A. CITY ROME LAW
1. Ius civile - ius gentium
| 176 In an earlier chapter ius civile was described as the body of rules developed
by the jurists by means of interpretation (supra, § 132). In another, and somewhat narrower connotation, ius civile comprises the norms which were exclusively applicable to Roman citizens and to them alone, whether these rules stemmed from customary practices, from statutes, or from juristic interpretation.[1249]
Gaws, Institutionum commentarius LI
Every people that is governed by statutes and by customs observes partly its own particular law and partly the common law of all mankind.
That law which any people established for itself is peculiar to it and is callied Ius civile as being the law of its own citizenry, while the law that natural reason establishes among all mankind is observed by all peoples alike and is called ius gentium, as being the law observed by all peoples. Thus the Roman people uses partly its own law and and partly the common law of all mankind....Gaws, Institutionum commentarius III.93
But, indeed, this verbal obligation: 'Do you promise it will be given? Ipromise', is the Roman citizens’ own. The others are of the ius gentium; accordingly they are valid among all men, whether Roman citizens or foreigners. And even if they were uttered in the Greek language, as thus: < 'Will you give?, I will give; Do you promise?, I promise; Do you solemnly promise?, I solemnly promise; Will you do so?, I will do so > they are nevertheless valid among Roman citizens, provided only they understand Greek..,. But the verbal obligation; 'Do you promise it will be given?, I promise,' is sopeculiarto Roman citizens that it cannot properly be translated into the Greek tongue, although the word (spondeo) is said to be based on a Greek word.
Gaius, Institutionum commentarius IIL133
It is questioned with good reason whether foreigners can be bound by tran- scriptive entries (nomina transscripticia) because this kind of obligation is in a way, of the ius civile.
This was the opinion of Nerva; but Sabinus and Cassius considered that foreigners also were obligated if the transcriptive entry is from a transaction to your debit (a re in personam), but not if it is from what is owed me by a third person to your debit (a persona in personam).Note: Nomina transscriptiva are entries in a cash book which constitute the so-called literal contract (litteris). A re in personam when the debt, arising from a particular transaction such as a sale was entered in the debtor’s book as a debit, without indication of the origin of the obligation.
Ulpianus, Libro IV ad edictum (D. 2.14.7 pr.-l)
Some agreements of the ius gentium lead to actions, other to exceptions.
(I) Those which give rise to actions do not stand in their own name, but go under the special name of the contract, as emptio venditio (sale), locatio conductio (lease), societas (partnership), commodatum (bailment), depositum (deposit), and other similar contracts.
Hie passage is considered suspect by Perozzi, Bonfante, De Francisci and others, see Index Interp. I 24, Supp. I 25,
Marcianus, Libro... (D. 48.22.15 pr.)
A person deported loses his citizenship, he retains his freedom, is excluded from the ius civile but may use the ius gentium. Accordingly, he may buy and sell, lease and hire, exchange, lend at interest (fenus), and other similar things.
Gaius, Libro II rerum cottidianarum aureorum (D. 41.1.1 pr., 9.3) We acquire the ownership of some things by the ius gentium, that which is observed on account of natural reason among all men alike, of other things by the ius civile, that is, by the law of one s own state. And since the ius gentium is older because it appeared with the human race itself, it is necessary that it should be treated of first. (9.3) Those things, also, which become ours by delivery (tradii io) are acquired by us through the ius gentium; for nothing is so conform’ able to natural equity (acquitas) than that effect be given to the intention of an owner wishing to transfer his property to another.
Possibly post-classical if the work as a whole is not by Gaius. Certainly [And since - first] is late, see Grupc, SZ 18 (1897) 220-21. On the same subject matter, see D. 6.1.23 pr.; D. 18. 1.34.1; Fr. Vat. 47a.
Papinianus, Libro XXXVI quaestionum (D. 48.5.39.2)
Wherefore the woman will undergo the same penalty as the man only when she has committed incest prohibited by the ius gentium. For if only the observance of our own law is involved, the woman will not be held liable for the crime of incest.
