ROMAN LAW
“We are therefore entitled to call Roman
law one of the strongest formative forces
in the development of Western
civilization.” (p. 4)
Hans Julius Wolff. 1951. Roman Law: An Historical Introduction.
Univ. of Oklahoma Press, Norman, OK.
Primitive Rome
• Population organized
as gentes from gens
(clans)
– Clan members had right
to seize property of
deceased member
leaving no will
– Claim guardianship
over minor or insane
clan member
Romulus and Remus with their wolf fostermother, bronze sculpture, c. 500–480 BC. In
the Capitoline Museums, Rome, Italy. Height
85.1 cm.Canali Photo Bank,
Milan/SuperStock
Primitive Rome
– Later Rome organized into
30 curiae consisting of 10
gentes each
• Curiae became an
association performing
religious functions and
voting units in oldest form
of legislative assembly
– King (rex) existed as chief
priest, general, and
protector of domestic
priests
Aeneid travels up the Tiber River to the
site of the future center of civilization,
Roman Republic - 509 to 27 BC
• Roman Constitution
– Not a written
document
– Complex of ancient
principles and
developing
practices,
supported by some
specific enactments
House of Venus, painting in house in Pompeii. Univ. of
Colorado, http://harpy.uccs.edu/index.html
Roman Republic - 509 to 27 BC
• Rome never a democracy
in the Greek or modern
sense
– Transition from monarchy
to republic meant passing
power of king to annually
elected officials,
– Senate
• Initially patrician gentes
• Later plebeians were
included
Forum of Pompeii seen through the Samnite portico
with Mt. Vesuvius in the distance. Univ. of
Colorado, http://harpy.uccs.edu/index.html
Roman Republic - 509 to 27 BC
• First Codification: Law of Twelve Tablets - 450
BC
– constituted the Jus civile
– Based on customary laws of an agrarian society
– Drafted by committee and accepted by popular
assembly
– Established equal law for patricians and plebeians
– Applied only to Roman citizens, i.e. residents of the
City of Rome
Roman Republic - 509 to 27 BC
• Only the Roman citizen had right to contract for the
conveyance necessary to transfer property
– “Property” refers to the object and the exclusive right to
use it
• Original Roman concept of citizenship included
– All males above 15 years, and those
– Accepted into one of the three original tribes of Rome by
•
•
•
•
birth,
adoption,
emancipation, or
governmental grant.
citizen, matron, curule magistrate, emperor, general, workman, slave
Roman Republic - 509 to 27 BC
• Grades of citizenship
– Full citizens enjoyed rights of
•
•
•
•
voting (ius suffragii)
holding office (ius honorum)
marriage with a freeborn person (ius connubii)
engaging in commercial contract protected by
Roman law (ius commercii)
– Citizens without sufferage had rights of
• marriage and contract, but not
• voting or office
– Freedmen had rights of
• voting and contract, but not
• marriage or office.
Neck-amphora
(jar) with lid, ca.
540 B.C.; Archaic;
black-figure.
Metropolitan
Museum of Art.
Transition from Republic to
Empire
Roman Empire - 27 BC to AD 476
• Geographical expansion required
new legal forms
• New law based on edicts of
magistrates (“praetor”) based on
individuals cases (367 BC to AD
137)
– Jus gentium
• 100 BC to 212 AD citizenship
extended to all free inhabitants of
empire
• Jus gentium became law of all of
empire
Plaque with the return of
Odysseus, ca. 460–450 B.C.
Metropolitan Museum of Art.
Agustus
• Legal decisions move
further away from
direct control of
Emperor
• Granted right to jurists
to deliver opinions
(responsa) on legal
cases
Agustus - (27 BC - 14 AD)
http://www.crystalinks.com/rom
emperors.html
Justinian Code
• Emperor Justinian (AD 529 565) ordered codification of
the law
• Tribonian headed team that
wrote Corpus Jurus Civilis
[Body of Civil Law]
• Codex Justinianus compiled
– All existing imperial
constitutiones from the time of
Hadrian.
