Carácter único de la Ley Romana

8/14/2019 Carcter nico de la Ley Romana

1/6

The Unique Character of Classical Roman Law

Author(s): F. PringsheimReviewed work(s):Source: The Journal of Roman Studies, Vol. 34, Parts 1 and 2 (1944), pp. 60-64Published by: Society for the Promotion of Roman StudiesStable URL: http://www.jstor.org/stable/296782.

Accessed: 28/10/2011 16:52

Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at.http://www.jstor.org/page/info/about/policies/terms.jsp

JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of

content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new formsof scholarship. For more information about JSTOR, please contact [email protected].

Society for the Promotion of Roman Studiesis collaborating with JSTOR to digitize, preserve and extend

access to The Journal of Roman Studies.

http://www.jstor.org
http://www.jstor.org/action/showPublisher?publisherCode=sprshttp://www.jstor.org/stable/296782?origin=JSTOR-pdfhttp://www.jstor.org/page/info/about/policies/terms.jsphttp://www.jstor.org/page/info/about/policies/terms.jsphttp://www.jstor.org/stable/296782?origin=JSTOR-pdfhttp://www.jstor.org/action/showPublisher?publisherCode=sprs


2/6

THE UNIQUE CHARACTER OF CLASSICAL ROMAN LAWBy F. PRINGSHEIM

The unique character of Roman law has been treated for centuries; hymns enoughhave been sung. My purpose is different: I restrict the problem to Roman classical lawand therefore have intentionally added this adjective to the title. Roman private law-and I have only private law to consider here-is not the same throughout the thousand yearsof its history. Modern research distinguishes in the legislation of Justinian what belongsto the Byzantine epoch from what is genuinely classical. Secondly, we now know more aboutpre-classical law so that we are better able to contrast classical with archaic law. A thirdreason for a revision of our view is the developed study of the oriental, the cuneiform,law, and some new research in Greek law. Owing to this threefold progress we can try tosketch the unique character of Roman classical law in comparison with other laws. I discernthree periods of Roman law: archaic (or pre-classical) up to 150 B.C., classical from150 B.C. to A.D. 300, Byzantine (or post-classical) from A.D. 300 to 565. These are theusual periods, except that I carry back the classical period to 150 B.C. I know that thereare transitions ; but if we take the years 150 B.C. and A.D. 300, we shall roughly mark theturning points and have before us three distinct periods of Roman law.My thesis is-with a dangerous, but necessary simplification-that it is the classicallaw which is specifically Roman, and that we have therefore to compare this classical lawon the one hand with all other systems, including archaic and Byzantine Roman law on theother. All these other laws, Babylonian, Assyrian, Egyptian, Greek and Germanic law,Muslim and Jewish law, form a single mass-so to speak-of vulgar, common, popularsystems with simple and unscientific conceptions. To this class belong archaic and ByzantineRoman law. Roman classical law rises like a mountain above the common level of theothers and it slopes down again to the previous level in the Byzantine period.Before I can begin my comparison I must explain what is meant by classical law.I would emphasise that Roman classical law is more juristic, more scientific, than any otherlaw. It was created by the lawyers who guided practice, almost without any intereferencefrom legislation. Jurisprudence attracted the best brains of this age. Their creative abilityformed classical law. Although this line is crossed by others, simplicity is the strikingfeature of classical law. It was reached by abstraction. Analysis of the complexphenomena of life, recognition of the elements of which these are composed,isolation of the legally important facts: all these operations helped to create and developlegal science. The game was played within a limited number of definite juristic conceptions.Economy is one of the principles of this art. Everything seems simple and elegant. Thedangers inevitably connected with such a highly developed art (well known to the Con-tinental lawyer of to-day) were avoided by the instinct for a balance between theory andpractice. The classical lawyers created notions which now are taken for granted. Thereforeit is difficult for us to imagine what it meant to find, to invent, as it were, such conceptions.Only the comparison with other laws can give a true impression of the surprising noveltyand uniqueness of this creative process. With the end of jurisprudence classical law ended.After A.D. 300 no legal books were written. The development stopped, Roman law grewrigid, and new influences led to the complex character of Byzantine law. Some failures ofRoman law, as we know it, have to be explained by this sudden freezing. Compared withthe slowness of historic development in other private laws much was done in the shorttime in which legal thinking was creative and alive.Before giving some selected examples I must make a few reservations. For my purposeit is necessary to draw sharp lines without noticing the deviations. But I expressly emphasizethat there are other lines. Already in the archaic period there existed very Roman rules

1 A paper read on 2nd September, 1942, to the Joint Meeting of the Hellenic and Roman Societies inOxford.


3/6

THE UNIQUE CHARACTER OF CLASSICAL ROMAN LAW 6iwhich were only developed in the classical age. On the other hand the Byzantine epochdid not always go back to older and simpler conceptions ; often it continued along classicallines. Finally, I have to neglect elementary jurisprudence, fully aware that there existssomething like a scientific jurisprudence in Jewish and Muslim law.