At the point of t ime when Rome emerged as one of the strongest states in the Mediterranean world, at the beginning of the 2nd century B.C., Roman courts began to develop legal institutions - in addition to those of the ius civile - which would satisfy the needs of commercial relations of the Romans with foreigners in city Rome; in the course of time this was given the designation ius gentium.[1250] [1251] In earlier times there had been instances of treaties between Rome and other states which provided for commercial transactions between the citizens thereof (ius commercii),’ but now particular ways of doing business between foreigner and Roman became established without the necessity for formal compact or state treaty. As far as can be ascertained, the specific transactions which were the earliest creations of this new body of law were Roman in nature, a creation of the Roman courts, perhaps with the aid of Roman jurists. Though scholars are now in general agreement that these institutions were Roman creations, available to Romans as well as to Roman and foreigner or between foreigners, it has been difficult to explain why, at a later date, this new group of informal transactions were labelled institutions of the ius gentium (literally ‘law of the races'), contrasted with the Roman citizens* own institutions of the ius civile.* And in Gaius’ definition, and elsewhere in the sources, the ius gentium is the law established by natural reason, observed by all mankind. Among these new legal devices are included institutions of the ius civile, the stipulatio or formal verbal promise adapted to use with foreigners by employing an exchange of Greek words or even Latin terms other than the Roman citizens’ own spodesne, spondeo (Do you promise, I promise). A controversy continued well into the classical period whether the Roman literal contract (transscriptio) constituted a translation available to foreigners, and thus of the ius gentium.1 On the other hand, the so-called consensual contracts (sale, lease, partnership, mandate, etc.) were flatly at odds with the formal Roman contractual obligations. According to Frezza, these obligations did not derive from the ius civile nor from the effort of the praetor? They were received into the Roman law by reason of early relations with foreigners, based upon the principle of fides, an ethical norm which required the parties to live up to the words of the obligation which had been entered into. The Roman jurists and the jurisdiction of the praetor elaborated these contracts after their adoption into the Roman law. Chiazzese stresses the point that in its original conception the ius gentium was the complex of commercial relations with foreigners which developed through usage, elaborated gradually by the jurists. Early writers and the greater number of scholars today attribute the development of the early institutions of the ius gentium to the activities of the court of the praetor peregrinus, a natural conclusion in view of the fact that this judicial magistrate had jurisdiction over cases involving Romans and foreigners.” This would necessarily mean that iusgentium transactions were only recognized subsequent to the creation of the office of praetor peregrinus, allegedly 242 B.C. It would further mean that no credence should be given to the view of Daube that the peregrine praetor was created § 176 to take cases between foreigners, and between foreigners only; his jurisdiction over cases involving Romans and foreigners was only gradually developed towards the close of the republic.16 Directly opposed to the prevailing view is the opinion expressed by Lauria?7 Among other arguments, he points out that there is ample reference to foreigners in passages on the ius gentium, but none to the praetor peregrinus; the ius gentium is contrasted with, or included within, the ius civile, but is wholly extraneous to praetorian law; the formulae employed in the litigation of ius gentium obligations, the bonae fidei iudicia, are modelled on the forms of civil actions in personam, and differ from all formulae of praetorian actions; the obligations of the ius gentium are based on the principle of tides, typical of ius civile institutions of this epoch (fideipromissio, fideiussio) and not on customary practice, as is typical of obligations fashioned by the praetor. 16. Daube, ‘The Peregrine Praetor’, JRS 41 (1951) 66-70, support has recently been given to Daube’s views by Watson, Law Making 82 and nn. 1-2. 17. Lauria, *Ius gentium’, Festschrift Koschaker I 258-65. 