The Essentials of Greek and Roman Law Part II

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Western University
Classical Studies
Classical Studies 2301A/B
Randall Pogorzelski

THE ESSENTIALS OF GREEK AND ROMAN LAW: CHAPTERS 10, 11, 16 & 17 Chapter 10: Background and Beginnings of Roman Law 10.01: Introduction A. Public Law and Private Law • Public law = ius publicum o Criminal law and administrative law o Deals with interests of the entire community • Private law = ius privatum o Rules of property, succession, contracts and laws relating to family o Deals with interests of separate persons • Roman private law still used in many legal systems in the world, it is the basis for all laws in Western Europe (except England and Scandinavia) B. Periods of Roman Law: Pre-Classical; Classical; and Post-Classical • Roman legal development is divided into three stages 1. Pre-Classical  Lasted from beginning stages to the 1 century BC  Pontiffs (priests) kept law as a secret because it was profitable for them  Later, laws were codified and published, priests lost their monopoly 2. Classical st rd  Began in the 1 century BC and lasted through 3 century AD  Roman juries developed legal forms that were abstract and universal (capable of being applied at any time in any society) 3. Post-Classical th th  Beginning of 4 century AD through the 6 century AD • From the end of the Classical Period to the Justinian in the 6 century AD, the law was characterized by bureaucratic administration • Few legal ideas developed, but this is the period when Romans organized, classified and wrote down a great deal of their laws 10.02: Early Roman Legal History A. Laws of the Kings • Earliest Romans used customs as the basis for law • Seven kings who ruled Rome from 753 – 509 BC (monarchy) enacted quite a bit of law dealing with family and sacred law • Romulus, the first king, required that each plebeian had to select a patrician to serve as his patron. Each patron was responsible for the legal affairs of his plebeian-client • Romulus also prohibited a wife from divorcing her husband, and also formulated the law that decreed a son was considered to be freed from his father’s paternal power if his father sold him three times • Numa, the second king, decreed that individuals were to mark the boundaries of their property; also differentiated between murder and manslaughter • Servius Tullius, the sixth king, established that slaves automatically became Roman citizens; also set up different trial procedures, depending on whether they were public or private B. The Laws of the Twelve Tables • Traditional Background o First half of the 5 century BC – “struggle of the orders”: a conflict between the patricians (upper class) and plebeians (lower class) o Plebeians believed that it was unfair for priests to keep laws secret and for judges to put themselves above the law o 462 BC – tribune of the Plebs named Gaius Terentilius Harsa proposed that a commission be established to codify laws to bind the consuls o 451 BC – ten patricians, the decemvirs, were elected to write new laws for Rome  Decemvirs produced ten tablets of laws written on either bronze or wood  In the next year, another ten decemvirs were elected and they wrote two additional tablets of laws (together, known as Laws of the Twelve Tables) • Content of the Laws of the Twelve Tables o Twelve Tables were the basis of Roman laws o We do not possess original copies, tradition has it that originals were burned when the Gauls sacked Rome in 390 BC o Twelve Tables tend to be concerned with unusual circumstances rather than ordinary ones o Procedural laws are prominent o Establish procedures to substitute for self-help or outright retaliation o Many laws provide for public punishments for a wrongdoer or require that a wrongdoer compensate his victim o Laws establish guardians for persons incapable of taking care of themselves o Twelve Tables grant a man the right to make a will to control the distribution of his things upon death o Laws fix predetermined payments as compensation for personal injuries 10.03: The Role of the Praetor and Aedile in the Development of Roman Law • Romans established the office of praetor in 367 BC • Praetors – second in magisterial rank, responsible for much of the operation of the judicial system • Aediles – in charge of streets and marketplace • Roman praetors did more for the development of Roman law than any other Roman officials o Responsible for matters relating to justice o Were not judges, but were officials who administered the legal system and instructed judges concerning how to resolve