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The characteristic of the earlier Roman law was its extreme formalism. From its first secret administration as the law of the privileged classes it expanded until it became the basis of all civilized legal systems. The Roman law in its maturity recognized a definite natural-law theory as the ultimate test of the reasonableness of positive law, and repudiated the concept that justice is the creature of positive law. Cicero (De leg., I, v) tells us "Nos ad justitiam esse natos, neque opinione sed natura constitutum esse jus" (i.e. Justice is natural, not the effect of opinion).
The characteristic of the earlier Roman law was its extreme formalism. From its first secret administration as the law of the privileged classes it expanded until it became the basis of all civilized legal systems. The Roman law in its maturity recognized a definite natural-law theory as the ultimate test of the reasonableness of positive law, and repudiated the concept that justice is the creature of positive law. Cicero (De leg., I, v) tells us "Nos ad justitiam esse natos, neque opinione sed natura constitutum esse jus" (i.e. Justice is natural, not the effect of opinion). Justice was conformity with perfect laws and jurisprudence was the appreciation of things human and divine — the science of the just and the unjust, but always the science of law with its just application to practical cases. Law was natural or positive (man-made); it was natural strictly speaking (instinctive), or it was natural under the Roman concept of the jus gentium (law of nations) — natural in itself or so universally recognized by all men that a presumption arose by reason of universality. The Romans attributed slavery to the jus gentium because it was universally practised, and therefore implied the consent of all men, yet the definition of slavery expressly states that it is contra naturam, "against nature". The precepts of the law were these: to live honestly; not to injure another; to give unto each one his due. Positive law was the jus civile, or municipal law, of a particular state.
The classic period of development of Roman Law was in the second and third centuries of our era, and this is known to us for the greater part through the compilations of Justinian, in the sixth century. In the form given it by Justinian, the Roman Law, through the revival of the eleventh and twelfth centuries, spread over Europe and became the foundation of modern European law.
The history of Roman law has been variously divided into periods. One division is into the Regal Period, from the foundation of the city, the Republican, until the time of Augustus, and, finally, the Imperial, closing with the legislation of Justinian in the year 1280 (A.D. 526) from the foundation of the city (Howe). Again, the lapse of almost 1000 years, from the Twelve Tables to the reign of Justinian, has been divided into three periods: the first, A. U. C. 303-648; the second A. U. C. 648-988, the splendid age from the birth of Cicero to the reign of Alexander Severus; the third, from Alexander to Justinian, in which "the oracles of Jurisprudence were almost mute" (Gibbon). A better division, and one which more accurately corresponds with the growth of Roman political institutions, gives four periods: the first, from the foundation of the city down to the laws of the Twelve Tables; the second, to the battle of Actium (beginning of the empire); the third, from the battle of Actium to the accession of Diocletian; the fourth, from Diocletian to the death of Justinian (565). The first of these four periods is that of infancy; the second, of adolescence; the third, of mature age; the fourth, of senility and decay (Ortolan; Staedtler).
Our knowledge of this period is largely conjectural, from data furnished by the subsequent period. Roman history begins with pure myth and fable, then passes through a stage of blended fable and fact, and finally becomes history properly so called. The history of Roman Law has no vital interest with the petty communities and subordinate nationalities that were finally absorbed in the three ethnological elements, Latin, Sabine, and Etruscan, with which the dawn of Rome's legal history begins. Of these three elements the Etruscan was more advanced in civilization, with definite religious and political institutions (Ortolan). The only Etruscan text we have is that of the nymph Vegoia (lasa Veku), which recognizes the right of property and protects it with the wrath of the gods (Casati). It is customary to speak of certain leges in the earliest historical period as leges regiœ: whether these were real statutes enacted during the regal period or the mere formulation of customary law is disputed (Bruns, introd. note to "Leges Regiœ" in "Fontes Jur. Rom. Antiqui"). There were some well established, though crude and radical, rules of private law, such as the harsh paternal power and the equally drastic right of the creditor over his unfortunate debtor. It may safely be affirmed that during this primitive period customary law was the only law.
