System characteristics
Roman law is the foundation of the legal system in many countries today. The so-called "civil law" originated from Roman law. In the countries of continental law system in Europe and many countries in South America, due to the existence of the French Civil Code, there is a close relationship with Roman law. In countries and regions where common law system is practiced, the influence of Roman law is relatively small.
The origin of Roman law is the famous twelve tables method (449 BC). After that, Roman law developed greatly, and after several centuries, it formed the cornerstone of laws in many countries today.
For example, Roman law puts forward the difference between contract and tort. Prior to this (such as ancient Greek law), the non-performance of the contract was simply regarded as a tort. In addition, Roman law also puts forward the difference between possession (a factual state: someone owns an object) and ownership (a right: someone can do anything with an object). In addition, the concept of modern contract comes from the consensual clause in Roman law.
Roman law can be divided into "civil law" applicable to nationals and "civil law" used by foreigners. The latter is the origin of private international law.
Roman law reflected the reality of the Roman Empire at that time. The Roman consul ensured that the law could adapt to the changing needs of the rapidly expanding empire. However, this change is still completed under the traditional value system. The consul does not modify the code, but solves new problems through new explanations or modifications. This dependence on tradition and suspicion of change are exactly the characteristics of Roman thinking.
compilation process
In 438 AD, Emperor Theodosius I compiled the laws of the empire into the Code of Dior. This compilation is only a collection of constitutional orders signed by successive emperors after Constantine the Great (306 -337). A century later, Justinian the Great reorganized and summarized most Roman laws and compiled a four-part Complete Collection of National Laws. This code is the epitome of Roman law.
The first part is "Codex", which collects the decrees of emperors since Emperor Hadrian (1 17-138). The second part is Digesta or Pandectae, which collects the theories of legal scholars who were given the right of reply during the Roman Empire. This part * * * consists of 50 volumes, which took 3 years and was completed in 533. At the same time, the emperor ordered the editing of an introductory law textbook, Iustiniani Institutiones, which is very classic and is still used by law students. The book consists of four volumes, which aims to provide an overview for students studying Roman law. Different from ordinary textbooks, the content of this book has been given legal effect. This textbook is also the third part of civil law. After Justinian's death, jurists sorted out the constitutional orders issued during his reign and compiled them into a series of novels, Justinian Constitution. There are more than 100 articles in the new law, which were published in Greek and Latin, and so far 152 articles have been circulated. 1583, the French jurist Dennis Gaudifoy used Corpus Juris Civilis for the first time to refer to all the codes compiled by Justinian, including the new laws.
After the completion of the whole compilation project, it is forbidden to make any comments or other legislation on the encyclopedia of civil law.
The development of Roman law can be divided into three historical periods: Roman Kingdom, Roman Republic and Roman Empire. The first period, that is, the legislative period, includes the early days of the kingdom and the Republic. In the 3rd century BC, Roman law entered the period of formula. From the early Roman Empire, Roman law entered the last stage, that is, the period of legal cognition.
The Acceptance and Influence of Roman Law
Roman law occupies an important position in the history of world legal system. As Engels pointed out: "Roman law is a perfect commodity production law before capitalism, but it also includes most legal relations during the capitalist period." This is the first law of commodity producer society in the world.
With the demise of the Roman Empire, Roman law lost its national legal effect. However, as one of the important cultural heritages of mankind, it still affects the development of the world legal history with its powerful charm. The two major legal systems in modern western countries-continental legal system and Anglo-American legal system-constantly learn from and absorb the essence of Roman law to varying degrees.
The division of Roman law between public law and private law and the system of personal law, substantive law and procedural law have always been the basis of civil legislation in civil law countries. The theory of human law originated from the natural law theory of the Stoic school in ancient Greece. Roman jurists founded the theories of "natural person" and "legal personality" on the basis of the material and spiritual wealth provided by pioneers, which laid the foundation for the theories of "subject of civil rights" and "legal person". The definitions of capacity for rights and capacity for conduct in later civil laws have been demonstrated in detail in Roman law.
In Roman law, "action in rem" and "action in person" actually refer to "property rights" and "human rights", which are the theoretical basis for the division of property rights and creditor's rights.
The definition of Roman law that ownership is the owner's "most complete right to control things" and the theory of possession, use, income and disposal of various powers are directly summarized in Article 544 of the Napoleonic Code. Other original acquisition methods, such as preemption, attachment, processing, burial, fruits, prescription, delivery, bequest, split judgment, public sale, etc. , very detailed specific system, such as usufructuary right and security right in other real rights, classification of things and protection of real rights. , but also infiltrated into the private laws of later countries to varying degrees.
