General considerations regarding the historic evolution of roman law

Author:Cristinel-Ioan Murzea
Position:Professor, PhD, Faculty of Law, 'Transilvania' University of Brasov
Pages:5-11
SUMMARY

The historic evolution or Roman law was in a determination relation with the factors which configure law, especially the social-political ones or the economical ones, but also those which pertain to the natural background in which Roman society evolved, thus passing from the citadel-state to the “polis” type of state and then to the universal state - the Roman empire - which would later become a model of political, military and legal organization for the entire antic world. Roman law was created in the history of the eleven centuries of existence or the Roman state which passed several stages of development, excelling in the classical age when, given the great reforms which are performed under the direct influence of the praetorian, the main legal magister, certain principles and legal institutions are created which proved to be viable across the centuries to follow, thus directly influencing the subsequent legislative activity in the modern and contemporary age in the European space.

 
CONTENT
General considerations regarding the historic evolution of Roman Law 5
GENERAL CONSIDERATIONS REGARDING THE HISTORIC
EVOLUTION OF ROMAN LAW
Cristinel-Ioan MURZEA
Professor, PhD
Faculty of Law
“Transilvania” University of Braşov
cristinel.murzea@unitbv.ro
Abstract
The historic evolution or Roman law was in a determination relation with the factors which
configure law, especially the social-political ones or the economical ones, but also those which pertain
to the natural background in which Roman society evolved, thus passing from the citadel-state to the
“polis” type of state and then to the universal state - the Roman empire - which would later become a
model of political, military and legal organization for the entire antic world. Roman law was created
in the history of the eleven centuries of existence or the Roman state which passed several stages of
development, excelling in the classical age when, given the great reforms which are performed under
the direct influence of the praetorian, the main legal magister, certain principles and legal
institutions are created which proved to be viable across the centuries to follow, thus directly
influencing the subsequent legislative activity in the modern and contemporary age in the European
space.
Keywords: positive law, factors which configure law, legal magister, the ages of Roman law,
praetorian law, praetor’s edict
The generic classification of law in the category of those disciplines which
study society seen in its dynamics and historic evolution, has caused famed
personalities of Roman jurisprudence to state that “where there is society, there is
also law – ubi societas ibi Jus”1 an aphorism which allowed for reciprocity
according to which – ubi jus ib societas2.
As it was considered to be a gift from the gods, “jus civiale” was permanent,
immovable and not subject to subsequent perfection, thus confirming the general
perception about the state and the law which existed in the minds of Roman
legislators according to which Roman law was eternal, thus, by a two way relation
the Roman state must be eternal.
According to this conception, Roman law accompanies every historical age of
the Roman state, from the time it was created, namely mid sixth century BC and
1 N.Popa, General theory of law, Actami Publishing House, Bucharest, 1996, page 47
2 Ibidem
Law Review vol. VII, special issue, December 2017, p. 5-11
6 CRISTINEL-IOAN MURZEA
until 565 AD when, in the opinion of most Roman specialists, the Roman state
enters the age of the Greek influence.
The fascinating history of the Roman state was a standard for the entire
western civilization and the influence of the Roman Empire over posterity would
objectify a few domains which stamped Roman civilization such as “the political
system of Rome, its code of laws, its language, engineering, architecture which all
have an equivalent in modern times”3.
Perhaps the most durable inheritance was the creation of a system of laws
which would regulate the social relations specific to a “trade economy, which was
later known as a manifestation of the “will of the gods” thus again justifying the
importance of the Roman state and civilization”4.
These truths led the famed theoretician of the Rudolph von Ihering to state
that “Rome made itself heard in the world by three means - by sword, by cross and
by law”5.
Starting from the systemic analysis of the factors which configure law within
the antic society, the Romans managed to phrase new legal regulations, institutions
and branches of law which emphasized the fundamental interests of the Roman
society, thus turning the Roman state into the greatest military-political power of
the antiquity, by creating what the historians unanimously called a universal state.
As a result, the Roman lawmakers created a universal judicial language which
shows exquisite legal technique.
The legal language “shows exceptional precisions, by providing symmetry to
all legal constructions by the fact that it represents the ideal tool of legal thinking”6.
The Roman legal system is distinguished from the other legal systems of the
antiquity by the abstract and concise texts, by the severe sanction system which led
to the creation of individual regulations and legal institutions which are different
from the moral regulations of the other legal systems.
