Exploring the Influence of Roman Foundations on Modern Civil Law
Foreword
Roman jurisprudence, originating from the inception of Rome in 753 BCE until the decline of the Western Roman Empire in the 5th century CE, continued to be applied within the Eastern, or Byzantine Empire up until 1453. This body of law profoundly influenced the legal structures of the majority of Western civilization and even some Eastern regions. It lays the foundational principles for the legal codes of most European continental nations (refer to civil law) and its derivative legal systems globally.
Currently, the concept of Roman law extends beyond the confines of ancient Roman statutes. The legal frameworks established by the Romans shaped the legal systems of other societies long after the Roman Empire had ceased to exist, even in regions not previously under Roman governance. A notable example is in Germany where, until the nationwide code was established in 1900, Roman law was used as "subsidiary law", meaning it was employed unless local laws specified otherwise. This continued use of Roman law in parts of Europe well past the Roman Empire's existence was not a direct continuation of the original Roman law. Although based on the Corpus Juris Civilis — comprehensive legal codification by Emperor Justinian I — this law was reinterpreted and expanded upon by successive generations of legal scholars from the 11th century onwards, incorporating elements from non-Roman sources.
Figure 1: Cicero Denounces Catiline, Cesare Maccari, 1880
Development of the Jus Civile and Jus Gentium
During the extensive era of the Roman Republic and Empire, legal developments occurred in stages. Throughout the Republic era (753–31 BCE), the jus civile (civil law) was formulated, primarily through custom or legislation and was solely applicable to Roman citizens. By the mid-third century BCE, the Romans developed jus gentium (law of nations), administered by magistrates and governors to both Romans and foreigners, emerging not from legislation but from judicial development.
Initially, Roman law was based on the principle of personality, where only citizens were subject to the state's laws. Foreigners, unless protected by bilateral treaties, had no legal rights and were vulnerable to exploitation. However, due to Rome's expanding trade interests, it became necessary to extend some form of legal protection to foreigners. This couldn't involve applying Roman law directly due to its citizen-exclusive nature and the formalistic nature of early jus civile which foreigners would likely resist.
The law applied by magistrates likely consisted of three components:
A pre-existing mercantile law known to Mediterranean traders
Adaptable Roman legal institutions, stripped of formalism
The magistrate's own interpretation of fairness and justice
This composite legal system, jus gentium, was also implemented in the governance of Rome's provinces, allowing governors to dispense justice to non-citizens, termed peregrini. Over time, especially after the widespread grant of citizenship in the third century CE, the distinctions between jus civile and jus gentium diminished. The practical application of jus gentium evolved to signify its uniform applicability to all, whether citizens or not, and became philosophically aligned with the notion of a universal law inherent to human nature, an idea influenced by Greek philosophical thought.
Figure 2: Bronze slab with the Lex de imperio Vespasiani, 69-70 BCE
How Written and Unwritten Laws Shaped Rome's Legal System
The Romans categorized their laws into jus scriptum (written law) and jus non scriptum (unwritten law), where “unwritten law” referred to traditional customs and “written law” encompassed laws originating from any written authority. The written laws included various forms, the earliest being leges (singular lex), which were statutes enacted by the Roman assemblies. Despite the assemblies being controlled by the patrician class, the plebeians, through their own council, passed resolutions known as plebiscita. These resolutions only became binding on all citizens after the enactment of the Lex Hortensia in 287 BCE, after which they were generally recognized as leges. Typically, leges were a primary source of law during the republic, however with the establishment of the empire by Augustus Caesar in 31 BCE, the assemblies gradually lost their power, merely formalizing the emperor’s directives. The last recorded lex occurred under Emperor Nerva’s rule (96–98 CE).
The most foundational set of laws, the Twelve Tables, was created in 451–450 BCE amidst the plebeians fight for political rights, aiming to establish a written public code that patrician magistrates could not arbitrarily alter against plebeian litigants. Although the complete text of the Twelve Tables is lost, surviving fragments suggest it covered a range of issues including family law, offenses and procedural law.
Another category of written law was the edicta (edicts), issued by a praetor or other high magistrates like the curule aediles, who oversaw market regulations. Initially, edicts outlined the legal agenda for a magistrate’s term and, over time, evolved into tools for legal innovation, especially during the later republic, diminishing the role of leges in private law.
Under the procedural system, Roman magistrates wielded significant authority in granting or denying judicial remedies, leading to the development of jus honorarium, which often took precedence over civil law. This body of law continued to evolve until around 131 CE, when Emperor Hadrian ordered the consolidation of the edicts, rendering them immutable except by the emperor.
