Lost in transition: Why the question of retroactivity has been ignored?


There has been much criticism over the political parties’ move to go for a general amnesty for perpetrators of offences committed during the decade-long Maoist conflict. Much of the current discourse seems to be concerned primarily with convincing the parties that the proposed transitional justice mechanism should retain the power of prosecution.

However, very little attention has been paid to the fact that even if the proposed Truth and Reconciliation Commission (TRC) retained the prosecution provision, it would not have the authority to recommend prosecution for “certain” serious crimes like rape, torture and disappearance (especially those whose whereabouts have been traced after some time) unless the new constitution permits it to do so.

What has not been discussed in the debate so far is an important political agreement that was made a few months ago to constitutionally prohibit future regimes from enacting laws to punish past crimes, including war crimes and crimes against humanity. The parties have unanimously endorsed a provision under the “fundamental rights” section of the new constitution that says the state shall not enact “retroactive laws to prosecute any crime committed before the promulgation of the new constitution”.

The parties were very careful and meticulous in inserting this proviso under “rights relating to criminal justice”. The objective was to constitutionally pre-empt any future attempt to dig into and prosecute serious crimes committed during the conflict.

If the constitution is promulgated with this proviso, any criminal law that functions retroactively to deal with the “certain crimes” mentioned above would be “unconstitutional” and automatically declared null and void. And as long as the constitution remains active, no regime will be able to enact retroactive laws to re-examine conflict-era crimes. The agreed provision, however, states that future regimes can enact laws with the power to retroactively prosecute international crimes committed after the new constitution is promulgated. This simply means a constitutional seal to any effort to look into crimes that occurred before the date of the promulgation of the constitution.

It, therefore, does not make sense to urge the parties not to remove the provision of prosecution in the proposed TRC bill when they have pre-empted the same from the constitution itself.

Legal complications

It is a general principle of law that all laws should come into effect from the date they are enacted. However, there is always an exception: A state can formulate laws having retroactive effect anytime to prosecute serious crimes under international humanitarian laws. This exception applies to Nepal as a party to the International Covenant for Civil and Political Rights (ICCPR) signed in 1991. However, by creating a cut-off date — promulgation of the constitution — to deny the effect of retroactive laws, the parties have made it virtually impossible to prosecute “some” of the serious crimes.

Without removing the constitutional limitation, the proposed TRC will have no power to prosecute perpetrators of even the crime of rape. The current laws have imposed a 35-day statute of limitations for victims to file a lawsuit against perpetrators of rape.

To ensure that the offenders are prosecuted for crimes committed over a decade ago, the TRC bill will have to be backed up by a constitutional provision saying that the state can enact laws to investigate and book perpetrators of serious crimes anytime and that there is no statute of limitations.

Question of vicarious liability

The next complication the proviso will create is in identifying what is called “vicarious liability” for the serious human rights abuses. Vicarious liability is a legal doctrine “that assigns liability for an injury to a person who did not cause the injury but who has a particular legal relationship to the person who did act negligently”.

The current criminal laws in Nepal do not recognise vicarious liability which could hold top political leaders liable for crimes committed in the past. Given this complication, the TRC, if it retains the prosecution provision by pressure, will have the authority to recommend prosecution of only low ranking personnel or cadres.

There are, however, a few arguments that when the parties are after all going for a blanket amnesty, the question of “vicarious liability” or retroactive provision in the constitution is irrelevant. This would then mean that we have already surrendered and commended total impunity. What is, however, also true is if the parties and the proposed transitional mechanism — the TRC — are independent and fair, some crimes, such as disappearance, would not require any retroactive prosecution for the simple reason that the ICCPR has recognised disappearance as a “continuous crime”.

If the crime is still happening, even though it started in the past, victims will not be under any obligation to follow the statute of limitations. But given the trend of unprincipled arguments in the past, there is no guarantee that such an argument will be respected to establish that retroactive power is not required to deal with “continued disappearances”.

Torture, on the other hand, is clearly one of the crimes under international law that has not been criminalised in Nepal. This simply means that in order for transitional justice mechanisms to deal with cases of torture, they will need retroactive power which has to be constitutionally legitimised. Given the constitutional pre-emption, perpetrators of torture, therefore, cannot be prosecuted even by enacting a law as long as the constitution is adopted in its current form.

It’s time that lawmakers, at least those who speak of international standards, stopped double dealing by, one, opposing the parties’ move towards a blanket amnesty and, two, endorsing the same through the constitution. [Article by KamalRaj Sigdel originally published at: http://www.ekantipur.com/2012/05/14/oped/lost-in-transition/353917.html)


How do you live your life?


Philosophy of Life


A boat is docked in a tiny Mexican fishing village.


A tourist complimented the local fishermen on the quality of their fish and asked how long it took to catch them.



"Not very long." they answered in unison.


"Why didn't you stay out longer and catch more?"


The fishermen explained that their small catches were sufficient to meet their needs and those of their families.




