The Problem: Roman Law is probably the single greatest and most enduring contribution the Romans made to the western tradition and to world history. Indeed, it is so pervasive and ingrained in our civic culture that we hardly recognize it beyond the occasional Latin expression (e.g., habeas corpus, or today's 'habemus papam'). Yet Roman legal institutions affect every element of our daily life from the commercial to the penal, from constitutional to didactic. The influence is not only to be found in specific laws, but also in the underlying legal theory.

For this course it is especially important to bear in mind that the advantages of living under Roman law were considerable and explain in part why the peoples of the western and eastern Mediterranean opted to live in Roman Empire and to consider them selves to be Roman.

Here we will examine

Critical Texts on Roman Law.

  1. General Introduction
    1. Pre-Roman forms / sources of law
      1. God given or divinely inspired.
      2. Administrative practices [in Oregon the OAR] and laws of a ruler or of a community; also the established customs of ancestors; 'unwritten' constitution [lobbists, role of parties in elections]. Not necessarily collected systematically; but may rely on 'tradition'.
      3. Extra legal conventions governing behavior devised by humans for benefit of humans. E.g., patronage, hospitality, courtesy, conventions.

      The difference between these three is subtle, and there is considerable overlap.

    2. Intellectual Revolution in Greece
      1. Universe is a natural whole with unchanging ways [patterns or even laws] of its own, ways which man can come to know [Kepler, Newton, Hooke, Boyle, etc.];
      2. Conventions pose a major problem...societies vary, methods of burial (eat or burn).
      3. It was evident to Greeks that gods do not even punish violators of their own laws (a perjurer); moreover, expediency and justice are often in conflict. NOTE: Skepticism about the 'god given' yet elements, hospitality for example and others are 'endowed by their creator' with sacred status, quod sanctissimum est
      4. Nonetheless, the statesman recognizes the consequences of the breakdown of law and tries to enforce / uphold the law. Because the descent into lawlessness is so destructive, it is rational to obey the laws even if doing so sometimes appears unjust, or yields an unjust outcome.
      5. The dilemma that all societies face: it may be rational to obey the laws, but it is also clear that not all laws are rational.
  2. Roman Law -its general significance. Generally acknowledged as one of the most important developments of ancient world; often the least studiedin a courses in Classics Departments. In reference to former, why?
    1. It is a systematic, consistent and all-encompassing legal structure
    2. It transcended its cultural idiosyncrasies.
    3. It focuses on the procedural means to a just solution; and not on the realization of a utopia. E vs. e.
  3. Divisions
    1. Fas: not simply religious law, but those precepts of a religious or moral character which were informed by priestly authority
    2. Ius:
      1. The procedural means to establish domestic peace
      2. The rightful power of a human being to act with reference to another; that which is due [obligation] in human relations; that which is capable of enforcement with the approval of those responsible for the preservation of legal principles governing the life of the community...here a paraphrase what is in many Roman laws.
      3. A set of principles devised to make possible a just solution to problems posed by the clash of conflicting interests
    3. Administrative or constitutional law: The powers and responsibilities of magistrates, of citizens and of the state [I.A.2 above]. Major Roman contribution
      1. Checks and balances: veto and 'collegiality' => consensus on policy matters through compromise.
      2. princeps super legibus, imperium maius; prince as source of law.
    4. Criminal Law. In general Roman law, in terms of penalties, became more humane than any other pre-modern system.
    5. Private Law: rights and claims and procedural remedies. It was in this field that the Romans made their most enduring contribution. Categories of: property, persons, obligations/contracts and actions.
  4. Historical Development
    1. the XII Tables of ca. 450 B.C. (only compilation through Justinian)
    2. Evolution of law
      1. interpretatio iuris
        1. analogy
        2. using literal language to obtain a result quite different from that intended (manumission of slave applied to allow son independence to accept an inheritance)
      2. ius honorarium: discretionary authority of magistrate
        1. standardization of governing edict
        2. praetor peregrinus and ius naturalis. Sensitivity to procedures that might be viewed as valid by all societies.
  5. General Methodology:
    1. Importance of formalities. Justice possible only with just procedures
    2. Roman judges, courts always operated from the specific incident to the general principle. Jurists began to seek logical connections in discreet and individual events for the purpose of definition and classification (e.g., 'possession' and 'theft'). The logical connections, the formulation thereof, are then tested against further individual events and the formulation modified. Similar to the method of science [phainomena to eudoxa].
  6. In sum: Roman law has exerted a powerful influence on contemporary law for several reasons:
    1. It does not have a conception of end-state justice, a vision of what the social order should be; it is rather concerned to define procedures that increase the probability of a just outcome
    2. It transcends the idiosyncrasies of national legal systems articulating what is just for all humanity. The principles and procedures are constantly tested against individual events and re-formulated when necessary.
    3. For our issues in this course: Roman law offered a more attractive alternative to trial by ordeal or other ways to determine the truth.
    4. The success of the Romans at fashioning their legal system explains:
      1. why urbanized and non-urbanized people of the ancient world adopted Roman culture
      2. why Roman law exerted such a powerful influence on the development of trade and commerce after 1500. enforceable nowhere it ruled not for the reason of the Empire, but for the Empire of reason. Specifically, some choice quotes from Cicero and the Jurists:
        1. What concerns all shall be decided by all.
        2. Liberty is the natural faculty of man to do what one wants unless prohibited by force or law.
        3. Cicero Nothing is certainly more ennobling than for us to understand plainly that we are born to justice, and that law is instituted not by convention but by nature. If the fortunes of all cannot be equal, if the mental capacities of all cannot be the same, at least the legal rights of all those who are citizens of the same state ought to be equal.

No one can claim that the Romans represent the epitome of humanitarian altruism or that their behavior would not offend modern sensibilities, but what they did do was to articulate and implement an effective model for justice and civilization, one that not only served the immediate needs of Roman citizens, but ultimately has defined the ideals citizenship and of good government everywhere.