Roman Law and the Origins of the Civil Law Tradition

George Mousourakis

Roman Law

and the Origins

of the Civil Law

Tradition

Roman Law and the Origins of the

Civil Law Tradition

ThiS is a FM Blank Page

George Mousourakis

Roman Law and the Origins

of the Civil Law Tradition

George Mousourakis

Faculty of Law

University of Auckland

Auckland

New Zealand

ISBN 978-3-319-12267-0 ISBN 978-3-319-12268-7 (eBook)

DOI 10.1007/978-3-319-12268-7

Springer Cham Heidelberg New York Dordrecht London

Library of Congress Control Number: 2014956262

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To Sumi, Eli and Kent

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Preface

The civil law tradition is the oldest and most prevalent legal tradition in the world

today, embracing the legal systems of Continental Europe, Latin America and those

of many African and Asian countries. Despite the considerable differences in the

substantive laws of civil law countries, a fundamental unity exists between them.

The most obvious element of unity is the fact that the civil law systems are all

derived from the same sources and their legal institutions are classified in accor￾dance with a commonly accepted scheme existing prior to their own development,

which they adopted and adapted at some stage in their history. The civil law

tradition was the product of the interaction among three principal forces: Roman

law, as transmitted through the sixth century codification of Emperor Justinian;

Germanic customary law; and the canon law of the Church, which in many respects

derived from Roman law but nevertheless constituted a distinct system.

Roman law is both in point of time and range of influence the first catalyst in the

evolution of the civil law tradition. The history of Roman law is divided into two

great phases. The first phase spans more than a thousand years, from the formation

of the city-state of Rome to the codification of Justinian in the sixth century AD.

During its long history, Roman law progressed through a remarkable process of

evolution. It advanced through different stages of development and underwent

important transformations in substance and form as it adapted to the changes in

society, especially those derived from Rome’s expansion in the ancient world.

During this long process the interaction between custom, enacted law and case

law led to the formation of a highly sophisticated system gradually developed from

layers of different elements. But the great bulk of Roman law, especially Roman

private law, derived from jurisprudence rather than legislation. This unenacted law

was not a confusing mass of shifting customs, but a steady tradition developed and

transmitted by specialists who were initially members of the Roman priestly class

and then secular jurists. In the final stages of this process when law-making was

increasingly centralized, jurisprudence together with statutory law was compiled

and ‘codified’. The codification of the law both completed the development of

vii

Roman law and evolved as the means whereby Roman law was subsequently

transmitted to the modern world.

The second phase of Roman legal history (occasionally labelled the ‘second life’ of

Roman law) commenced in the sixth century, yet only acquired true significance in the

eleventh century when Roman law was ‘rediscovered’ in Western Europe. This law

was initially the object of academic study and then later engaged for a far-reaching

reception in large parts of Continental Europe. Particularly important in this process

was the work of the medieval jurists who systematically studied, interpreted and

adapted Roman law to the conditions and needs of their own era. From the fifteenth

century onwards the relationship between the received Roman law, Germanic cus￾tomary law and canon law was affected in varying degrees by the rise of the nation￾state and the increasing consolidation of centralized political administrations. The rise

of nationalism precipitated the move towards the codification of the law, which

engendered the great European codifications of the eighteenth and nineteenth centu￾ries. When new civil codes were introduced in the various European states, Roman

law ceased to operate as a direct source of law. But as the drafters of the codes greatly

relied on the Roman system, elements of Roman law were incorporated in different

ways and to varying degrees into the legal systems of Continental Europe. Moreover,

through the process of legal borrowing or transplanting these legal elements perme￾ated the legal systems of many countries around the world.

This book begins with an overview of the historical and constitutional frame￾work of Roman law in antiquity. The need to place Roman law in its historical

setting was recognized by the Romans themselves. For instance, the jurist Gaius

wrote that the person who omitted reference to historical causes was one who took

up his subject-matter with “unwashed hands.” (D. 1. 2. 1.) In Chap. 2 the focus of

the discussion is on the sources of law (the ways in which law was created), the

mechanisms whereby the various sources were effectuated and the way each legal

source influenced the progress of law. Special attention is accorded to the devel￾opment of legal science, which emerged as the most productive element in Roman

legal life by the end of the first century BC. Then follows an exposition of the

principal institutions of Roman private law: the body of rules and principles relating

to individuals in Roman society and regulating their personal and proprietary

relationships. Private law greatly overshadowed public law in both its intrinsic

merit and subsequent influence. This is because private law had a dominant role in

the development of legal norms and was the chief interest of the jurists, the shapers

of Roman law. In this part of the book I have tried to describe and elucidate the

fundamental assumptions and distinctions of Roman private law and to delineate

some of its most characteristic institutions. In doing so I have examined several of

its detailed rules, but have omitted much that seemed to me to be, in a work of this

