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1. Introduction
If the Greeks invented the polis,
the Romans invented the “state”.
Unlike the Greek polises, which never produced a great, unified state because
they lacked the institutional capacity to organize and control an extensive
territory, Rome developed a method of expansion which allowed it to govern and
administrate large territories from the metropolis (that is the Roman civitas). This was their first
contribution to European culture. The second one was Law.
The Romans managed to build upon the Greek
political model of the polis, and dramatically expand it, transforming Rome
into a colossal territorial entity and a military, political and cultural
juggernaut, thanks to their advanced
organisational capacity. But they consolidated it durably thanks to
the development of a truly
extraordinary legal system. The Romans may have expanded their empire through
their military prowess and technology, but they consolidated it through Law.
Given that the entire Western legal apparatus rests on foundations laid by the
Romans, and as its legal conceptions have come to permeate the world, it is
important to understand why and how the Romans managed to avail themselves of
such an astonishing system.
The Roman
Empire is not the oldest. The first empires appeared in the East, not in the
West. Concretely in Mesopotamia where appeared the first empire: the Akkadian at the end of the Third Millenium. The second one appeared in China a
territory that became a powerful empire under the Han (206 BC from AD 220),
precisely thanks to the unification carried out at the end of the 3rd century
BC by Emperor Qin (223-206
BC , who ruthlessly wiped
out the heads of rival clans.
Qin followed the ideas of the sage Confucius (551-479) who sought to mitigate the negative effects of the spread of feudalism during the era of Warring States (475-221 BC). At the time of his birth China was dominated by powerful rulers at war with one another. In order to rectify this situation Confucius endorsed the idea of a single empire headed by a sole sovereign. It is interesting to note that Confucius did not base the social structure he envisioned on any divinity. China was not a theocracy, as its religion consisted essentially of the veneration of one’s ancestors and a morality according to which rulers were to be accepted by the people because they were virtuous, not because they had imposed themselves upon them by military force. According to Confucius, government should be based not on force, but on the encouragement of just and good conduct, not in divinity. From a practical point of view he defended a centralized model of governmental organization, presided over by an emperor who would administer and govern the state through a bureaucratic class. Confucius, however, argued that these bureaucrats should be selected based on merit, and not simply drawn from the hereditary nobility. Thus appeared the famous “mandarins,” who obtained their posts only after passing very difficult tests requiring years of study.
Confucius’s ideas on government and the state were,
for the first time, placed into practice
by the Qin Dynasty (223-206 BC), whose emperors were so important that the
line would give the country its name today: China.
The Westerners –today Europeans- did not have
a strong centralized empire until much later. The Roman Empire appears after the Roman Civil Wars
(88-31 BC) with Octavian Caesar Augustus (27 BC-14 AD), and disappears –at
least its Western part- in 476 AD.
Rome is initially a small polis, but gradually through their strong sense of
organization, the Romans conquered the Italian Peninsula by the beginning of
the 3d century BC and they started expanding fighting and beating the Carthaginians
by the end of the same century. From then the Roman expansion was unstoppable. The problem was that such an
extraordinary territorial increase could not be managed through the polis
model. So Rome entered in the critical period of the Civil Wars (88-31 BC).
The height of the Roman Empire was attained in the 2nd century AD with its greatest emperors: Trajan, Hadrian and Marcus Aurelius, the three of them of Hispanic origin.
Thanks to the
cleverness of Augustus the West saw the rise of its first great Empire. Many of Roman institutions would come
until our days, as for instance the Senate,
an institution that still exists in many European States. Though the real reason why the Romans were so decisive in European history
is because they developed and outstanding Legal System. This is why our National legal systems are essentially
based of the Roman Legal concepts, developed by the first Legal Professionals in History: the lawyers, that the Romans
called “Jurisconsults”, persons that
dedicated their lives to resolve the conflicts among their fellow citizens...
for free.
b) An
outstanding Legal System
Roman society was initially ordered around the “mores
maiorum”, the way of their divine ancestors- as in Confucius China-, a
code coming down from a long tradition and constituting a moral system proven over the course of generations, which is why it
was imposed on citizens, limiting their freedom within the city of Rome. This
is why Cicero, in his Treaty on Laws, writes that: “The origin of justice is to be sought in the divine law of eternal and
immutable morality”.
