An Historical Introduction to Modern Civil Law

Thomas Glyn Watkin

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351958905
• Edition: 1
• Topic: Law
• Subtopic: Civil Law
• Index: Law

The civil law systems of continental Europe, Latin America and other parts of the world, including Japan, share a common legal heritage derived from Roman law. However, it is an inheritance which has been modified and adapted over the centuries as a result of contact with Germanic legal concepts, the work of jurists in the mediaeval universities, the growth of the canon law of the western Church, the humanist scholarship of the Renaissance and the rationalism of the natural lawyers of the seventeenth and eighteenth centuries. This volume provides a critical appreciation of modern civilian systems by examining current rules and structures in the context of their 2, 500 year development. It is not a narrative history of civil law, but an historical examination of the forces and influences which have shaped the form and the content of modern codes, as well as the legislative and judicial processes by which they are created are administered.

Part I
Sources and Influences

1 The Roman Republic

1. The Sources of Law

Both the main texts for contemporary knowledge of Roman law come from the period following the end of true republican government in ancient Rome. They are Gaius' Institutes, written by the jurist of that name during the second century AD, and the legal compilations ordered by the emperor Justinian during his reign in the sixth century of the Christian era.¹ Both texts list six sources of law. These sources were not all of equal importance throughout the twelve hundred years which separate the traditional founding of Rome in 753 BC from the reign of Justinian at Constantinople from 527-565 AD. The six sources of law as listed by both Gaius and Justinian are: leges, the laws enacted by the assemblies of the Roman people; plebiscita, laws enacted by the council of the plebs alone; senatusconsulta, being, strictly speaking, the advice of the senate; constitutiones principis, decisions of the emperor; magistratuum edicta, edicts of the magistrates, and responsa prudentium, the opinions of those learned in the law. These will now be discussed in the context of the development of law-making as part of the constitution of ancient Rome, this chapter dealing with the republican period and the next two with the centuries of imperial government.

Rome knew four main phases of government during the twelve centuries described above. From its foundation in 753 BC until approximately 510, it was ruled by a succession of kings, so that this epoch is called the Regal period. Thereafter, from the expulsion of the last king in 510/509 BC until the accession to power of Augustus in 27 BC, Rome was a republic. Although Augustan propaganda asserted that his actions in assuming power in 27 BC amounted to his restoration of the republic, his accession is generally regarded as the start of imperial rule, firstly in the form of the emperor acting as first citizen or princeps. This period is from that designation called the Principate and lasted until the reign of Diocletian (284-305 AD), when formal acceptance of the emperor's absolute rule was institutionalized, inaugurating a period called the Dominate, which lasted in the West until the fall of the Roman empire in the fifth century and in the East continued into the thousand year history of the Byzantine empire.

2 Assemblies, Law-Making and the Republican Constitution

The verifiable history of Roman law in the ancient world begins and ends with a text. Given that one of the features identified as typical of civil law systems in the Introduction was the tendency for law to be written, the fact that the known history of Roman law starts with a written text is significant The text in question is the Twelve Tables, and this legal compilation which stands at the beginning of Roman legal history dates from 450 BC, in the middle of the first century of republican government.²

Firm evidence for legal institutions and their development before that time is scant, sufficient for interesting speculation but not enough for reliable conclusions to be drawn. Rome was believed to have been founded by Romulus in 753 BC, who became the first of the city's seven kings. History at this point is firmly rooted in legend, the story of the foundation of the city by the twins Romulus and Remus, who had been saved from the Tiber and suckled by a she-wolf, being particularly well-known. In the eyes of subsequent generations, each of the kings embodied particular characteristics: Romulus was a warrior hero; his successor Numa was a priest-legislator, who founded the traditional Roman religion; the sixth king, Servius Tullius was credited with settling the Roman constitution.³ In later centuries, this meant that any religious practice the origins of which were lost in the mists of time tended to be ascribed to Numa, and likewise any constitutional innovations to Servius Tullius. The first four of the seven kings were Latins, but the last three - Tarquinius Priscus, Servius Tullius and Tarquinius Superbus - were of Etruscan origin, the Etruscans being the people who at this period inhabited that part of central Italy lying to the north of Rome across the River Tiber.

There is however evidence to suggest that it was the coming of the Etruscans to Rome which transformed the fortunes of the city during the course of the seventh century BC. Until that time, Rome appears to have been no more than a settlement based on two hills - the Palatine and the Esquiline - looking out over the flood plain of the Tiber towards the sea. It enjoyed, but had not capitalized upon, an excellent geographical location, commanding the lowest bridging point on the Tiber on the land route linking the Apennines to the sea. The settlement was however agrarian, the people driving out their flocks and herds in the mornings and regrouping within the hill-top settlements for the night.