kind, of secondary importance. Special attention is given to the Roman law of

things, which furnished the foundations of much of the modern law of property and

obligations in civil law systems. Furthermore, emphasis is laid on the classical era

and the age of Justinian, the most important periods in terms of the development

and documentation of Roman law. Chapter 4 offers an account of the history and

principal features of Roman criminal law and procedure. It should be noted that it

viii Preface

was not until the imperial age that Roman juridical literature began giving serious

attention to matters of criminal law. Prior to that we have to rely mainly on literary

sources, whose focus of attention is largely on the upper social classes. This leaves

us in the dark as to how the ordinary citizen fared, in particular when prosecuted for

common (as opposed to political) offences. Nevertheless, even with this qualifica￾tion, the sources give valuable insight into how the Romans thought about crime

and criminal justice. Chapter 5 appraises the move towards the codification of law

in the later imperial epoch, which culminated in the final statement of Roman law:

the Corpus Iuris Civilis of Emperor Justinian. The final three chapters of the book

offer an overview of the history of Roman law from the early Middle Ages to

modern times and illustrate the way in which Roman law furnished the basis of

contemporary civil law systems. In this part, special attention is given to the factors

that warranted the preservation, resurgence and subsequent reception of Roman law

as the ‘common law’ of Continental Europe.

The guiding aim of this book is to introduce law students to the history, funda￾mental principles and major institutions of Roman law. There are few, if any, legal

subjects that can properly be studied without some grasp of their historical context,

least of all Roman law, where the student has to take on board the legal development

of the system over a vast time scale. This poses particular problems to the teacher of

Roman law at the present time, when the decline of classical studies in the schools has

led to a generation of students who are generally unfamiliar with the landmarks of

Roman history. The book is therefore designed to offer students and general readers

an accessible and comprehensive introduction to the subject, by combining the

perspectives of legal history with those of political, constitutional and social history.

To give the reader a better insight into the character of Roman law, I have included

representative materials from a variety of Roman juridical sources and have tried as

best I could to make the meaning of the ancient texts intelligible. At the end of the

book there is an extensive bibliography for further reading on the topics discussed,

together with the titles of those studies that have furnished the basis of my work.

Although the book does not purport to provide a detailed account of the development

of particular legal doctrines or branches of law, the careful examination of central

themes will hopefully emphasize that Roman law deserves to be studied not merely as

an important part of the intellectual background of civilian legal systems, but also as

an essential part of the history of civilization.

The impetus of this book grew from a series of lectures and seminars that I gave at

universities in New Zealand, Australia, Europe and Japan. I would like to thank in

particular my students and colleagues at the University of Auckland for their support

and constructive criticism when the themes of this book were discussed in class and

seminar presentations. Many thanks go to my former students Miss L. Stroud and Mr.

I. MacIntosh, who have been superb editors and have made a number of helpful

suggestions for improvement. Finally, I wish to thank Professor T. Duve, Director of

the Max Planck Institute for European Legal History in Frankfurt, Professor

R. Zimmermann of the Max Planck Institute for Comparative and International

Private Law in Hamburg, Professor M. Avenarius, Director of the Institute of

Roman Law at the University of Cologne, Professor A. Bu¨rge of the Leopold Wenger

Preface ix

Institute at the University of Munich, Professor D. Gottardi of the University of

Verona, Professor S. Riondato of the University of Padova, Professors B. Santalucia

and R. Bartoli of the University of Florence, Professor S. Hama of Doshisha

University and Professor N. Yoshinaka of Hiroshima University for their generosity

in allowing me access to the library resources and other research facilities of their

institutions.

Auckland, New Zealand G. Mousourakis

x Preface

Abbreviations

Bruns, Fontes Fontes iuris romani antiqui, ed. C. G. Bruns, Tu¨bingen 1909,

repr. Aalen 1969

C. Codex of Justinian

C. Th. Codex Theodosianus

D. Digest of Justinian

FIRA Fontes Iuris Romani Anteiustiniani, I-III, ed. S. Riccobono,

J. Baviera and V. Arangio-Ruiz, Florence 1940–1943,

2nd edn, 196.

G. Institutes of Gaius

Girard, Textes Textes de droit romain, ed. P. F. Girard and F. Senn,

7th edn, Paris 196.

