Roman Law: History and Development from Archaic to Justinian Period, Apuntes de Derecho Romano

¡Descarga Roman Law: History and Development from Archaic to Justinian Period y más Apuntes en PDF de Derecho Romano solo en Docsity! Bloc I History and Law What is Roman Law? 3 Roman legal history 3 Archaic Period (complete with written notes) 3 Politics 3 Sources of the Ius Civile. 4 Pre-classical Period 5 Pre-classical Law 5 Sources 6 Classical Period 6 Classical Law 7 Sources 7 Post-Classical Period 8 Post-classical law 8 Sources 9 West 9 East 9 Justinian period (527 - 565) 9 Justinian Law 10 At the beginning of the Archaic period, we start with a monarchy but by the end of it there’ll be the genesis of the Republic. The Rex ends up just having a religious role. The Genesis of the Republic was due to the internal fights between the patricians and plebeians. It ends with the approval of the ​Leges Liciniae Sextiae (law that gave the plebeians the same rights). Archaic Law → ​IUS CIVILE​. Law of the city. ● Solemn: it’s very rigid because there’s no place to make a mistake (a minimum mistake and it wouldn’t be valid). eg. selling something through the ​mancipatio​. ● Patriarchal: based on family law, the law of the father, the one with the full authority. ● Exclusive: you had to be Roman to apply it. Sources of the Ius Civile. ● Mores Maiorum​: customary rules (solutions, remedies that were passed from father to son - tradition) inherited from the ancestors who made them up or they were orders from the gods. It was the first source of unwritten law in the Roman Law. ● Law of the XII Tables (​Lex Duodecim Tabularum)​: ​first piece of written legislation in Rome and it was made to make sure that the patricians and the plebeians would both comply with the law (their rights and obligations). The ​Decenviri Legibus Scribundis (ten men that wrote down laws) were the ones that created this new source in addition to the Mores Maiorum. They were commands or prohibitions (if you sell the cow to your neighbor, you cannot kill his chickens) and it had to do with private law (family, property, succession…). In these twelve tables, they compiled the Mores Maiorum and created some new ones. (It was the only compilation for a thousand years). The reconstruction of the XII Tables is hypothetical, since they were burned down by the Gauls; but we know they existed because they’re mentioned in other documents. Nowadays, we just have copies of five tables. It was the basis of their whole legal system. ● Interpretatio Pontificium​: the Pontiffs were the one to explain the meaning of the laws (Mores Maiorum) - they were considered the ​first jurists​, since they had the monopoly of the legal knowledge. There was a link between religion and law because they used to communicate with the gods and later deliver the message to the people; also, if any citizen had a problem, they’d go to the Pontiffs. There was no place in the XII Tables to make the law evolve but the way to make it evolve was through the interpretation of the Pontiffs. The Pontiffs had different roles: ○ Agere​: they gave advice to the citizens. ○ Cavere​: they used to elaborate formulas to be able to carry out a trial according to the procedures. ​Legis Actione Procedure ​(when you go to trial, there’s a series of procedures you have to follow) ○ Respondere​: emitting legal opinions to other legal professionals (judges Pre-classical Period ● Territory​: the Romans start conquering other territories. therefore the population grows. ● Population​: ​cives (Roman citizens) and ​peregrini (foreigners) -- that leads to starting with trade. ● Society​: cities, trade and taxing. There’s different social classes: ○ land aristocracy​ (pater familias with lots of land and money and agriculture) ○ trade aristocracy​ (​equites)​, the new merchants that get their money by trading. ○ urban proletariat: ​poor people that are moving to the city for a better life. ● Politics​: Republic (Rex is gone). The magistrate has the executive power under two principles: it’s an ​anuality (they can only hold office for ONE YEAR) and ​colegiality (they always has to be two magistrates holding office because it’s a Republic). It’s an honorary role - they don’t get paid for it but it’s an honor to be it. ○ Magistrates have a power known as the ​potestas (the assemblies of the Roman people gives them the power); ​imperio (army, religion, able to manage all different types of foreign policies, they would preside the assemblies of Roman people…); and the iurisdictio (​they would administer the justice) ○ There’s different types of magistrates. The ​consuls are the ones that have full power, that call the Senate, and have the potestas over the army. The ​praetors are the ones that have the administration of justice (​iurisdictio​). In the beginning, we only had the urban praetor, who dealt with the legal situations regarding Roman citizens; but a new one was created due to the expansion and the peregrini (​peregrini praetor). ​The censors ​was in charge of everybody’s proper behaviour and also the one that did the census. Less important magistrates were the ones in charge of the finances, the city maintenance, the security of the city, etc… ○ The ​Tribuni Plebis (high magistrate too) was the obusman (“defensor del pueblo”). He would protect the interests of the plebeians and, if any of the administration of the state did something against them, he had the right to veto them (said right was called intercessio). ​He was sacro santum, untouchable. ○ The Senate had to ratify any law (called the patrum auctoritas). They also cooperated in foreign affairs policy, gave advise regarding finance, etc… ○ The Assemblies of Roman people (comitias) have the right to legislate. They chose the magistrate through ​sufragi​. They passed the ​plebiscita (binding for the plebeians early on but later they were also binding for the patricians). ○ At the end of the Republic, there would be the triumvirates (3 army officials that would take office when the society came crumbling down). Pre-classical Law The Ius Civile doesn’t work very well because there’s a lot of non-roman citizens so the law cannot be applied to them (it’s exclusive) and it’s outdated. A new law is created for the new society → ​Ius Gentium (law of nations). ​A law that could also be applied for the foreigners. The praetor peregrinus dealt