European Legal History

Per formulan procedure and ius praetorium

-courts were flooded with new kings of disputes and cases -cases were brought forward for which the ius civile offered no answer -the use of statute law as an instrument for legal change, particularly in the field of private law ran counter to tradtion, -change came from the administration of justice its self, by the emergence of legal procedure

Augustus

-Octavian had to restore peace and prosperity of rome -the power struggle had disrupted the ranks of the senatorial and equestrian orders -italy's economy was in disarray -countless roman families had lost their farms and rome had lost its hold over the provinces -he returned the power to the senate and the people -he said he wanted to restore the republic, the senate in return bestowed upon him the name of Augustus -he was also given a number of power by the senate that confirmed his position as the strong man of the state -he did not enjoy total supremacy -buy was awake that he could be unable to stay in power while restoring order without the consent of the major families and the political elite -he did not desire to become king, the government created was a mix of the former triumvir and the majority of the senate. He made an effort to restore republic values -during the 40 years he was in power he managed to keep peace and stability, he made use of propaganda to promote his authority and policies -his policies were aimed at the restoration of agriculture, industry and commerce

Army Reform

-between 235- 284 no fewer than fifty emperors succeeded one another -this was due to external problems as rome saw its self confronted by the persian empire -the Sasanians defeated the roman empire three times, capturing and killing emperors -the new strategies by Hadrian proved to be inadequate to deal with the struggle -Rome tolerated numerous client states and other smaller states that acted as buffer zones against external attack on the empire -if an invading army cut through the buffer zone, the corps located at some distance from the borders would have the time to prepare and launch a counter attack -rome also exercised a policy of terror against its neighbours, sooner or later any harm afflicted on the empire would be avenged. -Hadrian incorporated large clients into the state and strengthened the borders, but the troops were thinly spread

Classical Roman law

-between 50BC and 250 AD- marked the Principate- and the age of classical roman law -the Digest came from this generation -at the start of the Principate the praetors edict had reached its final form -the ius honorarium came to an end -Emperor Hadrian in AD 130, asked Julianus to record and fix the praetorian edict , he said this edict should be applied for all time this was called the Edictum Perpetuum -the praetors had lost their role in the formation fo new laws -this role was taken over by the jurists -their responsas were now written and under seal

The challenges of the empire

-Rome was a community of farmers and warriors -the conquest of italy had wrought changes -but rome nevertheless remained a fairly small city and an agriculture mentality -Rome granted the subjugated tribes self government -but by the end of the second century BC, the roman elite found its self at the head of an empire. -the roman farmers suffered from almost continuous warfare -the roman army was a citizens army, all males with the exception of the members of the unpropertied class were required to serve in the army -military campaigns were usually held in the spring and summer and were conducted close to home -when soldiers returned home, they had great difficulty in adjusting to peaceful lives as farmers and as family men -the lands previously owned by small land owners now were in the hands of a few wealthy families -country estates or latifundia, that thrived on cheap labour, hired hands, and slaves emerged -slavery also played an important role in trade, mining and industry

The equestrian order

- a new order emerged along the plebs -drawn from that element of the citizenry who were wealthy enough to perform their military service on horseback -evolved into a separate middle class -came to control trade, industry and banking in and outside of rome -senators were subject to strict limitations with regard to commercial, maritime and industrial activities. -they were required to invest their wealth in land and farming -although many senators circumvented this by means of legal arrangements with slaves, freedmen and family members -the equestrians controlled the huge flows of money between italy and the rest of the empire -remained out of politics the ones that tried and had success became senators and promoted their families to senatorial order -the senatorial order was continously replenished and the political elite remained in touch with the economical elite - in the first century BC, the two came into conflict, over financial, economic and legal issues -one of the disputes was whether the jury should consist of equestrians or senators, or of members of both orders. -another point was related to tax farming.

The proconsuls

- as indicative above, the republican institutions were geared not to an empire but to a medium sized city state -it was not intended for the efficient administration of an empire -the defence of and control over the empire was left to the magistrates, military commanders assigned to the provinces -some of these amassed such power that they became uncontrollable, independent power brokers with in the republic. -the proletariet-the propertyless infraclassem- was after all excluded from compolsury military service -General Marious, implemented a reform saying that he admitted the proletariat into the army, and provided soldiers with long term appointments and service for pay -loyalty to the state was supplanted by loyalty to one's own commander -if a war did drag on the magistrates would simply take over command or the commander in chief's imperium would be temporarily extended -From the second century, the wars were conducted from or in a particular provincia -the term provincia could refer to any region that came under the roman sphere of influence -often submission to rome meant that the people living there recognised their defeat to rome, and accepted its lead and hegemony. Rome left the subject people a great amount of autonomy in their internal affairs.

Useful Latin Words

-Cives: Citizens -URIA Propia-Particular laws, or infinite laws

Rome and Greece

-Rome was influenced by Greek culture -Greek literature, philosophy, rhetoric and art were admired adopted and imitated by the Romans -As conquerors of the Greek world the Romans regarded themselves as the new masters of Greek culture -Greek culture enriched roman identity -Romans contributed so much to the field of law, not even war compared -it was the pragmatic genius of the romans and not he systematic thought of the Greeks that led to Roman law to such heights -It was the re-discovery and study of roman law in the late eleventh century that triggered the development of European legal science and civil law traditions

Etruscans

-broke through the traditional power constraints that came from the co-operation with the latins and the sabrines -and amassed an unlimited power called the imperium of political, legal and military power -they resembled greek tyrants more than kings -509 BC ended the monarchy

Early codifications and the law of citations

-Codex Gragorianus was (291) was a collection of constiutions starting from the reign of Hadrian -the constitution followed the same traditional thematic ordering as the digests -Codex Hermogenians (295) contained mostly constitutions from the years 293 until 294, -these codices were the product of private initiatives they were not compiled on instruction by the emperor -the call to enhance clarity and accessability became even louder -the number of responsas and rescriptas became even louder -many were contradictory, and there was often doubt as to what should and should not be regarded as authoritative -the judges adminstrators and citizens in italy and the provinces neede a more straightforward and clear cut system of law that provided greater certainty and clearer frame of reference -the emperor of the Dominate took initiatives themselves to compile the law and to establish what they considered to be authoritative sources of law -Emperor Constantine was the first to promulgate legislation granting formal authority to certain works by classical jurists while imposing a prohibition on the use of other works -By means of those rules, the emperors sought to inject order into the mass of scholarly opinions, at the same time they confiscated the body of private jurisprudence and made it their own -The Codex- 438 AC, known as Codex Theodosianus, divided into 16 chapters, contained rules of public law

An Oligarchic republic

-During the regal period rome had three important institutions 1) the King 2) the senate 3) the popular assemblies -the king enjoyed virtually unlimited imperium, by the end of the period, he was supreme commander of the army, high priest, chief justice and legislator -After the coup of 509, the patricians decided to carve up the military and administrative imperium of the king and divide it among the magistrates -the kings religious power was taken over by the priests -The senate and popular assemblies continued to exist -The senate dominated the daily affairs of the state - the roman republic was an aristocracy or oligarchy under the members of the small elite constant vied for power among themselves ( the leading figures from the senatorial order)

Huns and Germans part 2

-Germanic leaders had made a career as officers in the Roman army -Germanic kings increasingly started to behave as auntonomous rulers in the parts of the empire where they had settled -Germanic and other allies and vassals of Huns into italy and vassals of the Huns into Italy and taken service in the imperial army, deposed the last Western emperor (Romolus Augustulus 475-6) -the insignificance of the last roman emperor is shown how Odovocar, didn't even bother killing him just imprisoned him -no new emperor came forward in the West -the Germanic commander who assumed the roman title of patricious claiming to have received it from the eastern emperor, send the insignia of the imperial office to Constantinople and there they remained.

