Where Our Laws Come From: Ancient Roman Beginnings

Michael David April 22, 2008 0


LearnAboutLaw Staff July 2007
Laws are, for the most part, immutable. Once established, laws change very slowly, often taking centuries to adapt and transform. The laws of real estate and contracts have changed very little in a thousand years. Property crimes such as theft and destruction of property, as well as crimes against the person such as murder and assault, are ancient and permanent and can be found in all cultures and nations. Only the punishments for such crimes vary, while their presence is universal.
Or, laws require great social movements or revolutions to undergo more drastic changes. America fought a civil war and lost nearly 3% of its total population to change what essentially boiled down to the enactment of a one-sentence law. That law was inserted as the thirteenth amendment to our Constitution. That single sentence is, “[n]either slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”

The great monarchies of Europe endured for centuries and the legal systems that supported those monarchies fell only after yielding to powerful and violent revolutions.

But why are many laws both universal and immutable? Roman law would answer with the doctrine of lex naturalis, the law of nature. Natural law dictates that a law’s content is set by nature, and that therefore has validity everywhere. Natural law explains much about our present system. The doctrine is still used in legal arguments today. We also use the familiar Latin phrase “stare decisis,” to express the notion that prior court decisions should be recognized and followed and precedent.

Many remnants of Roman law can still be found in our system today. The development of Roman law covers more than one thousand years from the law of the twelve tables (about 449 BC) to the Codes of Emperor Justinian I (about 530 AD). Roman law as preserved in Justinian’s codes became the basis of legal practice in the Byzantine Empire and later in continental Europe. America, as a young colony, in turn inherited most–but not all–of the laws of its master, the British Empire.

But Roman law’s influence on European law is not as direct as one might think. After the fall of Rome, Rome’s influence on the legal systems of Europe retreated. The Byzantine Empire did not reach far enough north to influence the bulk of Europe’s legal systems. Europe in the post-Roman period was governed by simple codes edicted by Germanic or Saxon kings. These codes were influenced by Roman law, but did not adopt it wholesale. Europe adopted a far greater bulk of Roman law during the renaissance, centuries after the collapse of Rome. In this sense, Roman law was rediscovered, not inherited. Legal scholars found Roman law more suitable to Europe’s developing trade and property systems. And so, by the 16th century, Roman law began to dominate the legal systems of Europe.

England, our legal and political antecedent, did not welcome Roman law as warmly as continental Europe. There are several reasons for this. First, England had developed a more sophisticated legal system on its own, so there was less practical advantage to adopting Roman law. Interestingly, Roman law may have been perceived as associated with the Holy Roman Empire, and/or the Roman Catholic Church. Despite England’s reluctance, Roman law did have its influence. America, as the ultimate inheritor of most things English, later inherited Roman law into our legal system.

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