Roman public and private law. Concept and characteristics

Roman public and private law. Concept and characteristics

 

Roman law is the right of ancient Rome, the Roman state of the slave-owning formation.

Right in the objective sense - the totality of legal norms, in the subjective sense - the right that belongs to the subject of law. Roman lawyers did not make this distinction. They divided the right into 2 parts, the difference of which was carried out by contrasting the interests of the state and society with the interests of individuals.

1. Public law (jus publicum) - a set of rules governing religious issues and governance issues. This right, which is "ad statum rei Romanae spectat" (refers to the provisions of the Roman state). Public law included the shrines, the ministry of the priests, the position of magistrates (Ulpian). It included the rules that determine the legal status of the state and its bodies and regulate their relations with private individuals. Roman public law contained rules on legal proceedings: the forms of litigation, summoning to court, proving and evidence, procedural representation; criminal law: on crimes and punishments, on responsibility for crimes; about laws, senatusonsonsults and long-term custom; about the order of funerals and ceremonies; on the legal capacity and capacity of persons, on the structure of power, on the employment of public positions. The norms of public law were imperative (imperative) and could not be changed. Methods of power and submission were applied. Public law is inextricably linked with duties.

2. Private law (jus privatum) - a set of rules governing the issues of property and family relations in Roman society. This right, which refers to "ad singulorum utilitatem" (concerns the benefits, interests of individuals). Private law regulated the relations of individuals between themselves and in institutions related to the production, exchange of things and services. Private law was divided into a complex of property (about things) and personal rights (absolute, inalienable). Roman private law regulated: property and some non-property relations; family relations: the order of marriage, the position of the head of the family, personal non-property and property relations in the family; property relations, rights to other people's things (easements, lien, emphyteusis and superficies); Obligatory legal relations, i.e. the procedure for concluding and executing contracts, responsibility for non-fulfillment; inheritance, that is, the transfer of property to others after the death of the testator. For Roman society, the concept of private law did not coincide with the notion of civil law (jus civile), since not all inhabitants of Rome were citizens. The state minimally interfered with private law. The main place was occupied by conditionally-obligatory, authorizing, permissive norms, that is, norms that were dispositive (replenishing). Private law could change and either be applied or not, it was deeply individualistic, which gave Heinrich Heine a "bible of selfishness". Private law, unlike a public one, is really right, with rare exceptions (for example, the obligation to accept an inheritance in the event of a refusal). Private law is the most decorated and finished part of Roman law.

 

Periodization of Roman law

 

Periodization of Roman law - the allocation in the development of Roman law of certain stages that have a corresponding time period and characteristic features. Below are listed the periods of development of Roman law.

1. VIII-III century. BC. e. - the period of the ancient, or Quiritian law - the period of the initial formation of Roman law. The right existed only within the framework of the patriarchal Roman community, for the members of the community and for the sake of preserving its values ​​and privileges, it is inseparable from the legal practice of the pontiff priests, permeated with a sacred, and therefore formally conservative, principle. During this period, the formation of the main types of sources of Roman law, the transition from customary law to state legislation and the continuous judicial practice based on it, is noted. In the V century. BC. e. The first codification was carried out - the Laws of the XII Table, which fixed the basic institutions of Rome's legal system (the division of things, the ways of their transfer, delicts, etc.). The systematization of legal norms was primitive, and legal institutions were not always clearly distinguished. During this period, the methods of exercising the right were born. At first it was a pontifical production carried out by the priests. At the end of the period, the praetor's office appeared and the process of legitimization began. Roman law in this period represented a privileged right - civil (or quirits) law.

2. III-I c. BC. e. - the pre-classical period, characterized by the social unification of the Roman community, the erasure of the fundamental lines between patricianism and the plebeians. During this period, the activities of all the institutions of Roman statehood and the judiciary took shape; the source of law along with the national state legislation - judicial and magistrate lawmaking. Laws were published that developed individual institutions of Roman law and created new ones. Institutions of inheritance law, servitudes, delicts developed. The leasing process was transformed into a formal one. The requirements of law were influenced by Greek philosophy and Greek legal doctrines. The traditions of Roman jurisprudence and associated private practice, judicial eloquence arose.