I begin by illustrating the uniqueness of classical procedure and classical jurisprudence.The classical civil procedure was that of the written formula, the peculiarity of whichwas the division of functions between the magistrate (praetor) and the judge (iudex). Thefirst had to help the parties to formulate the dispute and was free to give or decline anaction: the judge, like an arbitrator, had to hear evidence and to decide the case, answeringthe question put before him by the parties. Both were assisted by advisers, by a consiliumof jurists. The formulae, published as models in each praetor s yearly edict, announcingthat in such and such cases he would grant an action, were set up in the Forum, beforeeverybody s eyes, exposed to everybody s criticism. The fact that the magistrate had toformulate beforehand the patterns in an abstract way, to present them in a clear, a com-prehensive, and above all in a concise form, and that the parties had to adapt their disputeto such a formula, was one of the reasons why classical Roman law was able to isolate thefacts and to find out which was the decisive question. The formula was an instrument atthe same time flexible and precise. The judge on the other hand had not only to hear andweigh evidence, but to interpret the question put before him, a question often leaving tohim a large measure of discretion. His judgment was final ; no appeal was possible.In the archaic procedure we find instead of the writtenformula a set form of words to beused by both parties. A claim had to follow exactly the wording of the old law: a failure bythe plaintiff to use the right word was fatal to his claim. In these legisactiones there was notthe same freedom for the judge, and the judgment only declared which sacramentum(a sumof money deposited by each party as a sort of stake, and forfeited to the State by the losingparty) was justified. In the Byzantine period the classical procedure disappeared; thedivision of the functions no longer existed. Justice was now imposed from above, the judgebeing an official of a bureaucratic government and the master of the parties. Appeal couldbe made from each judgment.The characteristics of the classical procedure do not occur in any ancient or modernlaw. Greek law, for example, did not know the division into two parts. Nothing like theedict existed, and the Greek juries of the democratic age cannot be compared with theunus iudex of Rome. With all its mobility and elasticity the Greek genius was unable toconfine itself within the strait waistcoat of a legal formula. The similarity between theclassical procedure and that of England in the early Middle Ages is patent. But as soon aswe begin to penetrate below the surface the differences between the two systems are atleast as remarkable as the resemblances. The best English authority, after having shownthe distinction between praetor and chancellor, comparing the iudex with the English jury,speaks of an unfathomable gulf which lies between them.In connection with classical procedure there arosejurisprudence and scientific literature.It was for the jurists to collaborate with the praetor and the iudex and to develop the lawin a continuous evolution in such wise that the new had always arrived before the olddeparted. As Theodor Mommsen expressed it 2: The whole wisdom of the Romancreation of law consisted in allowing the jurists themselves to make and change the law .Their predilection for simplification corresponds with their aversion to mixed forms, tohybrid legal configurations. And this whole tendency is expressed by the language of theliterature: this scientific language, with a peculiar vocabulary, is extremely simple, plainand uniform. Here, too, economy is one of the main features.In contrast with all this, early Roman law did not know the separation of the law fromextra-legal life. No distinction was then drawn between sacred and secular law, betweenpublic and private law, between contract and tort. Circumstantial phrasing marks thelanguage of the early statutes. Only the beginnings of jurisprudence are perceptible ; noliterature exists. If we look at late Roman law, we find a number of mixed forms ; post-classical are the actiones mixtae, the interdicta mixta, the actio in rem scripta as a mixture