In the opinion of the esteemed theoreticians of Roman law “in the lack of own,
well defined concepts, the legal thinking of the people of the antiquity was no
match for the systemic and precise institutions of Roman law and were not able to
exercise any influence over the general evolution of ideas and legal institutions”7.
However, we believe that many times the Roman lawmakers would consider
moral perceptions, thus attempting to show that “regulations of law respect all
moral perceptions”8 which was likely to provide authority to all legal regulations
3 Margaret Oliphant, Antic world atlas, MAS Publishing House, Bucharest, 1999, page 47
4 C.Murzea, Roman law, All Beck Publishing House, Bucharest, 2003, page 17
5 R.von Ihering, Geist der Rimischer Rechts, volume I, Paris, 1888, page 308
6 R.von Ihering, L,esprit de droit romain, volumes I-IV, Paris, 1888
7 Th Sambrian, Roman law institutions, Asitech Publishing House, Craiova, 2009, page 27
8 A.E.Giffard, Precis de droit romain, volume 1, Paris, Dalloz, page 4; Ed.Cuq, Revue historique
de droit francais et etranger, Paris, 1924, page 373; B.Biondi Edos Wratisloviac, 48, 1956, 2, page 177
General considerations regarding the historic evolution of Roman Law 7
and show that traditions and the old habits of the ancient Romans, the founders of
the eternal citadel, are considered and respected.
The reality is entirely different, as the legal regulations and the moral ones
were significantly different in essence, as pointed out by the esteemed legal adviser
Paul who stated that “not all which is allowed is also moral – Non omne quod licet
honestum est”9.
Without a doubt, the fact that Roman law was an ideal tool created in order to
ensure the supremacy of the patricians, who aimed to dominate the state and the
political life and preserve their class privileges.
By analyzing the historical evolution of Roman law, we notice that it
permanently interfered with the social-economical mutations occurred in the
structure of Roman society, a permanent connection between tradition and
innovation, especially after the passing of Aebutia Law. These legal provisions
passed mid second century BCand open a whole new stage of development, a
reforming one in which we witness a complex process which would organically
combine traditions and innovations in the extensive work of adapting “jus civilae”
to the new regulations of the Roman state in the Republican age, which practically
regulated Rome’s universal power in the antic world.
Thus, the regretted professor Ion Ctuneanu stated that the “need to reform
and the conservative spirit as well as the praetorian as an organizer of this process
has created the way for these ideas by using procedural means which were so
subtle and practical that even today they are used in the legal arsenal, such as
fiction or tasking the judge with ruling on the litigation according to the parties;
intention and judging people of good faith, thus pronouncing an “ex aequa et
bona” sentence10.
Essentially, the reforming work of the praetorian attempted to move towards
tradition, and its regulations, thus permanently requiring the respect of equity and
good faith, in interpreting the way in which the internal will of the parties is
exteriorized; most times new legal regulations were created which would change
the system of “jus civilae” which was extremely difficult and excessively formalist.
This was owed to the influence of objective factors of law such as the social-
economic evolution of the Roman state, thus passing from the closed economy
specific to the polis citadel-state economy to a trade economy based on exchange;
on the other hand, Rome was transformed in a universal state which is in a
permanent intercultural relation with the conquered areas which the Roman
generically assimilated as “jus gentium”.
The praetorian, by its intervention, made possible a certain fact, that of
providing a science interpretation of the legal system, by considering the principle
9 Paul, lib.62 ad edictum, Dig 50.17.144
10 I.Catuneanu, Elementary course of Roman law, Cartea Româneasc Publishing House, Cluj,
1922, page VIII
8 CRISTINEL-IOAN MURZEA
of equity and good faith seen in their generic dimension, thus creating a procedure
of applying law by combining the judicial logic which derives from interpreting
positive law with harmonizing the particular interest of the subjects of law.
Thus, the entire paradigm of the Roman system of law was built, by
considering the legal commandment imposed by what Celsus synthetically called
“Jus ars aequi et boni”.
In his reforming activity, the praetorian would insert the living conscience of
the Roman people, by motivating that civil law is eternal in content and form and
its interpretations allow for the valorization of the subjective rights of Roman
citizens. In this, historical-judicial context, Aebutia law regulated the form
procedure, by emphasizing the importance and the role of the praetorian’s edict as
the most important judicial magister, whose general competence was that of
interpreting civil law and even completing it or indirectly changing it by
procedural means by providing the parties with new legal means meant to valorize
their legitimate interest thus creating new legal institutions.
