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TEXT 1. ANCIENT ROMAN LAW



 

As the empire developed, the emperor stood at the top of the administrative system. He served as military commander in chief, high priest, court of appeal, and source of law. All this power was intensely personal: Soldiers swore their oath to the emperor, not to a constitution or a flag. Personal ties of patronage, friendship, and marriage had always bound together Roman society, but during the empire the emperor became the universal patron.

Military loyalty, bureaucracy, and imperial succession were all viewed in personal terms. This concentration of power produced a court in which government officials and the imperial family competed with poets, astrologers, doctors, slaves, and actors for the emperor's attention and favour. The emperor's own slaves and freedmen dominated the clerical and financial posts and formed the core of imperial administration just as they did in the household administration of any Roman aristocrat. Deep ties of loyalty bound Roman freedmen and slaves to their patrons so that they faithfully served even the most monstrous emperors.

The emperors took over the Senate's political and legislative power, but they needed the help of senators who had experience in diplomacy, government, and military command. Since the emperor designated candidates for all government positions, senators had no other access to high office except through loyal service. A shrewd emperor could turn senatorial pride and loyalty to the advantage of the empire. By simply allowing senators to wear a broad purple stripe on their togas, for example, the emperor marked them as rulers of the Mediterranean and added to their prestige.

Only when emperors treated senators with contempt did the senators feel justified in conspiring against the emperor under the banner of freedom. Some ambitious senators dreamed of reaching supreme power and even of replacing the emperor. An occasional opportunity presented itself - Nero's death brought four senators to the imperial throne in the single year of AD 69.

However, most senators remained loyal to the emperor because the constant danger of displeasing suspicious emperors outweighed the remote chance of success. As the old noble families died out, the emperors found new blood among the local elite of Italy and the provinces. In the 2nd century AD more than half the senators were of provincial origin.

The emperor Augustus had first given the equestrian order increased responsibilities, and they continued to play an important role in the governance of the empire. Only a few of the equites actually worked for the emperor, some served as officers of Rome's auxiliary forces, and others as civil administrators.

Most members of this order remained in their home cities - there were 500 in the Spanish seaport of Cadiz alone - and formed the basis of a loyal elite that characterized the early empire. As the government expanded, the "equestrian career" began to resemble a modern civil service with ranks, promotions, and a salary scale. While retired centurions occasionally advanced into the equestrian order and equestrians into the Senate, social mobility remained limited.

The emperors tried to keep the equestrians loyal by permitting them signs of privilege similar to senators. Tens of thousands of equestrians across the empire marked their status by wearing togas with a narrow purple stripe and sitting in the front row at public games.

Senators and equestrians whom the emperor appointed as governors, generals, and prefects held substantial power in the provinces, although provincial administration was initially restricted to issues of taxation and law and order. The system grew increasingly complex, but it always remained rather small for such an expansive empire.

Twelfth-century China had an elite government official for every 15,000 subjects, as compared to Rome, which had one for every 400,000 people in the empire. Such figures are crude, but they show that Roman administration was less intrusive than its counterparts in China and many other modern states. The empire, with its limited administrative system, could not have functioned without local officials in the provinces or subject kings appointed by Rome, like Herod the Great in Judea.

Historians often focus on political leaders, but it is local grievances about high taxes, crime, or the price of bread that most often provoke people to revolt against a government. The Romans relied on civil laws to address a variety of these issues. Roman law in the republic was often based on custom. During the Roman Empire, however, the emperor became the final source of law.

People in the provinces were well aware that the emperor sat atop the chain of command as recorded in the New Testament to the Bible. In regard to taxation, for example, a passage in Luke 2:1 notes: "And it came to pass in those days, that a decree went out from Caesar Augustus, that the whole world should be enrolled to be taxed." However, popular anger over issues such as taxation was still directed toward the political officeholders who administered the laws.

Roman law was one of the most original products of the Roman mind. From the Law of the Twelve Tables, the first Roman code of law developed during the early republic, the Roman legal system was characterized by a formalism that lasted for more than 1,000 years. The basis for Roman law was the idea that the exact form, not the intention, of words or of actions produced legal consequences. To ignore intention may not seem fair from a modern perspective, but the Romans recognized that there are witnesses to actions and words, but not to intentions.

Roman civil law allowed great flexibility in adopting new ideas or extending legal principles in the complex environment of the empire. Without replacing older laws, the Romans developed alternative procedures that allowed greater fairness. For example, a Roman was entitled by law to make a will as he wished, but, if he did not leave his children at least 25 percent of his property, the magistrate would grant them an action to have the will declared invalid as an "irresponsible testament." Instead of simply changing the law to avoid confusion, the Romans preferred to humanize a rigid system by flexible adaptation.