"But what do you do with the rest of your time?"






"We sleep late, fish a little, play with our children, and take siestas with our wives.  In the evenings, we go into the village to see our friends, have a few drinks, play the guitar, and sing a few songs.



We have a full life."


The tourist interrupted,






"I have an MBA from Harvard and I can help you!

You should start by fishing longer every day.

You can then sell the extra fish you catch.

With the extra revenue, you can buy a bigger boat."






"And after that?"


"With the extra money the larger boat will bring, you can buy a second one and a third one and so on until you have an entire fleet of trawlers.

Instead of selling your fish to a middle man, you can then negotiate directly with the processing plants and maybe even open your own plant.






You can then leave this little village and move to  Mexico City , Los Angeles , or even  New York City !



From there you can direct your huge new enterprise."






"How long would that take?"  


"Twenty, perhaps twenty-five years." replied the tourist.  


"And after that?"  


"Afterwards?  Well my friend, that's when it gets really interesting," answered the tourist, laughing.  "When your business gets really big, you can start buying and selling stocks and make millions!"    


"Millions?  Really?  And after that?" asked the fishermen.






"After that you'll be able to retire, live in a tiny village near the coast, sleep late, play with your children,

catch a few fish, take a siesta with your wife and spend your evenings drinking and enjoying your friends."  


"With all due respect sir, but that's exactly what we are doing now.  So what's the point wasting twenty-five years?" asked the Mexicans.






And the moral of this story is:




Know where you're going in life, you may already be there!  Many times in life, money is not everything.


“Live your life before life becomes lifeless


[Send by Uddav from Nepal]

Importance of Comparative law

Comparative law is the study of differences and similarities between the law of different countries. More specifically, it involves study of the different legal systems in existence in the world, including the common law, the civil law, socialist law, Islamic law, Hindu law, and Chinese law. It includes the description and analysis of foreign legal systems, even where no explicit comparison is undertaken. The importance of comparative law has increased enormously in the present age of internationalism, economic globalisation and democratisation.

Contents  [hide]

1 History

1.1 Montesquieu

1.2 Birth as a discipline in the U.S.

2 Purpose

3 Importance

4 Relationship with other legal subjects

5 Classifications of legal systems

5.1 Arminjon, Nolde, and Wolff

5.2 David

5.3 Zweigert and Kötz

6 Professional associations

7 See also

8 References

9 Further reading

10 External links



The birth of modern comparative law is generally attributed to Europe in the eighteenth century. However, prior to that, legal scholars (forerunners of today's comparativists and international lawyers) practiced comparative method. In Russian legal history, for instance, comparative method dates back to the sixteenth century.[1]


According to the prevalent view, Montesquieu is regarded as the 'father' of comparative law. His comparative approach is obvious in the following excerpt from Chapter III of Book I of what many consider to be his masterpiece, De l'esprit des lois:[2]

[The political and civil laws of each nation] should be adapted in such a manner to the people for whom they are framed that it should be a great chance if those of one nation suit another. They should be in relation to the nature and principle of each government; whether they form it, as may be said of politic laws; or whether they support it, as in the case of civil institutions. They should be in relation to the climate of each country, to the quality of its soil, to its situation and extent, to the principal occupation of the natives, whether husbandmen, huntsmen, or shepherds: they should have relation to the degree of liberty which the constitution will bear; to the religion of the inhabitants, to their inclinations, riches, numbers, commerce, manners, and customs.

Also, in Chapter XI (entitled 'How to compare two different Systems of Laws') of Book XXIX he advises that "to determine which of those systems [i.e. the French and English systems for the punishment of false witnesses] is most agreeable to reason, we must take them each as a whole and compare them in their entirety." Yet another excerpt where Montesqieu's comparative approach is evident is the following one from Chapter XIII of Book XXIX:

As the civil laws depend on the political institutions, because they are made for the same society, whenever there is a design of adopting the civil law of another nation, it would be proper to examine beforehand whether they have both the same institutions and the same political law.

[edit]Birth as a discipline in the U.S.

Comparative law in the US was brought by a legal scholar fleeing persecution in Germany, Rudolf Schlesinger. Schlesinger eventually became professor of comparative law at Cornell Law School helping to spread the discipline throughout the US.



Comparative law is an academic study of separate legal systems, each one analysed in its constitutive elements; how they differ in the different legal systems, and how their elements combine into a system.