The Etruscans on the other hand were craftsmen and traders rather than mere agriculturalists. Far from invading Rome, they would appear to have infiltrated the existing society and galvanized it for economic development. It is believed that they constructed a forum, in which the peoples from the various settlements could trade amongst themselves and with others; a temple, where a common cult could be developed to integrate the various tribes; and a stadium for sporting activities, in which the groups of inhabitants could compete on terms of friendly rivalry. In other words, there was an early recognition of the power of trade, religion and sport to unite disparate social groups.

Two other features of Etruscan life should perhaps be noted. Firstly, unlike the original Latin settlers, the religion of the Etruscans was based upon sacred writings, that is there was a reverence for a textual tradition. The Romans' religion is thought to have been a reverence for and reliance upon co-operation with the forces of nature, and not to have made use of either sacred texts or images. Secondly, the Etruscans would appear to have tended to demarcate sharply between an upper and a lower class in their social arrangements, a division not previously believed to have existed at Rome. Both of these factors were to be important in subsequent events.

It is perhaps against this background of Etruscan integration into the Latin settlement, that the role of the first of the Roman popular assemblies is best understood. The Roman people had three popular assemblies, the earliest of which was called the comitia curiata. It bore this name in that it was composed of thirty curiae, these being divisions of the Roman people upon tribal lines. Indeed, it is said that the comitia was composed of three tribes - the Ramnes, Luceres and Titles - each tribe being subdivided into ten curiae. Some writers hold that each curia was composed of ten gentes, the gens being a group of families which bore the same name, nomen. Each Roman had at least three names: a personal name or praenomen; a gentile name, the nomen; and a family name, the cognomen. Thus, for instance, Gaius Julius Caesar bore the personal name, Gaius, but had the family name of Caesar and belonged to the gens Julia, hence bearing the name Julius. Likewise, Marcus Tullius Cicero's family name was Cicero, but he belonged to the gens Tullia. The gens remained of importance for much of Roman history, for instance enjoying the ultimate right of succession to a member's property upon death if there were no other heir.

Voting in the comitia curiata was by curiae, and this may well indicate that in the earliest assembly certain acts which crossed the original tribal divides required the consent of the whole community. The only functions which are known historically to have been performed by this comitia were the approval of wills, which of course changed the normal order of succession upon death, and the approval of certain adoptions called adrogations, which also altered the status of a family or gens member. These functions are not the kind one would today expect to find carried out by a legislative assembly,⁴ but probably give an important clue as to the type of transaction which this comitia performed and the kind of transaction which was held at the time to require community approval.

It is also significant that the comitia was composed of divisions of the people based upon their original tribal origins, not their social status or geographical residence. Loyalties, it may he guessed, were based on family and clan interest. It was this foundation which was disturbed by the constitutional reforms attributed to Servius Tullius in the sixth century.

Servius Tullius is credited with the creation of a new assembly of the people, the comitia cenluriala. This assembly differed from its predecessor in that it was composed not of curiae but of centuriae, centuries or hundreds, familiar to most modern readers as divisions of the Roman army. Indeed, the comitia centuriata was an assembly of the people based upon military array. In its final form, this assembly was composed of 193 centuries, into which the adult male population was fitted according to their ability to equip themselves with military equipment. This ability was assessed in terms of their wealth. The wealthiest citizens were those who had fortunes sufficient to equip themselves as cavalrymen or knights, equites; those with lesser fortunes were required to furnish themselves with varying levels of equipment for service in the infantry as footsoldiers. The infantry were grouped into five classes based on wealth. The very poorest were grouped into five centuries of baggagemen, buglers and the like. There were, in its final form, 18 centuries of cavalry, 80 centuries in the first class, 20 centuries in each of classes two, three and four, and 30 centuries in class five. Moreover, in each of the infantry classes, the centuries were divided into seniors and juniors, the juniors being the men young enough to undertake the fighting, while the seniors were required to remain in the city to guard it.

A straightforward arithmetical calculation will reveal that the equites and first class of the infantry provided the majority of the centuries in the comitia centuriata, and as voting was by centuries, this meant they had political control within it. Here perhaps is a relic of the clear social division of rich and poor which was a legacy of Etruscan rather than Latin social arrangements.

