P1-LU3 — The Western Component: Roman Legal History (until 11th century)
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Learning Outcomes
After studying this unit you should be able to:
- - Describe the importance of Roman law for South African jurists today
- - Explain the importance of ancient Greek philosophical thought in the Western legal tradition
- - Discuss how Roman law developed during the four political eras of the Roman Empire
- - Explain the importance of the Corpus Iuris Civilis for modern jurists
Why Roman Law Matters Today
Roman law as an independent system no longer applies anywhere, but SA courts still recognise it as an important part of the common law. Even today judges rely on Roman law directly — e.g. Hendricks v Hendricks 2016 (1) SA 511 (SCA), where the Court cited the Institutes of Justinian.
Ancient Greek Philosophical Influence
Greek philosophy introduced natural law — the idea that there is a universal law (based on reason and nature) that applies to all humans regardless of where they live. This concept:
- - Was adopted by Roman jurists
- - Became the foundation for the idea of human rights
- - Influenced the development of the ius gentium (law of nations)
The Four Political Eras of Roman Law
Era 1: The Monarchy (753 BC – 509 BC)
- - Law and religion were intertwined — the king was supreme judge, lawmaker, and high priest
- - The rigid ius civile applied only to Roman citizens
- - Society divided into patricians (privileged) and plebeians (common people)
- - Monarchy ended in 509 BC when the Roman people expelled the king
Era 2: The Republic (509 BC – 27 BC) — Early & Pre-Classical Roman Law
Key roleplayers: magistrates (consuls, praetor, aediles curules), Senate, Popular Assembly
The Twelve Tables (450 BC)
Promulgated during the class struggle between patricians and plebeians. Plebeians demanded that law be written down so priests (patricians) could not monopolise it.
Why the Twelve Tables matter (5 reasons):
| Reason | Significance |
|---|---|
| 1. Ended patricians' exclusive control | Law now accessible to all |
| 2. Divided law from religion | First clear separation of legal and religious rules |
| 3. Everyone could access the law | Tables placed in the forum (public market) |
| 4. Created legal certainty | Everybody could read and know the rules |
| 5. Treated law systematically | Beginning of legal science |
The Praetor
| Office | Role |
|---|---|
| Praetor urbanus | Administered justice between Roman citizens (ius civile) |
| Praetor peregrinus | Created in 242 BC; administered justice involving foreigners; developed the ius gentium |
The ius gentium = a body of international law, less formalistic and fairer than the ius civile.
The praetor published his procedure in edicts (placed in the market). Over time, edicts became a major source of legal development — the praetor could grant new remedies not available under the strict ius civile.
Era 3: The Principate (27 BC – AD 284) — Classical Roman Law
Roman law reached its peak of development during this period. Key developments:
- - Great jurists flourished: Gaius, Papinian, Ulpian, Paul, Modestinus (the "Big Five")
- - Their writings were so authoritative they comprised two-thirds of the material later codified by Justinian
- - The Law of Citations (AD 426): Made these five jurists' opinions binding in court
Era 4: The Dominate (AD 284 – AD 565) — Post-Classical Roman Law
Decline of classical creativity:
- - Jurists absorbed into the imperial law office — ceased to exist as an independent group
- - Senate became merely a venue for announcing imperial legislation
- - Popular Assembly ceased to exist
Emperor Justinian's Codification: The Corpus Iuris Civilis
Justinian — Emperor of the Eastern Roman Empire (AD 527–565). His chief jurist was Tribonian.
Why Justinian codified the law (4 reasons):
| Reason |
|---|
| 1. Law was a disorganised mixture — needed systematisation |
| 2. To eliminate outdated legislation |
| 3. To create a single accessible source of law |
| 4. To eliminate contradictions and inconsistencies |
The four parts of the Corpus Iuris Civilis:
| Part | Content |
|---|---|
| Codex | Imperial legislation — updated and inconsistencies eliminated |
| Digest (Pandects) | Juristic writings — updated, systematised, inconsistencies eliminated |
| Institutes | Elementary textbook for law students (based on Gaius's Institutiones) |
| Novels (Novellae) | New legislation issued by Justinian himself after the codification |
⚠️ Although compiled in the 6th century AD, the content of the Digest dates from the classical period (around the 2nd century AD) — Roman law at its peak.
Survival of Roman law in the West: The Lex Romana Visigothorum (Breviarum Alarici, AD 506) — the Visigoths recorded Roman law for the Romans living in their territories. This preserved Roman law in the West until the revival of interest in the 12th century.
Self-Assessment Questions
- - Explain the importance of ancient Greek philosophy in the development of Western legal systems.
- - Briefly discuss how law and religion were intertwined during the Monarchy.
- - Explain why the promulgation of the Twelve Tables should be regarded as a milestone in Roman law.
- - Explain the importance of the praetor in the development of Roman law.
- - Name four reasons for the codification of the Corpus Iuris Civilis.