– Used existing collections,
Codex Theodosianus and
private ones
Justinian Code
• Issued in three parts,
– Digest, or Pandects issued in
533,
• Compiled the writings of the great
Roman jurists and current edicts.
• Constituted both the current law of
the time, and a turning point in
Roman Law, because
• Sometimes contradictory case law
of the past was subsumed into an
ordered legal system.
Justinian Code
• Issued in three parts,
– Institutes was intended as
legal textbook for law
schools
– Novels - collection of other
laws in Greek
The Institutes
• Book I - Of Persons
• Book II - Of Things
• Book III - Intestate
succession
• Book IV - Obligations
Arising from Delicta
(from theft, robbery,
damage, or injury)
Book II - Of Things
• All things are either
– Patrimony, i.e. derived
from one’s father or
ancestor, or
– Not patrimony
Res Nullius
• Physical things which "have not or
have never had" an owner.
–
–
–
–
–
–
–
Wild animals,
Fishes,
Wild fowl,
Jewels disinterred for the first time
Movables that were abandoned
Property of an enemy
Lands
• newly discovered
• never before cultivated
• deserted
“Possession is 9/10th of the law”
• Roman maxim
– First possessor of a thing becomes
the owner by right of occupancy
• Occupancy
– Individual takes physical
possession of something res nullius
– With intent of acquiring for himself
• In certain cases intention had to be
manifested by specific acts constituting
"appropriation" to be recognized in law
“Possession is 9/10th of the law”
• Universally believed by the
Romans that occupancy was
the natural process or "mode
of acquisition" by which the
commonly-held earth and its
fruits became the recognized
property of individuals.
• Doctrine carried forward
into English and American
law
Common Property
• ”Res communes"
– res nullius in a wild and
unappropriated state
– Common to all
"public domain" in the community at
large
• available for use (usufruct) by any
member of the community
•
– Resources generally incapable of
private appropriation by their
dynamic nature or definition
• free flowing water, air, and light
Common Property
• ”Res communes” ("public place" or
"commons”)
– Positively designated by the community as a place
common to all
• Formal dedication, or
• Longstanding common use
– Civil state of common ownership,
– Governed by public law (jus publicum or de communi
jure)
– Reserved from appropriation by any individual.
– Naked title generally held in "public trust,"
• Inalienable by the sovereign or chartered municipality,but
• Subject to regulation of use
Ownership Status
• Acknowledges right to use or exercise control over an
object or thing.
• Owner (proprietor or domini)
– Individual who holds such rights
• Ownership relationship is often referred to as an "exclusive
right of use," domain or dominion.
• Right is exclusive and controlling, insofar as it excludes
non-owners from decisions regarding private property and
the legitimate use or disposal of property without the
express or tacit approval of the owner.
Absolute right to private property
• In times of war Rome was placed under the
martial law of a dictator
– Property rights were subordinate to needs of
state
• Otherwise, absolute right to use private
property was vested in the patriarch
– Subject to dominium eminens (eminent domain
or ultimate right of state/community use)
• Conditional upon
– genuine public necessity and
– payment of compensation to the domini.)
Servitutes
• Property held in
dominium could also
be burdened with
servitudes
– Rights of way,
– Right to draw water
– Dig sand or lime
Dominium
• Four fundamental
types of dominium in
land and resources:
–
–
–
–
directum dominium;
nudum dominium;
usufructory dominium;
dominium utile
Landlord’s Title
• Directum dominium
– Qualified ownership of a
landlord,
• Not having possession or use of
property but retaining ownership
• Used in feudal land systems to
describe the King's ownership of
all the land, even though most of
it was lent out to lords for their
exclusive use and enjoyment
Naked Title
• Nudum dominium
– Property ownership of
title alone
– Someone else has
dominium over all the
practical rights
enabling them to hold
and make use of the
thing
Usafruct Right
• Usufructuary dominium
(usucapio "taking by use") is
property ownership of the right
to reasonable use of a thing,
without owning the thing itself.
• Such ownership may occur
when the thing is incapable of
being reduced to possession by
nature.
