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| Seimar room bench |
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| The audience |
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| Brutus' advocates |
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| Caius's counselor |
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| Team in action |
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| One bench |
Thursday, October 13, 2011
Roman Law Moot: Pictures I
Friday, August 26, 2011
Roman Law Moot Case II
YEAR: 102 AD
FACTS
1. Caius is a renowned merchant in Rome. He distributes fine textiles that he acquires from his numerous trips all over the world. He departed for the East and left his most precious silk tunic to Brutus for safekeeping during the time that he was absent. Caius tells Brutus to put the tunic in his own wardrobe instead of in a goods deposit, in order to avoid moth bites. Brutus, however, left the tunic in his garage, where he had other valuable goods, like his Chariot, his horse and his ceramic pots.
2. Before the arrival of Caius in Rome, the rains hit the city so mercilessly that most houses lost their roof. Brutus’ garage also suffered damage as a result of the rains. Everything in the garage was lost or irreparably damaged, except for Caius’ silk tunic which was only partially stained.
3. Caius is very angry because his precious tunic has a horrible stain and wants to sue Brutus for full compensation. Brutus is scared and he offers to buy the tunic at the price of the normal markets on the day that Caius arrived back to Rome. Caius, in the middle of the discussion agrees, but then, in a rapt of anger, he leaves the place and the exchange never takes place.
COURSES OF ACTION
1. You are approached by Caius to obtain damages from breach of the duties contained in the Contract of Deposit. PLAINTIFF 1
2. Brutus approaches you to be defended regarding the Deposit Contract claim of Caius. DEFENDANT 1
3. Caius decides to enforce the contract of Sale perfected between Caius and Brutus.PLAINTIFF 2
4. Brutus does not want to buy the tunic anymore, and he alleges that he was acting under pressure for the aggressive threats of legal action from Caius, but that his intimate intention never was to buy the tunic. DEFENDANT 2
Thursday, August 18, 2011
ROMAN LAW MOOT II
ROMAN LAW MOOT II- OBLIGATIONS
OBJECTIVE
This activity aims to develop key skills for legal practice amongst the first-year students, whilst opening a much needed space for an intellectually stimulating extra-curricular environment by facilitating the active involvement and serious engagement from the students to their legal studies, starting at the first stage of their careers.
Also, this exercise is a vehicle for promoting an investigative attitude; a tool for social integration, communication and peer support by revising important notions originated in Roman Law which will be useful for the Property, Contract and Delict in the South African legal context.
The introduction of the first- and second-year students to argumentation, public speaking, and case analysis will be encouraged in a friendly atmosphere which will provide participants with an individual assessment of their strengths and weaknesses in the skills required and the concepts encountered.
MOOT SCHEDULE
- 26th August 2011: Moot Manual Handout
- 1st September: Electronic handout of Moot principles, Samples of Heads of Arguments and initial assignment of cases. (Moodle, e.mail to participants, http://www.bonietaequiars.blogspot.com/). Handout of cases.
- 8th September: Moot practice. Venue to be confirmed
- 23rd September: Moot Competition. The teams will be divided into groups. They shall present their cases simultaneously in adjacent venues. From 2Pm to 5PM
A prize-giving will take place half an hour after completion of the moots, time during which the participants and guests are invited for refreshments.
MOOT STRUCTURE
- Each team will receive a case and the party they will be representing. They have 4 minutes to present their arguments in the form of actio-replicatio-duplicatio. Thus, a case must be presented and argued completely in 12 minutes
- Each venue shall have at least three judges from the Law School and/or the legal practice. The configuration of the juries is still to be confirmed.
- Prizes shall be sponsored by a recognized practice of law, to be confirmed.
- Each venue shall have a volunteer time keeper, ideally from the group of tutors of the subject.
- All participants shall be provided with detailed feedback on their performance. This will be delivered electronically to their registered email addresses by the activity coordinator.
- Photographs shall be taken by a Law School senior student who has kindly volunteered to contribute to this event with his participation.
- The law school will be asked to support this activity by authorizing the stationary and catering requisition.
Thursday, August 11, 2011
SERVITUDES - OVERVIEW
SERVITUDES
- It is a right on the property of somebody else. It has been called burdens of ownership or fractions of ownership vested in someone different than the owner.
- The beneficiary in the case of praedial servitudes is called the DOMINANT land. The property that has been burdened with servitude is called the SERVIENT land.
- It is considered res mancipi: due to its nature it requires the expression of the will of the owner of the servient land. In order to give publicity to the burden placed on the land, the transmission of ownership must be done through the ceremony of the Mancipatio.
- There are two kinds of servitudes: Praedial and Personal. They are different in that the praedial servitudes benefit a specific property regardless of who owns it, whereas the personal servitudes benefit a particular person.
Principles of Servitudes
- Iura in re aliena: rights over things of others.
- Nemini res sua servit: nobody can have a servitude on a property of their own
- Servitus in facendo consistere nequit: NO POSITIVE obligation may be imposed on the owner of the servient property. A servitude creates a generic duty of abstention. EXCEPT in the case of servitus oneris ferendi: urban servitude that occurs when an urban structure is supporting another one. The owner of the servient land or structure the wall or supporting structure in good condition
- Quotiens servitus nec hominum nec praediourum interest non valet: Servitudes need to be useful for the dominant land. It must be functionally necessary for the land and not just for the pleasure of the owner.
PRAEDIAL SERVITUDES Also called “real” servitude.
There must be a DOMINANT land, and a SERVIENT land. The DOMINANT land is the beneficiary of the praedial servitude. They can be Urban or Rustic
Rustic Servitudes
- Iter: right to pass through somebody else’s property
- Actus: right to pass with animals and work instruments
- Acquaeductus: right to pass water from one property to another.
- Acquaehustus: right to obtain water from the servient’s boreholes
- Servitus Pasciendi: right to let the cattle roam and feed on the grass of the servient land
- Creta Eximendae: right of extracting clay from the servient property
- Calcis Coquendae: right to extract and cook limestone
- Lapidis Eximendae: right to extract stones
- Harenae Fodiendae: right to extract sand
Urban Servitude
- Oneris Ferendi: the wall or pillar of one house is bound to sustain the weight of the buildings of the neighbour.
Rustic and Urban
- Stillicidiorum: Water Evacuation (rain water)
- Cloacae: for sewage purposes, the property that is located higher can evacuate sewage through the property located lower There were four kinds of personal servitudes
USUFRUCT
USUS
EMPHYTEUSIS
HABITATIO
When there is a personal servitude there is always a servient thing BUT NOT a dominant thing. The personal servitudes vest in a PERSON and the objects of personal servitudes are not restricted to land/ real estate like the praedial servitudes are
There must be a DOMINANT land, and a SERVIENT land. The DOMINANT land is the beneficiary of the praedial servitude. They can be Urban or Rustic
Rustic Servitudes
- Iter: right to pass through somebody else’s property
- Actus: right to pass with animals and work instruments
- Acquaeductus: right to pass water from one property to another.
- Acquaehustus: right to obtain water from the servient’s boreholes
- Servitus Pasciendi: right to let the cattle roam and feed on the grass of the servient land
- Creta Eximendae: right of extracting clay from the servient property
- Calcis Coquendae: right to extract and cook limestone
- Lapidis Eximendae: right to extract stones
- Harenae Fodiendae: right to extract sand
Urban Servitude
- Oneris Ferendi: the wall or pillar of one house is bound to sustain the weight of the buildings of the neighbour.
Rustic and Urban
- Stillicidiorum: Water Evacuation (rain water)
- Cloacae: for sewage purposes, the property that is located higher can evacuate sewage through the property located lower There were four kinds of personal servitudes
PERSONAL SERVITUDES
USUFRUCT
USUS
EMPHYTEUSIS
HABITATIO
When there is a personal servitude there is always a servient thing BUT NOT a dominant thing. The personal servitudes vest in a PERSON and the objects of personal servitudes are not restricted to land/ real estate like the praedial servitudes are
Tuesday, May 31, 2011
THE DIVISION OF THINGS- GAIUS
BOOK II - OF SINGLE AND UNIVERSAL THINGS
DIVISION OF THINGS
§ 1. In the preceding book the law of persons was expounded; now let us proceed to the law of things, which are either subject to private dominion or not subject to private dominion.
§ 2. The leading division of things is into two classes: things subjects of divine, and things subjects of human right.
§ 3. Subjects of divine right are things sacred and things religious.
§ 4. Sacred things are those consecrated to the gods above; religious, those devoted to the gods below.
§ 5. Sacred things can only become so with the authority of the people of Rome, by consecration in pursuance of a law or a decree of the senate.
§ 6. A religious thing becomes so by private will, when an individual buries a dead body in his own ground, provided the burial is his proper business.
§ 7. On provincial soil, according to most authorities, ground does not become religious as the dominion belongs to the people of Rome or the Emperor, and individuals only have possession or usufruct, but such places, though not properly religious, are to be regarded as quasi-religious.
§ 7 a. Just as provincial soil, in default of the authorization of the people of Rome, is rendered by consecration not sacred, but quasisacred.
§ 8. Sanctioned places are to a certain extent under divine dominion, such as city gates and city walls.
§ 9. Things subject to divine dominion are exempt from private dominion; things subject to human dominion are generally subject to private dominion, but may be otherwise: for things belonging to an inheritance before any one has become heir have no actual owner.
§ 10. Things subject to human dominion are either public or private.
§ 11. Things public belong to no individual, but to a society or corporation; things private are subject to individual dominion.
OF INCORPORAL THINGS.
§ 12. Again, things are either corporeal or incorporeal.
§ 13. Things corporeal are tan gible, as land, a slave, clothing, gold, silver, and innumerable others.