We must also mention the fact that, in its activity, the praetorian was
permanently subordinated to the principle of legality, as according to the spirit and
the letter of Aebutia law, the praetorian was not allowed to leave the territory of
law in order to change civil law11.
In this context, in the opinion of professor Catuneanu the following fact in
invoked “the praetorian did not have the courage to publicly contradict civil law
unless when this right was not opposed to him as it was forgotten and no longer
reflected the legal conscience of our contemporaries”12; from a purely formal
perspective, the praetorian was not the creator of law, as his activity was strictly
“limited to the influence he exercised over the civil law”13. This statement is
phrased in famous adagio in the Digests - “Jus praetorium est quod pretores
introducxerunt adiuvanti vel supplendi, vel corigendi iuris civilis gratio propter
utilitatem publicam”14.
The relation between civil law and praetorian law is one of direct
determination as in the lack of the first, praetorian law would be a simple fiction,
as it was suggestively stated by Marcianus who stated that “praetorian law is the
living voice of civil law”15.
The praetorian, as any magister, had the right to pass an edict, which would
later become a formal sui generis source of law in the first four centuries after
Aebutia law was passed.
The existing relation between the state and the law would influence Roman
doctrine over what we generically call in specialty literature the divisions of law.
11 Ibidem, page VIII
12 Ibidem
13 E.Molcut, D.Oancea, Roman law, Sansa SRL Publishing House, Bucharest, 1993, page 45
14 D.1.1.7.1
15 E.Molcut, D.Oancea, op.cit., page 45
General considerations regarding the historic evolution of Roman Law 9
Ever since the Law of the 12 tablets, we can see that the fundamental division
of goods is particularized by the existence of the so called patrimonial goods and
the “extra patrimonium” goods; the latter can’t bear rights as they are the exclusive
property of the Roman state; thus we identify that, in regard to the legal regime
which applies to public and private sector, there is a definitive difference. The
division between public law and private law was one of the essential conquests
which Roman law passed over to posterity and which has definitely proven its
viability.
Specialty doctrine pointed out the significant importance of this principle
which is a fundament of law meant “to ensure the citizens are provided with
maximum freedom in relations between them and effective protection against
state’s violations of their property; secondly, it is meant to prevent the forgery of
the character of political institutions which could be treated as family
institutions”16.
Doctrine stated that private law was formed of three subdivisions - civil law –
jus civilae, - gens law – jus gentium and natural law – jus naturae.
Thus “privatum jus tripartitum est collectum elinem est ex naturalibius
praeceptie aut gentium aut civilibus”17.
Under the influence of the stoic philosophy, the formal sources of law, such as
legal regulations and habits are the so-called “jus naturale” which equally applies
to all people, thus forming a true basis of all legislative systems, with permanent
character.
In a synthetic phrasing, Paul stated thatjus naturale est id quod semper
aegum ac bonum est”18. In the post classical age, Justinian, referring to the judicial-
philosophical concept of Jus naturalia stated that “it applies to all people whereas
the rights established by each state are usually changed by subsequent laws”19.
As it is a universal system of law, it applies to all living people and resides in
nature, thus this system is an ideal and those called to perform justice were not
limited by the regulations of natural law, which appeared as the sum all legal
needs of a society.
The Roman legal advisers would transform a system of law which was meant
to be eternal and universal in a philosophy.
Contrary to this system, “jus civile” also known as quiritary law is that system of
law which was exclusively used in the legal relations occurred between Roman
citizens. This system of law was extremely formalist, rigid and exclusivist as it
prohibited that the regulations of”jus civile” be applied to non Roman citizens who,
even if they concluded relations with quirits, were not subject to quiritary law.
16 I.Catuneanu, op.cit., page XII
17 S.G.Longinescu, Elements of Roman law, volume I, first part, “Curierul judiciar” Publishing
House, Bucharest, 1927, page 169
18 Ibidem, page 171
19 Ibidem
10 CRISTINEL-IOAN MURZEA
This system of law would accompany the entire historic evolution of Roman
law, as it was considered to be identical and eternal in regard to content and form.