Several disciplines have developed as separate branches of comparative law, including comparative constitutional law, comparative administrative law, comparative civil law (in the sense of the law of torts, delicts, contracts and obligations), comparative commercial law (in the sense of business organisations and trade), and comparative criminal law. Studies of these specific areas may be viewed as micro- or macro-comparative legal analysis, i.e. detailed comparisons of two countries, or broad-ranging studies of several countries. Comparative civil law studies, for instance, show how the law of private relations is organised, interpreted and used in different systems or countries. It appears today the principal purposes of comparative law are:

to attain a deeper knowledge of the legal systems in effect

to perfect the legal systems in effect

possibly, to contribute to a unification of legal systems, of a smaller or larger scale (cf. for instance, the UNIDROIT initiative)



Comparative law is a very important discipline in communication between legal systems. It may provide the basis for the production of bilingual dictionaries that include the information necessary to make legal communication across borders successful. It also helps mutual understanding and the dispelling of prejudice and misinterpretation. In this globalising world, comparative law is important for it provides a platform for intellectual exchange in terms of law and it cultivates a culture of understanding in a diverse world. Furthermore, comparative law helps in broadening horizons for law reformers and legislators around the world. It can also be helpful in international relations in shaping foreign policies.

[edit]Relationship with other legal subjects


Comparative law is different from the fields of general jurisprudence (legal theory), international law, including both public international law and private international law (also known as conflict of laws).

Despite the differences between comparative law and these other legal fields, comparative law helps inform all of these areas of normativity. For example, comparative law can help international legal institutions, such as those of the United Nations System, in analyzing the laws of different countries regarding their treaty obligations. Comparative law would be applicable to private international law when developing an approach to interpretation in a conflicts analysis. Comparative law may contribute to legal theory by creating categories and concepts of general application. Comparative law may also provide insights into the question of legal transplants, i.e. the transplanting of law and legal institutions from one system to another. The notion of legal transplants was coined by Alan Watson, one of the world's renowned legal scholars specializing in comparative law.

Also, the usefulness of comparative law for the sociology of law (and vice versa) is very large. The comparative study of the various legal systems may show how different legal regulations for the same problem function in practice. Conversely, sociology of law may help comparative law answer questions, such as: How do regulations in different legal systems really function in the respective societies? Are certain legal rules comparable? How do the similarities and differences between legal systems get explained?

[edit]Classifications of legal systems


[edit]Arminjon, Nolde, and Wolff

Arminjon, Nolde, and Wolff[3] believed that, for purposes of classifying the (then) contemporary legal systems of the world, it was required that those systems per se get studied, irrespective of external factors, such as geographical ones. They proposed the classification of legal system into seven groups, or so-called 'families', in particular the

French group, under which they also included the countries that codified their law either in 19th or in the first half of the 20th century, using the Napoleonic code civil of year 1804 as a model; this includes countries and jurisdictions such as Italy, Portugal, Spain, Louisiana, states of South America (such as Brazil), Quebec, Santa Lucia, Romania, the Ionian Islands, Egypt, and Lebanon

German group

Scandinavian group (comprising the laws of Sweden, Norway, Denmark, Finland, and Iceland)

English group (incl. England, the United States, Canada, Australia and New Zealand inter alia)

Russian group

Islamic group (used in the Muslim world)

Hindu group


David[4] proposed the classification of legal systems, according to the different ideology inspiring each one, into five groups or families:

Western Laws, a group subdivided into the:

Romano-Germanic subgroup (comprising those legal systems where legal science was formulated according to Roman Law - see also Civil law (legal system))

Anglo-Saxon subgroup

Soviet Law

Muslim Law

Hindu Law

Chinese Law

Especially with respect to the aggregating by David of the Romano-Germanic and Anglo-Saxon Laws into a single family, David argued that the antithesis between the Anglo-Saxon Laws and Romano-German Laws, is of a technical rather than of an ideological nature. Of a different kind is, for instance, the antithesis between (say) the Italian and the American Law, and of a different kind that between the Soviet, Muslim, Hindu, or Chinese Law. According to David, the Romano-Germanic legal systems included those countries where legal science was formulated according to Roman Law, whereas common law countries are those where law was created from the judges. The characteristics that he believed uniquely differentiate the Western legal family from the other four are

liberal democracy

capitalist economy

Christian religion

[edit]Zweigert and Kötz

Zweigert and Kötz[5] propose a different, multidimensional methodology for categorizing laws, i.e. for ordering families of laws. They maintain that, to determine such families, five criteria should be taken into account, in particular: the historical background, the characteristic way of thought, the different institutions, the recognized sources of law, and the dominant ideology. Using the aforementioned criteria, they classify the legal systems of the world into six families:

Roman family

German family

Common law family

Nordic family

Family of the laws of the Far East (China and Japan)

Religious family (Muslim and Hindu law)

[edit]Professional associations


International Academy of Comparative Law

American Society of Comparative Law

[edit]See also


Legal systems of the world (includes links to legal systems of specific countries)

Sir Henry Maine

Friedrich Karl von Savigny


German Historical School

Comparative criminal justice

Rule of law

Rule According to Higher Law

Sociology of law

Annual Bulletin of the Comparative Law Bureau (1908), the first comparative law journal in the U.S



^ Butler, William E. (2009). Russia and the Law of Nations in Historical Perspectives: Collected Essays. London: Wildy, Simmonds. pp. 124. ISBN 1-884445-42-X.

