Summary of LEARNING UNIT 3

The Western component: Roman legal history

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until the 11th century

Students please work through Tutorial letter 501. Everything in the TL501 is important and must be studied well.
Please complete all the activities in Learning Unit 3 and evaluate your answers by comparing them with the
feedbacks. This summary may be used as a study aid only.

Quote from TL501

“LEARNING OUTCOMES
After studying this learning unit, you should be able to
• describe the importance of Roman law for South African jurists today
• explain the importance of ancient Greek philosophical thought in the Western
legal tradition
• discuss how Roman law developed during the four political eras of the Roman
Empire
• explain the importance of the Corpus Iuris Civilis for modern jurists”

Students please study the graphic representation of the Western component on

page 19 of TL 501.
You will see that the Western Component consists of Roman-Dutch law and
English law. Roman-Dutch law consists of Roman law (which we study in this
Learning Unit), Canon law and Germanic (Dutch) customary law.

THE IMPORTANCE OF ROMAN LAW FOR SOUTH

AFRICAN JURISTS
South African Courts still recognize Roman Law is an important
part of South African common law even though it no longer
applies as an independent legal system anywhere in the world.

South African judges still rely on substantive Roman law.

(Students please study the reference to Hendricks v Hendricks and others on
pages 19 and 20 of TL 501.

Roman Law is not the only determining factor in legal development in South
Africa.
The South African courts do not as a matter of course
follow Roman or Roman-Dutch law. They are prepared to
adapt the law to suit the needs of society and in order to

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comply with the Constitution in terms of section 39(2) of
the Constitution.

The legal systems of many European countries (e.g

Germany, France, the Netherlands, Italy and Spain) are
based on Roman law even though their legal systems are
now codified. (civil law systems)

South Africa has a mixed or hybrid legal system (like

Scotland, Sri Lanka and Zimbabwe) which shows a mixture of
Roman law and English or common-law influences.

This common historical background makes it possible for South African

lawyers to draw on the wisdom and experience of other lawyers who practise
systems of law that are also rooted in Roman law.

If for instance a South African lawyer has a legal problem that is rooted in Roman
law he or she will be able to work with other lawyers whose legal systems are also
rooted in Roman law (civil systems) and will be able to take note of how they
solved similar problems. (comparative legal research).

“NOTE” ON ANCIENT GREEK PHILOSOPHICAL

THOUGHT - ATHENS
Critical legal thinking in the Western tradition originated in ancient Greek
thought.
Athens was the source of critical thinking about the ideals that inspire the
Western legal tradition. Greek thinkers like Socrates, Plato and Aristotle wrote
on the purpose of the law, the ideal society and the nature of justice.

The ideal of a scientific and rational legal systems still forms the cornerstone
of the Western legal tradition.

• The Roman political structures and the

periods in the development of Roman law
(PAGE 20 OF TL501)

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Law keeps changing as society’s needs change. In order to see the big picture as to the
reasons why law changed over the ages, we need to look at Roman society, politics and law
throughout our studies of Roman history.

DIFFERENT STAGES IN THE DEVELOPMENT OF ROMAN HISTORY

 753 BC founding of Rome to AD 535 codification of Roman law by Emperor

Justinian – more than a thousand years.

 AD 395 Roman Empire split into a Western Empire with Rome as its capital, and an Eastern Empire
with Byzantium (now Istanbul) as its capital.
AD 476 Western Roman Empire fell.

 AD 1453 (fifteenth century AD) Eastern Roman Empire ended. The Eastern
Roman Empire was dominated by Greek culture and the main language of the population
was Greek. The law of the Eastern Roman Empire was influenced by Greek culture
and there was no influence on the legal system of Western Europe after the reign of
Emperor Justinian. We therefore do not study the history of the Eastern Roman
Empire after AD 565.

Four different types of government in Rome in chronological order:

the Monarchy (753 BC–509 BC);
the Republic (509 BC–27 BC);
the Principate (27 BC–AD 284);
and the Dominate (AD 284–AD 476).

Four periods in the development of Roman law:

̵ The era of early Roman law (753 BC–250 BC)
̵ The pre-classical period (250 BC–27 BC)
̵ The classical period (27 BC–AD 284)
̵ The post-classical period (AD 284–AD 565)
Students please note that the government of the Roman Republic stretched over a long period.
During the first centuries of the Republic the law was primitive and in the later years it started
developing into a sophisticated system.