Early Roman law derived from custom and statutes, but the emperor asserted his authority as the ultimate source of law. His edicts, judgments, administrative instructions, and responses to petitions were all collected with the comments of legal scholars. As one 3rd-century jurist said, "What pleases the emperor has the force of law." As the law and scholarly commentaries on it expanded, the need grew to codify and to regularize conflicting opinions. It was not until much later in the 6th century AD that the emperor Justinian I, who ruled over the Byzantine Empire in the east, began to publish a comprehensive code of laws, collectively known as the Corpus Juris Civilis, but more familiarly as the Justinian Code.

TEXT 2. ROMAN LAW

Part I

Roman law is the law of ancient Rome from the time of the founding of the city in 753 BC until the fall of the Western Empire in the 5th century AD. It remained in use in the Eastern, or Byzantine, Empire until 1453. As a legal system, Roman law has affected the development of law in most of Western civilization as well as in parts of the East. It forms the basis for the law codes of most countries of continental Europe and derivative systems elsewhere.

The term Roman law today often refers to more than the laws of Roman society. The legal institutions evolved by the Romans had influence on the laws of other peoples in times long after the disappearance of the Roman Empire and in countries that were never subject to Roman rule. To take the most striking example, in a large part of Germany, until the adoption of a common code for the whole empire in 1900, the Roman law was in force as “subsidiary law”; that is, it was applied unless excluded by contrary local provisions. This law, however, which was in force in parts of Europe long after the fall of the Roman Empire, was not the Roman law in its original form. Although its basis was indeed the Corpus Juris Civilis - the codifying legislation of the emperor Justinian I - this legislation had been interpreted, developed, and adapted to later conditions by generations of jurists from the 11th century onward and had received additions from non-Roman sources.

Development of the jus civile and jus gentium

In the great span of time during which the Roman Republic and Empire existed, there were many phases of legalistic development. During the period of the republic (753–31 BC), the jus civile (civil law) developed. Based on custom or legislation, it applied exclusively to Roman citizens. By the middle of the 3rd century BC, however, another type of law, jus gentium (law of nations), was developed by the Romans to be applied both to themselves and to foreigners. Jus gentium was not the result of legislation, but was, instead, a development of the magistrates and governors who were responsible for administering justice in cases in which foreigners were involved. The jus gentium became, to a large extent, part of the massive body of law that was applied by magistrates to citizens, as well as to foreigners, as a flexible alternative to jus civile.

Roman law, like other ancient systems, originally adopted the principle of personality - that is, that the law of the state applied only to its citizens. Foreigners had no rights and, unless protected by some treaty between their state and Rome, they could be seized like ownerless pieces of property by any Roman. But from early times there were treaties with foreign states guaranteeing mutual protection. Even in cases in which there was no treaty, the increasing commercial interests of Rome forced it to protect, by some form of justice, the foreigners who came within its borders. A magistrate could not simply apply Roman law because that was the privilege of citizens; even had there not been this difficulty, foreigners would probably have objected to the cumbersome formalism that characterized the early jus civile.

The law that the magistrates applied probably consisted of three elements: (1) an existing mercantile law that was used by the Mediterranean traders; (2) those institutions of the Roman law that, after being purged of their formalistic elements, could be applied universally to any litigant, Roman or foreigner; and (3) in the last resort, a magistrate’s own sense of what was fair and just. This system of jus gentium was also adopted when Rome began to acquire provinces so that provincial governors could administer justice to the peregrini (foreigners). This word came to mean not so much persons living under another government (of which, with the expansion of Roman power, there came to be fewer and fewer) as Roman subjects who were not citizens. In general, disputes between members of the same subject state were settled by that state’s own courts according to its own law, whereas disputes between provincials of different states or between provincials and Romans were resolved by the governor’s court applying jus gentium. By the 3rd century AD, when citizenship was extended throughout the empire, the practical differences between jus civile and jus gentium ceased to exist. Even before this, when a Roman lawyer said that a contract of sale was juris gentium, he meant that it was formed in the same way and had the same legal results whether the parties to it were citizens or not. This became the practical meaning of jus gentium. Because of the universality of its application, however, the idea was also linked with the theoretical notion that it was the law common to all peoples and was dictated by nature - an idea that the Romans took from Greek philosophy.







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