Sources of Law, 3: Roman Law

Roman Law under the Empire: Although Roman law emerged during the period of the Republic (to 31 BCE; see Cicero’s Philosophy), it is documented in much greater detail from the period of monarchical rule known as the Roman Empire (31 BCE to ca. 500 CE/AD). As a set of formal procedures and interrelated institutions, staffed in part by professionals (judges, lawyers, notaries, etc.), this legal system went out of use in Western Europe ca. 500 CE, when the Empire fell apart. Yet as a body of legal learning it continued to influence both the Roman Catholic Church’s  Canon Law and medieval customary law.

Rediscovery of the Body of Civil Law: Roman law found new influence after ca. 1100 CE, when legal scholars in Italy re-discovered the compilation of Roman law that was made ca. 535 CE by the Eastern Roman (or Byzantine) Emperor Justinian. This massive compilation, known as the Body of Civil Law (or Corpus Iuris Civilis), consists of four parts: 1) the Code, a collection of earlier Roman laws (this is the main law code in the Corpus, but sometimes the term ‘Code’ is inaccurately used for the entire compilation); 2) the Digest, a voluminous selection of excerpts from the writings of Roman jurists, or legal experts; 3) the Institutes, a beginner’s textbook; and 4) the Novellae, a collection of more recent laws from Justinian’s own times.

Legal Renaissance: The rediscovery of this work helped to spark the revival of formal law, or the ‘legal renaissance’, that profoundly affected western Europe in the twelfth and thirteenth centuries. Justinian’s compilation strongly influenced canon law (the law of the church) and provided the foundation of law in all civil law jurisdictions (i.e., in continental Western Europe and in many countries colonized by continental Europeans). It also influenced English Common Law, but less directly. This page provides selections from the Body of Civil Law that concern: A) Justice and the Types of Law; B) Due Process in Roman Law; and C) The Institutes‘ Outline of Civil Law (the law of persons, property, obligations, and injuries).

A. Justice and the Types of Law (7 items)

  1. Justice: “Justice is the constant and perpetual desire to give to everyone that to which he is entitled. The precepts of the law are the following: to live honorably, to injure no one, to give to everyone his due” (Digest, 1.1.10).

  2. Public v. Private Law: “There are two divisions of the law, public and private law. Public law is that which has reference to the administration of the Roman government. Private law is that which concerns the interests of individuals. Private law is threefold in its nature, for it is derived either from natural precepts, from those of nations, or from those of the [Roman] Civil Law” (Digest, 1.1.2).

  3. Natural law: “Natural law is that which nature teaches to all animals, for this law is not peculiar to the human race. From it proceeds the union of male and female which we designate as marriage, as well as the procreation and raising of children” (Digest, 1.1.3).

  4. The Law of Nations: “The Law of Nations (ius gentium) is that used by the human race, and concerns men in their relations to one another. It includes, for instance: reverence towards God; the obedience we owe to parents and country; and resistance to violence and injury. By this Law of Nations wars were introduced; peoples were distinguished; kingdoms were founded; rights of property were ascertained; boundaries of land were established; buildings were constructed; and commerce, purchases, sales, leases, rents, and obligations were created, except for those that were introduced by the Civil Law” (Digest, 1.1.2-5).

  5. Slavery & Equality: “Manumissions are part of the Law of Nations, because according to natural law all persons were born free, and manumission was not known, as slavery itself was unknown. But after slavery was admitted by the Law of Nations, the benefit of manumission followed” (Digest, 1.1.4). “So far as the Civil Law is concerned, slaves are not considered persons, but this is not the case according to natural law, because natural law regards all men as equal” (Digest, 50.17.32).

  6. Civil Law: “The Civil Law is not entirely different from natural law or that of nations. The Civil Law is that which is derived from statutory enactments, plebiscites, decrees of the Senate, edicts of the Emperors, and the authority of learned men” (Digest, 1.1.6-7).