^ Charles de Secondat, Baron de Montesquieu, The Spirit of Laws, Translated by Thomas Nugent, revised by J. V. Prichard, Based on a public domain edition published in 1914 by G. Bell & Sons, Ltd., London

^ Traité de droit comparé - in French; Paris 1950-1952

^ Traité élémentaire de droit civile comparé: Introduction à l'étude des droits étrangers et à la méthode comparative - in French; Paris, 1950

^ An Introduction to Comparative Law, translation from the Germany original: T. Weir, 3rd edition; Oxford, 1998


Roman law


Roman law is the legal system of ancient Rome, and the legal developments which occurred before the 7th century AD — when the Roman–Byzantine state adopted Greek as the language of government. The development of Roman law comprises more than a thousand years of jurisprudence — from the Twelve Tables (c. 439 BC) to the Corpus Juris Civilis (AD 529) ordered by Emperor Justinian I. This Roman law, the Justinian Code, was effective in the Eastern Roman (Byzantine) Empire (331–1453), and also served as a basis for legal practice in continental Europe, as well as in Ethiopia, and most former colonies of European nations, including Latin America.

Contents  [hide]

1 Introduction

2 Roman legal development

2.1 The Twelve Tables

2.2 Early law and jurisprudence

2.3 Pre-classical period

2.4 Classical Roman law

2.5 Post-classical law

3 Roman law substance

3.1 Concepts

3.2 Public law

3.3 Private law

3.4 Roman status

3.5 Roman litigation

4 Legacy

4.1 In the East

4.2 In the West

4.3 Roman law today

5 See also

6 References

7 Further reading

8 External links



Historically, "Roman law" also denotes the legal system applied in most of Western Europe, until the end of the 18th century. In Germany, Roman law practice remained longer, having been the Holy Roman Empire (963–1806); thus the great influence upon the civil law systems in Europe. Moreover, the English and North American Common law also were influenced by Roman law, notably in the Latinate legal glossary — stare decisis, culpa in contrahendo, pacta sunt servanda.[1] In contrast, Eastern Europe, though influenced by the Byzantine Empire, was not much influenced by the jurisprudence of the Corpus Juris Civilis; however, they did accept the Roman influence of the Farmer's Law.

[edit]Roman legal development


Before the Twelve Tables (754–449 BC), private law comprised the Roman civil law (ius civile Quiritium) that applied only to Roman citizens, and was bonded to religion; undeveloped, with attributes of strict formalism, symbolism, and conservatism, e.g. the ritual practice of mancipatio (a form of sale). The jurist Sextus Pomponius said, "At the beginning of our city, the people began their first activities without any fixed law, and without any fixed rights: all things were ruled despotically, by kings".[2] It is believed that Roman Law is rooted in the Etruscan religion, emphasising ritual.[3]

[edit]The Twelve Tables

Main article: Twelve Tables

The first legal text is the Law of the Twelve Tables, dating from mid-5th century BC. The plebeian tribune, C. Terentilius Arsa, proposed that the law should be written, in order to prevent magistrates from applying the law arbitrarily.[4] After eight years of political struggle, the plebeian social class convinced the patricians to send a delegation to Athens, to copy the Laws of Solon; they also dispatched delegations to other Greek cities for like reason.[4] In 451 BC, according to the traditional story (as Livy tells it), ten Roman citizens were chosen to record the laws (decemviri legibus scribundis). While they were performing this task, they were given supreme political power (imperium), whereas the power of the magistrates was restricted.[4] In 450 BC, the decemviri produced the laws on ten tablets (tabulae), but these laws were regarded unsatisfactory by the plebeians. A second decemvirate is said to have added two further tablets in 449 BC. The new Law of the Twelve Tables was approved by the people's assembly.[4]

Modern scholarship tends to challenge the accuracy of Roman historians. They generally do not believe that a second decemvirate ever took place. The decemvirate of 451 is believed to have included the most controversial points of customary law, and to have assumed the leading functions in Rome.[4] Furthermore, the question on the Greek influence found in the early Roman Law is still much discussed. Many scholars consider it unlikely that the patricians sent an official delegation to Greece, as the Roman historians believed. Instead, those scholars suggest, the Romans acquired Greek legislations from the Greek cities of Magna Graecia, the main portal between the Roman and Greek worlds.[4] The original text of the XII Tablets has not been preserved. The tablets were probably destroyed when Rome was conquered and burned by the Celts in 387 BC.[4]

The fragments which did survive show that it was not a law code in the modern sense. It did not provide a complete and coherent system of all applicable rules or give legal solutions for all possible cases. Rather, the tables contained specific provisions designed to change the then-existing customary law. Although the provisions pertain to all areas of law, the largest part is dedicated to private law and civil procedure.

