The Influences of Roman Law on Western Theory of Law - Research Paper Example

The Influences of Roman Law On Western Theory of Law Introduction This paper aims to understand the philosophy behind the origination of roman law, the growth of roman law, and finally the influence it had on the western culture of philosophy of law, which is nowadays referred to as the civil law. Origin of Roman Law: Roman Law is the legal system of administration of ancient Rome, and other territories which were under the control of the Roman Empire. Roman Law stretches its roots way back in the middle of 8th century BC. Roman law was in the practice till the 6th Century AD, until the fall of the Western Empire, and had continued to influence the eastern and the Byzantine Empire until the 16th Century AD. During the period of the Roman Republic (753-31 BC), the jus civile (civil law) was established. It was based on custom/legislation prevalent during the days of the Roman Empire. This period marked the birth of civil law, which is now widely practiced in Western Europe and other parts of the world. Apart from the law for its citizens, during the 3rd Century AD, a new form of codified law, known as jus genetium, or the Law of Nations, came into practice, which regulated the relation between Rome and its neighbours1. From the initialisation of the civil law and the public law, the Romans have done the rest of the world huge favour by simplifying the code of law, and bringing new innovations in the research and practice of law The Twelve Tables: The Twelve Tables is the earliest form of legislation which was drafted in ancient Rome, and is regarded to be the foundation of Roman Law. The Twelve Tables was the centre point of Roman Law, and laid out multiple branches within its ambit to streamline the idea of thought and justice. It has been credited with the creation of one of the earliest forms of Constitution in the world, the Roman Constitution, and distinguished different forms of human behaviour with societal changes2. The Twelve Tables includes 12 points of law, which study different forms of life and nation,, and are brought together in one piece of text to harmonise their effects collectively. The different aspects of law which were covered are Civil Procedure, Debt, Parent Children Relationship, Marriage, Crime, Inheritance, Property, Real Property, Torts, Funeral Regulations and Constitutional Principles. Classical Roman Law: The first 250 years of the Roman era have often been referred to as the most classical times of the greatness and perfection achieved by Roman Law and Legal Science. It is known as the Classical Era, and is credited with the way the law came into practice, and the manner in which it was proposed and followed. Law was given a new meaning in practice, and the jurists in those days carried out the most efficient method of discharging justice to its citizens. The jurists gave opinions to the private parties on any legal matter to which they came across with, and guided them smoothly on such matters, which were both complicated and complex to execute. The jurists also helped the local city magistrates in the process of awarding justice in the society, and thus set examples within the society on the rightful execution of law and order. The jurists were embedded with the work of drafting commentaries and opinions for the laws in practice. These commentaries helped in the formation of a reasonable opinion of law, and progressed with the times on to better course of negotiations within the framework of law. The Roman jurisprudence has given the earliest accounts of the practice of contract and torts as different facets of law. The practice of contracts was established in the form of fulfilling a consideration, while torts was distinguished as a private law which dealt with the individuals residing in a society, and their actions leading to disputes or problems to their neighbours. Therefore, it can be understood from the research on Roman Law, that the Romans were one of the earliest civilizations who tried to codify the practice of law in one comprehensive text, which lead to the division in different sets of law being given detailed importance according to their individuality. They were the earliest practitioners of civil law, which has now become predominant in Western Europe, and is a widely practiced branch of law. The Romans have given us a lot in the procedural aspects as well, as they were the first people to codify a law, and make it applicable in towns and cities across their Empire. Influences on the Western Philosophy of Law Western Law is the legal tradition being followed in Western Europe, which takes its roots from the Bible and the Roman law. The research is further divided into three segments, which involve the following: 1. Germanic Law 2. Civil Law Germanic Law In the western part of Europe, especially Germany and other countries, Justinian principle of law started taking effect with regards to the practice of law in those countries. Law codes erected by the Germanic Kings had the influence from Eastern Roman Codes, and it went as far as the Scandinavian countries. The kings used to follow the codes laid down in the Roman law, and Western Europe soon began to engulf itself under the ambit of Roman law3. The Code of Justinian