certain questions of law • 242 BC – Romans added a second praetor called the praetor peregrinus, dealt with foreigners and foreign trade • Praetor urbanus (city praetor) took charge of matters concerning Roman citizens (more important of the two) and the praetor peregrinus (foreign praetor) concerned himself with matters relating to disputes between citizens and foreigners or strictly between foreigners • Each praetor served for only one year, promoted an edictum (edict) upon entering office which gave general instructions about how to resolve cases • Praetors were not empowered to change laws, but because of their office, they could control a great deal of legal interpretation • Legal historians refer to the laws that resulted from the praetors’ edicts as the ius honorarium • Final century of the Republic (140 – 40 BC) was the most active and significant period for development of ius honorarium • Ius gentium – law of people/nations, used only between a Roman citizen (civis) and a foreigner (peregrinus) or between two foreigners who were involved in a dispute on Roman soil o Roman predecessor of International Law • Number of praetors soon increased for the provinces, created a number of notable legal institutions o Exceptio (exception) – method of protecting rights indirectly as a kind of defense to an action o Restitutio (restitution) – law forced a party who had been unjustly enriched to return the unjustly-obtained money  Party who had been coerced could be entitled to restitution • 367 BC – office of aedile was created o Four aediles kept the State archives, and supervised the streets, aqueducts, buildings, bridges and the public marketplace o They gradually influenced laws relating to the sale of goods 10.04: Legal Interpretation: Advocates, Jurists, and Emperors A. Background • Early in Roman’s history, only pontiffs had access to archives necessary to conduct a lawsuit • Only patricians were allowed to serve as pontiffs until 300 BC • 253 BC – first plebeian pontifex maximus was elected • 312 BC – pontiffs lost grip on legal interpretation B. Advocates and Jurists • Jurists of the first century BC had three functions: 1. Ad respondendum – answering legal questions and giving legal advice  Private function of a lawyer – most important task, explaining to a praetor, aedile, judge or layperson what a particular law meant 2. Ad agendum – preparing a case for court  Attorney for consulting, literally to “drive/perform” 3. Ad cavendum – drafting documents  Process of drafting written formulae for lawsuits or business transactions, as one needed to use proper legal language in order to create valid documents • Roman advocates were those who were more likely to conduct the business of court cases (ad agendum) whereas juriconsults (jurists) were more likely academics who rendered opinions (ad respondendum) • Advocates were not allowed to accept payment for their services, jurists did not receive for their advice either but rather performed their services as contribution to society • Early Roman jurisconsults (Pre-Classical period) developed essential principles of Roman law during second and first centuries BC • Number of early attempts to impose semblance of order on Roman law o Ius Flavianum (312 BC) – collection of formulae for lawsuits o Ius Aelianum – another collection of forumale issued by Sextus Aelius Paetus (consul, 198 BC)  He also published the first attempt at a systematic treatement of Roman law: a major legal work called the Tripertitia • In the Tripertitia, Paetus presented: o Text of each provision of the Twelve Tables o Interpretations by pontiffs and jurisconsults of these provisions o Written formulae appropriate for lawsuits applicable to each provision • Around 150 BC, Manius Manilius published forms for sales transactions • Consul Quintus Mucius Scaevola (95 BC) – divided civil law into genera (classes) o Wrote first legal treatise that attempted to impose structure on Roman law (18-book commentary) o Organized the text into sections based on related legal principles • Consul Servius Sulpicius Rufus (51 BC) wrote first commentary on the praetorian edict • Emperor Augustus (27 BC – 14 AD) granted certain jurists a right called the ius respondendi (ius respondendi ex auctoritate principis – the right of responding based on the authority of the emperor) o Entitled jurist on whom it was bestowed to give his opinion on legal questions • Jurist Marcus Antistius Labeo (died about 10 AD) – first great jurist of the Classical period o Wrote over 400 works, although very little survived • Also in the Classical period, Gaius