Preators in Roman Law vs Equity in English law - Essay Example

Preator’s in Roman Law vs Equity in English law Introduction: Roman law has strongly influenced the development of modern law. It was founded on principles that were not derived from the Greeks but were based upon the written codified law based on the principle of jus civile (civil law). The difference between the teachings of Plato and the Stoics represents the dichotomy between written and unwritten law, whereby one represented the “jus civile” that was based upon statues and the other the introduction of liberal rules and principles that were more in accordance with Greek Stoic precedents and aimed to promote justice and fairness. “Under the Roman civil Law which postulates the State as of divine origin, all wise and all powerful, it becomes the duty of the State to seek to achieve happiness for all its subjects, in such manner as it may dictate and to that end, its own wisdom must override all private judgment in prescribing regulations for the whole range of human endeavor.” (Gilmore and Black, 1975, p 35). It was therefore, based upon the premise of achieving happiness for all its subjects that jus civile was founded but it was the Roman Praetors who were able to exercise their private judgment in bringing about modifications to the jus civile in order to make it more equitable in achieving the ends it sought to attain. The Praetor was the name for the Roman Chief Magistrate. A Preator was not a legislator and did not cerate new legislation when he issued his edicts (magistratuum edicta), but his rulings enjoyed legal protection (actionum dare) and therefore often became the source of new rules (Nicholas,1972). Preators and equity: It was during the 3rd century B.C. that one Preator named Peregrinus was called upon to make laws in regard to foreigners who were interested in Rome’s commercial activities and in pursuing business with Rome. In exercising his legal powers on behalf of these foreigners, Preator Peregrinus introduced some liberal measures into the jus civile and these equitable principles substituted for the rigor juris that had extended up to that point. In ancient Rome, jus civile constituted the proper law of the city of Rome while jus gentium was the law pertaining to all peoples of the Roman world, as developed and implemented by Preators.(Cairns 1949). Jus Gentium or the common law, which was common to nations, needed to be supplemented by the Stoic law, which was the law of nature. It was only through equity that the jus gentium and the law of nature could be integrated. Thus the Preatorian system of equity was conditioned by the leveling tendency of jus gentium (Maine, 1861, Ch III). While one Preator was not obliged to follow a rule laid down by a predecessor, nevertheless he did use it as a guide point which helped to create a new body of Preatoric law, which was defined by Papinian (Amelius Papinianus) as follows: “Ius praetorium est quod praetores introduxerunt adiuvandi vel supplendi vel corrigendi iuris civilis gratia propter utilitatem publicam" ("praetoric law is that law introduced by praetors to supplement or correct civil law for public benefit") It was through the powers of the Preator that principles such as Aequitas, aequumet bonum and bona fide became noted features of Roman jurisprudence (Alan, 1958, p 377). The undisputed powers of the Preator was also the cause for the incorporation of such principles enhancing equity into the existing jurisprudence in Rome. Opponents to this rising level and emphasis on equity by the Preators, argued against the incorporation of such principles Quintilian argues in the first century AD that if the court was to be always “spending its time turning statutes inside out to discover what is just and what is equitable….well the, there might as well be no statutes at all. (Alan, 1958, p 381). This was also partly the reason for the actions Emperor Hadrian took in AD 125 to edit the Preatorian edicts and put them into a final form, after which further alterations were prohibited. (Allen, 1958). This move was undertaken in order to curtail the power of the Preators, nevertheless advances in measures of equity such as principles of aequitas and bona fide, etc owe a great deal to the initiatives taken up by the Preators to make jus civile or the law of the State more equitable in the jus gentium. Many of these principles were originally derived from the codified Napoleonic code and have also been incorporated into modern law. Roman law, in its final developed form, owed much to the fashioning of the law by the Preators. Equity and reforms in English law: The concept of equity that exists in English law is based upon ideals of justice, fairness, equality and mercy. It is that ingredient that helps to transform a harsh punitive law into one that is more equitable and fair in the actual exercise of the law. Therefore equity connotes the spirit rather than the letter of the law. English law demonstrates a similar evolution from a civil law system on par with a jus civile system in Roman law, to a system of common law, which was determined by the prevailing mores of the day, where judges made their decisions based upon the precedents established by judges before them. This was similar to Roman law which evolved from jus civile to jus gentium. As a result of common law becoming widespread, the law became so harsh that the law of equity was introduced to offset the rigid interpretations that medieval judges were giving to common law. Equity suggests that the law as it exists may not be perfect and there may be conflicts between existing legal justice(Maine, 1861) and justice according to conscience. One of the notable reforms that exists in English law, as derived from Roman law is the characterization of all material into personae (persons) res (things) and actions (legal actions). Developed by Roman jurist Gaius, this system of private law focused on bringing in equity through such division. Later the same principle appears in William Blackstone’s Commentaries on the laws of England, wherein he also classifies the law as applicable to the rights of persons and the rights of things, private wrongs vs public wrongs. This division may be seen to be relevant in the field of contract law, where the contributions made by the edicts of the Preators made substantial contributions to the development of fairness and equity in business transactions, in a similar manner as that which developed in English law as characterized by equity. Two notable Roman contributions which have also been adapted into English