Law in Ancient Rome

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The Roman Forum

The legal system in ancient Rome , originally coined by purely custom and sacred law trains, experienced already in the early Republic to the Twelve Tables ( lex duodecim tabularum ) a systematic codification of the ius civile . This gave the civilian population a binding, because readable, legal system. It was intended through the social willingness to counteract arbitrary measures and to establish a principle of legal security . In particular, it was the class struggles that occurred between the patricians and plebeians that contributed to this result and ultimately stabilized it socially. The law of the XII Tablets was amended around 450 BC. Written in BC. As part of a non-codified state law (“ ius publicum ”), criminal and private law norms regulated the “ ius privatum ”. Civil law was deeply structured and dealt with matters relating to property, obligations, inheritance and family law. In addition, the XII panels regulated the process materials at the same time.

In contrast to civil law , military justice was not based on formal law. Comparable to the violence of the head of the family towards his household, the general's legitimacy towards his soldiers continued to be based on unwritten customary law . The legal relationship between Rome and other ethnic groups was determined by the ius gentium, as it were under international law . In addition to international legal relationships, bilateral trade was regulated.

Common and Sacred Law

The ancient Roman jurisprudence was based on unstructured customary and sacral law. On the one hand, this regulated religious matters that affected the civil community and, on the other hand, profane private legal disputes that resulted in individual judicial decisions in the event of a dispute. The decision of the law was incumbent on the king and a college of priests , which advised the royal high priest in his decisions. The old jurisprudence of the Roman royal era , based on religious and moral principles, developed continuously during the Roman Republic into a factual and juridical jurisdiction that reached its climax during the imperial era . The archaic sacral law system with its statutes, regulations and religious crimes, such as the crimen incesti , remained in the jurisdiction of the priestly college under the presidency of the pontifex maximus .

Twelve Tables Law

In the middle, between the Arch of Septimius Severus and the Temple of Saturn , is the Rostra on the Roman Forum

The Twelve Tables Act, also known as the " Basic Law of Rome ", formed the first legal code of the ancient Romans. It occurred around 450 BC. In force. A written fixation of the law had become necessary because so far only the noble patricians and the priests were familiar with the legal traditions. The priests were considered to be the guardians of the law, but its arbitrary interpretation could not guarantee justice (iustitia) , especially towards the plebeians , who were not heard before the senate until the class battles . A commission of ten commissioned by the Senate, the december council , traveled specifically to Greece to deal with the local legal system. Suggestions were brought along that were mixed with the own legal tradition and formulated into laws . The aim was for every citizen to know their rights and duties. The set of rules "Twelve Tables Law" was probably written down on twelve wooden or bronze tablets . These were placed in the Roman Forum on the Rostra so that they were accessible to everyone. The tablets with the laws themselves are believed to have been used during the "Gauls catastrophe" after the battle of the Allia in 387 BC. Has been destroyed. However , the content of the Twelve Tables can be reconstructed through traditional quotations, comments from historical scholars, politicians and lawyers such as Cicero , Festus , Gellius , Pliny the Elder and the classical lawyers Gaius and Ulpian . In doing so, regulations from civil and criminal law as well as general administrative law, which set out rules on public security and order, can be compiled.

In the course of time, the laws were supplemented by the regular edicts of the praetors (= those responsible for the judiciary) when they took office, e.g. B. the edictum perpetuum of the praetor urbanus . The magistrates that followed each year were able to take over, amend or expand these decrees of their predecessors. From this, in addition to customary and statutory law ( ius civile ), praetoric law ( ius praetorium ) developed.

After the end of the republic, the legal sources mentioned above were supplemented by the legal expert opinions of the Senate ( senatus consulta ) and in particular the imperial constitutions (speeches and edicts of the emperor, rescripts , decrees and legal letters of the emperor).

