Appunti di Roman foundations of European Law

Roman foundations of EU law

Historical and methodological overview

Why Roman foundations of European law? The Corpus Iuris Civilis, the cultural influence of Romans spread all over Europe, and the main aspects of the influence Roman law had in European history.

There are two big legal families in the world: Common law and Civil law. Many scholars have said in the past that Roman law had a strong influence mainly/only on the Civil law system; this is actually not true: both systems have their roots in Roman law tradition. It’s enough to look at the development of Roman law itself and at the phenomena called "rezeption" of Roman law. This phenomenon began around the 11th century when the manuscript of the Digest (part of Corpus Iuris), the Littera Bolognensis, was discovered and studied. In Bologna, the first university was created to study the Digest, but this was not only a historical study; it was a commentary (Glossa) to find out rules to be applied to the legal system in force at the time (by the Glossators).

Many of the Glossators not only developed various universities but also moved to other countries. Vacarious, one of the most important of them, from Pavia moved to England and began teaching Roman law at Oxford, so he was one of the most influential scholars of the time.

Also, the legal procedure of the writs was very influenced by the example of the Roman legal procedure; this was a point of contact between Roman law and common law. The law and the procedure of the Church as well, in Europe and England, took inspiration from the Roman legal procedure; therefore, Canon law was deeply influenced by Roman law.

All these circumstances led Roman law to spread its influence all over Europe, sometimes directly, other times indirectly. That is why some systems are closer to it, others less, and others are mixed, like the Scottish one.

This phenomenon of rezeption went on till the end of the 19th century, as Roman Law was constantly studied by many other schools: the Commentators, the Humanists, and especially in Germany.

Why is the latter so important?

Legal development: In many EU countries, the codification took place, while in Germany something different happened: there was a huge struggle between scholars who thought it was necessary to unify Germany with a code versus scholars who thought that was necessary but not possible with a code, but with a law that could represent the spirit of the German nation. On one side, Thibaut, on the other, Savigny; the latter was very admired, against the codification, and he created the Historical school aimed at studying Roman Law to create common rules for the German nation. Its development was called pandect science, and its representatives began to create and systematize legal concepts; their work actually represented the foundation of the German civil code, even if the initial idea was to avoid one, cause the BGB is found on the basis of the study of Roman Law by pandectists.

After 1900 the German civil code was issued, many scholars understood that they weren’t needed to create rules anymore, as all of them were stated in the code, therefore different trends developed within Roman Law scholars to try to reinvent the study of Roman Law:

• The approach of the Interpollectionism
• The approach of the Ancient Legal History

Scholars understood that Roman Law couldn’t be only connected to the need for a codification, so they asked themselves why keep studying Roman Law? There are multiple answers possible:

• In the Western countries, we have inherited the legal terminology that is fundamental for us to understand the Law, which has influenced the development of EU Law in both legal families and in the legal system of the Church.
• We have inherited a legal patrimony with so many solutions to legal problems, which have constituted an example for the later centuries.
• Roman Law has developed also thanks to the work of the Roman jurisprudence, which developed a scientific legal reasoning, a methodology to find legal solutions to juridical problems and aimed at the creation of legal rules; this has influenced legal scholars of the 19th century.

Roman Law has been studied and used in Europe and in the Western Countries, representing a great example also for the Americans; it was considered at the basis of the Fascist regime in Italy, instead by the Nazis it was fought; in many different ways, it was studied as an example to follow or to depart from. Goethe on Roman Law: (he knew Savigny, etc.) “Just as the duck dives in the water and seems to disappear for a while, so Roman Law seems to have disappeared in Europe for some time, but actually it was still there and thanks to Savigny it appeared again in all its lust.”

The Roman law of the Romans

Its study implies a comparative and diachronic approach, as we must remember that Roman legal history lasted over 1000 years; the Romans went through different political powers and constitutional structures, and after Justinian, Roman Law developed in the Eastern Roman Empire and became what we now call Byzantine Law.

If we look at the historical political period before ancient Rome, from 752 BC to 509 BC, there were many kings; 2-3 of them were Etruscan and issued the “King’s laws”. In this period, Rome achieved important political achievements and developed a lot from a point of view of the first Laws; under Tullius, the Comitia Centuriata were established, assemblies in which citizens’ bodies were divided in Centurie (groups of people divided among the military lines). Here the Leges Publicae were voted, public legislation at the time of the Republic, founded in 509 BC and lasted until 23 BC.