Justinians first code

-Justinian (527-65) sought further codifications of Roman law -529 AC, called the Codex Justinianus, was a complete collection of imperial legislation that would not merely supplement but replace the existing codes -the work was completed in one year, by Tribunianus. It has been lost

Digesta and Institues

-Justinian also had the literature of classical jurists codified called the Digest -was divided into 50 books -the order of the Codex was maintained -also known as the Pandectae- was finished in 533 -Justinian forbade other scholarly opinions not contained in the Digesta, from being citedin court -Justinian purpose was to inject order into the large and unwieldy mass of roman jurisprudence -he forbade anyone from adding commentaries to the Digesta, in the future - he tried to freeze jurisprudence in a similar way to how Hadrian had frozen the evolution of praetorian law by laying down the edict -Justinian affirmed himself as the sole legislator the sole source of law in his empire -The Institutes of Justinian was his third book, was a lot like Gaius, it was an introductory textbook on Roman law 533 Codex 529, Digesta 533, Institutes 533

The DIGESTA

-Justinian did not want roman laws to be forgotten, and asked his lawyer Tribunian, to gather all available materials along with other lawyers and create the DIGESTA, this was all done in Latin and was a mentioning of all Roman laws -Justinian in the mean time re-concored Rome, but only for a generation -the DIGESTA was later found in 1100 in a building in Pisa by a man, brought to the church -a group of nobles came together to study the DIGESTA, this was called the Universitas, Magistratorioum (teachers) Et (and) Scholarium (scholars) - Everything that existed prior to the 6th Century was Roman law after that the Digesta was found it changed to common law

The Corpus Iuris Civilis

-Justinian's legislative efforst may be regarded as a genuine codification -anything that did not appear in this new collection was abolished -this was the only source of law -it was a reorganisation of roman law not a radical reform

Patricians and Plebians

-Latin and Sabine population consisted of a large number of gentes (clan), members all descended from one legendary ancestor -These Gentes such as Cesare traced their lineage down to Gods and heroes -at the head of these gentes (clans) stood a clan leader called pater familias -there was a degree of equality between these gens, and all property was collective -By the 9th century BC, the patres familias put an end to the system of collective property, and took the lions share of the clan's property. -in this way, the clan leaders and their families distanced themselves from the population . -Kings increased their power -This group was called the Patricians -The kings incorporated the population of conquered areas by granting them citizenship and counter balancing the power of the elite -these people, along with the non-gentes of rome were known as the Plebeians.

Roman laws

-Law was created by romans. There are two major laws 1) Law of Rome 2)The IUS Commune -IUS means law and commune common, so common law -before the IUS commune they concentrated on IUS Civile

The rise of the Plebeian Order

-The coup in 509 BC that brought down King Superbus, was led by the patricians -they decided to divide the Kings imperium among various magistrates to be elected each year -First these magistrates were only patricians -the early century of the republic was marked by the class struggled on one hand and on the other by constant wars -With the loss of K. Superbus, the plebeians lost their political patron and -the patricians controlled and monopolised the most important institutions: the Senate and the magistrature -in 471 BC, the plebeians obtained their right to create their own popular assembly (concillum plebis) and to make laws (plebscita) applying to themselves -In 451 BC, the ius civile- the law of the twelve tables- was written down, it was the law of and for the Roman citizenry -the law consisted mostly of the rules of the mos maiorum, (the customs of the ancestors), which served to constrain the arbitrariness of the priesthood

The Priesthood hood and the dictatorship

-The pontifical colleges, were an important institution -the most important of these colleges were the pontifices, under the direction of the pontifex maximus (high priest) and of the augures, the official diviners of the will of god -the administration of justice was in their hands initially -it was later given to the praetors and aidilers -they did keep power over the religious courts -since the priests did play a role in public festivities and ceremonies, membership of one of the most prestigious colleges led to public notoriety -on more than one occasion, a meeting was postponed or a decision enforced for religious reasons - in times of emergency, the senate could suspend the normal operation of the institutions of state -a dictator with an unlimited imperium would than be appointed for a limited of time -once the state of emergency would be lifted, the dictator would stand down again -dictators for life were appointed on two occasions Sulla and Cesare

Imperial Legislation

-Under the principate, the popular assemblies, including the concilum plebis, lost their control over the legislative process -gradually they were convened far less frequently -The Senate decisions were merely advisory opinion, it happened that senate decisions were not submitted to the popular assemblies, but it was applied immediately - during the second century, legislative power was confined to the senate -the jurists of the second and third centuries accepted that the senatuconsulta had force of law -Papinian included Senate decisios alongside statute laws, plebscites, imperial decisions. -Most of the senate decisions were introduced by the emperor -In this way the legislative power shifted form the senate to the emperor - in the 3rd Century AC, imperial legislation became the most important source of law -the declina of customary law, case law and jurisprudence as legal sources was related to the transformation of Rome from an aristocratic republic into a military and bureaucratic dictatorship.

The emergence of an autonomous regal science -Part 2

-a number of senators became true legal experts, they were systematically consulted by praetors and other magistrates, judges, advocates, and litigants on points of law -some greats jurists at the time were also advocates, but these two became separated by the first century BC -Respondere- refers to rendering an advisory opnion on points of law in the context of specific cases -many judges were also drawn from the senatorial and equestrian order -it was customary for a magistrate to enlist the assistance of a council of advisers, consillum, for the exercise of his office -jurists tended to give their advice orally and in the forum -training as a jurist consisted of little other than following, listening and clereking for an accomplished jurist Judges had three jobs 1) Give advice, called Respondere, which is give advisory opinions on the law in the context of a specific case 2) Agere- acting. Pleading before the court, it became less frequent and became confined in the 'in iure' stage of legal action - in the Apud iudicem stage, here is where the advisors would truth came to be argument- the art of oratory reached its apogee in rome 3) Cavere- drawing up written documents such as documentary evidence such as contracts, and wills -they were called jurisperiti, experienced in law -they were as much practioners of law as they were scholars -among the great names of early roman jurisprudence in the Late Republic, the elders were Paetus, Cato the Censor, Scaevola, Gaius and Servius

