Definition of Roman Law
The term “Roman law” is commonly used in a variety of senses. Most literally, it refers simply to the law that regulated aspects of the lives of the citizens of ancient Rome.
In this historical sense, Roman law was of course not something that remained always the same over time and place. It was an evolving tradition of substantive rules, legal procedure, and implicit or explicit policy goals. Two sets of events are commonly, even if somewhat arbitrarily, taken to mark the historical bookends of this tradition in antiquity. At the beginning of the tradition is the publication in written form of a body of customary rules and procedures that collectively constitute the “Law of the Twelve Tables” (“tables” being a translation of Latin tabulae, referring to large panels upon which the laws were said to have been inscribed originally). According to tradition, this publication (actually a two- step process involving first ten tables and then two more) took place in 450 bce, a time when Rome itself was scarcely more than a moderately sized town with a river port and surrounding agricultural land. Jumping ahead nearly 1,000 years, we come to the other bookend: the summative revision and restatement of Roman law that was promulgated between 529 and 534 ce in Constantinople at the command of the emperor Justinian. The intervening millennium witnessed the growth and decline of an empire that, at its apogee in the early second century ce, encompassed a territory of over 2 million square miles, within which there lived a population of perhaps 60 millions. In terms of legal development, the same millennium was marked by (1) the passage of thousands of legislative enactments—initially and quite sparingly by the assemblies of the Roman Republic, later and more frequently by a long line of Roman emperors; (2) the emergence and refinement of a body of procedural law within the competence of judicial magistrates—especially the Urban and Peregrine Praetors of the later Roman Republic and early Empire; and (3) the production of a professional legal literature in the forms of learned commentary to statutory and edictal law, responsa to particular cases (both actual and hypothetical), and pedagogical treatises. Notwithstanding this rich history, the essential unity of the Roman legal tradition can be documented by the fact that various provisions of the Twelve Tables could still be cited as valid law in the Justinianic restatement.Our knowledge of ancient Roman law is drawn from numerous sources that survive from antiquity, but by far the most important of them are the Justinianic enactments referred to in the previous paragraph. In the European middle ages, this Justinianic legislation came to be called collectively the Corpus Juris Civilis, or Body of (Roman) Civil Law. The Corpus Juris is important not only because of what it contains, but even more because of the profound influence of that content on the legal and political traditions of Europe and of those states around the globe that have inherited, adopted, or otherwise developed legal and political systems that are rooted in those same traditions. The influence of the Corpus Juris accounts for a second sense in which the term “Roman law” is commonly used: i.e., to refer to the direct and/or indirect legacy of Roman legal thought in modern legal systems and their historical precursors. Many of the national legal systems in the world today, including the modern regime of public international law, have been built on the Roman legacy. Modern systems that are generically called “civilian” or “civil law” systems ultimately take that epithet from their historical indebtedness to the Roman civil law in this second sense. Beginning in the high middle ages and gathering momentum through the early modern period, Roman law in this second sense came to constitute the ius commune (“common law”) of continental Europe. In some areas the ius commune served to provide a rich source of rules and procedures where local customary law was deemed to be deficient or silent. In others it provided the foundation and framework for productive new streams of positive law. In still other jurisdictions, the ius commune was adopted wholesale as the operative system of law.
As Barry Nicholas observed: “[This] astonishing second life of Roman law gave to almost the whole of Europe a common stock of legal ideas, a common grammar of legal thought, and, to a varying but considerable extent, a common mass of legal rules.”[2]Over the past two centuries, the enactment of national legal codes in most civil law countries has mostly brought to an end the continuing influence of the Corpus Juris as a living source of law. However, since these national codes were themselves drafted within the tradition of the ius commune, Roman concepts and doctrines are still very much alive in derivative forms. The European civil codes, in turn, have provided models for national codes in many other parts of the globe. Indeed to a significant degree the modern codes can be seen as the current embodiments of a “third life” for Roman law.
Apart from the civil law systems, the largest family of legal systems in the world today is comprised of those based on the “English common law,” a term not to be confused with the continental ius commune. Members of this family include, of course, the common law of the United States and of each of its member states except Louisiana. Historically, the English common law first takes recognizable shape with the establishment of crown courts and their distinctive writ procedure in the reign of Henry II (1154-1189). This was the very period when formal study of, and training in, texts of the Corpus Juris had begun in earnest in Bologna and elsewhere, including the emerging university of Oxford. Parallel developments were also occurring in the context of canon law, which in conceptual structure and procedure was cognate with the Roman civil law. Both the Romano-canon law and Roman civil law stood in marked contrast to the distinctive common law system of writ procedure and royal courts; yet despite their differences, the influence of the new (Roman) learning is readily detectable even in the earliest treatises of the English common law.[3] By the Tudor period (1485-1603), however, the continental ius commune had come to be seen by English common lawyers as an alien legal tradition,[4] a view that hardened into orthodoxy in the 16th and 17th centuries, when the putative purity of the common law was identified with belief in a customary English constitution of immemorial antiquity.[5] Especially through the influential writings of Sir Edward Coke (d.
1634), belief in English exceptionalism and arguments based upon it would come to play an important role in the growing political and legal struggle between parliament and crown. This then gives us a third connotation that “Roman law” sometimes carries: i.e., a legal tradition that is presumptively alien to the Anglo-American common law. The reality, however, is more nuanced.There can be no denying that the ius commune and continental jurisprudence have played substantial roles in the development of English and American law. Historically, the common law was primarily a law of procedure, and from an early period the continental ius commune often played a supplementary role in shaping the common law's substantive content. It is well known, for example, that English equity jurisprudence from its inception was heavily indebted both procedurally and doctrinally to the ius commune. The common law of wills and probate was largely derived from canon law. The law of admiralty is a civil law importation. The common law of tort and contract has borrowed fundamental distinctions and concepts from the Roman law of obligations, and in numerous judicial decisions over the centuries a civilian rule or doctrine has been used as a foil to sharpen or articulate a corresponding common law principle. As stated by Justice Blackburn in the celebrated case of Taylor v. Caldwell, 122 E. R. 309 (Q.B. 1863) at 314: “Although the Civil law is not of itself authority in an English Court, it affords great assistance in investigating the principles on which the law is grounded.”
Turning more specifically to the law of property, one can readily see, despite the common law's still recognizable origin in feudal tenures, the massive influence of Roman law. For example, the law of easements and equitable servitudes is largely derived from Roman doctrine. So too are the concepts of prescription through adverse possession, of original and derivative possession, indeed of possession versus ownership, of real property versus chattel, of accession, specification, confusion, first occupation, abandonment, treasure trove, and many others.
Quite apart from the continuing presence of Roman concepts and rules in both the civilian and common law traditions today, Roman property law is a subject of particular historical interest because of the role that Roman ideas about property have played in the political and intellectual history of the West.
Justinian stated that the precepts of law in general were three: “to live honorably and honestly; to cause no harm to the other, and to give each person his or her due.”[6] Broadly speaking, however, the first two of these propositions can be subsumed in the third, and at the heart of the third is the Roman notion of strong personal rights in private property. Arguably the legacy of that notion has defined much of the agenda and shaped much of the discourse of Western political philosophy since Roman times.