18. Wieacker, *Zum Ursprung der bonae fidei iudicia', SZ 80 (1963) 1-41. 19. As Kunkel and Magdelain have suggested, citations by Wieacker, op. at., 38. 20. Watson, Law Making 89-92; cf, also Turpin, 'Bonae fidei iudicia’, 1965 Cambridge L. J. 260-70. 21. Kaser. Rom. Pnvatrecht 203 (translation of the author). 2. Ius civile - ius honorarium 5 177 Imperator antoninus Augustus demagora (C. 2.3.5) (213 A.D.) Ifyou have paid your creditor part of the sum owed, for the part not sought there is agreement between him and you respecting his concerns and business that you are protected your pleading and your honesty, you will be freed from this obligation partly by the ius civile and partly by the ius honorarium. For the continuing affirmative defense of agreed pact or of fraud defeats the suit for arrears since he, paid (by you) in ignorance, can be sued for refund. Ulpianus, Libro XVII ad Sabinum (D. 7.4.1 pr.) It is settled law that not only is a usufruct lost by diminution in status, but also the action for usufruct. It matters little whether the usufruct be constituted by ius (civile) or by the aid of the praetor (ius honorarium)... Cf also D. 7.1.25.7. Gaius, Institutionum commentarius I. 54 Since among Roman citizens there are two types of ownership - for it is under· stood that one's slave may be either in bonitary ownership {under praetorian rules) or held under civil title (ius Quiritium) or in both - we hold that the slave is in the possession of the master if the latter has bonitary title, even though he may not have title also by the ius Quiritium... Geluus, Nodes AtticaeXXA. 12-13 [Set forth supra, § 150] Ulpianus, Libro XXIX ad edictum (D. 14.4.1 pr.) [Set forth supra, § 150] The most significant dichotomy in the private law and procedure of the classical epoch was that between the ius civile and the ius honorarium.1 The body of legal institutions which were denominated ius honorarium by late classical jurists can be described simply as the result of a series of supplemental procedural orders on the part of the praetor, to adopt the ius civile to the changing conditions of Roman society.3 To some scholars, the two fields formed a single, unitary system of law, at least until the middle [1264] [1265] of the 2nd century of our era? Mitteis emphasized the point that the sharp distinction between ius civile and ius honorarium was characteristic of the more recent era of the late classical law, rather than of earlier times.4 Lau ria stressed the contrast between the two aspects of the law arising from the impossibility of transforming and adapting some of the institutions and principles of the ius civile - which depended on the personal conception of rights - to the new patrimonial exigencies requiring regulation when the archaic system of personal relations gave way to the broader commercial interests in the 2nd century B.C? According to Grosso, the ius civile continued to occupy the central point, the ius honorarium being merely the elaboration thereof? There was, however, a complete interrelation of the two in practice, resulting in single designations for civil and praetorian institutions? To De Francisci there was no real fusion of the two distinct systems of law, but rather a combination and harmonization of principles and rules which had their origin in different historical sources? It would appear that the majority of modern scholars, however, believe that in the view of the Romans there were two systems in practice, with many of the characteristics of the contrast between the common law and equity of the early English law? In every phase of the law there was an antithesis between law in the strict sense and the law created by the magistrate?0 The ius civile became crystallized, and the praetor stepped into fashion a legal system opposed to the older system?* In Kunkel’s view the ius civile, even when modernized in the classical epoch, was strict and rigid, whereas the ius honorarium was progressive and free; the separate strata interacted upon one another, and in the jurists* development of the two segments the differences began to disappear?2 Only in exceptional cases were the institutions of the two sharply opposed, as in ownership and inheritance.13 But eventually there was a fusion of the two strata, which took place for the most part subsequent to the classical era?4 3. Ehrlich, Beiträge 101 ff.; cf. Orestano. Jus 13 (1962) 43 ff. 4. Mitteis, Rom. Primtrechl 1 56 ff. One of the most incisive presentations of the distinction between the two, terminologically and substantively, ibid, 58—61 and nn. 47-66. 