Roman law

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Spanish edition of the Corpus Iuris Civilis , Barcelona, ​​1889

As Roman law is law referred to, which, starting from the ancient times , first in Rome and later throughout the Roman Empire was. Since the sources of ancient Roman law collected in the Corpus iuris civilis were rediscovered in Bologna in the high Middle Ages , the effect of Roman law continued into the 19th century , as the sources were considered authoritative for the law in most European countries. The establishment of the Corpus Iuris Civilis as valid imperial law in the Holy Roman Empire led to codifications in today's Europe, which conceptually led to the reception of Roman law .

The approximately one thousand year history of ancient Roman law is encompassed by two basic codifications, the Twelve Tables Law (around 450 BC) at the beginning and the Roman legislation collected under Justinian I (around 482-565) in the Corpus Iuris Civilis at the end. Statutory law must not obscure the fact that Roman law was essentially not purely statutory law, but rather consisted of a triad of legal sources in which common law and legal law played a major role. Customary law was law based on the archaic customs of the fathers, the mos maiorum . Legal law, on the other hand, developed in its classic form from the jurisprudence of the praetors and from the writings of legal experts, such as the Gaian institutions .

According to the prevailing opinion so far, legal historians divide Roman law into three epochs, the republican , which began with the founding of the republic in the late 6th century BC. BC to Augustus , the classical , which covers the first two centuries AD, and the post-classical , from the Severians (193–235) to Justinian in the 6th century.

While many other achievements of antiquity originally come from the Greeks and were only adopted by the Romans , Roman law is an original creation of the Romans without Greek models. However, the adoption of terms and argumentation patterns from Greek philosophy played a role in the development of Roman jurisprudence. The science of Roman law - as well as the Romance Philology - Romance called.


The outstanding position in Rome to this day is occupied by the classical law, law that was created in the time from Augustus to the Severians. It was civil law . Constitutional and criminal law were far less legalized. Unlike in the democratic legal landscape of Athens , the courts were hardly concerned with constitutional law, and criminal law was long regulated among the clans .

From the earliest times of Rome, civil law was the law of the wealthy and the haves. It was based on private property and free will. These principles outlasted late antiquity and were carried over into modern times through medieval Italian and later German reception . Still, the current Civil Code is based on the principle of: ". Money you have" What has changed, only the view of the legal terms that are increasingly systematically argued from the beginning of the modern era and defined. There are just a few elements that reflect the ancient Roman structure of the civil law principle in context: legal subject , family , property , contract and offense . In German civil law, these principles can still be found essentially in the five books of the BGB (so-called pandect system ).

A representation of civil law structured according to this scheme is not yet to be found in ancient Rome, rather it was about patrician models. The order of the materials was more based on procedural aspects, as they were expressed in the actiones ( lawsuits in court ). Changes in social and economic structures and interests led over time to modifications of the type of process, which had been stripped of sacred elements and whose order was given by praetoric edicts . However, it is not the classical sources themselves that have been used since the High Middle Ages ; today's knowledge of Roman law is mainly based on the Justinian codifications of the Corpus iuris civilis created in late antiquity. The five guiding principles of archaic Roman law can also always be found in this body of law.

Roman law with special attention to the institutes " property " and " possession "

Roman law was initially a law without written laws , so-called customary law , which arose from years of practice . The early legislation of the royal era and the early legal transactions probably arose from the area of sacred law and leaned heavily on the religious practice of the augurs , priests of the ancient Roman religion who obtained the symbols of gods . They therefore had cultic features, were ritualized and based on proverbs.

Ius civile

Sextus Pomponius describes in the digests that after the expulsion of the kings, their laws were abolished and the Roman people exposed themselves to uncertain legal conditions and customs. There was no clear legal situation at the beginning of the Roman Republic. But there was considerable tension between rich and poor, which resulted in the first power struggles between the rich patricians and the poor plebeians . The latter emerged from it successfully, because the plebeians obtained tribunician power and were later able to issue plebiscites equivalent to the law. Before this came about, the people's tribunate caused one of the so-called Decemviri legibus scribundis (“ten men”) to travel to Athens in order to gain knowledge there that should be recorded in a general set of rules. Initially, only the “ Quirites ”, full Roman citizens , were protected, but the Twelve Tables Act , which went down in history as ius civile , was adopted as a set of rules . The records were made in the middle of the 5th century BC. And were set up in the form of twelve wooden panels (according to other sources: 12 copper or ivory panels) on the forum romanum . The original text has not survived. Some fragments can be found in historical and legal literature, such as Ulpian , Gaius or Cicero . The resulting reconstruction is very uncertain.