Common Law

-a scholarly unpractical style of law, but everyone studied it -unitying law in Europe -The British were against this, and hence Roman Law was forbidden and used Barbarian traditions and called in common law. -The actual Common law is roman, what they created was a different common law. DONT GET CONFUSED. two different common laws, roman and british -In the USA, all a lawyer needed to do to become a lawyer was to do many internships and learn form there

Science and Systematisation

-according to Aristotle's knowledge, each concept is defined by 1) summarising all the attributes it shares with other members of the same class or subclass. 2) describing tall the attributes that turn it into a separate subclass or a unique phenomenon -everything is transformed into a pyramid of classes, sub classes and concepts within which each piece of data is classified. -The Topika of Aristotle enables the logic to test the validity of his arguments by re-placing them in the wider context of all knowledge

The Princes of the Senate

-anyone who became a consul elevated his family and all his descendants to the nobility -the nobles formed a small band at the top of the senatorial order -it was difficult for a non nobel to be selected as consul -the nobility kept as a small group around 30 families -At the senate the presiding consul would introduce the issues and invite others to speak according to strict hierarchy -the presiding consul was followed by the consul elect for the next year- if these had already been elected- and be ex-consuls called consulares -were asked to speak in order of seniority -one of the older consulares would be designated by the censors as princeps senatus -he was the first of the consulares allowed to speak -afther consulares the praetors- elect, the ex-preators and the incumbent preators. -the pedarii- that is those who had never got further than quaestor- were rarely ever called to speak

Human law and morality

-as the law was not divine in its origin it did not necessarily sustain the order of thinks as it was willed by the gods or in modern times, morality. -to the mutable nomos, the sophists opposed the immutable and eternal fysis (nature) -natural law was given to humankind at the beginning of time. -it was immutable and beyond human will -nomos by contrast is based on consent and need not to be in accord with the laws of nature -human law is morally neutral -law is what people say the law is, irrespective of its substance -Crito advised Socrates to escape, everything was ready but Socrates refused, he considered he had to abide the law even if he was unjustly accused by it -for the first time, the law was perceived as a flexible instrument in the hands of men

the decline of the republicans institutions

-augustus brought the Senate up to strength with representatives drawn from all over the empire, ensuring himself a majority -the most important power of the popular assemblies shifted to the senate -including the power to legislate and elect magistrates -the jurists of the principate held that the decisions made by the senate held judiciary law. -most of the legislative proposals came from the emperor -the consulate remained the highest position -this is because it led to the position of army commander and of proconsul -the position of queastor remained important to enter the senate -the tribunes plebis lost its power but remained standing

Two Stages of the legis actio procedure Legis Actio

-each legis action could be used to enforce various rights protected by the ius civile -by using certain legis action, one indicated the kind of right one wished to defend or claim before the court -the oldest form of the legis action was the legis action sacramento meaning a ritual wager -this could be used in rem or in personam, in rem it was applied in order to vindicate a thing, both parties had to appear before the priest, the plantiff formulated the vindicatio (claim) whereby he graped one thing, the defendant did exactly the same -the plaintiff challaenged the denfendent to take an oath (sacramento) under which he was required to provide a monetary stake which he would lose if he were found guilty, the defendant did the same. -came to be applied over ownership of cattle or slave, the legal remedy would then be known as rei vindicatio but also solved the problem of patria potestas, paternal authority. -in personam concerned a claim with respect to another person -this stage was highly formalistic, -the leges actiones were religious in origin -the plaintiff and defendant were asked to take well defined actions and to pronounce particular words so that the legis action selected could be applied -if not the case did not have to be brought before the judges,

Aristotle

-each phenomenon has two dimensions 1) Hyle (substance or matter) 2) morphe' (form ) -each phenomenon has matter and form -Aristotle does not have a clear metaphysical freamwork like Plato, he recognises the existence of a higher, abstract beyond the physical matter -each object and each living being carries within it the desire to for the perfect form and seeks the actualisation of an ever higher and purer form -it carries within the potentiality for change and improvement -for this reason Aristotle, in contrast to his master, regards the study of physical phenomenon as useful and necessary in the quest for true knowledge

The Rise of Christianity

-emperor Constantine is celebrated in history as the first emperor to recognise christianity -also build constantinople, the new capital as well as the church of Saint Sofia

Praetor

-established in 367 BC -there were 9 praetors -he started by being the junior colleague of the consuls with fewer powers and less authority -by the third or even second century BC, that the praetors were given the responsibility for the dispensation of justice in rome. -had to be 39 to become praetor -the person elected with the most votes became the urban praetor (praetor urbanus) and was responsible for the administration of civil law in the city of rome -the peregrine praetor was concerned with the disputes in which foreigners were involved -others were responsible for special courts while others again were given a province to act there as roman's representative and as a military commander

Augustus part 2

-expanded the ranks of the senate and the equestrian order with new elements so as to re-establish the pool of political and military leaders -he also reorganised the provinces -and rounded off the borders of the empire -a degree of roman administration was introduced around the empire -all the provinces were given a genuine provincial governor, as an imperial official -since rome was a republic and augusts not a monarch, his succession became a problem -he adopted Tiberius, and one of the most successful general sand administrators in his own right, and conferred powers on him -the new form of government known as the Principate was confirmed.

Roman ius gentium

-found themselves dealing with disputes in which at least one non citizen was involved -the courts did not apply the ius civile -242 BC, the praetor peregrine, was appointed, he held iurisdictio over all cases involving non citizens -the Peregrien praetors developed the roman ius gentium, the law of nations -it was not an international law, as it was of roman origin - neither was it public law -it was a universal private law, it was applied to all cases brought before the roman court in which one or more foreigners were involved -since it was developed by the peregrine praetor it was ius honorarium, and even ius pratorium -he drew up the edict, later known as the provincial edict, in which he summed up the formulaw he could be admitting the coming year -the ius gentium was totally separate from the ius civile -it escaped the formal constraints of the law -this praetor enjoyed a large measure of freedome and was more at liberty thatn the urban praetor to focus on substance of dispute -the ius gentium could evolve into a system of fairly general rules in which considerations of reasonableness and fairness were dominant - the imperial age associated the ius naturale and ius gentium with one another -Ulpian distinguished natural law and the law of nations form one another in that the former applied to all living creatures and the latter only to human beings. -his assertion was adopted by emperor Justinian together with Gaiu's definition in his institutions -mean attribute is that it distinguished men from beast

The emperor and the Senate

-gradually the republican political institutions were eroded -power was transferred to the emperor and his court -over a period of 3 centuries this de facto situation became formalised, until eventually after 284. -at no point was Augustus certain of the continuation of his regime and its persistence beyond death -The senate did lost some of its powers to the principate (such as foreign policy and treasury) but also acted as the emperors voting machine -the senate did some times do something different -whatever the formal power of the senate it did remain the assembly of representatives of the powerful, wealthy and influential clans and families. -for the emperor the senate represented a pool of potential allies, opponents and competitors.

