ROMAN LAW, L. MIRAVITE

Roman Law – the body of rules that govern the social relations of many people in Europe, Asia, and Africa for some period between the earliest prehistoric times and 1453 AD.

It is the foundation and framework of civil law.

Survival of the Roman Law in the Modern World

The spread and survival of Roman Law was due to:1. Its universal character2. Its fullness and refinement3. The prestige of Rome4. The support of the Church

Its universal characterThe rules were made by which no reasonable and fair-minded man would object to be bound. It was a law that was free from peculiarities and local characteristics.

Fullness and RefinementRome had lived through centuries of refinement and civilization as compared to other barbaric nations.

The prestige of RomeRome had for ages been the great center of civilization, and the traditions of her wonderful organization had never died.

The support of the ChurchThe immense influence of the medieval Church during a confused period in time made it possible for Roman Law to be supreme.

Value of Roman Law1. Intrinsic merit2. Introduction to legal terminology and method3. Historical introduction to the French Civil Law4. Study of legal history

Intrinsic meritDiscussions of the great Roman Jurists will always remain models of legal reasoning.

Introduction to legal terminology and methodRoman Law has been said, tends to be the lingua franca of universal jurisprudence.

Historical introduction to the French Civil Law“sine historia jurisprudencia cacca est”

French law was framed and adopted after the Roman Law.

Study of legal historyShows the flow of the law for centuries from the Roman Empire to the French to the present day.

Advantages from the study of Roman Law

1. Ethical benefit – inestimable advantages2. Intellectual benefit – incalculable

a. Practical benefit – the study of Roman Law greatly assists the acquisition of a correct style of legal expression.

b. Philosophical benefit – it widens a realization that Roman law is of enormous historical value to modern nations.

c. Professional benefit – the Civil Codes that the Philippines had were all based on Roman law

HISTORY OF ROMAN LAW

The political history of Rome and the development of Roman Law are inseparable.

Political history: Three periods1. The Monarchy (733BC-509BC)

-Romulus – founder of Rome; Etruscan line-Patricians and Plebeians had a class struggle

2. The Republic (509BC-31BC)-Golden age of Rome; rapid growth of lit and arts-Roman revolution:--Tiberius Grachus, Gauis, Sulla, Pompey, Ceasar--Cicero, Gatullus, Virgil, Horace, Livy

3. The Empire (31BC-1453AD)-There was a period of peace and stability-The empire absorbed the whole Mediterranean into a common citizenship.-15th C. the final disintegration of the empire

Legal History: Classical periods1. First period: Liberalization of laws

The liberalization of laws during the republican period was largely a progressive limitation of the jus civile and extension of the jus gentium.

2. Second period: Development of a scientific law-literatureIt was developed by a group of men: jurisconsultiOrator: maintains a client’s cause before a judexJudex: investigates and decides issues before himPraetor: formulates the precise statement of the issue

3. Third period: Codification of laws-Period of general and great decline-Corpus Juris – compiled civil laws-Valentinian Law of Citations – it was a system that only past great jurists’ works be cited, they were:--Papinian, Paulus, Gaius, Ulpian, and Modestinus

Development of Roman Law

1. Ante Roman Sources of Lawa. Babylon – Real mother of law;

Code of Hammurabib. Egypt – Hindustan; Code of Manuc. Greece – law on persons, family, property;

Rhodes Is consisted of maritime laws

2. Concept of the Jus – a matter of acting rather than a concrete thing; any instance of approved self-help.Index – the jus-finder, pointer of the right.