§ 14. Things incorporeal are intangible; such as those which have an existence simply in law as inheritance, usufruct, obligation, however contracted. For though an inheritance comprises things corporeal, and the fruits of land enjoyed by a usufructuary are corporeal, and obligations generally bind us to make over the conveyance of something corporeal: land, slaves, money; yet the right of succession, the right of usufruct, and the right of obligation are incorporeal. So are the rights attached to property in houses and land. The following are rights attached to property in houses; the right of raising a building and thereby obstructing the lights of a neighbouring building; the right of prohibiting a building being raised, so that one’s lights may not be interfered with; the right of letting rain-water fall in a body or in drops on a neighbour’s roof or area; the right of having a sewer through a neighbour’s area, or a window in a neighbour’s wall (cf. Epit. 2, 1, 3). The following are rights attached to property in land: iter, a right of way on foot or horseback; actus, a right of way for ordinary carriages; via, a right of paved way for heavy-laden wagons; pecoris ad aquam appulsus, a right of watering cattle; aquae ductus, a right of conveying water through the tenement of another.
CIVIL ACQUISITION OF CORPORAL THINGS
§ 14 a. Things are further divided into mancipable and not mancipable; mancipable are land and houses in Italy; tame animals employed for draught and carriage, as oxen, horses, mules, and asses; rustic servitudes over Italian soil; but urban servitudes are not mancipable.
§ 15. Stipendiary and tributary estates are also not mancipable. According to my school animals which are generally tamed are mancipable as soon as they are born; according to Nerva and Proculus and their followers, such animals are not mancipable until tamed, or if too wild to be tamed, until they attain the age at which other individuals of the species are tamed.
§ 16. Things not mancipable include wild beasts, as bears, lions; and semi-wild beasts, as elephants and camels, notwithstanding that these animals are sometimes broken in for draught or carriage; for their name was not even known at the time when the distinction between res mancipi and nec mancipi was established.
§ 17. Also things incorporeal, except rustic servitudes on Italian soil; for it is clear that these are mancipable objects, although belonging to the class of incorporeal things.
§ 18. There is an important difference between things mancipable and things not mancipable.
§ 19. Complete ownership in things not mancipable is transferred by merely informal delivery of possession (tradition), if they are corporeal and capable of delivery.
§ 20. Thus when possession of clothes or gold or silver is delivered on account of a sale or gift or any other cause, the property passes at once, if the person who conveys is owner of them.
§ 21. Similarly transferable are estates in provincial lands, whether stipendiary or tributary; stipendiary being lands in provinces subject to the dominion of the people of Rome; tributary, lands in the provinces subject to the dominion of the Emperor.
§ 22. Mancipable things, on the contrary, are such as are conveyed by mancipation, whence their name; but surrender before a magistrate has exactly the same effect in this respect as mancipation.
§ 24. Conveyance by surrender before a magistrate (in jure cessio) is in the following form: in the presence of some magistrate of the Roman people, such as a praetor, the surrenderee grasping the object says: I say this slave is my property by title Quiritary. Then the praetor interrogates the surrenderor whether he makes a counter-vindication, and upon his disclaimer or silence awards the thing to the vindicant. This proceeding is called a statute-process; it can even take place in a province before the president.
§ 25. Generally, however, and almost always the method of mancipation is preferred; for why should a result that can be accomplished in private with the assistance of our friends be prosecuted with greater trouble before the praetor or president of the province?
§ 26. If neither mancipation nor surrender before the magistrate is employed in the conveyance of a mancipable thing . . . .
§§ 14 a-23. Mancipable things—things taken by the hand and so alienable—were at first, probably, the more important accessories of a farm, that is, slaves and beasts of burden—oxen, horses, mules and asses (1 § 120), land itself in Italy and rural servitudes attaching to such land being subsequently made mancipable.
DIVISION OF THINGS
§ 1. In the preceding book the law of persons was expounded; now let us proceed to the law of things, which are either subject to private dominion or not subject to private dominion.
§ 2. The leading division of things is into two classes: things subjects of divine, and things subjects of human right.
§ 3. Subjects of divine right are things sacred and things religious.
§ 4. Sacred things are those consecrated to the gods above; religious, those devoted to the gods below.
§ 5. Sacred things can only become so with the authority of the people of Rome, by consecration in pursuance of a law or a decree of the senate.
§ 6. A religious thing becomes so by private will, when an individual buries a dead body in his own ground, provided the burial is his proper business.
§ 7. On provincial soil, according to most authorities, ground does not become religious as the dominion belongs to the people of Rome or the Emperor, and individuals only have possession or usufruct, but such places, though not properly religious, are to be regarded as quasi-religious.
§ 7 a. Just as provincial soil, in default of the authorization of the people of Rome, is rendered by consecration not sacred, but quasisacred.
§ 8. Sanctioned places are to a certain extent under divine dominion, such as city gates and city walls.
§ 9. Things subject to divine dominion are exempt from private dominion; things subject to human dominion are generally subject to private dominion, but may be otherwise: for things belonging to an inheritance before any one has become heir have no actual owner.
§ 10. Things subject to human dominion are either public or private.
§ 11. Things public belong to no individual, but to a society or corporation; things private are subject to individual dominion.
OF INCORPORAL THINGS.
§ 12. Again, things are either corporeal or incorporeal.
§ 13. Things corporeal are tan gible, as land, a slave, clothing, gold, silver, and innumerable others.
§ 14. Things incorporeal are intangible; such as those which have an existence simply in law as inheritance, usufruct, obligation, however contracted. For though an inheritance comprises things corporeal, and the fruits of land enjoyed by a usufructuary are corporeal, and obligations generally bind us to make over the conveyance of something corporeal: land, slaves, money; yet the right of succession, the right of usufruct, and the right of obligation are incorporeal. So are the rights attached to property in houses and land. The following are rights attached to property in houses; the right of raising a building and thereby obstructing the lights of a neighbouring building; the right of prohibiting a building being raised, so that one’s lights may not be interfered with; the right of letting rain-water fall in a body or in drops on a neighbour’s roof or area; the right of having a sewer through a neighbour’s area, or a window in a neighbour’s wall (cf. Epit. 2, 1, 3). The following are rights attached to property in land: iter, a right of way on foot or horseback; actus, a right of way for ordinary carriages; via, a right of paved way for heavy-laden wagons; pecoris ad aquam appulsus, a right of watering cattle; aquae ductus, a right of conveying water through the tenement of another.
CIVIL ACQUISITION OF CORPORAL THINGS
§ 14 a. Things are further divided into mancipable and not mancipable; mancipable are land and houses in Italy; tame animals employed for draught and carriage, as oxen, horses, mules, and asses; rustic servitudes over Italian soil; but urban servitudes are not mancipable.
§ 15. Stipendiary and tributary estates are also not mancipable. According to my school animals which are generally tamed are mancipable as soon as they are born; according to Nerva and Proculus and their followers, such animals are not mancipable until tamed, or if too wild to be tamed, until they attain the age at which other individuals of the species are tamed.
§ 16. Things not mancipable include wild beasts, as bears, lions; and semi-wild beasts, as elephants and camels, notwithstanding that these animals are sometimes broken in for draught or carriage; for their name was not even known at the time when the distinction between res mancipi and nec mancipi was established.
§ 17. Also things incorporeal, except rustic servitudes on Italian soil; for it is clear that these are mancipable objects, although belonging to the class of incorporeal things.
§ 18. There is an important difference between things mancipable and things not mancipable.
§ 19. Complete ownership in things not mancipable is transferred by merely informal delivery of possession (tradition), if they are corporeal and capable of delivery.
§ 20. Thus when possession of clothes or gold or silver is delivered on account of a sale or gift or any other cause, the property passes at once, if the person who conveys is owner of them.
§ 21. Similarly transferable are estates in provincial lands, whether stipendiary or tributary; stipendiary being lands in provinces subject to the dominion of the people of Rome; tributary, lands in the provinces subject to the dominion of the Emperor.
§ 22. Mancipable things, on the contrary, are such as are conveyed by mancipation, whence their name; but surrender before a magistrate has exactly the same effect in this respect as mancipation.
§ 24. Conveyance by surrender before a magistrate (in jure cessio) is in the following form: in the presence of some magistrate of the Roman people, such as a praetor, the surrenderee grasping the object says: I say this slave is my property by title Quiritary. Then the praetor interrogates the surrenderor whether he makes a counter-vindication, and upon his disclaimer or silence awards the thing to the vindicant. This proceeding is called a statute-process; it can even take place in a province before the president.
§ 25. Generally, however, and almost always the method of mancipation is preferred; for why should a result that can be accomplished in private with the assistance of our friends be prosecuted with greater trouble before the praetor or president of the province?
§ 26. If neither mancipation nor surrender before the magistrate is employed in the conveyance of a mancipable thing . . . .
§§ 14 a-23. Mancipable things—things taken by the hand and so alienable—were at first, probably, the more important accessories of a farm, that is, slaves and beasts of burden—oxen, horses, mules and asses (1 § 120), land itself in Italy and rural servitudes attaching to such land being subsequently made mancipable.
Tuesday, May 10, 2011
The agnatic family in Roman Law
Here are some definitions:
- agnates - relatives through the male line, descended from a common male ancestor without any artificial break in the line of relationship (such as emancipation). Persons of either sex may be agnates, but the line could only be transmitted through males. If the common male ancestor (pater familias) was alive, the agnates were all in his patria potestas. Agnatic relations existed through adoption as fully as through blood. (taken from the latin library http://thelatinlibrary.com/law/glossary.html)
-*cognates - all relatives, whether traced through the male or female lines. (taken from the latin library http://thelatinlibrary.com/law/glossary.html)
Presentations on The Roman Empire: Church efforts to reshape Roman and Barbarian fami...