Justinians second codex and the Novellae

-he had the codex revised, since many laws have been issued due to the Digesta, it was published in 534 -this one still had 12 books but many laws had been removed and many others amended -Book 1 was procedural law, book 2-8 private law and 8-12 was public law -four hundred of these laws came from the era of Justinian himself -there were private collection of his laws called Noellae Constitutiones, or new laws. The most important one was called Authenticum, Codenx 529, Digesta 533, Institutiones 533, Codex 2 335 Novellae

Consul

-highest office of all -two consuls were elected -they were the military and political leaders of the republic -acted as supreme commander in the many wars that happened -the consuls alternately presided over the the Senate and prepared the activities of the Senate and the comitia -the min age for a consul was 42 - one had to wait ten years before running for consul again -numerous exceptions were made to these rules for all sorts of reasons

Huns and Germans

-historians today defend the view that the western empire collapsed due to external pressure -the Germanic tribes that after its fall divided into the Roman empire territories, also caused its downfall in the first place. -Northern, central and eastern Europe had been subject to large migratory flows of Germanic and other tribes -Rome was able to keep the Germanic tribes at bad from another four hundred years -diplomacy and chronic warfare had drawn the Germanic tribes (living in the north of Rhineland and Danube) living in the north within the Roman orbit -They become more civilised and less barbarian -The Germanic tribes the roman empire faced at the end were much stronger than their ancestors such as Cesare had faced -Germanic auxiliaries had assumed a significant role in the imperial defence

Optimates and Populares

-in 133 BC, the plebeian tribune Tiberious Gracchus clashed with the majority of the senate when he resorted to unconstitutional measures in order to enforce his proposals for land reform -Gracchus and his younger brother Gaius, won a place in collective memory as the forerunners of the populares -the first century BC saw a division of the senate between the conservative majority -optimates- and the radical minority -populares- -the optimates were the defenders of the hegemony of the senate and of the constitutional and social status quo -the populares were the advocates of reform who sought support form the equestrian order and the plebs, and also from the provinces -they were not a party to and for the people, they were senators, and many came from the oldest noble families in Rome, -they sought support from the people and eagerly made use of the possibilities afforded by the tribunate and the concilium plebis in order to further their personal ambitions and political programs, -identified themselves with populist programmes such as land reform, grain distribution etc. -for reason of personal ambition turned against the system whereby the power was dispersed among the elite and sought power outside of the elite -this reflects the social tensions in roman society -and the power struggle with the senatorial order tis self

The Dominate

-in 284 Diocletian gained power -he was an energetic and competent administrator but had little affinity with rome or with its traditions -with his coming to power the period of crisis was brought to an ending -he did not care much about rome -the emperor became more than ever the enmbodiment of the state, -his veneration as a divinity, became central to the system -the emperor was referred to as dominus and not as principes inter pares -dominus is the term slaves used to refer to their master -he was no longer the first citizen or a senator he was the master of the empire and its inhabitants -he appointed a fellow emperor, or a second Augusts -Both augusti designated a colleague of lower rank called Cesare to command and succeed the Augusti

Tax Reforms

-in order to strengthen the army, central government had to raise taxes -by confiscating a larger part of the tax income, of local authorities and diverting it into the imperial fiscus -this did not cripple the economy -in the long run it changed the parameters for co-operationbetween imperial government and elites influenced the conditions of the latters loyalty -in exchange for their loyalty roman state had a right to tax, -rome provided law and order -members of the romanised elites made their careers in the imperial civil servants -they felt adopted by the roman state and not supressed by it

Background info on the Roman Empire

-it fell in the 6th century -by the 4th it was split in 2. The West side ruled by Rome and Pagan religion and the east side ruled by Constantinople and Christian religion -The West side of Rome fell but the east persisted, by this time it was run by Justinian, the Roman Emperor who build Saint Sofia the Church in modern day Istanbul

The fall of the republic

-it was not so much the social unrest that led to the fall of the republic as the failure of the republic institutions to keep the great generals under control -the senate proved incapable of reining the ambitions of those who conquered the empire -During the 90's BC, the demand by the italian allies for citizenship became the biggest issue of contention -the rejection of these demands in the senate let to the outbreak of war between rome and its allies, called the Social War 91-88 BC -boiling point reached between the optimates and the populares -this gave rise to Sulla and Marius -Sulla marched his own troops on Rome and took the city in 88 -Sulla repeated this a second time, he was appointed by the senate as dictator for life 81 BC, he made use of his power to reform the republicans institutions before leaving the scene in 79 BC -Three men emerged to gain fame and power Crassus, Cesare and Magnus the great (Pompey) -in 60 BC, Crassus and Pompey were both running for the top spot, when Cesare joined as well they formed the first ever triumvirate -it was not a coup d'etat but a coalition were they agreed to help each other

The senate

-its roots lay with the meetings of the patres, of the old gentes during the regal period -the senate was the only permanent political body -played a leading role in day to day business of the republic -The senataconsulta (senate decisions) were merely advisory opinions for the magistrates and the popular assemblies, in reality the Senate dominated the decision making process -the senate also arrogated foreign policy and the treasury to its self -it was the forum where the leading men of the republic, met and discusses the business of the state -it consisted of all former magistrates -In the second century BC, plebs tribunes joined the senate automatically after their resigned their office -membership was for life -under the dictatorship of Sulla, the Senate was expended to some 600 hundred members

The reform of the imperial bureaucracy

-membership of the senate was turned into a badge of honour for civil servants. -senators gained access to civil servants, as an autonomous power and as a counter balance against the might of the emperor and his professional civil service -the senate was demoted to a king of municipal power council for the city of rome -the magistrates were reduced to honorific positions -the central administration was reformed by officials and generals.

Censor

-most coveted and prestigious and was in practice reserved for former consuls -two censors were elected every five years an for a period of 18 months -the censors took a census -lost of names of the senate, the equestrian class and the various categories of the popular assemblies-awareded public works and upheld traditional morality -the mos maiorum -their term in office was concluded with a major ceremony the lustrum

Iurisdictio of the Praetor

-no longer the pontifices who controlled the courts -their control of the courts and their monopoly of legal interpretation were increasingly challenged -the praetura (367 BC ) was set up, -the praetor was at first a collega minor or assistant of the consuls - in due course, iurisdiction was added to the praetors imperium -this iurisdictio concerned not the pronouncement of the judgements but control over the proper administration of justice and courts -the praetor had displaced the priests as the presiding officer of the courts -the replacement of the priest by the praetor was part and parcel of a more general process of secularisation of the law -the praetors were drawm from the same pre-eminent senatorial families as the priests, -the administration of justice was now controlled by the magistrates, who were elected for one year only and no longer by priests elected for like -there were inevitable some who had little if any legal knowledge or experience -this provides part of the explanation for the emergence of the jurists in the late second and the first century BC

Plato

-of the rationalist and aristotle of the empirical -for plato everything on earth is a shadow , an imperfect reflection of that is outside the physical worlds in the World of Ideas -True knowledge comes from understanding these ideas -Plato's view the human soul is not of the physical order