Civil law and private criminal law

→ See also: Roman criminal law and criminal procedure law

Court file dated August 4, 186 AD on a trial in Arae Flaviae ( Rottweil ) in which a businessman asserted financial legal claims against third parties. The later suffect consul and senator Marcus Iuventius Caesianus, then legionary legate of Legio VIII Augusta , acted as judge . (Copy)

Roman private law was divided into the law of obligations , property law , family law and inheritance law . The Code of Obligations regulated the law of obligations. The bond regulated as in the present Schuldrecht the assumed reciprocal ratio between the creditor ( creditor ) and the debtor ( customer ). According to the then prevailing legal opinion of Roman lawyers, such mandatory rights arose either through a promise ( promissio ) or a contract ( contractu ), compliance with which could be enforced through a judicial process. Such an obligation ( tort obligation ) could also arise from an offense ( delicto ) in which legal interests such as property, honor, freedom of will or physical integrity were violated by an illegal act. In civil law, the obligations were divided into fundamentally different categories:

A natural person could commit himself under an obligation by taking out a loan . This was usually secured by placing security on existing property ( mortgage ) or by handing over valuable movable property as security. In addition, the debtor was temporarily liable with his personal freedom. In addition to being imprisoned, he could also be used for forced labor to discharge his guilt . This legal consequence arising from private law affected at least the defaulting debtor, who could lose all civil rights through his personal pledge ( nexum ) and could be sold abroad as a slave ( trans tiberim ).

In connection with the law of civil procedure, a court case from the 2nd century AD is documented, which illustrates its application and practice. Factually, a creditor brought an action for having paid out a loan that the debtor had not returned to him when it was due. However, the creditor had the problem of not being able to prove the payment of the loan because there was neither a written contract, nor his account books ( tabulis ) presented the corresponding entry, nor were ultimately witnesses ( testibus ) available for evidence. In this respect, the service promise was a mere oral agreement. It is true that the creditor had an excellent reputation ( ferme bonus ), whereas that of the debtor was considered shameful and characterized by a vicious lifestyle. Previous, similar offenses made the question of obligation appear as mere waste. But when he demanded from the praetor that evidence such as the underlying loan entry ( expensi latione ), a sealed promissory note ( tabularum obsignatione ) should be presented but could not be produced, the court decided, despite great reservations, "in case of doubt, for the defendant" ( in dubio pro reo ), which led to the acquittal.

Property law was based on the principle of acquisition from the (non-) entitled person, which is still valid today. A distinction has already been made between assignments by virtue of mere possession ( possessio ) and assignments by virtue of property ( dominium ). Property rights to things, slaves ( instrumenti genus vocale ) were subsumed under it, obtained through acquisition or by inheritance .

In addition to marriage law , family law regulates paternal violence as well as relationships resulting from consanguinity and marriage. Based on this, the establishment of the guardianship ( tutela ) was established, whereby a person capable of acting ( tutor ) could take care of the legal and property matters of a person incapable of acting.

Inheritance law stipulated that, in addition to the legal heirs, consideration also had to be given to those persons whom the testator should have reasonably rewarded. With the assumption of inheritance, in addition to property and property, all liabilities of the testator were assumed. According to prevailing law, a written will was recognized as authentic if it bore the seal of at least seven witnesses.

Public criminal law

Portrait of Cicero found in the Villa of the Quintilians on display in the Vatican Museums

Roman criminal law dealt with high treason ( perduellio ), exceeding official authority ( maiestas laesa ), embezzlement of public funds ( peculatus ), stealthiness ( ambitus ), violence ( vis ), fornication ( incestum ), murder ( parricidium ), forgery of coins and documents as well as perjury ( falsum ) and temple robbery ( sacrilegium ). A special offense of abuse of office was the exploitation and blackmail of provinces ( pecuniae repetundae ).

The criminal proceedings were usually initiated by a complaint ( nominis delatio ) from the injured party. However, any citizen could file a complaint without being affected or harmed. Since the institution of a public prosecutor's office as a criminal prosecution authority was unknown to the Roman legal system, the prosecution ( actio ) and its representation in court were carried out by the complaining citizen himself or by the lawyer appointed by him. In a class action by several prosecutors, the main accusator was determined by means of a preliminary investigation by the competent court .