with any issues between foreigners and romans. The steps that were carried out in a trial (Legis Actionae) change and it becomes the Formulary procedure - easier and not as rigid. There’s also a new law -- the ​Ius Honorarium created by the magistrates (honirific position) to aid, supply and amend the Ius Civile to make it more modern. How would they figure out which rights to protect? They used the ​principle of aequitas based on fairness and honesty - it had to give equal protection and equal rights. The praetor urbanus dealt with any legal issues between roman citizens. Sources ● Comitia Laws​: passed by the assembly, what the people order and establish. The magistrate would propose a piece of legislation (the Lex Rogata) to the assembly and it would be divided in three parts: praescriptio (introduction with name and date, etc...), the rogatio (proposal) and the sanctio (the assembly makes sure that the law doesn’t go against other laws) ● Plebiscite​: once the ​Lex Hortensia​ was passed in 286 BC it was also applied to plebeians. ● Edicts​: when the magistrate held office, they had to develop an edict - kind of an agenda (program of action) with their proposals, what they were going to pass, etc. This was said orally to the people or in writing. ● Edictum perpetuum​: would last the full year they held office. ● Edictum repentinum​: an edict for a certain situation. An edict could be ​traslaticium (they would take the edict done by the previous magistrate and then apply it to themselves); or ​novum​ (creating a new edict). The ​Lex Cornelia established that the edicts the magistrate created were binding and they’d have to comply with them. The jurisprudence had been monopolised by the Pontiffs (only ones with legal knowledge). The first secular jurists appear during the Republican era -- they were NOT religious. They established a dialectical method - a method of logical analysis and whereby you’re not based on religion but on a reasonable and analytic method. Therefore, law becomes a science. This way, they created and organised the legal system. Classical Period ● Territory​: greater expansion West and East ● Population​: Antonino Pio Cantaia passed the Constitutio Antoniniana in AD 212 and declared that the entire Roman empire was considered citizen of Rome. The society gets divided into many classes: ordo senatorius (land aristocracy, worked for the consuls ● Politics​: dualism between old political organs and the new Principate. The princeps (or Augustus, or Imperator because he has the absolute power) begin by collaborating with the old political organs but then want to take all the power for them. The old republican organs start to lose power and have a regression, ending up with no power at all. The Princep has the opusman’s same rights (to veto and shit). was equal, then the judge would always cite Papinianus (if he didn’t say anything, then it was the judge’s decision). Regarding the Leges, they compiled laws that were the only ones that could be used in a trial. ● Post-classical jurisprudence: reedition of the classical jurisprudence: from volumes to codex. Also summaries of Leges and Iura. Compilation of both Leges and Iura. West ● Implementation of the germanic Laws ● Compilation of Leges romanae barbarorum ● Lex romana visigothorum ● Breviary of Alaric East ● First official Law schools in Beirut and Constantinople. ● Jurists → law teachers that taught during five years and afterwards the students would get a diploma, so they could work as lawyers, civil servants, etc.. Justinian period (527 - 565) Justinian ruled in the eastern heart of the Roman empire, in Constantinople, he went from peasant to emperor. He wanted to bring back the splendor of the Roman empire, reconquering the Mediterranean. He had quite an artistic and cultural program and built lots of stuff. He collected all the Imperial Constitutions previous to him; he wanted to put together all the works of the classical jurists; also to create a legal textbook. Justinian Law The Corpus Iuris Civilis (the compilation Justinian did) was formed by: ● The Codex​: Novus Codex Iustinianus. From this point on, only these were binding. Compilation of Leges: ○ Gregorian Code ○ Hermogenian Code ○ Theodisian Code ○ Post-Theodisian Novels ● Digesta​: (m. systemised) Compilation of the Iura (opinions of jurists). Justinian formed a committee to be able to compile this Digesta. He arranged, divided, corrected and changed the Iura a bit. It’s structured into books, titles, fragments and paragraphs. (D. 1. 19. 45. 3 -- digesta, book one, title nineteen…) Only the articles in the Digesta were binding. It took three years to complete it, with 9000 fragments from 40 jurists. Because their working method, Bluhme’s Theory of the Masses (dividing committees into groups - one in charge of the Ius Civile, other in the charge of the Edicts and another one into the Iura, and then divided into subgroups…), they managed to finish it so quickly. Creating the Digesta there was interpolation (changes made to the legal work of the jurists) so in the Medieval Age it had to be erased to discover what the author really tried to say. ● Institutiones​: textbook for students with basic legal works. (also a committee). The Gaius Institutions system was used and it had four books (Persons I, Things II and III and Actions IV). Structured in books, titles and fragments. ● 2n Codex: Codex Repetitae Praelections. ​Update of the first Codex with new constitutions to resolve implementation issues, to make easier the compile task and to solve legal practice issues. ● Novellae​: new laws that Justinian wanted to publish but he never had the chance, they were just private collections (they were applied but not made official) ○ Epítome Ulpiani ○ Authenticum ○ Greek Collection ○ Edicta Iustiniani ROMAN LAW WOULD LAST UNTIL 1453 In the West part, there was no interest in Roman laws because of the influence of German Laws. After Justinian’s death, the compilation was translated. From there, they would use the dialectical method to try to understand the Roman legislation and, a few centuries later, a group of scholars tried to apply the Roman Law to the society of that time. Roman Law started to influence the legal system of that time along with the Church law and the German law → this would form the Common Law​, developed into the drafting of our current code.