Today, when we think of the legal realm we tend to
envisage an overwhelming multitude of rules, as we see ourselves buried under
an avalanche of laws ― that is, statutes, regulations, ordinances, directives ―
legislated by governments. Originally, however, in Rome, such laws (as opposed
to Law; note the distinction here) were almost non-existent. For the citizens of Rome, the Law did not refer to mandates that had
to be obeyed, but rather the possibility of “acting” to protect one’s rights.
Law as Justice
Romans did not speak about “Law,” but rather to ius.
From which come the word “Iustitia” Ius,
in the broadest sense, embraces the entirety of the Law. It is, according to
jurist Celsus (67-130 AD) “the art of goodness and equity” (ius est ars boni et aequi); and, for
Paul (3rd century AD) “what always is
just and fair” (aequum et bonum).
The fundamental principles of the Law are to live honestly, to harm nobody, and
to give everyone their due (honeste
vivere, alterum non laedere , suum quique tribuere). For the
pragmatical Romans, the important thing was not so much to define the social
order imposed by their predecessors as to ensure
its restoration in the event that it was violated. The logic of ancient
Roman law can be expressed in the maxim: Where
there is a Remedy there is a Right, and there is no Right unless there is a
Remedy.
For
making it short: for the Romans Law was synonym of JUSTICE. Originally
the essence of Roman Law was the possibility
of attaining “justice” (“Ius-titia”),
a concept defined by one of the most famous Roman jurists, Ulpian (170-228), as
the constant and perpetual impulse to “give to each his own” (Iustitia est constans et perpetua voluntas
ius suum quique tribuendi)― an excellent definition that makes this great
jurist a sort of forerunner of Human Rights theory.
But why Roman Law became such a good legal system?
Every group of people, every
civilization needs a system for solving conflicts if they do not want the
conflict to degenerate in a war. This why the History of Humanity is in great part the History of the Law, that
is the instruments every society develops to solve human conflicts. But
why Roman Law was so special? Simply because the Romans had the first legal professionals in Human History.
That is people who dedicated their lives to help their fellow citizens to solve
their conflicts.
And then appeared the Lawyers
The
Romans were the first people to have legal professionals. The
ruling classes in a whole range of different cultures –the Greek Sophists, the
Chinese Mandarins, Islam's alfaquis and ulemas, the priestly classes in Egypt
and Mesopotamia– all ensured the maintenance of social order, but they never
specialised in the task of resolving conflicts between their fellow citizens.
Today we find it only natural, and obvious, that when faced with a legal
problem, you go to a lawyer. But, back in the day, this was not obvious at all.
Being sarcastic we could say that Romans did
many great things, and we owe them a lot, especially when it comes to the
subject before us: Law. But they also did
something unforgivable: they invented lawyers. But the truth is that
Roman lawyers were not like ours.
In fact they were not exactly lawyers, they were experts that advise people on how to solve
their clashes. People with expertise in ius,
(that is jurisconsults), who had
gained experience through a lifetime dedicated to instructing citizens on how
best to resolve their differences. Moreover they were not at all like modern
lawyers because they did not charge for
their services. They helped their customers “pro bono”.
These jurisconsults did not need the money, because
they invariably belonged to the well-heeled families of the Roman ruling class,
and lived off passive income. They
did so out of vanity, as jurisprudence was considered such a complex art that it conferred upon them great prestige and allowed
them to achieve social renown. Romans who dedicated themselves to the
practise of Law wanted honour and fame. In order to achieve both, through the
exercise of jurisprudence, young Romans from well-to-do families became
apprentices to famous jurisconsults, attending their consultations and
discussing them. This allowed them to
commence paths of public service (cursus
honorum) leading towards the highest magistracies: praetor or consul,
which, in turn, was the way to access
the Senate, the nucleus of Rome's most influential elite. In short, jurisprudence was a high road to
the “Establishment”.