[edit]Early law and jurisprudence

Main articles: Lex Canuleia, Lex Hortensia, and Lex Aquilia

Many laws include Lex Canuleia (445 BC; which allowed the marriage—ius connubii—between patricians and plebeians), Leges Licinae Sextiae (367 BC; which made restrictions on possession of public lands—ager publicus—and also made sure that one of consuls is plebeian), Lex Ogulnia (300 BC; plebeians received access to priest posts), and Lex Hortensia (287 BC; verdicts of plebeian assemblies — plebiscita — now bind all people).

Another important statute from the Republican era is the Lex Aquilia of 286 BC, which may be regarded as the root of modern tort law. However, Rome's most important contribution to European legal culture was not the enactment of well-drafted statutes, but the emergence of a class of professional jurists (prudentes, sing. prudens, or jurisprudentes) and of a legal science. This was achieved in a gradual process of applying the scientific methods of Greek philosophy to the subject of law, a subject which the Greeks themselves never treated as a science.

Traditionally, the origins of Roman legal science are connected to Gnaeus Flavius. Flavius is said to have published around the year 300 BC the formularies containing the words which had to be spoken in court to begin a legal action. Before the time of Flavius, these formularies are said to have been secret and known only to the priests. Their publication made it possible for non-priests to explore the meaning of these legal texts. Whether or not this story is credible, jurists were active and legal treatises were written in larger numbers the 2nd century BC. Among the famous jurists of the republican period are Quintus Mucius Scaevola who wrote a voluminous treatise on all aspects of the law, which was very influential in later times, and Servius Sulpicius Rufus, a friend of Marcus Tullius Cicero. Thus, Rome had developed a very sophisticated legal system and a refined legal culture when the Roman republic was replaced by the monarchical system of the principate in 27 BC.

[edit]Pre-classical period

In the period between about 201 to 27 BC, we can see the development of more flexible laws to match the needs of the time. In addition to the old and formal ius civile a new juridical class is created: the ius honorarium, which can be defined as "The law introduced by the magistrates who had the right to promulgate edicts in order to support, supplement or correct the existing law."[5] With this new law the old formalism is being abandoned and new more flexible principles of ius gentium are used.

The adaptation of law to new needs was given over to juridical practice, to magistrates, and especially to the praetors. A praetor was not a legislator and did not technically create new law when he issued his edicts (magistratuum edicta). In fact, the results of his rulings enjoyed legal protection (actionem dare) and were in effect often the source of new legal rules. A Praetor's successor was not bound by the edicts of his predecessor; however, he did take rules from edicts of his predecessor that had proved to be useful. In this way a constant content was created that proceeded from edict to edict (edictum traslatitium).

Thus, over the course of time, parallel to the civil law and supplementing and correcting it, a new body of praetoric law emerged. In fact, praetoric law was so defined by the famous Roman jurist Papinian (Amilius Papinianus—died in 212 AD): "Ius praetorium est quod praetores introduxerunt adiuvandi vel supplendi vel corrigendi iuris civilis gratia propter utilitatem publicam" ("praetoric law is that law introduced by praetors to supplement or correct civil law for public benefit"). Ultimately, civil law and praetoric law were fused in the Corpus Juris Civilis.

[edit]Classical Roman law

Main articles: Gaius (jurist), Ulpian, Aemilius Papinianus, Julius Paulus Prudentissimus, and Herennius Modestinus

The first 250 years of the current era are the period during which Roman law and Roman legal science reached the highest degree of perfection. The law of this period is often referred to as classical period of Roman law. The literary and practical achievements of the jurists of this period gave Roman law its unique shape.

The jurists worked in different functions: They gave legal opinions at the request of private parties. They advised the magistrates who were entrusted with the administration of justice, most importantly the praetors. They helped the praetors draft their edicts, in which they publicly announced at the beginning of their tenure, how they would handle their duties, and the formularies, according to which specific proceedings were conducted. Some jurists also held high judicial and administrative offices themselves.

The jurists also produced all kinds of legal commentaries and treatises. Around AD 130 the jurist Salvius Iulianus drafted a standard form of the praetor's edict, which was used by all praetors from that time onwards. This edict contained detailed descriptions of all cases, in which the praetor would allow a legal action and in which he would grant a defense. The standard edict thus functioned like a comprehensive law code, even though it did not formally have the force of law. It indicated the requirements for a successful legal claim. The edict therefore became the basis for extensive legal commentaries by later classical jurists like Paulus and Domitius Ulpianus. The new concepts and legal institutions developed by pre-classical and classical jurists are too numerous to mention here. Only a few examples are given here:

Roman jurists clearly separated the legal right to use a thing (ownership) from the factual ability to use and manipulate the thing (possession). They also found the distinction between contract and tort as sources of legal obligations.

The standard types of contract (sale, contract for work, hire, contract for services) regulated in most continental codes and the characteristics of each of these contracts were developed by Roman jurisprudence.