Senatus Consulta, or senate resolutions, which initially served as advisory during the republic, gained legislative significance in the early empire as they began to merely affirm the emperor’s decisions, eventually making the emperor’s proposals the primary legislative force. Over time, emperors stopped consulting the Senate for legislative approval. The Constitutiones Principum represented another form of written law, expressions of the emperor’s legislative authority, making the emperor virtually the sole source of law by the mid-second century CE. Imperial legislation comprised edicts, directives to officials, written responses to inquiries and judicial decisions.
Figure 3: Emperor Adrian as Pontifex Maximus, 117-138 CE
Lastly, the responsa prudentium were interpretations and legal opinions provided by esteemed lawyers to those seeking advice. Initially, legal knowledge was guarded by the pontiffs, but by the early third century BCE, a recognized class of legal consultants, juris consulti, emerged. These individuals, often prominent figures seeking public favor, offered free legal advice, helping shape the praetor's edicts and assisting in legal proceedings. Emperor Augustus later authorized certain jurists to issue responsa with his backing, enhancing their influence, though this practice declined by 200 CE.
In the early empire, extensive legal commentaries were penned by distinguished jurists on various legal topics, but by the fifth century, a law was enacted limiting citations to only certain jurists works, reflecting a decline in legal scholarship in later periods.
Unraveling the Legacy: What to Know About the Law of Justinian
Upon ascending to the throne in 527 CE, Byzantine Emperor Justinian I encountered a legal system in disarray, composed of what were commonly referred to as "old law" and "new law".
The old law included:
Statutes enacted during the republic and early empire that were still relevant
Senate decrees from the late republic and the first two centuries of the empire
The commentaries of jurists who had been authorized by emperors to declare the law
These jurists had effectively summarized all significant legal matters in their writings. However, many documents and records from this period were either scarce, lost or of questionable authenticity. The collection of these documents was so costly that not even public libraries held complete collections, and the writings often contained discrepancies.
The new law consisted of the myriad decrees issued by emperors during the later periods of the empire, which were just as disorganized. These imperial constitutions were plentiful and often conflicting, with no comprehensive collection in existence, making it necessary to obtain many separately. A coherent compilation of both the new and old law, free from contradictions, was deemed essential.
Immediately after becoming emperor, Justinian formed a commission tasked with revising the imperial constitutions. In 529, after evaluating the existing constitutions for their practical value, reducing redundancies, resolving contradictions, and adjusting provisions for contemporary relevance, the commission produced the Codex Constitutionum. This codex, formally established in 529, annulled all imperial ordinances not included within it. A revised version from 534 survives as part of the Corpus Juris Civilis or Corpus Iuris Iustinianeum.
Figure 4: Emperor Justinian I Standing Next to Court Officials, Palatinae Guards and Deacons
Encouraged by this initial success, Justinian embarked on a more challenging task to organize and condense the writings of jurists. In 530, a new team of 16 distinguished lawyers was assembled to compile, clarify, and systematize these writings, resulting in the publication of the Digest in 533. This compilation, also known as the Digesta or Pandectae, comprised 50 books and, upon its enactment, led to the repeal of all other existing juristic writings and old law statutes. Around the same time, the Institutes of Justinian (Institutiones), a basic outline of Roman law, was also published.
Between 534 and his death in 565 CE, Justinian issued numerous further decrees, known as the Novellae Constitutiones Post Codicem, or simply the Novels, which significantly modified existing laws.
These texts—the revised Codex Constitutionum, the Digest, the Institutes, and the Novels—collectively form the Corpus Juris Civilis. This compilation, augmented by additional decrees from later emperors, remained the principal legal reference in the remnants of the Roman world. In the ninth century, Emperor Leo VI the Wise developed the Basilica, which was a new legal compilation in Greek, integrating parts of the Codex and Digest with some content from the Novels and later imperial decrees. In the Western provinces, the law as consolidated by Justinian continued to prevail.
Understanding the Classification of Roman Law: The Jurisprudence of Persons
The eminent second century jurist Gaius stated, "The primary classification within the law of persons is that all individuals are either free or slaves." Essentially, a slave was treated as personal property, owned and transacted as any other asset. This status left the slave devoid of rights and, with some exceptions in criminal law, devoid of obligations. While legally considered property, the inherent human nature of a slave often moderated this harsh legal reality. Slaves were unable to enter contracts or possess property; however, they could hold a de facto estate, which they retained upon emancipation. Furthermore, commitments made by slaves could be enforced against their owners if necessary. When freed, slaves generally attained both freedom and citizenship.
