Roman private law

I Capitole
Notion of roman law, delimitation of roman public
law from roman private law, general characteristics
of private law and its meaning for contemporan
jurist.
Roman Law- system of law of Roman Republic ,Roman Empire
and Western Roman Empire. Roman law rules settled legal
condition of person, personal patrimonial relationships. Law in
objective sense is a set of legal norms created or prosecuted by
competive state organs for setteling social relationship between
members of society that form this state.

Ubi societas,ubi ius-society requires the existence of

law

Note that ancient romans didnt have a clear distinction about

what means law, and always make confusion between legal
norms and social behaviour settled by religion.

Ins est ars boni et aequi- law is the art of good and
equity

ULPIANUS: Iuris praecepta sunt haec: honestive vivere, alterum

non laedere, suum quigue tribuire-the principles of law are:live
honorably, dont injure,give everyone what belongs to them

The same principles can find in Justinians institutes with a

remarkable codification (528-534).

From the exposed, can make conclusion that ancient romans

watch like a totality behavior religious norms (fas), moral-ethic
behavior norms (mores) and law norms (civitas).

Can affirm that history of roman law was characterized by the

legal norms that were fin a lot of time after pontiffs.By their
activity ,pontiffs wanted to implementate in social conscience this
concept.

Moral norms (mores) and legal norms (ius) in their essence are
social behavior norms. Both have the same source of their
content-real economical- social ,political and cultural conditions of
society at each historical step of its development. They also have
the same intention: Instauration in this human community of
public order, that will contribute to the prosperity of this society
and ensure good condition for living for each member.

Contemporane philosophy and theory of law distinguish clear the

essence,realization contiditious and social norm of their norm
chategories.They have an obligatory general character and equal
for al society members.At the base of respecting these legal
norms stays state power.

To watch the failure of legal norms stays the coercive authority of

the state empowered with the right to apply sanctiones of legal
norm on each person that infringe that.

Roman Law-represents a set of legal norms that has the

mission to settle the social relationship between members of
roman society called (civitas romana). This set of norms was
exprimated by word (ius civile).

Ius Civile-the totality of legal norms that existed in objective

law of the ancient Rome as a state and has the mission to settle
the social relationships between people with statute of citizen of
this state.

Note that in roman state there were another category of people

that dont have statute of citizen of Rome.(set of legal norms with
private character). Most important was that they were applied
exclusively for setteling the relationship between Romes citizens.

Differences between Roman Public Law and Roman

Private Law
Was made for the first time in the roman law history by ULPIANUS
Huius studii duae sunt positiones : publicum et privatum.Publicum
iusneste quod ad statum rei Romanae spectat, privatorum ad
singulorum utilitatem-science of law is devided into 2 parts: public
and private. Public law looks the organization of roman state while
private law watch only each persons interests.

Law norms form public law determines the type of government

in state, the system of legislative and executive state organs,
their competence but settles the relationship between this state
organs and their citizens. In public law prevail norms with
imperative character,that means that it follows to be executed
like they were write and cant be modify by participants at social
relationship.The imperative character are meeting not so often as
the dispositive ones.

POMPONIUS: ius publicum privatorum pactis mutari non potest-

public law norms cant be modify by conventions between private
persons.

Norms of private law settled the social relationship between

private persons that in virtute of their juridical situation are build
horizontal. In private law prevail law norms with dispositive
character that determine the way of behavior, but offer to
participants at social relationship that is settled the possibility to
choose the variant is best for them. dispositive character consist
in: the law provides in whose possesion can go defuncts fortune
in case of death, but every citizen has the right to draw a will in
which to describe his own wish for whom this patrimony will be
after his death. The most important s that the chosen variant of
parts should not contravene to public discipline, laws, and good
manners of our ancestors.

So (ius civile) is the oldest system of law of slave-owning type of

ancient Rome. It is characterized by an acute individualism, a
strict, national, closed character burdened with a rigid formalism
and stabile conservatism.

(Ius Civile) of ancient Rome was developed, diversified and

perfected in subsequent periods of state history and roman law
after territorial extension of Roman Empire by conquering other
peoples and the assimilation of their system of law by the activity
of legislative, executive and judicial organs special in classic and
post-classic period of development of roman private law.

The significance of studying RPL is that this system of law

belonged and was developed in Roman Empire which palyed an
important role in human history , but in system of private law has
the happy destiny to survive in the state and society to be
imposed to next generetions like a treasure of wisdom.