wrote the Institutes or Institutiones (composed about 161 AD) o Served as a short and direct introduction to law for students • In 426 AD, Theodosius II (Eastern Empire) and Valentinian III (Western Empire) enacted the “Law of Citations” – regulated the use of citations in the court of the classical jurists and Gaius o This law provided that writings of Papinianus, Ulpianus, Paulus, Modestinus and Gaius could be used as precedents – judges were directed to follow the majority opinion of these writers C. The “Schools”: Sabinians and Proculians • Two schools of jurists dominated the first 150 years of the Empire: the Sabinians and the Proculians • Labeo – founder of the Proculians • Gaius Ateius Capito – founder of the Sabinians • Schools were more like loose associations of jurists and their pupils D. The Role of the Emperor • By 150 AD, Emperor was empowered to issue legislation of his own accord • Emperor could issue edicts (edicta) • Emperor could take a case himself – acting as judge and jury o By giving decreta (legal decisions rendered by emperor in any given case that had been brought before him), emperor’s decision (decretum) superseded all other decisions, and became precedent • Emperors influenced law by answering, in writing, legal questions for officials and private citizens o Answer was called a rescriptum (rescript) or epistula (letter) • Emperors routinely issued mandata, emperor’s orders to officials 10.05: Justinian and the Corpus Iuris Civilis • 438 AD – commission appointed by Theodosius II compiled code of Roman law known as Codex Theodosianus • 528 AD – Roman emperor, Justinian, created an ad hoc commission to codify all Roman law o Appointed a lawyer named Tribonianus (Tribonian) to take charge in producing what we know today as the Corpus Iuris Civilis o Took seven years (528-534 AD) • Corpus Iuris Civilis is divided into four parts: 1. Codex Iustiniani – Justinian’s code, April 529 AD, least important – consists of constitutions of emperors (i.e., bureaucratic legal regulations and various legal acts 2. Novellae – new laws adopted after the entire Corpus Iuris has been written 3. Institutiones – 535 AD, intended as a first-year student textbook but text was actually enacted into law by imperial statute – thus, served as both an official textbook on Roman Law and as a functional code that could be consulted for subsequent decisions 4. Digest – most important part of the Corpus Iuris Civilis, became effective as law at the end of December 533 AD – consists of approx. two thousand fragments (quotations) of works of 39 different Roman jurists going as far back as the 1 century BC (over half are from Ulpian and Paul) 10.06: The Reception of Roman Law (Receptio) th • In the 11 century AD, in Bologna, Italy, two professors found a copy of the Justinian Code; they studied and commented upon these laws – these comments came to be called glossa, and the scholars were thus called glossators • Work of the glossators continued from 11 to 13 centuries AD; by the 14 century, lawyers had to reinterpret and add further comments in addition to what glossators had done o These schools were called the post-glossators or commentators – further modified Roman law to adapt to new circumstances • Napoleon relied on Justinian’s laws for his French law; Napoleonic Code has been adopted in Belgium and Luxembourg (and for a time in Italy and other countries) • Early Prussian emperors adopted Roman law, thus it became the basis for German law as well • The United Kingdom is the most notable exception to the Reception of Roman law th o King’s judges invented Common Law beginning in 11 century, this created Common Law system and stare decisis o English system was not a system of general abstract rules, but primarily case law; Roman law, on the other hand, is mostly statute law. o 10 century AD – two important books published in England (one by Brancton, the other by Glanvill) – both were dedicated to Roman law and described Roman law in a systematic way o Later, when kings’ judges came across difficult cases, they appealed to Brancton and Glanvill for authority (not Roman sources directly) o Thus, Roman law was integrated into the law of the United Kingdom indirectly 10.07: Justice and Jurisprudence – the Role of Law • Principal interest in Roman law was practical, not theoretical • No strong correlation between law, religion, and morality • Still, many of the classical jurists were strongly influenced by the philosophy of Stoicism • Zeno (350 – 260 BC) – founder of the Stoics o Made nature the key to his philosophy o Equality was an integral precept