5. Lauria, Scrittl Ferrini, Pavia 595-657, summarized 656 f. 6. Grasso, Problem! 71-79. 7. Grosso, op. at., 76. 8. De Francisci, Serini Ferrini 1 192, 223 ff.; cf. also his remarks in Storia II.I 264-67. 9. Cf. Jolowicz-Nicholas, Introduction 406 f. 10. Sohm-Ledlic, Institutes 83-88. 11. GiofTrcdi, SDHI 13/14 (1947/48) 119 IT. Cf. also Wieacker, Rom. Recht 113. 12. Kunkel, Introduction 81-83. 13. Kunkel, op. at., 91. For passages on these topics, sec Ehrlich, Beiträge 130ff. 14. Kunkel, op. at., 124; cf. the studies by Riccobono, particularly ‘La fusionc del ius civile e del ius praetorium in unico ordinamento’, RW Phil. 16(1923) 503-22. 3. Ius novum Gaius, Libro VI ad edictum provinciate (D. 5.3.1, 3 i.f.) Inheritance lies to us either by old law or new (vetere iure aut novo). By the old, by reason of a law of the XI1 Tables or by a testament which is legally made,,.. (3 if} A ll are heirs by new law who are entitled to the inheritance by virtue of senatus consulta or of imperial enactments. Ulpianus, Libro VI ad edictum (D. 50.16.10) It is recognized that by ‘creditors’ are to be understood those to whom something is owed by some action or state trial (persecutio). either under the ius civile without any exclusion of permanent affirmative defense (exceptio), or under the ius honorarium or within the ius extraordinarium, whether simply or within a term or under a condition.... Marcianus» Libro II institutionum (D. 48.10.7) Slaves cannot in any way litigate with their masters since they are not counted at all (as persons} in the civil or in the praetorian law or in the (ius} extra ordinem (exceptional law}; save that the divi Marcus and Commodus rescripted that when a slave raised the question that a testament in which he was given his freedom was suppressed, he was to be permitted f to bring} an accusation of suppression of the will. Marcianus, Libro 11 publicorum iudidorum (D. 47.19.3) Divas Severus and Antoninus rescripted that there was an election whether one wished to bring the charge of despoiled inheritance exceptionally (extra ordinem} before the city praefect or before governors or to recover the inheritance from the possessors by ordinary law (iure ordinario). Ulpianus, Libro XLIX ad Sabinum (D. 50.16.178.2) ... By the word persecutio (state trial} 1 hold that extraordinary suits are meant, as for example, suits on trusts (fideicommissa} and such other actions which do not have the means of following up by ordinary law. Ulpianus, Libro I disputaiionum (D. 12.1.17) When a son under (his fathers} power, who was in Rome in order to pursue his studies, lent money (forming part} of his travel allowance. Scaevola responded that he could seek recovery thereof by trial extra ordinem (outside the regular tribunal of the praetors court}. Calustratus, Libro II edicti monitorii (D. 4.6.2 pr.) This edict (on the restitution of the right to persons unavoidably absent}, in- § 178 sofar as it applies to those persons mentioned therein, is not now in frequent use, for Justice in the case of such persons is administered by process extra ordinem in pursuance of resolutions of the Senate and constitutions of the emperors, Ulpianus, Libro XII ad Sabinum (D. 38.17.1 pr.t 9) Whether the mother is a free woman or a freedwoman, her children can partake of her inheritance by reason of the senatus consult urn Orphitianum (178 A D.)(9)'If no one of the children or of those persons to whom statutory inheritance (i.e., intestate succession) is likewise afforded, wishes to claim her estate for himself, let the old law (ius antiquum) apply.'... Shortly after the middle of the 19th century Rudorff observed that the established methods of the evolution of Roman law during the republic came to an end in the Principate, ‘in part supplemented, in part penetrated and replaced’ by a new body of law deriving from the emperor and his officials and delegate judges.1 He termed this stratum of law ius extraordinarium in that it was outside the republican spheres of the ius civile and the ius honorarium and was adjudicated in the new tribunals of the emperor and state officials (cognitiones extra ordinem, literally ‘investigations outside the regular [praetorian] jurisdiction’). RudorfTs view gained a measure of approval* and was taken up wholeheartedly by Kuntze, in his texts of 1879 and 1880. ’ This scholar identified this third stratum of the law as ius novum, termed also ius extraordinarium, comprising legal institutions flowing from leges and senatus consulta of the Principate, together with norms derived from imperial constitutions. Monographic studies and case law collections of the late classical jurists underlined this third stratum of the law, according to Kuntze.