The ius civile separated goods into two categories of entitlements, in res mancipi , i.e. things in which ownership could only be transferred through mancipatio , and res nec mancipi , things in which mancipatio was not necessary for the transfer of property because they were could be transferred form-free by way of the traditio ex iusta causa . The res mancipi included B. Real estate in Italy, cattle, slaves and rural easements, that is, comparatively high-quality goods. With the XII panels, the term “unlimited Quiritic property” ( dominium ex iure Quiritium ) was formed, which only Roman citizens were allowed to and could acquire. Five Roman citizens had to be called in as witnesses and one more with copper scales for the transfer process. Those who acquired through mancipatio had the ritual words to speak: "I claim that this slave is my property according to the law of the Roman citizens and that he should have been bought by me through this piece of copper and these bronze scales." He put on a copper bar a weighing pan. The actual payment was then made outside of this ceremony.

The priests ( pontifices ) interpreted the law of the XII tablets in the 3rd century based on the wording ( interpretatio ), which is why it is called pontifical rigorism. This could mean that the wrong use of factual words could result in procedural defeat. Whereas the transfer of ownership of res mancipi complied shape constraints were varied and time-consuming, often appeared so formal errors. On the other hand, the change of ownership of res nec mancipi turned out to be problem-free , because it took place through mere handover.

In addition to mancipatio , the so-called “sham process”, by virtue of judicial assignment ( in iure cessio ), could result in quiritic ownership of res mancipi . The seller and the buyer appeared before the magistrate ( praetor ) and the buyer claimed that a certain res mancipi belonged to him. The praetor then asked about objections from the previous owner. If he was silent on the question or if he said no, the transfer of ownership was completed.

The ius civile was isolated in the 3rd century BC. Already driven by leges (laws). An important legislative body was the People's Assembly (Centuriatskomitien), which was made up of hundreds of the army. The individual was assigned to one of these hundreds through a property appraisal by the censor . In the majority these were eques and the first class of the infantry. Laws are passed after prior consultation by the Senate and upon application ( rogatio ) by the consuls or praetor before the people's assembly. Neither the magistrate , who convened and chaired the assembly on the basis of his ius agendi cum populo , nor the assembly itself had any influence on the content of the law . The Central Committee could only pass or reject the law.

From 286, with the lex Hortensia , the leges decided by the popular assembly were opposed to the plebiscites decided by the concilium plebis . The concilium plebis was a popular assembly created by the plebeians to which the patricians had no access. The lex Hortensia gave the plebiscites the same legal force, so that they had the same value as the leges.

Leges , which were important for private history , came into force under Emperor Augustus - a little later, the popular legislation was lost without formal abolition. The Senate resolution ( senatus consultum ) took its place . At first the Senate was composed of the heads of the gentes , but as early as 312 BC. The censor appointed former magistrates as senators. The Senate only made recommendations to the magistrates, but due to its authority they were mostly observed and implemented. From the 2nd century onwards, the influence of the Senate decreased in favor of the oratio Principis (proposal of the emperor). Imperial orders, constitutiones principis, gained power equivalent to law, despite contradicting the Roman constitution. The form of the imperial constitutions included the edicta (general agreements of the princeps (emperor)), mandata (internal instructions to the officials by the emperor), rescripta (written statements by the emperor on inquiries) and decreta (decisions after negotiations before the imperial court) .

Ius gentium

In 242 BC Because of the increasing importance of foreign trade for Rome, the so-called praetor peregrinus was introduced. This was responsible for legal disputes between two non-Romans or between a non-Roman and a Roman. He did not judge according to the ius civile , which was only valid for Roman citizens, but according to a ius gentium . This was not an international law in today's sense, but rather a trade law between peoples. The praetor peregrinus could now decide for himself which forms of complaint he would allow. This procedure established itself over time and was finally possible even before the praetor urbanus . A new legal form was created, the "Praetorical Edict". This was understood to mean an ordinance that the respective praetor published at the beginning of his term of office and in which he announced which principles should be complied with in the case law (e.g. which lawsuits and which objections were permitted).

No quirit property could be acquired through the newly created ius gentium . It remained tied to Roman citizens and with res mancipi a transfer was only possible through the two formal acts described. The Praetors did not expand the procedures for acquiring Quirite property. Rather, they began to protect the owner like an owner in a number of cases .