in the Stoic concept of natural law o In his Institutes, Gaius states that natural reason establishes laws that men follow – these laws, brought about by natural reason, constitute the ius gentium (law of nations) whereas laws created by state legislation are ius civile • Cicero (106 – 43 BC) – in De republica, describes true law as right reason that works in concert with nature o True law’s principles encourage citizens to perform their duties while discouraging illegal acts o Law is the same everywhere and it governs all people, according to Cicero o He states that law is the highest reason, it emanates from nature and dictates what men should do and prohibits those things that they should not o Natural law depends on intelligence and human reason 10.08: Chapter Summary • Ius publicum – public laws (criminal and administrative laws) • Ius privatum – private laws (relating to individuals such as property, contracts and family laws) o Significant influence on modern law • Roman legal development categorized into three major periods: st 1. Pre-Classical (up to 1 century BC) 2. Classical (1 century BC – 3 century AD) 3. Post-Classical (4 century AD – 6 century AD) • 451/450 BC – Romans sent a delegation to Athens to study Solon’s laws o Resulted in production of the Laws of the Twelve Tables by two groups of decemvirs • Praetors – officials in charge of the judiciary (legal system as a whole) rd • By the middle of the 3 century BC, Romans had established two praetors: 1. Praetor peregrinus – administered disputes that involved foreigners 2. Praetor urbanus – responsible for law relating to Roman citizens • In addition to praetors, aediles – in charge of marketplace – directly affected laws relating to sale of goods • Under Emperor Hadrian, the jurist, Julianus, polished praetorian and aedilician edicts into their final forms • Roman jurists developed distinct roles: 1. Ad respondendum – answering legal questions and giving legal advice 2. Ad agendum – preparing a case for court 3. Ad cavendum – drafting documents • Early 5 century AD – Emperors Theodosius II and Valentinian III formally elevated writings of jurists Papinian, Ulpian, Paul and Modestinus to that of binding authorities • Labeo – founder of Proculians (first great jurist of the Classical period) • Gaius Ateius Capito – founder of Sabinians • 439 AD – law code Codex Theodosianus became the rule of law Law in Literature: Discovering more about Legal Philosophy – Cicero’s De Legibus and Natural Law • Cicero – prominent orator, lawyer and writer born in 106 BC and assassinated in 43 BC • Was active in Roman government and served as both a consul and proconsul • In De Legibus, Cicero notes the outset that people who study law without an understanding of natural concepts of right and wrong are merely learning the skills necessary to construct arguments and to speak in court, but they are not learning basic concepts that underlie construction of legal arguments • He believes that it is important to understand law not only to practice the law • Goal of law is to “promote the firm foundation of States, the strengthening of cities, and the curing of the ills of people” • Does not address what we commonly think of a “civil law” or even written conclusions known to society as “law” but rather, examines that which is human law, “justice” • Cicero’s views summarize commonly accepted Stoic views of Roman society, represent what a majority of Romans at the time believed • He incorporates ideas of law and justice into the higher power by concluding that man has a “divine element within him” and that man “will think of his own inner nature as a kind of consecrated image of god” • Because Cicero believes that god created humans to have what he calls “right reason”, he also believes that humans analyze problems rationally and arrive at same conclusions regarding right and wrong • Hints of legal relativism in Cicero’s text o Legal relativism – theory that written laws are an expression of community standards of justice o Suggests that private and public law are derived from the practices and customs of the Roman people, not the gods • Cicero, however, believes that the gods give everyone a sense of “right reason” and people use this god-given sense to formulate customs and laws, which are the basis for positive law Chapter 11: Legal Procedure, Institutions and Organization 11.01: Introduction • Suits in Roman law were called actiones, a person’s rights came from the actiones • Criminal cases were heard by various quaestiones perpetuae that were established by specific legistlation to address particular