Presentations on The Roman Empire: Church efforts to reshape Roman and Barbarian fami...: THIS CAN BE QUITE USEFUL FOR YOUR UNDERSTANDING OF THE ROMAN FAMILY
Monday, April 4, 2011
Useful Info for your assignment II
Iniuria
138. The delict of Iniuria differs from the others mentioned in the Institutes in a noticeable way. It is defined not in terms of the harm done, as they are, but of the motive with which it is done. It is anything unlawful done with the object of insulting. This kind of wrong is clearly the creation of a fiurly developed civilisation. Though iniuria is mentioned in the Xn Tables, it does not there mean insult, but violence to person or property. The malum carmen of the XII Tables is not libel or slander, but magic incantations which are likely to injure crops or cause other harm. Considerably later, remedies are given by the praetor for defamatory words, and about the end of the Republic an actio iniuriarum appears which aims at repressing insults. Gradually under juristic influence it is
extended in its scope, since there are many ways of insulting a man beside calling him names, until in the late classical law any wanton interference with right is regarded as an iniuria, if, on the evidence, it appears to have been done with intent to
annoy or insult, or to lessen the esteem in which the injured person is held.
Iniuria differs also from the other delicts in the mode of estimation of damages, which were obviously difficult to fix in the case of insult. They vary in each case depending on the grossness of the insult, but also according to the position of the person insulted. The fact that an iniuria is atrox, either because of the nature of the wrong itself, or of the publicity of it, or of the statm of the person insulted, led to certain well-known diflferences in treatment, not such as to call for discussion. It may however be worth while to say that the texts do not really justify the view that the distinction was a clearly defined one: it was for the praetor to decide whether the iniuria was atrox or not, and to issue the formula according to his conclusion: the facts just mentioned are only such indications as would guide him.
The manner in which the whole proceeding is stated in the sources shews that it was essentially intended as a solatium for the wounded amour propre of the insulted man. Hence it was that unless he had shewed, at the time, that he was stung, the action did not lie, that he must bring the action within one year, and that though he died within the year his heir could not bring the action or continue it unless it had reached litis contestatio.
The fact that if insult were intended to a man the action lay, even though the wrongful act or speech had no direct reference to him, led to the possibility that several persons might have an action for the same insult. Thus, for an insult to a filiu^familias, his paterfamilias, besides the action which he might bring on behalf of his son, might have one on his own account, and they were quite independents For an insult to a woman, she, her husband and her father, might all have actions. For an insult to a slave any person interested in him might conceivably have an action if intent to insult him was proved. Where a common slave was insulted each of his masters might have the action, and we are told that the damages would not necessarily be proportionate to the shares in the man, but would be affected by the position of the plaintiff. It must be admitted however that the texts are in apparent conflict on
this point ^.
fragment from W. W. BUCKLAND, M.A., "Elementary Principles of the Roman Law". Cambridge University Press. UK
138. The delict of Iniuria differs from the others mentioned in the Institutes in a noticeable way. It is defined not in terms of the harm done, as they are, but of the motive with which it is done. It is anything unlawful done with the object of insulting. This kind of wrong is clearly the creation of a fiurly developed civilisation. Though iniuria is mentioned in the Xn Tables, it does not there mean insult, but violence to person or property. The malum carmen of the XII Tables is not libel or slander, but magic incantations which are likely to injure crops or cause other harm. Considerably later, remedies are given by the praetor for defamatory words, and about the end of the Republic an actio iniuriarum appears which aims at repressing insults. Gradually under juristic influence it is
extended in its scope, since there are many ways of insulting a man beside calling him names, until in the late classical law any wanton interference with right is regarded as an iniuria, if, on the evidence, it appears to have been done with intent to
annoy or insult, or to lessen the esteem in which the injured person is held.
Iniuria differs also from the other delicts in the mode of estimation of damages, which were obviously difficult to fix in the case of insult. They vary in each case depending on the grossness of the insult, but also according to the position of the person insulted. The fact that an iniuria is atrox, either because of the nature of the wrong itself, or of the publicity of it, or of the statm of the person insulted, led to certain well-known diflferences in treatment, not such as to call for discussion. It may however be worth while to say that the texts do not really justify the view that the distinction was a clearly defined one: it was for the praetor to decide whether the iniuria was atrox or not, and to issue the formula according to his conclusion: the facts just mentioned are only such indications as would guide him.
The manner in which the whole proceeding is stated in the sources shews that it was essentially intended as a solatium for the wounded amour propre of the insulted man. Hence it was that unless he had shewed, at the time, that he was stung, the action did not lie, that he must bring the action within one year, and that though he died within the year his heir could not bring the action or continue it unless it had reached litis contestatio.
The fact that if insult were intended to a man the action lay, even though the wrongful act or speech had no direct reference to him, led to the possibility that several persons might have an action for the same insult. Thus, for an insult to a filiu^familias, his paterfamilias, besides the action which he might bring on behalf of his son, might have one on his own account, and they were quite independents For an insult to a woman, she, her husband and her father, might all have actions. For an insult to a slave any person interested in him might conceivably have an action if intent to insult him was proved. Where a common slave was insulted each of his masters might have the action, and we are told that the damages would not necessarily be proportionate to the shares in the man, but would be affected by the position of the plaintiff. It must be admitted however that the texts are in apparent conflict on
this point ^.
fragment from W. W. BUCKLAND, M.A., "Elementary Principles of the Roman Law". Cambridge University Press. UK
Wednesday, March 30, 2011
Sources of lecture reviews II & III
- DU PLESSIS L “An Introduction to Roman Law” Juta & Co. Ltd 1992
- GAIUS, IV.139, 140
- TUORI “The ius respondendi and the Freedom of Roman Jurisprudence” Revue - Internationale des droits de l’Antiquité LI (2004)
- URCH E “The Origin of the Actio Per Formulam”. The Classical weekly Vol. XXVI. Whole No. 712 Mon 10th of April 1933
- GONZALEZ DE CANCINO E. “Manual de Derecho Romano” Universidad Externado de Colombia 2000
- MACKENZIE “Studies in Roman Law with Comparative views of the Laws of France, England and Scotland” . William Blackwood and sons. London
- NICHOLAS B. “An Introduction to Roman Law” (Clarendon Law Series)
- GAIUS, IV.139, 140
- TUORI “The ius respondendi and the Freedom of Roman Jurisprudence” Revue - Internationale des droits de l’Antiquité LI (2004)
- URCH E “The Origin of the Actio Per Formulam”. The Classical weekly Vol. XXVI. Whole No. 712 Mon 10th of April 1933
- GONZALEZ DE CANCINO E. “Manual de Derecho Romano” Universidad Externado de Colombia 2000
- MACKENZIE “Studies in Roman Law with Comparative views of the Laws of France, England and Scotland” . William Blackwood and sons. London
- NICHOLAS B. “An Introduction to Roman Law” (Clarendon Law Series)
The role of the praetor and Classic Jurists. Lecture Review III
The role of the Praetor in Roman Law: The praetor was in charge of administration of justice without being a jurist himself. He had help from the most prominent jurists in his time and contributed greatly to the development of the roman Law during the Republic and early Principate by modifying the law with his Edict the praetor gave prevalence to substance over forms. He introduced to Roman Law the underpinning principles that survive until today such as Justice, fairness and equality.
-Replacement of Actio per sacramentum with Actio per formulam: the formulary process was simpler than the sacramental process established by the civil law. Initially it involved foreign citizen and gradually became the standard procedure for cases where both parties where Roman citizens.By reforming the legis actionis the praetor aided by the Classis Jurists introduced principles and established precedent which ultimately formed a substantial part of the Roman Law
- ISSUE OF INTERDICTS. "In certain cases (certis ex causis) the praetor or proconsul, in the first instance (principaliter), exercises his authority for the termination of disputes. This he chiefly does when the dispute is about Possession or Quasi-possession; and the exercise of his authority consists in ordering something to be done, or forbidding something to be done. The formulae and the terms, which he uses on such occasions, are called either Interdicta or Decreta. They are called Decreta when he orders something to be done, as when he orders something to be produced (exhiberi) or to be restored: they are called Interdicta when he forbids something to be done, as when he orders that force shall not be used against a person who is in possession rightfully (sine vitio), or that nothing shall be done on a piece of sacred ground. Accordingly all Interdicta are either Restitutoria, or Exhibitoria, or Prohibitoria (Gaius, IV.139, 140). This was the first notion of a singular trial as we know it now. There are still interdicts in South Africa for the same purposes (to forbid something to be done).
- THE PRAETOR’S EDICT (Started in 367 BC): Annual process program (policy plan or government plan) creating new actions, introducing exceptios(to the formulary procedure) or adopting the dispositions of the previous year.
Classic Jurists: Aided the development of Roman Law by emitting their opinions which were adopted by the praetor and applied in the Edict and as binding law whenever they had ius respondendi.
The classic jurists were highly influenced by Greek tradition. From the sophisticated Greek thought they brought concepts of justice, fairness and equity. (Equity understood as the justice of the concrete case- Aristotle-.)
- Sabinian and Proculian Schools of Thought/ Ius respondendi:
The Sabinians and the Proculians, as were most Roman jurists, were first and foremost legal practitioners whose main activity was to give advice (responsa) in court cases and other legal disputes. Most probably, the controversies arose when representatives of the two schools had been consulted by parties locked in a case and had come to contradictory opinions. The controversies differed from ordinary differences of opinion between jurists because the heads of the schools were invested with the ius publice respondendi ex auctoritate principis, making their opinions binding upon the court.
The school controversies have been explained in terms of conservative versus Progressive, which will be referred to as the socially-inspired explanation. While some Romanists, such as Voigt and Kodrebski, qualified the Sabinian school as conservative and the Proculian school as progressive In Voigt’s view, moreover, the opposition between the two schools could be explained by way of the contrast between rigor iuris and verbi ratio, on the one hand, and aequitas and voluntatis ratio, on the other. Whereas the Sabinians looked as far as possible to interpret texts to the letter, the Proculians underlined the voluntas or the intention of the parties and, thus, were sensitive to claims of equity.
- Classic Jurists in the Corpus Iuris Civilis: Their opinions on different issues were recovered and compiled in the corpus iuris, confirming the strength of their abstractions and the permanency in time of the concepts that they reached.
