Roman law, the law of ancient Rome from the time of the founding of the city in
753 BCE until the fall of the Western Empire in the 5th century CE. It remained
in use in the Eastern, or Byzantine, Empire until 1453. As a legal system, Roman
law has affected the development of law in most of Western civilization he whole
empire in 1900, the Roman law was in force as "subsidiary law"; that is, it was
applied unless excluded by contrary local provisions.
This law, however, which
was in force in parts of Europe long after the fall of the Roman Empire, was not
the Roman law in its original form. Although its basis was indeed the Corpus Juris Civilis-the codifying legislation of the emperor Justinian I-this
legislation had been interpreted, developed, and adapted to later conditions by
generations of jurists from the 11th century onward and had received additions
from non-roman sources.
Development of the Jus civile & Jusgentium
In the great span of time during which the Roman Republic and Empire existed,
there were many phases of legalistic development. During the period of the
republic (753-31 BCE), the jus civile (civil law) developed. Based on custom or
legislation, it applied exclusively to Roman citizens. By the middle of the 3rd
century BCE, however, another type of law, jus gentium (law of nations), was
developed by the Romans to be applied both to themselves and to foreigners.
Jus gentium was not the result of legislation, but was, instead, a development of
the magistrates and governors who were responsible for administering justice in
cases in which foreigners were involved. The jus gentium became, to a large
extent, part of the massive body of law that was applied by magistrates to
citizens, as well as to foreigners, as a flexible alternative to jus civile.
Roman law, like other ancient systems, originally adopted the principle of
personality-that is, that the law of the state applied only to its citizens.
Foreigners had no rights and, unless protected by some treaty between their
state and Rome, they could be seized like ownerless pieces of property by any
Roman. But from early times there were treaties with foreign states guaranteeing
mutual protection. Even in cases in which there was no treaty, the increasing
commercial interests of Rome forced it to protect, by some form of justice, the
foreigners who came within its borders.
A magistrate could not simply apply
Roman law because that was the privilege of citizens; even had there not been
this difficulty, foreigners would probably have objected to the cumbersome
formalism that characterized the early jus civile.
The law that the magistrates applied probably consisted of three elements: (1)
an existing mercantile law that was used by the Mediterranean traders; (2) those
institutions of the Roman law that, after being purged of their formalistic
elements, could be applied universally to any litigant, Roman or foreigner; and
(3) in the last resort, a magistrate's own sense of what was fair and just. This
system of jus gentium was also adopted when Rome began to acquire provinces so
that provincial governors could administer justice to the peregrini
This word came to mean not so much persons living under another
government (of which, with the expansion of Roman power, there came to be fewer
and fewer) as Roman subjects who were not citizens. In general, disputes between
members of the same subject state were settled by that state's own courts
according to its own law, whereas disputes between provincials of different
states or between provincials and Romans were resolved by the governor's court
applying jus gentium.
By the 3rd century CE, when citizenship was extended
throughout the empire, the practical differences between jus civile and jus
gentium ceased to exist. Even before this, when a Roman lawyer said that a
contract of sale was juris gentium, he meant that it was formed in the same way
and had the same legal results whether the parties to it were citizens or not.
This became the practical meaning of jus gentium.
Because of the universality of
its application, however, the idea was also linked with the theoretical notion
that it was the law common to all peoples and was dictated by nature-an idea
that the Romans took from Greek philosophy.
Written & Unwritten Law
The Romans divided their law into jus scriptum (written law) and jus non
scriptum (unwritten law). By "unwritten law" they meant custom; by "written law"
they meant not only the laws derived from legislation but, literally, laws based
on any written source.
There were various types of written law, the first of which consisted of leges
(singular lex), or enactments of one of the assemblies of the whole Roman
people. Although the wealthier classes, or patricians, dominated these
assemblies, the common people, or plebeians, had their own council in which they
enacted resolutions called plebiscita.
Only after the passage of the Lex
Hortensia in 287 BCE, however, did plebiscita become binding on all classes of
citizens; thereafter, plebiscita were generally termed leges along with other
enactments. In general, legislation was a source of law only during the
republic. When Augustus Caesar established the empire in 31 BCE, the assemblies
did not at once cease to function, but their assent to any proposal became
merely a formal ratification of the emperor's wishes.
The last known lex was
passed during the reign of Nerva (96-98 CE).The earliest and most important
legislation, or body of leges, was the Twelve Tables, enacted in 451-450 BCE
during the struggle of the plebeians for political equality. It represented an
effort to obtain a written and public code that patrician magistrates could not
alter at will against plebeian litigants.
