The Historical And Institutional Context Of Roman Law

477 Pages·2003·20.822 MB·English

by  George Mousourakis

THE HISTORICAL AND INSTITUTIONAL CONTEXT OF
ROMAN LAW
This page intentionally left blank
The Historical and Institutional
Context of Roman Law
GEORGE MOUSOURAKIS
The University of Auckland
First published 2003 by Ashgate Publishing
Published 2016 by Routledge
2 Park Square, Milton Park, Abingdon, Ox on OXI4 4RN
711 Third Avenue, New York, NY 10017, USA
Routledge is an imprint a/the Taylor & Francis Group, an iriforma business
Copyright © George Mousourakis 2003
All rights reserved. No part of this book may be reprinted or reproduced or utilised
in any form or by any electronic, mechanical, or other means, now known or
hereafter invented, including photocopying and recording, or in any information
storage or retrieval system, without permission in writing from the publishers.
Notice:
Product or corporate names may be trademarks or registered trademarks, and are
used only for identification and explanation without intent to infringe.
British Library Cataloguing in Publication Data
Mousourakis, George
The historical and institutional context of Roman law.
(Laws of the nations series)
I.Roman law 2.Roman law - History
I.Titie
340.5'4
Library of Congress Cataloging-in-Publication Data
Mousourakis, George.
The historical and institutional context of Roman law / George Mousourakis.
p.cm. - (Laws of the nations series)
Includes bibliographical references and index.
ISBN 0-7546-2108-1 (alk. paper)-ISBN 0-7546-2114-6 (pbk.: a1k. paper)
I. Roman law. 2. Civil law-History. I. Title. II. Series.
KJA147.M682002
340.5'4-dc21
2002026137
[SBN 13: 978-0-7546-2[08-9 (hbk)
[SBN 13: 978-0-754-62 [ [4-0 (pbk)
Contents
Preface IX
Abbreviations Xlll
1 Introduction 1
Divisions of Roman Legal and Constitutional History 1
Sources of Roman Legal History 6
Fundamental Concepts and Distinctions 16
2 Monarchy and Early Republic 37
Introduction 37
Early Roman Society 40
Economic Conditions 50
Political Organisation of the Regal Period 52
Social Developments during the Early Republic:
the Conflict of the Orders 61
The Roman Expansion in Italy 66
3 The Constitution of the Roman Republic 69
Introductory 69
The Senate 70
The Magistrature 76
The Popular Assemblies 102
4 The Archaic Period of Roman Law 115
Introductory 115
The Beginnings of Legislation 116
The Interpretation 125
The Administration of Justice: Civil Procedure 127
The Criminal Law 139
vi The Historical and Institutional Context of Roman Law
5 The Later Republic 151
The Roman Expansion in the Mediterranean World 151
The Organisation of Italy and the Provinces 154
Social and Economic Conditions 160
The Breakdown of the Republic 169
6 The Pre-Classical Period of Roman Law 181
Introductory 181
Legislation 181
The Edicts of the Magistrates 185
Legal Science 188
Custom 194
The Administration of Justice: Civil Procedure 194
Criminal Law and Procedure 222
7 The Principate 237
The Coming of the Empire 237
The Imperial Government 242
The Republican Elements of the Constitution 250
The Administration of Italy and the Provinces 257
Social and Economic Conditions 267
The Crisis ofthe Third Century 276
8 The Classical Period of Roman Law 279
Introductory 279
Sources of Law 280
Classical Legal Science 289
The Administration of Justice: Civil Procedure 306
Criminal Law and Procedure 309
9 The Dominate 321
The Reorganisation of the Imperial System 321
Government and Civil Administration during the Later Empire 330
The Administration of the Provinces 336
Social and Economic Conditions 338
The Demise ofthe Western Empire 345
The Survival of the Empire in the East 346
Contents VII
10 The Post-Classical Period of Roman Law 349
Introductory 349
Imperial Legislation 350
Custom 355
The Jurists' Law 357
The Administration of Justice 365
Civil Procedure 367
Criminal Law and Procedure 376
The Germanic Codes of Roman Law 378
The Codification of Justinian 381
11 The History of Roman Law after Justinian 397
The Legislation of Justinian in the East: Byzantine Law 397
The Later History of Roman Law in the West 410
Concluding Note 445
Select Bibliography 447
Index 453
This page intentionally left blank
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 city
state, 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 modern 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 modern
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