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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.

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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 will Claim guardianship over minor or insane clan member Romulus 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 Rome Later Rome organized into 30 curiae consisting of 10 gentes each Curiae became an association performing religious functions and voting units in oldest form of legislative assembly King (rex) existed as chief priest, general, and protector of domestic priests Aeneid 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 document Complex of ancient principles and developing practices, supported by some specific enactments House of Venus, painting in house in Pompeii. Univ. of Colorado,

5 Roman Republic to 27 BC Rome never a democracy in the Greek or modern sense Transition from monarchy to republic meant passing power of king to annually elected officials, Senate Initially patrician gentes Later plebeians were included Forum of Pompeii seen through the Samnite portico with Mt. Vesuvius in the distance. Univ. of Colorado,

6 Roman Republic to 27 BC First Codification: Law of Twelve Tablets BC constituted the Jus civile Based on customary laws of an agrarian society Drafted by committee and accepted by popular assembly Established equal law for patricians and plebeians Applied only to Roman citizens, i.e. residents of the City of Rome

7 Roman Republic to 27 BC Only 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 it Original Roman concept of citizenship included All males above 15 years, and those Accepted into one of the three original tribes of Rome by birth, adoption, emancipation, or governmental grant. citizen, matron, curule magistrate, emperor, general, workman, slave

8 Roman Republic - 509 to 27 BC Grades of citizenship
Full citizens enjoyed rights of voting (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 of marriage and contract, but not voting or office Freedmen had rights of voting and contract, but not marriage or office. Neck-amphora (jar) with lid, ca B.C.; Archaic; black-figure. Metropolitan Museum of Art.

9 Transition from Republic to Empire

10 Roman Empire - 27 BC to AD 476 Geographical expansion required new legal forms New law based on edicts of magistrates (“praetor”) based on individuals cases (367 BC to AD 137) Jus gentium 100 BC to 212 AD citizenship extended to all free inhabitants of empire Jus gentium became law of all of empire Plaque with the return of Odysseus, ca. 460–450 B.C. Metropolitan Museum of Art.

11 Agustus Legal decisions move further away from direct control of Emperor Granted right to jurists to deliver opinions (responsa) on legal cases Agustus - (27 BC - 14 AD) emperors.html

12 Justinian Code Emperor Justinian (AD ) ordered codification of the law Tribonian headed team that wrote Corpus Jurus Civilis [Body of Civil Law] Codex Justinianus compiled All 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, because Sometimes 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 schools Novels - collection of other laws in Greek

15 The Institutes Book I - Of Persons Book II - Of Things
Book III - Intestate succession Book 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, or Not patrimony

17 Res Nullius Physical things which "have not or have never had" an owner. Wild animals, Fishes, Wild fowl, Jewels disinterred for the first time Movables that were abandoned Property of an enemy Lands newly discovered never before cultivated deserted

18 “Possession is 9/10th of the law”
Roman maxim First possessor of a thing becomes the owner by right of occupancy Occupancy Individual takes physical possession of something res nullius With intent of acquiring for himself In 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 state Common to all "public domain" in the community at large available for use (usufruct) by any member of the community Resources generally incapable of private appropriation by their dynamic nature or definition free flowing water, air, and light

21 Common Property ”Res communes” ("public place" or "commons”)
Positively designated by the community as a place common to all Formal dedication, or Longstanding common use Civil 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,but Subject to regulation of use

22 Ownership Status Acknowledges right to use or exercise control over an object or thing. Owner (proprietor or domini) Individual who holds such rights Ownership 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 dictator Property rights were subordinate to needs of state Otherwise, absolute right to use private property was vested in the patriarch Subject to dominium eminens (eminent domain or ultimate right of state/community use) Conditional upon genuine public necessity and payment of compensation to the domini.)

24 Servitutes Property held in dominium could also be burdened with servitudes Rights of way, Right to draw water Dig 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 ownership Used 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 Right Usufructuary 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”
Possessio intermediate or potential ownership associated with the right to use property Ownership status stemmed from Imperfect transfer (legal conveyance) of ownership, or Tenantry on the ager publicus (public lands) as "possessore" (possessor) but not domini (owner.) Generally, this prescriptive right became dominium through usucapion Could no longer be questioned after two years of unchallenged occupancy

31 Roman “Statute of Frauds”
Documentation of transfers of title to property English law requires recording of document in public records Roman law required a formal ceremony Ancient 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 mancipation Formal 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; and Physical 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 burden Under Roman law, the list of Res Mancipi was irrevocably closed. In English law, the distinction was carried forward with the identity of res mancipi as "immovables" governed by the laws of "realty”, and res 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 system Rented 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 warfare Kept many Roman farmers in the army for years Soldiers 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, latifundia Owned by absentee patrician owners and Worked by the slaves that the victorious Roman legions sent home

37 Mandatory Agricultural Investment
Emperor Trajan set up a scheme to promote agriculture in Italy Senators required to invest a third of their capital in Italian land Trajan’s Column portraying his exploits. © Art Resource

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 compete Many 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, and Cessation of influx of slaves through conquest Shortage of slaves resulted Cost of slaves rose Large landlords lured free labor back to the land by Dividing holdings into units leased to cultivators, "coloni" Italian landscape of small farms.

40 Labor Shortage Landowners required a
small money-rent, or one tenth of the produce and a period of unpaid labor in the owner's villa By the third century, these villas had become fortified castles that enclosed the villages of the coloni Geography and economy lead to creation of city-states.

41 Rise of “Feudalism” Coloni found it difficult to pay rent and other taxes Turned land over to a large landowner who could protect them Became tenants on same land Lost 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 century Visogoths movements, Source:

43 The Visigothic Code (Forum judicum)
Book IV: Concerning Natural Lineage Law 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 Contract Title II: Concerning the Limitations of Fifty and Thirty Years Title III: Concerning Boundaries and Landmarks

45 Post-Roman Civil Laws of “Spain”
The Fuero Juzgo, 694 A.D. The Fuero Real, published in1255 Las Siete Partidas, begun in1251 and completed in 1265 Leyes de Estilo, compiled between 1295 and 1312 Ordenamiento de Alcalá, 'promulgated in 1348 The Fuero Viejo de Castilla, promulgated in 1365 Leyes de Toro, 1505 Nueva 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 Partidas King 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 Partidas Based on Roman and Justinian law, Alfonso's Fuero Real, and ideas of Aristotle, Seneca and Isidore Basis of law throughout Spain and Spanish Empire Cited in U.S. in Louisiana and southwest in Spanish Land Grant cases Alfonso el Sabio (Alfonso the Wise) became king of Castile and León in 1252, htm

48 The 7 Books of Law Canonical 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 Law Wills, inheritance, guardianship of orphans and minors Criminal Law: crimes, calumny, penalties, punishments, indemnities. Laws governing Jews, Moors and heretics.

50 Origin of Term “Cadastres”
Capitastrum was register of land values Used to set property tax, capitatio terreno In Byzantine empire this tax was called katastikon Venetian Republic used this tax system re-Italianised the name as catastico Land tax was major revenue source in pre-industrialized economies Cadastre system were very detailed

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