– Right to use water in a running
stream
Usafruct Right
• Dominium utile
– landlord (lessor) and tenant
(lessee) relationship under a
contract (lease)
Non-dominium “ownership”
• Possessio
– intermediate or potential ownership
associated with the right to use property
– Ownership status stemmed from
• Imperfect transfer (legal conveyance) of
ownership, or
• Tenantry on the ager publicus (public lands)
as "possessore" (possessor) but not domini
(owner.)
– Generally, this prescriptive right became
dominium through usucapion
• Could no longer be questioned after two
years of unchallenged occupancy
Roman “Statute of Frauds”
• Documentation of transfers of title to property
– English law requires recording of document in public
records
– Roman law required a formal ceremony
• Ancient Roman law classified physical property
as,
– Res Mancipi" - things that required a mancipation";
and
– "Res Nec Mancipi" - things that did not require a
mancipation.
• Title to things not requiring mancipation was
presumed to have passed with corporeal delivery
Roman “Statute of Frauds”
• Mancipium or mancipation
– Formal public ceremony required for recognition of conveyance in
"title" of legal ownership to a thing,
– The transferee grasped the object being transferred and said, “I assert
that this thing is mine by Quiritarian [Roman] law; and be it bought
to me with this piece of copper and these copper scales.” He then
struck the scales with the ingot, which he handed to the transferor
“by way of price.”
– Without this ancient ritual, no exchange had the sanction or
protection of the law.
• Res Mancipi recognized two elements in conveyance of
ownership:
– Consent or intent to transfer ownership title to the thing; and
– Physical delivery of the thing into the new owner's possession.
Roman “Statute of Frauds”
• Res Mancipi encompassed property most
valuable to agriculture – land, houses, slaves and four footed beasts of
burden
• Under Roman law, the list of Res Mancipi
was irrevocably closed.
• In English law, the distinction was carried
forward with the identity of
– res mancipi as "immovables" governed by the laws
of "realty”, and
– res nec mancipi as "movables," chattels or goods,
governed by the laws of "personalty”
Provincial Lands
• Belonged either to
– State as ager publicus or,
– Municipalities as ager
vectigalis.
• Lands divided and surveyed
on a grid system
• Rented for a very long period
of time or in perpetuity,
conditional on rent payment.
•
Tenantry rights on marginal
lands were bought, sold and
inheritable
Roman (“Italy”) Land Use
• Rome was based on the
idea of the citizen-farmer,
who was expected to
serve in the military.
• Estates larger than could
be farmed by a pater
familias, with his
household of sons and
slaves, first occured with
holdings of patricians or
censors.
Lucius Quinctius Cincinnatus
Mythical hero who left the plow, left
the farm to go to the aid of his
country in time of war and became a
great general and was victorious,
and then renounced his power and
returned to the farm.
Development of Latifundia
• Continual Roman warfare
– Kept many Roman farmers in the army
for years
– Soldiers farms were ruined and taxes
consumed the little profit made.
– Irrigation and drainage canals fell into
disrepair, marshes spread.
• Small farms became absorbed by
larger agricultural estates, latifundia
– Owned by absentee patrician owners and
– Worked by the slaves that the victorious
Roman legions sent home
Mandatory Agricultural Investment
• Emperor Trajan
set up a scheme to
promote
agriculture in Italy
• Senators required
to invest a third of
their capital in
Italian land
Trajan’s Column portraying
his exploits. © Art Resource
Small Farmer Forced Out
• Emperor Trajan’s policy
encouraged the "latifundia".
– Slave labor and imports from
Sicily, Africa and Egypt
cheapened grain so that free
farmers could not compete
– Many peasant proprietors and
free rural workers abandoned
farms for the cities, leaving
Italian agriculture to the
latifundia and slaves.
Homestead in central
Sicily
Labor Shortage
• Latifundia eventually
ruined by
– Pax Romana, and
– Cessation of influx of slaves
through conquest
• Shortage of slaves resulted
– Cost of slaves rose
– Large landlords lured free
labor back to the land by
• Dividing holdings into units
leased to cultivators, "coloni"
Italian landscape of
small farms.