[1266] [1267] [1268] [1269] [1270] Within a very few years the positions of Rudorff and Kuntze were strongly attacked by Wlassak who, by analysis of theindividual sources, demonstrated inter alia that the term ius novum was non-technical, that ius extraordinarium referred to the new cognitio process or public law of the Principate, and that Justinian’s reference to ius tripertitum (Inst. 2.10.3) was designed to include constitutions of the emperors of the absolute empire Oeges) along with the ius civile and the ius honorarium, as the three sources of the law of his time.’ Wlassak’s extended presentation virtually wiped out further reference to the ius novum, though there was isolated mention of the subject from time to time.* Forty years later, however, Riccobono re-asserted the doctrine in a number of studies,7 returning to the topic in later years.1 The new institutions developed by the decisions in the new imperial process were in fact exceptions to the principles of the ius civile and the ius honorarium. They reflected imperial policy, first in the field of succession, thereafter in the law of persons and of obligations. Actually, the particular terminology employed is not of any great significance. The jurists themselves may not have realized the contribution made by the new law, but it is correct to point out, in Riccobono *s words, That the cognitio has not exercised great influence on civil and praetorian institutions is both a superficial and an erroneous view’.* The chief factors contributing to the ius novum were, according to Riccobono, the ius gentium, the ius honorarium, cognitio extra ordinem, and jurisprudence.10 The lacunae in the first two were filled in by the new judicial process and by the scientific elaboration of the law by the jurists of the Principate.“ A disciple of Riccobono, Biondi, added to the former’s views.'7 He noted that there were two types of imperial constitutions, those that constituted interpretations of the ius civile and, later, of the ius honorarium, and those that established new juridical complexes, from fideicommissa (trusts) to pollicitatio (unilateral promise), newobligations from alimentumf maintenance) to testamentum militis (soldier’s will). These were provided, frequently by cognitio process, for the individual case, and then extended to analogous situations. Like the modern law, the ius novum was a direct emanation from the state, not dependent primarily upon the jurists, who fashioned the ius civile, nor on the jurists* collaboration with the praetor, to form the ius honorarium. The will of the emperor was the source of the law, in part converting what were moral obligations into legal norms. Biondi advanced the view that the failure of the jurists to stress the institutions of the ius novum was due in part to the fact that they withstand precise explanation, 6. E.g., Sohm-Ledlie, Institutes 114. 7. Riccobono, Arch. RW Phil. 16 (1922) 503, 520 IT.; Melange* Comi II 237, 375 if.;'La formazione di un “novum ius" nel periodo imperiale', Aiti 1° Cong. Nazionale Snidi Romani li (1928) 235-38. 8. E.g., Riccobono, ‘Cogniùo extra ordincm. Nozione c caraterò del “ius novum’”, RIDA 3(1949)277-93. 9. Riccobona, RIDA 3 (1949) 287 (translation of the author). 10. Riccobono, Lineamenti 142-45. 11. Cf. also the summary of Riccobono's views by Baviera, Studi Riccobono I LXXX11 f. 12. Biondi, Prospettivi 51-60. even today.’1 Biondi has repeated his views in a recent encyclopedia article.1'’ Schiller has summarized the nature of the ius novum, as seen by its supporters.15 It appears to be true that though in form there was no great departure from the institutions of the ius civile and ius honorarium during the classical epoch, in substance the new law of the imperial period was quite distinct from the old.16 It was animated by the same principles that pervade the ius honorarium, yet it was not fashioned by the praetor. It was derived in large measure from the leges of Augustus’ and Tiberius’ times and from senatus consulta during the Empire, and it had the benefit of juristic interpretatio; hence its resemblance to the ius civile. In great part, however, it was evolved in the state process of cognitio extra ordinem, and thus could hardly be identified with either the ius civile or the ius honorarium, for both these fields were adjudicated in the