kinds of criminal conduct 11.02: The Roman Constitution and Significant Republican Legislation A. Introduction • Roman Constitution – totality of customs, principles and separate legislation that in sum delineated the powers and functions of the Roman government • Two other legal sources supplemented the Twelve Tables in early Rome – leges and senatus consulta o Leges – statutes adopted by the populous Romanus  Statute was generally binding as it resulted from positive vote of assembly of the people  Leges were designed to honor the mos maiorum, the customs of their ancestors o Senatus consulta – “advice” from the senate • Roman statutes have at least two parts: 1. Praescriptio – general comment concerning the wrong 2. Sanctio – negative consequences which resulted from a person’s violation of the praescriptio • Theoretically, four basic types of laws based on relationship between the praescriptio and sanction 1. Lex imperfecta – law which provides a rule without a sanction (e.g. a master may not free a salve without giving the appropriate magistrate 5 days notice) 2. Lex perfecta – sanctio invalidates act which has been performed and prohibited by praescriptio - praescriptio is protected by the sanctio (e.g. if a master frees a slave without first giving the appropriate magistrate 5 days notice, the salve is not free but rather remains a slave) 3. Lex plus quam perfecta – sanctio both invalidates the act that has been performed and prohibited by the praescriptio and it also exacts other negative consequences such as fines (e.g. if a master frees a slave without giving notice, the slave is not free and remains a slave, and the master must pay a fine of 10 sesterces) 4. Lex minus quam perfecta – sanctio does not invalidate the act prohibited by the praescriptio, but instead imposes negative consequences (e.g. if a master frees a slave without giving notice, master must pay a fine of 10 sesterces) B. Legislative Bodies • Entire Roman citizenry gathered as assembly for political purposes in several different groups – each assembly was called a comitia • Three assemblies to note: 1. Comitia centuriata – comprising all Roman citizens organized into “centuries” (or one- hundreds) • Arranged by wealth classification, wealthiest citizens would always out-vote the poor • Consul could call meeting 2. Comitia tributa – comprising all Roman citizens who were members of a particular tribe for voting purposes • Established on an old tribal/territorial basis • Only a “patrician” magistrate could call meeting 3. Comitia curiata – served mostly to witness (and perhaps to authorize) wills and adoptions • Operated during the Monarchy • Tribune of plebs could call meeting • Concilium plebis – assembly of all plebeians o Lex Hortensia (287 BC) decreed that enactments of the concilium plebis, called plebiscita, had the force of law over all Roman citizens o Prior to 287 BC, plebiscita had legally bound only plebeians • Two censors were elected every 5 years for purpose of conducting census – able to determine political and social status of all Roman citizens, and acquired the role of evaluating both public and private moral behavior • Censors selected senators, who served for life – during most of the Republic, there were 300 senators • In 81 BC, Sulla increased the number to 600 • Usually senate debated a bill, then magistrate presented it to the assembly who either accepted or rejected the bill as presented C. Legislation • Lex Canuleia – passed in 445 BC, gave plebeians the right of intermarriage with the patricians • 367 BC – Licinian-Sextian law provided that one of two consuls elected every year had to be a plebeian • Lex Aquilia – passed by concilium plebis in 287 BC, governed most of the law related to damage of property o Established rights of a master against someone who injured his slaves or animals • Lex Hortenisia – 287 BC, provided that measures passed by the plebeian assembly (plebis scita – plebiscites) were binding on all Romans, and had force of law 11.03 The Three Chronological Phases of Roman Procedure A. Legis Actiones • Lawsuits were conducted by means of the legis actiones (“suits of law”) • Praetor and judge (iudex) were the two most important officials involved in development of the legis actiones system • Praetor – person to whom plaintiff first appeared for the initial stage of procedure o Initial stage was called in iure (“in accordance with law”) o Praetor characterized dispute, determined whether a particular type of action addressed the particular dispute in question o Little impact on the law itself, simply decided whether