ROM 120 - notes for rome law for tests PDF

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notes for rome law for tests...

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UNIT 1 - INTRODUCTION TO ROMAN LAW AND HISTORICAL DEVELOPMENT NOTES The History of Rome in a Legal Nutshell: -

Common Law consists of 17th /18th century Roman-Dutch law.

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Imposed by the Dutch when they colonized the Cape in accordance with the international law of the time.

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The Dutch did not recognise the indigenous legal systems and they imposed their laws and court systems on the indigenous people.

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But where does the ‘Roman’ in Roman-Dutch law come from?

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Roman civilization developed Roman legal system over 1300 years for 753 BCE – 565 CE.

Timeline (based on the Gregorian calendar): - Christ was born in the year 0. - BC (Before Christ)/BCE (Before the Common Era). Dates go from big – small. - AD (Anno Domini)/CE (Common Era). Dates go from small – big. Principate

Justinian Law

Roman Republic

Period of the Kings

Dominate Roman Empire

The Period of the Kings (753-509 BCE): The Beginning: - Two brothers – Remus and Romulus. Romulus killed Remus and became King of Rome. - Rome provided merchants with an easy navigable water-way to traffic their goods. - Anyone, criminal or migrant, had the opportunity to become a fully-fledged Roman citizen. - Location and open for all – Rome would achieve great success and become one of the largest Metropolitan cities of the ancient world. Monarchy: Period of the Kings: -

Kings were not hereditary but chosen by the people to rule.

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Contributions made during the reign of the 7 kings – adapted Latin alphabet, calendar created, architectural achievements and sewerage systems. The kings were advised by the heads of the aristocracy/wealthy landowners (patricians) but these kings possessed almost unlimited executive, legislative and judicial powers. Patricians - heads of the most powerful and wealthiest landed aristocracy. Characteristics of the early legal system – rigidity/formalistic and a limited field of application while law and religion were still interconnected with no distinction between the two. Law was mostly based on the customs and conduct as acknowledged by the people and practiced over a long period of time Sources of law – mostly customary law interconnected with religious practices and a limited number of legislation made by some of the kings pertaining to mostly religious matters.

The Roman Republic (509-250 BCE): End of the Period of Kings – Scandal: - Period of the Kings came to an abrupt end in 509 BCE with the scandal of the rape of Lucrecia, virgin noblewoman by Sextus Tarquinius, the son of king Tarquin (the 7th king). - This resulted in rebellion and the Roman people overthrowing Roman monarchy. - Vowed to never have the power situated in a single monarch ever again. The Republic: -

They then established the Republic (a system for the public). Res = thing, Publica = public. A system for and of the public based on the principles of direct democracy and the separation of powers. Rome was divided into citizens and non-citizens.

Hierarchy of Roman Citizenship: Citizens: -

The Roman government only consisted of 3 men who were citizens. Either born a Roman citizen or could become a Roman citizen upon application and permission after certain requirements were met. Citizens were divided into patricians, who were upper class men who ruled the city, and plebians/commoners, who had limited political and social power. These classes were completely separate and distinct from one another. Marriage between the classes was forbidden.

Non-citizens:

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Women had limited citizenship and could not partake in how the city was governed, could not govern, vote or hold public office but they could own property, run and own a business and get a divorce from their husbands. Client State citizens and allies of Rome had limited rights such as owning property but they could not vote, marry a Roman woman or be elected into office. Slaves completely lacked personhood and were considered the property of their masters. They could become free men by either rendering a specific service, buying themselves back from the master or by means of testamentary release wherein the master could stipulate in his will that the slave would become free after his death. These free men had limited capacity but their children became full Roman citizens.

Who Ruled Rome and the Government Structure: Head of Government: Executive power of the King was now passed into the hands of the 2 Consuls (two executive officials/magistrates). -

Patricians elected from the Senate chosen by the Assembly. They were now the head of the Roman government and initially had jurisdiction over all executive functions. Served for one year only. Executive functions – administration of the State, judiciary/justice and the army.

As the Roman state expanded, more Magistrates were appointed to assist in these executive functions. Power of the Magistrates were based on 3 principles: -

Annuality – served only for one year.

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Collegiality – principle of equality, equal power distribution between them and the right to veto each other.

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Liability – held responsible and liable for acts they committed during their term in office.

Senate: -

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Since the beginning of Rome, the aristocracy/patricians were involved in the executive and legislative power of the State by firstly advising the King and then by advising the Magistrates and the Consuls. With the establishment of the Republic, the Senate, which consisted of 300 patricians, went from an advisory board/capacity to a force of law/Consuls and became more influential. They served for a lifetime but had full control over public finances & foreign affairs. Debated and discussed proposed legislation before it was put to the Assemblies to vote on and afterwards, ratified elections and new legislation to come into force.

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Gradually, these advisory resolutions/decisions by the senate acquired the force of law and consequentially with time, the senate acquired serious influence on the legislative process and became the real leadership of the Republic.

