Roman Law

Roman Law

Introduction to Roman Law

Roman Law, in general usage, legal system developed by the Romans from the time of their first codification of law, known as the Law of the Twelve Tables (see Twelve Tables, Law of the), in 450 bc to the death of Justinian I, ruler of the Byzantine Empire, in ad 565. Specifically, the term designates the codification of law known as the Corpus Juris Civilis, also called the Justinian Code, made under the auspices of Justinian, that forms the basis of the civil law of many continental European countries.” (1)

The Legal History of Roman Law

The classical age of Roman law

By the year 200 Roman jurisprudence had reached its zenith. Papinian was slain in 212, Ulpian in 228. Ulpian’s pupil Modes-tinus may be accounted the last of the great lawyers.6 All too soon they became classical; their successors were looking backwards, not forwards. Of the work that had been done it were folly here to speak, but the law of a little town had become ecumenical law, law alike for cultured Greece and for wild Britain. And yet, though it had assimilated new matter and new ideas, it had always preserved its tough identity. In the year 200 six centuries and a half of definite legal history, if we measure only from the Twelve Tables, were consciously summed up in the living and growing body of the law.

Source: Sir Frederick Pollock, The History of English Law before the Time of Edward I (1895)

Roman Citizenship and Latinitas

See the main entry of this legal history topic.

Roman Law between 753-27 BCE

See the main entry of this legal history topic.

Roman Law between 27 BCE-250 CE

See the main entry of this legal history topic.

Roman Law between 250-527 CE

Decline of Roman law

The decline was rapid. Long before the year 300 jurisprudence, the one science of the Romans, was stricken with sterility; it was sharing the fate of art.13 Its eyes were turned backwards to the departed great. The constitutions of the emperors now appeared as the only active source of law. They were a disordered mass, to be collected rather than digested. Collections of them were being unofficially made: the Codex Gregorianus, the Codex Hermogenianus. These have perished; they were made, some say, in the Orient.14 The shifting eastward of the imperial centre and the tendency of the world to fall into two halves were not for the good of the West. Under one title and another, as coloni, laeti, gentiles, large bodies of untamed Germans were taking up their abode within the limit of the empire. The Roman armies were becoming barbarous hosts. Constantine owed his crown to an Alamannian king.

Roman Law in the Age of Justinian

In legal history the sixth century is the century of Justinian. But, in the west of Europe this age appears as his, only if we take into account what was then a remote future. How powerless he was to legislate for many of the lands and races whence he drew his grandiose titles— Alamannicus, Gothicus, Francicus and the rest—we shall see if we inquire who else had been publishing laws. The barbarians [9] had been writing down their customs. The barbarian kings had been issuing law-books for their Roman subjects. Books of ecclesiastical law, of conciliar and papal law, were being compiled.

Roman Law in Historiography

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Roman Law and English Common Law

As to the Roman, or more properly Romanic, element in our English law, this also is a matter which requires careful distinction. It has been maintained at various times, and sometimes with great ingenuity, that Roman institutions persisted after Britain was abandoned by the Roman power, and survived the Teutonic invasions in such force as to contribute in material quantity to the formation of our laws. But there is no real evidence of this. Whether the invaders may not have learnt something in the arts of peace and war from those whom they were conquering, something of strategy, architecture, agriculture, is not here the question. We speak of law, and within the sphere of law everything that is Roman or Romanized can be accounted for by later importation. We know that the language and the religion of Rome were effaced. Roman Christianity had to make a fresh conquest of the English kingdom almost as if the British Church had never existed. The remnant of that Church stood aloof, and it would seem that Augustine did not think it entitled to much conciliation, either by its merits or by its importance.

It is difficult to believe that civil institutions remained continuous in a country where the discontinuity of ecclesiastical affairs is so pointedly marked, and in an age when the Church was far more stable and compact than any civil institution whatever. And, in point of fact, there is no trace of the laws and jurisprudence of imperial Rome, as distinct from the precepts and traditions of the Roman Church, in the earliest Anglo-Saxon documents. Whatever is Roman in them is ecclesiastical. The danger of arguing in these matters from a mere enumeration of coincidences has already been pointed out with reference to the attempt, in our opinion a substantially [xliii] similar one, to attribute English law to a Celtic origin. This inroad of the Roman ecclesiastical tradition, in other words, of the system which in course of time was organized as the Canon Law, was the first and by no means the least important of the Roman invasions, if we may so call them, of our Germanic polity. We need not doubt the statement that English princes began to collect their customary laws in writing after the Roman example made known to them by Augustine and his successors.

Somewhat later the intercourse of English princes with the Frankish court brought in a fresh accession of continental learning and continental forms, in the hands of clerks indeed, but applicable to secular affairs. In this way the Roman materials assimilated or imitated by the Franks easily found their way into England at a second remove. Many, perhaps most, of the facts that have been alleged to show the persistence of Roman institutions in Britain are really of this kind. Such are for example the forms and phrases of the Latin charters or land-books that we find in the Codex Diplomaticus. A difficult question indeed is raised by these continental materials on their own ground, namely, what proportion of Germanic and Franco-Gallic usages is of Roman origin, and how far those parts that are Roman are to be ascribed to a continuous life of Roman institutions and habits in the outlying provinces of the empire, more especially in Gaul. Merovingian Gaul has been, and for a long time to come is likely to be, the battle-field of scholars, some of whom can see little that is Roman, some little that is Germanic. Interesting as these problems are, they do not fall within our present scope.