The jurisprudence took place from 509 to 366 BC. By the consuls . Later, the praetors, who were elected annually, took over the judiciary and also the chairmanship of the respective jury courts ( quaestiones perpetuae ), which had existed since 149 BC. Were established as an organ of administration of justice. The praetors exercised their office independently of each other and, in contrast to the consulate, did not represent a collegial authority. The highest ranking praetor was the one who was responsible for legal cases of Roman citizens ( praetor urbanus ). The praetor peregrinus settled disputes between Romans and strangers, as well as between strangers among themselves . Every year a list of jurors was drawn up ( album iudicum ), from which the praetor selected and sworn the required number of heads for each trial. The jurisdiction of the jury was delimited according to the types and types of offense, for example murder or abuse of office / blackmail.

The trial of Cicero against Gaius Verres is a popular case of abuse of office . Gaius Verres was in the years 73–71 BC. BC governor in Sicily. He exploited this province to such an extent for his personal enrichment that ambassadors came to Rome after his term of office was over to lodge criminal charges against him for extortion. Under current law, foreign prosecutors had to use a Roman lawyer in order to bring their case to the jury. The embassy entrusted Cicero with their request. He accepted the matter and first had to face a preliminary investigation initiated by the opposing party in order to be able to represent the indictment before the jury as the main prosecutor. The indictment was therefore delayed by several months, which the trial opponent intended to use to his advantage through the upcoming new elections of praetors inclined to him. Meanwhile, Cicero collected such an abundance of irrefutable testimony and material evidence that the opposing side ultimately failed to avoid conviction before the court in a repetition procedure (recovery process) despite the most diverse political maneuvers and sophisticated process of procrastination tactics . Verres himself had fled into exile in Massilia ( Marseilles ) , which he was free to do under current law until his conviction .

Procedural rules

The subdivision of the procedural rules ( formula ) was dependent on the type of offense. If it was an offense in the sense of criminal law, i.e. a crime that also harms the general public ( delicta publica ), the criminal procedure was used. If, on the other hand, the legal interest listed in private law was violated by an individual private person ( delicta privata ), the code of civil procedure applied.

Code of Criminal Procedure

Animated brief description of the course of the criminal proceedings before a regular jury court in ancient Rome at the time of the late, outgoing republic

The plaintiff ( actor ) had to explain the facts to be justified by him to the praetor. After a corresponding review of the facts presented, the latter had the complaint repeated after the defendant was present ( nominis delatio ). The indictment was then included in a trial list ( nominis receptio ). The ordinary procedure was repeated with the interrogation of the defendant ( interrogatio opened) through the Prätor. If the interrogation did not produce any proof of innocence or no justification for the defendant, a court date ( diem dicere ) was set, on which the investigation ( cognitio ) took place before the judge. If the accused did not attend the appointment without excuse, he was convicted in absentia. The unjustified absence was assessed as an admission of guilt ( contumaciam ).

If both parties appeared, the court proceedings were opened with the first speech of the plaintiff or his representative. Thereupon the word was given to the accused or his lawyer ( patroni ). Subsequently, the opponents had the opportunity to ask each other about the matter ( altercatio ). Then the evidence procedure ( probatio ) was started. Personal evidence in the form of oath testimony and statements of perpetrators through confessions, as well as material evidence in the form of documents and objects, were recognized as evidence. Witnesses could be forced to testify in the Code of Criminal Procedure ( testimonii denuntiatio ). Physical violence to compel testimony was experienced during the judicial investigation, slaves ( servi ) and freed persons ( liberti ) by means of torture ( eculeus ), which is permitted as a means of coercion .