The priests and the interpretation of the Ius Civile

-only those disputes could be taken to court for which ius civile provided a legal remedy -new legis aciones and new remedies could only be introduced by the popular assemblies -laws creating new remedies such as the Lex Aquila were rare -for some time the priests could prevent the legal system from becoming to rigid and losing touch with the needs of growing roman society -they enjoyed virtually monopoly over the interpretation of the ius civile -by the 4th and 3rd BC, increasingly diverse and complex legal disputes were submitted to the courts - in order to find the answer the priests had to find a way to interpret the ius civile in the most extensive ways

Emperor and Church

-religion and state ideology had always been closely interwined, and the final rejection of roman law went hand in hand with the loss of republican tradition -constantine gave the church a place in their bureaucratic apparatus, -the church became a matter of state

The emergence of an autonomous regal science

-rome an autonomous, secular legal science, practised by a distinct group of legal specialists or jurists emerger. -the priests lost their monopoly over the knowledge and interpretation of the law. -the more elaborate and complex roman law became, the more litigants, judges and praetors called on these 'specialists' for counsel -it was from this advisory practice that legal science or jurisprudence emerged -public law was at least commented upon and studied -pleading before the court was an excellent way to gain notorierty and popularity -the advocate-orators were primarily members of the senatorial order or ambitious young men form the equestrian order -one of the obligations for the patronus, was to assist his clients before the courts or at least to arrange for someone else to assist it -forbidden to accept payment for services done by the advocate but it was okay to accept gifts. -advocats were primarily orators, they were schooled in rhetoric and not really in law -like advocates, jurists were dram from among the ranks of the senators and the magistrates

Further expansion

-saw the biggest expansion of the Roman Empire -Hadrian put an end to the policy of conquest and opted instead for a defensive strategy. This did not work out. -the first few centuries of the Principate were ones of peace

Lex Aquila

-shows the start of the distinction between indirect and direct causation dolus: when a person wishes to inflict harm though his actions culpa: the condemned deed can be assigned to the perpetrator, for example the latter acted carelessly but without the intention to do damage.

Slaves

-thanks to the slaves, the roman wealthier families profited the most, -they were able to set up larger trading and industrial enterprises, so that ordinary roman citizens became economically marginalised -there was a growing urban proleteriat -large number of freed slaves were granted citizenship upon their release -social tensions in rome grew -some senators described themselves as defenders of the common people

Fas and Ius in Archaic Rome

-the Archaic roman law of the Regal period and the Early republic was closely interwined with religion -the oldest core of Roman law consisted of the traditional morals and customs that had been handed down from generation to generation and reached back to the remotest ancestors (mos maiourum) -natural order and related to both gods and men -the order laid down by the mos maiourum was willed by the gods -Fas governed the relationship between gods and men, anything counter to those rules was nefas (taboo) and disrupted the harmony between Romans and their gods -a nefas deed would call wrath upon the whole roman population, sickness, war and natural disasters would afflict the city and its inhabitants -the rules of ius governed the relaiotns between roman citixens and themselves -anyone breaking these rules would commit a inuria (injury or a wrong) -initially ius only governed relations between members of the genets -when the gentes broke up into smaller familia , the application ius was greately extended. -Ius was designed to guarantee peace among the roman citizens,

The magistrates

-the annually elected officials of the Roman Republic. -the former royal imperium was divided up among them -the imperium included both military and administrative power -this also included the iurisdictio- the power and control over the dispensation of justice -in 367 BC, the various magistracies were established and codified by the Leges liciniae Sextia -in 180 BC, the Lex Villia Annalis, established concrete rules about the cursus honorarum, and the min age one could be to hold such position (granted Veto) -the Statute also stipulated a two year interval between the holding of two consecutive offices in the cursus honorarum -in 81 BC Sulla changed the rules, as for the magistrates to meet the needs of the growing empire -the rules were designed to prevent one man from getting too much power 1) magistrates could only hold power for one year 2) had to be more than one magistrate- magistrates holding the same office could act independent of one another, but could veto his colleague's decision. 3) magistrates were immune to prosecution by the courts until they relinquished office

The concentration of power

-the civil servants showed how the republic was transforming into a monarchy -they provided a guarantee for an efficient, centralised system of administration -it was hierarchially structured -the emperor surrounded himself by a council -the military positions were entrusted to non-politicians

Statute Law

-the close relation between law and religion started to weaken in the course of the 8th and 6th century BC -in response to the suppression of their rights and the arbitrariness of the ruling classes, the people demanded that the laws be written down -By setting down the law on stone or bronze tablets and displaying these in the agora (market square) the law was brought within the grasp of a far greater part of the people -all this reveals that people had grown aware of their human abilities to make and change law -most stature laws confirmed and recorded existing law -legislators such as Lycurgus and Solon evolved into legendary figures invested with almost divine authority -it was stipulated that anyone proposing a change in the law would be executed or banished

The rise of imperial bureaucracy

-the day to day administration was handled by the magistrates and pro magistrates who did not dispose of an army of civil servants -augusts house in the palatine, obtained the allure and standing of an imperial house -his personal staff dealt with the affairs of state (ministers) -gradually they became civil servants -civil servants were recruited from among the equestrian order, potential opponents of the emperor were excluded from these new positions -Hadrian organised his civil service into various departments -the most important position was praefectur praetorie, commander of the imperial body guard -he eventually turned into some kind of prime minister -

Greek logic and roman jurisprudence

-the first roman jurists took part of their inspiration from the greek rhetorical and philosophical traditions -the fact that the olders jurists were also trained rhetoricians and that the separation into two activities came only later was of major importance for the early development of roman jurisprudence

Procedure per formulam Part 2

-the formulae were stripped of any ritualistic dimension, instead straightforwardly and clearly articulating the nature of the case and the applicable rule -they were more open and flexible than the legis actiones -under the ius civile, contractual obligations essentially arose only from the observance of certains forms -the praetor therefore was allowed proceedings to be instituted in respect of four types of contract -sale, hire, partnership and mandate. -consisted of various elements 1) appointed the judge 2) the presentation of the facts (demonstratio) - Judge could only establish wether or not the conditions of the formula had been fulfilled 3) statement of claim (intentio) 4) the authority for the judge to condemn or dissolve. (condematio) -it will have happened on more than one occasion that the legal remedy will have failed because the formula did not properly outline the case in question

Consulares

-the great political and military leaders -the cornerstone of the power and influence of a former consul was his auctoritas (personal authority) - and his dignitas (personal dignity) -Under the republic the senate grew into the most powerful organ of state -it was the sole body that was at once permanent and small enough to be effective -the principles of annuality and collegiality of the magistracies prevented the concentration of power in the hands of a single person or hands.

Legal change and the fiction or immutability

-the ius civile was still considered to be immutable but the preator improved or supplemented it. As a a magistrate the praetor was unable to change the law -he acted as if he was not formulating or introducing any legal rules - he acted as if he was disclosing applications for the old, immutable law that had been dormant within it but had been disclosed for this new case. -actiones utiles et in factor, praetor actions, were new remedies in doing so he created new enforceable rights and obligations.