Little is known of the actual content
of the Twelve Tables; the text of the code has not survived, and only a few
fragments are extant, collected from allusions and quotations in the works of
authors such as Cicero. From the fragments it is apparent that numerous matters
were treated, among them family law, delict (tort, or offense against the law),
and legal procedure.
Second type of written law consisted of the edicta (edicts), or proclamations
issued by a superior magistrate (praetor) on judicial matters. The office of
praetor was created in 367 BCE to take over the expanding legal work involving
citizens; later, a separate praetor was created to deal with foreigners. Upon
taking office, a praetor issued an edict that was, in effect, the program for
his year in office.
The curule aediles, who were the magistrates responsible for
the care and supervision of the markets, also issued edicts. During the later
stages of the republic, these praetorian and magisterial edicts became an
instrument of legal reform, and leges ceased to be a major source of private
The Roman system of procedure gave the magistrate great powers for providing or
refusing judicial remedies, as well as for determining the form that such
remedies should take. The result of this magisterial system was the development
of the jus honorarium, a new body of rules that existed alongside, and often
superseded, the civil law.
The edicta remained a source of law until about 131
CE, when the emperor Hadrian commissioned their reorganization and consolidation
and declared the resulting set of laws to be unalterable, except by the emperor
A third type of written law was the senatus consulta, or resolutions of the
Roman senate. Although these suggestions to various magistrates had no
legislative force during the republic, they could be given force by the
magistrates' edicts. In the early empire, as the power of the assemblies
declined and the position of the emperor increased, senatus consulta became
resolutions that endorsed the proposals of the emperor.
As the approval of the
Senate became increasingly automatic, the emperor's proposals became the true
instrument of power. Consequently, emperors ceased referring proposals to the
Senate and, not long after the early imperial period, ended the practice of
legislating through the Senate.
The fourth type of written law consisted of the constitutiones principum, which
were, in effect, expressions of the legislative power of the emperor. By the
middle of the 2nd century CE, the emperor was, essentially, the sole creator of
the law. The chief forms of imperial legislation were edicts or proclamations;
instructions to subordinates, especially provincial governors; written answers
to officials or others who consulted the emperor; and decisions of the emperor
sitting as a judge.
The last type of written law was the responsa prudentium, or answers to legal
questions given by learned lawyers to those who consulted them. Although law,
written and unwritten, was originally a rather secretive monopoly of the college
of pontiffs, or priests, a recognizable class of legal advisers, juris consulti
or prudentes, had developed by the early 3rd century BCE. These legal advisers
were not professionals as such but men of rank who sought popularity and
advancement in their public careers by giving free legal advice.
interpreted statutes and points of law, especially unwritten law, advised the
praetor on the content of his edict, and assisted parties and judges in
litigation. Augustus empowered certain jurists to give responsa with the
emperor's authority; this increased their prestige, but the practice lapsed as
early as 200 CE.
During the early empire, numerous commentaries were written by the great jurists
on individual leges, on civil law, on the edict, and on law as a whole. In the
5th century a law was passed stipulating that only the works of certain jurists
could be cited. Legal scholarship declined in the postclassical period.
The law of Justinian
When the Byzantine emperor Justinian I assumed rule in 527 CE, he found the law
of the Roman Empire in a state of great confusion. It consisted of two masses
that were usually distinguished as old law and new law.
The old law comprised:
- All of the statutes passed under the republic and early empire that had
not become obsolete;
- The decrees of the Senate passed at the end of the republic and during
the first two centuries of the empire; and
- The writings of jurists and, more particularly, of those jurists to whom
the emperors had given the right of declaring the law with their authority.
jurists, in their commentaries, had incorporated practically all that was of
importance. Of these numerous records and writings of old law, many had become
scarce or had been lost altogether, and some were of doubtful authenticity. The
entire mass of work was so costly to produce that even the public libraries did
not contain complete collections. Moreover, these writings contained many
The new law, which consisted of the ordinances of the emperors promulgated
during the middle and later stages of the empire, was in a similarly
disorganized condition. These ordinances or constitutions were extremely
numerous and contradictory. Because no complete collection existed (earlier
codices were not comprehensive), other ordinances had to be obtained separately.