The classical jurist Gaius (around 160) invented a system of private law based on the division of all material into personae (persons), res (things) and actiones (legal actions). This system was used for many centuries. It can be recognized in legal treatises like William Blackstone's Commentaries on the Laws of England and enactments like the French Code civil or the German BGB.

[edit]Post-classical law

By the middle of the 3rd century, the conditions for the flourishing of a refined legal culture had become less favourable. The general political and economic situation deteriorated as the emperors assumed more direct control of all aspects of political life. The political system of the principate, which had retained some features of the republican constitution, began to transform itself into the absolute monarchy of the dominate. The existence of a legal science and of jurists who regarded law as a science, not as an instrument to achieve the political goals set by the absolute monarch, did not fit well into the new order of things. The literary production all but ended. Few jurists after the mid-3rd century are known by name. While legal science and legal education persisted to some extent in the eastern part of the Empire, most of the subtleties of classical law came to be disregarded and finally forgotten in the west. Classical law was replaced by so-called vulgar law. Where the writings of classical jurists were still known, they were edited to conform to the new situation.

[edit]Roman law substance



jus civile, Jus gentium, and jus naturale - the jus civile ("citizen law", originally jus civile Quiritium) was the body of common laws that applied to Roman citizens and the Praetores Urbani, the individuals who had jurisdiction over cases involving citizens. The jus gentium ("law of peoples") was the body of common laws that applied to foreigners, and their dealings with Roman citizens. The Praetores Peregrini were the individuals who had jurisdiction over cases involving citizens and foreigners. Jus naturale was a concept the jurists developed to explain why all people seemed to obey some laws. Their answer was that a "natural law" instilled in all beings a common sense.

Jus scriptum and jus non scriptum - the terms jus scriptum and ius non scriptum literally mean written and unwritten law, respectively. In practice, the two differed by the means of their creation and not necessarily whether or not they were written down. The ius scriptum was the body of statute laws made by the legislature. The laws were known as leges (lit. "laws") and plebiscita (lit. "plebiscites," originating in the Plebeian Council). Roman lawyers would also include in the ius scriptum the edicts of magistrates (magistratuum edicta), the advice of the Senate (Senatus consulta), the responses and thoughts of jurists (responsa prudentium), and the proclamations and beliefs of the emperor (principum placita). Ius non scriptum was the body of common laws that arose from customary practice and had become binding over time.

ius commune and ius singulare - Ius singulare (singular law) is special law for certain groups of people, things, or legal relations (because of which it is an exception from the general principles of the legal system), unlike general, ordinary, law (ius commune). An example of this is the law about wills written by people in the military during a campaign, which are exempt of the solemnities generally required for citizens when writing wills in normal circumstances.

ius publicum and ius privatum - ius publicum means public law and ius privatum means private law, where public law is to protect the interests of the Roman state while private law should protect individuals. In the Roman law ius privatum included personal, property, civil and criminal law; judicial proceeding was private process (iudicium privatum); and crimes were private (except the most severe ones that were prosecuted by the state). Public law will only include some areas of private law close to the end of the Roman state. Ius publicum was also used to describe obligatory legal regulations (today called ius cogens—this term is applied in modern international law to indicate peremptory norms that cannot be derogated from). These are regulations that cannot be changed or excluded by party agreement. Those regulations that can be changed are called today jus dispositivum, and they are not used when party shares something and are in contrary.

[edit]Public law

Main articles: Ius publicum, Constitution of the Roman Republic, and Res publica



Cicero, author of the classic book The Laws attacks Catilina, a traitor to the Republic, in the Roman Senate

The Roman Republic's constitution or mos maiorum ("custom of the ancestors") was an unwritten set of guidelines and principles passed down mainly through precedent. Concepts that originated in the Roman constitution live on in constitutions to this day. Examples include checks and balances, the separation of powers, vetoes, filibusters, quorum requirements, term limits, impeachments, the powers of the purse, and regularly scheduled elections. Even some lesser used modern constitutional concepts, such as the block voting found in the electoral college of the United States, originate from ideas found in the Roman constitution.

The constitution of the Roman Republic was not formal or even official. Its constitution was largely unwritten, and was constantly evolving throughout the life of the Republic. Throughout the 1st century BC, the power and legitimacy of the Roman constitution was progressively eroding. Even Roman constitutionalists, such as the senator Cicero, lost a willingness to remain faithful to it towards the end of the republic. When the Roman Republic ultimately fell in the years following the Battle of Actium and Mark Antony's suicide, what was left of the Roman constitution died along with the Republic. The first Roman Emperor, Augustus, attempted to manufacture the appearance of a constitution that still governed the Empire. The belief in a surviving constitution lasted well into the life of the Roman Empire.

[edit]Private law

Main articles: Ius privatum, Stipulatio, and Rei vindicatio

Stipulatio was the basic form of contract in Roman law. It was made in the format of question and answer. The precise nature of the contract was disputed, as can be seen below.

