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.

 

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