Custom and the Growth of ‘lang=EN-US>Vulgar Law'
After the enactment of the constitutio Antoniniana (ad 212) that extended Roman citizenship to all the inhabitants of the empire, the old distinction between ius civile and ius gentium dissolved as the distinction between civis and peregrinus vanished: every free man within the empire was now a citizen, subject to the same Roman law.
In fact, however, the imposition of a uniform legal system did not entail the adoption of Roman law pure and simple by the peoples of the empire nor did it result in the disappearance of local systems of law that continued to apply as customary law. In the eastern Mediterranean, in particular, the common Greek culture and language had produced a distinct body of law, whose origins are located in the Greek city-states as well as the Hellenistic monarchies of Syria and Egypt. This body of law operated alongside Roman law and was enforced by officials like the latter law. It did not merely sustain itself in a half-submerged condition, but it contributed distinct elements to the Roman system through a process of crossfertilization. This process had been operative for centuries but accelerated after the intellectual centre of the empire shifted from Rome to Constantinople in the fourth century ad. This entailed the ‘orientalization’ or ‘Hellenization’ of Roman law, and the ‘Romanization’ of Greek-Hellenistic and other local bodies of law. Similar processes featured in the Western provinces of the empire, but also in Italy and Rome itself. This precipitated a phenomenon that is generally labelled the ‘vulgarization’ of Roman law.The term ‘vulgar’ law refers to the legal views and practices of lay people—a body of ‘popular’ or ‘folkish’ law untouched by the artifices of the legal experts. This genuine customary law was initially regarded as supplementary and unofficial.
Finally, in the fifth century ad it attained recognition as an authentic source of legal norms on a par with imperial legislation.[236] The increasing ascendancy of customary or ‘vulgar’ law, that is, legal solutions adopted by practitioners at a local or regional level, may partly be attributed to the fact that imperial legislative enactments reached local magistrates and courts, if at all, with great delay and in a piecemeal fashion due to the uncertainty of communications. Moreover, at a time when printed books did not exist, local courts and practitioners had no access to the bulk of the classical legal sources. The enhanced role of custom as a source of law was also reinforced by the fact that while the emperor and his bureaucracy created all law, they were often unfamiliar with the prevailing conditions in the provinces. Thus, many imperial enactments were at variance with local practices and conceptions of justice. Setting aside long-established local customs was not easy and thus the actual implementation of imperial legislation in the provinces sometimes proved an impossible task.[237] But vulgar law did not pertain only to customary law. An important source of vulgar law was also the imperial enactments, which were often influenced by foreign legal ideas and practices. Another factor emerged after the recognition of Christianity in the fourth century ad, when Christian ethics started to exercise considerable influence on certain branches of Roman law, such as family and criminal law.The body of law that evolved from the interaction between Roman and foreign elements was markedly inferior to the classical system in terms of logic and abstract refinement. Yet, it was closer to the prevailing conditions of life and thus had some practical advantages. Non-Roman influences are detected at many points of the legal system. For example, the importance of the written document (a heritage of the Hellenistic tradition) as a prerequisite for a binding agreement was now generally recognized.
At the same time, freedom of contract was promoted by the abandonment of the cumbrous formalism that existed previously. Under the influence of Greek-Hellenistic law, which adopted a narrower conception of paternal authority than Roman law, Emperor Constantine introduced restrictions to the traditional Roman institution of patria potestas by conceding that persons in potestate could have proprietary rights in certain circumstances. Thus, it was recognized that a child was entitled to the property a mother bequeathed to them, even if the child remained under the potestas of their father.[238] The influence of certain Greek customs is also reflected in Justinian’s decision to replace the quite complicated adoptio procedure of the ius civile[239] with a simpler procedure that merely required the father, child and intending adoptor to appear before an official and have the adoptio inserted in the court roll.[240] A feature alien to old Roman law that was adopted from the customs of the near East was the donatio propter nuptias: a donation by the husband to the wife before the marriage to provide for the wife’s domestic needs and to ensure that she had an estate should the marriage be dissolved by divorce or by the husband’s death. In the course of time, the tendency developed to regard the donatio propter nuptias as existing in the interests of the children rather than the wife. The influence of Christian principles concerning the sanctity of marriage is exhibited in legislative enactments of Constantine and some of his successors that sought to curtail, by imposing severe penalties, the freedom of spouses to declare a divorce without proper justification.[241] Moreover, the prevalence of Christian ethical principles during the fourth century ad entailed disrepute for the institution of concubinate (concubinatus), a permanent union between a man and a woman not legally married. Concubinate was discouraged through the introduction of various restrictions on the rights of children born out of such a union (liberi naturales). To avert such restrictions, the parents or in some cases the children resorted to some form of legitimation such as legitimation by the subsequent marriage between the parents of such children.[242] In the field of criminal law, the influence of Christian ethics is displayed in the abolition of certain cruel forms of punishment such as crucifixion and gladiatorial combat. This influence is also evident in the introduction of new criminal offences pertaining to the suppression of heretical cults and practices. The list of pertinent illustrations could be easily enlarged.
Source:
Mousourakis G.. Roman Law and the Origins of the Civil Law Tradition. Springer,2015. — 339 p.. 2015
More on the topic Custom and the Growth of ‘lang=EN-US>Vulgar Law':
- Custom and the Rise of ‘Vulgar Law'
- 2. 'Imperial Law and Vulgar Law'and the Consequences
- The Growth of Commercial Law
- The Law of the Twelve Tables and the Growth of Statutory Law
- Allan James. A Sceptical Theory of Morality and Law. Peter Lang,1998. — 277 p., 1998
- CIVIL LAW AND CUSTOM
- B. LEGISLATION AND CUSTOM
- Legal Evolution and Economic Growth
- Custom
- Custom
- lang=EN-US>Social and Economic Conditions