law are in the field of contracts. Preatorian law gave birth to principles such as consensus ad idem and caveat emptor. English law was reformed to also introduce the principle of consideration. Consensus ad idem was a Latin term that meant an agreement, or a meeting of minds of all the parties to a contract, which was an essential prerequisite before signing a contract between parties. This principle is reflected in the classification of persons, things and legal actions. Caveat emptor literally meant let him beware and was a formal warning to the buyer to check things out for himself before buying them. Both these principles have considerably influenced the development of equitable business transactions, since the rights of all the parties are represented in the requirement for a consensus before entering into a contract. Moreover, the requirement for a buyer to be careful before buying goods is a measure to preserve the rights of all persons concerned – the buyer and the seller. English law, by adding the qualification of consideration added the need for some formal terms of exchange to be specified before a contract could be deemed to be valid, thereby further tightening the case against the possibility of misunderstandings and allegations of fraudulent dealings in contracts. The significance of contract law cannot be underestimated since it forms a vital part of all dealings among individuals and through the reforms introduced into English common law through the introduction of these Preatorian principles, there has been a great improvement in the orderly conduct of business. Such concepts have also provided adequate room for the adjudication of disputes and the understanding of rights and responsibilities by all persons concerned. Preatorian law also contributed to Roman law through the development of the twelve tables (Nicholas 1972). While Roman law was not codified and remained unwritten, passed down from edict to edict, the twelve tables was an reform measure and an attempt to set out in writing some of the specific provisions which were proposed to be undertaken to enhance the understanding of the law. One of the notable ones among these was the Lex Aquila developed in 286 BC which ha sin effect become the foundation of modern tort law. The Roman principles of contract formation were based upon basic provisions whereby every party in performing his duties according to a contract, must act in good faith and with fair dealing. Derived from this basic principle is the modern law of torts which delegates responsibility for damages on the basis of the breach of good faith and fair dealing by one of the parties to the contract. In determining the extent to which a party must be held liable for damages accruing from the non performance or breach of terms laid out in the contract, the court bases its conclusions upon whether or not the party has violated the age old Roman principles of good faith and fair dealing. For example in the tort of negligence, a Court will look into the actions of the violating party as a function of what a normal, reasonable person would do in the same circumstances – the degree of care and responsibility that a normal person would exercise. If the court finds that the individual or party in question has not exercised due care, or has not adhered to the basic terms of good faith and fair dealing which a reasonable person would uphold, then the party is deemed to be guilty. In fact, the tort of negligence is even replacing the tort of trespass and other laws, as reforms continue to make the law more equitable with the needs of the people and more in tune with the basic principles of fairness and equity that were set out by Preatorian law during the Roman time. It was the Romans who made the distinction between contracts and torts as sources of legal obligations. Another important contribution made by Preators was the practice of legal commentaries and treatises. Preator Salvius Lulianus was the first to preserve a written edict, wherein he carefully noted all the details of the cases and the justification for the decisions taken in each case, including the legal principles based upon which decisions had been taken. This was a substantial contribution to the development of the law, because it helped others to follow the precedent and the practice of maintaining a written record of all cases was useful for future jurists. Later on these records were also made available for public consumption. The same principle has also been upheld in English law. English law remains uncodified just like Roman law, but there exists a vast legal framework comprised of records of cases and the legal principles on which decisions have been made. Therefore one of the most important contributions made by both Roman and English law have been in the maintenance of accurate, meticulous and detailed records f the cases in question. This helps to not only elaborate and consolidate established legal principles for the benefit of future legal personnel, but it also serves as a record for historical purposes. Such a body of written records provides valuable precedent based upon time tested legal principles which have found to be durable and sustainable over a long period of time. The maintenance of such written records have also been the cause for the initiation of reforms as necessary, when the precedents are found to be inapplicable and are overturned by fresh precedents, which was also done in the same manner in Roman law. Conclusion: From the foregoing, it may be noted that the Preators made a substantial contribution to the development of equitable, time tested principles that would be able to withstand the test of time. In a similar manner, English law has also made a substantial contribution to furthering the cause of law by introducing measures of equity when the medieval judges began to rely too much on precedent. Thereby by a judicious mix of the old and the new, the current legal system is continuing to evolve, retaining those principles that are worthwhile and rejecting those that are outdated by replacing them with new precedents, to further the cause of justice. References: * Allen, Carleton Kemp. (1958). “Law in the Making” 6th Edition. Oxford: Oxford University Press * Cairns, Huntington.(1949). “Legal Philosophy from Plato to Hegel” Baltimore. * Gilmore, Grant and Black, Charles L, Jr. (1975). “The Law of Admiralty” New York: Foundation Press Inc. * Maine, Henry.(1861) “Ancient Law” Chapter III. London * Nicholas, Barry.(1972) “Introduction to Roman Law.” Clarendon law Series. Oxford: Clarendon Press Read More