Rei vindicatio is a legal action by which the plaintiff demands that the defendant return a thing that belongs to the plaintiff. It may only be used when plaintiff owns the thing, and the defendant is somehow impeding the plaintiff's possession of the thing. The plaintiff could also institute an actio furti (a personal action) to punish the defendant. If the thing could not be recovered, the plaintiff could claim damages from the defendant with the aid of the condictio furtiva (a personal action). With the aid of the actio legis Aquiliae (a personal action), the plaintiff could claim damages from the defendant. Rei vindicatio was derived from the ius civile, therefore was only available to Roman citizens.

[edit]Roman status

Main article: Status in Roman legal system

To describe a person's position in the legal system, Romans mostly used the expression status. The individual could have been a Roman citizen (status civitatis) unlike foreigners, or he could have been free (status libertatis) unlike slaves, or he could have had a certain position in a Roman family (status familiae) either as the head of the family (pater familias), or some lower member.*alieni iuris-which lives by someone elses law.

[edit]Roman litigation

Main article: Roman litigation

The history of Roman Law can be divided into three systems of procedure: that of legis actiones, the formulary system, and cognitio extra ordinem. The periods in which these systems were in use overlapped one another and did not have definitive breaks, but it can be stated that the legis actio system prevailed from the time of the XII Tables (c. 450 BC) until about the end of the 2nd century BC, that the formulary procedure was primarily used from the last century of the Republic until the end of the classical period (c. AD 200), and that of cognitio extraordinarem was in use in post-classical times. Again, these dates are meant as a tool to help understand the types of procedure in use, not as a rigid boundary where one system stopped and another began.[6]

During the republic and until the bureaucratization of Roman judicial procedure, the judge was usually a private person (iudex privatus). He had to be a Roman male citizen. The parties could agree on a judge, or they could appoint one from a list, called album iudicum. They went down the list until they found a judge agreeable to both parties, or if none could be found they had to take the last one on the list.

No one had a legal obligation to judge a case. The judge had great latitude in the way he conducted the litigation. He considered all the evidence and ruled in the way that seemed just. Because the judge was not a jurist or a legal technician, he often consulted a jurist about the technical aspects of the case, but he was not bound by the jurist's reply. At the end of the litigation, if things were not clear to him, he could refuse to give a judgment, by swearing that it wasn't clear. Also, there was a maximum time to issue a judgment, which depended on some technical issues (type of action, etc.).

Later on, with the bureaucratization, this procedure disappeared, and was substituted by the so-called "extra ordinem" procedure, also known as cognitory. The whole case was reviewed before a magistrate, in a single phase. The magistrate had obligation to judge and to issue a decision, and the decision could be appealed to a higher magistrate.



[edit]In the East

Main articles: Corpus Juris Civilis and Byzantine law



Title page of a late 16th century edition of the Digesta, part of Emperor Justinian's Corpus Juris Civilis.

When the centre of the Empire was moved to the Greek East in the 4th century, many legal concepts of Greek origin appeared in the official Roman legislation.[7] The influence is visible even in the law of persons or of the family, which is traditionally the part of the law that changes least. For example Constantine started putting restrictions on the ancient Roman concept of patria potestas, the power held by the male head of a family over his descendents, by acknowledging that persons in potestate, the descendents, could have proprietary rights. He was apparently making concessions to the much stricter concept of paternal authority under Greek-Hellenistic law.[7] The Codex Theodosianus (438 AD) was a codification of Constantian laws. Later emperors went even further, until Justinian finally decreed that a child in potestate became owner of everything it acquired, except when it acquired something from its father.[7]

The codes of Justinian, particularly the Corpus juris civilis (529-534) continued to be the basis of legal practice in the Empire throughout its so-called Byzantine history. Leo III the Isaurian issued a new code, the Ecloga,[8] in the early 8th century. In the 9th century, the emperors Basil I and Leo VI the Wise commissioned a combined translation of the Code and the Digest, parts of Justinian's codes, into Greek, which became known as the Basilica. Roman law as preserved in the codes of Justinian and in the Basilica remained the basis of legal practice in Greece and in the courts of the Eastern Orthodox Church even after the fall of the Byzantine Empire and the conquest by the Turks, and also formed the basis for much of the Fetha Negest, which remained in force in Ethiopia until 1931.

[edit]In the West

Main articles: Early Germanic law, Anglo-Saxon law, and Medieval Roman Law

In the west, Justinian's political authority never went any farther than certain portions of the Italian and Hispanic peninsulas. Law codes were edicted by the Germanic kings, however, the influence of early Eastern Roman codes on some of these is quite discernible. In many early Germanic states, ethnic Roman citizens continued to be governed by Roman laws for quite some time, even while members of the various Germanic tribes were governed by their own respective codes.