Thursday, March 17, 2011
LECTURE REVIEW II
Hadrian’s Codification of the
Praetorian Edict by Salvius Julianus
Jim Safley
In this essay I will interpret the circumstances culminating to Hadrian’s codification of the praetorian edict by the renowned jurist Salvius Julianus (c. 130 CE). Accordingly, I will attempt to explain how and why the codification occurred. The codification was a considerable turning point in the process of Roman law: the imperial juror gained supreme prestige, and, more importantly, the praetor surrendered his ability to augment his legal jurisdiction while the emperor legitimized his own predominant rank in Roman law. To lend this essay coherence I will explore the imperial system of law during the early Empire, focusing on the role of the juror, the praetor, and, to a lesser extent, the emperor. It is important to understand the evolution of the juror and the praetor to fully appreciate the enormity of the codification. For this reason I have also included some historical information regarding the origin of these offices of law.
There are many sources available in Ancient Roman law. Classical jurisprudence is, in fact, one of the most documented subjects in Roman history. Because Roman law has flourished in some form or another since its establishment, much of its principles and analyses are still contemporary. The current knowledge of the codification of the praetorian edict is a good example of the contemporary nature of some historical events. There is no definitive primary source on the subject, and only through intensive study of myriad ancient works of law can one find reference to it. The earliest reputable source that mentions the codification is Emperor Justinian’s Constitution, Tanta.[1] Though it is a vague and contradictory reference, Justinian is precise in his statement regarding the existence of such a codification.[2]
Some of the foremost treatises on Roman legal history were written by German and British law scholars during an age of classical law revival. In the late nineteenth century, German law professor Rudolph Sohm wrote The Institutes, a systematic survey of the entire field of Roman law.[3] Even before Institutes, Sir Henry Maine, a distinguished English law scholar, wrote Ancient Law, an extensive comparison of ancient law and Modern English law.[4] In 1932 another English scholar, H. F. Jolowicz, authored an updated treatise on classical legalism, titled Historical Introduction to the Study of Roman Law.[5] Some of the most scholastic modern sources on Ancient law can be found in the form of these “historical introductions of law.” In 1966, Wolfgang Kunkel, an accomplished German law professor, wrote An Introduction to Roman Legal and Constitutional History.[6] Twenty-four years later a Dutch author, Olga Tellegen-Couperus, wrote A Short History of Roman Law.[7] Both of these texts are effectively utilized by law professors worldwide.
The system of law in the Roman Empire relied heavily on the influences of several imperial offices. Each of these offices had unique and indispensable responsibilities, and all issued written documents of one form or another that announced their opinions, intentions, or decrees. Jurors, through their responsa, provided legal opinions to judges, magistrates, and citizens. Praetors, whose role was the administration of justice, annually issued an edictum perpetuum that laid out the terms of their office. Emperors, who obtained much of the magisterial powers of the high offices in the Republic, enjoyed the right to issue two imperial proclamations: the edictum (a decree addressed to the general public) and the mandata (an official directive to the officials in the emperor’s service).
JURISTS
In Rome the knowledge of law and its procedure fell primarily on jurists. They were the center of the Roman legal system and influenced the decisions of judges and magistrates, who were not necessarily schooled on jurisprudence. During the Republic, jurists were closely associated with the Roman senate, and most originated from the senatorial class. The jurists’ influence was pervasive in law. They assisted private citizens by drafting legal texts, wills, etc. (cavere), serving as advocates in lawsuits (agere), and giving legal opinion on questions of law submitted to them (respondere).[8]
The role and character of the jurist changed under the reign of Augustus. Imperial backing of the equestrian class assured a rise in equestrian jurists, though most remained of the senatorial class.[9] Whereas in the Republic jurists had a limited capacity in legal authority and legislation, the new princeps gave certain preeminent jurists the privilege of giving their legal opinion ex auctoritate principis – that is, in the name of the emperor.[10] In turn, jurists’ written replies to matters of law (rensponsa) had the force of law.[11] By bestowing on jurists the ius respondendi, or the imperial right to give legal opinions, Augustus ushered in an unprecedented age of classical jurisprudence.
SALVIUS JULIANUS
Among the greatest of Roman jurists was the renowned Salvius Julianus (Lucius Octavious Cornelius Publius Salvius Julianus Aemilianus). Julianus was born around the turn of the second century CE at the village of Pupput, near Hadrumetum, in the province of Africa. Of Roman birth he belonged to a family evidently so distinguished that he was able to enter upon a senatorial career.[12]
Julianus served in a wide variety of senatorial offices under Hadrian, Antoninus Pius, and Marcus Aurelius. His imperial roles included: decemvir stlitibus iudicandis, quaestor Augusti of Hadrian, one of the tribuni plebis, praetor, praefectus both of the aerarium Saturni and of the aerarium militare, consul in 148, pontifex, curator aedium sacrarum, imperial governor of Germania Inferior, imperial governor of Hispania Citerior, and republican governor of Africa.[13]
Julianus acknowledged himself as a disciple under the prominent Roman jurist Javolenus Priscus (Gaius Octavius Tidius Tossianus Javolenus Priscus), who was a member of Trajan’s consilium and head of the Sabinian School.[14] Sabinus Masurius, a Roman jurist of the first half of the first century CE, founded the Sabinian School, which began as a doctrinal school for jurists.[15] There was an unspecified rivalry between the Sabinian School and another school for jurists, the Proculian School.[16] Both schools died out after the death of Salvius Julianus, who was the last recorded head of the Sabinian School. In a measure of his supreme authority, there is no doubt that Julianus’ death allayed the hostility between the schools.[17]
Julianus was a man of high authority and fame among his contemporaries. He enjoyed such repute even at a young age that Hadrian doubled his salary as quaestor Augusti.[18] His most important legal work is his Digesta, organized into 90 books detailing virtually every aspect of civil and praetorian law. It introduced the theory and nature of Roman legalism. The work is preserved mainly in subsequent codes, especially in Justinian’s Digesta and among other works by classical jurists.[19]
Before Julianus was 30 years old Hadrian entrusted him with the revision and rearrangement of the praetorian edict, which secured his enduring and distinguished reputation. To understand the significance of this codification, the role of the praetor and his edict in Roman legalism must be understood and appreciated. To be sure, a systematic revision and permanent rearrangement of a body of precepts is a considerable and serious event.
PRAETORS AND THE PRAETORIAN EDICT
In the early Roman Republic, the office of the praetor was synonymous with the consulship; but in 366 BCE the judicial powers of the consuls were delegated to special officers, each named praetor urbanus. The paramount responsibility of the praetor urbanus was the administration of civil and criminal justice in Rome and in Roman Italy, though he occasionally exercised his right of military command (imperium), and he had the authority to convene the comitia and initiate legislation.[20] Over a century later the proliferation of commerce necessitated the appointment of a second officer, the praetor qui inter peregrinos ius dicit, a title which afterwards was shortened to praetor peregrinus. The praetor peregrinus supervised civil litigation in which one or both parties were foreigners.[21]
In their early capacity, praetors had an enormous sphere of judicial and executive influence (certain praetors were appointed as provincial governors). However, Sullan reforms in the late Republic limited the role of the praetor in executive positions, and after Augustus’ judiciary laws, both the praetor urbanus and the praetor peregrinus were restricted entirely to the administration of private law. In the provinces the former jurisdictional and executive roles of the praetor were consigned to the quaestor.[22]
On entering office, praetors were required to outline the central principles of their jurisdiction and ostentatiously display them in the Roman Forum.[23] In this outline, titled the edictum perpetuum, or simply edict, the praetors declared the steps they intended to take in the implementation of their office. Officially, once the magistrate left his post (usually after one year), the edict ceased to be binding, and the succeeding praetor had a free hand in the matter of his edict; but in practice the successor usually confirmed the previous edict (the edictum tralaticium), only amending what expediency dictated.[24] The right of praetors to alter the edict, no matter how negligible the changes, was a component of their ius honorarium, or magisterial law.
Though the edicts were an important source of law, the praetor was not a legislator. He was unable to formulate or alter the law itself, as could the assemblies in the Republic and the Senate in the early Empire by a lex (statute) or a plebiscitum (ordinance of the people).[25] Consequently the edict did not take the same form of a statute. It consisted mainly of statements detailing how the praetor would carry out his office, and of what he would do in certain legal circumstances. It was in these respects that made it possible for the praetor to influence the laws to such a large degree.
The edict’s advantage over strict statutory code was its expedient and organic nature. Although praetors tended not to alter it greatly, over time, when a procedure became obsolete or unnecessary, it was deleted. Similarly, when a course of action was necessary and an applicable precept did not exist, the praetor revised the edict to provide for the action.[26] Initially the edictum perpetuum was not binding and the praetor could arbitrarily disregard his own principles. Later however, by a lex Cornelia (67 BCE), the praetor was legally bound to his edict, unable by law to modify it while in office.[27]
CODIFICATION OF THE PRAETORIAN EDICT
By the second century CE the edictum tralaticium had accrued to a formidable and arduous size. There were at least two hundred separate provisions in the edict before Emperor Hadrian commissioned Salvius Julianus to codify the edict (c. CE 130), effectively fixing it in permanent form – taking away the praetor’s right to alter it.[28] The praetorian edict was confirmed by a senatus consultum, and all further legislative revisions fell to the emperor.[29]
Why exactly did the codification occur? Ancient sources are silent on the subject, and modern sources deal exclusively on assumptions and conjectures. Certainly it is debatable whether Hadrian intended the codification to be a protective action regarding the edict’s immense size and complexity, or an attempt to stifle the innovative legal abilities of the praetor (ius honorarium).