3. I c. BC. e. - III century. n. e. - The classical period. There was formation of the principles of public law. Criminal law with independent objects of legal protection and principles of application was formed. The general legal status of a free citizen has been formed. The completed form was acquired by the institutions of property, possession, types of transactions permitted and protected by law, legal requirements, etc. The main sources of law are senatusukonsults, constitutions and lawyers' answers. There was an extraordinary process. By this time the heyday of Roman jurisprudence and forensic jurisprudence (the work of Cicero).

4. IV-V c. n. e. - Postclassical period. characterized by the development of imperial legislation. The prevailing form of law and the source of norms is the law. The judicial process became inseparable from the state administration. Attempts have been made to codify the law. At the end of the period, the codification of Emperor Justinian was created. Legal institutions have changed insignificantly.

 

The reception of Roman law

The reception of Roman law is one of the most important historical processes of the epoch of feudalism, taking place in Western Europe since the 12th century.

Reception (from receptio - "acceptance") - restoration of the action (selection, borrowing, processing and assimilation) of the normative, ideological and theoretical content of Roman law, which turned out to be suitable for regulating new relations of a higher stage of social development.

The subject of reception was Roman private law. Roman public law ceased to exist with the fall of Rome.

The reception of Roman law was conditioned by:

- a high level of Roman law - the presence in the finished form of a number of institutions that regulated the relationship developed trade turnover, clarity and clarity of legal norms. Roman classical law in many respects was free from national limitations, acquired the features of universality and was revered as a "general, higher, scientific right";

- shortcomings of local, mostly ordinary, law. The customary law was archaic, contained numerous gaps, ambiguities, contradictions.

The reasons for the reception of Roman law:

- Roman law gave ready-made formulas for the legal expression of the production relations of the developing commodity economy;

- Kings, finding in the Roman law state and legal provisions, substantiating their claims to absolute and unlimited power, used them in the struggle against the church and the feudal lords;

- increased interest in Roman law due to the wide circulation of the Renaissance to the ancient artistic heritage.

The reception of Roman law is a complex, multi-stage process of borrowing on the basis of selection, then processing in relation to its conditions, assimilation, when someone else becomes an organic part of one's own right.

Stages of reception:

1) study of Roman law in certain urban centers of Italy. It occurred in the Code of Laws of the Emperor Justinian in the Bologna School of Arts and is associated with the name of Irneria. Schools were formed:

- glossators: the study of Roman law was originally expressed in brief remarks and explanations (glosses) made between the lines and on the margins of manuscripts of Roman laws;

- postglossators, for the activities of which typically the adaptation of Roman law to use in the courts. Accursions in the middle of the XIII century. combined the existing commentaries of Roman law existing under him and created a consolidated gloss (Glossa Ordinaria);

2) distribution of reception in the territory of a number of states and the practical application of Roman law in the activity of practical judges;

3) processing and assimilation of the achievements of Roman law.

Roman private law became the "common law" of a number of states and the foundation for the further development of feudal and bourgeois law. It acquired a number of centuries after the fall of Rome, the importance of existing law in a number of states in Central and Southern Europe.

Monuments of the reception of Roman law:

- in France - "Extracts of Peter" (XI century) and "Brahilogus", "Kutyumah Bovesi" (the end of the XIII century.);

- in England - the work of Braxton "On the laws and customs of England" (XIII century.);

- in Germany - the Saxon mirror (XIII century), the German civil code (1900), "Carolina" in 1552 (Constitutio criminalis Carolinae);

- in Russia - Cathedral Code of 1649

 

The system of Roman law

 

Roman law was constantly developed historically by several parallel streams, perfected and developed as a system in the era of Justinian.

The oldest right of the fas was of a religious nature - jus sacrum. Cognition and interpretation of it was concentrated in the priestly collegia of the pontiffs, who were the first Roman jurists.

Later, from the oldest right, fas began to be distinguished by secular law - jus. The difference between fas and ius was finally determined during the republic with the separation of priestly posts from secular magistracy. The impetus was the publication of a book about suits and a calendar (jus Flavianum).

