Roman Law as a System

Sources

Lack of Codification. While there was a lot of Roman law, especially by ancient standards, it was never systematically organized by modern standards. Neither the laws (leges) nor juristic decisions were ever collected before the fall of Rome. Much less did Roman law ever become a “code”—a set of laws all composed and enacted as a body. There are several reasons for this development. First, the American and British legal systems are self-organizing because of their reliance on precedent: later courts are required to follow the decisions of earlier ones. Roman courts were not similarly bound. In fact, since decisions were not published, precedent was hardly even available. The emperors had the authority to make binding interpretations but in practice could do so in only relatively few cases. Second, the jurists were not interested in a system. They worked in a strictly “casuistic” (case-by-case) manner; this manner presented the index with many models for judgment in a new case, but few general rules. Finally, the legislative process itself was unhelpful. Romans tended not to repeal or emend outdated laws. Often they would simply ignore them or reinterpret them beyond all recognition. Thus, the “paper trail” of the law could be quite confusing or misleading.

Legal Implications. This disunity was doubtless confusing for the aspiring jurist or prospective litigant. It may, moreover, have had deeper implications for the law itself. Without much legal theory the Romans appear never to have solved certain problems simply because they never entirely recognized them. For instance, Roman jurists agreed that a person had to be at “fault” to be legally liable for damage to another’s property. They never agreed, however, whether this fault was subjective (one was not as careful as one could be) or objective (one was not as careful as the ordinary person would be). They never decided this fault because they did not define their terms so abstractly. But the abstract difference can make a huge difference in individual cases. In modern terms this distinction between subjective and objective fault is what makes “negligence” much easier to prove than “recklessness” and means the former is almost never sufficient to convict someone of a crime. Similarly, they never discussed in general what it means to “cause” something. This lack of fault made it tricky to assign responsibility in complicated cases such as a multiple car pileup. Who “caused” which collisions?

Sources

Bruce W. Frier, A Casebook on the Roman Law of Delict (Atlanta: Scholars, 1989).

Alan Watson, The Spirit of Roman Law (Athens: University of Georgia Press, 1995).