Fas and Ius in Archaic Rome part 2

-the judical resolution of disputes was designed to stop people from taking justice into their own hands and to prevent disputes from escalating into blood feuds. -only disputes regulated on ius could be brought to court -other disputes had to be resolved by parties themselves, either by negotiation or by the application of ius talionis, the law of retaliation, an eye for an eye. -public authority played only a limited and passive role in the judiciary process -the court consisting of ordinary citizens, assessed who was in the right and who was in the wrong and handed down judgement -ius protected the private interest of the citizens -During the early republic, the difference between fas and ius did not signify that ius was a completely secualay body of law -during the regal period, the kings were responsible for implementing both kinds of law -during the early republic, they both fell under the college of the pontefices or priests -a trial under fas was done to appease the gods by giving a sacrifice

The jurists of the Imperial Age and natural law

-the jurists of the imperial age similarly used the concept of natural law but paid little attention to its metaphysical dimension -natural law was a vague concept in embraced the rules and institutes that were perceived as natural and reasonable and that were to be found among all people -it was to be found in nature, inherentely present in people and things themselves. -it was a set of rights and obligations that arose from the fact of being born, it included the right to inherit property from relatives, duty of care to ones own children and the right to self defense -roman scholars associated the natural with the ius gentium, the law the romans applied to aliens

Law in Archaic Greek

-the law is an instrument, a weapon for men to bend the world to their will -during the archaic period (8th Century BC) the Greeks did not perceive law as an autonomours body of rules -In the lliad, Homer, refers to themis, which indicates judgement -the law manifests itself only in the act of rendering judgmenet over a concrete dispute -it does not exist as an autonomous system of rules -no distinction was drawn between a natural and a legal order or even between a divine and human order -In the Odyssey, gods and men are subject to the same rules about what ought ot be and what ought not to be -To indicate law homer used the term dike, it had a more human dimension, it shows how people gradually became more away of the existence of man made law, of human law. -Homer also used the term nomos, the greeks referred this to custom -of necessity the law accorded with the ideas and values among the people, it was essentially democratic -it was perceived as immutable and eternal -as long as people were not aware of any change in law, there was no need to address the question of whether man could make law

The magistrates part 2

-the lowest magistracy was the quaestor: they were assistant of the consuls and praetors, their duties extended to the supervision of the financial affairs -the second office was Aedile-cursus honorum, that was that of the aedile, responsible for public buildings and temples, markets, commerce, water and grain supplies, they also acted as judges in commercial disputes -the fact that the aedile had to draw on their own financial resources did not make it a popular spot, it was however a great method for gaining the voters favour in the struggle for the two highest offices: 1) Praetor 2) Consul

Comitia

-the popular assemblies-comitia-were gatherings of all roman adult citizens, they were convened by the magistrates -the highest magistrates were the consuls, the praetors and the censors and were elected by the highest level of the comitia, the comitia centuriate -the consuls legislative proposals were put to the vote -there were three types of comitia 1) Comitia centuriata- army units, divided roman class from rich to poor 2) Comitia tributa- elected the lower magistrates and could also make laws -consisted of tribes, the plebs were concentrated in the urban tribes 3) Comitia curiata- lost its power of the masses, retained a few formal duties such as homologating certain adoptions -the layer voting in the comitia neutralised the power of the masses, the poorest classes had little weight in the elections -it was partly for this reason that the concilium plebis arose -Only the comitia centuriate and tributc could legislate and make statutes law, until 339 BC all statutes had to be confirmed by the senate before they went to popular assemblies -since the opinion of the senate and that of the comitia was the same, the role of the comitia is making the statutes was minimalised -the councillium plebis gained a greater role, after the Lex Hortense of 287, it had the power to legislate for all classes. -the comitia had to be convened by the magistrates the councilum plebis could convene only by the plebis tribunes. -by the end of the republic the concillium and the plebian tribunes were the true engines behind legislation -did not allow for open debate but moved to vote, the magistrates would often convene a contio in advance of the actual popular assembly.

Extensive interpretation by the Praetor

-the praetor urbanus, who were responsible for the development of roman law under the late republic -the ius civile largely remained as it was -the praetors attempted to broaden the application of the ius civile with its limited arsenal of legis actions by means of extensive interpretation of the existing law. -when a dispute arrived with which no legis action applied the praetors often allowed the case to go through anyways -the praetor created an action utilis by means of an analogous interpretation of the dispute in question and the dispute coming under the existing legis action - an action in factum was a legal remedy granted ad hoc by the preator in a specific case on the basis of the actual facts

Mos Maiorum-the rise of the plebian order part 2

-the priests were all patricians -responsible for the interpretation of the mos maiorum -but now that it was written down the priests lost their power as everybody was able to read it and consult it -the priests lost part of their power over the law -in the course of the 5th century, the new institution of the plebeian tribunes was introduced -the tribunes came all from the plebs and not the patricians -there were inviolable and had the power to veto any decisions by any public body (the right to intercession) -the ordinary magistrature became accessible to the plebs as well -In 367 BC, the leges Liciniae Sextia even granted the plebs access to the consulate -From 342 BC one of every two consuls had to be plebs -the Lex Hortensia of 287 BC determined that the plebscita of the concillum plebis were binding to the entire roman population including the patricians

Princeps Inter Pares

-the principate was not a genuine monarchy -officially the republic continued to exist, and the old institutions remained in place -the emperorship only gradually became institutionalised -there were no titles but names, people who no longer had family ties with cesare, still called themselves that and eventually these names became titles -these evolutions mark the change from the principate to the dominate -Augustus was able to draw on incomparable autoritas and dignitas -the appeal to personal prestige and authority is the basis for power in the state was in accordance with the republican tradition -Augusts liked to portray himself as 'princeps inter pares' (first among equals) which is why we refer to Principate -assumed the position of principes senatus- the principal senator -Augusts was assigned the proconsular imperium over various provinces -it was also in these regions that the most legions were stationed -making him the supreme commander of the army -in 23 BC, a conflict between the senate and Augustus erupted, he emerged as the winner but gave up his position as proconsul and become tribunicia potestas -gave him the right to veto, while he himself was rendered immune to it, and guaranteed him inviolability - tribunicia sacrosantitas- gives him the power to convene the senate, and the councillum plebis, and submit legislative proposals. -granted himself imperium proconsulare maius- obtained supreme administrative power and all the provinces, putting him above the governors. -August had himself elected as high priest.