It was thus necessary to collect into a reasonable corpus as much of the law,
both new and old, as was regarded as binding and to purge its contradictions and
Immediately after his accession, Justinian appointed a commission to deal with
the imperial constitutions. The 10 commissioners went through all of the
constitutions of which copies existed, selected those that had practical value,
cut all unnecessary matter, eliminated contradictions by omitting one or the
other of the conflicting passages, and adapted all the provisions to the
circumstances of Justinian's own time. The resulting Codex
Constitutionum was formally promulgated in 529, and all imperial ordinances not
included in it were repealed. This Codex has been lost, but a revised edition of
534 exists as part of the so-called Corpus Juris Civilis.
The success of this first experiment encouraged the emperor to attempt the more
difficult enterprise of simplifying and digesting the writings of the jurists.
Thus, beginning in 530, a new commission of 16 eminent lawyers set about this
task of compiling, clarifying, simplifying, and ordering; the results were
published in 533 in 50 books that became known as the Digest (Digesta) or
After enacting the Digest as a lawbook, Justinian repealed
all of the other law contained in the treatises of the jurists and directed that
those treatises should never be cited in the future, even by way of
illustration; at the same time, he abrogated all of the statutes that had formed
a part of the old law. An outline of the elements of Roman law called the
Institutes of Justinian (or simply Institutiones) was published at about the
Between 534 and his death in 565, Justinian himself issued a great number of
ordinances that dealt with many subjects and seriously altered the law on many
points. These ordinances are called, by way of distinction, new constitutions
(Novellae Constitutiones Post Codicem); in English they are referred to as the
All of these books-the revised Codex Constitutionum (the original work was
revised four and a half years later), the Digest, the Institutes, and the
Novels-are collectively known as the Corpus Juris Civilis. This Corpus Juris of
Justinian, with a few additions from the ordinances of succeeding emperors,
continued to be the chief lawbook in what remained of the Roman world. In the
9th century a new system known as the Basilica was prepared by the emperor Leo
VI the Wise.
It was written in Greek and consisted of parts of the Codex and
parts of the Digest, joined and often altered in expression, together with some
material from the Novels and imperial ordinances subsequent to those of
Justinian. In the western provinces, the law as settled by Justinian held its
Categories of Roman law The law of persons
The main distinction in the law of persons," said the 2nd-century jurist Gaius,
"is that all men are either free or slaves." The slave was, in principle, a
human chattel who could be owned and dealt with like any other piece of
property. As such, he was not only at the mercy of his owner but rightless and
(apart from criminal law) dutiless. Even though the slave was in law a thing, he
was in fact a man, and this modified the principle.
A slave could not be a party
to a contract nor own property, but he could be given a de facto patrimony,
which could be retained if he were freed; if he made a "commitment," it could
ultimately be enforced against his master. A manumitted slave became, in most
instances, not only free but also a citizen.
The definition of citizenship was important for the purposes of private law
because certain parts applied only to citizens (jus civile). Noncitizens could
be either Latini, inhabitants of Roman settlements that had the rights of
members of the original Latin League, or peregrini, who were members of foreign
communities or of those territories governed but not absorbed by Rome. The great
extension of the citizenship by the emperor Caracalla in 212 CE reduced the
importance of this part of the law.
The chief characteristic of the Roman family was the patria potestas (paternal
power in the form of absolute authority), which the elder father exercised over
his children and over his more remote descendants in the male line, whatever
their age might be, as well as over those who were brought into the family by
adoption-a common practice at Rome.
Originally this meant not only that he had
control over his children, even to the right of inflicting capital punishment,
but that he alone had any rights in private law. Thus, any acquisitions made by
a child under potestas became the property of the father. The father might
indeed allow a child (as he might a slave) certain property to treat as his own,
but in the eye of the law it continued to belong to the father.
By the 1st century CE there were already modifications of the system: the
father's power of life and death had shrunk to that of light chastisement, and
the son could bind his father by contract with a third party within the same
strict limits that applied to slaves and their masters. Sons also could keep as
their own what they earned as soldiers and even make wills of it. In Justinian's
day, the position regarding property had changed considerably.
What the father
gave to the son still remained, in law, the father's property, but the rules
concerning the son's own earnings had been extended to many sorts of
professional earnings; and in other acquisitions (such as property inherited
from the mother), the father's rights were reduced to a life interest
(usufruct). Normally, patria potestas ceased only with the death of the father;
but the father might voluntarily free the child by emancipation, and a daughter
ceased to be under her father's potestas if she came under the manus of her
There were two types of marriage known to the law, one with manus and one
without, but the manus type of marriage was rare even in the late republic and
had disappeared long before Justinian's day. Manus was the autocratic power of
the husband over the wife, corresponding to patria potestas over the sons.