Citizenship bore significant implications for private law as only citizens were subject to the jus civile. Non citizens were classified either as Latini, denizens of Roman settlements who had rights akin to those of the original Latin League, or as peregrini, members of foreign communities or territories under Roman governance without integration. The extensive grant of citizenship by Emperor Caracalla in 212 CE diminished the relevance of these distinctions.
Dominant within the Roman family structure was the patria potestas, or the absolute paternal authority, which the senior male wielded over his direct and collateral male descendants of any age, as well as those brought into the family through adoption. This authority originally extended to severe disciplinary measures and exclusive rights in private law, meaning that any property acquired by children under this power was owned by the father. While fathers could permit children to manage certain assets, these technically remained the father's property.
By the first century CE, changes had moderated the patria potestas; the father's life-or-death authority was reduced to minor disciplinary powers, and sons could engage in contracts that also bound the father under conditions similar to those for slaves. Sons could retain earnings from military service and draft wills for such earnings. Under Emperor Justinian, further modifications allowed sons to own various types of professional earnings outright and limited the father’s rights over properties inherited from the mother to usufruct. The patria potestas typically ended with the father’s death, though he could voluntarily end it sooner through emancipation. A daughter would leave her father’s patria potestas upon marriage if she entered into her husband’s manus.
Figure 5: Patria Potestas in Rome
Marriage existed in two forms within Roman law: with manus and without. The former, which gave husbands autocratic power (manus) similar to patria potestas, became rare by the late republic and had vanished by Justinian’s time. The more prevalent form throughout most documented periods was marriage without manus, established merely by the couple beginning to live together with marital intent, typically signified by the wife moving to the husband’s home. In such marriages, the wife remained under her father's potestas if he lived; otherwise, she retained her previous guardian. Both parties needed to be citizens or possess conubium. Conubium was defined as 'the right to enter into a marriage with a foreigner that would be recognized and upheld in a Roman court, complete with the full validity of rights concerning wills and paternity.' Roman citizens had the perpetual ability to marry one another, barring any legal restrictions. Property rights remained separate within these marriages, and inter-spousal gifts were deemed invalid.
Divorce in early Rome was restricted to specific grounds and always possible for the husband in manus marriages. In non-manus marriages, either spouse could initiate divorce.
Concubinage was a recognized form of union without the financial and social standing of marriage, where women were of lower status, and children did not inherit from the father. A man could not maintain a wife and a concubine simultaneously. Legislation by Emperor Constantine in the fourth century allowed children from such unions to be legitimized by their parents’ subsequent marriage, a provision extended to all illegitimate children by medieval civil law.
Persons below the age of puberty required guardians unless under patria potestas. Guardians could be appointed by the father or the male head of the household, or by the state if no family appointment was made. Originally considered adults at puberty, Roman youth between puberty and age 25 later required magisterially appointed guardians. Women not under patria potestas or manus similarly required guardians until this requirement became largely ceremonial and was eventually abolished under Justinian.
Understanding the Classification of Roman Law: The Jurisprudence of Corporations
Roman legal theory did not embrace a generalized concept of corporate personality as entities with inherent rights and duties. The term for a corporation or legal person did not exist in Roman vocabulary. However, certain groups were endowed with specific legal capacities, and these powers were recognized by the state.
Four distinct corporate entities were recognized:
Municipia, initially comprising conquered cities and later local communities, had recognized corporate capabilities such as owning property and entering contracts. They gained rights like manumitting slaves and accepting legacies, and by postclassical law, they could be named as heirs.
The Populus Romanus collectively held property, entered contracts, and could be designated heirs, including the treasury’s assets.
Collegia, including trade guilds and religious societies, managed corporate property from the republic era. The emperors regulated these bodies, requiring state authorization for their formation and overseeing their rights closely.
Charitable funds, particularly those associated with churches, were regulated by imperial law to ensure proper use. These funds, typically used for charitable purposes, were managed under close supervision, with temporary ownership possibly vested in administrators.
Figure 6: Archaeological Area of the Imperial Fora, Rome
Understanding the Classification of Roman Law: The Jurisprudence of Delict and Contract
Roman legal obligations were traditionally divided into those arising from delict (wrongful acts) or contract, with Justinian recognizing quasi-delict and quasi-contract as additional categories.
