Roman Law (PART I)

Introduction

Dear readers, this is the first part of the series on Roman Law. This week's post summarises the spread or Roman Law and takes a look at the sources of Roman Law in the archaic period of the Roman Empire. Background knowledge of Roman history is definitely recommended and will enhance the experience.

• The Civil Law (codified law) tradition, that exists in most major European States to this day, dates back to the Roman Empire. Moreover the Civil Law traditions of Latin America, Continental Europe and even a number of Asian and African states were influenced by the same source.

• The Roman Law traditions are also seen, to a lesser extent, in Common Law (law based on precedence/previous cases) development ( in e.g. the UK).

The Spread of the Roman Law

Phase I

• Roman Law traditions begin with the founding of Rome in 583 B.C.

• The Roman Law tradition was first largely codified by Emperor Justinian I in Corpus Juris Civilis (529-534 A.D.)

Phase II

• We consider the development, as well as the rediscovery, of the Roman Law across Western Europe to be the 2nd phase of the spread of Roman Law.

• This is when Roman Law started to heavily influence the development of the Civil Law tradition (we see to this day), Ancient Germanic Custom and Canon Law (regulations issued by an ecclesial/religious authority) from the Catholic Church.

The Sources of Roman Law

1. In the archaic period

Custom

The Roman Law was almost entirely customary in origin. At its roots it was not codified, only later, when it became subject to authoritative interpretation by pontiffs (judges in religious matters during the Roman Republic) and jurists, did they start writing it down properly. Customary Roman Law was important even before the Twelve Tables in 451 B.C.

Royal Decrees

We consider the decrees of Kings, which had direct binding force as law, to be one of the forms of primitive legislation. Sometimes they were issued in substantial numbers, e.g. during the reigns of Romulus and Servius Tullius, other times there were periods with no royal decrees. The decrees were largely concerned with religion, for example, no funeral rites were to be performed for a person struck by lightning – it was presumed that Jupiter, the chief god, had killed him. The decrees were mainly Prescriptive or condemnatory. The prescriptive laws prescribed ‘correct’ behaviour (e.g. Numa is said to have decreed that no one should sprinkle wine on a funeral pyre –a pile of wood on which a corpse is burnt as part of a funeral ceremony). The condemnatory laws laid down severe penalties.

"These penalties sometimes consisted of self-help or private redress against the wrongdoer, e.g. retaliation (talio) was allowed in some circumstances as satisfaction for certain types of personal injury. The most serious wrongs were punished by more public forms of sanction, including ritual execution. One such offence, parricidium ( killing one's ascendants), was regarded as a heinous crime and was punished in a horrific manner."

P.J.du Plessis, Borkowski's Textbook on Roman Law (Oxford University Press 2015)

In the next part, we'll examine the source of law in the Roman Republic and the Empire itself.

* Please note that at no point in this blog am I providing legal advice or claiming to be a professional. These blogs are for entertainment and educational purposes only.*