praetor’s court by means of formulary procedure during the whole of the classical period. There are a number of passages in the juristic writings which tie closely together leges, senatus consulta and constitutiones of the emperors-or two of the three - as sources of the Roman law. In some instances these are grouped with other and older sources as the font of the law, even the civil law in a broad connotation of this term. More frequently, however, there is a contrast between the ‘old’ law and the ‘new’ law, for instance, in the cases of inheritances described by Gaius, in the passage above.17 This new law comprises the host of novel legal principles which were established to to carry out the legal policies of the Empire, whether these be laid down by popular leges on the proposal of the emperor, by senatus consulta, or by constitutions emanating from the imperial bureaus. Quite frequently, litigation arising out of the new rules was afforded by cognitio extra ordinem, but this was not always so. The praetor’s court was the forum for disputes respecting many of the new institutions. Thus, it was the praetor who recognized a patron’s successor under the provisions of the Senatusconsultum Ostorianum; the praetor entertained the claim of a mother to the estate of her child under the Senatusconsultum Tertullianum. The field of ius novum was obviously much broader than that of ius extra ordinem.1· Indeed, it extended far beyond the sphere of private law and may well be said to include all aspects of the exercise of imperial policy in the legal field. There were new departures in criminal law, an appellate system was provided for 13. Biondi, op. at., 58. 14. Biondi, s.v. Jus novum, NNDI9 (1957) 385 f. 15. Schiller, Tulane L. Rev. 33 (1958/59) 491. 506-08 [ = American Experience 176-78]. 16. Chiazzese. Iniroduxione 206. 17. The texts which support these statements arc noted by Schiller, op. at., supra, nn. 118-20. 18. So also, early, Kariowa, Rechtsgexhichte I 641. both civil and criminal procedure, and the new administrative measures were legion. Whereas the jurists of the republic and early Empire centered their interests in the private law, the jurists of the later Principate were also actively employed in the imperial civil service, and wrote widely on the new imperial law in their commentaries and case books as well as in special monographs. ·’ In spite of the effort of some writers, the majority of Romanists have not been willing to consider ius novum a separate element of the classical law?0 In some text-books, for instance, those of Jolowicz-Nicholas, Gaude- mct. Iglesias, there is no mention of the phrase in the indices, even in the latest editions; this is true of legal histories as well?1 In other works it is treated in passing, as a non-technical term for the latest development of the law in the classical epoch?2 To others it is an illusion of modern scholars?1 However, there is sufficient recognition of the existence of ius novum in recent studies24 to believe that further examination of the nature and significance of this sphere of law will be undertaken, in order to provide the full picture of private law in practice in city Rome during the classical period.
More on the topic A. CITY ROME LAW:
- CHAPTER SIX Convergence: The City of Rome
- As a large city and the heart of an empire, Rome was full of courts.
- THE LOCATION OF LEGAL ACTIVITIES IN THE CITY OF ROME
- The inhabitants of Rome lived with the reality of legal courts scattered throughout the public and private spaces of the city, and perhaps even came to resent, on occasion, the impact such courts made on traffic flow during the busy hours of the day.
- Public Law in Rome
- Crook J.A.. Law and Life of Rome. Cornell University Press,1967. — 350 p., 1967
- § 69 The legal institutions of Rome of the archaic and pre-classical epoch might well serve as the basis for a course in Roman law.
- City-states
- Status lay at the heart of the law of persons. As Rome developed into a highly stratified society, the different gradations of status were reflected in a myriad of detailed rules.
- Elite governance at the city level: the case of urban regimes
- Adjudication of public crimes by the people may have been efficacious in the context of a small city-state composed of conservative farmers and middle-class citizens.
- The beginnings of Rome
- Foundation of Rome: the monarchy
- Living conditions in Rome
- Early Rome: ius humanum
- THE JURISTS AND THE LAWS IN ROME
- An overview of judges at Rome
- The Legal System of Archaic Rome