2 Ges. Schriften 7, 2I2.


4/6

62 F. PRINGSHEIM

between an actio in rem and an actio in personam. Sacred law (now Christian rules and con-ceptions) began again to play its part, if only in a modest way. Tort intruded into thelaw of contract. Extra-legal considerations, sentimental arguments, rhetorical distinctionswere frequent. Notions without clearness, some of them used in a new sense (aequitas,humanitas, benignitas)served to infuse the law with a new spirit. Instead of casuistic juris-prudence we find now a tendency to generalisation. The language is either vulgar, nolonger technical (in the west), or (in the east) Byzantine, that is to say bombastic, com-plicated and circumstantial.Compared with Roman classical law all other laws were unscientific; everywhereextra-legal arguments played their part ; no jurisprudence existed ; primitive conceptionsprevailed in spite of a sometimes highly civilised world. This is especially true of Greeklaw. No single book on private law written by a Greek lawyer has survived. The practiceof the courts did not interest the best brains. Pleading before the Athenian courts was notso much meant to bring legal argument as to win the sympathy of the numerous judges.The instrument for such a purpose was not jurisprudence, but rhetoric. Compared withthe Romans the Greek lacked legal technique. Their intelligence was used not to simplifythe facts, to create precise legal notions, but to see the whole complexity of life and tomaster this variety with old and sometimes primitive instruments. No Greek tribunal wasfree from confusion of law and fact. Babylonian and Assyrian or, more generally, cuneiformlaw, had no jurisprudence. In spite of our ever-growing knowledge of these systems, wecannot find the same sort of historic development as in Roman law. In the law of contracts,for example, the old forms of a very early period lasted for thousands of years without anyalteration. This astonishing stability of the fundamental conceptions shows not only theiradaptability to changing conditions, but also some absence of legal thinking. Nothingin modern law is equal to Roman classical jurisprudence. Continental law has been inclinedto follow the Byzantine line: it has developed much abstraction. In spite of great progressit cannot hold a true balance between theory and practice. English law is nearer to theclassical casuistic spirit and its aversion to excessive abstraction. But it has not quite thesame scientific character, and the literature does not play the same important part.Three special examples may illustrate more clearly what I mean.Ownership is a specifically Roman classical institution. Dominium endowed its holderwith the greatest legal power. All other rights were sharply separated from ownership.Their number was restricted, their contents definite. Never were they permitted to over-power dominium. The vindicatio, the action for the recovery of property, could be usedeven against a person who had acquired possession in good faith. The character of ownershipwas the same for land and moveables. Possession, on the other hand, the actual enjoyment,the fact of having a thing, had nothing to do with dominium. It had its own possessoryremedies, but right was immaterial for its defence. All other laws know a scale of rightswith different legal powers. For them, ownership does not convey an absolute right.Only relative rights exist, some stronger, others weaker. Ownership is only one of them.Possession on the other hand is not differentiated from ownership. Fact and right interflow.No past or present law knows the precision of the classical conception unless it has beeninfluenced by Roman law. It did not exist in archaic Roman law, and it did not survivethe end of the classical epoch. In archaic procedure not only the plaintiff asserted that thething in action was his, but the defendant made the same assertion. It is evident that thequestion was one of the stronger right, not one of right against fact as in the classical action.Family property, divided ownership, co-ownership with integral ownership for each owner,all these conceptions existed in the pre-classical period, before the classical unrestrictedand absolute character of the dominium was formed. Even the denomination dominiumdoes not occur before the first century B.C. Before that time the Romans spoke of uti, frui,habere, possidere, or, summarising these, of possessio. The single powers later contained indominiumhad to be summed up to express ownership. Byzantine law filled the gap betweendominiumand other rights. It created new rights which were so strong that they came verynear to ownership. It abandoned the classical rule that there is only one owner of onething. Two persons can now exercise the right of recovering a thing: the legal owner and