3.1 THE MONARCHY AND EARLY ROMAN LAW

(753 BC–509 BC)

THE MONARCHY (also known as the Period of the Kings) (753 BC–509 BC)
 The Roman king was an autocratic ruler Full power of governance was
vested in him. He was the supreme judge who made the law. He was high
priest who conducted religious ceremonies.. Law and religion were
intertwined. The rigid and formal ius civile was applied to Roman
citizens only.

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  Towards the end of the Monarchy there were two social classes – the
patricians and the plebeians.. This started a class struggle that went
on into the Republican period.
 Last King was expelled in 509 BC.
 Roman society expanded and a more sophisticated legal system began to
develop.

3.2 THE REPUBLIC (509 BC–27 BC): EARLY ROMAN LAW ( 509 BC -
250 BC) AND PRECLASSICAL ROMAN LAW (250 BC – 27 BC)

Important political Role players: Magistrates whowere two consuls, one praetor and two
aediles curules , the Senate and the Popular Assembly.

Social development:
Rome grew from a small community to an Empire.

Legal development:
Roman developed from a primitive legal system to a complex legal
system that was able to meet the needs of a highly developed
community with a complicated social system.

The most important factors that influenced legal development:

- The law of the Twelve Tables
- The activities of the praetor
- The work of the jurists

Twelve Tables - Promulgated in 450 BC and originated in the class struggle between the
patricians and plebeians. The plebians were unhappy because certain patricians had
knowledge of the law of the time and they did not. The law was written on twelve tables
and placed in the market place for all to see. Students please study the four reasons why the
Twelve Tables was important on page 22.

The praetor –office created in 367 BC - task was to administer justice, which he
performed by determining the civil procedure parties should follow in a lawsuit and
published this procedure in edicts which were placed in the market for all to see .

The Praetor urbanus could only administer justice between Roman citizens as the Roman
ius civile was only applied to them.

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Rome expanded and lots of foreigners immigrated to Rome.

In 242 BC the praetor peregrinus was appointed. He was responsible for the administration of
justice in matters involving foreigners. He developed the ius gentium which was

- a body of international legal rules that could be applied in cases between foreigners or
between foreigners and Roman citizens.

- The ius gentium was not as formal as the ius civile and had a more equitable
character than the ius civile.

The praetor urbanus later developed the ius honorarium, which was
- based on the ius civile but influenced by the fair principles of the ius gentium.

- It was applicable in disputes between Roman citizens.

- It was characterised by fairness, flexibility and lack of formalism and applied

alongside the ius civile. Eventually it replaced the ius civile.

In AD 212 the distinction between Roman citizens and foreigners was abolished by Emperor
Caracalla. There was therefore no longer any need to distinguish between the ius gentium and
the ius civile and the ius honorarium. A new legal system came about, which was based on the
ius gentium and the ius honorarium.

The Jurists –

They were laymen who studied law. During the latter part of the Republic they developed into a
separate group who gave free legal advice to the public.

(Students please note that they did not do their most important work during the Republic.)

3.3 THE PRINCIPATE AND CLASSICAL ROMAN LAW (27 BC – AD 284)

Rome governed by Emperor. Augustus was first Emperor, He was an

autocratic ruler in practice. In theory his position was approved by the Senate
and the Popular assembly.

Most important political roleplayers: Princeps, Popular Assembly,

Senate, Magistrates

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Rome’s power dominated the whole of the known world.

LEGAL DEVELOPMENT
The most important contributions to legal development during the Principate
were made by:

- Emperor
- Praetor
- Jurists

The princeps (emperor) – In theory the Roman Empire was

governed by the emperor and the Senate but in practise the Emperor had
sole power. The jurists were members of the emperor’s council. The jurists
had considerable influence over the administration of law and the emperor’s
legislative body generally. The emperor’s legislation was not of a high
standard.

The praetor – was elected by the Emperor and acted on his instructions.
In other words the Emperor took over the functions of the praetor. All
praetorian edicts were codified in the Edictum Perpetuum in AD130.
Praetor was bound by the codification and could not add to or alter it. The
praetor’s function ended.

The jurists – contributed greatly to legal

development during the principate. Their functions
included:

- Legal advice to the praetor, judges and citizens

- Teaching

- Assistance in legal transactions

- Assistance in court

- Interpretation of legal rules

- Writing.

Five great jurists – They were important:

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 1.because their work comprised two-thirds of
the jurists writing that were codified by
Emperor Justinian in the 6th century AD

2.In terms of the Statute of Citation of AD 426

they were the only jurists who could be
regarded as authoritative.

- Gaius – well known for his book “Institutes” – law

textbook for students.

