Preface

The law of ancient Rome, as transmitted through the sixth century codification of Emperor Justinian, has been one of the strongest formative forces in the development of what we now think of as the Western legal tradition.

It furnished the basis of the Civil law family of legal systems - one of the major groups of legal systems in the world today - and supplied an almost inexhaustible reservoir of legal concepts, doctrines and principles the influence of which can be traced in any body of law, both national and international, and in any system of courts and procedures. The history of ancient Roman law spans a period of more than twelve centuries. Initially the law of a small rural community, then that of a powerful citystate, Roman law became in the course of time the law of a supranational empire which embraced a large part of the civilised world of its time. During its long history Roman law went through a remarkable process of evolution. It passed through different stages of development and underwent important transformations, both in substance and in scope, keeping up with changes in society, especially with those changes brought about by Rome's expansion in the ancient world. During this long process the interaction between custom, enacted law and case law led to the formation of a highly sophisticated system, gradually built up from layers of different elements. But the great bulk of Roman law, especially Roman private law, was not a result of legislation but of jurisprudence. This unenacted law was not a confused mass of shifting customs, but a steady tradition developed and handed down by specialists, at first members of the Roman priestly class and later by the jurists. In the closing stages of this process, as law-making became more and more centralised, this law, together with statutory law, was compiled and then 'codified'.

The codification of the law both completed the development of Roman law and became the means by which Roman law was subsequently transmitted to the modem world.

The aim of this book is to show how Roman law emerged, how it became a universal system and how it was transmitted to the modem world. The book traces the evolution of Roman law from the primitive law of a small rustic community in Italy into a highly refined system continuously adapting itself to the needs of a commercial society extending over a vast empire and embracing many different races. It examines the development of the various sources of Roman law in their social and political setting and attempts to explain how in practice a source was made

effective. And since so much of Roman law hinged upon forms of legal process, the book also discusses the evolution of Roman legal procedure and outlines the mechanisms by which legal judgements were put into effect. Although the growth of Roman criminal law is also considered, the emphasis is upon the development of Roman private law. This is largely because private law was the chief interest of the most creative makers of law, the Roman jurists, but partly too because the later influence of Roman law has been predominantly in this field. In this survey I have tried to encompass the history of Roman law as a whole and to convey it in such a way as to avoid the fragmentation which has become usual in the subject. While principally concerned with the historical development of Roman law, I have made a sincere effort to combine the perspectives of social, political and economic history with those of legal history. In the foreground are those historical events which had the strongest impact on Roman law. Special emphasis is placed on the development of the Roman political institutions and the historical evolution of the Roman state. In the final chapter of the book attention is paid to the factors which, in later times, warranted the preservation and continuing influence of the Roman legal inheritance in continental Europe.

This introductory book on the history of Roman law has been written primarily for law students whose course of studies includes Roman law, legal history and comparative law.

It is also designed to meet the needs of the general reader of history who would like to know about the main features of Roman law and the social, political and cultural processes that contributed to its development. However, the details of the development of particular legal doctrines or branches of law are not within the scope of this book. There is abundant material available in English and other languages to enable the student to examine selected topics in depth. But any detailed study in Roman law should be carried out only when some understanding of the system as a whole has been attained. It is hoped that this book will provide an accessible historical introduction to the development of Roman law and will encourage students of all kinds to carry out further work in this area of study.

I am grateful to a number of people who have helped me in the preparation of this book. First I should like to thank my colleagues and students at the University of Auckland for their encouragement and constructive criticism. I also wish to thank Professor Alberto Burdese of the University of Padova, Professor Pietro Costa of the University of Florence, Professor Vito Mangini of the University of Bologna, Professor Alfons Bürge of the University of Munich and Professor Nikolaus Benke of the University of Vienna, who enabled me to spend several months in Italy, Germany and Austria as a Research Scholar and to make use of the

Preface xi libraries and facilities of their Institutions. Mr Ian McIntosh, with his eye for detail and acute insight, has been a superb editor and has made a number of helpful suggestions for improvement. Finally, I wish to thank Chapman Tripp law partnership for one year's financial grant towards the research for this book and my publishers for their courteous assistance.

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Source: Mousourakis George. The Historical and Institutional Context of Roman Law. Routledge,2003. — 480 p.. 2003

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