Marriage without manus was by far the more common in all properly attested
periods. It was formed (provided the parties were above the age of puberty and,
if under potestas, had their father's consent) simply by beginning conjugal life
with the intention of being married, normally evidenced by the bringing of the
bride to the bridegroom's house. The wife remained under her father's potestas
if he were still alive; if he were dead, she continued (as long as guardianship
of women continued) to have the same guardian as before marriage.
had to be citizens, or if one was not, he or she must have conubium (the right,
sometimes given to non-Romans, of contracting a Roman marriage). In marriage
without manus, the property of the spouses remained distinct, and even gifts
between husband and wife were invalid.
Divorce was permitted to the husband in early Rome only on specific grounds.
Later, divorce was always possible at the instance of the husband in cases of
marriage with manus; in marriage without manus, either party was free to put an
end to the relationship. A formal letter was usually given to the spouse, but
any manifestation of intention to end the relationship-made clear to the other
party and accompanied by actual parting-was all that was legally necessary.
Christian emperors imposed penalties on those who divorced without good reason,
including prohibitions on remarriage, but the power of the parties to end the
marriage by their own act was not taken away.
Concubinage was recognized in the empire as a "marriage" without a dowry, with a
lower status for the woman, and with provisions that the children were not
legally the father's heirs. A man could not have both a wife and a concubine. In
the 4th century the emperor Constantine first enacted a law enabling the
children of such unions to be legitimated by the subsequent marriage of their
parents. Medieval civil law extended this rule to all illegitimate children.
Persons under the age of puberty (14 for males, 12 for females) needed tutores
if they were not under patria potestas. Such tutors could be appointed under the
will of the father or male head of the household. Failing such an appointment,
the guardianship went to certain prescribed relatives; if there were no
qualified relations, the magistrates appointed a tutor.
were considered adults at the age of puberty; but, after a long development, it
became usual for those between the ages of puberty and 25 to have guardians who
were always magisterially appointed. Originally, all women not under patria potestas or manus also needed tutores, appointed in the same way as those for
children. By the early empire, this provision was little more than a burdensome
technicality, and it disappeared from Justinian's law.
The Romans did not develop a generalized concept of juristic personality in the
sense of an entity that had rights and duties. They had no terms for a
corporation or a legal person. But they did endow certain aggregations of
persons with particular powers and capacities, and the underlying legal notion
hovered between corporate powers, as understood in modern law, and powers
enjoyed collectively by a group of individuals. The source of such collective
powers, however, was always an act of state.
Four types of corporation were distinguished:
The law of property and possession
- Municipia (the citizen body, originally composed of the conquered cities and
later of other local communities) possessed a corporateness that was recognized
in such matters as having the power to acquire things and to contract. In
imperial times, they were accorded the power to manumit slaves, take legacies,
and finally-though this became general only in postclassical law-to be
instituted as an heir.
- The populus Romanus, or the "people of Rome," collectively could acquire
property, make contracts, and be appointed heir. Public property included the
property of the treasury.
- Collegia-numerous private associations with specialized functions, such as
craft or trade guilds, burial societies, and societies dedicated to special
religious worship-seem to have carried on their affairs and to have held
property corporately in republican times. The emperors, viewing the collegia
with some suspicion, enacted from the beginning that no collegium could be
founded without state authority and that their rights of manumitting slaves and
taking legacies be closely regulated.
- Charitable funds became a concern of postclassical law. Property
might be donated or willed-normally, but not necessarily, to a church-for some charitable
use, and the church would then (or so it appears from the evidence) have the
duty of supervising the fund. Imperial legislation controlled the disposition of
such funds so that they could not be used illegally. In such cases ownership is
thought to have been temporarily vested in the administrators
Roman law (today as well as in Roman times), both land and movable property
could be owned absolutely by individuals. This conception of absolute ownership
(dominium) is characteristically Roman, as opposed to the relative idea of
ownership as the better right to possession that underlies the Germanic systems
and English law
Mancipatio, or formal transfer of property, involved a ceremonial conveyance
needing for its accomplishment the presence of the transferor and transferee,
five witnesses (adult male Roman citizens), a pair of scales, a man to hold
them, and an ingot of copper or bronze. The transferee grasped the object being
transferred and said, "I assert that this thing is mine by Quiritarian [Roman]
law; and let it have been bought by me with this piece of copper and these
copper scales." He then struck the scal? with the ingot, which he handed to the
transferor "by way of price."