3. Law of Twelve Tables4. The Edict5. The Jus Gentium6. ---

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THE TELEOLOGICAL PERSPECTIVE, PASCUAL

I. LabelsII. Natural Law Basis – the most potent force in the development of the legal institutions and legal concepts

III. The Greek Concept – SPA: study of natural law is based on the moral nature and good faith of human beingsa. Absolute justice (SOCRATES)

“know thyself”; no person is intentionally bad, and only the temperate person knows himselfAbsolute knowledge of justice: episteme; opinion of justice: doxa

b. Rational justice (PLATO)There is a Hierarchy of Reality – ideal reality and physical reality; “other entities” are ideas.Ideas – all objects and activities yielding to the physical sense are only representations of ideas.Rational justice is sufficient to enable human beings to attain their moral nature and good faith, keeping their self-respect by doing good and fulfilling their proper functions in society.Rational justice means the preservation of peace and harmony and the prevention of disturbance.Law is an instrument of doing justice in the state--There is justice when a person fulfills his proper function, and not takes up the role and position of another person.--Principle of Meliorism: that is to say the inherent right of human beings to move on and better the quality of their lives.

c. Particular justice (ARISTOTLE)>Aristotle denied Socrates’ concept of justice: it was too exacting for it demanded the kind of moral excellence which is the culmination of all virtures.>Aristotle denied Plato’s concept of justice: it was still a subjective virtue.--Aristotle view on justice is it is pretentious.Justice is sound and sensible when, in light of events and circumstances, it is fair and equal.--A person’s moral nature and good faith is fair equality.“Voluntare non fit iniuria” was based on Aristotelian insight of lawProportional justice: each person receives what he is entitled to on the basis of ability and achievementNumerical justice: each person, regardless of station in life, counts for one and only one.

d. Law as the product of reason related to justice and equityThe true nature of human beings is that they do not only have a nutritive soul (primitive state), but also a rational soul (fulfilled reality)

IV. The Roman Concepta. Cicero

-studied Stoic philosophy under Quintus Mucius Scaevola II.-- Law must be based on the Principle of Utility: that is to say in the interest of the ruler and not for the governed.--Law is the natural force that effectively controls society, and its natural function is to summon the people to obey it by means of commands and avert wrongdoing by means of prohibitions.

b. GaiusInstitutes:Rules established by the citizens to govern themselves full under jus civile.Rules common to all other persons based on the natural law are classified under the jus naturale.

V. The Aquinian Concepta. Justice

Ethical virtue: justice is inherent in every personJuristic norm: the habit whereby man renders to each one his rights by a constant and perpetual will.

b. Law and Sovereignty – the common goal is for the public welfare and common happiness of the peoplec. Immutability of law – not all laws are immutable and inflexible. Laws may be periodically expanded or contracted in

accordance with the prevailing conceptions of the times.

VI. The Kantian Concept “Transcendental philosophy” – learning or understanding determined by the mind itselfa. Human consciousness and conduct – learning is not only based on sense knowledge, therefore there is the priori knowledge.

i. The principle of rightness – natural law is not prompted by sense-experience but by ethical attitude to do what is right and avoid what is wrong by using the unique faculties of human consciousness – thinking, volition, and judgment.--People living in association with others can exert their free will only if they are able to act in accordance with the principle of rightness.

ii. The categorical imperative – all persons living in society must act in such a way that the maxim or cause of their conduct and decisions would become the maxim of universal law.

b. The sense of striving for rightness – “Do unto others what you want others to do unto you”c. Metalegal basis of law – the idea of the nature of law cannot be understood based only on sense-experience.

Kant’s two principles are the bases and foundation of law.

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HANDOUTS, PAGADUAN

Jus Civile and Jus Gentium

Jus civile (civil law)– applied to Romans exclusivelyJus gentium (law of nations)– it applied to everybody else, to foreigners (peregrini)

Written and Unwritten Law

Jus scriptum (written) – law based on any written sourceJus non scriptum (unwritten) – custom

Laws Magistrates applied based on three elements:1. Mercantile law used by Mediterranean traders2. Institutions of Roman law3. Magistrates’ judgment of fair and just

Written laws1. Leges – enactments of one of the assemblies of the

whole Roman people, ruled by the patricians.-Lex Hortensia (287BC) – for the plebeians, “plebescita” became binding on all classes of citizens-i.e. Twelve Tables

2. Edicta – proclamations issued by a senior magistrate (praetor) on judicial matters.-Curule aediles: responsible over the care and supervision of the markets-Magisterial edicts became an instrument of legal reform and Leges became obsolete.-Jus Honorarium: edictal Roman Law; praetor had the power to issue laws

3. Senatus consulta – resolutions of the Roman senate; they are suggestions which could be given force by the magistrate’s edicts.