During the republic, a hierarchy of magistrates was established, who ruled Rome:

• The consoles, 2 supreme magistrates with also military powers had veto powers on proposals to avoid a tyranny;
• The pretores, 2 important magistrates: Urbanus, of the city of Rome, and Peregrinus, dealing with the foreigners; they had to issue the Edict at the beginning of their 1 year of office (act concerning legal procedures);
• The aediles, had to exercise care over the city, its inhabitants, and its markets (e.g., sales of animals, slaves); they also had to issue their Edict.

Historical background

The Roman republic: there were many magistrates who ruled Rome at the time; from the 2nd century to the 1st century BC there was a huge crisis in Rome, many different figures tried to take the power and to create some kind of personal powers. This situation went on until Cesar, who in 48 BC took the power; he became the undisputed master of Rome and appointed himself dictator for life, for the first time in history.

He wanted to transform the political institutions of Rome, in particular, he wanted to make them less oligarchic than the past; he had some reforms concerning many aspects of Roman life (agrarian, military, economic), it is possible that he wanted to create the first code of Roman rules (he was defined by Canfora as a democratic dictator). He was able to restore some order after the bitterness of the civil war, but also he began to be hated by the senate and aristocracy and was eventually murdered in Largo Argentina, where the senate was. Brutus and others pretended to restore the republic but failed; Octavian at some point took the power and formed an alliance with Lepidus and Marc Anthony called “Triumviratus” (this was the second one, the first was created by Caesar but wasn’t recognized by the senate).

At some point, the aims of Marc Anthony and Caesar Octavian began to diverge and began a struggle; the senate decided that the representative of the aristocracy was Octavian.

The senate then officially recognized the position of Octavian who took the name of “father of the nation” and was even appointed as pontefice massimo (most important religious charge); he took the name of Augustus and was recognized as “princeps” = Primus inter pares, most important person in the senate, he could influence the decisions of the senate by issuing orations. He had the supreme power over it but also needed it. This age was considered golden, with peace; with him began the principate. Many different princeps took the power after him and made Rome flourish (golden age of Marcus Aurelius). All until 235 AD, when Severus, the last emperor of the dynasty, died.

After him was another period of crisis where many men tried to take the power, either great commanders or men selected by the army to become emperors; there were many armies and many commanders who tried to take the power. Diocletian eventually took the power in 285 AD: he tried to solve the problem of the government and the one of the succession.

Two different opinions about him:

• Some scholars thought that in 284 with Diocletian started the Dominatus;
• Others thought this Dominatus began instead with Constantine the Great.

He appointed himself and Maximianus as Augusti (emperors), and he decided that the government had to be formed by two emperors and two successors (to solve problems). Diocletian was in the Eastern empire and named as Caesar Galerius Maximianus in the Western empire and appoints as Caesar Constantius In 305 Diocletian left and retired and forced Maximianus to do the same: this was the only way to have the successors, and let them have time to become Augusti, one of his greatest achievements.

In 324 Constantine took the power as the sole emperor so didn’t follow the rules of the tetrarchy; he left his powers to his sons. The Visigoths were able to take the power over Rome for a while, the Western part of the empire was very close to a collapse, which happened in 1453. The Eastern part went through something different:

• The pressure of the barbaric populations was not that strong as in the western part;
• The eastern part was still rich;
• Roman emperors of the east were better than the ones of the west.

Justinian took the power and managed to conquer the Italian peninsula; he was important cause inspired the compilation of Justinian, not properly a codification. Known as Byzantine Law, which has influenced many nations also after the collapse of the empire.

Legal periods of Roman law

We have 4 main periods plus 1:

1. Archaic period: from the foundations of Rome till the beginning of the 3rd before Christ;
2. Pre-classical period: from the 3rd century BC to the end of the republic period;
3. Classical period: most important, from the 1st century AD to the end either of the Severian dynasty or at the end of the Diocletian reign, depends on opinions;
4. Post-classical or late-antiquity period: from the end of the reign of Diocletian till Justinian (527);
5. Justinian’s period would be the +1, as it can be considered a period in itself.

What were the sources of Roman Law in these periods? There were many different ones that worked together:

1. Here one of the most important sources of Law were the Mores: they were the customs of the Romans = the rules of the ancient families that founded Rome; they were interpreted (also a source) only by an elitarian group and by the King at the beginning, not explaining why they interpreted rules in a certain way, a huge problem; there were no written texts, only the families knew them and the only men who could interpret it were the Kings. Their rules will become more and more important and subject to interpretation.
2. Another important source in this period was the Lex, the statute. Not like the modern one of course: we must distinguish the leges at the time of the monarchy (enacted by the kings with a group of persons - most famous was the one enacted by Numa on the homicide) and at the time of the republic (not enacted by the kings but voted by the Roman citizens in the assemblies of the citizens, the Comitiae - once the lex was enacted it was enforced for all the citizens, rich and poor).
3. Another source, very important, were the Twelve Tables (XII Tabulae): enacted around 450 BC, they collected the already existing rules of the Mores; these were written for the first time in the tables. Why? For legal certainty, which was felt needed, this way the poor could know what the rules were, they couldn’t make discriminations. There were many different subjects written on them. *Read text by Pomponius on Moodle*
4. The last source are the Plebiscita: the laws of the plebeians, voted in their assemblies cause they had their own institutions, own magistrates, and own assemblies. Until 286 BC these laws were enforced only for the plebeians and did not represent legislation for the entire Roman population; after 286 they were considered to have the same legal force as the Leges.