After the conclusion of the evidence process, the jury ruled on the guilt or innocence of the accused without prior consultation ( in consilium ). For this purpose voting boards were used on which the letters C ( condemno ) for conviction and A ( absolvo ) for acquittal were applied. Before handing in the plaque for his verdict, the jury removed the respective letter. If both letters were removed, this meant an abstention ( non liquet ) and, in the event of a majority of the abstentions, ultimately in doubt for the accused. After the votes had been counted, the chairman gave the verdict ( pronuntiare ). The execution of the judgment could take place immediately. The Romans were not familiar with the invocation of higher jurisdiction in the form of an appeal body.

A citizen sentenced to death did not have the legal remedy of bringing about a referendum ( provocare ). This was only used if the person concerned was threatened with death or severe corporal punishment by a magistrate by virtue of his executive authority without prior legal proceedings. In times of crisis , however, this legal protection was fundamentally excluded.

Code of Civil Procedure

Kurul chair, schematic representation

Unlike in criminal proceedings, in civil proceedings the plaintiff first had to ensure that the defendant appeared with him before the praetor by asking him to do so ( in ius vocare ). If the defendant refused to obey, the plaintiff could ask others present to appear before the praetor to testify to the correct but unsuccessful summons. If this had happened, the plaintiff was granted the right to bring the defendant before the praetor by force if necessary ( in ius ràpere ). If the plaintiff could not get hold of the defendant because he was demonstrably hiding or entrenched in his house, the defendant was formally summoned by the praetor. Just like in the criminal process, the defendant was then convicted in contumaciam for failure to show up . If both parties appeared before the praetor, the latter examined the arguments and submitted the list of competent judges to the opposing parties. An agreement was reached on the judge ( iudex ) and the further course of the process was similar to that of criminal proceedings. Here, too, the judgment that had been passed was irreversible.

Publicity principle

The jury trial leading to the verdict was held verbally and publicly on the forum. There were semicircular stands ( tribunalia ) on which those involved in the process gathered. The praetor presiding over the court sat on the curule chair ( sella curulis ); the jury sat on benches ( subsellia ).

Forms of punishment

The penalties to be imposed in the repressive procedure were explicitly defined by law.

The punishment consisted of fines ( multae ) and ostracism, which went hand in hand with the confiscation of private property and the loss of citizenship ( aquae et ignis interdictio ). In addition, the condemned could be banished ( exilium ). In addition to the loss of citizenship, this also meant the loss of private assets, but allowed the freedom to choose where to stay outside Italy. The accused could also legally enter into “voluntary exile” before his conviction. A milder form of banishment was the relegation . In this case, the place of residence could be dictated to the convicted person even in exceptional cases, but he still retained his property and civil rights. The sharpest form of the referral was the deportatio . Here the addressee was deported to a certain location under supervision and with loss of citizenship, as well as the confiscation of his property .

The most severe form of punishment consisted of the death penalty , which was usually carried out by beheading with an ax ( securi percuti ). Older forms of the death penalty represented falling from the Tarpian Rock and hanging ( infelici arbori suspendi ). Crucifixion as a death penalty was used on slaves and free people without Roman citizenship . It was also customary to strangle the condemned in prison ( laqueo gulam frangere ). In the imperial era, the death penalty was also preferred in the form of circus games such as fighting wild animals ( condemnatio ad bestias ) or as a fight between the convicted until the death of all delinquents ( condemnatio ad ferrum ).

Temporary prison sentences, as is common in today's penal system, were not in use. In the late Republic, however, lifelong or temporary forced labor in copper or silver mines ( condemnatio ad metalla ), quarries and salt works was added as a possible form of punishment.

Military law

The Roman citizen in military service ( milites ) was subject to the unlimited disciplinary and punitive power ( imperium militiae ) of his general. For a long time there was neither a written law nor a legally binding form of procedure. The right to provocation was fundamentally excluded in the military justice system. In the military trial, the prosecution and the judicial office were united in the person of the general. After the end of the republic, the supreme military jurisdiction was incorporated into the principate . The emperor endowed the officials subordinate to him with the appropriate powers so that they could exercise military jurisdiction in the standing army as well as in the army on a campaign. The military law system in ancient Rome was reformed in the Severer era , whereby a military law was also codified. However, this did not significantly restrict the general's freedom of discretion in criminal and disciplinary power.

international law

Due to the connections between Rome and other ethnic groups and states, which developed in the course of time, it became necessary to regulate relations through treaties and agreements. The praetor responsible for foreign legal affairs was given the power to bring Roman law into harmony with foreign law. The foundations for international law gradually developed from this.

