: Idea Of The Roman Jurisprudence. Part III, “Decline and Fall of the Roman Empire,” Vol. 4, by Edward Gibbon, 1788, sacred-texts.com]

The indenture of covenants was a broken straw; weights and scales were introduced into every payment, and the heir who accepted a testament was sometimes obliged to snap his fingers, to cast away his garments, and to leap or dance with real or affected transport. If a citizen pursued any stolen goods into a neighbor's house, he concealed his nakedness with a linen towel, and hid his face with a mask or basin, lest he should encounter the eyes of a virgin or a matron. In a civil action the plaintiff touched the ear of his witness, seized his reluctant adversary by the neck, and implored, in solemn lamentation, the aid of his fellow-citizens. The two competitors grasped each other's hand as if they stood prepared for combat before the tribunal of the praetor; he commanded them to produce the object of the dispute; they went, they returned with measured steps, and a clod of earth was cast at his feet to represent the field for which they contended.

This occult science of the words and actions of law was the inheritance of the pontiffs and patricians. Like the Chaldean astrologers, they announced to their clients the days of business and repose; these important trifles were interwoven with the religion of Numa; and after the publication of the Twelve Tables, the Roman people was still enslaved by the ignorance of judicial proceedings. The treachery of some plebeian officers at length revealed the profitable mystery: in a more enlightened age, the legal actions were derided and observed; and the same antiquity which sanctified the practice, obliterated the use and meaning of this primitive language.

“A more liberal art was cultivated, however, by Cicero, the sage of Rome, who, in a stricter sense, may be considered as the authors of the civil law. The alteration of the idiom and manners of the Romans rendered the style of the Twelve Tables less familiar to each rising generation, and the doubtful passages were imperfectly explained by the study of legal antiquarians. To define the ambiguities, to circumscribe the latitude, to apply the principles, to extend the consequences, to reconcile the real or apparent contradictions, was a much nobler and more important task; and the province of legislation was silently invaded by the expounders of ancient statutes. Their subtle interpretations concurred with the equity of the praetor, to reform the tyranny of the darker ages: however strange or intricate the means, it was the aim of artificial jurisprudence to restore the simple dictates of nature and reason, and the skill of private citizens was usefully employed to undermine the public institutions of their country.

Justinian and the Codex Justinianus

Byzantine emperor Justinian I (ruled A.D. 527-565), also known as Justinian the Lawmaker, was famous for creating the first codified legal book, the “Institutes”, later known as the “Codex Justinianus 529" or simply “The Digest”. This legal textbook, which became the law of the land for almost 1000 years, was created with a hand-picked group of lawyers and synthesized from 2000 books of Roman law. Justinian gave us the word "justice." He was born into a peasant family in 482 and rose through the ranks with the help of his uncle. Justinian also changed the face of money by putting his likeness on one side of a coin and the image of Christ on the other. He made an effort to root out corruption and make law more understandable and accessible.

When the Roman empire moved to Byzantium (a Greek name) the official language of the empire was changed from Latin to Greek and Roman Law was condensed into the "Codex Justinianus 529", a document that defined the legal code in Europe through the Middle Ages. The Codex Justinianus (Latin for "The Code of Justinian") is one part of the Corpus Juris Civilis, the codification of Roman law ordered early in the 6th century AD by Justinian I, who was an Eastern Roman (Byzantine) emperor based in Constantinople. Two other units, the Digest and the Institutes, were created during his reign. The fourth part, the Novellae Constitutiones (New Constitutions, or Novels), was compiled unofficially after his death but is now thought of as part of the Corpus Juris Civilis [Source: Wikipedia]

Edward Gibbon wrote in the “Decline and Fall of the Roman Empire” “When Justinian ascended the throne, the reformation of the Roman jurisprudence was an arduous but indispensable task. In the space of ten centuries, the infinite variety of laws and legal opinions had filled many thousand volumes, which no fortune could purchase and no capacity could digest. [Source: Chapter XLIV: Idea Of The Roman Jurisprudence. Part IV, “Decline and Fall of the Roman Empire,” Vol. 4, by Edward Gibbon, 1788, sacred-texts.com]

Books could not easily be found; and the judges, poor in the midst of riches, were reduced to the exercise of their illiterate discretion. The subjects of the Greek provinces were ignorant of the language that disposed of their lives and properties; and the barbarous dialect of the Latins was imperfectly studied in the academies of Berytus and Constantinople. As an Illyrian soldier, that idiom was familiar to the infancy of Justinian; his youth had been instructed by the lessons of jurisprudence, and his Imperial choice selected the most learned civilians of the East, to labor with their sovereign in the work of reformation.