Labor Shortage
• Landowners required a
– small money-rent, or
– one tenth of the
produce and a period
of unpaid labor in the
owner's villa
• By the third century,
these villas had
become fortified
castles that enclosed
the villages of the
coloni
Geography and economy lead to
creation of city-states.
Rise of “Feudalism”
• Coloni found it difficult to
pay rent and other taxes
• Turned land over to a large
landowner who could
protect them
• Became tenants on same
land
• Lost personal freedoms
Law in Provinces and PostRoman Empire
• Theodosian Code (438)
• Code of Euric (475)
• Lex Romana Visigothorum,
or Breviary of Alaric (506)
• The Visigothic Code,
Forum judicum (653)
– Main source for Christians
until 13th century
Visogoths movements, Source:
http://www.britannica.com/eb/art?i
d=11570&type=A
The Visigothic Code
(Forum judicum)
• Book IV: Concerning
Natural Lineage
– Law I. Brothers and
sisters shall share
equally in the
inheritance of their
parents
http://libro.uca.edu/vcode/visig
oths.htm
Book X: Concerning Partition, Limitation,
and Boundaries
• Title I: Concerning
Partition, and Lands
Conveyed by Contract
• Title II: Concerning the
Limitations of Fifty and
Thirty Years
• Title III: Concerning
Boundaries and
Landmarks
http://www.boglewood.c
om/timeline/attila.html
Post-Roman Civil Laws of “Spain”
• The Fuero Juzgo, 694 A.D.
• The Fuero Real, published in1255
• Las Siete Partidas, begun in1251 and completed in 1265
• Leyes de Estilo, compiled between 1295 and 1312
• Ordenamiento de Alcalá, 'promulgated in 1348
• The Fuero Viejo de Castilla, promulgated in 1365
• Leyes de Toro, 1505
• Nueva Recopilación, published in ten separate editions between
1567 and 1777;
• Recopilación de Leyes de Los Reinos de Indias, promulgated in
1680;
• Novísima Recopilación, 1805.
Las Siete Partidas 1251-1265
• King Alfonso commissioned a group
of jurists to effect the legislative
reform envisioned by his father,
Fernando III.
• Replace the bastardized Visigothic
Forum Judicum (the Fuero Juzgo, in
Asturias & León) as well as the
diverse, conflicting, and confusing
legislative maze of local Fueros and
unwritten customs (in Castile).
Las siete Partidas, de Alfonso X
el Sabio. Este ejemplar, de la
edición de Gregorio López en
1555, perteneció a la Academia de
Santa Bárbara; en la actualidad se
custodia en la Biblioteca de la
Academia de Jurisprudencia y
Legislación.
Las Siete Partidas 1251-1265
• Based on Roman and
Justinian law, Alfonso's
Fuero Real, and ideas of
Aristotle, Seneca and
Isidore
• Basis of law throughout
Spain and Spanish Empire
• Cited in U.S. in Louisiana
and southwest in Spanish
Land Grant cases
Alfonso el Sabio (Alfonso the
Wise) became king of Castile and
León in 1252,
http://www.hnh.com/composer/alfonso.
htm
The 7 Books of Law
• Canonical code and who has power to make laws and
why, who has power to amend laws, etc.
• Emperors, kings & other lords, the prerogatives, rights
& duties of those who govern.
• Justice and its administration.
• Matrimony, kinship, position of legitimate and
illegitimate children, adoption, paternal rights, slavery
and freedom, lordship,
• Commercial law, governing loans, debts, contracts,
purchases, exchanges, fairs, markets, merchant
marine, and all other forms of commerce and dealings
among men.
The 7 Books of Law
• Wills, inheritance,
guardianship of orphans
and minors
• Criminal Law: crimes,
calumny, penalties,
punishments, indemnities.
Laws governing Jews,
Moors and heretics.
Origin of Term “Cadastres”
• Capitastrum was register of land
values
• Used to set property tax, capitatio
terreno
• In Byzantine empire this tax was
called katastikon
• Venetian Republic used this tax
system
– re-Italianised the name as catastico
• Land tax was major revenue source in
pre-industrialized economies
– Cadastre system were very detailed