GAIUS: omnis ius quo utimur vel ad personas pertinent vel ad res
ad actions-the whole law that we use refers or to persons or to
goods or to actions.

Its true thatin private roman law is established with accuracy

legal status of Rome citizen and conditions for obtaining and loss
this citizenship. In more details is determined the juridical
situation of law subject (persona).

About goods (res) then the goods classifications in roman law

stays at the base of classifying goods in civil contemporane law.
No less important is ancient romans contribution in the juridical
institutions of contracts. The definition of contracts , their
classification stays at the base of juridical institutions similar to
contemporane.

For the first time was defined and introduced in roman

jurisprudence the concept of good faith (bonae fides) and
determined its juridical effects that in principle is used today in
settling the civil law. Also ancient romans defined the principle of
equity (equitas), that determined the concept and the juridical
essence and was used for solution of civil litigation. Also the name
of science of civil law came from (ius civile) and its called
Civilistics.

In conclusion we want to point out that without studying Roman

Private Law we wont know the genesis of our juridical thinkind
and the terminology of juridical contemporane language.
The periodization of the process of development of
private roman law.
The oldest period of historical appearance and development of
private roman law is archaic period that is stretched from the
date of Rome foundation (a. 753 i.e.n.) till the final of regality (a.
509 i.e.n.). This period is characterized by first evolution of
concept of perception the world. At the beginning of this period,
the individs life and its vital interests were percepted only by
collective life of family. Human was percepted itself as a part of
this collectivity. Human didnt imagine another form of existence
and of satisfaction of his primordial necessities. However at the
base of of social system remains numerous family submissive in
everything to (pater familias). More families formed a tribe,more
tribes formed a gen. The form of governance in Rome in sec. VI
i.e.n. was a military democracy.

In Rome besides its citizens with full rights, lived other social
categories of people, but unequals by their patrimonial censors,
the most numerous were plebeians. They have the statute of free
people, lords diverse material goods, some of them were rich and
participate active in economical life, pay taxes, but they didnt
have political rights: cant participate at leadership of state and at
sharing the conquered ground.

In this period predominate behavior social norms of customary

origin (mores major), this being high in rank of legal norms by
king that stays in the front of roman community. The king adopted
proper laws. The judiciar activity was also executed by king.

The formation of roman state is related with reforms of KING

Servilus Tulius (578-535 i. e. n.) that make the base of new social
system: A)social devision of citizens by patrimonial censors.

B)roman citizens division on territorial regions.

The second period begins after chasing away of kings in (a. 509 i.
e. n.), the form of governance became Republic (Respublica). By
its essence , this was an aristocratic republic because only the
representants of aristocracy could be choosen in the leadership
organs of Rome.With the constitution of republic in Rome is
createdcivil society of Rome, but system of legal norms which
settled secial relationships between citizens of Rome obtain the
name of (ius civile).

Simultaneous appeared the idea of sovereignty of Roman people.

In the head of the state were chosen two superior magistrates,

called consuls, that hold the military and judicial power. The
legislative power retain of the competent of assembly of people,
but other legislative functions belonged to Senate too. Senate
(auctarias patrum) was composed of Romes aristocracy.

Only senators (patres) and their descendents- patriciate (patricii),

were elected in the superior functions of leadership of the state.
The representants of other social classes didnt have the right to
be choosen at this functions.

At the beginning of V century i. e. n. , in Rome were held 2

principle social classes: patriciate (patricii) and plebeians
(plebes). The beat for social-economical and political equality
between patriciate and plebeians determine the content of
historical development of the state and law in the next centuries,
inclusive till the beginning of III century, when by the leader
Caracallas decree from a.212 e.n : all free people from the
Roman Empire obtain roman citizenship.

One of the most semificative succes of plebeians in this fight was

the instauration of one tribun of people gifted with some
attributes for participation at the activity of legislative, executive
and judicial organs, representing and protecting the rights and
interests of plebeians. The biggest success of plebeians in this
fight was the addoptation in 449 i. e. n. of an legislative
codificated act named THE LAW OF XII TABLES (Leges duodecium
tabularum). This consist of first codificated act in the history of
roman law and state, that later was named source of whole public
and private law.

XII Table Law didnt have an innovator character ,but rather

represented a systematization of customary norms and laws in
force that were systematized and publicated in plebeians
insistence, for being known by people and to be excluded their
interpretation, from case to case by patriciate and pontiffs, that
took in secret legislative norms.