In jure cessio was a conveyance in the form of a lawsuit. The transferee claimed
before the magistrate that the thing was his, and the transferor, who was the
defendant, admitted the claim. The magistrate then adjudged the thing to the
transferee. (The sham-lawsuit theory, however, is not acceptable to all modern
scholars, principally because the judgment of ownership was valid against any
possible private claimant, not merely against the defendant, as in a true
Usucapio referred to ownership acquired by length of possession. In early Roman
law, two years of continuous possession established title in the case of land,
one year in the case of movables. In the developed law, possession must have
begun justifiably in good faith, and the thing must not have been stolen (even
though the possessor himself may have been innocent of the theft) or acquired by
In terms of occupatio, ownerless things that were susceptible to private
ownership (excluding such things as temples) became the property of the first
person to take possession of them. This applied to things such as wild animals
and islands arising in the sea. In some views, it also applied to abandoned
Accessio worked in this manner: if an accessory thing belonging to A was joined
to a principal one belonging to B, the ownership in the whole went to B. For
example, if A's purple were used to dye B's cloth, the dyed cloth belonged
wholly to B. By far the most important application of this rule asserted that
whatever is built on land becomes part of the land and cannot be separately
Delicit and Contracts
Obligations were classified by classical jurists into two main categories,
according to whether they arose from delict or contract. Justinian's law
recognized two further classes of obligation, termed quasi-delict and
As early as the 6th and 5th centuries BCE, Roman law was experiencing a
transition from a system of private vengeance to one in which the state insisted
that the person wronged accept compensation instead of vengeance. Thus, in the
case of assault (injuria), if one man broke another's limb, talio was still
permitted (that is, the person wronged could inflict the same injury as he had
received); but in other cases, fixed monetary penalties were set. Theft involved
a penalty of twice the value of the thing stolen, unless the thief was caught in
the act, in which case he was flogged and "adjudged" to the person wronged.
By the early empire, reforms had substituted a fourfold penalty in the case of a
thief who was caught in the act, and the court assessed all penalties for
injuria (which by then included defamation and insulting behaviour). The law of
damage to property was regulated by statute (the Lex Aquilia), which in turn was
much extended by interpretation.
Additionally, there were situations in which a
person could be held liable for damages even though he was not personally
responsible. In Justinian's Institutes only four delicts were dealt with: theft,
robbery with violence, damage to property, and verbal or physical assault.
the early republic, a law of contract hardly existed. There was, however, an
institution called nexum, of which little can be said with certainty except that
it was a kind of loan so oppressive in character that it could result in the
debtor's complete subjection to the creditor. It was obsolete long before
imperial times. The contracts of classical law were divided into four classes:
literal, verbal, real, and consensual.
The literal contract was a type of
fictitious loan formed by an entry in the creditor's account book; it was
comparatively unimportant and was obsolete by Justinian's day. The verbal
contract required set words or patterns of words to be spoken. The stipulatio
was the most important form of verbal contract,
Quasi-delict covered four types of harm, grouped together by no clearly
ascertainable principle. They included the action against an occupier for harm
done by things thrown or poured from his house into a public place and the
action against a shipowner, innkeeper, or stablekeeper for loss caused to
customers on the premises through theft or damage by persons in his service.
Quasi-contract embraced obligations that had no common feature save that they
did not properly fall under contract, because there was no agreement, or under
delict, because there was no wrongful act. The most noticeable examples were,
first, negotiorum gestio, which enabled one who intervened without authority in
another's affairs for the latter's benefit to claim reimbursement and indemnity,
and second, the group of cases in which an action (condictio) was allowed for
the recovery by A from B of what would otherwise be an unjustified enrichment of
B at A's expense, such as when A had mistakenly paid B something that was not
due (condictio indebiti). This notion of unjust enrichment as a source of legal
obligation was one of the most pregnant contributions made by Roman law to legal
The law of succession
The law of succession is one of the most complex areas of Roman law. Any Roman
citizen who was of age could make a will, but several very formal requirements
had to be met for the will to be valid. The first requirement was the
appointment of one or more heirs. An heir, in the Roman sense of the term, was a
universal successor; that is, he took over the rights and duties of the deceased
(insofar as they were transmissible at all) as a whole.