Many modern authors of law differ in opinion. Rudolph Sohm points out that emperors were well aware that the legal power of the praetor originated from Republican magistrates – offices that emperors found distasteful. “The rising imperial power could not permanently tolerate any rival independent authority.”[30] Thus, Hadrian ordered the codification to suppress the jurisdictional power of the praetors. H. F. Jolowicz offers a more moderate version of Sohm’s theory. He writes that the overarching power of the emperor inherently limited, and was incompatible with, the authority of Republican magisterial offices, including the praetor. Hadrian, in his decision to codify the edict, was simply “bringing the republican form into line with the new realities.”[31]
Incompatibility with the authority of the emperor is not the only rationale given for the codification. The eminent law scholar Sir Henry Maine, on the other hand, believed that the edict’s “immense length” and “disorderly texture” demanded the codification.[32] I have found that most law textbooks concur with Maine in that the edict was merely too large and unwieldy for practical use, so Hadrian had no other choice but to order it written as a final draft (though Kunkel and Tellegen-Couperus do mention the gradual weakening power of the praetor under the Principate).[33]
Hadrian’s own administrative character may prove to be the defining clue into why he ordered the edict to be set into permanent form. He had a cold relationship with the Senate, and distrusted the few remnants of Republican government. While he slowly deserted the already eroding old system of government, he strengthened the new, imperial system. Under his rule, the Equestrian Order obtained a more ennobled status: they secured many civil service positions, and even joined Hadrian’s board (consilium principis).[34] He also appointed judges in place of the traditional role of the Senate, furthering the imperial centralization of the state. It would be consistent with his mistrust of Republican customs that Hadrian ordered the codification of the praetorian edict. Indeed, what better way to limit the powers of the praetor than to deny him the ius honorarium?
Whatever Hadrian’s motives, his decision to order the final revision of the praetorian edict permanently shifted legal initiative to the emperor. As a result, praetors suffered a precipitous decline in power. Now more than ever, jurists, who had been rising in eminence since Augustus’ ius respondendi, played a vital role in the interpretation of Roman law. Their influence on the emperor’s legal decisions was unprecedented, as is exemplified by the codification of the praetorian edict by Salvius Julianus.
--------------------------------------------------------------------------------
[1] Justinian, constitutio Tanta, 18.
[2] Olga Tellegen-Couperus, A Short History of Roman Law (London: Routledge, 1993), 89; Wolfgang Kunkel, An Introduction to Roman Legal and Constitutional History, 2d ed. trans. J. M. Kelly (London: Oxford University Press, 1973), 93.
[3] Rudolph Sohm, The Institutes: A Textbook of the History and System of Roman Private Law, 3d ed. trans. James Crawford Ledlie, B. C. L., M. A. (London: The Clarendon Press, 1940; reprint, New York: Augustus M. Kelley Publications, 1970) (page citation are to the reprint edition).
[4] Henry Maine, Ancient Law (London: The Aldine Press, 1954).
[5] H. F. Jolowicz and Barry Nicholas, Historical Introduction to the Study of Roman Law, 3d ed. (London: Cambridge University Press, 1972).
[6] Kunkel.
[7] Tellegen-Couperus.
[8] Ibid., 60-61.
[9] Kunkel, 109.
[10] Ibid., 107; J. Declareuil, Rome the Law-Giver (London: Trubner & Co., 1927; reprint, Westport: Greenwood Press, 1970), 24 (page citations are to the reprint edition).
[11] Will Durant, The Story of Civilization, vol. 3, Caesar and Christ: A History of Roman Civilization and of Christianity from Their Beginnings to A.D. 325 (New York: Simon and Schuster, 1972), 394.
[12] Oxford Classical Dictionary, 2d ed., s.v. “Julianus (2) Salvius,” by Adolf Berger and Barry Nicholas.
[13] Ibid.
[14] Ibid. s.v. “Javolenus Priscus,” by Berger and Nicholas.
[15] Ibid. s.v. “Sabinus (2),” by Berger and Nicholas.
[16] Alan Watson, The Law of the Ancient Romans (Dallas: Southern Methodist University Press, 1970), 29.
[17] Kunkel, 118.
[18] Ibid., 117; Durant, 392.
[19] OCD, 2d ed., s.v. “Julianus (2) Salvius,” by Berger and Nicholas.
[20] Ibid., s.v. “Praetor,” by Piero Treves and Eastland Stuart Staveley.
[21] Sohm, 73-74; Tellegen-Couperus, 41.
[22] Kunkel, 84-85.
[23] Durant, 393.
Find this article in Hadrian’s Codification of the Praetorian Edict by Salvius Julianus by Jim Safley
Praetorian Edict by Salvius Julianus
Jim Safley
In this essay I will interpret the circumstances culminating to Hadrian’s codification of the praetorian edict by the renowned jurist Salvius Julianus (c. 130 CE). Accordingly, I will attempt to explain how and why the codification occurred. The codification was a considerable turning point in the process of Roman law: the imperial juror gained supreme prestige, and, more importantly, the praetor surrendered his ability to augment his legal jurisdiction while the emperor legitimized his own predominant rank in Roman law. To lend this essay coherence I will explore the imperial system of law during the early Empire, focusing on the role of the juror, the praetor, and, to a lesser extent, the emperor. It is important to understand the evolution of the juror and the praetor to fully appreciate the enormity of the codification. For this reason I have also included some historical information regarding the origin of these offices of law.
There are many sources available in Ancient Roman law. Classical jurisprudence is, in fact, one of the most documented subjects in Roman history. Because Roman law has flourished in some form or another since its establishment, much of its principles and analyses are still contemporary. The current knowledge of the codification of the praetorian edict is a good example of the contemporary nature of some historical events. There is no definitive primary source on the subject, and only through intensive study of myriad ancient works of law can one find reference to it. The earliest reputable source that mentions the codification is Emperor Justinian’s Constitution, Tanta.[1] Though it is a vague and contradictory reference, Justinian is precise in his statement regarding the existence of such a codification.[2]
Some of the foremost treatises on Roman legal history were written by German and British law scholars during an age of classical law revival. In the late nineteenth century, German law professor Rudolph Sohm wrote The Institutes, a systematic survey of the entire field of Roman law.[3] Even before Institutes, Sir Henry Maine, a distinguished English law scholar, wrote Ancient Law, an extensive comparison of ancient law and Modern English law.[4] In 1932 another English scholar, H. F. Jolowicz, authored an updated treatise on classical legalism, titled Historical Introduction to the Study of Roman Law.[5] Some of the most scholastic modern sources on Ancient law can be found in the form of these “historical introductions of law.” In 1966, Wolfgang Kunkel, an accomplished German law professor, wrote An Introduction to Roman Legal and Constitutional History.[6] Twenty-four years later a Dutch author, Olga Tellegen-Couperus, wrote A Short History of Roman Law.[7] Both of these texts are effectively utilized by law professors worldwide.
The system of law in the Roman Empire relied heavily on the influences of several imperial offices. Each of these offices had unique and indispensable responsibilities, and all issued written documents of one form or another that announced their opinions, intentions, or decrees. Jurors, through their responsa, provided legal opinions to judges, magistrates, and citizens. Praetors, whose role was the administration of justice, annually issued an edictum perpetuum that laid out the terms of their office. Emperors, who obtained much of the magisterial powers of the high offices in the Republic, enjoyed the right to issue two imperial proclamations: the edictum (a decree addressed to the general public) and the mandata (an official directive to the officials in the emperor’s service).
JURISTS
In Rome the knowledge of law and its procedure fell primarily on jurists. They were the center of the Roman legal system and influenced the decisions of judges and magistrates, who were not necessarily schooled on jurisprudence. During the Republic, jurists were closely associated with the Roman senate, and most originated from the senatorial class. The jurists’ influence was pervasive in law. They assisted private citizens by drafting legal texts, wills, etc. (cavere), serving as advocates in lawsuits (agere), and giving legal opinion on questions of law submitted to them (respondere).[8]
The role and character of the jurist changed under the reign of Augustus. Imperial backing of the equestrian class assured a rise in equestrian jurists, though most remained of the senatorial class.[9] Whereas in the Republic jurists had a limited capacity in legal authority and legislation, the new princeps gave certain preeminent jurists the privilege of giving their legal opinion ex auctoritate principis – that is, in the name of the emperor.[10] In turn, jurists’ written replies to matters of law (rensponsa) had the force of law.[11] By bestowing on jurists the ius respondendi, or the imperial right to give legal opinions, Augustus ushered in an unprecedented age of classical jurisprudence.
SALVIUS JULIANUS
Among the greatest of Roman jurists was the renowned Salvius Julianus (Lucius Octavious Cornelius Publius Salvius Julianus Aemilianus). Julianus was born around the turn of the second century CE at the village of Pupput, near Hadrumetum, in the province of Africa. Of Roman birth he belonged to a family evidently so distinguished that he was able to enter upon a senatorial career.[12]
Julianus served in a wide variety of senatorial offices under Hadrian, Antoninus Pius, and Marcus Aurelius. His imperial roles included: decemvir stlitibus iudicandis, quaestor Augusti of Hadrian, one of the tribuni plebis, praetor, praefectus both of the aerarium Saturni and of the aerarium militare, consul in 148, pontifex, curator aedium sacrarum, imperial governor of Germania Inferior, imperial governor of Hispania Citerior, and republican governor of Africa.[13]
Julianus acknowledged himself as a disciple under the prominent Roman jurist Javolenus Priscus (Gaius Octavius Tidius Tossianus Javolenus Priscus), who was a member of Trajan’s consilium and head of the Sabinian School.[14] Sabinus Masurius, a Roman jurist of the first half of the first century CE, founded the Sabinian School, which began as a doctrinal school for jurists.[15] There was an unspecified rivalry between the Sabinian School and another school for jurists, the Proculian School.[16] Both schools died out after the death of Salvius Julianus, who was the last recorded head of the Sabinian School. In a measure of his supreme authority, there is no doubt that Julianus’ death allayed the hostility between the schools.[17]
Julianus was a man of high authority and fame among his contemporaries. He enjoyed such repute even at a young age that Hadrian doubled his salary as quaestor Augusti.[18] His most important legal work is his Digesta, organized into 90 books detailing virtually every aspect of civil and praetorian law. It introduced the theory and nature of Roman legalism. The work is preserved mainly in subsequent codes, especially in Justinian’s Digesta and among other works by classical jurists.[19]
Before Julianus was 30 years old Hadrian entrusted him with the revision and rearrangement of the praetorian edict, which secured his enduring and distinguished reputation. To understand the significance of this codification, the role of the praetor and his edict in Roman legalism must be understood and appreciated. To be sure, a systematic revision and permanent rearrangement of a body of precepts is a considerable and serious event.
