Roman law Totally Explained

Using the term Roman law in a broader sense, one may say that Roman law isn't only the legal system of ancient Rome but the law that was applied throughout most of Europe until the end of the 18th century. In some countries like Germany the practical application of Roman law lasted even longer. For these reasons, many modern civil law systems in Europe and elsewhere are heavily influenced by Roman law. This is especially true in the field of private law. Even the English and North American Common law owes some debt to Roman law although Roman law exercised much less influence on the English legal system than on the legal systems of the continent. The influence of Roman law is shown by the wealth of legal terminology, retained by all legal systems, like stare decisis, culpa in contrahendo or pacta sunt servanda.

Development of Roman law

Origins

Roman Law begins with the Law of the XII Tables, the first important piece of legislation in the early Republic, dating from the middle of the 5th century BC. According to Roman historians, the plebeian tribune C. Terentilius Arsa proposed that the law should be written down in order to prevent it from being applied discriminatingly by the patrician magistrates. After 8 years of struggle the plebeians convinced the patricians to send a delegation to Athens to copy out the Laws of Solon. In addition, various delegations were sent to other cities in Greece in order to find about their legislations. The influence is visible even in the law of persons or of the family, which is traditionally the part of the law that changes least. For example Constantine started putting restrictions on the ancient Roman concept of patria potestas, by acknowledging that persons in potestate could have proprietary rights. He was apparently making concessions to the much stricter concept of paternal authority under Greek-Hellenistic law. Later emperors went even further, until Justinian finally decreed that a child in potestate became owner of everything it acquired, except when it acquired something from its father. In the Byzantine Empire, the codes of Justinian became the basis of legal practice. Leo III the Isaurian issued a new code, the Ecloga, in the early 8th century. In the 9th century, the emperors Basil I and Leo VI the Wise commissioned a combined translation of the Code and the Digest into Greek, which became known as the Basilica. Roman law as preserved in the codes of Justinian and in the Basilica remained the basis of legal practice in Greece and in the courts of the Eastern Orthodox Church even after the fall of the Byzantine empire and the conquest by the Turks.

Roman law in the West

In the west, Justinian's authority didn't go farther than certain portions of the Italian and Hispanic peninsulas. Law codes were edicted by the Germanic kings, however, the influence of earlier Eastern Roman codes on some of these is quite discernible. In many cases, ethnic Roman citizens continued to be governed by Roman laws for quite some time, even while members of the various Germanic tribes were governed by their own respective codes. The Code and the Institutes themselves were known in Western Europe (though they'd little influence on legal practice in the early Middle Ages), but the Digest was largely ignored for several centuries. Around 1070, a manuscript of the Digest was rediscovered in Italy. This was done mainly through the works of glossars who wrote their comments between lines (glossa interlinearis), or in the form of marginal notes (glossa marginalis). From that time, scholars began to study the ancient Roman legal texts, and to teach others what they learned from their studies. The center of these studies was Bologna. The law school there gradually developed into one of Europe’s first universities.
   The students, who were taught Roman law in Bologna (and later in many other places) found that many rules of Roman law were better suited to regulate complex economic transactions than the customary rules, which were applicable throughout Europe. For this reason, Roman law, or at least some provisions borrowed from it, began to be re-introduced into legal practice, centuries after the end of the Roman empire. This process was actively supported by many kings and princes who employed university-trained jurists as counselors and court officials and sought to benefit from rules like the famous Princeps legibus solutus est (The sovereign isn't bound by the laws).
   There have been several reasons why Roman law was favored in the Middle Ages. It was because Roman law regulated the legal protection of property and the equality of legal subjects and their wills, and because it prescribed the possibility that the legal subjects could dispose their property through testament.
   By the middle of the 16th century, the rediscovered Roman law dominated the legal practice in most European countries. A legal system, in which Roman law was mixed with elements of canon law and of Germanic custom, especially feudal law, had emerged. This legal system, which was common to all of continental Europe (and Scotland) was known as Ius Commune. This Ius Commune and the legal systems based on it are usually referred to as civil law in English-speaking countries.
   Only England didn't take part in the wholesale reception of Roman law. One reason for this is that the English legal system was more developed than its continental counterparts by the time Roman law was rediscovered. Therefore, the practical advantages of Roman law were less obvious to English practitioners than to continental lawyers. As a result, the English system of common law developed in parallel to Roman-based civil law, with its practitioners being trained at the Inns of Court in London rather than receiving degrees in Canon or Civil Law at the Universities of Oxford or Cambridge. Elements of Romano-canon law were present in England in the ecclesiastical courts and, less directly, through the development of the equity system. In addition, some concepts from Roman law made their way into the common law. Especially in the early 19th century, English lawyers and judges were willing to borrow rules and ideas from continental jurists and directly from Roman law.
   The practical application of Roman law and the era of the European Ius Commune came to an end, when national codifications were made. In 1804, the French civil code came into force. In the course of the 19th century, many European states either adopted the French model or drafted their own codes. In Germany, the political situation made the creation of a national code of laws impossible. From the 17th century Roman law, in Germany, had been heavily influenced by domestic (common) law, and it was called usus modernus Pandectarum. In some parts of Germany, Roman law continued to be applied until the German civil code (Bürgerliches Gesetzbuch,BGB) came into force in 1900.

Roman law today

Today, Roman law is no longer applied in legal practice, even though the legal systems of some states like South Africa and San Marino are still based on the old Ius Commune. However, even where the legal practice is based on a code, many rules deriving from Roman law apply: No code completely broke with the Roman tradition. Rather, the provisions of Roman law were fitted into a more coherent system and expressed in the national language. For this reason, knowledge of Roman law is indispensable to understand the legal systems of today. Thus, Roman law is often still a mandatory subject for law students in civil law jurisdictions.
As steps towards a unification of the private law in the member states of the European Union are being taken, the old Ius Commune, which was the common basis of legal practice everywhere, but allowed for many local variants, is seen by many as a model.

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