On acceptance, the heir
became owner if the deceased was owner, creditor if he was creditor, and debtor
if he was debtor, even though the assets were insufficient to pay the debts. It
was thus possible for an inheritance to involve the heir in a loss. Until
Justinian's day this consequence could be avoided only by not accepting the
inheritance, though certain categories of heirs could not refuse.
one of his most famous reforms by providing that an heir who made an inventory
of the deceased's assets need not pay out more than he had received. Freedom of testation, furthermore, was not complete: a man was obliged to leave a certain
proportion of his property to his children and in some cases to ascendants and
brothers and sisters
With regard to intestate succession, or succession without a will, those first
entitled in early times were the deceased's own heirs-that is, those who were in
his potestas or manus when he died and who were freed from that power at his
death. Failing these heirs, the nearest agnatic relations (relations in the male
line of descent) succeeded, and, if there were no agnates, the members of the
gens, or clan, of the deceased succeeded. Later reforms placed children
emancipated from potestas on an equal basis with those under potestas and
gradually gave the surviving spouse (in marriage without manus) greater rights
By Justinian's day the system had evolved as follows: descendants
had the first claim, and failing these heirs, came a composite class consisting
of ascendants, brothers and sisters of full blood, and children of deceased
brothers and sisters. Next came brothers and sisters of the half blood and,
finally, the nearest cognates (relations in the female line).
Husband and wife
were not mentioned, but their old rights were kept alive in the absence of any
of the preceding categories. Justinian also gave a "poor" widow a right to
one-quarter of her husband's estate unless there were more than three children,
in which case she shared equally with them. If, however, the heirs were her own
children by the deceased, she received only a ususfructus (life interest) in
what she took.
The law of procedure
The earliest law suits (legis actiones) were conducted orally in two stages: a
preliminary one before the jurisdictional magistrate, in which the issue was
developed; and then the actual presentation of evidence to the judex, or judge.
The first stage required that set forms of words be spoken by the parties and,
sometimes, by the magistrate.
The parties making an assertion of ownership, for
instance, would grasp the thing in dispute and lay a wand on it, after which the
magistrate would intervene and say, "Let go, both of you." So formal was the
procedure that a plaintiff who made the slightest mistake lost his case. For the
second stage, before the judex, there were no formal rules. However, the
plaintiff had the burden of proof, was responsible for physically producing the
defendant in court and, often, for carrying out the sentence.
Under new procedures developed in the 2nd and 1st centuries BCE, the issue at
the magisterial stage was formulated in written instructions to the judex,
couched in the form of an alternative: "If it appears that the defendant owes
the plaintiff 10,000 sesterces, the judex is to condemn the defendant to pay the
plaintiff 10,000 sesterces; if it does not so appear, he is to absolve him."
draft of these written instructions was probably prepared for the plaintiff
before he came into court, but there could be no trial until it was accepted by
the defendant, for there was always a contractual element about a lawsuit under
both the new and the old systems. Pressure, however, could be exercised by the
magistrate on a defendant who refused to accept instructions that the magistrate
had approved, just as a plaintiff could be forced to alter instructions that the
magistrate had disapproved, by the magistrate's refusal to otherwise give the
order to the judex to decide the case.
In late republican times, still another system developed, first in the
provinces, then in Rome. Under the new system the magistrate used his
administrative powers, which were always considerable, for the purpose of
settling disputes. He could command: thus if one person brought a complaint
against another before him, he could investigate the matter and give the order
he thought fit.
As imperially appointed officers superseded republican
magistrates, this administrative process became more common. The result was that
the old contractual element in procedure disappeared as did the old two-stage
division. Justice was now imposed from above by the state-not, as originally,
left to a kind of voluntary arbitration supervised by the state.
From the above analysis, it is evident that though there exist many differences
between the common and civil law systems, these differences tend to be more
procedural or in the nature of the methodology adopted, rather than any
substantive factors. At the end of the day, the aim of both these systems is the
same- to deliver justice.
Thus, it would not be fair to say that one system is
better than the other. In fact, due to modernisation and globalisation, the
differences between common and civil law are significantly reducing as cases
that involve more than one jurisdiction deal with the question of choice of law
that often uses a combination of both common law and civil law depending on the
circumstances of the cases. Thus, there will definitely be a time in the future
where each system might have to take a page out of the other's book to best
tackle certain situations in the future.
- Roman Law and the Legal World of the Romans
- Book by Andrew M. Riggsby Websites.