Advanced Civil Law Obligations

JOSHUA KRANE

P. Stein, “Roman Law in European History”

The Monarchy and the Republic

The Law of the Twelve Tables was a written collection of rules drafted by a citizens’ commission to record the customary law of Rome. The Law of the Twelve Tables focused on law that gave rise to dispute, namely legal procedure. Under the Roman Republic, a magistrate and the parties would choose a single juryman, known as a iudex to investigate the facts, hear evidence, and deliver judgment. The iudex was a layperson.

The plaintiff could compel attendance by the defendant if the defendant chose not to appear before a witness. The plaintiff could also execute an obligation on the body of a debtor – who the plaintiff could sell into slavery.

The community had no power to control family matters; however, when property matters arose between families, the patriarch would appear as the representative, since he held all of the family’s property. The community, as represented by a public prosecutor, however, exclusively prosecuted homicide cases to prevent vendettas.

The Law of the Twelve Tables continued to evolve, as pontiffs, or textual interpreters, interpreted the law in a progressive way as Roman society developed, since formal and open change to the written law was difficult.[1]

In the fourth century BCE, Romans elected a magistrate, known as the praetor who was in change of the administration of civil justice. The praetor was not a lawyer, per se. The praetor relaxed the first stage by allowing parties to express claims and defences in their own words. The praetor would draft a formula, as a set of conditions, for the iudex to consider.[2] Over time, the formulae also allowed for defences that included fraud and duress. The types of formulae that the praetor would draft were listed in his edict at the beginning of his term. The praetor also determined the appropriate remedy – which sought to create a just result. The praetor became the mechanism for the development of the law, and he was responsible for correcting problems in the application of general rules as well. This is an early version of “equity” in the law.[3]

Recall from the common law, plaintiffs had to channel complaints into writs. In Roman society, the praetor would do a very similar process using forms. No concept of a general law of obligations existed at this time.

By the middle of the third century BCE, the Romans elected a second praetor to deal with cases that involved one or more parties that were non-Romans, or peregrines. The law applied to these peoples was called ius gentium, or the law of nations (which can be characterized also as natural law).

During the Classical Period of the first two centuries CE, the formulae and remedies became more complex and increasingly technical. A class of legal experts, known as jurists, emerged to comment publicly on the law, because the praetor, the iudeces, nor the advocates were experts on the law. Jurists discussed the law among themselves – by responding to positions taken by others. The jurists drafted digests with precedent cases for use/application in the future. The digests focussed on private law and not criminal or religious matters.[4]

The Empire

As the Roman Empire expanded, more people fell under the scope of Rome’s authority. Provincial governors acknowledge their Roman connection, however, provincial citizens were subject to municipal law, with local variations.[5]

Jurists retained their important status in the early Empire. They held a comprehensive knowledge of private law and they focussed their efforts on specific legal problems. Jurists focussed on putting the law together into a comprehensive classification system, based upon the Greek tradition. The first such taxonomist was Quintis Scaevola who recognized commonalities between wrongdoings against persons and property (delicts). Gaius, the most famous taxonomist, organized the civil law into three headings in his Institutes: personal status, property and obligations, and actions or civil procedure.

By the fourth century CE, a state-appointed magistrate began to hear whole cases in a procedure known as cognitio. Oral procedure also gave way to written procedure as plaintiffs and defendants filed their claims to the court. The new procedure also allowed issues to emerge during the case. Although no appeal had been possible by a lay-iudex unless the appellant could show bias, the cognitio procedure allowed appeals from decisions of magistrates.

Stein considers that Roman law reached its nadir during the Classical Period, because the cognitio procedure led to the blurring of technical terms. The provincialization of the law also decreased its uniformity. Provincial magistrates followed local law, with which they were familiar. This did not distress the jurists, because customary rules owe their authority to the will of the people. Hard-pressed lawyers preferred to avoid consultation with the digests because of their length. Even Gauis’ Institutes were too complex for many. Theodosius II and Valentinian III elevated five jurists to the status of primary authorities (ius) to the satisfaction of lawyers.

Decline of the Empire

By the fifth century, legal scholarship began to decline. The law of citations amalgamated the law of five prominent jurists, but it was backward looking and not progressive.

In the middle of the sixth century, Emperoror Justinian promulgated the Digest,the Institutes, and the Codex into the Corpus Juris Civilis to revive the glory of the Roman Law. The Digest was a “cut-and-paste” of commentaries (with amendments) of writings of famous jurists. The Institutes was short, but had a sound structure for student learning. The Codex is not a code in the modern sense, but a compilation of imperial legislation and clarifications on the law. It was not a modern code. The Digest became the means by which the substance of Roman law has passed down the centuries, and much of modern civil law is based upon these sources. Much of Roman law was lost at the fall of Rome and the suppression of law by Justinian and others.

