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Roman and the Origins of the Tradition ThiS is a FM Blank Page George Mousourakis

Roman Law and the Origins of the Civil Law Tradition George Mousourakis Faculty of Law 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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Springer is part of Springer Science+Business Media (www.springer.com) To Sumi, Eli and Kent ThiS is a FM Blank Page Preface

The civil law tradition is the oldest and most prevalent legal tradition in the world today, embracing the legal systems of Continental , 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: , as transmitted through the sixth century codification of Emperor Justinian; Germanic ; and the 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- of 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 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 , derived from rather than . 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 . In the final stages of this process when law-making was increasingly centralized, jurisprudence together with was compiled and ‘codified’. The codification of the law both completed the development of

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Roman law and evolved as the means whereby Roman law was subsequently transmitted to the modern world. The second phase of Roman (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 . 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 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 (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 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 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 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 qualifica- tion, the sources give valuable insight into how the Romans thought about and criminal . 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 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 ‘’ 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 in New Zealand, Australia, Europe and . 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 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, Tu¨bingen 1909, repr. Aalen 1969 C. Codex of Justinian C. Th. D. 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 Nov Novels of Justinian XII T Law of the

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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 ( 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 ) ...... 14 1.4.1 General Historical Background ...... 14 1.4.2 The Constitutional Framework ...... 16 1.5 The Post-classical Period (Late Empire or ) ...... 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

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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 Libertatis ...... 98 3.2.2 Status Civitatis ...... 101 3.2.3 Status Familiae ...... 102 3.2.4 Capitis Deminutio ...... 105 3.2.5 ...... 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 ...... 115 3.3.3 ...... 124 3.4 The ...... 126 3.4.1 The Law of ...... 128 3.4.2 The Law of ...... 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 ...... 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 ...... 166 4.4 The Administration of Criminal Justice in the Principate Age . . . 173 4.4.1 The Criminal of the ...... 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 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 ...... 213 6.2 Sources of Byzantine Law ...... 215 6.2.1 Legal Development from the End of Justinian’s Reign to the of 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 ...... 240 7.3 The Revival of Roman Law ...... 243 7.3.1 The ...... 246 7.3.2 The Commentators ...... 250 7.4 The Development of Canon Law ...... 254 7.5 The Growth of ...... 257 7.6 Feudal Law ...... 258 7.7 The Reception of Roman Law ...... 260 7.7.1 The Reception of Roman Law in ...... 262 7.7.2 The Reception of Roman Law in ...... 265 7.7.3 The Commune in , 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 ...... 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