About pontiffs, they save in secret a lot of time law norms and
action formules of which roman people should be lead in the
process of defence of their rights, affirmed that this norms and
formulars have a divine nature and only they, pontiffs, can
understand their content and can carify them to other people.

After POMPONIUS says: pontiffs monopoly on law was undermined

by Gneius Flavius usurped the book with actions formulas and
aknowledged all the people and spark the pontiffs and aristocrats
outrage ,but aquire a lot of gratitude and respect from the masses
parts of people. After this, Flavius made a good career, by being
elected as a tribune of the plebs.

The full text of XII Tables Law didnt reserved, and the history of
law knows only some fragments. But in the known fragments can
understand that this law social patrimonial and familiar
relationship, and some norms with punish character for
commiting any crimes.

A specific particularity of XII Table Law consist in rigid formalism

of its regulations.

In fact XII Tables Law consist the foundation of civil roman law,
like law for roman civility (ius civile), law of Romes citizens
community (civitas romana). In this mode (ius civile) is
established like a justice norm system with original, national
character belonging only to Rome and opposed to other
communities and states.

Republic period was characterized by a fast development of the

state and roman law. In this period , roman state expanded its
territory by many conquests, becoming the main economical and
military force in the Mediterane Sea.

This remarkable success is due to good organization of economy,

political power, military and administration in state, which
translate in life was made by magistrate elected by people for 1
year (magistratus populi). In administrative structure of the state
of Rome were more categories of magistrates. Their division was
made by their main attributions: (imperium) and (potestas).
(Imperium) means the right of magistrate to summon army,
national meeting and the right to administrate justice. From
magistrates category takes part consuls, dictators and praetors.
(Potestas) means the right to administrate any commercial and
social-political activities in state. This right has only censors,
mayors, questors and plebeian tribunes.

Praetors like other magistrates gifted with (imperium), were

elected by people for 1 year on alternative base and by secret
vote. Every pretender in praetor function in the pre-election
campaign should have present in writing on white wood (in albo
propunere) his edict project, which contains only justice solutions
and which in the case of being elected, became obligatory to be
respected on all territory . Thats why this praetorian edicts were
called by contemporans (lex anua). Annual laws.
According to their attributions, praetor didnt have the right to
cancel, modify, or create new laws. This is expressed by formula
(praetor ius facere non potest). By the affirmation of roman jurist
Emilius, the praetors in relation with ius civile norms in force were
invested with only three attributes:

A)to contribute at roman civil norms

applications(iuris civilis adiuvandi gratia)

B)to complete the gaps of civil law (iuris civilis

supplendi gratia)

C)to correct the norms of civil law (iuris civilis

corrigendi gratia)

Slowly disappear rigid juridical formalism and symbolism of old

(ius civile), its simplifying and gets an more dynamic character, at
which base is put the freely expressed wish (voluntas) of subjects,
appears the concept of good-belief (bona fides), of equity
(equitas) which is put on the base of diverse praetorian actions
for the defending people that auctioned with good belief and in an
equity mode. A good example is (action in rem Publiciana) from
the right of property.

By summing norms from praetorian edicts appears praetorian

law (ius praetorium) like component a part of roman private law.

Marcianus : viva vox iuris civile praetorian law is living voice

of civil law

Praetorian law (ius praetorium) was also called (honorarium)

because for roman magistracy and in general the function of
praetor were called (honores), this being honored and unpaid.

The development of private roman law was possible because of :

A)new social-economic needed dictated by institution

consolidation law of private property, which has been traling the
intensification of relationship of exchange in society.
 B)(imperium) with which were empowered praetors and that
assure them unlimited freedom in case of exertion their function
in period of republic and classic one.

C)functions base specific was to lead with civil jurisdiction, that

needed a high level of juridical professionalism .

D)democratical principles that stayed at the base of

examination and solution of civil litigation.

In the progress of science contributed some independent jurists

called(prudentes)

Some of them are Ateius Capion and Antistius Labeon. Political

antagonism and the vision of these two jurists remain a lot of time
in the memory of next generation, but name of these two were
related by foundation of two new philosophical and legal schools
sabinian and proculian schools.

Sabinian school was founded by the disciple Capiton, called

Sabina, but proculian school- by disciple Labeon, called Procul,
from where the names of schools.

This two legal schools where not only educational institution on

that time, but philosophical- juridical schools, that puts on base
thinking and perception juridical phenomena, gracefull to the fact
that they understood and interpreted this legal phenomena in
different mode.