Of course this
Legal system essentially orientated to solve problems changed considerably
after Augustus reforms, especially when political power was finally vested
on emperors. Because the concentration of political power led naturally to the politicization of the Law.
The Romans, after
inventing lawyers, discovered that controlling the law was a great way to
consolidate and strengthen political power. The pretext, of course, was to prevent chaos, but once politicians get
their hands on the law it is extremely difficult for citizens to wrest it back
from them.
The practice of asking for an authorization to
legislate on behalf of the People of Rome began quietly under Augustus, and
continued under Tiberius and Claudius, being consolidated by Vespasian (69-79)
as soon as he occupied the imperial throne.
Concretely emperor Vespasian (69-79 AD) received the
authorization to legislate in name of the people of Rome, a blank check given by a popular assembly, so far the only
legitimated to issue legislation, allowing
Vespasian and his successors to legislate whatever they felt like. The
amazing thing is that the gambit actually worked, and thereafter the emperors managed to seize full control
of the Roman legal system. What ensued was a rampant legislative invasion,
opening the door to an unbridled politicization of the Law. And today, in our powerful states,
politicians still try to control the legal system through legislation.
This important transformation ended up being reflected
in the terminology itself: originally the Romans had used the term ius
to refer to the mechanisms to safeguard the social order, but by the end of
their history they were using a new term to refer to the law: directus,
which may be translated as "straight" or "direct" or
"right," expressing the idea
of rectitude, of doing the "right" thing.
The fact that Roman law went from ius to directus meant
that its primary function had evolved
from resolving conflicts to forcing everyone to act rightly so that citizens
would live their lives in accordance with the law, now upheld as the paradigm
of righteousness and rectitude. Law was
no longer synonymous with "justice," but rather with
"legislation." It was no longer, essentially, a
"civilized" way of solving human conflicts, but rather a set of rules dictated by a political
authority to construct a social "order." Those in power indicated what was right, and society
was to obey.
And Justinian preserved the Roman Law forever
In 476 AD, when Romulus Augustulus, the last Western
Roman Emperor was dethroned by a German chief warrior named Odoacer. However Odoacer had no idea that he was making history, as
his only intention was to make possible
the reunification of the Empire. Thus, he sent imperial emblems to the then
Eastern Emperor Zeno (474-491), thereby acknowledging his imperium, or
authority. It was a matter of time that Eastern (Byzantine) emperors would try
to reconquer the Weastern part of the Empire.
The emperor that tried to do so was Justinian (527-565) who took the reunification of all the territories under his rule very seriously, initiating a series of military campaigns aimed at reconquering the former Western Empire, in order to achieve what they called the "Renewal of the Empire of the Romans" (Renovatio Imperii Romanorum). The attempt was, however, a failure as Byzantine troops managed only to occupy North Africa, the South of the Italian Peninsula, and an insignificant part of the Iberian Peninsula, and not for long.
Justinian´s failure as military leader was largely compensated by his initiative, more mundane but much more important, to compile the entire Roman legal tradition and systematically order it into a single official code to be applied across all his domains.
The compilation commissioned by Justinian is also known by the Latin name of Corpus luris Civilis (or Corpus luris Justiniani), though this name was applied to it later, in 1583, when the Italian jurist Denis Godefroy published a comprehensive edition that included the four parts of the Justinian compilation: Code, Novels, Digest and the Institutes, over 1,000 years after Justinian's death, which is quite a testament to the immortality of his legal feat.
Without Justinian European history would have been very different.
2. How to study
Teaching Guide 2
a) Read the corresponding text in the
“Aula Virtual”.
b) Familiarize yourself with the basic Chronology
of the period:
CHRONOLOGY
10.000
BC Founding of the city of Jericho
2334-2279
BC Sargon of Akkad
551-479 Life of Confucius
223-206
BC Reign of Emperor Qin (from whom “China” takes its name.
202
BC 220 AD Han Empire in
China.