Perhaps the civil law respects non-practitioner observers and commentators on the law, because of the importance of the jurists during the Classical Period.

Stein identifies many elements of Roman law that still endure today:

  • Fraud and duress are still defences to non-performance,
  • Issues of majority and capacity can vitiate by lesion,
  • Restituo in intgerum (though modified somewhat),
  • The importance of writing by jurists,
  • Bureaucratic judges,
  • Conceptual division between lex and jus,
  • Organization of the private law into categories – persons, actions, things,
  • Amalgamation of civil wrongs into concept of delict,
  • Use of custom to fill gaps in written law.

Additional Notes:

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Borkowski, “Roman Law and the Modern World”

Roman law never completely disappeared following the collapse of the Western Roman empire. The Barbarian Codes promulgated by Barbarian Kings incorporated much of Roman law into the customary law of the Barbarian tribes.

In the East, the Greek translation of the Corpus Juris by Leo the Wise (known as the Basilica) made the text more accessible to practitioners in the ninth century. In the West, however, Roman law survived as an influence on Germanic peoples that borrowed Roman concepts to supplement their customary law.

The Reception

The Reception of Roman Law represented a revival of the study and practice of Roman law after the end of the Dark Ages.

The universities became became centres of knowledge during the eleventh century. Divinity and theology was an important faculty of study. Students in law faculties studied Roman law written in classical languages. Customary law did not purport to be “civilized,” which could explain why written Roman law had appeal. Universities “rediscovered” the Institutes and the Digest – which could form the basis of a law library.

Although scholars disagree as to when the Reception occurred, Borkowski contends that many receptions took place over a millennium. The work of the Glossators made this possible. They studied the Digest in universities in Northern Italy, where they sought to order the texts, draft marginal notes on the texts, and append commentary to explain difficult points of law (similar to the work of the jurists).[6] Study of Roman law became part of mainstream academia during this period. It had a practical application as well, as compilations of rules were given to judges to solve particular cases.

By the twelfth century, canon law begins to form based upon Church decrees, concerned mainly with administration, marriage, wills, and doctrinal issues. The development of canon law is often attributable to the work of Gratius. Canon law and Roman law were closely related in that:

  • Both emphasized the importance of writing,
  • Scholars used “glossing” to study and organize the texts,
  • The Canon law adopted a procedure similar to the cognitio[7]procedure of the later Empire,
  • They often interchanged legal rules, and
  • Both were organized into a Corpus Juris.

Also, the methods of study and teaching was similar between the study of Canon and Roman law. The students are often the same as well. The importance of Canon law tends to raise the importance of Roman law.

The Commentators were able to transform Roman law into the jus commune by blending customary law with Roman law. They wrote extensive commentaries on Justinian’s codification, but they took account of local customs, when considering particular problems. The Commentators did not treat Roman law as sacred, but they used it to support their commentaries to achieve a “blend.” The result was a common legal language spread across Europe, with its roots in Latin.

If Roman law was going to be treated as “unalterable wisdom,” it might not have been able to have the impact that it did. Roman society was very different to medieval society in Western Europe. The blending work of the Glossators is important, because it works Roman law into the customary law and conditions of the day.

Although Roman law may not have influenced the content of the law during the formation of early nation-states, it did shape the structure of the law and procedure. Roman law was attractive for the following reasons:

  • It appealed to authoritarian state-building kings with imperialistic visions,
  • It appealed to merchant classes, because of concepts like contract, and because customary laws were fragmented and outdated for their purposes, and
  • Roman law was seen as “neutral” and objective, and it could thus provide an alternative in the adjudication of difficult cases.

The Reception illustrates continuity between the decline of the Roman Empire and the rise of Germanic tribes in Europe. The course of the Reception of Roman law took place at varying speeds across Europe. Some countries, in Eastern Europe and Scandinavia were largely unaffected.

The Reception in Different Jurisdictions

In France and in contrast to the work of the Commentators, the humanists returned to the original texts of Roman writers to “rediscover” Roman law. The texts, they argued, could best be understood in light of the knowledge, customs, and traditions of the time. They immersed themselves in the study of classical antiquity.

