Roman Law: A Comprehensive Overview

Posted on Nov 14, 2024 in Law & Jurisprudence

Item 1: Origins and Importance

Roman law governed Roman society and the peoples dominated by Rome from its birth in 753 BC until the death of Justinian in 565 AD.

Importance of Roman Law:

  • Known for its numerous sources of legal knowledge.
  • Interesting for its evolution over eight centuries.
  • Forms the basis of legal education.
  • Influences most modern legislation.

Customs

  • Fas: Divine law, not to be violated lest the gods be insulted.
  • Ius: Human law, variable and perfectible.

Fundamental Precepts of Ulpian

  1. Honeste Vivere: To live honestly.
  2. Alterum Non Laedere: Not to harm another.
  3. Suum Cuique Tribuere: To each his own.

Principles of Law

Justice According to Plato

The fundamental virtue from which all other virtues are derived.

Justice According to Aristotle

A measure of proportionality in exercise, equidistant between excess and defect.

Jurisprudence

Iuris (law) Prudentia (wisdom). The science of right and wrong, encompassing all divine and human cases. A reminder of the classical era’s union of religious and secular law.

Public Law

Regulates state structure and its relations with individuals.

Natural Law According to Cicero

A set of unchanging principles issued by divine nature, perfectly consistent with the idea of justice.

Natural Law According to Ulpian

Laws imposed by nature on all living things, such as the union of the sexes, procreation, and education of children.

The Law of Peoples (Ius Gentium)

Governs relations with foreigners.

Latin Rights (Ius Latii)

  • Latini Veteres
  • Latini Coloniarii
  • Latini Iuniani

Regular Foreigners (Peregrini)

Could not invoke the rules of Ius Civile, applicable only to citizens.

Tribal Classes

  • The Latin Tribes – Romulus
  • The Sabine Tribes – Titus Tatius
  • The Etruscan Tribes – Lucius Tarquinius Priscus

These tribes settled on the banks of the Tiber River under the authority of a king, forming the Roman city.

Pater Familias

The head of the family, responsible for common worship of ancestors, sacred rites, and family assets.

Patricians

The Pater Familias and their descendants formed this social group.

Family and Clients

Within each family, clients were grouped under the protection of the Pater Familias. Clients came from other cities, freed slaves, or those defeated in battle.

The Tribunals

Organs with public functions formerly exercised by monarchs. Collegial and centuriate, elected in elections.

Magistrates of the Judiciary

  • The Consulate: Two consuls appointed by election, invested with Imperium, making decisions without consulting the polls.
  • The Dictatorship: Appointed in times of danger, usually one of the consuls, with unlimited Imperium.
  • The Praetorship: Possessed Imperium, administered justice, and issued edicts.
  • The Quaestorship: Responsible for public management.
  • The Censorship: Conducted census operations and guarded public and private morals.
  • The Tribune: Defended the rights of the people from abuses by public judges and patricians.
  • The Aedileship: Responsible for the high police of the city.
  • The Senate: Covered legislative, judicial, financial, military, and diplomatic branches.

Roman Law Sources and Concepts

General law applicable to all cases is called positive law, and its subject is the people.

Classification of Sources

  • Sources of Knowledge: Elements that allow reconstruction of Roman law’s formation through historical epochs.
  • Direct Sources: Human actions creating and applying legal rules (e.g., Twelve Tables, Institutes of Gaius).
  • Indirect Sources: Human creations related to law, fixing it in space and time (e.g., dramatic works, speeches).
  • Sources of Production: Directly produce legal norms, composed of customary law.

Customs (Consuetudo)

Repetition of use; the study of its source brings the problem of origin.

Origins

Customs consecrated daily legal practice.

Mores Vivendi

Essential behaviors of a people.

Essential Conditions of Custom

  • Material element: Long and constant use, spontaneous formation, regular practice.
  • Psychological element: Conviction of legally binding use.

Plebiscite Law (Lex Plebiscita)

Resolution taken by the plebs, led by a tribune.

Edicts of Judges (Ius Honorarium)

Law created by judges, especially the praetor’s edict.

Objectives of Judicial Edicts

  • Apply
  • Complete
  • Correct

Existing law.

Senate Resolutions (Senatus Consulta)

Legislative actions issued by the Senate.

Main Senate Resolutions

  • Oratio Severi: Prohibited guardians from selling wards’ property.
  • Voleyanum (prohibition against women)

Imperial Constitutions

Legislative measures dictated by the emperor.