In the aspect of creditor's rights law, German jurist Gustav Hugo (G? Hugo, 1764- 1844) summarizes the concept of legal act (first introduced by the German Civil Code 1900) according to the necessary conditions and principles of various "businesses" that the right subjects engage in to establish, protect, change and eliminate civil legal relations. Contract and quasi-contract theory, including negotiorum gestio, unjust enrichment, guardianship, averaging, etc. Theory of testamentary succession and bequest, legal liability for breach of contract and principle of tort liability. It is highly praised by civil law scholars in contemporary countries and adopted by civil laws in various countries.
In contemporary commercial law, maritime law and other specific systems of civil and commercial law, traces of Roman law can be seen everywhere.
Of course, some areas of Roman law, such as criminal law, have less influence on later laws than civil and commercial law.
The influence of Roman law on European countries has never stopped since the Middle Ages. It was completely applicable in the Eastern Roman Empire. During the 7th-9th century, it was an important legal source of Byzantine Empire and influenced the laws of Slavic countries and Russians. It was only after the demise of the Western Roman Empire (5th century AD) that Roman law was submerged by the war lit by the Germans there. But at the same time, the "barbarian countries" applied Roman law to the residents of the former western Roman Empire according to the principle of individualism while promoting Germanic law and Catholic church law.
Although the Roman law applicable at this time was not the compilation of Justinian law, but the norms needed by the society at that time, some Germanic kingdoms had to compile and sort out the Roman law scattered among the people in order to meet the urgent needs, among which Alaric II (Alaric II 400-507), the visigothic kingdom, organized and compiled the most famous and influential. At the same time, there are many "barbarian codes" (collections of Germanic law habits) that confirm the relationship between Germanic law and Roman law and the legal effect of Roman law. For example, the Proclamation of the East Gothic King Diodo stipulated that Roman law was applicable to the Romans. The Lombard Code, compiled in 643 AD, clearly stipulated that Roman law should be applied to disputes between Romans.
Geographically, the laws of the Eastern Gothic Kingdom of Italy in the 6th century A.D. were always under the control of Roman law. Although Lombardy invaded Italy soon and settled for a long time, the southern coastal cities of this country were still governed by the laws of the Roman Empire until the middle of 1 1 century. In the south of France, alaric's Roman law collection is enduring, hence the name Roman law district. It can be seen that after the demise of the Western Roman Empire, Roman law continued to exist in various parts of Europe in different forms and to different degrees.
Since the12nd century, there has been an upsurge in the study of Roman law in western European countries, which is called the reform of Roman law in history. Through this revival, the application scope of Roman law has been expanded, and Roman law has been accepted by various countries in combination with their own reality, and Roman law has become the "common law" in Western Europe. The fundamental reason lies in the legal situation in the late Middle Ages, which can not adapt to the developed commodity, currency and economic relations. With the gradual restoration of old cities and the establishment of new cities, people began to pay attention to movable property instead of real estate, and many new relationships emerged constantly, but the dispersion of the dominant local customary laws and laws obviously could not meet this need. Although there was a commercial law at that time, the commercial law only adjusted the relationship between businessmen and between businessmen and non-businessmen because of commercial activities. Commercial courts are only located in cities and do not accept cases from parties other than businessmen. Furthermore, before the14th century, western Europe was still in a feudal state except Britain, and monarchs of various countries generally could only exercise their power within their own jurisdiction, naturally lacking the premise of relying on royal decrees and royal court judgments to meet the growing new economic needs. In this way, people will naturally be attracted by Roman law, because as Engels said, "in Roman law, everything that the civil class unconsciously pursued in the late Middle Ages was ready."
The revival of Roman law began in Italy. 1 135 years, the manuscript of Justinian's essays was discovered in amalfi, which aroused the interest of Italian jurists in studying Roman law. In fact, this statement is not accurate Savigny, a German jurist, proved in his History of Rome in the Middle Ages that in the early Middle Ages, the manuscripts of the collection of Justinian laws were kept in the church collections of European countries and were often quoted by canon law scholars. In the 7th-11century, secular and ecclesiastical grammar schools in Italian cities did not stop learning Roman law. Law schools in Provence, pavia, Lavaine and especially in Bologna are all teaching Roman law.