The theory of professors was assisted by the practice of advocates, and the experience of magistrates; and the whole undertaking was animated by the spirit of Tribonian. This extraordinary man, the object of so much praise and censure, was a native of Side in Pamphylia; and his genius, like that of Bacon, embraced, as his own, all the business and knowledge of the age. Tribonian composed, both in prose and verse, on a strange diversity of curious and abstruse subjects: a double panegyric of Justinian and the life of the philosopher Theodotus; the nature of happiness and the duties of government; Homer's catalogue and the four-and-twenty sorts of meter; the astronomical canon of Ptolemy; the changes of the months; the houses of the planets; and the harmonic system of the world.

Assembling the Codex Justinianus

Edward Gibbon wrote in the “Decline and Fall of the Roman Empire”: In the first year of his reign, Justinian directed the faithful Tribonian, and nine learned associates, to revise the ordinances of his predecessors, as they were contained, since the time of Adrian, in the Gregorian Hermogenian, and Theodosian codes; to purge the errors and contradictions, to retrench whatever was obsolete or superfluous, and to select the wise and salutary laws best adapted to the practice of the tribunals and the use of his subjects. The work was accomplished in fourteen months; and the twelve books or tables, which the new decemvirs produced, might be designed to imitate the labors of their Roman predecessors. [Source: Chapter XLIV: Idea Of The Roman Jurisprudence. Part IV, “Decline and Fall of the Roman Empire,” Vol. 4, by Edward Gibbon, 1788, sacred-texts.com]

The new Code of Justinian was honored with his name, and confirmed by his royal signature: authentic transcripts were multiplied by the pens of notaries and scribes; they were transmitted to the magistrates of the European, the Asiatic, and afterwards the African provinces; and the law of the empire was proclaimed on solemn festivals at the doors of churches. A more arduous operation was still behind to extract the spirit of jurisprudence from the decisions and conjectures, the questions and disputes, of the Roman civilians. Seventeen lawyers, with Tribonian at their head, were appointed by the emperor to exercise an absolute jurisdiction over the works of their predecessors. If they had obeyed his commands in ten years, Justinian would have been satisfied with their diligence; and the rapid composition of the Digest of Pandects, in three years, will deserve praise or censure, according to the merit of the execution.

From the library of Tribonian, they chose forty, the most eminent civilians of former times: two thousand treatises were comprised in an abridgment of fifty books; and it has been carefully recorded, that three millions of lines or sentences, were reduced, in this abstract, to the moderate number of one hundred and fifty thousand. The edition of this great work was delayed a month after that of the Institutes; and it seemed reasonable that the elements should precede the digest of the Roman law. As soon as the emperor had approved their labors, he ratified, by his legislative power, the speculations of these private citizens: their commentaries, on the twelve tables, the perpetual edict, the laws of the people, and the decrees of the senate, succeeded to the authority of the text; and the text was abandoned, as a useless, though venerable, relic of antiquity. The Code, the Pandects, and the Institutes, were declared to be the legitimate system of civil jurisprudence; they alone were admitted into the tribunals, and they alone were taught in the academies of Rome, Constantinople, and Berytus. Justinian addressed to the senate and provinces his eternal oracles; and his pride, under the mask of piety, ascribed the consummation of this great design to the support and inspiration of the Deity.

Corpus Iuris Civilis (Code of Civil Law)

The Corpus Juris (or Iuris) Civilis ("Body of Civil Law") is the modern name for a collection of fundamental works in jurisprudence, issued from A.D. 529 to 534 by order of Justinian I, Eastern Roman Emperor. It is also sometimes referred to as the Code of Justinian, although this name belongs more properly to the part titled Codex Justinianus. [Source: Wikipedia +]

The work as planned had three parts: 1) the Code (Codex) is a compilation, by selection and extraction, of imperial enactments to date; 2) the Digest or Pandects (the Latin title contains both Digesta and Pandectae) is an encyclopedia composed of mostly brief extracts from the writings of Roman jurists; and 3) the Institutes (Institutiones) is a student textbook, mainly introducing the Code, although it has important conceptual elements that are less developed in the Code or the Digest. All three parts, even the textbook, were given force of law. They were intended to be, together, the sole source of law; reference to any other source, including the original texts from which the Code and the Digest had been taken, was forbidden. Nonetheless, Justinian found himself having to enact further laws and today these are counted as a fourth part of the Corpus, the Novellae Constitutiones (Novels, literally New Laws).

