Introduction

From an early stage in the development of Roman society, the term ius (plural, iura) signified that which is due in human relations—the rightful power of a community member to act in a certain manner vis-a-vis his fellow citizens.

It referred to a course of conduct that the community would take for granted and in that sense endorse. The community had a general awareness of the circumstances when acts would be construed as iura and these were established by custom. Originally, the exercise of ius had no connection with state organization and thus ius was defined as any instance of approved self-help. After the consolidation of the state and the establishment of a formal system of justice, ius denoted the rules or norms capable of enforcement with the consent of those responsible for safeguarding and maintaining the norms governing community life. Thus the holders of imperium had the essential functions of pronouncing the ius and assisting those with rights to obtain their entitlements through formal channels. The earliest form of legal procedure was the act whereby a person who possessed or claimed a ius against another requested a jurisdictional magistrate to both confirm his ius and enable its exercise by effectively suppressing an opponent’s resistance. Roman law developed primarily as a private law that was devised as a system of rights or claims bolstered by causes of action and specific procedural remedies.

When Roman legal thinking evolved to perceive the various protected powers as a system, the term ius resembled our modern meaning of the word ‘law’ in a broad sense: the entire system of norms by which the rights and concomitant powers of community members are defined, protected and enforced. Furthermore, ius, or law in a broad sense, was construed to embody a strong normative element reflecting the

Mousourakis, Roman Law and the Origins of the Civil Law Tradition,

DOI 10.1007/978-3-319-12268-7_3 relationship between law and justice (iustitia).^{^[243]} In this broad normative sense ius is not the same as morality nor as positive law; rather, it is right law, or positive law as it ought to exist in light of what morality and justice ordain.^{^[244]} Ius, as defined above, was distinguished from lex (plural leges). The latter term signified a law created by a competent legislative organ of the state in conformance with a prescribed procedure. A lex, which by definition pertained to a specific type of legal relationship, drew upon ius but was not identified with it. The normative principles of ius that determined the question of lawfulness or unlawfulness were not reducible to the body of formally enacted laws. These principles were regarded as pre-existing and transcending the enacted law, which merely prescribed the method for implementing ius under certain circumstances. Unlawfulness was defined primarily in relation to ius, for an unlawful act was deemed to encroach upon the principles of ius that informed the particular legislative enactment encompassing the act. From this viewpoint, the word iniuria signified any infringement of the law comprised of an act performed ‘contra ius'. Furthermore, the application of a lex was typically strict as an act or dispute was tackled according to the letter of the law without reference to the circumstances of the individual case. On the other hand, the norms of ius were construed as flexible and thus adaptable to the circumstances of each particular case. Whereas the implementation of a lex was based on formal criteria, the implementation of ius was anchored in its intrinsic rightness.

As previously noted, the term ius civile or ‘law of the state’ was used to denote the law that each state had established for itself and was peculiar to it. The law peculiar to the Roman state was originally that derived from custom and legislation, and applied only to Roman citizens.

However, as the Roman state expanded and social and economic relations grew more complex, the law that applied in Rome came to be derived from a great variety of sources, including the edicts of the foreign and urban praetors. Nevertheless, although Roman law expanded in scope, some traditional legal institutions (such as conveyance by mancipatio) remained open only to Roman citizens. Such institutions were deemed to belong to ius civile in a narrow sense, while other institutions (such as conveyance by traditio or simple delivery) were considered to belong to the law of all peoples (ius gentium) in the sense that they were open to non-citizens and citizens alike. As earlier observed, this technical distinction disappeared after the extension of the Roman citizenship to all free inhabitants of the empire in the early third century AD. A further contrast mentioned by the classical jurists is that between ius civile and ius honorarium, the law derived from the edicts of the magistrates. In this context, the term ius civile was understood as encompassing not only the rules derived from custom and legislation, but also those that emanated from the interpretations of the jurists, the resolutions of the senate and the constitutions of the emperors.

With respect to the subject matter of law, the Roman jurists recognized a distinction between public law (ius publicum) and private law (ius privatum). Public law was concerned with the organization and administration of the state and the interests of the Roman people as a whole. Under the heading of public law fall criminal law, constitutional law, administrative law and the law governing the conduct of religious affairs (ius sacrum). Private law, on the other hand, comprised those branches of law concerned with the rights and duties of individuals and regulating their personal and proprietary relationships.^{^[245]} Although the classification appears intelligible and convenient, there are points at which public law and private law overlap.

Such overlap occurred, for instance, when a general public interest concurred with a private one. It should be noted that private law greatly overshadowed public law in both its intrinsic merit and subsequent influence. This is because private law had a dominant role in the development of legal norms and was the chief interest of the jurists, the most creative element in Roman legal life.

Private law is classified by the compilers of Justinian’s Institutes into three branches: the law of persons, the law of things and the law of actions.^{^[246]} This classification, which has permeated all subsequent legal thinking, is repeated from the Institutes of Gaius^{^[247]} and was in all likelihood entrenched by tradition. The law of persons, sometimes described as the law of status, denotes that part of the law concerned with the legal position of the human being, their rights, capacities and duties. It encompasses much that in modern law is termed family law, as well as the rules governing marriage and guardianship. The law of things is concerned with the rights and obligations generated by the use and exploitation of economic assets and covers what in modern law is termed the law of property, the law of contract, the law of delict and the law of succession. Finally, the law of actions deals with the remedies by which legal rights were protected and the procedures by which the relevant legal judgments were enforced.

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Source: Mousourakis G.. Roman Law and the Origins of the Civil Law Tradition. Springer,2015. — 339 p.. 2015

Introduction

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