Roman Law

Those of you who have been faithfully following these articles (you both know who you are) will have noticed a small gap. I have told you a little about Roman law in the time of the Empire (mostly in "What was the Corpus Juris?"), suggested that Roman law had an effect on later European law, and picked up the story of the law again in about the year 1100. So, what happened during those few years in between? Several centuries of law in several countries are obviously enough for several books, few of which I've read and many aren't in English and even if they were I couldn't get to them because watching professional wrestling takes up too much of my time. But, on a very broad scale, what happened was simple enough.

When the western Empire fell, its former colonies and dependencies did not continue to use Roman law. Law fragmented as the Empire did; people fell back to using local law, i.e., the customs of their area or tribe. But they were now more sophisticated. Rome had taught them that there was such a thing as legal theory, that law could be organized and analyzed in order that it be applied in a just and rational way. And so they used Roman techniques of legal analysis on customary laws, identifying in them legal theories and causes of action found in Roman law and using Roman maxims of jurisprudence in their application.

In time this became what was known as "Roman law." The term did not simply mean the laws that the Empire had used; it meant traditional, local or regional customary law, combined with Roman rules and legal techniques, analyzed using the tools of Roman jurisprudence. This type of "Roman law" was collected by legal scholars into law books that were given names modeled on those of the law books of ancient Rome. As had happened in Rome, these books were used by successive generations of legal scholars to create similar books of the same nature and premise, updated with the latest legal thinking. The law became increasingly "romanized" as scholarship advanced -- since much of that scholarship involved studying classical Roman law -- and as Byzantine influence increased (Byzantium, the capitol of the eastern Roman Empire, survived 1000 years after the western empire but experienced a "brain drain" near the end, as it grew weaker and poorer) and as the rise of trade and the broadening of culture required more than parochial laws. Eventually this "Roman law" became the basis of modern European law.

The story in England was a bit different. There was less direct Roman influence; England was a backwater of the Empire, one of the last colonies occupied and one of the first abandoned. Left to its own devices longer it developed its own legal system under the Anglo-Saxons, which the Normans built upon and added to in order to create our common-law system. By the time of the serious revival of legal scholarship in Europe, England already had its own system in place.

That is not to say that our law is uninfluenced by Roman law. English legal scholars were of course aware of and affected by continental scholarship. Our law reflects that in any number of ways, most obviously involving legal theory and terminology. In Latin actio meant both and "act" and a legal proceeding, and so in English we have legal "actions" and "causes of action." "Statute" comes from statuta, "customs," reflecting the fact that during the medieval period the law applied was customary law, though analyzed and classified according to Roman methods. The concept that the rules of the forum govern procedure was developed by the 14th-century Italian scholar Bartolus. His rules on choice-of-law in contract cases -- that the contract was governed by the law of the place where it was made -- were standard until fairly recently. The division of civil law into substantive and procedural was a product of the 16th-century scholar Donellus, an early humanist. He also recognized a concept that common-law courts were also developing -- that one could have property rights in property owned by another (i.e., rights to possession and use); earlier jurists had considered that property was owned both by its owner and by its possessor. (Roman law had held that property rights were indivisible but had recognized that land could be leased, which would give the lessee the ability to perform certain actions on the land.)

Two types of courts in England used "roman" law instead of common law. The ecclesiastical courts used it because the Catholic church governed those courts, not local civil rulers. (This oversimplifies a bit; the power struggles between English kings and ecclesiastical courts in England were long and rancorous.) This has had relatively little effect on our law since civil rulers were, in the long run, successful in their attempts to make their own courts predominant. The other application of Roman law was by the English court of admiralty, which largely explains why admiralty law is even today a very different animal from what most of us are used to.