The natural economy corresponded to the closed nature of the oldest law governing relations between Roman citizens only, jus civile. The law was distinguished by extreme formalism, symbolism, strong influence of religion, similar to Greek paganism. Aliens, foreigners did not use any legal protection.

With the development of trade and market relations, it became necessary to protect foreigners coming to Rome. Initially, this protection was carried out according to the laws of the country from which the alien arrived - lex patria, and then under Roman law. Along with jus civile appeared jus gentium - the right of peoples. jus gentium was distinguished by greater freedom, simplification of form and principle: it is important not what is said, but what was meant.

Roman law began to lose its features and increasingly borrow from the rights of other countries. It marked the features of universality, which gives a long life to this right and is so widespread. The notions of jus naturale and aequitas (jus aequum) arose.

With the merger of these streams into one channel, the right is called civil, and by content becomes the whole of the people.

The development of private property relations required the development of Roman private law. Appeared jus pretorium - praetor law, when the praetor gave edicts. The judicial activity of the praetor did not change the norms of civil law, but gave them new meaning. The basis of praetor law - the principle of conscience, justice, its norms were freed from formalism.

The system of Roman law - the order of the presentation of legal norms, their location in the legislative acts and writings of Roman lawyers.

Systems of grouping of legal norms:

1) the pandemic is characteristic of the Digest (Pandektov) of Justinian. Comprises:

- common section;

- Special sections: property law, liability law, family law and inheritance law.

The pandemic system was perceived by the German legal system, and on its basis the German Civil Code was created. The pandemic system is also perceived by modern Russian private law;

2) institutional. In it there was no general part, and from the corporeal right was not allocated the hereditary right. Norms that were of a general nature were located in each of the sections. "All that right we use applies to either individuals or things, or to legal actions (suits)," said (Guy). Groups of legal norms: the right of persons (subjects of law), proprietary rights, the law of obligations. The institutional system was dominant in the classical era and was perceived by the French legal system in the creation of the Civil Code (the Code of Napoleon).

 

The Right of Peoples

The right of peoples (jus gentium) is a kind of Roman civil law; law, uniform for all peoples, the whole people's right. Its effect extended to the entire Roman population, including the Peregrines. In modern terms, this is international law.

The right of peoples arose later civilized and was more progressive. It was distinguished by greater freedom and simplification of form. The principle of the right of peoples: the main thing is not what was said, but what was meant.

Initially, the right of peoples consisted of treaties concluded by Rome with foreign powers.

The right of peoples regulated the property relations that arose between the Peregrines and Roman citizens, as well as public and legal issues, trade law issues (international trade).

With the establishment of Rome, the center of international trade, there was a need to create a praetor and for foreigners. He was called the "praetor for peregrin" and allowed disputes between Roman citizens and foreigners or between foreigners themselves on the territory of the Roman state. Since the civil rights did not apply to the Peregrines, the Praetor had to apply, on the one hand, the international legal norms concluded by the Roman state, on the other hand, that which was related to the law common to all peoples. What was common to all peoples known to Rome was the right of peoples. In his administration of justice, the praetor used primarily the notion of justice and international law. At the same time there were certain usages, which the praetor began to reflect in the edicts. Gradually the edicts of the praetor of the Peregrines formed a new community, a new legal system within the framework of Roman private law. Since it was a Roman magistrate and since the law was applied on the territory of the Roman state - it was Roman law. On the other hand, it differed in its approaches, according to its ideas, which it contained in itself, according to the rules that were contained in the edicts, according to the claims that were contained there, from civil law. Because it took over another generation of international civil turnover, on the one hand, on the other hand, some norms taken from foreign law. The praetors in the affairs of the Peregrins engaged in creativity. To resolve disputes with foreign citizens in the territory of Rome, they created new, more flexible, more successful, alien to the formalism's inherent formalism.