Standardized here were u. a. certain conventions such as the protection of trade and the immunity of diplomatic representatives ( legati ). The provisions on war and peace are of particular importance in international law. The declaration of war on a people was opened under observance of certain formulas. The opponent was thus declared an enemy ( hostis ), which gave the Roman people the right to enslave any people defeated in war, to annex the territory and to incorporate the property of the Roman treasury. The war was also ended and peace was made in compliance with certain formulas.

Caesar's campaign in Gaul was viewed by the prevailing legal opinion in Rome as a breach of international law, as it was carried out arbitrarily and without legal legitimation. For this and for the accusation of exceeding his official authority, Caesar was to answer in court after the expiry of his empire in Rome and the associated termination of his immunity . The escalating conflict led to the collapse of the Roman Republic and a legal reformation as the old jury courts were ousted by the new courts of the emperors.

literature

Individual evidence

  1. ↑ Erich Sander: The Roman Military Criminal Law , Rheinisches Museum für Philologie 103 (1960), p. 290
  2. ^ Wolfgang Kunkel, Martin Schermaier: Roman legal history. § 5. International legal relations and the ius gentium. Münster 2001, pp. 96-97.
  3. ^ Wolfgang Kunkel, Martin Schermaier: Roman legal history. § 2. The Twelve Tables Legislation. Münster 2001, p. 35.
  4. ↑ Detailed description of the origin of the legal work, the authenticity of the tradition, the individual laws and the continuation of the Twelve Tables Law in Franz Wieacker: Roman legal history. Source studies, legal education, jurisprudence and legal literature . Volume 1: Introduction, Source Studies, Early Period and Republic . Beck, Munich 1988, pp. 287–309 (Handbook of Classical Studies: Department 10, Part 3, Vol. 1)
  5. ↑ For the Latin text, see: Corpis Iuris Civilis, Vol. 1: Institutions (edited by P. Krueger) and Digesten (edited by Th. Mommsen), Berlin 1894, pp. 2–5; All fragments that have survived are printed in: S. Riccobono (Ed.): FIRA (Fontes Iuris Romanis Anteiustiniani), Vol. 1: Leges, Florenz 1968, pp. 23-75
  6. ↑ German translation cf. Liselot Huchthausen / Gottfried Härtel: Roman law in one volume. 2nd edition, Aufbau Verlag, Berlin and Weimar 1983, pp. 3-7
  7. ↑ Robert M. Ogilvie: The early Rome and the Etruscans . Deutscher Taschenbuch Verlag, Munich 1983, pp. 127–132; on the twelve-table legislation cf. also: Ernst Meyer: Roman State and State Thought . 4th ed., Artemis Verlag, Zurich and Munich 1975, pp. 60–64
  8. ↑ Detlef Liebs: Roman law. A study book . Vandenhoeck & Ruprecht, Göttingen 1975 Uni-Taschenbücher, 465, pp. 279–285
  9. ↑ Detlef Liebs: Roman law. A study book . Vandenhoeck & Ruprecht, Göttingen 1975 Uni-Taschenbücher, 465, pp. 285–298
  10. ^ Max Kaser: Roman legal history . Vandenhoeck & Ruprecht, Göttingen 1976, p. 122
  11. ↑ on the Roman law of obligations cf. Detlef Liebs: Roman law. A study book . Vandenhoeck & Ruprecht, Göttingen 1975 Uni-Taschenbücher, 465, pp. 188–223
