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Apuntes Sources of Roman Law
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SOURCES OF ROMAN LAWIntroduction
Roman law was the law of the city of Rome and subsequently of the whole Roman Empire. Law is not merely a set of
principles and rules; it is necessary practical requisite for the delimitation of interests in social life. While Greek
philosophers speculated a great deal about the nature of law and its place in society, the Romans did not give much attention
to the theory of law; their philosophy of law was largely borrowed from the Greeks. Instead, the Roman jurists devoted
themselves to the elucidation of the problems of everyday life. For them law was not an object of scientific study like
philosophy or mathematics but a way of doing things.
Roman law is the basis of our legal system. Today, there are two great legal systems of European origin – the Common law
of England (influenced to a small extent by Roman law) and the Civil law, based in Roman law. The Common law is the basis
of the legal systems of most English-speaking nations. The Civil law is the basis of the legal systems of countries of the
continent of Europe and countries in South America and elsewhere
Students of law will be familiar with the concepts of, and distinctions between, public law and private law. Public law relates
to the regulation of the state; constitutional law is described as a branch of public law. Private law regulates legal relationships
among individuals and the greatest influence of Roman law has been in the sphere of private law.
Sources of knowledge
The expression of “sources of Roman Law” can mean two things: in the first sense it refers to where the law came from,
statute, custom, decisions of courts and so forth; in the second it refers to how we know what we know about Roman Law,
our literary or documentary evidence in the past.
LEGAL SOURCES
¨ “The Corpus iuris civilis” ("Body of Civil Law") is the most important compilation of Roman Law and the most
influential legal text in history. This code was compiled by order of the Byzantine Emperor Justinian I (527-565).
It is a compilation of legal texts from the imperial era as well as Roman jurisprudence from the year 117 to 565, and
is composed of the Codex repetitae praelectionis, the Digesta sive pandectae, the Institutes and the Novellas
Constitutiones post Codicem. Thanks to its existence it has been possible to know the content of ancient Roman law,
which has been fundamental for modern legal systems.
¨ “Institutiones”, Gaius (II a.C). It was the name of a book for students, it was very basic and easy to understand. It is
an elementary introduction to Roman Law dating from about 160 a.C, and still the best introduction to the subject
ever written. It contains a clear amount of classical law and also some valuable historical material of which the Digest
preserves no record.
It is preserved in a palimpsest (a book which was been rewritten. Paper was very expensive, so they used to erase
and reuse that paper) discovered in Verona in 1816.
NON-LEGAL SOURCES
Religious books:
- Bible
- Gospel
- Father of the Church (like Saint Agustin)
Philosophers: Cicero, Seneca
Literary: Theater (Plauto, Terencio), poetry (legal metaphors)
Non written sources
- Art: paintings, sculptures
, Sources of production
It is useful to have a general idea about the history of Rome throughout the centuries, since laws of different periods are best
understood in relation to the specific problems they attempt to solve.
According to legend, Rome was founded in 753 BC by twin sons Romulus and Remus who were raised by a she-wolf.
During its twelve-century history, the Roman civilization shifted from a monarchy to an oligarchic republic to an immense
empire.
MONARCHY REPUBLIC PRINCIPATE DOMINATE
753 BC 510 BC 27 BC 285-565 AC
EMPIRE:
Julius Caesar ruled for a time as dictator, and his nephew Octavian became Rome's first emperor, assuming the
title Augustus.
- Principate: the figure of the emperor was considered in a more democratic way. He still respects law and power is
not conceived as an absolute power
- Dominate: the emperor is considered a dominus (owner), the owner of the empire, he is the absolute governor. The
founder of this stage was Diocletian.
- The empire was divided in two: west (which collapsed in 476 a.C) and the east, the Byzantium
ARCHAIC LAW
Monarchy as political system
Mores maiorum
The mores maiorum ("ancestral custom" or "way of the ancestors,") is the unwritten code from which the ancient Romans
derived their social norms. It is the core concept of Roman traditionalism. The mores maiorum was collectively the time-
honored principles, behavioral models, and social practices that affected private, political, and military life in ancient Rome.
It’s one of the most importance sources of roman law.
Roman family was patriarchal, all power was vested (conferido) in the pater familias, who was the senior male ascendant.
Roman law and tradition (mores maiorum) established the power of the pater familias within the community of his own
extended familia. In Roman family law, the term "Patria potestas" (Latin: “power of a father”) refers to this concept.
Patria potestas goes back at least to the Twelve Tables (450 b.C), and it is clear that in the early republic his powers were
extreme: a power of life and death over those in the family; power to decide whether newborn babies should be accepted
into the family or exposed; power to sell surplus (exceso) children.
• A custom can be developed in different ways:
- Becomes a law
- Remains separate from law
- Desuetudo (opposite to consuetudo), when they are no longer practiced
- Contra legem, against the law. When a custom is contra legem, it stops being considered a source of the law
It doesn’t appear in the source’s catalogues; Gaius didn’t mention it on his “Institutiones” During the imperial period, the
• What does a custom need to be to be a source of the law? emperors (or their advisors)
- Not to be contra legem wondered of the need of the
- To be repeated on time customs for being sources of the
- Opinio necessitates/iuris. People must have to believe that the custom is necessary law.
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