The earliest comitia centuriata however did not have 193 centuries and witnessed even greater social division. The earliest version of this assembly is believed to have consisted of only six centuries of cavalry and the first class of infantry, called simply at this time the class, classis, and consisting solely of the wealthiest members of the community. It did not increase in size until the siege of Veil at the end of the fifth century and did not reach its full proportion until even later. It may be for this reason that Servius Tullius is credited with the creation of yet another voting assembly, the third of the Roman popular assemblies, the comitia tributa. This assembly consisted of divisions of the people called tribes, but these tribes were not racial but more in the nature of geographical divisions of the populace. Each citizen was allocated a place in a tribe, there being four urban tribes and a larger number of rural tribes, eventually totalling 35 in all.⁵ It is believed that this comitia was concerned with administrative rather than political affairs.

One thing however is very clear from the composition of both of these assemblies, and that is that in them, differentiations based upon racial origin has given way to a new-found unity among the Roman people. In both the comitia centuriata and the comitia tributa, the members were all united by their being first and foremost Roman. What divided them now was, in the case of the comitia centuriata, their social class or wealth or, in the case of the tributa, their place of residence. The emergence of these assemblies marked also an emergence of a specifically Roman identity among the citizens, transcending earlier loyalties based on tribal origins.

However, the new arrangements contained within them the seeds of future divisions and discontents. These problems were to manifest themselves following the revolution which ended the regal period and inaugurated the republic.

The last of Rome's seven kings, Tarquin the Proud, Tarquinius Superbus, was expelled from the city having pursued the policies of a tyrant. Following his expulsion, it was decided to avoid the pitfalls of monarchical government by establishing a republic within which ultimate political power, imperium, would no longer reside in one man but would be shared. Further, such shared power would not be given to the magistrates for life but only for the space of one year. Thus, there would be two checks upon the power of the leaders: collegiality, power would be shared between them, and annuity, the principle that they held office for only a year. The magistrates who were to wield this power, who eventually bore the name of consuls,⁶ were elected annually by the comitia centuriata and had to be from this wealthier class, that is patricians. Thus, the humbler citizens, the plebs, were excluded from the highest political office in the community

While the kings had governed, it is likely that they did so with the benefit of advice from the senate, which at that time would have been a royal council. The composition of the senate at this time is uncertain, but some believe that it was composed of the heads of the 300 gentes represented in the comitia curiata.⁷ The king would have had the authority to convene the various assemblies, as well as having the ultimate political power, imperium, to lead in times of war and preserve peace at home in the city. With the expulsion of the king, imperium passed to the consuls, who now led the armies in time of war, had the power to act against insurrection at home and to convene the comitia centuriata and the comitia tribuia. As was the case with the kings, the consuls were expected to govern with the advice of the senate, to which former consuls were now admitted after their year of office. Membership of the senate had become partly hereditary and partly by appointment, although certain functions may have been reserved to the hereditary caste. Either magistrate could veto the acts of his colleague, the power of intercessio.

The comitia centuriata had the power to pass leges, that is to enact legislation, but this power was limited to deciding whether individual proposals should be passed. The members of the comitia had no right to introduce legislative proposals into the assembly. Only the magistrates could do this. In other words, the legislative initiative was a separate matter from the decision phase of the legislative process; the consuls had the legislative initiative, the assembly the power of decision. Nor did the assembly have any right to debate or amend the proposal. The deliberative stage was in effect one for the senate. A magistrate who wished to promote a bill would present it first to the senate. The senate had no power to pass it, but they would give their opinions, individually or collectively, upon the proposal.⁸ The magistrate could amend it in the light of these comments. In addition, during the republic, the practice developed of the magistrates giving the people notice of proposals which were to come before the assembly at least three weeks before the assembly convened. Such informal contiones allowed some popular imput into the process. In 98 BC, this process was formalized by the lex Caecilia Didia.⁹ The assembly then voted on the proposal by centuries. If the law was passed, it bore the name of the consul or consuls who proposed it; thus, a law proposed by a consul from the gens Valeria would be called the lex Valeria, and so on. The year was also recorded according to the consuls who held office during it.

In this legislative system, one sees already the separation of the legislative initiative, the deliberative phase and the decision-making phase...

Table of contents

• Cover
• Half Title
• Dedication
• Title
• Copyright
• Contents
• Preface
• Introduction
• Part I - Sources and Influences
• Part II - Private Law
• Part III - Public Law
• Conclusion : The Future of Civil Law
• Select Bibliography
• Index of Persons and Places
• General Index