Presentation on theme: "ROMAN LAW “We are therefore entitled to call Roman law one of the strongest formative forces in the development of Western civilization.” (p. 4) Hans Julius."— Presentation transcript:
1 ROMAN LAW“We are therefore entitled to call Roman law one of the strongest formative forces in the development of Western civilization.” (p. 4)Hans Julius Wolff Roman Law: An Historical Introduction. Univ. of Oklahoma Press, Norman, OK.
2 Primitive Rome Population organized as gentes from gens (clans) Clan members had right to seize property of deceased member leaving no willClaim guardianship over minor or insane clan memberRomulus and Remus with their wolf foster- mother, bronze sculpture, c. 500–480 BC. In the Capitoline Museums, Rome, Italy. Height cm.Canali Photo Bank, Milan/SuperStock
3 Primitive RomeLater Rome organized into 30 curiae consisting of 10 gentes eachCuriae became an association performing religious functions and voting units in oldest form of legislative assemblyKing (rex) existed as chief priest, general, and protector of domestic priestsAeneid travels up the Tiber River to the site of the future center of civilization,
4 Roman Republic - 509 to 27 BC Roman Constitution Not a written documentComplex of ancient principles and developing practices, supported by some specific enactmentsHouse of Venus, painting in house in Pompeii. Univ. of Colorado,
5 Roman Republic to 27 BCRome never a democracy in the Greek or modern senseTransition from monarchy to republic meant passing power of king to annually elected officials,SenateInitially patrician gentesLater plebeians were includedForum of Pompeii seen through the Samnite portico with Mt. Vesuvius in the distance. Univ. of Colorado,
6 Roman Republic to 27 BCFirst Codification: Law of Twelve Tablets BCconstituted the Jus civileBased on customary laws of an agrarian societyDrafted by committee and accepted by popular assemblyEstablished equal law for patricians and plebeiansApplied only to Roman citizens, i.e. residents of the City of Rome
7 Roman Republic to 27 BCOnly the Roman citizen had right to contract for the conveyance necessary to transfer property“Property” refers to the object and the exclusive right to use itOriginal Roman concept of citizenship includedAll males above 15 years, and thoseAccepted into one of the three original tribes of Rome bybirth,adoption,emancipation, orgovernmental grant.citizen, matron, curule magistrate, emperor, general, workman, slave
8 Roman Republic - 509 to 27 BC Grades of citizenship Full citizens enjoyed rights ofvoting (ius suffragii)holding office (ius honorum)marriage with a freeborn person (ius connubii)engaging in commercial contract protected by Roman law (ius commercii)Citizens without sufferage had rights ofmarriage and contract, but notvoting or officeFreedmen had rights ofvoting and contract, but notmarriage or office.Neck-amphora (jar) with lid, ca B.C.; Archaic; black-figure. Metropolitan Museum of Art.
10 Roman Empire - 27 BC to AD 476Geographical expansion required new legal formsNew law based on edicts of magistrates (“praetor”) based on individuals cases (367 BC to AD 137)Jus gentium100 BC to 212 AD citizenship extended to all free inhabitants of empireJus gentium became law of all of empirePlaque with the return of Odysseus, ca. 460–450 B.C. Metropolitan Museum of Art.
11 AgustusLegal decisions move further away from direct control of EmperorGranted right to jurists to deliver opinions (responsa) on legal casesAgustus - (27 BC - 14 AD) emperors.html
12 Justinian CodeEmperor Justinian (AD ) ordered codification of the lawTribonian headed team that wrote Corpus Jurus Civilis [Body of Civil Law]Codex Justinianus compiledAll existing imperial constitutiones from the time of Hadrian.Used existing collections, Codex Theodosianus and private ones
13 Justinian Code Issued in three parts, Digest, or Pandects issued in 533,Compiled the writings of the great Roman jurists and current edicts.Constituted both the current law of the time, and a turning point in Roman Law, becauseSometimes contradictory case law of the past was subsumed into an ordered legal system.