PRAETORS AND THE PRAETORIAN EDICT
In the early Roman Republic, the office of the praetor was synonymous with the consulship; but in 366 BCE the judicial powers of the consuls were delegated to special officers, each named praetor urbanus. The paramount responsibility of the praetor urbanus was the administration of civil and criminal justice in Rome and in Roman Italy, though he occasionally exercised his right of military command (imperium), and he had the authority to convene the comitia and initiate legislation.[20] Over a century later the proliferation of commerce necessitated the appointment of a second officer, the praetor qui inter peregrinos ius dicit, a title which afterwards was shortened to praetor peregrinus. The praetor peregrinus supervised civil litigation in which one or both parties were foreigners.[21]
In their early capacity, praetors had an enormous sphere of judicial and executive influence (certain praetors were appointed as provincial governors). However, Sullan reforms in the late Republic limited the role of the praetor in executive positions, and after Augustus’ judiciary laws, both the praetor urbanus and the praetor peregrinus were restricted entirely to the administration of private law. In the provinces the former jurisdictional and executive roles of the praetor were consigned to the quaestor.[22]
On entering office, praetors were required to outline the central principles of their jurisdiction and ostentatiously display them in the Roman Forum.[23] In this outline, titled the edictum perpetuum, or simply edict, the praetors declared the steps they intended to take in the implementation of their office. Officially, once the magistrate left his post (usually after one year), the edict ceased to be binding, and the succeeding praetor had a free hand in the matter of his edict; but in practice the successor usually confirmed the previous edict (the edictum tralaticium), only amending what expediency dictated.[24] The right of praetors to alter the edict, no matter how negligible the changes, was a component of their ius honorarium, or magisterial law.
Though the edicts were an important source of law, the praetor was not a legislator. He was unable to formulate or alter the law itself, as could the assemblies in the Republic and the Senate in the early Empire by a lex (statute) or a plebiscitum (ordinance of the people).[25] Consequently the edict did not take the same form of a statute. It consisted mainly of statements detailing how the praetor would carry out his office, and of what he would do in certain legal circumstances. It was in these respects that made it possible for the praetor to influence the laws to such a large degree.
The edict’s advantage over strict statutory code was its expedient and organic nature. Although praetors tended not to alter it greatly, over time, when a procedure became obsolete or unnecessary, it was deleted. Similarly, when a course of action was necessary and an applicable precept did not exist, the praetor revised the edict to provide for the action.[26] Initially the edictum perpetuum was not binding and the praetor could arbitrarily disregard his own principles. Later however, by a lex Cornelia (67 BCE), the praetor was legally bound to his edict, unable by law to modify it while in office.[27]
CODIFICATION OF THE PRAETORIAN EDICT
By the second century CE the edictum tralaticium had accrued to a formidable and arduous size. There were at least two hundred separate provisions in the edict before Emperor Hadrian commissioned Salvius Julianus to codify the edict (c. CE 130), effectively fixing it in permanent form – taking away the praetor’s right to alter it.[28] The praetorian edict was confirmed by a senatus consultum, and all further legislative revisions fell to the emperor.[29]
Why exactly did the codification occur? Ancient sources are silent on the subject, and modern sources deal exclusively on assumptions and conjectures. Certainly it is debatable whether Hadrian intended the codification to be a protective action regarding the edict’s immense size and complexity, or an attempt to stifle the innovative legal abilities of the praetor (ius honorarium).
Many modern authors of law differ in opinion. Rudolph Sohm points out that emperors were well aware that the legal power of the praetor originated from Republican magistrates – offices that emperors found distasteful. “The rising imperial power could not permanently tolerate any rival independent authority.”[30] Thus, Hadrian ordered the codification to suppress the jurisdictional power of the praetors. H. F. Jolowicz offers a more moderate version of Sohm’s theory. He writes that the overarching power of the emperor inherently limited, and was incompatible with, the authority of Republican magisterial offices, including the praetor. Hadrian, in his decision to codify the edict, was simply “bringing the republican form into line with the new realities.”[31]
Incompatibility with the authority of the emperor is not the only rationale given for the codification. The eminent law scholar Sir Henry Maine, on the other hand, believed that the edict’s “immense length” and “disorderly texture” demanded the codification.[32] I have found that most law textbooks concur with Maine in that the edict was merely too large and unwieldy for practical use, so Hadrian had no other choice but to order it written as a final draft (though Kunkel and Tellegen-Couperus do mention the gradual weakening power of the praetor under the Principate).[33]
Hadrian’s own administrative character may prove to be the defining clue into why he ordered the edict to be set into permanent form. He had a cold relationship with the Senate, and distrusted the few remnants of Republican government. While he slowly deserted the already eroding old system of government, he strengthened the new, imperial system. Under his rule, the Equestrian Order obtained a more ennobled status: they secured many civil service positions, and even joined Hadrian’s board (consilium principis).[34] He also appointed judges in place of the traditional role of the Senate, furthering the imperial centralization of the state. It would be consistent with his mistrust of Republican customs that Hadrian ordered the codification of the praetorian edict. Indeed, what better way to limit the powers of the praetor than to deny him the ius honorarium?
Whatever Hadrian’s motives, his decision to order the final revision of the praetorian edict permanently shifted legal initiative to the emperor. As a result, praetors suffered a precipitous decline in power. Now more than ever, jurists, who had been rising in eminence since Augustus’ ius respondendi, played a vital role in the interpretation of Roman law. Their influence on the emperor’s legal decisions was unprecedented, as is exemplified by the codification of the praetorian edict by Salvius Julianus.
--------------------------------------------------------------------------------
[1] Justinian, constitutio Tanta, 18.
[2] Olga Tellegen-Couperus, A Short History of Roman Law (London: Routledge, 1993), 89; Wolfgang Kunkel, An Introduction to Roman Legal and Constitutional History, 2d ed. trans. J. M. Kelly (London: Oxford University Press, 1973), 93.
[3] Rudolph Sohm, The Institutes: A Textbook of the History and System of Roman Private Law, 3d ed. trans. James Crawford Ledlie, B. C. L., M. A. (London: The Clarendon Press, 1940; reprint, New York: Augustus M. Kelley Publications, 1970) (page citation are to the reprint edition).
[4] Henry Maine, Ancient Law (London: The Aldine Press, 1954).
[5] H. F. Jolowicz and Barry Nicholas, Historical Introduction to the Study of Roman Law, 3d ed. (London: Cambridge University Press, 1972).
[6] Kunkel.
[7] Tellegen-Couperus.
[8] Ibid., 60-61.
[9] Kunkel, 109.
[10] Ibid., 107; J. Declareuil, Rome the Law-Giver (London: Trubner & Co., 1927; reprint, Westport: Greenwood Press, 1970), 24 (page citations are to the reprint edition).
[11] Will Durant, The Story of Civilization, vol. 3, Caesar and Christ: A History of Roman Civilization and of Christianity from Their Beginnings to A.D. 325 (New York: Simon and Schuster, 1972), 394.
[12] Oxford Classical Dictionary, 2d ed., s.v. “Julianus (2) Salvius,” by Adolf Berger and Barry Nicholas.
[13] Ibid.
[14] Ibid. s.v. “Javolenus Priscus,” by Berger and Nicholas.
[15] Ibid. s.v. “Sabinus (2),” by Berger and Nicholas.
[16] Alan Watson, The Law of the Ancient Romans (Dallas: Southern Methodist University Press, 1970), 29.
[17] Kunkel, 118.
[18] Ibid., 117; Durant, 392.
[19] OCD, 2d ed., s.v. “Julianus (2) Salvius,” by Berger and Nicholas.
[20] Ibid., s.v. “Praetor,” by Piero Treves and Eastland Stuart Staveley.
[21] Sohm, 73-74; Tellegen-Couperus, 41.
[22] Kunkel, 84-85.
[23] Durant, 393.
Find this article in Hadrian’s Codification of the Praetorian Edict by Salvius Julianus by Jim Safley
Thursday, March 3, 2011
Iniuria useful info for the assignment
Injuria
Article by George Long, M.A., Fellow of Trinity College
on pp637‑638 of
William Smith, D.C.L., LL.D.:
A Dictionary of Greek and Roman Antiquities, John Murray, London, 1875.
INJUʹRIA. Injuria, in the general sense, is opposed to Jus. In a special sense injuria was done by striking or beating a man either with the hand or with any thing; by abusive words (convicium); by the proscriptio bonorum, when the claimant knew that the alleged debtor was not really indebted to him, for the bonorum proscriptio was accompanied with infamia to the debtor (Cic. pro Quint. 6, 15, 16); by libellous writings or verses; by soliciting a mater familias or a praetextatus [Impubes]; and by various other acts. A man might sustain injuria either in his own person, or in the person of those who were in his power or in manu. No injuria could be done to a slave, but certain acts done to a slave were an injuria to his master, when the acts were such as appeared from their nature to be insulting to the master; as, for instance, if a man should flog another man's slave, the master had a remedy against the wrong-doer, which was given him by the praetor's formula. But in many other cases of a slave being maltreated, there was no regular formula by which the master could have a remedy, and it was not easy to obtain one from the praetor.