Paul Halsall of Fordham University wrote: “Roman law developed as a mixture of laws, senatorial consults, imperial decrees, case law, and opinions issued by jurists. One of the most long lasting of Justinian's actions was the gathering of these materials in the A.D. 530s into a single collection, later known as the Corpus Iuris Civilis (Code of Civil Law). [Source: Medieval Sourcebook]

“The Corpus Iuris Civilis is of historical importance for a number of periods: first it illuminates the Roman society of the time the individual parts were first written; next it says a great deal about 6th century Byzantium both in the selection criteria, and in the laws made specifically by Justinian; and finally it was of tremendous importance in later Western Europe where it provided, after the 11th century, the basis for the development of both Church, or "canon" law and the civil law of most European countries except England.

“As a system of law based on principles, not case law, it was re-invigorated by Napoleon and in that form remains the basis of the legal system of most of continental Europe, as well as the former colonial dependencies of those European countries [including most of Africa, China, Latin America and Japan]. It is also the basis of law in Louisiana and Quebec. In fact the only legal systems that rival Roman law in usage are the Anglo-American "common law" tradition, and the Islamic Sharia.”

Roman Law of the West Versus Confucianism in the East

While the Romans and the Western cultures that followed put their trust in written laws, Confucius and his disciplines and Eastern cultures that followed distrusted written laws and put their trust in people and innate human goodness. The Confusions developed a code of conduct that defined how human beings interacted. This code of conduct was the basis of civil society rather than a written set of laws.

Even today the concept of written laws and written contacts is fairly weak in China and the nations of the East. The 20th-century Chinese historian Hsiao Kung-chuan wrote that if the early Chinese emperors had been exposed to Roman law "the Chinese of necessity would have undergone an absolutely different course of development in the thousand or more years thereafter."

Roman Law and the Rights of St. Paul

The Romans established Mirnada-like laws to protects the rights of accused criminals. One of the most famous individuals to invoke these laws for his protection was the Apostle Paul. Chapter 22 of Acts, described how Paul was charged by a Roman magistrate for the crime of something similar to inciting a riot. Just as he was about to be carted away to jail, he told authorities he was a Roman citizen, which means that was allowed to remain free pending a trial.

After the chief priest of Jerusalem complained to the Roman governor Festus that Paul was still running loose, Festus replied in Chapter 25 of Acts: "It's not the Roman custom to hand over any man before he has faced his accusers and has had the opportunity to defend himself against their charges." Paul later won his freedom for a couple of years by invoking his legal right to have his trial in Rome. Paul finally ended up in Rome, but the Book of Acts ends without saying anything about the final outcome of the case. Some Christians contend he was crucified or fed to the lions by Nero, but scholars believe that the charges were likely dropped because there are no other records of the case.

Image Sources: Wikimedia Commons

Text Sources: Internet Ancient History Sourcebook: Rome sourcebooks.fordham.edu ; Internet Ancient History Sourcebook: Late Antiquity sourcebooks.fordham.edu ; “Outlines of Roman History” by William C. Morey, Ph.D., D.C.L. New York, American Book Company (1901) ; “The Private Life of the Romans” by Harold Whetstone Johnston, Revised by Mary Johnston, Scott, Foresman and Company (1903, 1932); BBC Ancient Rome bbc.co.uk/history/ ; Project Gutenberg gutenberg.org ; Metropolitan Museum of Art, National Geographic, Smithsonian magazine, New York Times, Washington Post, Los Angeles Times, Live Science, Discover magazine, Archaeology magazine, Reuters, Associated Press, The Guardian, AFP, The New Yorker, Wikipedia, Encyclopædia Britannica, Encyclopedia.com and various other books, websites and publications.

Last updated November 2024