Pomponius says: "At the beginning of our city, the people began their first activities without any fixed law and without any fixed rights: all things were ruled despotically by kings" (2, §1. D. 1. 2). In the next paragraph he speaks of the so-called leges regiœ as collected and still extant in the book of Sextus Papirius. Again, after the expulsion of the kings the people resorted to customary law. The great mass of historical facts prove that there was no private law other than custom down until this period closed with the enactment of the Twelve Tables (Stædtler). The lack of a precise definition of their rights was the principal grievance of the plebeians, and in A. U. C. 292 their tribune, Terentilius Arsa, proposed the nomination of magistrates to formulate written laws. In 303 decemvirs were appointed, and they agreed upon ten tables during the first year of their magistracy, and two additional tables the second year. The political object sought by the plebeians, namely, the fusing of both classes into one, was not attained: private rights, however, were given definite form. These laws of the Twelve Tables contained the elements from which, in process of time, the vast edifice of private law was developed.
The law expanded rapidly and commensurately with the expansion of Rome in territory and civilization. The jurists, however, had not yet the imperium, or power of developing the law through judicial legislation. The growth of law was simply the result of interpretation of the Twelve Tables. The jurists of this period were skilled lawyers who penetrated the spirit of the law, but were not free to depart from it. The few leges passed by the people in assembly had practically little to do with private law. The Senate, which was really an administrative body, began to assume legislative powers, but this source of law was as yet unimportant. The activity of the jurisconsults in interpreting the Twelve Tables was the most conspicuous factor in the growth of private law, and their labours were designated by the same term which designated the Twelve Tables, i.e., jus civile. The Roman magistrate, however, did possess the imperium and, while at first he used it sparingly, he at length began to develop an equitable jurisdiction, giving remedies in a limited number of cases where the jus civile gave none. He proceeded cautiously and upon a rational theory, and, since he could not introduce chaos into the law by varying it in the particular case, he anticipated its defects in hypothetical cases and announced the relief which he would give. The prætor made an announcement in an edict upon assuming magistracy: he was bound by his edict, yet he did not discard the edicts of his predecessors, and in this sense the prætor's edict became an edictum perpetuum, i.e., permanent. When experience showed the value of an innovation, the prætor made it, and thus the honorary law became a developing system, modified and improved from year to year. In the course of time it became voluminous. Most of the changes wrought by the prætor were inroads (after the manner of the English chancellors), upon the harsh rigour of the Twelve Tables. The Twelve Tables were deferentially treated by the prætor, whose functions were constructive, and not destructive, yet, by reason of his imperium, he was not bound by the jus civile in the drafting of his edict. Hence the prætor had the power to engraft upon Roman law new ideas and new principles derived from the jus gentium. There were many non-citizens at Rome, and non-Roman relations were administered by a special magistrate, called the prœtor peregrinus, under a body of principles which were conceived to be common to all men. There was a naturalness and an equity in these principles in which all men were presumed to concur. This was in striking contrast with the jus civile, and the contact of legal ideas began to broaden and liberalize Roman law. This influence, however, had not yet overpowered the jus civile at the close of this second period.
In this, the classic period, the science of law reached a high degree of perfection. Leges were very rare, and were usually measures of public policy to which some slight elements of private law were incidental; such were the legislative measures rewarding marriage and dealing with the emancipation of slaves (Stædtler). Senatus-consulta, on the contrary, became of increasing importance, and, whereas at first their constitutionality, so to speak, had been doubted, they were fully recognized as law. Other sources were the constitutiones principum, or imperial constitutions; these took the form of edicts, mandates, decrees, and rescripts. The edictal legislation of the magistrates (the honorary law) had become so voluminous that it was incapable of further growth; it was, moreover, out of harmony with changed positive legislation and with changed conditions. Salvius Julianus was commissioned by Hadrian to revise and edit it, and on this revision many of the jurisconsults made their commentaries ad edictum. In the literary splendour of the Augustan age the jurisconsults took high rank; their work was not only scientific, but literary, and it has been said that, had all its other monuments perished, classical Latin would have survived in the fragments of the jurisconsults of this period. Augustus granted to the most eminent in law the startling jus respondendi, i.e., the right of officially giving, in the name of the prince, opinions which were legally binding upon the judge. These responsa were in writing and were sealed before delivery to the judge. Among the celebrated jurisconsults were Capito and Labeo, founders of rival schools (2, § 47, D. 1. 2). Others were Salvius Julianus and Sextus Pompomus, both represented by copious fragments in the Pandects. In the second century came Gaius, of whose "Institutes" those of Justinian are only a recension. In 1816 a palimpsest was discovered by Niebuhr in the library of the cathedral chapter of Verona. On it were some compositions of St. Jerome, in places superimposed on an earlier writing, which proved to be a copy of the lost "Institutes" of Gaius. Gaius himself was a contemporary of the Emperor Hadrian, but scientific research has fixed the date of this copy of his great work as a little earlier than the time of Justinian, in the sixth century.