The Twelve Tables had various provisions on the subject of Injuria. Libellous songs or verses were followed by capital punishment, that is, death, as it appears (Cic. Rep. iv.10, and the notes in Mai's edition). In the case of a limb being mutilated the punishment was Talio (Festus, s.v. Talio). In the case of a broken bone, the penalty was 300 asses if the injury was done to a freedman, and 150 if it was done to a slave. In other cases the Tables fixed the penalty at 25 asses (Gellius, XVI.10, xx.1; Dirksen, Uebersicht, &c.).
These penalties which were considered sufficient at the time when they were fixed, were afterwards considered to be insufficient; and the injured person was allowed by the praetor to claim such damages as he thought he was entitled to, and the judex might give the full amount or less. But in the case of a very serious injury (atrox injuria), when the praetor required security for the defendant's appearance to be given in a particular sum, it was usual to claim such sum as the damages in the plaintiff's declaration, and though the judex p638was not bound to give damages to the amount, he seldom gave less. An injuria had the character of atrox, either from the act itself, or the place where it was done, as for instance, a theatre or forum, or from the condition of the person injured, as if he were a magistratus, or if he were a senator and the wrong-doer were a person of low condition.
A Lex Cornelia specially provided for cases of pulsatio, verberatio, and forcible entry into a man's house (domus). The jurists who commented on this lex defined the legal meaning of pulsatio, verberatio, and domus (Dig. 47 tit. 10 s5).
The actions for Injuria were gradually much extended, and the praetor would, according to the circumstances of the case (causa cognita), give a person an action in respect of any act or conduct of another, which tended, in the judgment of the praetor, to do him injury in reputation or to wound his feelings (Dig. 47 tit. 10 s5, 22, 23, 24, &c.). Many cases of Injuria were subject to a special punishment (Dig. 47 11) as deportatio; and this proceeding extra ordinem• was often adopted instead of the civil action. Various imperial constitutions affixed the punishment of death to libellous writings (famosi libelli). [Libelli.]
Infamia was a consequence of condemnation in an actio Injuriarum [Infamia.] He who brought such an action per calumniam was liable to be punished extra ordinem. (Gaius, III.220‑225; Hor. Sat. I.1.80; Dig. 47 10; Cod. Theod. ix. tit. 34; Cod. IX. tit. 36; Paulus, Sent. Recep. v. tit. 4; Rein, Das Criminalrecht der Römer, p35, &c.).
find this at: http://penelope.uchicago.edu/Thayer/E/Roman/Texts/secondary/SMIGRA*/Injuria.html
Article by George Long, M.A., Fellow of Trinity College
on pp637‑638 of
William Smith, D.C.L., LL.D.:
A Dictionary of Greek and Roman Antiquities, John Murray, London, 1875.
INJUʹRIA. Injuria, in the general sense, is opposed to Jus. In a special sense injuria was done by striking or beating a man either with the hand or with any thing; by abusive words (convicium); by the proscriptio bonorum, when the claimant knew that the alleged debtor was not really indebted to him, for the bonorum proscriptio was accompanied with infamia to the debtor (Cic. pro Quint. 6, 15, 16); by libellous writings or verses; by soliciting a mater familias or a praetextatus [Impubes]; and by various other acts. A man might sustain injuria either in his own person, or in the person of those who were in his power or in manu. No injuria could be done to a slave, but certain acts done to a slave were an injuria to his master, when the acts were such as appeared from their nature to be insulting to the master; as, for instance, if a man should flog another man's slave, the master had a remedy against the wrong-doer, which was given him by the praetor's formula. But in many other cases of a slave being maltreated, there was no regular formula by which the master could have a remedy, and it was not easy to obtain one from the praetor.
The Twelve Tables had various provisions on the subject of Injuria. Libellous songs or verses were followed by capital punishment, that is, death, as it appears (Cic. Rep. iv.10, and the notes in Mai's edition). In the case of a limb being mutilated the punishment was Talio (Festus, s.v. Talio). In the case of a broken bone, the penalty was 300 asses if the injury was done to a freedman, and 150 if it was done to a slave. In other cases the Tables fixed the penalty at 25 asses (Gellius, XVI.10, xx.1; Dirksen, Uebersicht, &c.).
These penalties which were considered sufficient at the time when they were fixed, were afterwards considered to be insufficient; and the injured person was allowed by the praetor to claim such damages as he thought he was entitled to, and the judex might give the full amount or less. But in the case of a very serious injury (atrox injuria), when the praetor required security for the defendant's appearance to be given in a particular sum, it was usual to claim such sum as the damages in the plaintiff's declaration, and though the judex p638was not bound to give damages to the amount, he seldom gave less. An injuria had the character of atrox, either from the act itself, or the place where it was done, as for instance, a theatre or forum, or from the condition of the person injured, as if he were a magistratus, or if he were a senator and the wrong-doer were a person of low condition.
A Lex Cornelia specially provided for cases of pulsatio, verberatio, and forcible entry into a man's house (domus). The jurists who commented on this lex defined the legal meaning of pulsatio, verberatio, and domus (Dig. 47 tit. 10 s5).
The actions for Injuria were gradually much extended, and the praetor would, according to the circumstances of the case (causa cognita), give a person an action in respect of any act or conduct of another, which tended, in the judgment of the praetor, to do him injury in reputation or to wound his feelings (Dig. 47 tit. 10 s5, 22, 23, 24, &c.). Many cases of Injuria were subject to a special punishment (Dig. 47 11) as deportatio; and this proceeding extra ordinem• was often adopted instead of the civil action. Various imperial constitutions affixed the punishment of death to libellous writings (famosi libelli). [Libelli.]
Infamia was a consequence of condemnation in an actio Injuriarum [Infamia.] He who brought such an action per calumniam was liable to be punished extra ordinem. (Gaius, III.220‑225; Hor. Sat. I.1.80; Dig. 47 10; Cod. Theod. ix. tit. 34; Cod. IX. tit. 36; Paulus, Sent. Recep. v. tit. 4; Rein, Das Criminalrecht der Römer, p35, &c.).
find this at: http://penelope.uchicago.edu/Thayer/E/Roman/Texts/secondary/SMIGRA*/Injuria.html
Monday, February 28, 2011
LECTURE REVIEW I
ARCHAIC PERIOD: From foundation of Rome to the expedition of the
________________________________
in -367.
WHAT DID THE LEGES LICINIAE SEXTAE REGULATE?
1.____________________________________________________________
2.___________________________________________________________
3. ____________________________________________________________
OTHER PRO-PLEBEIAN LAWS WERE:
1.
Lex
Hortensia: _____________________________________________
2.
Lex
_____________: Allowed marriages between patricians and plebeians
3.
Lex Valeria
Horatia________________________________________
REPUBLICAN PERIOD: From the Leges Liciniae Sextae to _________________________
The ordinary
magistratures were:
1.
Consul:
________________________________________________________
2.
_________:
In charge of justice administration
3.
Quaestor:
Helpers of the Consul and administration of the taxes
4.
_________:
____________________________________________________
5.
Aedil: Religious functions and later urban police
Characteristics of the magistrature:
1.
Gratuitous
2.
_____________
3.
Collegiate
4.
____________
5.
Accountability
Magistrates were elected by____________________________
PRINCIPATE/ CLASSIC PERIOD: From Augustus
(0) to 211 AC
(Murder of Septimius Severus)
Roman Empire expands. The law reaches technical perfection.
It is a very creative period in terms of the law.
DOMINATE/ POST CLASSIC PERIOD: From 211 AC to 1456
476 Romulus Augustus is defeated by a ____________ king.
Rome moves to _________________
During the administration of Justinian the:
______________ ___________________ _______________ was compiled.
It had four main parts
Institutas: _________________________
Codex: ___________________________
Digestae: __________________________
Novellae: ____________________________
The Roman Empire is conquered by the _____________ in
____________________
Wednesday, February 23, 2011
Useful reading for your assignment
Browsing online, I found this very short reading that has useful information for your assignment, which you should be working on already!! it can be found in http://www.roman-empire.net/articles/article-021.html
I am copying the first part of the text to get you started. Check it out, comment, ask, take a look at the cited bibliography and start writing, it is easier to write short pieces steadily than the whole piece on one attempt. Last, but not least, enjoy!
Underlying yet Unwritten
The Standards of Care and the Lex Aquilia
by Andrew Mason
originally prepared for Professor Weinrib, University of Toronto
In Ancient Rome the only acts recognised as criminal were "exceptional
invasions of public security or of the general order of society." As
such, Roman ‘criminal law’ would have failed to meet the needs of any
highly organised society. The Romans decided upon a "practical remedy,"
the laws of Delict, by which they "extended the doctrine of civil
obligations," to cover the realm of personal property. Violations of
these standards of care carried with them "penal consequences." Private
law was originally dominated by the Twelve Tables, which soon became
"harsh and inflexible antique rules" in cosmopolitan Rome. The "punitive
vengeance" of the Twelve Tables evolved into legal sanctions to compel
compensation when damage was done to private property. However, these
sanctions retained a distinct "punitive character."
Sanctions were thus developed to protect three principal rights of the Roman citizen not originally protected by criminal law: the security of his property, his security from theft and his right to be "protected from deliberate anti-social attacks" on his dignity. The Lex Aquilia governed loss wrongfully inflicted to property (damnum iniuria datum), whereas the Delicts of Furtum, Rapina and Iniuria were designed to deal with theft, robbery and attacks on personal dignity respectively. In order to be liable under the Lex Aquilia the defendant had to be found guilty of intent and culpable conduct (iniuria datum), and thus to have "wrongfully inflicted" loss (datum) on the plaintiff.