  7. Custom: “In cases where there are no written laws, that should be observed which has been established by usage and custom. An ancient custom is to be observed as a law (and this is what is called law established by usage). The laws themselves restrain us for no other reason than because they are accepted by the judgment of the people — for it is proper that what the people have approved without being written should bind all persons — for what difference does it make whether the people have manifested their will by vote, or by acts and deeds? Therefore the rule has also been most justly adopted that laws shall be abrogated not only by the vote of the legislator, but also through disuse by the silent consent of all” (Digest, 1.3.32).

B. Due Process, Roman Style: Procedural Law (13 items)

  1. Burden of Proof: “Proof is incumbent upon the party who affirms a fact, not upon him who denies it” (Digest, 22.3.2). “Accusers should not bring criminal charges unless they can be proven by proper witnesses, by conclusive documents, or by circumstantial evidence which amounts to indubitable proof and is clearer than day” (Code, 4.19.25). “When anyone is accused of crime, he must prove that he is not guilty. But no one who is absent should be convicted of crime. Likewise, no one should be convicted on suspicion, for as the Emperor Trajan said, ‘It is better to permit the crime of a guilty person to go unpunished than to condemn one who is innocent’” (Digest, 48.1.5; 48.19.5).

  2. Possession: “The party in possession is not required to prove that it belongs to him; and if you do not prove your claim, the ownership of the same will remain with him” (Code, 4:19.2). “When two persons hold property by the same title, the possessor has the advantage” (Digest, 50.17.128).

  3. Contracts: “Agreements which are not contrary to law, or which have not been entered into with fraudulent intent, must, under all circumstances, be observed” (Code, 2.3.29).

  4. Who Can Make Criminal Accusations: “Certain persons are forbidden to make criminal accusations on account of their sex or their age, such as women or minors. A woman is not permitted to accuse anyone in a criminal case unless she does so on account of the death of her parents or children, her patron or patroness, and their son, daughter, grandson, or granddaughter. Others are forbidden as the result of their own criminality, or on suspicion of calumny, for instance those who have given false testimony. Still, all these persons, if they are prosecuting injuries sustained by themselves, or the death of near relatives, are not excluded from bringing accusations” (Digest, 48.2.1, 8-9, 11).

  5. Criminal Intent: “A distinction must be made in more serious crimes, that is whether they have been committed intentionally or accidentally. Indeed in all offenses this distinction should either induce a penalty to be inflicted in strict compliance with the law, or allow for moderation” (Digest, 48.19.5).

  6. Witnesses’ Role & Number: “Witnesses may be called both for criminal cases and in suits involving money, but judges may regulate their number, so that too many are not summoned just to annoy the other party. Where the number of witnesses is not specified by law, two are sufficient. No judge shall in any case accept the testimony of only one witness, even if that witness is a Senator” (Digest, 22.5.1, 12; Code, 4.20.8).

  7. Witnesses’ Integrity: “Witnesses should testify after having been sworn, and preference should be given to those of honorable reputation.The integrity of witnesses should be carefully investigated to assess: their social rank; their honor; whether he is rich or poor, lest he may swear falsely for the purpose of gain; and whether he is a friend or enemy of the person concerning whom he testifies. A witness is considered to be competent if his personal character is beyond reproach, such that he is neither influenced by the expectation of gain, nor by any inducements of favor or enmity. No one is held to be a competent witness in his own case” (Code, 4.20.8; Digest, 22.5.2-3, 10).

  8. Written Evidence: “In the administration of justice, documentary evidence has the same force as the depositions of witnesses. Contracts of sale, exchange, or donation, or those made for any other reason which are required to be in writing, must be evidenced by written documents and confirmed by the signature of those who execute them; and if they have been drawn up by a notary, they must be completed by him, and finally acknowledged by the parties interested” (Code, 4.21.15-16).

  9. Forgery: “The statute of wills inflicts penalties on all who write, seal, or read [i.e., formally accept] a forged will or other document, or substitute the same for the real original, or who shall knowingly and criminally make, engrave, or use a false seal. If the criminal is a slave, the penalty fixed by the statute is death, as in the statute relating to assassins and poisoners: if a free man, deportation” (Institutes, 4.17.7).