14 Justinian Code Issued in three parts, Institutes was intended as legal textbook for law schoolsNovels - collection of other laws in Greek
15 The Institutes Book I - Of Persons Book II - Of Things Book III - Intestate successionBook IV - Obligations Arising from Delicta (from theft, robbery, damage, or injury)
16 Book II - Of Things All things are either Patrimony, i.e. derived from one’s father or ancestor, orNot patrimony
17 Res NulliusPhysical things which "have not or have never had" an owner.Wild animals,Fishes,Wild fowl,Jewels disinterred for the first timeMovables that were abandonedProperty of an enemyLandsnewly discoverednever before cultivateddeserted
18 “Possession is 9/10th of the law” Roman maximFirst possessor of a thing becomes the owner by right of occupancyOccupancyIndividual takes physical possession of something res nulliusWith intent of acquiring for himselfIn certain cases intention had to be manifested by specific acts constituting "appropriation" to be recognized in law
19 “Possession is 9/10th of the law” Universally believed by the Romans that occupancy was the natural process or "mode of acquisition" by which the commonly-held earth and its fruits became the recognized property of individuals.Doctrine carried forward into English and American law
20 Common Property ”Res communes" res nullius in a wild and unappropriated stateCommon to all"public domain" in the community at largeavailable for use (usufruct) by any member of the communityResources generally incapable of private appropriation by their dynamic nature or definitionfree flowing water, air, and light
21 Common Property ”Res communes” ("public place" or "commons”) Positively designated by the community as a place common to allFormal dedication, orLongstanding common useCivil state of common ownership,Governed by public law (jus publicum or de communi jure)Reserved from appropriation by any individual.Naked title generally held in "public trust,"Inalienable by the sovereign or chartered municipality,butSubject to regulation of use
22 Ownership StatusAcknowledges right to use or exercise control over an object or thing.Owner (proprietor or domini)Individual who holds such rightsOwnership relationship is often referred to as an "exclusive right of use," domain or dominion.Right is exclusive and controlling, insofar as it excludes non-owners from decisions regarding private property and the legitimate use or disposal of property without the express or tacit approval of the owner.
23 Absolute right to private property In times of war Rome was placed under the martial law of a dictatorProperty rights were subordinate to needs of stateOtherwise, absolute right to use private property was vested in the patriarchSubject to dominium eminens (eminent domain or ultimate right of state/community use)Conditional upongenuine public necessity andpayment of compensation to the domini.)
24 ServitutesProperty held in dominium could also be burdened with servitudesRights of way,Right to draw waterDig sand or lime
25 Dominium Four fundamental types of dominium in land and resources: directum dominium;nudum dominium;usufructory dominium;dominium utile
26 Landlord’s Title Directum dominium Qualified ownership of a landlord, Not having possession or use of property but retaining ownershipUsed in feudal land systems to describe the King's ownership of all the land, even though most of it was lent out to lords for their exclusive use and enjoyment
27 Naked Title Nudum dominium Property ownership of title alone Someone else has dominium over all the practical rights enabling them to hold and make use of the thing
28 Usafruct RightUsufructuary dominium (usucapio "taking by use") is property ownership of the right to reasonable use of a thing, without owning the thing itself.Such ownership may occur when the thing is incapable of being reduced to possession by nature.Right to use water in a running stream
29 Usafruct Right Dominium utile landlord (lessor) and tenant (lessee) relationship under a contract (lease)
30 Non-dominium “ownership” Possessiointermediate or potential ownership associated with the right to use propertyOwnership status stemmed fromImperfect transfer (legal conveyance) of ownership, orTenantry on the ager publicus (public lands) as "possessore" (possessor) but not domini (owner.)Generally, this prescriptive right became dominium through usucapionCould no longer be questioned after two years of unchallenged occupancy
31 Roman “Statute of Frauds” Documentation of transfers of title to propertyEnglish law requires recording of document in public recordsRoman law required a formal ceremonyAncient Roman law classified physical property as,Res Mancipi" - things that required a mancipation"; and"Res Nec Mancipi" - things that did not require a mancipation.Title to things not requiring mancipation was presumed to have passed with corporeal delivery
32 Roman “Statute of Frauds” Mancipium or mancipationFormal public ceremony required for recognition of conveyance in "title" of legal ownership to a thing,The transferee grasped the object being transferred and said, “I assert that this thing is mine by Quiritarian [Roman] law; and be it bought to me with this piece of copper and these copper scales.” He then struck the scales with the ingot, which he handed to the transferor “by way of price.”Without this ancient ritual, no exchange had the sanction or protection of the law.Res Mancipi recognized two elements in conveyance of ownership:Consent or intent to transfer ownership title to the thing; andPhysical delivery of the thing into the new owner's possession.
33 Roman “Statute of Frauds” Res Mancipi encompassed property most valuable to agriculture -land, houses, slaves and four footed beasts of burdenUnder Roman law, the list of Res Mancipi was irrevocably closed.In English law, the distinction was carried forward with the identity ofres mancipi as "immovables" governed by the laws of "realty”, andres nec mancipi as "movables," chattels or goods, governed by the laws of "personalty”
34 Provincial Lands Belonged either to State as ager publicus or,Municipalities as ager vectigalis.Lands divided and surveyed on a grid systemRented for a very long period of time or in perpetuity, conditional on rent payment.Tenantry rights on marginal lands were bought, sold and inheritable
35 Roman (“Italy”) Land Use Rome was based on the idea of the citizen-farmer, who was expected to serve in the military.Estates larger than could be farmed by a pater familias, with his household of sons and slaves, first occured with holdings of patricians or censors.Lucius Quinctius Cincinnatus Mythical hero who left the plow, left the farm to go to the aid of his country in time of war and became a great general and was victorious, and then renounced his power and returned to the farm.