The early Romans maintained strict standards that governed personal behaviour and this is reflected in the legal reasoning implicit in the lex. Frier argued that while the ancient Romans "were under no general obligation" to ensure that others did not experience material loss, they were required "to act with care" in circumstances where their actions risked causing such loss to another. An examination of the twin pillars of the lex, the Praetor’s Edict and the juristical interpretations of the Lex Aquilia (illustrated by the actions ad factum and actio utiles) and selected cases from Frier’s Casebook on the Roman Law of Delict will demonstrate that unwritten ‘standards of care’ clearly existed in Roman law though they are never mentioned explicitly. The foremost legal reasoning behind the lex was the understanding that one had a civic responsibility as a Roman to not wrongfully cause another loss.
Standards of care as expressed by Culpa and Dolus
"Loss wrongfully inflicted" (damnum iniuria datum) forms the basis of Aquilian liability. Definitions of the term "iniuria"
changed during the evolution of Roman law. The term was originally held
to mean "without legal right." Juristical interpretation lent iniuria
an additional meaning, that of "wrongfulness." Defendants were
considered only guilty of inflicting loss without legal right if they
had "acted in a way positively improper and worthy of legal reproach."
The concept of "wrongfulness" strongly suggests that "legal rules"
governing what conduct was expected from citizens "in various
situations." Frier points out that the Lex Aquilia "only
sketchily described the content of such rules" and that those which do
exist are the creation of the jurists. This is not unsurprising however.
The early ancient Romans, a people with both a traditional loathing for
autocracy and a deep respect for the rights of the citizen would have
resisted codifying laws explicitly stating what conduct was expected of
them. Nicholas argues that the Romans would have interpreted such an
attempt to impose defined duties as "an unwarranted restriction on
personal freedom." Thus ‘standards of care’ as expressed in the Lex Aquilia were not codified, but can be defined as such: citizens were expected to act in the manner befitting a Roman.
As citizens, Romans were obliged to understand the "prerequisites of social life" and were expected to tailor their actions so as to avoid causing loss to others. In Case 19 Paul maintains that a tree-trimmer on private land is liable for killing a passing slave by "throwing down a branch" because in failing to call out or "foresee what a careful person should have foreseen" he had violated these social prerequisites. Culpa (fault), as Paul stipulated, arises when a defendant ignores the mutually understood, but unwritten, obligations of the Roman and wrongfully causes loss to another.
It is for this reason that Ulpianus "construes iniuria as loss inflicted by culpa" even when "the wish to harm" was absent, for one has a duty to be careful and aware. Dolus, (intentional fault) arises when one ignores these obligations "with a deliberate intent" to cause loss. The civic obligations implicit in the notions of culpa and dolus imply the existence of an unwritten standard of care, and Frier even describes the adherence to the aforementioned obligations as a "duty of care". Daube points out that the existence of a third standard of Aquilian liability, that of casus (accident) can only be seen as concerned with compensation, because unlike culpa (characterised by negligence) or dolus (characterised by evil intent) sheer accident does not involve a breach of any standard of care. It is important to note that the juristical interpretation of the lex there was no liability for casus....
(For the whole paper visit the link above, it is interesting and will help you understand the topic so you can write a good essay. Post any questions about the terms or concepts, we can work them out together. I am copying the bibliography as well, go to the library and take a look at the available books)
Amos, Sheldon. The History and Principles of the Civil Law of Rome. London, Kegan Paul, Trench and Co., 1883.
Daube, David. Roman Law. Edinburg University Press, 1969.
Frier, Bruce W. A Casebook on the Roman Law of Delict. Scholars Press, Atlanta, 1989.
Frier, Bruce W. The Rise of the Roman Jurists. Princeton University Press, 1985.
Jolowicz, H.F. "The Original Scope of the Lex Aquilia and the Question of Damages" Law Quarterly Review 38 (1922)
Kelly, J.M. "The Meaning of the Lex Aquilia", Law Quarterly Review 80 (1964)
Leage, R.W. Roman Private Law. London, Macmillan and Co., 1961.
Nicholas, Barry. An Introduction to Roman Law. Oxford, Clarendon Press, 1972.
I am copying the first part of the text to get you started. Check it out, comment, ask, take a look at the cited bibliography and start writing, it is easier to write short pieces steadily than the whole piece on one attempt. Last, but not least, enjoy!
The Standards of Care and the Lex Aquilia
by Andrew Mason
originally prepared for Professor Weinrib, University of Toronto
Sanctions were thus developed to protect three principal rights of the Roman citizen not originally protected by criminal law: the security of his property, his security from theft and his right to be "protected from deliberate anti-social attacks" on his dignity. The Lex Aquilia governed loss wrongfully inflicted to property (damnum iniuria datum), whereas the Delicts of Furtum, Rapina and Iniuria were designed to deal with theft, robbery and attacks on personal dignity respectively. In order to be liable under the Lex Aquilia the defendant had to be found guilty of intent and culpable conduct (iniuria datum), and thus to have "wrongfully inflicted" loss (datum) on the plaintiff.
The early Romans maintained strict standards that governed personal behaviour and this is reflected in the legal reasoning implicit in the lex. Frier argued that while the ancient Romans "were under no general obligation" to ensure that others did not experience material loss, they were required "to act with care" in circumstances where their actions risked causing such loss to another. An examination of the twin pillars of the lex, the Praetor’s Edict and the juristical interpretations of the Lex Aquilia (illustrated by the actions ad factum and actio utiles) and selected cases from Frier’s Casebook on the Roman Law of Delict will demonstrate that unwritten ‘standards of care’ clearly existed in Roman law though they are never mentioned explicitly. The foremost legal reasoning behind the lex was the understanding that one had a civic responsibility as a Roman to not wrongfully cause another loss.
As citizens, Romans were obliged to understand the "prerequisites of social life" and were expected to tailor their actions so as to avoid causing loss to others. In Case 19 Paul maintains that a tree-trimmer on private land is liable for killing a passing slave by "throwing down a branch" because in failing to call out or "foresee what a careful person should have foreseen" he had violated these social prerequisites. Culpa (fault), as Paul stipulated, arises when a defendant ignores the mutually understood, but unwritten, obligations of the Roman and wrongfully causes loss to another.
It is for this reason that Ulpianus "construes iniuria as loss inflicted by culpa" even when "the wish to harm" was absent, for one has a duty to be careful and aware. Dolus, (intentional fault) arises when one ignores these obligations "with a deliberate intent" to cause loss. The civic obligations implicit in the notions of culpa and dolus imply the existence of an unwritten standard of care, and Frier even describes the adherence to the aforementioned obligations as a "duty of care". Daube points out that the existence of a third standard of Aquilian liability, that of casus (accident) can only be seen as concerned with compensation, because unlike culpa (characterised by negligence) or dolus (characterised by evil intent) sheer accident does not involve a breach of any standard of care. It is important to note that the juristical interpretation of the lex there was no liability for casus....
(For the whole paper visit the link above, it is interesting and will help you understand the topic so you can write a good essay. Post any questions about the terms or concepts, we can work them out together. I am copying the bibliography as well, go to the library and take a look at the available books)
Bibliography
Daube, David. Roman Law. Edinburg University Press, 1969.
Frier, Bruce W. A Casebook on the Roman Law of Delict. Scholars Press, Atlanta, 1989.
Frier, Bruce W. The Rise of the Roman Jurists. Princeton University Press, 1985.
Jolowicz, H.F. "The Original Scope of the Lex Aquilia and the Question of Damages" Law Quarterly Review 38 (1922)
Kelly, J.M. "The Meaning of the Lex Aquilia", Law Quarterly Review 80 (1964)
Leage, R.W. Roman Private Law. London, Macmillan and Co., 1961.
Nicholas, Barry. An Introduction to Roman Law. Oxford, Clarendon Press, 1972.
Thursday, February 17, 2011
Welcome to Foundations of South African Law 2011
Dear Students,
Welcome to Foundations of South African Law, one of the most exciting subjects of your entire career. In this class you will get an overview of most of the private law subjects that you will learn through your Law School journey. In continental law we call this CIVIL LAW, because it is the law to be applied for the relationships between civilians/citizens. By the end of the course you should be able to understand the structure of private law in ancient Rome, which will lead you to understand the structure of private law in modern South Africa
We are about to embark in a journey through the roots of our private law. We will travel in time and do a trek throughout history following the steps of the law from Rome before Christ, to South Africa today. In that trip we will witness the birth of South African Law and its most fundamental principles, which are still the backbone of our legal system.
Welcome to Foundations of South African Law, one of the most exciting subjects of your entire career. In this class you will get an overview of most of the private law subjects that you will learn through your Law School journey. In continental law we call this CIVIL LAW, because it is the law to be applied for the relationships between civilians/citizens. By the end of the course you should be able to understand the structure of private law in ancient Rome, which will lead you to understand the structure of private law in modern South Africa
We are about to embark in a journey through the roots of our private law. We will travel in time and do a trek throughout history following the steps of the law from Rome before Christ, to South Africa today. In that trip we will witness the birth of South African Law and its most fundamental principles, which are still the backbone of our legal system.
This experience, if you own it, will leave you with a structured idea of
the private law in South Africa, and it will give you tools to structure your
mind towards working with the law in the search for justice. It will help you
become Jurists rather than mere technicians of the rules. It will also imprint
your minds with a history that is sadly repeated over and over in modern society , only
knowing it will we be capable of getting over it.
I leave you with a piece of Cicero’s thought, so you get a taste of
what I am referring to:
"The budget should be balanced;
the Treasury should be refilled,
public debt should be reduced, the arrogance of officialdom should
be tempered and controlled, and the assistance to foreign lands
should be curtailed lest Rome become bankrupt. People must again
learn to work, instead of living on public assistance."
--Cicero, 55 BC
public debt should be reduced, the arrogance of officialdom should
be tempered and controlled, and the assistance to foreign lands
should be curtailed lest Rome become bankrupt. People must again
learn to work, instead of living on public assistance."
--Cicero, 55 BC
FIAT LUX
To get you started, take a look at this link about FAQ of Roman Law: http://archiv.jura.uni-saarland.de/Rechtsgeschichte/Ius.Romanum/RoemRFAQ-e.html
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