The origins of Rome and its first expansion
753 Legendary
founding of the city of Rome by Romulus and Remus (Ab urbe condita)
509 Servius
Tullius establishes the republican regime
275 Defeat
of Pyrrhus at Beneventum, Rome controls the whole Italic peninsula
264-202 Punic Wars. First Extra-Peninsular expansion
of Rome (Sicily and Spain the first Roman “Provinces”)
146 Annexation
of Greece as Roman Province
The Collapse of the Republican System
88 Beginning
of the Civil Wars
63 Catilina’s
conspiracy. Cicero manages to restore the republican order.
60-54 First
Triumvirate: Caesar, Pompey and Crassus
44 (Ides of
March, 15 March) Assassination of Julius Caesar
43 Second
Triumvirate Octavius, Mark Antony and Lepidus
31 b Naval battle at Actium (Greece). Victory of
Octavian over Mark Antony.
The Imperial Era
27 BC Official establishment of the Principate by
Augustus
19 Publication
of the Virgil’s Aeneid: an embellished and mythical approach to Rome’s origins.
14 AD Death of
Augustus
14-68 Julio-Claudian
Dinasty (Nero 54-68)
69-96 Flavian
Dinasty (Vespasian 69-79)
96-191 The high
Empire_ the golden Roman Era
- 98-117 Trajan
- 117-138
Hadrian
- 161-180
Marcus Aurelius
212 Caracalla
grants Roman citizenship to all inhabitants of the Empire
The Decline of the Roman Empire
284-293 Diocletian and the establishment of the Dominate
(Tetrarchy)
380 Theodosius
I imposes Christianity as the official religion of the empire (Catholicism)
395 After Theodosius I death the Roman Empire is
divided in East and West
476 End of
the Western Roman Empire. Romulus Augustus and Odoacer.
From Eastern to Byzantine Empire
527-565 Reign
of Justinian
1453, 29 of May Constantinople
is conquered by Ottomans. End of the Byzantine Empire.
c) Complete in your Class Notebook the
following exercises:
CONCEPTS
Historical Era. Qin.
Zhongguó. Confucius. Princeps. Province. Gentilitas. Dominate. Romanization. Octavian Caesar Augustus.
Diarchy. SPQR. Res publica. Caracalla
(Constitutio Antonina). Mores maiorum.
Legal Action vs. Legislation. Procedural
conception of Law. Iustitia.
Jurisconsults. Pro bono. Honoraries. Cursus honorum. Ius vs Directus.
Justinian Code.
QUESTIONS
Concrete questions
1. How do the Chinese call China and why?
2. Why Confucius was essential for the Chinese empire?
What was his idea of government and how to enforce it?
3. Why the political reform of Augustus was called a “Diarchy?
(power of two).
4. How did the Romans called the public organization
of the Empire as they did not use the word “state”?
5. What was the “legal regime” of the inhabitants of
the Roman Empire before and after the date of 212 AD?
6. Was Odoacer aware that deposing Romulus Augustus in
476 AD he was liquidating the Western Roman Empire?
7. Explain briefly what were the “mores maiorum” and how the “ius” appeared to protect them.
8. Explain the sentence : ” Where there is a
Remedy there is a Right, and there is no Right unless there is a Remedy”.
9. Why the Roman Law was such a good legal system?
What did the Roman have that the rest of civilizations did not?
10. Why roman lawyers practiced law, considering that
they did not charge their clients for consultations?
11. How did the Augustus reform of Roman political
system affect the Roman Legal system? Why it changed of spirit?
12. Why Emperor Vespasian changed forever the Roman
Legal system? Think of its relationship with popular assemblies that used to
legislate.
13. Explain what means the term “politicization” of
the Law.
14. Why the Eastern Byzantine emperor Justinian
(527-565) despite being a failure in the political aspect was crucial for
European civilization in the long run?
General Questions
1. Explain what means that the Romans overcome the
polis system? Why their contribution was essential for European civilization?
2. Why did the Republic disappeared in Rome ? What was
the cause of its decay? How did Augustus change the public organization of
Rome? What was the spirit of his reform?
3. Explain why Roman Law initially was originally a
system of remedies and not a system of laws (in the sense of legislation).