Over time, civil law (jus civile) and the right of peoples began to converge. In practical application, both systems were in constant interaction; there was a mutual influence of one system on another. The right of peoples influenced the civil law in view of the fact that the former was more suited to the needs of the economic life of Rome. Some norms of civil law penetrated the system of people's rights (for example, according to Laws XII of the Table, the rules on theft did not apply to Peregrines, and in practice these norms were also applied to Peregrines). Under Justinian civil law and the right of peoples formed a unified system of law, in which the right of peoples prevailed as a right more developed. Roman civil law has become an international law common to all citizens of the Roman Empire.

 

Codification of Roman law

The reason for the codification of Roman law - by the III century. n. e. accumulated a large amount of unsystematic Roman laws, contradictory to each other.

The first attempts to codify Roman law were made by private individuals. After the death of Marcus Aurelius Papirius Iustus assembled his constitution. In 295, a code of Gregorians (Codex Gregorianus) appeared in Berite (Beirut), which contained the constitution of the emperors from Adrian (117 AD) to Diocletian (295 AD) in 14 books. The supplement to it was the code Hermogenianus (Codex Hermogenianus), compiled between 314 and 324 AD. e. in 1 book, containing the constitution before Constantine.

At the beginning of the IV. on the basis of the works of Ulpian, a textbook was developed - the recycled works of Paul "Synthesis" in Digests.

The official codification of Roman law began in the first half of the 5th century. n. e., the result of which was the Code of Theodosius (Codex Theodosianus) 437, containing in 16 books the constitution of emperors starting from Constantine. The Code of Theodosius contained a real and mandatory right (two parts of the property right).

In 527, in Byzantium, Justinian came to power. In an effort to create disciplined bureaucracy, restore order in the courts and give his empire a harmonious single legal basis, Justinian convened to help outstanding lawyers. As a result, a comprehensive codification of the law on new principles that reflected the high level of jurisprudence and legal science of Byzantium within the framework of Roman legal culture was realized.

In early 528, a state commission of 10 specialists was established under the leadership of the well-known lawyer Tribonian. In April 529 the commission published a code of imperial constitutions in 12 books, with the publication of which all previous collections and separate acts were regarded as having no legal force. In 530, a new commission was appointed out of 16 people (practitioners and people of science) under the leadership of the same Tribonian.

The commission carried out a grandiose compilation of excerpts from the writings of Roman lawyers of about five previous centuries, published in December 533, entitled Digest (from Latin digesta - "collected"), or "Pandect" (from the Greek pandectac - "all accommodating "). Simultaneously, Justinian put before the commission the task of identifying the general principles of Roman law - for the purposes of both educational and ideological-political, resulting in the "Institutions". In 534, the Code of Imperial Constitutions was reworked and updated, in which this time the law of the Christian era was mainly generalized.

After the publication of the code the legislative activity of Justinian continued - all the major acts he issued later were "Novels", systematized after the death of Justinian.

The Code of Justinian 529 was a textbook consisting of 4 parts: Institutions, Digestes, Codex, Novels.

With the beginning of the revival of Roman law in the era of its reception, all four elements of the Code of Justinian received the generalized name Corpus iuris civilis; under the same designation they were first published in unity by D.Gaufred and entered the historical tradition. All parts of the arch are not preserved in the original, but came to us in the later lists of littera Florentina - in the 6th-7th centuries, the rest in the 8th-11th centuries.

 

The legal status of slaves

 

Serv (servus) was outside the political society and was not a subject of law. Under Roman law, he was considered a thing. The specificity of this thing is that it is not a draw.

Slaves passed into the ownership of citizens in two ways: according to civil law and the right of the people.

Civilized ways of transition into slavery:

- the capture of the "enemy of Rome" in the war, that is, the man who belonged to the hostile state for the Roman people;

- the slavery of foreigners who were in Rome;

- sale in slavery in the order of responsibility for obligations;

- self-sale for the sake of getting a part of the redemption price;

- conviction to death or hard labor;

- Evasion of military service;

- non-passage of the periodic property qualification.

By right of the people, slaves or those born of slaves were considered slaves. A free woman became also a slave, caught in an intimate relationship with the slave and continued her, despite the warning.