  10. Torture & Social Rank: “In the prosecution of public crimes, judges should not begin the investigation by resorting to torture, but should first examine all the evidence. If, after having done so, they think that torture should be applied to ascertain the truth, they should resort to it only where the rank of the persons involved justifies such a course. Soldiers are not to be subjected to torture, unless they have been dishonorably discharged. Slaves can be put to torture not only in criminal cases, but also in those involving the payment of money, where property is entrusted to them for deposit or loan, or for other purposes authorized by law. When a gladiator or some person of this kind must serve as a witness, his evidence is not to be believed, unless he is subjected to torture” (Code, 9.41.8, 15; Digest, 22.5.21).

  11. Torture & Confessions: “It is customary for torture to be applied for the purpose of detecting crime, but confidence should not unreservedly be placed in torture. Slaves are to be subjected to torture only when the proof against them is lacking only their confession. The confessions of accused persons should not be considered as proofs of crime, if no other evidence is offered, because the evidence obtained by torture is weak and dangerous, and inimical to the truth. Most persons so despise suffering that the truth can in no way be extorted from them; instead, they prefer to lie. If anyone voluntarily confesses a crime, faith should not always be reposed in him; for sometimes one makes a confession through fear” (Digest, 48.18.1).

  12. Penalties for Capital Crimes: “Some criminal offenses are capital, and some are not. Capital crimes entail the penalties of death, the loss of civil rights, or servitude. For capital crimes, the most extreme penalty is death by hanging, or burning alive. The next most severe penalty is labor in the mines. After that comes deportation to an island” (Digest, 48.1.2; 48.19.2, 28).

  13. Penalties for Non-Capital Crimes: “Crimes which are not capital entail penalties that are either pecuniary or corporeal. It is not customary for all persons to be whipped, but only men who are free and of inferior station” (Digest, 48.19.28).

C. What a Beginning Law Student was Expected to Learn: Excerpts from the Institutes‘ Outline of Roman Civil Law (the law of persons, property, obligations, and injuries) (14 items):

  1. The Subject Matter of Law: “All our law relates either to persons, or to things, or to actions” (Institutes, 1.3.12).

  2. The Law of Persons: “The chief division in the rights of persons is this: that all men are either free or slaves. Some persons are legally independent (sui juris), while some are subject to the power of others. Slaves are subject to the power of a master” (Institutes, 1.8). “Our children, born from a lawful marriage, are in our power” (Institutes, 1.9).

  3. Guardianship: “Those children who are not under the power of their parents, grandparents, or other such kin, must be placed under the power of a tutor or a curator. Tutelage [or guardianship] is the power given to protect a free person too young to defend him or herself” (Institutes, 1.13-15). “If children needing such protection have not been assigned a tutor by the testament of their parents, their male relatives will be their tutors. Those under tutelage, called pupils, are freed from tutelage upon puberty, which has been legally defined as fourteen for boys and twelve for girls. After males are fourteen years old and after girls are twelve, they must have curators [a distinct type of guardian], until they are twenty-five years old, because until then they cannot protect their own interests. Also, persons who are of unsound mind, or who are deaf, mute, or subject to any perpetual disease that makes them unfit to manage their affairs, must be placed under a curator” (Institutes, 1.22-23).

  4. The Law of Property (or literally of “things,” res): “Let us now speak of things. Some things by the law of nature are common to all, some are public, some belong to corporate bodies, and some belong to no one. Most things belong to individuals, who acquire them in different ways. By the law of nature, these things are common to mankind: the air, the running water, the sea, and the shores of the sea. Among things belonging to a corporate body are, for example, theaters, race tracks, and other things belonging in common to a whole city. Wild beasts, birds, and fish become the property of the captor as soon as they are captured, by the law of nations. For natural reason gives to the first occupant that which had no previous owner. Another mode of acquiring things according to natural law is by transfer or passing it along [traditio]. And so any corporeal thing may be transferred by its owner to another person, by gift, by sale, etc.” (Institutes, 2.1).

