Global Legal History Notes
1. Roman Law
1. Civitas
Latin Tribes living along the Tiber river under Etruscan influence
o Patriarchical society
Pater potestas – family and clients were quasi-property
Two main tribes / classes – patricians and plebeians
King (Rex) wielding supreme power (imperium)
Council of elders (Senate)
o Ended in civil strife
509 BCE the latin patricians rebelled and established the Roman
Republic
Rex became a taboo in Rome
The early republic
o 509 BCE Imperium was given to two consuls, who held a mutual veto power
One-year term, appointed by vote from among the patricians
Other magistrates: Praetors (judicial), censors (lands, census and
votes), aediles (buildings, public works), quaestors (treasurer), tribunes
(representatives)
Usually always two or more, originally only patricians, later
also plebeians
o The Senate
Senators appointed for life by censors
Senatus Populusque Romanus (S.P.Q.R)
o Legislative assemblies
o Structure of society: patricians ruled as aristocracy, plebeians as lower class
Law of the XII Tables (450 BCE) – The first Lex
Plebeian tribunes: officials who could draft plebiscites
The Late Republic
o During the 3rd century BCE, Rome became a Mediterranean power (a
functional empire)
Punic wars 246-201 BCE: Defeat of Carthage
o Roman law developed around the judicial officials and legal experts
Praetor urbanus (367 BCE), Paetor peregrinus (242 BCE)
Rise of jurists (iuris consultus, jurisprudentes)
The birth of institutionalized legal education
o Roman civil law led to a vast collection of learned legal opinions, debates, and
perspectives arising from the practices of litigation and mediation
The Roman Empire
o 49 BCE: Caesar’s civil war; 44 BCE: The ides of March; 27 BCE: Augustus
imperator
o Roman law became more codified and institutionalized
Expansion of citizenship and ius civile throughout the empire
Attempts by the Empire to restrict the jurisprudents (not very
successful)
, o Division between Western and Eastern Rome (385 CE / 395 CE)
o Emperor as Dominus – “Dominate” ca 284 CE onwards
o The Christianization of Rome CE
The Legacy of Rome
o 467: Odoacer of Germanic tribes forced Romulus Augustulus to abdicate
“The fall” of Rome
o The Byzantine Empire lasted until 1453, when conquered by Mehmed II
Justinian I: Corpus Juris Civilis (534 CE)
o The Papacy and Catholic Church remain
o Holy Roman Empire (800 – 1806 CE) – Charlemagne to Bonaparte
o Roman law remained embedded in European customary and common law
Corpus iuris civilis rediscovered ca. 1088
Ius commune
2. Ius (law in action)
Archaic Rome
o Law was closely related to religion and rites, often unwritten
o Resolution of private conflicts by priests (pontifex)
Formal legal causes of action / rituals: legis actiones
Highly formalistic – predetermined to the letter; even the
slightest deviation could lead to the case being dismissed
Often verbal, need of witnesses
o Law of the XII Tables contained also procedural rules
E.g., summons and boligations to appear in court (Table I)
Eventually the right to interpret the law passed from the clergy to the
aristocracy
Ius Civile
o Around 367 BCE, the first Praetor nominated
Magistratus majore, curulis held imperium (though consuls had veto)
o Legal procedure: the “Formulary Procedure”
Part I: In iure
Praetor decided whether the matter was admissible, and under
which action
If yes, the praetor appointed the Iudex (among eminent
citizens)
Part II: Apud iudicem
Iudex examined the facts of the case: hearing, evidence, etc.
Then the Iudex applied the formula given by the Praetor
o Compare to jury trial / arbitration compromis / oyer et terminer
o Consequence: praetor started to distinguish rules from facts: Rule ^ Fact ->
conclusion
o Further developments:
The praetors (esp. peregrinus) began to express formulas in free
language
Before elections, candidates would publish at the agora lists of
formulas that they promised to uphold (Praetor’s edict) – ius
honorarium – law lasting while the praetor is in office
, Copy-Paste: Edicts often retained useful formulas and discarded others
Repetition - > retention of normative information
Ius Gentium
o Law not specific to man but common to all living creatures
o Romans developed ius gentium as they interacted with neighbors and later
ruled their diverse empire
Actioned legis did not apply to non-romans
o Praetor peregrinus (421 BCE)
Began to develop and establish legal practices based on mediation,
practical experience and abstract reasoning
New disputes cases and customs started to form new law
Jurisprudence
o Accumulated experience in legal matters (legal expertise, authority –
autocritas)
o A new group of intellectuals: Iuris consultus / jurisprudentes
Often senators / former senior officials)
Individuals would request advice, potential praetors requested opinions
Legal opinions (responsa), hypotheticals, books and treatises,
institutes
Institues of Gaius (161 CE)
o Typical method: identification of ‘legal questions’ (quaestio iuris), and
deriving rules and concepts through the study of case law
Law during the Empire
o Imperial law in books: Empire signified the end of jurisprudential law; Law
instead settled in codifications, constitutions and institutions
o Imperium vs Autocritas: Emperors began to limit the acceptable written
authorities, and restrict the right to give responsa and legal opinions
The famous jurists of the Digesta are from this era
o Codification of formulas: around 130 CE, the praetorian formulas were fixed
in the perpetual edict (Edictum perpetuum)
At orders from Emperor Hadrian
o Permanent courts: since the early Empire, permanent judges (iudex) were
appointed
Investigative procedure cognition (extra ordinem)
One judge to rule them all, no two phases and no lay iudex
Gradually allowed for adjudication even if no exact formula was at
hand
o Legal education became formalized
In Rome, various “schools” of apprentices formed under different
teachers
By the 2nd century, imperial certificates were granted to law schools
(Rome, Constantinople, etc)
3. Lex (written law)
Lex in the Republic
o The Law of the XII Tables (450 BCE)
Result of long discord between patricians and plebeians) in the Senate