All these sources formed the Ius Civile: the Law of the Romans only. See text of Gaius: “The iura of the Roman people consists of laws, plebiscites, decrees of the Senate, constitutions of the princeps, the edicts of those who have the right to promulgate them, and the opinions of jurists. A lex is what the people order and establish. A plebiscite is what the plebs order and establish. Moreover, the plebs is distinguished from the people by the fact that the entire body of citizens including the patricians is designated by the term, ‘the people’, but the other citizens, without the patricians, are called plebs; for which reason the patricians formerly declared that they were not bound by plebiscites, as they were enacted without their authority; but subsequently the Lex Hortensia was passed, by which it was provided that plebiscites should bind the entire people; and hence, in this way, they were given equality with leges. A Decree of the Senate is what the Senate orders and establishes, and therefore it obtains the force of law, although this formerly was disputed. An Imperial Constitution is what the Emperor establishes by a decree, an edict, or a letter, and there was never any doubt that it had the force of a law, as the Emperor himself derives his authority from a statute. The magistrates of the Roman people have the ius of promulgating edicts, but the highest authority attaches to the edicts of the two praetors, the urban and the foreign, whose jurisdiction is vested in the governors of the provinces; as well as to the edicts of the curule Aediles, whose jurisdiction - the quaestors administer in the provinces of the Roman people, for quaestors are not appointed in the provinces of the Emperor and, therefore, the latter edict is not published in these provinces. The answers of jurists are the decisions and opinions of those who are authorized to define the ius. If the opinions of all of them agree in one, that, if they so think, has the force of lex. If they disagree, the judge may decide which opinion to follow, as a rescript of the Divine Hadrian indicated.”

Ius Gentium: Law common to all the populations.

Pre-classical

Gaius was a Roman jurist, very important, who lived in the 2nd century AD, and in 816 a copy of his original work had been found by a German scholar in Verona; in this work, the Institutiones, he partially describes the sources of Roman law (partially because of his time of living). He begins to describe the sources from his point of view and describes that the iura of Roman people consisted of:

• Leges
• Plebiscita
• Senatus consultis (decrees of the Senate)
• Constitutionibus principium (constitutions of the princeps)
• Edictis

The lex is what the people order and establish. He summarized all from his point of view; Roman jurists constantly thought about the sources of Roman law, especially in the Institutiones, a kind of manual in which students had to study.

In this period, the role of the Roman jurists began to emerge; from the 3rd century, the interpretation was not a duty of the pontifices. Who are the Roman jurists? Private citizens who have studied rhetoric and usually belong to the elite; they were not paid for their advice but they were people skilled in Law who collaborated with magistrates and gave opinions on concrete legal issues presented by citizens.

The Roman citizen didn't know if he could be part of the process to defend his position, he didn’t have rules to base it on; therefore they would go before the jurists to ask for advice. The Respondere/Responsum means that the citizen can go before the jurist and tell him what happened, he would analyze the case and finally give the Responsum, the answer saying that you can act, you can start the process; but doesn’t mean you are right! (From case to rule).

When the answer is given by the jurist it means he finds a legal solution common to all similar cases. He doesn’t care about the result of the process, he just wants to find a solution to apply also in the future. No subjective rights in Roman Law, they are a creation of the commentators and the Germans later on in the 19th century, the Romans didn’t have the concept of subjective right.

Agere means that a Roman jurist could support a Roman citizen in the process, give him some aid.

The last activity is connected to the drafting of legal documents, Cavere, the person asks the jurist to draft a contract, for example. These were the three tasks of the jurists.

Another important figure is the one of the Praetor: (see prev. Urbanus + Peregrinus) high-ranking magistrate who had the so-called Ius Edicendi: power to issue the edict = legally binding statement that magistrates could issue in their sphere of jurisdiction; it was a sort of program concerning the actions and the means that the Praetor would have granted to offer legal protection to different cases. Divided into paragraphs, in it was written the possible action to give to the person in the case and under which circumstances it could be given.