Roman Law and Reception by Lorena Atzeri This contribution offers an overview of the origin, development and persistence of Roman law from its origins in the 8th century BC to the 19th century AD. Roman law and its sources, above all the Justinianic Codification – the so called Corpus Iuris Civilis – have left an indelible imprint on the development of law in Europe and laid the foundation of many European legal systems. The role of Roman law within the legal science in the Middle Ages and the modern period will therefore also be treated here. Moreover, this article will discuss the fundamental relationship between Roman and Canon law and the reception of Roman law in many countries in Europe. TABLE OF CONTENTS 1. Introduction and Periodisation 2. Public Law and Private Law 3. Legal Sources in the Republican Period 1. Lex and mos 2. The Law of the Twelve Tables 3. Jurisprudence and its Origins 4. The Stratification of the Legal System: Magisterial Law 4. Roman Legal Science 1. The End of a Legal Monopoly 2. The Formation of a Secular Jurisprudence 3. Jurists during the Imperial Period 5. Imperial Laws and their Collections 1. Codex Gregorianus and Codex Hermogenianus 2. Codex Theodosianus 3. Post-Theodosian Novels 4. The Leges barbarorum 5. Lex Romana Visigothorum or Breviarium Alarici 6. Lex Romana Burgundionum 7. Edictum Theoderici 6. The Corpus Iuris Civilis of Emperor Justinian I 1. First Codex 2. Digest 3. Institutes 4. Second Codex (or Codex Repetitae Praelectionis) 5. Novels 7. The Validity and Range of Influence of the Justinian Compilation 8. Roman Law in the Middle Ages 1. The Rediscovery of the Digest 2. The School of Bologna: the Glossators 3. The Commentators 9. Roman Law in the Modern Period 1. The Influence of Humanism: Mos Italicus and mos Gallicus 2. The Reception of Roman Law in Europe: France and Germany 3. Usus Modernus Pandectarum 4. The Reception of Roman Law in the Netherlands: the "Dutch Elegant School" 5. The Roman Law Tradition up to the 19th Century 10. Appendix 1. Links 2. Literature 3. Notes Indices Citation Introduction and Periodisation The concept "Roman Law"1 has assumed various meanings in the course of time. Thus it refers to the Roman legal system in its historical aspect, the Roman law tradition, that is, the persistence of Roman law in the various European legal systems (➔ Media Link #ab), the Common Law (➔ Media Link #ac), German Pandectism, and finally today's Roman law studies. The subject of the latter is Roman law in its content and history. It is not possible to treat Roman law here in the last-named respect. This account will therefore relate mainly to Roman law in the sense of the legal system of ancient Rome, the rediscovery of Roman law in the Middle Ages, and its spread in the single European countries up to the 19th century. Particular attention is paid to the rise and development of this law, to those involved in its creation, and to its sources. ▲1 The development of Roman law begins, in the traditional view, with the origins of Rome in 753 BC, and ends with the death of Emperor Justinian I (482–565) (➔ Media Link #ad). Justinian had had Roman law codified in its entirety, thus decisively influencing the subsequent development of law in Europe. These 14 centuries have been periodised variously by modern historiography and Roman law studies. The following is based on the most common division to be found in Roman law manuals: Monarchy (753–509 BC), Republic (509–27 BC), Principate (27 BC–284 AD) and Dominate (284–565 AD). ▲2 Public Law and Private Law The Romans themselves made the distinction between public law and private law. The most famous formulation of this distinction stems from the jurist Domitius Ulpianus (ca. 170–ca. 228 AD) (➔ Media Link #ae): "Ius publicum est quod ad statum rei romanae spectat, privatum quod ad singulorum utilitatem" (Public law is that which relates to the system of the Roman state, and private law that which relates to the interests of the individual: Digest 1.1.1.2). Thus public law relates to the organizational structure of society, and private law, by contrast, to its individual members and their relations with one another. Within public law, the Roman jurist Ulpian distinguished several sub-areas: "Publicum ius in sacris, in sacerdotibus, in magistratibus consistit" (Public law regulates the state cult, the priesthood and the magistrates: Digest 1.1.1.2). ▲3 Roman private law was based on various factors, and passed through a number of stages of development. The tripartite division of this sphere of law into personae, res, actiones (persons, things, lawsuits) was introduced by the Roman jurist Gaius (➔ Media Link #af) in his Institutes (an introductory textbook for law students). This division, upon which the emperor Justinian I also based his own Institutes, still builds the basic structure of many modern codifications (➔ Media Link #ag). Roman private law