In the third century lived Papinian, "the Prince of the Jurisconsults". Ulpian and Paulus also were among the greatest lawyers of the period: approximately one-sixth of the Digest is made up of fragments from Ulpian, while Paulus is represented by upwards of two thousand fragments (Staedtler). Modestinus was the last of the great series. We have in manuscript part of an elementary work by Ulpian and the Institutes of Gaius. In Justinian's Digest a very large part of the writings of the classical jurists is to be found. Most of the original treatises have perished; two thousand of these, containing three million unpunctuated and unspaced lines, were abridged to one hundred and fifty thousand lines or sentences. The originals became useless in practice, and were for the greater part soon lost. A number of classic jurists are represented in a collection of 341 fragments, discovered in the Vatican Library in the early part of the nineteenth century by Cardinal Mai, and edited by him at Rome in 1823. Another edition was published in Germany in 1828, under the title "Fragmenta Vaticana". Fragments of the classic jurists are also contained in the "Collatio Mosaicarum et Romanarum Legum", known also as the "Lex Dei", compiled in the fourth and fifth centuries. They are found also in the "Breviary of Alaric" or "Lex Romana Wisigothorum", which contains the Sentences of Paulus and the excerpts from Papinian's "Responsa". Fragments from the jurisconsults are found in the "Edictum Theodorici" or "Lex Romana Ostrogothorum" and in the "Lex Romana Burgundionum" (see below).
The seat of an absolute monarchy was now shifted from Rome to Constantinople, and the Empire was divided into East and West. Constructive jurisprudence was a thing of the past, and the sources of law were merged in the will of the prince. The edicts of the prætorian prefect were given the same effect as the imperial constitutions, which were concerned principally with public law. Private law was vast and diversified, but it had long since ceased to have any stimulating growth. The jus civile, expanded by the ancient jurists in the interpretation, of the Twelve Tables, the honorary law of the magistrates, the public legislative acts of the early empire, the mass of imperial constitutions, and the writings of the classic jurisconsults, composed a heterogeneous jumble of legal materials from which a systematic jurisprudence was destined to arise. An attempt was made in the early fifth century to effect a workable system, and the law of citations was adopted by which the relative authority of the classic jurists was posthumously fixed by statute. Numerical weight of authority was done away with, and the great galaxy were the recognized authorities, although other jurists might be cited if approved by any of the five. Collections of imperial constitutions were made at an interval of fifty years, and published under the names of the Gregorian and Theodosian Codes respectively; the latter was republished in the "Breviary of Alaric". Something at least, had been done for the simplification of a difficult legal situation. The Eastern and Western emperors thenceforward agreed to mutually communicate their legislative designs for simultaneous publication in both empires, and these future projects were to be known as novellœ constitutiones.
Upon Justinian's accession there were in force two principal sources of law: the imperial constitutions and the classical jurisprudence operating under the law of citations (Staedtler). To Justinian's practical mind, the state of the law was still chaotic; the empire was poor, and it was a hardship for lawyers to possess themselves of the necessary Manuscripts. The very bulk of the law produced a situation analogous to that which exists in common-law jurisdictions today, and which always ushers in more or less abortive efforts towards codification. Justinian undertook to make these immense materials more accessible and more responsive to the practical needs of his empire. That, in the opinion of some, he wronged posterity by destroying the original sources, is entirely beside the mark. He has been lauded as a great lawgiver when measured by the needs of his time and situation; and, on the other hand, he has been as heartily abused and reviled for an unscientific iconoclast. The first task of the commission appointed by Justinian was to edit the imperial constitutions as a code, published under the title, "Codex Justiniani". After this the emperor directed the compilation of a complete repository of the law made up of fragments of the classical writings strung together without any too scientific arrangement. This work is the great treasury of juridical lore, and was the most valuable part of Justinian's compilation. It was called the "Digest" or "Pandects". Occasionally Tribonian, who, with two other jurists, was intrusted with the task, complacently or ignorantly modified the text. The emperor forbade commentaries and abbreviations.