Inst Institutes of Justinian

Nov Novels of Justinian

XII T Law of the Twelve Tables

xi

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Contents

1 The Historical and Constitutional Context of Roman Law: A Brief

Overview ............................................. 1

1.1 Divisions of Roman Constitutional and Legal History . . ....... 1

1.2 The Archaic Period (Monarchy and Early Republic) .......... 4

1.2.1 General Historical Background . ................... 4

1.2.2 The Constitutional Framework . . . ................. 5

1.3 The Pre-classical Period (Late Republic) . . . . . . . . . . . . . . . . . . 11

1.3.1 General Historical Background . . . . . . . . . . . . . . . . . . . . 11

1.3.2 The Constitutional Framework . . . . . . . . . . . . . . . . . . . . 13

1.4 The Classical Period (Early Empire or Principate) . . . . . . . . . . . 14

1.4.1 General Historical Background . . . . . . . . . . . . . . . . . . . . 14

1.4.2 The Constitutional Framework . . . . . . . . . . . . . . . . . . . . 16

1.5 The Post-classical Period (Late Empire or Dominate) . . . . . . . . . 20

1.5.1 General Historical Background . . . . . . . . . . . . . . . . . . . . 20

1.5.2 The Constitutional Framework . . . . . . . . . . . . . . . . . . . . 23

1.6 The Reign of Justinian (AD 527–565) . . . . . . . . . . . . . . . . . . . . . 25

1.6.1 General Historical Background . . . . . . . . . . . . . . . . . . . . 25

1.6.2 The Constitutional Framework . . . . . . . . . . . . . . . . . . . . 26

2 The Sources of Roman Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

2.1 Introductory . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

2.2 Sources of Law in the Archaic Age . . . . . . . . . . . . . . . . . . . . . . 29

2.2.1 Customary Law and the Leges Regiae . . . . . . . . . . . . . . . 29

2.2.2 The Law of the Twelve Tables and the Growth of Statutory

Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

2.2.3 The Pontiffs and the Beginnings of Jurisprudence . . . . . . 40

2.3 Sources of Law in the Late Republic . . . . . . . . . . . . . . . . . . . . . 43

2.3.1 Legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

2.3.2 The Rise of Magisterial Law . . . . . . . . . . . . . . . . . . . . . 45

2.3.3 The Jurists of the Late Republic . . . . . . . . . . . . . . . . . . . 55

2.3.4 The Role of Custom . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61

xiii

2.4 Sources of Law in the Principate Era . . . . . . . . . . . . . . . . . . . . . 61

2.4.1 The Decline of Popular Law-Making . . . . . . . . . . . . . . . 61

2.4.2 The Consolidation of Magisterial Law . . . . . . . . . . . . . . 63

2.4.3 The Senatorial Resolutions as a Source of Law . . . . . . . . 64

2.4.4 The Princeps as a Lawmaker . . . . . . . . . . . . . . . . . . . . . 65

2.4.5 The Culmination of Roman Jurisprudence . . . . . . . . . . . . 70

2.4.6 The Influence of Customary Law . . . . . . . . . . . . . . . . . . 83

2.5 Sources of Law in the Later Imperial Era . . . . . . . . . . . . . . . . . . 84

2.5.1 The Development of Imperial Law-Making . . . . . . . . . . . 84

2.5.2 The Law of the Jurists . . . . . . . . . . . . . . . . . . . . . . . . . . 86

2.5.3 Custom and the Growth of ‘Vulgar Law’ . . . . . . . . . . . . 92

3 The Private Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95

3.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95

3.2 The Law of Persons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97

3.2.1 Status Libertatis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98

3.2.2 Status Civitatis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101

3.2.3 Status Familiae . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102

3.2.4 Capitis Deminutio . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105

3.2.5 Marriage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105

3.2.6 Guardianship and Curatorship . . . . . . . . . . . . . . . . . . . . 110

3.3 The Law of Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113

3.3.1 Classification of Things . . . . . . . . . . . . . . . . . . . . . . . . . 114

3.3.2 Ownership . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115

3.3.3 Possession . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124

3.4 The Law of Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126

3.4.1 The Law of Contracts . . . . . . . . . . . . . . . . . . . . . . . . . . 128

3.4.2 The Law of Delicts . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143

3.5 The Law of Succession . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149

3.5.1 Intestate Succession . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150

3.5.2 Testamentary Succession . . . . . . . . . . . . . . . . . . . . . . . . 151

3.6 The Law of Actions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154

3.6.1 The Legis Actio Procedure . . . . . . . . . . . . . . . . . . . . . . . 155

3.6.2 The Formulary Procedure . . . . . . . . . . . . . . . . . . . . . . . . 155

3.6.3 The Cognitio Procedure . . . . . . . . . . . . . . . . . . . . . . . . . 157

4 Criminal Law and Criminal Justice . . . . . . . . . . . . . . . . . . . . . . . . 159

4.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 159

4.2 Crime and Criminal Justice in the Archaic Era . . . . . . . . . . . . . . 160

4.3 The Development of Criminal Justice in the Late Republic . . . . . 164

4.3.1 The Permanent Jury Courts . . . . . . . . . . . . . . . . . . . . . . 166

4.4 The Administration of Criminal Justice in the Principate Age . . . 173

4.4.1 The Criminal Jurisdiction of the Senate . . . . . . . . . . . . . 175

4.4.2 Imperial Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . 175

4.4.3 Criminal Offences, Responsibility and Punishment . . . . . 178

xiv Contents