includes obligations and contracts, possession and property, relationships, marriage and marital property law, guardianship, legal and testamentary inheritance etc. It also includes delicta (delicts, unlawful acts, wrongs against an individual) such as furtum (theft) or iniuria (personal injury). Principles such as "good faith", "obligational relationship", and "liability" were introduced and further developed by the Romans. These institutions still serve as the basis of modern legal systems. They will not, however, be dealt with here because of their complexity. ▲4 Legal Sources in the Republican Period The succession of the different forms of government in the course of Roman history had a considerable influence on the ways in which law is created. The individual legal sources, as to their development and significance, underwent correspondingly great changes. ▲5 Lex and mos In the beginning, the king alone possessed the public powers, including that of law-making. Thus the leges regiae (royal laws) sanctioned by the king were, together with the mores (customs), the sole legal source. After the introduction of the Republic these laws lost their validity. ▲6 During the Republican era, which is characterized by the office of the consules, and the considerable weight of the popular assemblies, the leges populi Romani (laws of the Roman people, also called leges publicae) acquired increasing importance. The most important republican institutions and offices – consuls, popular assemblies and the senate – participated in the law-giving procedure. The plebeians also had their own magistrates and popular assemblies (the concilia plebis), whose resolutions were valid only for the plebeians themselves. At the latest from the 3rd century BC, however, the resolutions of the plebeian popular assembly were made equal to the leges publicae, and thus gained binding power for the whole community. ▲7 The Law of the Twelve Tables In the early republican period, matters between private individuals were settled by customary law rather than by leges. This situation only changed with the Lex XII Tabularum (Law of the Twelve Tables) (➔ Media Link #ah), which, according to tradition, was drawn up in 451–450 BC by two different committees of ten men each (decemviri legibus scribundis). The reason for this was, in the framework of the social struggle between classes, the growing complaints of the plebeians at the arbitrary application of the unwritten law by the ruling elite of patricians. This codification was preceded by direct contacts with the Greek world (including the Greek colonies in Southern Italy), where there were already important models such as the codification of Solon (ca. 640–ca. 560 BC) (➔ Media Link #ai). The Twelve Tables, the original text of which has not been preserved, regulated among other things the law of civil procedure including foreclosure, the law of inheritance, power relations, guardianship and trusteeship, property and its delimitation, obligations arising from delict, and the funeral system. ▲8 The codification of the previous customary law in a written form in the Twelve Tables rendered the misuse of power by the patricians towards the plebeians more difficult. The Twelve Tables remained the "cradle" of the law of the city of Rome, the "source of all public and private law"2 (until Justinian I) according to Titus Livius (59 BC–17 AD) (➔ Media Link #aj), and furthermore the only codification with a comprehensive claim to validity. It was on the basis of the Twelve Tables that the first legis actiones ("actions based on the law") and other legal institutions were developed; they also served as a basis for the first of all works of legal science, the Tripertita of the jurist Sextus Aelius Paetus Catus (2nd century BC) (➔ Media Link #ak), which was at the same time the first literary version of the Twelve Tables. ▲9 Jurisprudence and its Origins Within the Roman legal system, legal science (or jurisprudence) was also a recognized source of law. Having been founded by the pontifices, legal knowledge was from the beginning a prerogative of the elite. Beside the augurs and fetials, the pontiffs (pontifices) were indeed members of one of the most important Roman colleges of priests. ▲10 The legal knowledge of the pontiffs, together with their control of the calendar and therefore of the days on which, from the standpoint of religion, business might be done and lawsuits pursued, made the pontiffs themselves irreplaceable for the discussion and treatment of legal questions. Only they were in a position, not only to interpret existing norms and apply them to concrete cases, but also to create new law. Accordingly, knowledge of the formulae for lawsuits was their prerogative. Thus their collaboration was indispensable to both the magistrates and the parties for carrying out a case correctly (the principle of agere = to act, to manage a lawsuit).