Custom and the Rise of ‘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.^{^[97]} Particularly in the Eastern Mediterranean, the common Greek culture and language had produced a distinct body of law whose origins were located in the Greek city-states as well as the Hellenistic monarchies of Syria and Egypt. This body of law continued to exist alongside Roman law as a supplementary source of legal norms and contributed distinct elements to the Roman system through a process of cross-fertilization. This process had been operative for centuries but accelerated after the Empire's centre of gravity shifted from Rome to Constantinople in the fourth century. Similar processes operated in the Western provinces of the Empire, but also in Italy and Rome itself. As a result, the law that actually applied throughout the realm was a mixture of Roman law and local practices that varied from area to area but lacked the subtlety and sophistication of the classical system. Elements of this so-called ‘vulgarised' Roman law (vulgarrecht) are clearly visible in imperial constitutions, legal codes and documents of the Dominate period.

The body of law that emerged from the interaction between Roman and foreign systems was undoubtedly 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, Greek-Hellenistic law adopted a narrower conception of paternal authority than Roman law and this influenced Emperor Constantine as he 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.^{^[98]} The influence of certain Greek customs is also reflected in Justinian’s decision to replace the quite complicated adoptio procedure of the ius civile (concerning the transfer of a person governed by the paternal power of the head of his family to the patria potestas of another). He instituted 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.^{^[99]} A feature alien to old Roman law that was adopted from the customs of the near East was the donatio propter nuptias: a husband’s donation to his wife before the marriage to provide for her domestic needs and ensure that she had an estate should the marriage be dissolved by divorce or by the husband’s death. The list of pertinent illustrations could be easily enlarged.

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Source: Mousourakis G.. Fundamentals of Roman Private Law. Springer, 2012.— 366 p.. 2012

Custom and the Rise of ‘Vulgar Law'

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