- Papinian

- Ulpian

- Paul

- Modestinus

3.4 THE DOMINATE AND POST-CLASSICAL ROMAN LAW (AD 284–AD 476)
From AD 284 ( when Diocletian became emperor) the emperors were autocratic rulers. No
longer shared rule.

This era was characterized by the decline of classical Roman legal science. The reason for
this was:
1 jurists ceased to exist as an independent group. They were in imperial law office.
2 Senate now functioned only as an institution in which imperial law was announced.
3 Popular Assembly no longer existed.
4 Efforts were made to simplify the law – the influence of “vulgar law” came about.

Towards the end of the Dominate there was a renewed interest in classical Roman law,:

Important features of post-classical Roman law:

- Collections of imperial laws - These collections came about as a

result of it being necessary to collect and systematise the large number of
imperial laws of each successive emperor (which amounted to a

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contradictory mass of legislation) that became unmanageable. E.g the
Codex Theodosianus :

 It came into force in AD 438

 First official collection of imperial legislation issued in the Eastern Roman

Empire

 It influenced later codifications in the West e.g. Lex Romana Visigothorum

and in the East eg. The Corpus Iuris Civilis

- Collections and simplifications of classical writings -Jurists

produced a number of short, elementary works that consisted of extracts from great
classical writings. Simplified editions of the works of the most important classical
jurists were published. Examples are Epitome Gai and Sententiae Pauli were
adaptations of Gaius’s and Paulus’s most important works.

And

- The Statute of Citation, AD 426 (a good example of how

postclassical law was simplified and how legal science deteriorated.

It was proclaimed in the Statute that only the works of the Five
Great jurists (Papinian, Ulpian, Paul, Modestinus and Gaius) would
be seen as authoritative and that in exceptional cases the other
jurists could be consulted.

3.5 THE FALL OF THE WESTERN ROMAN EMPIRE

AD 476 (5th century) – The Western Roman Empire was invaded by

Germanic tribes and fell.

PERSONALITY PRINCIPLE – The different Germanic tribes lived near

each other and each tribe had its own law. The personality principle meant
that each person lived according to the law of his or her own tribe. Eg
Roman persons lived according to Roman law.

• Leges Romanae barbarorum were the Germanic peoples

recordings of Roman law for the Romans who lived in the Germanic territories.

The most famous of these codifications is the Lex Romana Visigothorum (the Breviarum
Alarici) the recording of Roman law by the Visigoths. It came into effect in AD 506 and was

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applicable in countries today known as Italy, France and Spain. (The Justinian code (the Corpus
Iuris Civilis) was completed in AD 536 in the Eastern Roman Empire.)

The Lex Romana Visigothorum played an important role in preserving

Roman law in the Western Roman Empire after its fall:
̵ It was used by the Roman Catholic Church as a source of Roman law.
̵ It was the most important source of Roman law in the West until the revival of interest in
the study of Roman law in the 12th century.

3.6 EMPEROR JUSTINIAN’S CODIFICATION: THE CORPUS

IURIS CIVILIS (named in the 16th century by jurist Gothofredus)

BACKGROUND: JUSTINIAN – Justinian was the Emperor in the Eastern

Roman Empire from AD 527 to AD 565. His goal was to reunite the
Roman Empire and restore it to its former glory. He was not a
jurist. Tribonian, who was a jurist, was the driving force behind the
codification of the Corpus Iuris Civilis.

REASONS FOR CODIFICATION – Justinian wanted to systemise the

law, eliminate outdated legislation by codifying the law that was
still applicable, make the law accessible to everybody by creating a
single source of law that contained all the applicable law and he
also wanted to eliminate inconsistences in the law.

THE CODIFICATION PROCESS - Corpus Iuris Civilis contains 4 parts namely

– The Codex - contained imperial legislation

– Digest – codification of the law as shown in the writings of jurists (mostly Papinian,
Ulpian, Paul, Modestinus and Gaius)
– Institutiones – textbook for students based on Gaius’ Institutes
– Novellae – new imperial legislation promulgated after the Codex

THE IMPORTANCE OF THE CORPUS IURIS CIVILIS

- It was not successful in Justinian’s time. The reasons for this was that it
was written in latin (common language was Greek), it was too difficult for
post-classical jurists to understand, Justinian forbade the writing of
commentaries on it which might have made it easier to understand..
- It is of great importance to us today especially because it provides
modern society with a version of Roman law as it was at the end of
its development. South African courts still refer to the Corpus Iuris
Civilis as part of our legal heritage.

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 Students please study the decisions in the Hendricks and Paulsen cases. Where Justinian’s
codification was quoted as authority for Roman law rules that still apply today.

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