At an early stage in the history of Rome, slavery was domestic, patriarchal and slave, although it could not have either its own property or its family, it was not yet considered as a thing, it retained some of the rights of the human person. They expressed themselves in the fact that the grave of the slave was protected by sacred law, as was the grave of the free; the blood relations of slaves were an obstacle to marriage between them; the alienation of slaves was forbidden to share close relatives.

In the property sphere, the slave acted as a "speaking tool". The slave's ability to perform legal actions (but only in favor of the owner) was derived from the legal capacity of the latter, ie, as if the slave owner himself did such acts.

However, for the obligations of slaves, the gentleman did not bear any responsibility.

Since the I c. lawyers recognized in some cases for slaves the opportunity to act on their own behalf. Reflecting the needs of economic development and protecting the interests of counterparties of slaves, they, despite their lack of legal capacity, sanctioned the contracts they concluded and the obligations arising from them.

Another novel was to recognize the responsibility of slaveholders for the obligations of slaves arising in the course of their economic activities on behalf of their owners.

The broader economic and legal possibilities required relations that arose on the basis of peculium - a separate property allocated to a slave by the gentleman for self-management, with a certain portion of income being paid to the latter. Since economic activity was conducted by a slave on his own initiative and in his own interests, and peculium was legally owned by the master, he was responsible for the obligations of the slave within the limits of peculium.

With the introduction of the cognitive process, slaves who did not have the right to sue in ordinary courts were given the opportunity to complain to officials (prefect) who could compel the person concerned to fulfill the obligation.

The liberation of slaves was to have a legal form - manumissio. It was only personal. The master could make an order for the release of a slave by his own decision in a will or through a fictitious trial of alienating property.

 

Roman public and private law. Concept and characteristics

 

Roman law is the right of ancient Rome, the Roman state of the slave-owning formation.

Right in the objective sense - the totality of legal norms, in the subjective sense - the right that belongs to the subject of law. Roman lawyers did not make this distinction. They divided the right into 2 parts, the difference of which was carried out by contrasting the interests of the state and society with the interests of individuals.

1. Public law (jus publicum) - a set of rules governing religious issues and governance issues. This right, which is "ad statum rei Romanae spectat" (refers to the provisions of the Roman state). Public law included the shrines, the ministry of the priests, the position of magistrates (Ulpian). It included the rules that determine the legal status of the state and its bodies and regulate their relations with private individuals. Roman public law contained rules on legal proceedings: the forms of litigation, summoning to court, proving and evidence, procedural representation; criminal law: on crimes and punishments, on responsibility for crimes; about laws, senatusonsonsults and long-term custom; about the order of funerals and ceremonies; on the legal capacity and capacity of persons, on the structure of power, on the employment of public positions. The norms of public law were imperative (imperative) and could not be changed. Methods of power and submission were applied. Public law is inextricably linked with duties.

2. Private law (jus privatum) - a set of rules governing the issues of property and family relations in Roman society. This right, which refers to "ad singulorum utilitatem" (concerns the benefits, interests of individuals). Private law regulated the relations of individuals between themselves and in institutions related to the production, exchange of things and services. Private law was divided into a complex of property (about things) and personal rights (absolute, inalienable). Roman private law regulated: property and some non-property relations; family relations: the order of marriage, the position of the head of the family, personal non-property and property relations in the family; property relations, rights to other people's things (easements, lien, emphyteusis and superficies); Obligatory legal relations, i.e. the procedure for concluding and executing contracts, responsibility for non-fulfillment; inheritance, that is, the transfer of property to others after the death of the testator. For Roman society, the concept of private law did not coincide with the notion of civil law (jus civile), since not all inhabitants of Rome were citizens. The state minimally interfered with private law. The main place was occupied by conditionally-obligatory, authorizing, permissive norms, that is, norms that were dispositive (replenishing). Private law could change and either be applied or not, it was deeply individualistic, which gave Heinrich Heine a "bible of selfishness". Private law, unlike a public one, is really right, with rare exceptions (for example, the obligation to accept an inheritance in the event of a refusal). Private law is the most decorated and finished part of Roman law.

 

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