Cicero's Topica

-the roman elite became families with the greek thought -the prime task for the orator is inventio, the search for the right arguments to plead the case -for Cicero too the scientific study of law means the subdivisions of the domain of the law into 1) genera 2) species -in law this meant that the scholar should predict and provide a solution for each possible case that could be legally distinguished from another -the early roman jurists were grappling with the casuistic and procedural nature of roman law -the systematisaion of the law into classes and subclasses implied that there were general solutions for general problems and that there were therefore more general legal concepts and general law -the subdivisation into public and private law became the summa divisio of law - in the Institutiones of Gaius, were concise systematic overview of the law and acted as an introductory textbook -Gaius distinguishes the law of persons second the law of property (covered law of things, succession and obligation) and thing the law of procedure

Army reforms part 2

-the roman empire was to small to seal off the border -the borders were pierced it took a long time to assemble an army -to return to its empire state rome had to deal with its army 1) size of the roman army was increased 2) the army strength was based on three disputed lands 3) the bureaucracy and the political power behind keeping the army financed and functioning had to move closer to the front lines -this was the main cause of the coups of the 3rd century -the closer the association of the emperor with one or two armies left the other armies neglected in terms of money and priviledges - some armies made their own emperors -this political instability was brought to an end with emperor Diocletian who divided the empire in four imperial colleagues, and split the bureaucracy accordingly

The proconsuls part 2

-the roman magistrate was apart form being the army commander, in truth was more of an ambassador than a governor -the political representation of Rome in a province and the military command over the operation of war in those parts were bound up together -the custom arose of extending the imperium or even assigning the provinces and commands immediately to former consuls and praetors for several years. -these would then act as proconsul or propraetor -certain individuals managed to acquire great renown power and wealth such as Cesare, -this enabled them to buy the support and votes of subjected people -made numerous friends in the Roman Senate and the popular assemblies -during their lengthy spells as proconsuls. they were able to assure themselves of the personal loyalty of their troops. -the senate lost its grip over the empire outside the city and outside italy.

Romanisation

-the second century was the higher point of the empire -the reigns of intelligent, intellectual and culturally minded emperors still stand out in in collection memory among the finest period in European history. -peace did not benefit the urban population of rome -the problem of urban proletariat did not go away, its ranks were strengthened by foreigners, -under the Principate, rome was transformed from a group of regions administered by the conquering city state into something more like a genuine empire -rome through its armies, its laws and local representatives guaranteed elites security, priviledges and riches. These elites in return provided the empire with loyal, local administrators who could be trusted to guard roman interest with they identified. -it made roman law the centre of the empire -increasing number of aliens gained roman citizenship, roman elite of senators and equestrians also lost its roman and italian character. -the new roman elite did receive their education in rome and launched their career there -some emperors never went to rome at all

An oligarchic republic

-the senate saw the disappearance of the political importance of the old patrician gentes as a separate class -the senatorial order consisted of several hundreds families of patricians or plebeian origin that governed the city politically -The senatorial order controlled the senate, the magistrature, and the pontifical colleges -the electoral system gave them a grip over the popular assemblies -the power of the senatorial order was further enhanced by the system of the clientela, under which a roman citizen or foreigner would place himself under the protection of the powerful Roman -In exchange for this the client promised political support to his patron -People became senators after having served a term as a quaestor or tribune, in most cases members were elected from families who already numbered senators.

The Endurance of the Empire

-the western roman empire lived on peoples mind -the fact that there was no longer an emperor or any effective imperial authority did not destroy the notion of empire -the Germanic kings governed their new territories first as rulers of their tribes. -when it came to the administration of the indigenous population of the roman territories that they had conquered, they portrayed themselves as provincial governors and officials of an absent emperor of the E.R. Empire -the concept of empire was closely interwoven with Rome that even the fall of the emperors was unable to sever the link -Eastern roman emperors managed to defeat the invades -Emperor Justinian the great (527-65) recaptured Italy, N. Africa and spain -after his death the territories were lost again marking the end of Roman authority in the west -after 1000 years, the empire crumbeled away until Constantinople was conquered by the Ottomans

Procedure per formulam

-there emerged a new procedure, the procedure per formulam -augustus promulgated two laws under which the procedure per formulam obtained the same validity in virtually all cases for which a legis action would previously have been required -the division into two stages with their respective functions was retained -during the in iure stage, the two parties appeared before the praetor and submitted their case -the praetor would then drew up the formula describing the dispute and setting out the various legal remedies and exceptions - halfway through the 2nd century BC, the praetors began to draw up a standardised formulae that outlined a dispute in general terms with fixed and variable elements -the formulae became standard provisions, each of which could be applied, to a number of similar cases, -this higher decree of abstraction owed much to the influence of Greek philosophers and rhetoricians -in contrast with the legis action, this formulam lacked any ritual or religious basis

the fall of the republic part 2

-they supported each other in elections and votes -Cesare was elected consul on 59 BC, and was later assigned provinces which he was to conquer -Crassus dies in 53 BC and Pompey and Cesare became estranged. Pompey became the main optimates and Cesare populares -This attitude started a new civil war leading to the death of Pompey and the dictatorship of Cesare after Cesare's murder in 44 BC a third civil war began which laster 13 years -in 42 BC, the three most important leaders formed a second triumvirate, here there was a real coup d'etat, they granted themselves all imperium power, and divided the empire among themselves. -Mark anthony, Cesare's loyal leiutenant Marcus Aemilius Lepiduc, and Cesare's adopted son Octavianus who was 19. -on 31 BC, Mark Anthony committed suicide and in 27 BC Octavian become sole ruler.

Rome's conquest of the mediterranean

-through its long experience of its many wars, Rome achieved superiority in terms of organisation and disciple over most of its enemies -In 264 BC the First Punic War (war over the Island of Sicily) Rome came out victorious, -during the second Punic War (218-201) Rome was almost brought to its knees by the Carthaginian general Hannibal, for 16 years he roamed through the peninsula, leaving a trail of destruction in the field -he was not able to capture the city of Rome and in the end Rome won the war of attrition -Rome established its hegemony over the western mediterranean

Ius, Fas, Public and Private

-to some extent the division between fas and ius lies at the root of modern distinction between private and public law. -the enforcement of fas was re public, a public affair and concerned the whole Roman people -some legal historians find here an explanation for the origins of the death penalty: the offender of nefas, was sacrificed. -from the distinction between fas and ius comes the distinction between crimina publica (crimes) and delicata private (delicts) -from the outset ordinary crimes such as theft and defamation fell under the second category -anyone found guilty of crimen publica became sacer and forfeited his life -in principle the comitia centuriate were authorised to hear offences subject to the death penalty -anyone condemned to the death penalty could appeal to the people (provocatio ad populum) -as the proceedings and the punishment lost its religious nature, the category of criminal publica was extended to crimes of less religious nature than those usually under fas -2nd century quaestiones perpetuae emerged -these cours were competent to hear a particular offence such as corruption, they were the justy courts were the equestrians the senators sat. -crimnal law developed from traditionally fas, it lost its religious character but retained its public law dimention -the romans themselves did not yet draw a distinction between private and public law as two separate branches with their own logic and laws.