  12. ^ Max Kaser / Karl Hackl: Das Römische Zivilprozessrecht : Verlag C. H. Beck, Munich 1996, § 20. The legis actio per manus iniectionem , p. 142
  13. ^ Rolf Rilinger: Life in Ancient Rome . Piper, judges in private proceedings , pp. 306-312; Gellius, The Attic Nights XIV 2
  14. ^ LP Wilkinson: Rome and the Romans. Portrait of a culture. Gustav Lübbe Verlag, Bergisch Gladbach 1979, p. 210; Varro, De re rustica 1,171 " the part of household goods gifted with language "
  15. ↑ Detlef Liebs: Roman law. A study book . Vandenhoeck & Ruprecht, Göttingen 1975 Uni-Taschenbücher 465, pp. 124–130
  16. ↑ Detlef Liebs: Roman law. A study book . Vandenhoeck & Ruprecht, Göttingen 1975 Uni-Taschenbücher, 465, pp. 119–124
  17. ↑ Detlef Liebs: Roman law. A study book . Vandenhoeck & Ruprecht, Göttingen 1975 Uni-Taschenbücher, 465, pp. 130-137
  18. ^ Max Kaser: Roman legal history . Vandenhoeck & Ruprecht, Göttingen 1976, p. 125
  19. ^ LP Wilkinson: Rome and the Romans. Portrait of a culture. Gustav Lübbe Verlag, Bergisch Gladbach 1979, pp. 268-269
  20. ↑ Nack, Wägner: Rome, land and people of the ancient Romans. 2nd edition, Gondrom Verlag, p. 158
  21. ↑ On the creation of the office and the legal powers cf. Jochen Bleicken: The Constitution of the Roman Republic. Basics and development . 3rd edition Ferdinand Schöningh Verlag, Paderborn u. a. 1982, p. 173 f.
  22. ^ Karl Christ : Crisis and Fall of the Roman Republic . 2nd edition. Wissenschaftliche Buchgesellschaft, Darmstadt 1984, 249 f., Cf. also Manfred Fuhrmann: Cicero . Patmos Verlag, The Trial against Verres, pp. 62–71
  23. ↑ Nack - Wägner: Rome, land and people of the ancient Romans . 2nd edition Gondrom Verlag, p. 157
  24. ^ Rolf Rilinger: Life in Ancient Rome. Piper, Torture of Slaves , p. 215; Digest , Edict of the Emperor Augustus , 48,18,8; see. also LP Wilkinson: Rome and the Romans. Portrait of a culture . Gustav Lübbe Verlag, Bergisch Gladbach 1979, pp. 210, 217
  25. ^ Wolfgang Kunkel, Martin Schermaier: Roman legal history. First section: The republican magistrates , Münster 2001, p. 21.
  26. ↑ a b Nack - Wägner: Rome, land and people of the ancient Romans . 2nd edition, Gondrom Verlag, p. 160
  27. ↑ Nack - Wägner: Rome, land and people of the ancient Romans . 2nd edition. Gondrom Verlag, pp. 159-160
  28. ↑ See also Rolf Rilinger: Life in Ancient Rome . Piper; S 366; Seneca : Seneca critical of circus games, letters to Lucilius I 7.2–7.6
  29. ↑ Philipp Vandenberg: NERO. Emperor and God, artist and fool . Gondrom Verlag, Bindlach 1991, p. 183
  30. ^ LP Wilkinson: Rome and the Romans. Portrait of a culture. Gustav Lübbe Verlag, Bergisch Gladbach 1979, p. 209
  31. ↑ Erich Sander: The Roman military criminal law. Rheinisches Museum für Philologie 103 (1960), pp. 289-319; see. also Hildegard Temporini, Wolfgang Haase: The rise and fall of the Roman world. Vol. 14: Law (Matters, continued). Gruyter, Berlin 1982, pp. 965-968
  32. ^ Christian Meier: Caesar . Severin & Siedler, Berlin 1982, pp. 288-291, 402
  33. ^ LP Wilkinson: Rome and the Romans. Portrait of a culture. Gustav Lübbe Verlag, Bergisch Gladbach 1979, p. 269, cf. also Eduard Gibbon: The fall of Rome . P. 41 f.