Roman Law and the Origins of the Civil Law Tradition

Roman Law and the Origins of the Civil Law Tradition

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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 Springer International Publishing Switzerland 2015 This work is subject to copyright. All rights are reserved by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. Exempted from this legal reservation are brief excerpts in connection with reviews or scholarly analysis or material supplied specifically for the purpose of being entered and executed on a computer system, for exclusive use by the purchaser of the work. Duplication of this publication or parts thereof is permitted only under the provisions of the Copyright Law of the Publisher s location, in its current version, and permission for use must always be obtained from Springer. Permissions for use may be obtained through RightsLink at the Copyright Clearance Center. Violations are liable to prosecution under the respective Copyright Law. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. While the advice and information in this book are believed to be true and accurate at the date of publication, neither the authors nor the editors nor the publisher can accept any legal responsibility for any errors or omissions that may be made. The publisher makes no warranty, express or implied, with respect to the material contained herein. Printed on acid-free paper Springer is part of Springer Science+Business Media (www.springer.com)

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 accordance 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

viii Preface 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 customary law and canon law was affected in varying degrees by the rise of the nationstate 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 centuries. 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 permeated the legal systems of many countries around the world. This book begins with an overview of the historical and constitutional framework 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 development 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

Preface ix 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 qualification, 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, fundamental 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. Bürge of the Leopold Wenger

x Preface 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

Abbreviations Bruns, Fontes Fontes iuris romani antiqui, ed. C. G. Bruns, Tübingen 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

xiv Contents 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

Contents xv 4.5 Crime and Criminal Justice in the Dominate Period......... 182 4.5.1 The Court System... 183 4.5.2 The Criminal Justice Process...... 185 4.5.3 Judicial Protection of the Lower Classes... 190 5 The Codification of Roman Law... 193 5.1 Introduction... 193 5.1.1 Early Codifications............................ 193 5.2 The Theodosian Code................................ 195 5.3 The Germanic Codes of Roman Law... 196 5.4 The Codification of Justinian... 198 5.4.1 Introductory................................. 198 5.4.2 The First Code... 199 5.4.3 The Digest or Pandects...... 200 5.4.4 The Institutes... 205 5.4.5 The Second Code.... 207 5.4.6 The Novels... 208 5.4.7 The Corpus Iuris Civilis... 210 5.4.8 Concluding Note.... 210 6 Roman Law and Byzantine Imperial Legislation... 213 6.1 The Historical Context of Byzantine Law............. 213 6.2 Sources of Byzantine Law...... 215 6.2.1 Legal Development from the End of Justinian s Reign to the Accession of Basil I the Macedonian............. 217 6.2.2 Legal Development Under the Macedonian Dynasty... 222 6.2.3 Legal Development in the Late Byzantine Age...... 227 6.3 The Influence of Byzantine Law........................ 230 7 The Survival and Resurgence of Roman Law in Western Europe... 233 7.1 The Historical Background............................ 233 7.2 Roman Law the Early Middle Ages.............. 240 7.3 The Revival of Roman Law... 243 7.3.1 The Glossators...... 246 7.3.2 The Commentators... 250 7.4 The Development of Canon Law..... 254 7.5 The Growth of Commercial Law..... 257 7.6 Feudal Law....................................... 258 7.7 The Reception of Roman Law......... 260 7.7.1 The Reception of Roman Law in France... 262 7.7.2 The Reception of Roman Law in Germany.... 265 7.7.3 The Ius Commune in Italy, the Iberian Peninsula and the Netherlands... 268 7.7.4 The Influence of Roman Law in Britain... 272 7.8 The Humanist Movement..... 277 7.9 The School of Natural Law... 280

xvi Contents 8 Codification and the Rise of Modern Civil Law... 287 8.1 The Codification Movement...... 287 8.1.1 The Codification of Civil Law in France... 288 8.1.2 The Codification of Civil Law in Germany.... 290 8.2 The Civil Law Tradition... 296 8.2.1 Geographic Distribution of the Civil Law... 297 8.2.2 Defining Characteristics of Civil Law Systems... 302 8.2.3 Concluding Remarks........................... 308 Select Bibliography... 311 Index... 315