In Germany, the Reception occurred relatively late. Due to the fragmentation of German states following the decline of the Holy Roman Empire, Roman law fulfilled the function of jus commune. Legal literature spread more quickly with the invention of printing press. Borkowski explains that city councils and professional lawyers also looked to Roman law – which appeared to be rational and uniform – to broaden (and to legitimate) their power.

In The Netherlands, the humanist movement flourished in the north, during the Wars of Religion. Grotius’ work “On the Law of War and Peace,” written in 1625, formulated a system of international law based upon natural law. Like in France and in Germany, the universities emerged as centres of Roman scholarship during the sixteenth and seventeenth centuries.

Scotland, unlike England, did not achieve a centralized legal system based upon the common law. Each local court applied customary law relevant to its jurisdiction; the law, therefore, remained fragmented. Roman law became a subsidiary source of law – more persuasive than authoritative. Scottish nobles and clergy studied Roman law at universities in Europe and brought knowledge of Latin and Roman law back to Scotland from abroad. In 1532, the Court of Session (high court) was created and it operated on Romano-canonical procedure. Judges of this court resorted to Roman law to supplement custom as well.

The Code Civil and the BGB were spread across the world during the nineteenth and twentieth centuries. The abstraction of these codes, cites Borkowski, made it easier for alien cultures to assimilate them.

Roman Law in England

Why did the Reception not occur in England? England is not too far from the Continent. Cambridge and Oxford also were centres of study for Roman and Canon law.

During the medieval period, Roman law influences could be seen on the organizational concepts of the nascent common law. Medieval chancellors, trained in Roman law, employed the inquisitorial process (Romano-canonical procedure). Factors that were present in other parts of Europe to promote the Reception, were not in England. England developed a centralized legal system based on the common law (and less so on customary law), professionals at the Inns of Court studied the common law tradition,[8] and Royal Courts adopted adversarial procedure.

During the Tudor period, English constitutionalism became further entrenched, and it would have been impossible for the rules of Roman law to displace methods of common law judging and the court structure of the king. Judges did not consult academics as they did in other jurisdiction. There was no university in London either.

Today, Roman law continues to have an influence on English common law. Borkowski provides case examples:

  • Workers Trust and Merchant Bank v. Dojap Investments Ltd. – a party can be forced to forfeit a deposit if the purchase of land does not go through, and even if the vendor does not suffer any loss, but the loss of the sale.
  • Sen v. Headley – a person could give realty to another shortly before his death without registration or writing.
  • Newnham v. Willison and Mills v. Silver – a party can acquire a right of way by prescription, because of the previous owners’ implied permission.
  • Indian Oil Corp. Ltd. v. Greenstone Shipping (SA) – if a plaintiff’s goods are contaminated by a defendant’s goods, the plaintiff is entitled to damages for the loss of value; however, the mixture is held by both parties in common.

We can consolidate some factors that explain the Reception of Roman Law in Western Europe.

  • Written tradition survived – greater access to print (more printing? more paper? similarity in alphabet?),
  • “Neutral” character – derived from an extinct society,
  • Need to overcome the fragmentation problem (municipal law),
  • Imperial character of Roman law (state-building; a head-of-state may want to adopt Roman law to appeal to imperialism),
  • Trade-contacts allowed for the sharing of ideas (and perhaps legal traditions as well),
  • Shared training between canon law and Roman law – the Church claimed authority over everyone [Christendom],
  • Universities were centres of learning of ideas of Classical Antiquity, and
  • Migration of “learned” people (“civilians”) can bring Roman law into new areas.

Additional Notes:

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Zweigert and Kotz, “The History of French Law”

The 1804 Civil Code is part of the continuing development of French private law – influenced both by the written traditions of the South (based upon Roman law) and the customary traditions of the North (primarily, the Franks).

From the Fall of the Empire to the Revolution

Roman law endured after the sacking of Rome in 476. The Visigoth and Burgundian kings passed laws that contained Roman sources and commentary, such as the Codex Theodosianus. The Franks, in the North however, largely ousted Roman law, due to their own oral customary law of Germanic origin. Acquiescence of Roman law gradually moved northwards, as Roman law became a focus of scholarship in the city-states of Northern Italy during the twelfth century.

Royalist lawyers in the North were interested in Roman law because of its inherent quality: it was accepted into custom and supported by local peoples – not because it was merely posited by the king. Between the fifteenth and eighteen centuries, France’s customary laws were written by its kings, sparing it from a mass reception of Roman law as happened in Germany.[9] French kings, however, faced a problem with a growing number of different customary municipal laws as well as a division between the major traditions of the North and the South.