4. Constitutiones principum – expressions of the legislative power of the emperor. By this period the emperor became to sole creator of laws.-edicts or proclamations; instructions to subordinates; -written answers; judicial decisions of the emperor;

5. Responsa prudentium – answers to legal questions given by learned lawyers to those who consulted them-used to be a secret of the college of pontiffs, or priests, a recognizable class of legal advisers, juris consulti or prudentes.

The Law of JustinianThere were scattered laws, old laws passed under the republic, decrees passed during the empire, and writings of jurists; new laws consisted of ordinances of the emperor during the empire

Codex Constitutionum (529) – is the compilation of all old laws and new laws which were polished to be comprehensive.

The Corpus Civilis1. Codex Constitutionum

2. Digests (digesta) – law books which contained simplified and clarified laws with writings of jurists

3. Institutes (institutiones) – an outline of the elements of Roman Law

4. Novels (novellae constitutions post codicem) – ordinances by Justinian

Categories of Roman Law

Law of Persons-susceptible to legal relations-natural persons and juridical (artificial) persons-Gaius: all men are either free or slaves

Family-patria protestas: paternal power in the form absolute authority-Marriage with manus – autocratic power of husband over wife-Marriage without manus – most common, usual conjugal life-Divorce was legal and permitted to husbands-Concubinange recognized as “marriage” without dowry-Persons under the age of puberty needed tutores or guardians

CorporationsFour types of corporations:

1. Municipia – citizen body, composed of conquered cities and local communities

2. Populus Romanus – “people of Rome” collectively could acquire property, make contracts,etc

3. Collegia – numerous private associations with specialized functions.

4. Charitable – property may be donated or willed but usually to a church, and they would supervise over it.

Law on Property and Possession

Dominium: absolute ownership

Mancipatio: formal transfer of propertyIn jure cession: conveyance in the form of a lawsuit.

Usucapio: ownership acquired by length of possession

Occupatio: ownerless things became the property of the first person to take possession of them.

Accessio: it cannot be separately owned, to whoever goes the property with greater use, owns it.

Specificatio: whoever created it, owns it.

Thesauri inventio: “treasure trove”, the final rule is if something was found by a man on his own land, he owns it; if on another’s land, they split half.

Traditio: simple delivery of possession with the intention of passing ownership and was the method of conveyance of the jus gentium.

Leaseholder: no protection beyond a contractual right against a landlord

Servitude: one person enjoyed certain rights in property owned by another

Delict and Contract-obligations classified into two categories: delict or contract-Talio: do unto him what he has done unto youTheft involved a penalty twice the value that was stolen-Lex Aquilia: regulated the law of damage to property-Justinian’s Institutes dealt with four delicts:1. theft 3. Damage to property2. robbery with violence 4. Verbal or physical assault

Contracts of classical law:1. Literal - fictitious loan formed as entry in a creditor’s book2. Verbal – required patterns of words to be spoken; stipulatio3. Real – loans of money, goods, deposits, or pledges4. Consensual – sale, hire of services, partnership

Law on Succession-the most complex in Roman law.

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Creation of will > appointment of one or more heirs >> acceptance of inheritance from deceased >>> becomes owner or everything --- may even be a creditor or debtor

Intestate succession – succession without a will;- automatic heirs are the deceased’s children- Agnatic relations: the male line descendants of the deceased- Gens or clans: if there are no agnates.

Law on ProcedureLegis actions(law suits) – these were conducted orally in two stages:

1. Preliminary one before the magistrate to form an issue

2. Actual presentation of evidence to the judex (judge)

-in the 2nd & 1st century BC, written procedures were used.-in the republican times, the magistrate used his administrative powers to settle disputes.

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