The Popular Assembly (patricians and plebians): -

Every male Roman citizen belonged to an Assembly. Had the right to vote once a year for the new consuls/magistrates and on new legislation. Assemblies called together by appropriate magistrate who then put a proposal before them which they then had to approve or reject. Operated on a block vote system according to wealth and were not based on a one man, one vote basis. Consequentially, the votes of the most affluent citizens, often fewer in numbers, counted more than those from the working and ordinary class.

Plebian Revolution: Class struggle: Equality and Access: Patricians: -

2 Consuls. Magistrates. Senate. Priest/Pontiffs.

Plebians: -

Left with little political power. Fewer social rights.

Plebian Assembly established (471 BCE): - Despite now having their own assembly and a tribune similar to the magistrate, their decisions and voting processes were not considered binding on the patricians. - Tribunes could convene the plebeian assembly, propose legislation to them and could also veto any act of the senate or another assembly. - Patricians refused to be bound by a body in which they were not represented and also believed that their wealth and standing in society entitled them to have a more important and substantial say in how Rome was governed. Plebian Strike (494 BCE): - Resorted to a major strike and withdrew to the Aventine hills. - Demanded they should be granted total political equality by accepting that the decisions of the majority bind everyone including the patricians. - After a struggle of approximately 200 years, the Lex Hortensia (law of the plebian leader Hortensius) gave the decisions of the plebians in 287 BC the same binding force as legislation from the popular assembly.

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The government of Rome finally became the SenQtus Populusque RRmQnus (The Senated People of Rome/SPQR).

465 BCE: -

Plebians also demanded that the law and its procedures must be made more accessible to everyone. Until that point in time, knowledge about the law and the rules of litigation rested almost exclusively with the pontiffs/priests who were from the class of patricians. The principles and procedures of the law were cloaked in religious mystery. It took the patricians 10 years to send a commission to Greece to investigate the process of codifying the law and to appoint a task team or a portfolio committee to actually draw up/codify the law.

Lex Duodecim Tabularum (450 BCE): -

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Popular assembly accepted the Law of the 12 Tables inscribed on 12 bronze plates and put in the marketplace for all to see. The Law of the 12 Tables/Lex Duodecim Tabularum were the first codification of Roman law and important, not only because it separated the law from religious rules, but also because it provided legal certainty and uniformity to all. The 12 tables contained the short, clear rules of the former law (lex), as well as certain procedural rules. This codification of the law also created the need for the interpretation thereof, and opened the door to the creation and development of a legal science and of a legal profession. Examples: arson, assault with the intent to do grievous bodily harm and indulging in luxury.

The Roman Empire (250 BCE-27 CE): -

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During the period of the Republic, Roman society experienced enormous growth and development. The Romans began to conquer the whole of Italy and large parts of the rest of Europe and their success led to the creation of the Roman Empire. Roman society became more sophisticated and the contact with other nations brought about an expansion in trade. Because of the flourishing trade, a number of rules for the contract of sale were created during this time. These rules still apply in present-day South African law. Special officials (magistrates) were appointed, called the praetores who had the responsibility of developing the law. They laid down legal rules in edicts which were then promulgated. This development of the law in turn, gave rise to a class of people known as the jurists, who undertook the study of law in a scientific manner.

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Ius civile – strict, formalistic law that applied to Roman citizens only. Ius gentium – developed through customs of the time and provided for transactions and dealings between Romans and non-Romans. The ius gentium could be expanded and developed to accommodate the demands of the more sophisticated and complex Roman society. Based on general legal principles which were in force everywhere. Characterized by informality, good faith (bona fides) and equity (aequitas).

The Praetor: -

More magistrates appointed to assist with specific and specialized functions. In 367 BC, the magistracy of the praetor was introduced. One of the most important and influential offices for the development of Roman law. The praetor was not a judge and instead: Administered the civil process/iurisdictio. Assisted litigants in formulating the correct claims and following the appropriate procedures.

Praetor peregrinus: -

Expansion of Rome and increased trade and commerce led to the appointment of the praetor peregrinus. Focused on civil procedures between Romans and foreigners/peregrine. Applied the ius gentium to transactions between Romans and non-Romans . Had to create new methods and procedures to bring the law in line with the changing needs of the community and society.

The Praetor and Edicts: -

Had the ius edicendi/power to promulgate edicts. Edicts contained the particular process litigants had to follow as well as the legal remedies that the ius civile provided. Where the ius civile/ius gentium did not supply a remedy, the praetor could introduce and develop a new legal remedy. This new remedy was often based on the ius gentium. This is because the ius gentium is more flexible than the ius civile and promoted the principles of good faith and equity. Edicts only in force for one year during the term of the specific praetor. Next praetor usually continued using his predecessor’s edicts, only making any necessary changes or additions. These new laws were known as lus honorarium.

Ius honorarium: -

Law of the praetors. These new praetorial remedies pertained to prescription, the recovery of patrimonial loss and the concept of restitution to the original position.

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Part modern-day contract and property law. Still used and developed by South African courts.