Bologna University, known as the mother of modern universities, was established in 1 158 by a charter granted by the German emperor. /kloc-in the third century, thousands of students from all over Europe came here to study Roman law. Scholars use annotation to study Roman law (hence the name "Annotation Law School"). Its founder is Gillner, who is called "the lamp of law" because of his great contribution to the study of Roman law. Gillner's favorite students are bulganus and martinus. Berganus specializes in strict annotation of laws and regulations, while Marthinus tries to find a fair interpretation method. In addition, the famous jurists Azo and Acurius are masters of the school of standard annotation law, and they have made great contributions to the revival of Roman law.
In order to combine Roman law with medieval European social practice, in the14th century, the "critical law school" came into being. It originated in France, and according to the needs of the times, it used the principles and systems of Roman law to transform the backward customary law in France, thus making a new breakthrough in the study of Roman law.
By16th century, most new schools of law belonged to humanists. The method of studying Roman law has also changed from discussing the historical development and evolution of Roman law to discovering the true meaning of Roman law, thus becoming the pioneer of modern historical law school. At the same time, yust Ting is called "cpus iuris civilis" corresponding to "Church Law". This name is not original. Since 1583, The Complete Works of Gotofredo was published in Genoa, this name has been widely used. Since then, Roman law has become the common law of most European countries, supplementing the shortcomings of laws and customs of various countries. Just like kike (a? Giercke) pointed out: "The living Italian law ... has crossed the Alps".
According to the rule of * * *, the acceptance of Roman law was not simultaneous or immediate, but lasted for centuries and varied according to the history and present situation of each country. Switzerland and Scandinavian countries were least influenced by Roman law.
Apart from Italy, Roman law has a greater influence on the Netherlands. In 65438+5th century, Roman law was accepted by Holland. By the17th century, Dutch rulers skillfully combined Roman law with their own customary law, so they were called "Roman Dutch law". Courts in the Netherlands generally apply Justinian law to supplement the shortcomings of local laws. However, after a period of French occupation, the Netherlands formulated its own civil code in 1836, thus having a typical form of Roman Dutch law. Prior to this, the French occupiers executed the Napoleonic Code in the Netherlands.
France was also one of the first countries to accept Roman law. Since the beginning of 12 century, a large number of scholars have gone to the University of Bologna to study. In the next 200 years or so, French law was basically dominated by the Italian school of annotation law. France has established many universities following Italy's example, such as the University of Toulouse, the University of Paris and the University of Orleans. All universities have law departments, and Roman law, as a main course, is valued by teachers and students. /kloc-After the rise of the humanistic school of law in France in the 6th century, France surpassed Italy in the study of Roman law and gained a leading position in Europe.
The research activities of the humanistic school of law promoted the development of the southern and northern France in accepting Roman law to varying degrees. The influence of Roman law on the southern statutory law areas has been expanding, and for the northern common law areas, the principles of Roman law have also penetrated into the judicial decisions of the royal courts and local courts. Of course, unlike the southern region, the northern region only recognizes the theoretical authority of Roman law, accepts its principles and spirit, and does not directly recognize its effectiveness.
Although there are a large number of local customary laws in France, apart from the prevalence of canon law, the complexity and dispersion of laws often remind people of Voltaire's famous saying: a traveler crossing France often changes the laws he can apply, just like changing other people's horses. However, after15th century, people are generally accustomed to such a legal life: wills are governed by church law and contracts are governed by Roman law. After the French Revolution, the situation continued to change: Napoleon's civil code completely accepted Justinian's system of dividing people and things by legal ladder, and unabashedly followed the principles and systems of Justinian's Complete Book of Civil Law. This code not only applies to the French Empire, but also becomes the basis for many other European countries to formulate codes. Engels called him "the code of a typical bourgeois society", which, after some modifications, still becomes the current civil code of France.
Laval and Barcelona in Spain are governed by Roman law because of their borders with Italy and France. The Roman law applicable to Laval is the Roman law with the annotations of the Italian Annotation School. Jurists in Barcelona acknowledged that Justinian law has the effect of supplementing laws, calling local laws "domestic laws" and Roman laws "common laws". The local customary law named usatici implemented in Barcelona, some of which directly quoted the original text of the Essays, and many chapters were based on other documents of Roman law. Spain sent many scholars to Italy to study Roman law, and Italian jurists have been teaching Roman law in Spain.