The historic reality would change this perception considering the Roman state
evolved from the citadel state to the universal state once the Roman empire was
founded, thus changing the character of the economy of the Roman state in a trade
economy which would later flourish, causing the extremely formal and rigid
regulations of “jus civile” to become a factor of regress in regulating the legal
circuit; this would later be corrected by the Roman magister especially the
praetorians who transformed the system of”jus civile” into the new realities of the
society in that historic age.
It was stated that by the intervention of the praetorian as the main legal
magister “the purpose of some institutions was changed, as the new regulations
acquired new functions under the new circumstances”20.
In the opinion of Romans “jus civilae derives form consuetudo populiscita,
plebiscita, senatusconsulta, constitutionis princium, edicta and responsa
prudentium”21 which made this system of law different from the other two. In a
second opinion, “jus civilae” meant “stricto sensu” that law which derives from
interpretatiio prudentium.
In an opinion which would later be absorbed by subsequent laws, the system
of”jus civile” described all positive private law regulations.
This distinction would have a positive influence over modern time laws, as
they absorbed Roman traditions and pointed out the role and importance of
fundamental institutions of Roman private law, especially those regarding real
rights or civil obligations.
The third system, namely “jus gentium” would mean different things
according to Roman doctrinarians; however, the majority opinion is that this
system of law would apply to all legal relations occurred between Roman citizens
and foreigners with whom they interacted in the civil circuit.
Unlike civil law which was extremely formalist, jus gentium had no solemn and
rigid formulas; this is why it will transform into a useful tool meant to legally
regulate the relations which occurred between Roman citizens and peregrines. The
increasing intensity of the exchange relations as well as the increase of such relations
in the economy of commercial relations led to the birth of a new regulations in the
year 242 BC, namely that of the peregrine praetorian – praetor peregrinus.
The direct consequence is that an optimum background for the development
of jus gentium will be created, by combining Roman habits with peregrine systems
of law. In time, “jus gentium” becomes that system of law which will be mainly
applied to relations between Roman citizens, thus replacing the much more rigid
system of “jus civilae” which will later prove to be anachronistic and outdated.
20 E.Molcut, D.Oancea, op.cit., page 14
21 S.G.Longinescu, op.cit., page 171
General considerations regarding the historic evolution of Roman Law 11
Specialty doctrine expresses opinions according to which “jus gentium” is the
exclusive creation of foreigners, who used it in the basin of the Mediterranean Sea,
in order to regulate commercial relations, first by the Phoenicians and later by the
Greeks; subsequently, as a result of the great conquests of the Romans which
transform the Mediterranean Sea in a “Marae nostrum” this system would be
absorbed by the Romans “who easily and gracefully absorbed it given their
practical sense”22.
However, the legal reality contradicts this thesis considering that there were
certain institutions regulated by “jus gentium” even before the Mediterranean Sea
basin was conquered by the Romans.
In the same context, given its efficiency and non formalist character “jus
gentium” would later become what we nowadays call the common law which
applies to both peregrines and Romans.
In another opinion, “jus gentium” was a system of law which regulated
relations occurred between states, such as subjects of law; this opinion derives
from the interpretation of a text which belongs to the historian Titus Livius. Thus,
we notice that, within “jus gentium” certain institutions are founded, institutions
which, in the modern age, are assumed by public international law.
Contrary to private law, public law – jus publicum – is that system of law
“regarding the organization of the roman state – quod ad statum rei Romanae
spectat”23 a system which excluded, in the opinion of Romans, the will of
particular citizens according to principle “jus publicum privatorum pactis mutare
non potest”24.
The structure of public law included three subdivisions, namely -
administrative law, criminal material and procedural law and public international
law. The study of these regulations, their qualification and systematization by
criteria stated by Roman legislators were not directly or indirectly passed on, thus
the people who commented it used modern delimitation criteria.
What is essential in any analysis of the evolution or Roman law is that fact that
it was in a relation of direct determination with the evolution of all forms of
governing of the roman state.
Thus, the ages of private Roman law, namely the old age, the classical age and
the post classical age follow the history of the Roman state from its foundation
until its decline, a state which was a moment of maximum importance in the
history of civilization by the inheritance left to posterity in various areas of activity,
among which law as a social reality was an area of excellence.
The universality of the legal terms used paved the way for many legal
institutions which are still used today, deriving from the arsenal of Roman
thinking and coming into the modern and contemporary age.
22 S.G.Longinescu, op.cit., page 172
23 Ibidem
24 Ibidem