Historically, Roman law transitioned from personal retribution to state-enforced compensation for wrongs. Assault penalties were initially reciprocal but evolved into fixed monetary compensations. Theft was penalized doubly, increasing to fourfold for in-flagrante delicto thefts, with courts later determining all injuria (including defamation and insult) penalties. Property damage was governed by specific statutes, notably the Lex Aquilia, broadened by judicial interpretation.
Contract law was minimal in early Rome, with oppressive loan agreements under nexum becoming obsolete by the empire era. Nexum, in ancient Roman law, was a formal contract type that involved lending money under conditions so harsh that the debtor could become entirely subjugated to the creditor. This agreement was finalized through a ceremonial process that used scales and copper, which were traditional symbols of property transfer. This practice was abolished in the late fourth century BC by the Lex Poetelia, which liberated all individuals who were nexi (that is, insolvent debtors bound to their creditors). Classical contracts were categorized into four types: literal, verbal, real and consensual, with stipulatio as a key verbal contract form, necessitating precise verbal exchanges initially, later supplanted by written agreements.
Real contracts required actual transfer, covering loans and deposits, while consensual contracts, vital in everyday transactions like sales or services, relied solely on agreement. Reciprocal agreements enforced performance once one party acted, a principle extending to several specific enforceable agreements, though broad contractual enforcement was never fully realized in Roman times.
Figure 7: Lex Aquilia
Quasi-delict grouped various non-delict harms, regulating actions like damage from property to public spaces or losses on commercial premises, while quasi-contract covered non-agreed obligations, allowing claims for intervention in another’s affairs or compensation for unjust enrichment, an innovative legal concept contributing significantly to legal theory.
Conclusion: The Enduring Legacy of Roman Law and How It Continues to Shape the Modern Legal System
Roman law holds a distinct position in the annals of global legal history. It epitomizes the most advanced stage of legal development in both ancient societies and the broader ancient world. Notably, it encompasses a broad array of life's dynamics and interactions. Roman law meticulously crafted various mechanisms to safeguard the rights of private owners and participants in property transactions. Drawing on global precedents, including those from Eastern nations, the Romans were pioneers in articulating and refining the legal frameworks governing individual private property and related rights. This led to the emergence of a sophisticated legal culture under Roman law, enriching the global heritage and influencing subsequent civilizational developments.
Roman jurisprudence also laid the groundwork for an autonomous field of legal study and the establishment of professional legal education. Rome’s private law significantly shaped the evolution of legal systems throughout the medieval period and into contemporary times. Its principles continue to influence modern legal practices and scholarship even in regions that do not differentiate between public and private law.
A key feature of Roman law was its ability to devise universal and logical legal principles that later became foundational to European civilization. It marked the first time that law was decoupled from its religious and mythological roots, gaining a distinct status and becoming recognized as a cornerstone of civil governance and societal advancement.
Bibliographical References
Nikolaus Benke/Franz-Stefan Meissel, (2019) Roman Law of Property, translated by Caterina M. Grasl
Allen Johnson/Paul Coleman-Norton/Frank Bourne, (1961) Ancient Roman Statutes
Wolfgang Kaiser, (2015) Justinian and the Corpus iuris civilis, in: Johnston, The Cambridge Companion to Roman Law 119-148
Thomas Olechowski, (2021) Introduction to Austrian and European Legal History
Peter Stein, (1999) Roman Law in European Legal History
Alan Watson, (1985) The Digest of Justinian
Francis de Zulueta, (1946) The Institutes of Gaius
Visual References
Figure 1: Cicero Denounces Catiline, Cesare Maccari, 1880, Fresco
https://www.senato.it/leg16/3049?documento=25&voce_sommario=15
Figure 2: Bronze Slab with the Lex de Imperio Vespasiani, 69-70 BCE
https://www.museicapitolini.org/en/opera/tavola-bronzea-con-la-lex-de-imperio-vespasiani
Figure 3: Adrian as Pontifex Maximus, 117-138 CE
Figure 4: Emperor Justinian I Standing next to Court Officials, Palatinae Guards and Deacons
Figure 5: Patria Potestas in Rome
https://www.storiaromanaebizantina.it/la-patria-potesta-nellantica-roma/
Figure 6: Archaeological area of the Imperial Fora
https://www.turismoroma.it/sites/default/files/fori-imperiali--slide2_0.jpg
Figure 7: Lex Aquilia
