Roman Law and the Origins of the Civil Law Tradition ThiS is a FM Blank Page 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. 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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 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 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 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: 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 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 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 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 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 qualifica- tion, 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, 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.