36 Development of Latifundia Continual Roman warfareKept many Roman farmers in the army for yearsSoldiers farms were ruined and taxes consumed the little profit made.Irrigation and drainage canals fell into disrepair, marshes spread.Small farms became absorbed by larger agricultural estates, latifundiaOwned by absentee patrician owners andWorked by the slaves that the victorious Roman legions sent home
38 Small Farmer Forced Out Emperor Trajan’s policy encouraged the "latifundia".Slave labor and imports from Sicily, Africa and Egypt cheapened grain so that free farmers could not competeMany peasant proprietors and free rural workers abandoned farms for the cities, leaving Italian agriculture to the latifundia and slaves.Homestead in central Sicily
39 Labor Shortage Latifundia eventually ruined by Pax Romana, andCessation of influx of slaves through conquestShortage of slaves resultedCost of slaves roseLarge landlords lured free labor back to the land byDividing holdings into units leased to cultivators, "coloni"Italian landscape of small farms.
40 Labor Shortage Landowners required a small money-rent, orone tenth of the produce and a period of unpaid labor in the owner's villaBy the third century, these villas had become fortified castles that enclosed the villages of the coloniGeography and economy lead to creation of city-states.
41 Rise of “Feudalism”Coloni found it difficult to pay rent and other taxesTurned land over to a large landowner who could protect themBecame tenants on same landLost personal freedoms
42 Law in Provinces and Post-Roman Empire Theodosian Code (438)Code of Euric (475)Lex Romana Visigothorum, or Breviary of Alaric (506)The Visigothic Code, Forum judicum (653)Main source for Christians until 13th centuryVisogoths movements, Source:
43 The Visigothic Code (Forum judicum) Book IV: Concerning Natural LineageLaw I. Brothers and sisters shall share equally in the inheritance of their parents
44 Book X: Concerning Partition, Limitation, and Boundaries Title I: Concerning Partition, and Lands Conveyed by ContractTitle II: Concerning the Limitations of Fifty and Thirty YearsTitle III: Concerning Boundaries and Landmarks
45 Post-Roman Civil Laws of “Spain” The Fuero Juzgo, 694 A.D.The Fuero Real, published in1255Las Siete Partidas, begun in1251 and completed in 1265Leyes de Estilo, compiled between 1295 and 1312Ordenamiento de Alcalá, 'promulgated in 1348The Fuero Viejo de Castilla, promulgated in 1365Leyes de Toro, 1505Nueva Recopilación, published in ten separate editions between and 1777;Recopilación de Leyes de Los Reinos de Indias, promulgated in ;Novísima Recopilación, 1805.
46 Las Siete PartidasKing Alfonso commissioned a group of jurists to effect the legislative reform envisioned by his father, Fernando III.Replace the bastardized Visigothic Forum Judicum (the Fuero Juzgo, in Asturias & León) as well as the diverse, conflicting, and confusing legislative maze of local Fueros and unwritten customs (in Castile).Las siete Partidas, de Alfonso X el Sabio. Este ejemplar, de la edición de Gregorio López en , perteneció a la Academia de Santa Bárbara; en la actualidad se custodia en la Biblioteca de la Academia de Jurisprudencia y Legislación.
47 Las Siete PartidasBased on Roman and Justinian law, Alfonso's Fuero Real, and ideas of Aristotle, Seneca and IsidoreBasis of law throughout Spain and Spanish EmpireCited in U.S. in Louisiana and southwest in Spanish Land Grant casesAlfonso el Sabio (Alfonso the Wise) became king of Castile and León in 1252, htm
48 The 7 Books of LawCanonical code and who has power to make laws and why, who has power to amend laws, etc.Emperors, kings & other lords, the prerogatives, rights & duties of those who govern.Justice and its administration.Matrimony, kinship, position of legitimate and illegitimate children, adoption, paternal rights, slavery and freedom, lordship,Commercial law, governing loans, debts, contracts, purchases, exchanges, fairs, markets, merchant marine, and all other forms of commerce and dealings among men.
49 The 7 Books of LawWills, inheritance, guardianship of orphans and minorsCriminal Law: crimes, calumny, penalties, punishments, indemnities. Laws governing Jews, Moors and heretics.
50 Origin of Term “Cadastres” Capitastrum was register of land valuesUsed to set property tax, capitatio terrenoIn Byzantine empire this tax was called katastikonVenetian Republic used this tax systemre-Italianised the name as catasticoLand tax was major revenue source in pre-industrialized economiesCadastre system were very detailed
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