The legal institution of “possession” ( possessio ) owes its emergence to successful wars, the conquest of new land and the growing number of new slaves. It simply became impossible to perform the mancipatio on every single slave in order to formally acquire property. If the seller claimed that ownership of a slave had not passed due to lack of mancipatio , the praetor granted the buyer the so-called defense ( exceptio ). It was a means of protecting the defendant in the form process , with the help of which claims by the plaintiff could be rejected, which at first glance would have been legally valid (such as an unfulfilled mancipatio ), but which nonetheless harmed the defendant in an unreasonable manner would have.

Owners worthy of protection ( possessor ) were initially those who actually had a thing under their control ( corpus ), with the will to keep it to themselves ( animus ). From then on, the property enjoyed its own legal protection from the praetor ( interdicta ) against any unauthorized deprivation or interference. The rights of the owner of a thing that was taken unauthorized ( bonae fidei possessor ) were protected by a possible property lawsuit and similar institutes.

The possessorial interdicts ( interdicta ) issued by the praetor can be divided into three groups:

  • Interdicts given in order to obtain possession (e.g. quorum bonorum ),
  • Interdicts that served to preserve existing possessions (e.g. uti possidetis ) and
  • Interdicts through which lost property could be regained (e.g. unde vi ).

The institution of ownership was only an intermediate stage. Ultimately, it led to the development of the concept of “ bonitarian property ”.

Later developments: pandects and digestes

Roman jurisprudence reached its peak in the first centuries of the imperial era (1st – 3rd centuries). In late antiquity , the teachings of classical jurisprudence threatened to be forgotten. To counter this tendency, Emperor Justinian I had older legal texts collected. Its legislative work comprised the Institutiones Iustiniani (promulgated 533), the Pandekten (Latin Digest , also promulgated in 533) and the Codex Iustinianus (in the revised version of 534); In association with the Novellae issued by Justinian (up to 565) and the Longobard feudal law ( Libri Feudorum ), it achieved renewed fame among the humanists as the Corpus Iuris Civilis through the edition of Dionysius Gothofredus (Lyon 1583) . The pandects or digests have achieved the greatest importance for the development of modern law. The Codex Iustinianus, on the other hand, contained all still valid imperial constitutions that had been enacted since Hadrian and is therefore one of the most important sources on Roman law. When antiquity finally came to an end soon after Justinian's death , his legal collection was initially forgotten until it was rediscovered in Italy in the High Middle Ages and initiated a renaissance of Roman law.

Roman law in the Middle Ages and in modern times

In the Byzantine Empire , the Justinian codification remained the basis of legal practice. In the 9th century, Emperor Leo VI. (886–912) compile a collection of Byzantine law . These “ basilicas ” essentially consisted of a Greek translation of the Justinian Codex and the digests.

In Western Europe, the Justinian Codification and Roman law as a whole were largely (but not completely) forgotten during the early Middle Ages . In particular, the digests were soon no longer known. However, this important text was rediscovered around 1050 (see also Littera Florentina ). From this point on, Italian lawyers - whose law school in Bologna developed into one of the first universities in Europe - were the first to revive Roman law. So-called glossators explained and revised the existing texts according to the needs and methods of the time. The commentators (also called post-glossators ) then worked out the legal texts into practice-related works.

Since the 14th century, Roman law has regained importance as common law in Central Europe. Since there was no uniform legal system in Germany in the Middle Ages, Roman law was also adopted here from the middle of the 15th century ( see: Reception of Roman law ). Due to the special importance of Roman law, the law faculties of the universities became very influential. The way in which the corpus iuris civilis is used is called usus modernus pandectarum , i.e. the contemporary use of the pandects.

With the beginning of absolutism and the Enlightenment , natural law and the law of reason came to the fore.

At the beginning of the 19th century, however , a return to Roman law began with the historical school of law , of which Friedrich Carl von Savigny was the outstanding representative . One of the great codifications of private law , the Civil Code , was created under Napoleon in 1804 . With historical jurisprudence and Pandectistics , the scientific penetration and systematization of Roman law, which was considered common law in Germany until January 1st, 1900, reached a climax.

Even modern civil law is still particularly influenced by Roman law. This applies above all to the German Civil Code (BGB). This is based on the historical jurisprudence of the 19th century. In contrast, the Austrian General Civil Code (ABGB) was more strongly influenced by the law of reason of the 18th century. However, Roman roots are also clearly recognizable in the ABGB.

Its high level of abstraction is held responsible for the global influence of Roman law. It also renounced religious legitimation, which is why it could be transformed into developed social and economic forms almost at will.

The history of Roman law is still an (optional) part of university law training.

See also




Web links

Individual evidence

  1. Ulrich Manthe : History of Roman law . 3rd revised edition. Beck, Munich 2007, p. 7 (introduction)