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General Considerations Regarding the Historic Evolution of Roman Law

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General Considerations Regarding the Historic Evolution of Roman Law LawGeneral Review considerations vol. VII, regarding special issue,the historic December evolution 2017, of p.Roman 5-11 Law 5 GENERAL CONSIDERATIONS REGARDING THE HISTORIC EVOLUTION OF ROMAN LAW Cristinel-Ioan MURZEA Professor, PhD Faculty of Law “Transilvania” University of Braşov [email protected] Abstract The historic evolution or Roman law was in a determination relation with the factors which configure law, especially the social-political ones or the economical ones, but also those which pertain to the natural background in which Roman society evolved, thus passing from the citadel-state to the “polis” type of state and then to the universal state - the Roman empire - which would later become a model of political, military and legal organization for the entire antic world. Roman law was created in the history of the eleven centuries of existence or the Roman state which passed several stages of development, excelling in the classical age when, given the great reforms which are performed under the direct influence of the praetorian, the main legal magister, certain principles and legal institutions are created which proved to be viable across the centuries to follow, thus directly influencing the subsequent legislative activity in the modern and contemporary age in the European space. Keywords: positive law, factors which configure law, legal magister, the ages of Roman law, praetorian law, praetor’s edict The generic classification of law in the category of those disciplines which study society seen in its dynamics and historic evolution, has caused famed personalities of Roman jurisprudence to state that “where there is society, there is also law – ubi societas ibi Jus”1 an aphorism which allowed for reciprocity according to which – ubi jus ib societas2. As it was considered to be a gift from the gods, “jus civiale” was permanent, immovable and not subject to subsequent perfection, thus confirming the general perception about the state and the law which existed in the minds of Roman legislators according to which Roman law was eternal, thus, by a two way relation the Roman state must be eternal. According to this conception, Roman law accompanies every historical age of the Roman state, from the time it was created, namely mid sixth century BC and 1 N.Popa, General theory of law, Actami Publishing House, Bucharest, 1996, page 47 2 Ibidem 6 CRISTINEL-IOAN MURZEA until 565 AD when, in the opinion of most Roman specialists, the Roman state enters the age of the Greek influence. The fascinating history of the Roman state was a standard for the entire western civilization and the influence of the Roman Empire over posterity would objectify a few domains which stamped Roman civilization such as “the political system of Rome, its code of laws, its language, engineering, architecture which all have an equivalent in modern times”3. Perhaps the most durable inheritance was the creation of a system of laws which would regulate the social relations specific to a “trade economy, which was later known as a manifestation of the “will of the gods” thus again justifying the importance of the Roman state and civilization”4. These truths led the famed theoretician of the Rudolph von Ihering to state that “Rome made itself heard in the world by three means - by sword, by cross and by law”5. Starting from the systemic analysis of the factors which configure law within the antic society, the Romans managed to phrase new legal regulations, institutions and branches of law which emphasized the fundamental interests of the Roman society, thus turning the Roman state into the greatest military-political power of the antiquity, by creating what the historians unanimously called a universal state. As a result, the Roman lawmakers created a universal judicial language which shows exquisite legal technique. The legal language “shows exceptional precisions, by providing symmetry to all legal constructions by the fact that it represents the ideal tool of legal thinking”6. The Roman legal system is distinguished from the other legal systems of the antiquity by the abstract and concise texts, by the severe sanction system which led to the creation of individual regulations and legal institutions which are different from the moral regulations of the other legal systems. In the opinion of the esteemed theoreticians of Roman law “in the lack of own, well defined concepts, the legal thinking of the people of the antiquity was no match for the systemic and precise institutions of Roman law and were not able to exercise any influence over the general evolution of ideas and legal institutions”7. However, we believe that many times the Roman lawmakers would consider moral perceptions, thus attempting to show that “regulations of law respect all moral perceptions”8 which was likely to provide