5/6

THE UNIQUE CHARACTER OF CLASSICAL ROMAN LAW 63the equitable owner. Two ownerships of different weight in the same object: a notioncontradictory to classical strictness. In cuneiform law no clear distinction existed betweenownership and other rights, and between ownership and possession. It is to-day the commonopinion that Greek law had no clear conception of ownership and did not separate sharplypossession from ownership. I have some doubts whether this opinion is not an exaggeration:probably ownership existed, although it was not quite the same as Roman dominium.Muslim law knows good and bad ownership; an imperfect sale gives only bad ownership.As the notion of ownership was not present in Germanic law, English Common law doesnot sharply distinguish between ownership and possession. There is a hierarchy of rights,a sort of descending scale from the purely proprietary to the purely possessory. The oldprinciple of the better right is still in full operation. No vindicatio, no special claim for therecovery of property exists. An action in tort or contract, or an action based upon right ofpossession fills the gap incompletely.My second example is the consensual contract. In the classical period of Roman lawseveral classes of contracts-the most important being sale and hire-became binding bymere consent, without any form. The consensus,the agreement, no matter how expressed,was sufficient to create legal obligations. A very simple and natural conception, so it seemsto us nowadays. But it is not universal, and nobody knows how the Romans reached it,although they say that they took it from the iusgentium, an explanation-as we shall see-obscuring rather than revealing the real historical process. Archaic Roman law had only afew formal contracts. Some of the classical contracts, for example sale, did not exist at all.The mancipatio of the pre-classical law was a sale for ready money, not a contract ; therewas no place for obligations. Other contracts were based at first on tort, all of them stillin their infancy. The Byzantine age returned to the formal contract and destroyed theclassical notion. A new form, the written document, more and more took the place of theconsensual contract. Consensus, the real expression of a real agreement, was no longernecessary; the Byzantine animus (or intention), put on record in the document, wassufficient. In Babylonian law a severe formalism is characteristic for a period of twothousand years. The old view that Greek law began with consensual contracts must berevised ; it seems improbable that Greek law at any time reached the conception of legallybinding consensual contracts. In our own time English law requires for a valid contracteither that the agreement be embodied in a formal deed under seal or the presence ofconsideration. Looking back from this to the short period in which Roman law createdand preserved consensual contracts one can get an impression of what is meant by theuniqueness of classical law.As a third and last example I would take engagement or betrothal. Characteristicof classical Roman law is the careful avoidance of any interference with matters not primarilyconcerning the law, the aversion to subjugating things of life and freedom to legal rules.So marriage and betrothal were free ; no binding or penal stipulation was possible. Butin the archaic period there existed stipulations between the father and the bridegroom.The giving of a ring is a survival of the old price for the bride: the primitive conceptionof marriage as something like a sale is still alive. This conception comes back in theByzantine age. The earnest money for the betrothal, sometimes a ring, confirms the promise.Breach of promise by the bride gives an action for damages to the bridegroom. Breach ofpromise by the bridegroom results in the loss of the earnest money. Babylonianand Mosaic law had the sale-marriage and, corresponding to it, the formal and bindingbetrothal-Babylonian law with the earnest money and its consequences for a breachof contract. As in Germanic law, the early English betrothal was a formal contract.If the bridegroom refused to perform it, he lost the bride-price; if the bride refused, shehad to pay back the price augmented by one-third. And even to-day by a breach of promisethe other party is entitled to claim not only actual, but also exemplary, or vindictive,damages, so that the defendant is punished for his injury. Roman law early overcame theprimitive conception of marriage as a sale. In consequence of this, not only marriage wasfree and informal, but also engagement. In the East the old principle survived. It returnedto Rome when the classical period ended. In the Byzantine epoch conceptions long since


6/6

64 THE UNIQUE CHARACTER OF CLASSICAL ROMAN LAWabandoned penetrated Roman law again. They were primitive, and, as such, common toarchaic Roman law, to all other laws, and to Byzantine Roman law.Everything in such a survey is hypothetical. But I hope to have shown that the resultsof modern investigations require a revision of our picture of Roman law. General observa-tions about procedure and jurisprudence and the special examples given-ownership,consensual contracts, betrothal-demonstrate that for a comparison of Roman law withother laws it is indispensable to distinguish between classical law on the one hand andarchaic and Byzantine law on the other. Only so can the unique character of Romanclassical law be displayed. This character consists mainly in the application of scientificthinking to legal life. Superiority of jurisprudence does not mean in itself realisation ofjustice. Therefore our comparison in no way intimates that less scientific laws are inferiorin this respect.Not only is the character of classical Roman law unique: its history is too. Createdin the period from 150 B.C. to A.D. 300 it was revived after an interval of about 300 yearsby Justinian. But after him the Byzantine Empire shrank, and law declined in its nowlimited province. For five centuries the treasure lay hidden in Justinian s Digest. It wasonly when, about 1050, an old manuscript of the Digest was discovered and interpreted inItaly that classical law awakened and began to speak again. And this voict was heard allover Europe. No learned tradition connected this new study with its predecessor. Thistime the classical law was reborn, not by the order of an absolute emperor, but from theparchment of a single manuscript. It seems as though some secret power had enabled itto survive. This unique history is only to be explained by the unique character of classicalRoman law.

Carácter único de la Ley Romana

Documents

Transcript of Carácter único de la Ley Romana