1.Antiquity
Roman Law
main features (also important for in the period of the ‘reception of Roman law’ in the
late Middle Ages):
● Foundation for civil law
● Oldest legal system
● Tradition (emphasis on older/already existing solutions): very important, legal
changes were always subtle
● very little social engineering (lex) = based on legislation, certain views of
policymakers who want to implement changes
● Case-based, casuistic = Roman jurists developed solutions based on trials
factual solutions close to what happened in trial
● Auctoritas: legal reasoning, Roman law was not so much about laws created
by legislators, quality matters more than coercion
→ jurisprudence by jurists important (not by legislators)
● Links to religion: law developed out of religion & lawyers have a language
(jargon) of their own → they used terminology in a very specific way with
meanings that differed from the colloquial language (this refers back to the
religious background)
● Irony: codifications of solutions (compilations of solutions from Roman jurists
that were turned into legislation) & monarchs:
○ At one point (early 6th century AD), Roman emperors undertook the
effort to bring all the rules of Roman law together in a big lawbook and
these were promulgated into legislation
○ At the end of the Roman era, the notion of little social engineering had
somewhat been forgotten but the prestige of Roman legal science was
still very high → so monarchs wanted to write the solutions of past
Roman jurists down which led to codifications
→ the irony of Roman law: essence / main features relating to legal science, auctoritas,
case-based nature was preserved because of the actions by monarchs & codifications
Approaches of the Romans have determined civil law (continental Western Europe)
● Links to religion: rituals (pontifices) + lawyers: have a language of their own (for
example, mancipium - mancipatio)
Mancipatio: A ceremony in Roman forum when there was a sale of a moveable item → the
purchasers gathered around the seller
, ○ Money v item & ceremony
○ one person who held scales (those scales that symbolize law nowadays) and
weighs the value of the coins that were handed over as purchasing price
○ In the oldest times, the scales were used in order to make a ritual wager - the
idea was that the object was transferred to the purchaser and the scales were
representing the influence/assistance of the gods → the scales were used in
order to balance the money that was invested as a wager (the wager was about
the quality of the object)
■ E.g. you sold your cow but it wasn’t yours, the wager money would go the
high priests (representatives of the gods in Rome)
○ There had to be 5 witnesses at the mancipatio - they had to assess that the
object had indeed been handed over (the purchaser had received his object) and
that the seller had received the price for the transaction (this was basically a
contract of sale ritual)
○ Mancipatio was build on mancipium
○ For the transaction of giving over the object, the label res mancipi was used
(literally those objects that have to be handed over in a mancipatio ritual)
○ Tradition, social engineering only later: legislation (imperium/potestas) v
jurisprudence (auctoritas)
Imperium/potestas: = legislation
● power
● Competence of king & Magistrates
● With imperium, someone could issue law / edict imposed on Roman citizen
● Will of one person
→ legislation was fixed & not open for interpretation, interpretation only with issuing new
legislation
Auctoritas: = jurisprudence
● jurisprudence no power involved
● Prestige of jurists
● Solutions for cases
● High in society
● Opinion could be used in court, but not mandatory following the opinion by jurists
● one received an opinion of a Roman jurist, they could bring that to the courtroom and the
judge would build his judgements on that opinion
→ about debate and legal reasoning
,→ tension between both principles
● Law crafted from top-down and bottom-up: there are always problems raised from the
courtroom which are not feasible for legislators to encompass in the laws
→ but legislation is still required because opinions from jurists can be contradicting and
then the legislation will decide what happens
● Kings were first the ones who issued legislation but were later banned in 6th BC and
then the republic developed where imperium was given to magistrates, but jurists had
auctoritas (they prevailed, had the largest autonomy) → later in the age of emperors, it
goes back to before the republic: emperors bring laws and the role of jurists diminished
→ in the end: codification
● Legislation in Rome was fixed = not open for interpretation
● Interpretation only by issuing new legislation
main idea behind Roman legal science (auctoritas = not fixed): because of the debates & legal
reasoning, better arguments are found → the outcome of the debates will matter
● Important developments:
○ Approaches of the Romans have determined civil law (continental Western
Europe)
○ Very illustrative of legal change as well
Three periods of history, each with own features (Rome was very different in each period):
○ Archaic law (c. 700 BC-200 BC): pontifices, Law of Twelve Tables
■ Rome was very small, a rural society (everyone knew each other), it was
based on agriculture, limited territory, the law still related to religious
practices
○ Late Republic (c. 200 BC-27 BC): praetor, jurists - jurisprudence
■ Rome has conquered vast parts of the coast of the Mediterranean,
increase in population, more trade, contact with foreigners → changes in
the law (less ritualistic, secular)
○ Age of emperors (27 BC-565 AD, in the book Principate and Dominate):
imperial government, codifications - classical jurisprudence but evolves into
imperial law
■ Roman empire so vast, it started to crumble, difficult to administer, the
empire eventually split up in two parts
Archaic law (c. 700 BC-200 BC):
● Myth of establishing of Rome (753 BC)
● Small community, rural
● Different populations came to Rome: Latins (patricians), Etruscans (rulers) & workers
(plebeians)
● Law at first: imperium of the King + Lore of the pontifices
○ Pontifices:
, ■ high priests
■ combined religion with legal duties
■ guarded over religious festivities, maintenance of the temples but they
also decided who could start a trial (based on fas)
■ They had to guard the order between humans and the gods → if
someone broke the rule of the fas it was dangerous since it had an impact
on society because it could enrage the gods
○ Patricians= Latins
○ Plebeians= Worker / Immigrants
○ Etruscans= Ruler
○ Pontifices= high priests, combined religion with legal duties, decided who starts
in trial
Law grows out of religion:
○ Fas: religious, what is allowed according to the gods, supernatural order - vertical
religion, referred to 'that what is allowed' according to gods (harmony<natural &
supranatural order)
→ out of this emerges:
○ Ius: emerged out of fas, set of rules, private order among men (people not god)
-horizontal
mos maiorum (tradition of the forefathers), fides (linked to Jupiter, it was about
the people) → what relates to people, not gods, you had to make decisions
between people to avoid that rights will be harmed, that everyone receives an
equitable share of property
○ Both:
■ Ritualistic, in rituals no errors could occur in ceremony (it needed to be perfect,
otherwise the pontifices would interfere)
■ Secretive (responsa) - the mos maiorum was secret knowledge, it was
knowledge kept by the high priests (so not public, still has a religious
connotation)
● Legislation by the king was, on the contrary, made public
● Pontifices issued responsa (opinions): if you had a legal problem you
went to the pontifices and asked for a solution, they would argue whether
there was a remedy for your problem (and you couldn’t argue against
them)
Two changes:
● Monarchy changed to Republic (509 BC):
Senate = central institutional body in Rome