  5. Corporeal and Incorporeal Things: “Certain things are corporeal, while others are incorporeal. Corporeal things are tangible, such as land, a slave, clothing, and gold and silver. Incorporeal things are not tangible, such as those that consist in rights, such as an inheritance, a usufruct, an obligation contracted in any way, or a right of way through someone else’s land. Usufruct is the right to use and enjoy things belonging to others, provided that the substance of the things used remains unimpaired” (Institutes, 2.2-4).

  6. The Making of Wills: “A last will (or testament) should be made all at one time, in the presence of seven witnesses, signed by witnesses, and with their seals appended. But women, persons under the age of puberty, slaves, madmen, dumb persons, deaf persons, prodigals restrained from having their property in their power, and persons declared by law to be worthless and incompetent to witness, cannot be witnesses. Nor can any person under power of the testator be a witness, nor the person who is made the testator’s heir” (Institutes, 2.10.3-10).

  7. Obligations: “An obligation is a legal bond that requires us to render something. There are four kinds based on how they are created, whether from a contract, from a quasi-contract, from a misdeed, or from a quasi-misdeed” (Institutes, 3.13).

  8. Contracts: “Contracts are divided into four kinds, depending on whether they are created by a transfer of property, by a verbal promise to do something, by a piece of writing, or by consent. To begin with, there are four types of contract formed by the transfer of property: 1) a loan in kind (mutuum), when one gives another something like money or grain that can be repaid with a certain amount of the same kind of thing; 2) a loan for use (commodatum), when one gives a specific thing, such as a horse or plow, and the owner wants that identical thing to be returned to him; 3) a deposit (depositum), when one gives another some property for safe-keeping; and 4) a pawn or mortgage (pignum), when one gives or pledges a thing in return for a loan from a creditor” (Institutes, 3.14).

  9. Promises: “A verbal obligation or promise (stipulatio) is made when one person states that he will do something, such as ‘I will serve as your witness,’ or, ‘I will give you five gold coins in March'” (Institutes, 3.15).

  10. Consensual Obligations: “Obligations are created by the mere consent of the parties in the contracts of sale, of lease, of partnership, and of commission (mandatum). The mere consent of those between whom the transaction is made suffices, because these contracts may be entered into by those who are at a distance from each other by means of letters, for instance, or of messengers” (Institutes, 3.16).

  11. Obligations Due to Misdeeds: “Obligations also arise from such a misdeed (maleficio or delictum) as theft, damage, or injury. Theft occurs not only when anyone takes away a thing belonging to another, but also when anyone deals with the property of another contrary to the wishes of its owner” (Institutes, 4.1).

  12. Injuries: “An Injury is any action contrary to law, including any outrage, fault, iniquity, or injustice. An injury is committed not only by striking with the fists, or striking with clubs or the lash, but also: by shouting until a crowd gathers around any one; by writing, composing, or publishing a libel or defamatory verses against anyone; by maliciously contriving that another does any of these things; by following after an honest woman, or a young boy or girl; and by numberless other acts” (Institutes, 4.4.1).

  13. Who May Bring Charges for Injury: “A man may receive an injury, not only in his own person, but in that of his children in his power, and even in that of his wife. But, if a husband has sustained an injury, the wife cannot charge injury, for the husband is the protector of the wife, not the wife of the husband. An injury cannot, properly speaking, be done to a slave, but it is the master who, through the slave, is considered to be injured; not, however, in the same way as through a child or wife, but only when the act is of a character grave enough to make it a manifest insult to the master” (Institutes, 4.4.2-3).

  14. Penalties for Injuries: “In most cases [which are civil suits], injured parties themselves estimate the injury, and then the judge condemns the defendant to pay the sum estimated, or less, as he may think proper. For, according to the rank and character of the person injured, the estimate is greater or less. Anyone who has received an injury may bring either a criminal or a civil suit. In civil suits the penalty is a sum of money as explained above, but in criminal cases the judge determines the offender’s extraordinary punishment” (Institutes, 4.4.7-10).