Upon the completion of the Pandects, Justinian, always intelligently interested in legal education, ordered an abridgment of the Digest for the purposes of instruction; these are the Institutes of Justinian. The Institutes of Gaius furnished a ready model; indeed, the Institutes of Gaius and those of Justinian are even today the most essential first books of the law. The first draft of the Code was not in complete harmony with the Digest and the Institutes, and a revision of it became necessary; this was promulgated as the "Codex Repetitæ Prælectionis". The second edition of the code was intended to be final, and upon its publication Justinian announced that any new imperial legislation would take the form of detached constitutions to be known as "novels" (novellœ, i.e. "new"); of these he issued a large number, but two only (the 118th and 127th) have great importance for modern law.
The Justinian compilation is sometimes elegantly termed the Imperial Code; it is, however, more accurate to refer to it as the "Corpus Juris Civilis". It is the whole body of the civil law comprising the four books of the Institutes, the fifty books of the Digest, the twelve books of the Code, and the Novels. Early editions divide the Codification into three parts:
- Digesta seu Pandecta – that is so called Digests. Digests were elaborated on the basis of 39 classic lawyers notes by 16-person commission. They consist of 9123 fragments included in 50 books, which according to the creators were the greatest achievement of the law in the classic period. After gathering them and doing compilation Justinian ordered to burn the source texts and forbade commenting Digests or even to quote original fragments when explain ambiguities arose.
- Codex – so-called collection of emperor’s laws order from emperor Hadrian to Justinian. The commission which was creating the Codex was authorised to introduce changes in contents of constitutions.
- Institutiones – Institutions. Institutiones, published in 533, replaced "Gaius Institutions" in the law schools as it was brought to perfection and brought up to date. Its creators were professors of law: Theofilus and Dorotheus and their work was supervised by Trybonian.
The labours of Justinian have come down to us in the form of texts of the so-called glossators during the Middle Ages. The glossators worked from earlier manuscripts and harmonized conflicting texts into a generally accepted lectio vulgata ("vulgate", or "common reading"). We have one text known as the "Florentine Pandects" which dates from the seventh century, one hundred years after Justinian. It is, however, in all probability, only one of the texts from which the glossators worked, and, when the errors of copyists are considered, its antiquity should not entitle it to overrule the vulgate. This Florentine text is the subject of legend, and the revival of the study of Roman law has been attributed to its discovery. Savigny and others have demonstrated that the revival was well under way before the discovery of this codex. The publication of a photographic reproduction of the Florentine Pandects was begun at Rome in 1902, and seven of the ten parts are already at hand.
In what had been the Western Empire, Justinian no longer held sway at the date of the promulgation of his laws; the subject race were, however, permitted by their barbarian conquerors to retain the pre-Justinian law as their personal law. The conquerors themselves caused to be made the several compilations known as the "Roman Barbarian Codes". Justinian did, however, effect the reconquest of Italy, and held it long enough to promulgate his laws. When the Ostrogoths again became masters they left the legislation of Justinian undisturbed, and it flourished in a less corrupted form than in the Eastern Empire, which was its logical field. The Roman law of Justinian superseded the barbarian codes and, with the revival, was taught in the medieval schools and thus spread all over Europe.
Almost all of the contemporary civil law systems have their roots in the Roman law, modeling themselves on its systematics, conceptions and even formulations. In connection with that, the Roman law and (particularly shaped in it and intercepted to contemporary law) juridical terminology links different law systems, even those created in very different social-economical systems. So we can say that the Roman law is an universal language in the lawyers’ environment since medieval times till today. Roman law outlived the state which had created it. When the invincible empire collapsed in the West Europe the Roman law was almost forgotten. But during the middle ages it was born for the second time to conquer whole civilized world again.
It’s true that there are a few countries in which Roman law obliges in almost not-changed form today but there are also a few countries which law would be free from its influence. With regard to the importance of the Roman law in the history of law it is paid a lot of attention in jurisprudence. As we couldn’t imagine studying contemporary philosophy without Greek one as well we couldn’t study contemporary law not knowing the Roman one. So we could say that the Roman law is studied to bring perfection to the contemporary law.