Introduction to Roman Law (Second Edition)

Author: None
Publisher:
Publication Date: 2001-01-01
Features: This book is written in a comparative manner and incorporates comparisons between Roman law and English law, as well as between classical Roman law and modern civil law systems, in the discussion of each topic. It contains rich information and insightful perspectives. This comparative approach not only greatly broadens horizons and opens up thinking but also helps deepen the understanding of specific Roman legal institutions. The book does not simply arrange Roman legal norms according to the classification system of modern civil codes but is primarily structured based on the order of discussion in Gaius's Institutiones. Gaius categorized the objects of law into three major categories: persons, things, and procedures. To highlight the substantive law, this book adjusts Gaius's "trichotomy," integrating procedural law into the discussion of each substantive law institution. Additionally, the three major rights of property law are presented as three independent categories, alongside the law of persons, forming the basic structure of the book: the law of persons (including marriage, family, guardianship, and tutelage), the law of things (i.e., property law), the law of obligations (which also includes debts of torts, i.e., tort law), and inheritance law. This is a classical Roman legal system. Other features of the book include: concise and fluent narration; analysis closely tied to the specific historical context, helping to understand the historical, social, and economic causes or background behind legal institutions; the use of Latin terms for major concepts to aid in mastering basic Roman legal terminology, and so on.
Excerpt Section III: The Reception of Roman Law
Roman legal literature has its own spiritual authority, but it also derives authority from imperial power, because the imperfect concept of the empire that was already reflected in the Holy Roman Empire continued to dominate people's thoughts. This spiritual authority and the authority derived from imperial power continued to play a role in the process of the reception of Roman law, which we call the process of the reception of Roman law, meaning that through this process, Roman law became the common law of Western Europe. However, this reception process also developed differently across the European continent. In Southern Europe (Italy, Spain, and Southern France), as we have already introduced, Roman law never completely disappeared, where the doctrines of the glossators and the commentators could simply be accepted as supplements to the law preserved in the Visigothic Roman Law and other compendia. Thus, what emerged there was not a sudden acceptance of new legal institutions but rather a gradual revival and rediscovery of old law. However, in Northern Europe, only locally varying customary law remained. Consequently, the reception of Roman law there was much slower, and the process began to appear quite sudden. Part of the resistance to new knowledge came from local secular courts, which highly valued their own customary law; sometimes it also came from the throne (e.g., in France). Because, outside the Holy Roman Empire, the imperial authority of the Corpus Juris Civilis actually hindered its reception. It was only later that kings or monarchs could apply all those documents asserting absolute imperial authority within their own territories for their own sake. As the Middle Ages drew to a close, the drawbacks and problems brought by complex local customs and the incompetence of local courts made it difficult to resist the demand for Roman law and for legal professionals educated in it. The resulting reception of Roman law was most thorough in Germany and the Netherlands. In the late 15th century, courts with broader judicial jurisdiction emerged, whose judges had all been educated in Roman law. By the 16th century, the reception of Roman law was fully realized. While many local customs continued to exist, especially in family law and inheritance matters, the basic structure of the law, the way legal professionals thought, and the terminology all came from Roman law. The rules of customary law acted as local variables, influencing the general system. In Northern France (where it was the "land of customs [pays des Coutumes]," in contrast to Southern France, which was the "land of written law [pays de droit écrit]"), the reception of Roman law was earlier and more gradual, less intense than in Germany. The customs were codified in the 16th century, making them better able to resist the penetration of Roman law. Nevertheless, the influence of Roman law on legal thinking and logic was unavoidable. In Britain, on the other hand, although Roman law was known and taught early on, it never took root in the practice of common law courts.