A further importation of more sudden and masterful fashion came with the Norman Conquest. Not only had the Normans learnt a Romance tongue, but the dukes of Normandy had adopted [xliv] the official machinery of Frankish or French government, including of course whatever Roman elements had been taken up by the Franks. Here, again, a remoter field of inquiry lies open, on which we do not adventure ourselves. It is enough to say, at present, that institutions which have now-a-days the most homely and English appearance may nevertheless be ultimately connected, through the customs of Normandy, with the system of government elaborated in the latter centuries of the Roman Empire. The fact that this kind of Romanic influence operated chiefly in matters of procedure does not make it the less important, for procedure is the life of ancient law. But this, it need hardly be remarked, is a very different matter from a continuous persistence of unadulterated Roman elements. It may be possible to trace a chain of slender but unbroken links from the court of our William or Henry to that of Diocletian or Constantine. Such a chain, however, is by no means strengthened by the fact that Papinian was once at York, as it would in no way be weakened if that fact could be discredited.

Soon after the Norman Conquest a new and a different wave of Roman influence began to flow. The first ripple of it reached our shore when Lanfranc the lawyer of Pavia became the Conqueror’s trusted adviser. In the middle of the next century it was streaming outwards from Bologna in full flood. Hitherto we have been speaking of a survival of Roman law in institutions and habits and customs; what we have now before us is of another kind, a scholarly revival of the classical Roman law that is to be found in Justinian’s books. Of this we have spoken at some length in various parts of our work. For about a century—let us say between 1150 and 1250— this tide was shaping and modifying our English law; and we have tried to keep before the eyes of our readers the question—to our mind one of the central questions of English history—why the rapid and, to a first glance, overwhelming flow of Romanic learning was followed in this country by an equally rapid ebb.

At a later time yet other Roman elements began to make their way into our system through the equity administered by the chancellor. But of these we shall not speak in this book, for we shall not here bring down the story of our law beyond the time when Edward [xlv] I. began his memorable reforms. Our reason for stopping at that moment we can give in a few words. So continuous has been our English legal life during the last six centuries, that the law of the later middle ages has never been forgotten among us. It has never passed utterly outside the cognizance of our courts and our practising lawyers. We have never had to disinter and reconstruct it in that laborious and tentative manner in which German historians of the present day have disinterred and reconstructed the law of medieval Germany. It has never been obliterated by a wholesale “reception” of Roman law. Blackstone, in order that he might expound the working law of his own day in an intelligible fashion, was forced at every turn to take back his readers to the middle ages, and even now, after all our reforms, our courts are still from time to time compelled to construe statutes of Edward I.’s day, and, were Parliament to repeal some of those statutes and provide no substitute, the whole edifice of our land law would fall down with a crash.

Therefore a tradition, which is in the main a sound and truthful tradition, has been maintained about so much of English legal history as lies on this side of the reign of Edward I. We may find it in Blackstone; we may find it in Reeves; we may find many portions of it in various practical text-books. We are beginning to discover that it is not all true; at many points it has of late been corrected. Its besetting sin is that of antedating the emergence of modern ideas. That is a fault into which every professional tradition is wont to fall. But in the main it is truthful. To this must be added that as regards the materials for this part of our history we stand very much where Blackstone stood. This we write to our shame. The first and indispensable preliminary to a better legal history than we have of the later middle ages is a new, a complete, a tolerable edition of the Year Books. They should be our glory, for no other country has anything like them: they are our disgrace, for no other country would have so neglected them.

Source: Sir Frederick Pollock, The History of English Law before the Time of Edward I (1895)

England, Roman Law

From the book The Clergyman’s Hand-book of Law, about England, Roman Law (1): On account of England’s being subject to Rome in its earliest age, and afterward because of its being conquered by France, the Roman law was pretty thoroughly intermixed with the native English law in the minor matters of the people, and governed in the more important ones.19

Historical Developments of Sources of Law and Law Making Institutions from the XII Tables to the Classical Period of Roman Law

  • The Praetor
  • Legislative Bodies and Forms of Legislation
  • “Juris-Prudentia”: “Knowledge of the Law”: Doctrine
  • Roman Law

    Embracing mainstream international law, this section on roman law explores the context, history and effect of the area of the law covered here.

    Resources

    See Also

    • Civil Code History
    • Codification History
    • Historical Developments
    • Sources Of Law
    • Law Making Institutions

    Resources

    Further Reading

    • The entry “roman law” in the Parry and Grant Encyclopaedic Dictionary of International Law (currently, the Encyclopaedic Dictionary of International Law, 2009), Oxford University Press

    Resources

    Notes and References

    1. Charles M. Scanlan, The Clergyman’s Hand-book of Law. The Law of Church and Grave (1909), Benziger Brothers, New York, Cincinnati, Chicago

    See Also

    • Religion
    • Church

    Resources

    See Also

      • Legal Traditions
      • Roman Schools of Law
      • Roman Oratory
      • Twelve Tables
      • Anglo-Roman-Dutch Law
      • Post-Medieval Roman Law
      • Medieval Roman Law
      • Justinian
      • Institutes of Justinian
      • Early Roman Law
      • Digest
      • History of Law

    Further Reading

    Notes and References

    Guide to Roman Law

    Hierarchical Display of Roman law

    Law > Sources and branches of the law > Legal science

    Roman law

    Concept of Roman law

    See the dictionary definition of Roman law.

    Characteristics of Roman law

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    Resources

    Translation of Roman law

    Thesaurus of Roman law

    Law > Sources and branches of the law > Legal science > Roman law

    See also

    • Creation of a party
    • Dissolution of a party
    • Founding of a party
    • Prohibition of a party
    • Internal religious law

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