authority to all legal regulations 3 Margaret Oliphant, Antic world atlas, MAS Publishing House, Bucharest, 1999, page 47 4 C.Murzea, Roman law, All Beck Publishing House, Bucharest, 2003, page 17 5 R.von Ihering, Geist der Rimischer Rechts, volume I, Paris, 1888, page 308 6 R.von Ihering, L,esprit de droit romain, volumes I-IV, Paris, 1888 7 Th Sambrian, Roman law institutions, Asitech Publishing House, Craiova, 2009, page 27 8 A.E.Giffard, Precis de droit romain, volume 1, Paris, Dalloz, page 4; Ed.Cuq, Revue historique de droit francais et etranger, Paris, 1924, page 373; B.Biondi Edos Wratisloviac, 48, 1956, 2, page 177 General considerations regarding the historic evolution of Roman Law 7 and show that traditions and the old habits of the ancient Romans, the founders of the eternal citadel, are considered and respected. The reality is entirely different, as the legal regulations and the moral ones were significantly different in essence, as pointed out by the esteemed legal adviser Paul who stated that “not all which is allowed is also moral – Non omne quod licet honestum est”9. Without a doubt, the fact that Roman law was an ideal tool created in order to ensure the supremacy of the patricians, who aimed to dominate the state and the political life and preserve their class privileges. By analyzing the historical evolution of Roman law, we notice that it permanently interfered with the social-economical mutations occurred in the structure of Roman society, a permanent connection between tradition and innovation, especially after the passing of Aebutia Law. These legal provisions passed mid second century BCand open a whole new stage of development, a reforming one in which we witness a complex process which would organically combine traditions and innovations in the extensive work of adapting “jus civilae” to the new regulations of the Roman state in the Republican age, which practically regulated Rome’s universal power in the antic world. Thus, the regretted professor Ion Cătuneanu stated that the “need to reform and the conservative spirit as well as the praetorian as an organizer of this process has created the way for these ideas by using procedural means which were so subtle and practical that even today they are used in the legal arsenal, such as fiction or tasking the judge with ruling on the litigation according to the parties; intention and judging people of good faith, thus pronouncing an “ex aequa et bona” sentence10. Essentially, the reforming work of the praetorian attempted to move towards tradition, and its regulations, thus permanently requiring the respect of equity and good faith, in interpreting the way in which the internal will of the parties is exteriorized; most times new legal regulations were created which would change the system of “jus civilae” which was extremely difficult and excessively formalist. This was owed to the influence of objective factors of law such as the social- economic evolution of the Roman state, thus passing from the closed economy specific to the polis citadel-state economy to a trade economy based on exchange; on the other hand, Rome was transformed in a universal state which is in a permanent intercultural relation with the conquered areas which the Roman generically assimilated as “jus gentium”. The praetorian, by its intervention, made possible a certain fact, that of providing a science interpretation of the legal system, by considering the principle 9 Paul, lib.62 ad edictum, Dig 50.17.144 10 I.Catuneanu, Elementary course of Roman law, Cartea Românească Publishing House, Cluj, 1922, page VIII 8 CRISTINEL-IOAN MURZEA of equity and good faith seen in their generic dimension, thus creating a procedure of applying law by combining the judicial logic which derives from interpreting positive law with harmonizing the particular interest of the subjects of law. Thus, the entire paradigm of the Roman system of law was built, by considering the legal commandment imposed by what Celsus synthetically called “Jus ars aequi et boni”. In his reforming activity, the praetorian would insert the living conscience of the Roman people, by motivating that civil law is eternal in content and form and its interpretations allow for the valorization of the subjective rights of Roman citizens. In this, historical-judicial context, Aebutia law regulated the form procedure, by emphasizing the importance and the role of the praetorian’s edict as the most important judicial magister, whose general competence was that of interpreting civil law and even completing it or indirectly changing it by procedural means by providing the parties with new legal means meant to valorize their legitimate interest thus creating new legal institutions. We must also mention the fact that, in its activity, the praetorian was permanently subordinated to the principle of legality, as according to the spirit and the letter of Aebutia law, the praetorian was not allowed to leave the territory of law in order to change civil law11.
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