Ferdinand III of Castilla, Spain, and his successors hired Roman jurists to serve in the king's advisory office and the royal court. Later, Roman jurists compiled the King's Code for the royal family, absorbed the principles and spirit of Justinian law, and formulated a series of royal decrees, letters and parliamentary regulations. Alfonso X promulgated a seven-part code in 1265, which included most of Roman law and was implemented as common law. 1348, Seven Classics was designated as a university textbook. This book was later incorporated into some laws of Central and South American countries, Mexico and Louisiana.
Medieval Germany, like France, was in a state of separatist regime for a long time, and the emperor was held by seven candidates in turn. However, the German nation has always regarded itself as a continuation of the Roman Empire, calling its country "Holy Roman Empire" from the 10 century, and renamed it "Holy Roman Empire of the German nation" in the 15 century. Therefore, the influence of Roman law on Germany is naturally not inferior. Successive German emperors declared that Roman law was effective throughout the country. In real life, Roman law is applied from imperial courts to local ordinary courts. All judges and lawyers trained in Roman law work in accordance with Roman law. /kloc-in the 6th century, a system was also formed: the court should seek the opinions of university lawyers in advance for the judgment of difficult cases. In connection with this, jurists and professional judges skillfully combined Roman law with German customary law, local law and even church law, thus formulating a series of written codes.
Bavaria is in the forefront of codification, followed by Prussia, but the most striking is the German Civil Code, which came into effect in 1900 after the reunification of Germany. It is based on eustace's theory set. Although its architecture is not as obvious as the Napoleonic Code, it is in the same strain as Roman law. As Leris said at that time, "If we want to make a code without Roman law, we may have a German code without German law".
Britain has never experienced the baptism of the revival of Roman law, and has embarked on a unique development path different from continental law in Western Europe. But even so, it accepted the influence of Roman law without exception. King fleet (Alfred the Great 87 1-90 1) and Edward (Confessor 1043- 1066) are both famous for attaching importance to legislation. In 855, Al fleet came to Rome. He was able to read and write Latin and learned a lot from Roman law. Edward fled the Danish invasion in his early years and spent most of his time in exile in France, living among monks in Normandy for a long time. Their legislation is written by Catholic monks. They are familiar with Roman law and will naturally introduce English law. After Edward returned to China, he brought many Norman monks who were familiar with Roman law and appointed them as judges and other important positions.
When Western Europe entered the period of Roman law revival, in 1 149, Vaccarius, an Italian scholar and lost horse scholar, went to Oxford to teach Roman law at the invitation of Archbishop theobald of Canterbury, and Roman law officially began to spread in Britain. Vicarius also published a book about compiling Justinian laws and theories. During this period, some legal works published in Britain absorbed the principles of Roman law to varying degrees, which can be reflected from The Law published by glanville about 1 188 and The Laws and Customs of England published by bratton about 1259. These two works have had a far-reaching impact on the development of English law. According to textual research, bratton learned Roman law from Vicarios, and he also explained this point in the preface of the above works. The first three volumes of this book are based on personal law, substantive law and procedural law respectively, which shows that it is based on Justinian's legal ladder. Most of the other contents of this book are based on the encyclopedia of law and the study of the code by the Italian annotation law school Yazu.
/kloc-In the mid-4th century, Britain also absorbed the experience of foreign affairs judges in Rome, made up for the defects of "civil law" with so-called "fair" and "just" judgments, and established the "court of equity", thus producing the "equity law" in Britain. As one of the main contents of equity, trust has absorbed the usufructuary right of Roman law and the experience of trust will. Others, such as commercial law, maritime law, bequest, partnership, fraud, mortgage and the legal capacity of minors and mentally disabled people, also mostly originated from Roman law.
The influence of Roman law on English law can be verified by the limitation of easement. Obtaining easement through prescription is an ancient system of Roman law, which was first seen in the Law of Twelve Bronze Tables. Its basic principle is that easement (such as right of way) is a right based on continuous and global use within a necessary time. During the Justinian period, the law stipulated that when an easement was enjoyed nonviolent, openly and stably (nes vi, nec clam, NEC Precario) for 65,438+00 years or 20 years (depending on whether the owner of the service place is local or not), an effective and legal easement was confirmed.
In determining the meaning of the term "actual use of acquired rights", the English courts adopted the terms "nes vi, nec clam, nec precario" in Roman law. In the case of 1879 stur GIS v. Brecci, the judge Lord thesiger said: "The basis of the prescription system includes the consent or acquiescence of the owner of the workplace. The inference of ambiguous consent, that is, the act or actual use of such consent, must be proved to be one or the other of the following characteristics, that is, "non-violence, openness and stability" in Roman law terminology.