Most western legal systems are founded on a body of law and a system of legal practice developed in Rome during the republic and the empire. Roman law was in force in the West from the founding of Rome (traditionally 753 BC) until the collapse of the Western Empire in the fifth century AD. In the East, it survived in the Byzantine Empire until 1453.
Establishment of the law
Roman law in the early republic was divided into unwritten law, which dealt with custom, and written law, which was derived from various sources. Initially there were laws (leges) which were passed by an assembly of the whole Roman citizen body. There were also plebiscites, or resolutions passed by an assembly of the plebians, which were given the status of laws after 287 BC. Other forms of written law included edicts issued by senior magistrates in judging cases at law and resolutions of the senate. There was also a body of jurists whose advice on legal questions (responsa), particularly on matters concerning custom, formed part of the framework of written law.
However, the end of the republic and the establishment of the empire saw the end of those traditional methods of establishing the law. The passing of laws by the assembly died out as the emperor became the source of all new law. The edicts, senatorial resolutions and responsa systems continued to be used for a time but they too eventually died out. These traditional law making systems were replaced by the use of imperial constitutions. These took varying forms such as edicts issued directly by the emperor or written replies by him to magisterial requests or advice. Another element in the legal systems of the later empire was the work of the great jurists whose written commentaries on individual laws, or on the law as a whole, were highly valued.
Codification of the Laws
The earliest known codification of the law in Rome was the Twelve Tables of the Law which date from 451-450 BC. From that time until the third century AD, nothing was done to update, simplify or codify the huge mass of legislation that had accumulated in the intervening centuries. In the time of Diocletian in the late third century, two lawyers, Gregorius and Hermogenian, published collections of imperial constitutions. Although their work was produced privately, it was used widely thereafter in the courts.
It was in the time of Emperor Theodosius that the first official attempt was made to do something about 'the mass of imperial constitutions which, sunk in a thick fog, has by a bank of obscurity cut off knowledge itself from human minds'. A commission of legal experts was established to codify all constitutions issued after 312 and the work, known as the Theodosian Code, was published in 438 and declared binding on both halves of the Empire. The Gregorian and Hermogenian codes were regarded as being authoritative for the earlier period.
Although the Theodosian Code went some way towards organizing the vast body of Roman law, it was Emperor Justinian in the sixth century AD, who made the most thorough effort to simplify and systematize the law. Justinian first established a commission to reduce the three earlier codes of imperial constitutions plus any new constitutions issued since Theodosius into one codex. The laws were simplified and modernized and obsolete laws were removed.
This Code of Justinian was published in two editions, the second of which is extant, in 534. Justinian also established another commission to codify the works of the great jurists and this work, known as the Digest, was published in 533. These two works contained all that was valid in Roman law at the time. Material not included was forbidden to be cited in the courts.
Roman Law after Justinian
Justinian's legacy to the western world in the Codex and the Digest has not come down to us in an unbroken tradition. The Germanic tribes who overran the western half of the empire in the fifth century soon replaced traditional Roman law with customs and traditions of their own. These customs were developed and refined during the Middle Ages and together with the laws of the Roman Catholic Church (canon law) became the basis for medieval law.
Roman law was not rediscovered until the eleventh century but it then began to have a profound influence on Europe. Schools were established to teach Roman law, the most important in Bologna, Italy, and scholars trained there spread Roman concepts of law and justice throughout Europe. It was particularly influential in the Netherlands and Germany where Roman law is said to have been 'retrieved'.
Even in these countries, however, it did not supplant local law but rather amalgamated with it. The conceptions and procedures of Roman law were valued and it strongly influenced the law of contract and torts but in other spheres, such as marriage, succession and property, local and canon law were of equal significance.
This mixed tradition became known as civil law. As distinct from the common law tradition of England, most countries of continental Europe, together with certain South American countries and those countries in Asia and Africa with modernized legal systems, follow the civil law tradition with its strong element of Roman law.
England, which developed the system known as common law, was only partly influenced by the Roman tradition. From the eleventh to the sixteenth centuries, Roman legal concepts spread to England and experts in Roman law were welcomed by the English kings. These experts, however, came into conflict with a group of legal practitioners, more familiar with the centralized court system of Britain, who were allied with parliament during its successful constitutional struggles with the monarchy in the seventeenth century.
The impact of Roman law was lessened by their victory and civil law which derived from it came to be seen as a system which put the state above the individual. Common law preserves the idea of the legal freedom of an individual within the state. This concept became paramount in England and in countries such as Australia and the United States of America, which adopted the English system. Nevertheless, elements of Roman law still survive in common law countries as well as those with civil law and certainly Roman law has exercised a profound effect on most modern legal systems.