By Marylin Raisch
Why even mention ancient Roman law or medieval canon law to any modern-day law student? What possible relevance could it have to a student in a professional school studying law today with the aim of becoming a practicing lawyer, particularly here in the United States? It is a fair question in light of tight budgets at law schools with regard both to resources and time. As Dante Figueroa pointed out in his 2015 post to the Law Library of Congress’s blog In Custodia Legis, however, Roman law has been referenced by the U.S. courts in the past and Tim Kearley of the University of Wyoming has studied the appearance of major translations, such as Justinian’s work, undertaken by a state judge and others in our American legal history.
The traditional answer regarding the utility of studying comparative law or taking surveys of law around the world may be a surprisingly practical one: how does the rest of the world do it? That is, what do other constitutions provide by way of the structure of government and any rights of citizens. Who is even considered a citizen? What about federal and unitary states and the hierarchy of laws- where would you look to find out what body of law governs contracts between private citizens /entities or between the government of the country and one such private person?
It might be helpful to know where to look in a system that ultimately got codified by thinking first about remedies and then about keeping dispute resolutions somewhat consistent, a sort of rudimentary precedent system organized eventually into categories. Conservative Romans at a time long before Justinian wanted fidelity to edicts and honor in dealings (Schulz, 230-31). If you agree to supply someone with something or do something with or for the person in the future, you are under an obligation. If you injure them or their property, it’s an intentional or negligent wrong to be put right. People might acquire land or use it for planting or hunting. There could be a difference in how you can prove you own something, are owed something, or defend yourself from some allegation in this network of citizen cooperation often punctuated by disputes. The difference between you and another may be one of status: you are a child, a woman, or, terrible as it was, a slave. Even today you can be a minor, a non-citizen, a convicted felon, or a state official. So you could be ineligible for some procedures and immune from others, differences we have inherited and still recognize today for a much more limited list of people. Children, non-citizens, convicted felons, and “persons in need of supervision” or guardianship are fortunately some of the last groups whose status carries legal meaning in most (though not all) jurisdictions. (And in our modern world equality before the law may not match facts on the ground).
These categories, a kind of taxonomy of law and legal thinking, arose in ancient Rome and subsisted in various lists of laws and harmonized compilations. As far back as this ancient time there arose even more basic common terms that our English as well as our civil law colleagues use: the distinction between public and private law and, it turns out, intentional and negligent acts. In fact, one way to encourage the embrace of civil law history as a way for students to understand more about civil and criminal law may be to point out that civil law countries group two big areas in the first year U.S. law school curriculum into one big area: contracts AND torts come under the big umbrella of obligations.
Here is what some scholars think happened that makes Roman law similar both to English legal developments and to the categories of the more systematic modern civil law thinkers. The ancient Roman civilization started as did not much of human history: with rulers, kings, who controlled land, armies, and order in an agricultural city-state. There was a law code, the Twelve Tables, in the fifth century B.C and by the late third century B.C. things became more orderly in an ongoing struggle between aristocrats and peasants, or patricians and plebeians, and two consuls eventually replaced the king as authorities over law. Private law administration came under two praetors, one for laws and disputes involving citizens and the other for a regime involving at least one non-citizen. Disputes over injuries evoked a concept of justice that grew out of vengeance but came to straddle the line between public injuries, or crimes, and those more limited to private wrongs. The Romans also had a strong sense of honor and traditionally correct behavior. Not living up to an agreement or damaging property were both obligations and both generated some duty to make it right: the first type contractual; the other, delictual. (We have acts that can be pursued as criminal or as civil for damages, such as assault).
Actually, rather than organize similar cases of dispute, the praetor, really a magistrate, would draw up an action (formula) based on damage costs and other rules that had evolved, and hear facts about what happened within the parameters of the remedy and fact pattern. This is much like the English writ system, and some scholars find that Roman negligence theory arose by expanding on this kind of dispute settlement to prevent vengeance and uphold honor. But they were just bundles of random precedent. Looking through them suggested patterns that became rules, but with no Westlaw or Lexis, how to tell and be consistent?
After a few centuries of war, divided empire, lurid palace intrigue, social war, fanatical religions, and the like, the emperor in the east, Justinian, compiled writings of jurists from the late Republic through the third century A.C., the Corpus Juris Civilis (CJC), to gather it all in three parts (with a fourth update somewhat later) in the sixth century A.C. So where did all these categories end up- nowadays where DO we look in civil law countries for private law? Mostly, we look under these same categories in a civil code.
Justinian created a big collection of legal principles and writings that came at the end of the more creative and pragmatic era of Roman law, and since he forbade further commentary, many other primary texts are, or were, lost. One that was found showed earlier existence of many concepts in a work from the second century A.C. known as the Institutes of Gaius. It is the story of a palimpsest or the finding (in 1816) of the text of these Institutes under a writing of St. Jerome that had been transcribed over it. Modern scholars now know more about the categories of laws and the history of the concepts.
After the canon law of the church (Roman law influenced) and contributions to some areas of law that developed from customary law (in France, coutume, and in the centuries after the German tribes became more settled, some of their codes and customs as well), interest in the older Roman law emerged in the 12th century in universities, principally Bologna. And after more centuries and the emergence of nation-states, and the settlement of religious wars, rulers like Napoleon seemed ready to pull together a schema of the law that emerged with these basic categories for private law remaining in his and future codes (with variations in the details). The topics are cross-referential and integrated. They are as follows:
- Status of persons (married, minor, adopted, gendered; early aspects of family law)
- Obligations (injuries and contracts)
- Ownership or modes of acquiring property (land transfer and inheritance)
- Procedure (also often in separate codes for civil and criminal matters)
Thank you, ancient Romans. You just gave us a 1L curriculum. And a few second year electives as well. Our laws in the U.S and the common law world are not really in codes but really in collections of revised statutes, even if we call them a code. So we have to search through a lot of separate texts: statutes and cases. The internally consistent civil code was in once sense a boon to early legal research. Feel free to consult the table of contents (the topics above) and the index. You also gave us an outline for researching much of non-U.S. law. And thanks for the mind map.
 Summarized by Reinhard Zimmermann, Delict in General in Law of Obligations: Roman Foundations of the Civilian Tradition (1996).
 For more detail on the CJC afterlife, see Frederick J. Dingledy, The Corpus Juris Civilis: A Guide to Its History and Use, 35 Legal Ref. Serv. Q. 231 (2016).