Characteristics of Roman Law in Antiquity Essential for its Survival

Even these few examples illustrate a number of characteristics of Roman law that were to be essential for the development of the law in Europe:

(i)     It constituted a highly developed jurisprudence, a specific branch of knowledge developed and sustained by lawyers.

(ii)    Closely related with it was what Fritz Schulz referred to as the isolation⁷⁹ of law vis-à-vis religion, morality, politics, and economics: the separation of law from non-law.

(iii)   That, in turn, entailed a strong emphasis on private law (and civil procedure); criminal law and the administration of the state on the other hand appear to have been regarded by the Roman lawyers as not being subject to specifically legal criteria.

(iv)   Roman private law was very largely ‘lawyers’ law’ or ‘Juristenrecht’: it was not laid down in a systematic and com­prehensive enactment, but was instead applied and developed by lawyers with great practical experience.⁸⁰

size=1 color=black face="Book Antiqua">(v)    That explains, on the one hand, the great realism of Roman law and its focus on practical problems rather than abstract theory. On the other hand, it also explains the many con­troversies that tended to envelop the resolution of legal problems.

(vi)   These controversies were an expression and a sign of the inherent dynamic of Roman law.

(vii) Reference just to ‘Roman law’ is therefore imprecise. Even the Roman law of classical antiquity constituted a tradition and was based on a discussion of legal problems spanning many generations of jurists. Here is a typical example:⁸² In D. 24.3.66 pr. Justinian preserved a text byJavolenus⁸³ written at the turn from the early to the high classical period. It is taken from a work that constitutes a revision of the posthumous works of Marcus Antistius Labeo (a contemporary of Emperor Augustus)⁸⁴ and contains a rule according to which a husband is responsible for fault (dolus and culpa) with regard to property that he has received as a dowry. In support of that rule reference is made to the most prominent jurist of the pre- classical period, Servius Sulpicius Rufus.⁸⁵ Servius, in turn, had taken up the decision of a specific legal dispute by Publius Mucius Scaevola.⁸ That dispute concerned the dowry of Licinnia, wife of Gaius Sempronius Gracchus, who had peri­shed in the turmoils unleashed by the agrarian reforms master­minded by Gracchus.

(viii) Roman law, therefore, was extraordinarily complex. It was largely casuistic in nature. It was developed over many cen­turies and thus constituted a tradition. It was recorded in an abundant literature.⁸⁷ And it rested on two conceptually and historically separate foundations: the ius civile - that is, the traditional core of legal rules applying to a Roman citizen; and a ius honorarium - one might call it Equity - that had been introduced by the praetors in the public interest in order to assist, supplement, and correct the traditional civil law.⁸⁸

(ix)   Nonetheless, Roman law was not an impenetrable jungle of detail.

(x)    Another characteristic of Roman jurisprudence that contrib­uted to making it such a fertile object of legal analysis was the fact that reasons for the decisions arrived at were either not given at all, or only hinted at.⁹¹

Roman case law is therefore particularly rich in tacit assumptions and presuppositions that can be, and have to be, unravelled by a process of interpretation. Again, an example may illustrate the point. In Marcianus D. 18.1.44 we find the following brief text: Si duos quis servos emerit pariter uno pretio, quorum alter ante venditionem mortuus est, neque in vivo constat emptio. Two slaves have been sold for one price. It subsequently turned out that, at the time when the contract was concluded, one of the slaves had already died. Its delivery could thus no longer be demanded, and the contract, as it stood, was invalid. The authors of the ius commune based that on the rule impossibilium nulla obligatio (there is no obligation concerning the impossible).⁹² But can the purchaser request delivery of the second slave? Here we are faced with the problem of partial invalidity of legal transactions. From the time of the Glossators, the general rule was taken to be utile per inutile non vitiatur:⁹³ the ‘useful’ part of the transaction is not affected by the invalidity of part ofit: it remains in force. That rule was taken from a fragment by Ulpian⁹⁴ who, however, had not intended to provide a general rule but had merely solved an individual case.

Marcianus’ decision in D. 18.1.44 demonstrates that utile per inutile non vitiatur cannot have been recognized in Roman law as a general rule, for the contract is held to be invalid with regard to the second slave too. That may be related to the fact that the price for just one of the slaves was neither determined nor determinable with any degree of certainty. One of the requirements for the validity of a Roman contract of sale (pretium certum) was thus lacking.⁹⁵

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