and Theodosius II served as the model for the practice of Germanic Law, having been derived from the principles of Roman law. The Germans incorporated much of the ideas and thoughts from the Roman Empire, they then further amended the codes according to their beliefs and opinions, and presented in the form of their own codes, such as the Visigothic Law Codes, Lex Burgodionum and Lex Salica. The Visigothic Law Code traces its origin from the Roman law principles. The earliest Goth kings were in constant touch with the Romans, and from then onwards the roman had a major role to play in the initialization of Roman law into the gothic way og governance. As early as 4th Century AD, the Goths got influence by the Romans in the practice of civil jurisprudence. They traded with the Romans, and the Goths had a lot to learn and incorporate from the Romans in the aspect of civil jurisprudence. The earliest written code of the Visigoths dates to Euric, 471 AD. The Code of Euric (Codex Euricianus) was drafted between 471 and 476, and has often been described as the best legislative work of the fifth century. It was formulated to regulate and manage the Romans and Goths living under Euric's kingdom, where Romans were greater in numbers than the Goths. The code borrowed heavily from the Roman Theodosian Code (Codex Theodosianus) from the early fifth century, and its main subjects were Visigoths living in Southern France. Lex Burgundionum, or the Law of Burgundionum, has its origins lying in the roots of Roman law. It is influenced by Roman law and deals with domestic laws concerning marriage and inheritance as well as regulating weregild and other penalties. This Code established the mark of marriage and other domestic laws which were followed under the reign of King Gundobad. He applied the principles laid down in the Twelve Tables regarding laws of inheritance and property, amended them according to the lifestyle of people living in that area and presented the Lex Burgundionum, as a comprehensive guide to domestic laws and laws of marriage. Lex Salica is known as the Law of Franks, living in the southern region of Germany. They had contacts with the Romans, and thus acquired quite a lot from their texts regarding the development of their laws. Laws included inheritance, theft and murder, It was highly dependent on the Roman ways of practice, and was established between 507 and 511 C.E. Civil Law Civil Law is the form law which is highly influenced and inspired by the Romans, which is laid down in the form of texts and codes, against the practice followed in Common Law, which is to inherent the law from the judges and the jurists. Civil Law is widely followed in more than 150 countries all over the world. It is a common practice in western European countries, and has been embedded in the spirit of natural law. Most of the European nations, after the death of the Roman Empire, took on the practice of Civil Law, and it has been now regarded as the most comprehensive form of law in place today. The most basic principles of Civil Law have been established from the Code of Justinian. It is also influenced by Germanic Law, Natural Law Feudal Law, local practices as well as the legislations passed over the years. Civil Law is heavily dependant on the Legislature. There is less influence from the judges who interpret the law, and precedents do now have much of a say in the practice of civil law. It traced its roots from the Corpus Juris Civilius, which was drafted by Emperor Justinian. Roman Law, which guided the development of civil law, was spread along the continent of Europe, and was taken differently by different countries as means to grant justice. I some countries is was treated in the core form of legislature, while in the rest of them it had been interpreted by scholars and jurists who consisted within those segments of societies who proposed to follow their own meaning of civil law. Codification was one of the primary actions by the Romans, and civil law derives its birth from the codification of laws. As far back as in the 18th Century BC, Hammurabi drafted the ancient form of codified laws, which were then interpreted and developed into better texts of laws. Civil Law carried the concept of Naturalism and Positivism, as well as enlightenment to a certain extent. The concepts of democracy, property and rule of law were propagated in civil law. Therefore, we see that Roman law had a major role to play in the development of the legal system across Western Europe. Countries like Germany, France, the Scandinavian countries, Belguim, Austria, Switzerland, Greece etc are all following the Civil Law, which has been developed by the Romans, who had a huge influence on the legal system of Western Europe. Hacing ruled the continent for centuries, it is pertinent that the countries of this continent trace the origin of its laws from the gateways of the mighty Roman Empire. Works Cited Websites 1. 2. < http://web.upmf-grenoble.fr/Haiti/Cours/Ak/> 3. 4. < http://www.ejcl.org/44/art44-1.html> Books 1. Fritz Schulz, History of Roman Legal Science, Oxford: Clarendon Press, 1946 2. Andrew Borkowski and Paul Du Plessis, Textbook on Roman law. Oxford University Press, 3rd Ed 3. King, Law and Society in the Visigothic Kingdom (Cambridge University Press) 1972 Read More