The Jurists: -

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College of the pontiffs/priests still monopolised the study of law. Beginning of the 3rd century BCE – jurists who were not priests started to emerge. 252 BC – priest Tiberius Coruncanius started giving legal advice and presented lectures on the law in public spaces for all to hear. 200 BC - the Tripertita by Sextus Aelius Paetus Catus (first book on law) was published. It contained a copy of the Law of the Twelve Tables with the various procedural formulae and the author’s interpretation of them. Body of jurists – emerged and began to share their advice on the current legal practices in public for free. Their reward for this was the prestige of being held high in the public esteem. Jurists specialised in the interpretation of the law, advising their clients on the kind of action that needed to be taken and assisting them in preparing for their cases. Jurists would prepare the case for court but did not appear in court himself. This was either left to the client or it was handled by an orator or public speaker. Developed the Roman law by finding new areas of application for the general rule, creating new applications and new law. During the Republic the judiciary did not consist of judges or jurists but were chosen by the litigation parties from a list of names.

Cicero’s 6 Functions of the Jurist: -

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Respondere – advising one’s client with a legal opinion/response prudentium. Docere - teaching the law in public and served as an informal education to students and junior jurists who followed the more prominent jurists wherever they went. After advising the client, the students would ask questions and debate the legal advice given. Cavere and agere - safeguarding the interests of the client by advising them on the correct formalities, drawing up the acquired legal documents and instituting legal proceedings on behalf of the clients. Interpretare – interpretation and interpretation of existing legal rules and applied the general rules to individual cases. Scribere – write on and about the subject of law. This developed a systematic body of law and legal science which forms the basis of modern legal science today.

The Principate (27-284 CE):

Julius Ceasar: -

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Played an instrumental role in the demise of the Roman Republic and the rise of the Roman Empire. Rose to fame by excelling as a military commander. Assumed control of the government and began a program of social and governmental reforms. He built bridges and canals, regulated grain purchases to ensure greater fairness for the ordinary citizens, initiated land reform, ensured support for war veterans and centralized the bureaucracy of the Republic. 26th of January 44 BCE – Ceasar was proclaimed dictator in perpetuo (dictator for life). Therefore, the normal time restriction on Roman dictatorship was abandoned. His reforms were populist and authoritarian. This angered the elites, who began to conspire against him. 15 March 44 BCE (Ides of March) - Caesar was stabbed and killed by a group of rebellious senators led by his best friends Brutus and Cassius. A new series of civil wars broke out. Constitutional government of the Republic was never fully restored.

Rise of the Principate and Emperor Augustus: -

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Octavianus (Caesar’s adoptive son) declared himself Emperor ‘Augustus’. Reigned victorious as the first emperor of Rome during the period Pax Romana (Peaceful Rome). Senate asked Augustus to hold onto the power he gained during the wars and to rebuild the city. Two consuls appointed during the Roman Republic had failed to ensure lasting peace and stability. The people of Rome returned to the reign of a single-person/principate and the rise of another monarchy. During the rise of the principate, the institutions of the Republic seemed to remain in place and creating the impression that the assemblies had the final say in legislative matters. But, the Senate became more prominent and started taking on the role of the legislature. Initially, the emperor handed in constitutiones to the senate. Constitutiones – the suggestions and legislative proposals handed in by the emperor to the senate. But due to the power of the emperor, nobody dared to question his assumptions or suggestion. In time, the constitutiones of the emperor became orders of law. Emperor had the position of a magistrate. Could issue universal and lifelong edicts and develop new legal institutions to adapt to the ever-changing needs of the Roman society. Could act as a judge for courts a quo and appeal courts.

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His decisions/decreta were initially only applicable to a specific cases but eventually supplied the first manifestations of the precedent system. It became customary for judges to refer to previous decisions to find solutions in new matters. Emperor formulated new rules in his mandata/directives to his provincial officials and issued leges generals. Leges generals – general imperial law. Role of the praetor became less important because cases and procedures before the court were now handled by a single judge. Ius gentium was further developed to accommodate the growth of international commerce between Rome and its colonies.

Sources of Law: -

Edicta – similar to praetor but were lifelong and universal. Decreta – rulings of the emperor in capacity as judge, regarded as binding. Rescripta – written answers by the emperor to private persons – advised by his council of jurists. Mandata – directions by the emperor to his officials – occasionally included new rules.

Development of the Jurist: -

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During Republican years, jurists were independent from the legislature and the executive because their advice was free and open to the public. Emperor Augustus introduced the ius respondendi to try extend his control over them and gain their support. Ius respondendi – the right to give a legal opinion. Ius respondendi was granted to esteemed jurists by the emperor. These jurists could provide legal opinions which carried added authority as well as the ‘stamp of approval’ of the emperor. From then on, legal opinions had to be in writing and sealed in order to ensure authenticity. Litigants previously represented themselves until the emperor introduced the cognitio procedure. Cognitio procedure - gave parties the option of acquiring a representative to act on their behalf. Litigants could also appoint an advocate to argue on their behalf. Three kinds of representatives: o Cognito – appointed by sick and old people to represent them. o Procurator – looked after client’s estates. o Advocate defensor – represented a defendant and had to persuade the judge of its case by presenting numerous arguments and effectively using emotional manipulation to play on the feelings and prejudices of a particular judge. These ‘advocates’ trained in the law and rhetorical and other skills of persuasion and developed their orating skills to speak on behalf of t...