the case could be heard by a judge • Opinion of the iudex was called a sentential B. Formulary Procedure (Per Formulam) • More flexible system that replaced the legis actiones in early 2 century BC • Formulae was less formal and less rigid, permitted expansion of fresh legal concepts and innovative ideas • Praetors began taking active role in shaping law in the formulary system • Lex Aebutia that legitimated per formulam was passed between 150 and 125 BC • Lex Iulia (17 BC) of Augustus established formulary procedure as the mandatory procedure for all kinds of lawsuits under Roman law • Formulary system got rid of the rigid in iure stage and substituted the use of a formula (written instruction) that delineated the facts and law for the judge • Praetors still determined whether the dispute was sufficiently significant to warrant being head by a judge o Parties appeared before praetors to initiate a suit – appearance was the litis contestation – it was here that praetor wrote formula that went to judge if he decided that there was a cause of action • Typical formula consisted of three different parts: 1. Iudicis nominatio – nomination of a judge 2. Intentio – statement of the plaintiff’s claim (most important section of every formula) • Made clear exactly what the action was – claim either a specific claim (certum) or an unspecific one (incertum) 3. Condemnatio – instruction to judge to either find defendant liable or not, based upon application of formula to his findings of fact • Almost any adult male could serve as a judge (often called an arbiter) • Small jury of recuperatores – three to five judges • Large jury – centumviri, 100 men usually for disputes involving inheritance of nobles or the rich C. Extraordinary Procedure (Cognitio) • Procedure used in the Post-Classical period • No distinction between the in iure and apud iudicem as the two were combined, unlike formulary system • Cognitio was a “trial before an official sitting alone as a judge” 11.04: Criminal Procedure A. Introduction • The Early Criminal Courts – Quaestiones Perpetuae o Criminal courts were established during the Republic o 149 BC – lex Calpurnia instituted permanent criminal court comprised of senators as jurors  This court decided cases concerning extortion by officials in the provinces  In the following period, Romans began establishing new permanent jury courts known as quaestiones perpetuae to handle criminal matters o 82/81 BC – dictator Sulla set up a system of quaestiones perpetuae  As a rule, any given permanent criminal court was established by vote (lex) of one of the citizen assemblies  Tried cases dealing with various topics such as homicide, forgery, counterfeiting, assault, treason, extortion, and embezzlement o Augustus created the last of the permanent criminal courts, his quaestiones perpetuae dealt with matters such as election practices, adultery, violence (vis), and treason • Evolution of the Courts and Criminal Jurisdiction o Courts convened by the Urban Prefect took precedence in mid-2 century st o 1 century AD – senate acted as a court for public crimes  In the early Empire, senate took over the legislative functions that had previously belonged to citizen assemblies  Emperors also wielded a fair degree of personal power in criminal matters o Urban Prefect controlled criminal jurisdiction within the city of Rome  By 200 AD, his jurisdiction extended outward from Rome to a radius of 100 miles  Other prefects also acquired criminal jurisdiction (prefect of the night watch, prefect of the grain supply, and praetorian prefects) B. Juries and Jurors • Earliest jurors in permanent criminal courts were senators • For a time, after changes by Gaius Gracchus (122 BC), equestrians took the place of senators, but Sulla gave the juries back to the senators • The lex Aurelia (70 BC) established system that, with minor adjustments, prevailed for the balance of time during which the quaestiones perpetuae operated • Lex Aurelia took prospective judges from three groups 1. Senators 2. Equestrians 3. Tribuni aerarii • In order to be eligible, prospective juror had to reside either in the vicinity of Rome or in Rome itself; jurors also had to be between ages of 30 and 60 • After lex Aurelia, most criminal juries have had 75 jurors – 25 senators, 25 equestrians and 25 tribuni aerarii C. Criminal Procedure and Affirmative Defenses • Any male citizen could initiate proceedings upon application to president of the court • Roman law considered it a criminal offense for an accuser to bring false charges (calumnia
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