The Foundations of Rome

-took place by romolus and remus in 753 BC -Romolus became the first King of the city -The last three kings were not romans but Etruscans -By 509 BC King Tarquinuis Superbus was driving out and Rome became a Republic -The Romans came from two tribes the latins and the sabiens -its development from a group of small settlements to a walled out town with public building was done by the 7th Century BC -the Etruscans did not form a unified state but constituted a loose federation of City-states -Romans fell under etruscan dominance -the last etruscan king may have been the only king who ever ruled Rome as a city state, while the previous Kings may have been little more than tribal leaders

Imperial courts and procedures

-under the principate a new procedure developed-cognitio extrodinario -was a one stage trial -the judge who heard the case as well as rendered judgement was an imperial official -this emerged in the provinces -because it was hard to find praetors in the provcines, the magistrates took upon both roles -from Augusts onwards this process spread until it reached italy -was applicable to both criminal and civil law -the judges as official representating the emperor, were vested with public authority -criminal prosecution increasingly became a concern for the state, taken into hand by state officials -the right of appeal also was created, the fact that the judge was a civil servant meant that it was possible to appeal hieracrhichal superior and to the emperor

Praetorian law

-was not logical and internally coherent system but organically evolved body of case law of legal remedies, -the new law was casuistic and procedural in nature as the old law but was more extensive and less inclusive -in this way they adapted to the needs of the new society -under their imperium, the praetors disposed of the ius edicendi,the power to promulgate edicts -the praetor urbanus would annually promulgate an edict upon taking office by which he announced which legal remedies he would be applying that year -it was customary for a new praetor largely to adopt that of his predecessors, with some omissions of improvements and additions -in 67 BC, the plebscite decided that the praetor would henceforth abide his own edict

The emperor as dominus

-was transformed into a military and bureaucratic regime -their administration was buttressed by an expanding, powerful bureaucracy -the regime's lack of political legitimisation made the veneration of the emperor all that more important -made Gods representative on earth -he was no longer dependent on the approval of the senate and the people of rome -the dominatus referred to the emperor as the state, -the emperor was identified with gods

Antigone

-what is certain is that Greek scholars and orators increasingly settled in rome from the 2nd century BC, and helped disseminate greek ideas -Cicero developed a theory of natural and human law. -according to him some rules of conduct were inherent in human nature -for Cicerto this natural law was the supreme law -natural law was the measure of objective justice that applied to all people -the Christian scholars of the middle ages were the first to state that human law should be in accordance with divine and natural law for it to be binding

Ascending and descending theory

Descending theory of power -power comes from 'above', its delegated to the ruler by a hierarchically higher power, In this case it is Gods or God. -the ruler is independent of those he governs -because he is not appointed by them he does not have to count on them Ascending theory of power: - power comes from 'below' from persons that are subordinate to the ruler -

Ius Civile

Ius civile -this was the law of and for the Roman citizens -of the roman citizens because it originated form them and because it applied to them only -it did not apply to aliens -the ethnic background of the parties not the place where it occurred, it determined which roman law was applicable. -the mos maiourum formed the core of the ius civile -this was an amalgram of rules and institutes of law that were and istitutes of law that were handed down from generation to generation -there were also statute laws promulgated by the king (leges regia)

Two Stages of the legis actio procedure 1) In Iure

The two states of the legis action procedure -civil procedure was based on the legis action -it was a two stage procedure, 1) in iure (in law): -referred to iurisdictio, the power to regulate and oversee the administration of justice -by the second century BC, the iurisdictio became part of the imperium of the magistrates -first the plaintiff w and the defendant appeared before the priest (in iure), the priest would establish whether the dispute fell under the provisions of the ius civile, allowing for a trial to be held. -if it came under the ius civile it meant it came under one of the legis actiones (action on the basis of the law,) A legis Action was a procedural law, the parties were asked to take certain ritual acts and to pronounce solemn formulas

Philosophy and Rhetoric

a particular body of law, ius gentium, applicable to cases involving foreigners emerged -greek orators and philosophers came to rome often to teach there -The greeks never developed an autonomous legal science -the 5th century BC was the Golden Age of Athens -the Athenian polis, or city stat was a democracy in which every citizen had certain right of political participation -Rhetoric was a powerful and necessary tool for anyone aspiring to be a political leader -the Athenian sophists of the 5th Century BC were the first teachers of rhetoric and disputation -according to the sohists a rhetorician had to possess the ability to persuade his public of any conceivable proposition -what was important was now knowledge and truth but the power of persuasion, -This was also the age of Socrates (469-399 BC) and Plato (427-347 BC) -both philosophy and rethoric contributed towards the development of dialect logic and the theory of argumentation -Rome fall under the spell of greek thought

Two Stages of the legis actio procedure 2) Apud Iudicem

apud iudecem (before the judge) -the case would be referred to the judges, - evidence was tabled -and the case was pleaded and adjudjed -the loser proceedings forfeited the stake in this ritual wager in this case to the treasure -the latter could escape this payment by handing over the thing Apud Iudicem -during the second stage, the case was pleaded and the evidence produced -was much less formalistic than the first -both parties were given the opportunity to argue their case before court or to have it argued by an advocate -each had to produce evidence -the judges were at liberty to seek the assistence of an advisory council or coucilum of experts -the judges were not always familiar with the law -in the winner in the proceedings was himself responsible for its enforcement -the ius civile was a system of procedural rules that provded legal remedy for a large but ultimately limited number of disputes -most continental civil law system recognise a general principle of lieability for wrongful action -roman law did not contain any such general rule of liability for wrongful actions

The law of the twelve tables

halfway through the 5th century BC, at the height of the conflict between the patricians and the plebeians, the latter demanded that the law be recorded -the priests who at the time were all patricians had a monopoly over the interpretation of the law and thus were able to amend the law to their own liking -the law was thought to be immutable -the duty of the king and later the priests was not to adapt or change the law but to guarantee its application - the twelve tables came out in order to stop the development of the law by the priests and to preserve traditional law -in 451 BC, a ten person commission the 'decemviri legibus scribundi' was appointed -Romans visited a number of the Greek cities in southern Italy, the tan tables of law were promulgate in 450 BC, who more were added the next year - contained primarily rules of private law , criminal law, procedural law and a few rules of constitutional law and sacral law -it formed the core of the ius civile -gave birth to the comitia and concillim plebis, and would adopt statute laws which amended or added to the law of the twelve tables -these led to the les Aquilia, a plebscite on tort law from 287 BC

The emperor and Roman Jurisprudence

it was the jurists of the classical age who brought Roman law to its highest peaks -Under the early principate the jurists were awarded the ius publice respondendi ex auctoritate principis, the right to respond under the authority of the principes -they held no more authority than those jurists who did not have this ius respondenti because the emperorship was not yet an official position and hence could not be official in nature however these opinions were taken into consideration -by granting this prividelge to certain people, the emperors found allies -Emperor Hadrian put an end to the custom of issuing legal ius respondendi and created the rescripta, which were imperial letters in answer to a question submitted to the emperor by a citizen -the jurists who now wrote the rescripta became civil servants in the emperors pay -the Principate were usually drawn from the ranks of the Senate -Around 200 AD, a certain competition arose between the jurists from the imperial offices who drew the rescripta and the independent ones, who issues responsa in their own initiative -The downfall of the senate led to the los of tradition and autonomy from the emperor -from 205-222 Ad Papinian, was a praefectus praetorio, a prime minister he carried the responsibility for the imperial correspondence.