The Enduring Legacy of Roman Law: Commercial and Legal Principles
The Enduring Legacy of Roman Law
Commercial law, with its various receivables and characteristic abstraction, resembles a modern version of the Roman stipulatio, an abstract method for obtaining obligations without stating the reason. The complex types of joint liability created by the Romans also form the background of these legal instruments.
Similarly, various commercial contracts (commercial sale, transport, and insurance) are built on civil guidelines, therefore, Roman. Even banking operations find precedent in Roman figures such as payroll expensilatio or transscripticia, consisting of the Argentarius (banker)’s entries in his books, which created credit relations for and against him (acceptum ferre and expensum ferre). The influence is also significant in bankruptcy law. Consider the complex development of Roman figures like missio in bona and the auction of the estate (bonorum venditio), whose basic principles underlie the current bankruptcy procedure.
Influence Beyond Private Law
This influence extends beyond the realm of private law into disciplines often categorized as public law, such as procedural law. Roman law, being a right of action, laid the groundwork for what is today Western Procedural Law. Current notions of capacity and legitimacy are clear examples of this influence. Regarding the process, consider the connection of the litigation (with a background in Roman Contestatio litis), the evidence, and the judgment (iudicatum) with its effect of a final decision (res judicata).
While some concepts have evolved considerably, this is because the Romans lacked our modern concept of the state. Judicial activity, at least in the classical age, was not conceived as a state power but as a work of iuris prudentia. Private judges, chosen by the parties from a list of candidates, were responsible for settling lawsuits.
Criminal Law Considerations
Due to the absence of the modern concept of the state, it cannot be said that the principles of criminal law today are directly based on Roman law. The legality principle underlying that law presupposes a normativist conception of the juridical, oblivious to the Roman notion of law during the classical period. However, the merits of Roman Criminal Law figures can be argued.
Crimina vs. Criminal
Roman law distinguished between crimina and criminal. The former (murder, high treason, counterfeiting, election crimes, etc.) were prosecuted in public processes and punished with corporal or pecuniary punishment for the aerarium, placing them firmly in the public sphere. The latter (theft, damage, injury, intimidation, and fraud), however, fell sharply into the privatistic area and were subject only to sums of money, as in the case of other private suits. Thus, although this distinction is absent in modern criminal law, the contents of the current Roman offenses are clear.
The influence of Roman law in other fields of public law is more tenuous, as they presuppose a much greater development and modernization of state activity.