The Code and the Institutes of Justinian were known in Western Europe, and along with the earlier code of Theodosius II, served as models for a few of the Germanic law codes; however, the Digest portion was largely ignored for several centuries until around 1070, when a manuscript of the Digest was rediscovered in Italy. This was done mainly through the works of glossars who wrote their comments between lines (glossa interlinearis), or in the form of marginal notes (glossa marginalis). From that time, scholars began to study the ancient Roman legal texts, and to teach others what they learned from their studies. The center of these studies was Bologna. The law school there gradually developed into one of Europe's first universities.

The students, who were taught Roman law in Bologna (and later in many other places) found that many rules of Roman law were better suited to regulate complex economic transactions than were the customary rules, which were applicable throughout Europe. For this reason, Roman law, or at least some provisions borrowed from it, began to be re-introduced into legal practice, centuries after the end of the Roman empire. This process was actively supported by many kings and princes who employed university-trained jurists as counselors and court officials and sought to benefit from rules like the famous Princeps legibus solutus est ("The sovereign is not bound by the laws", a phrase initially coined by Ulpian, a Roman jurist).

There have been several reasons why Roman law was favored in the Middle Ages. It was because Roman law regulated the legal protection of property and the equality of legal subjects and their wills, and because it prescribed the possibility that the legal subjects could dispose their property through testament.

By the middle of the 16th century, the rediscovered Roman law dominated the legal practice in a lot of European countries. A legal system, in which Roman law was mixed with elements of canon law and of Germanic custom, especially feudal law, had emerged. This legal system, which was common to all of continental Europe (and Scotland) was known as Ius Commune. This Ius Commune and the legal systems based on it are usually referred to as civil law in English-speaking countries.

Only England did not take part in the wholesale reception of Roman law. One reason for this is that the English legal system was more developed than its continental counterparts by the time Roman law was rediscovered. Therefore, the practical advantages of Roman law were less obvious to English practitioners than to continental lawyers. As a result, the English system of common law developed in parallel to Roman-based civil law, with its practitioners being trained at the Inns of Court in London rather than receiving degrees in Canon or Civil Law at the Universities of Oxford or Cambridge. Elements of Romano-canon law were present in England in the ecclesiastical courts and, less directly, through the development of the equity system. In addition, some concepts from Roman law made their way into the common law. Especially in the early 19th century, English lawyers and judges were willing to borrow rules and ideas from continental jurists and directly from Roman law.

The practical application of Roman law and the era of the European Ius Commune came to an end, when national codifications were made. In 1804, the French civil code came into force. In the course of the 19th century, many European states either adopted the French model or drafted their own codes. In Germany, the political situation made the creation of a national code of laws impossible. From the 17th century Roman law, in Germany, had been heavily influenced by domestic (common) law, and it was called usus modernus Pandectarum. In some parts of Germany, Roman law continued to be applied until the German civil code (Bürgerliches Gesetzbuch, BGB) came into force in 1900.

Colonial expansion spread the civil law system and European civil law has been adopted in much of Latin America as well as in parts of Asia and Africa.[9]

[edit]Roman law today

Today, Roman law is no longer applied in legal practice, even though the legal systems of some states like South Africa and San Marino are still based on the old Ius Commune. However, even where the legal practice is based on a code, many rules deriving from Roman law apply: No code completely broke with the Roman tradition. Rather, the provisions of Roman law were fitted into a more coherent system and expressed in the national language. For this reason, knowledge of Roman law is indispensable to understand the legal systems of today. Thus, Roman law is often still a mandatory subject for law students in civil law jurisdictions.

As steps towards a unification of the private law in the member states of the European Union are being taken, the old Ius Commune, which was the common basis of legal practice everywhere, but allowed for many local variants, is seen by many as a model.

[edit]See also


Auctoritas (power of the sovereign)

Basileus (akin to modern sovereign)

Capitis deminutio


Constitution of the Roman Republic

Corpus Iuris Civilis

Homo sacer

Imperium (Archons - magistrates - power)


Justitium (akin to modern state of exception)


Lex Caecilia Didia

Lex Duodecim Tabularum

Lex Junia Licinia

Lex Manciana

List of Roman laws

Res extra commercium

Roman-Dutch law

Roman Senate


Ancient Greek law

[show] v t e

Ancient Rome

[show] v t e

Roman Constitution

[show] v t e




^ In Germany, Art. 311 BGB

^  "Roman Law". Catholic Encyclopedia. New York: Robert Appleton Company. 1913.

^ Jenő Szmodis: The Reality of the Law—From the Etruscan Religion to the Postmodern Theories of Law; Ed. Kairosz, Budapest, 2005.; http://www.jogiforum.hu/publikaciok/231.

^ a b c d e f g "A Short History of Roman Law", Olga Tellegen-Couperus pp. 19–20.

^ Cf. Berger, Adolf. Encyclopedic Dictionary of Roman Law. The American Philosophical Society. 1953. p 529.

^ Jolowicz, H. F. Historical Introduction to the Study of Roman Law. Cambridge University Press. 1967.

^ a b c "A Short History of Roman Law" By Olga Tellegen-Couperus, Tellegen-Couper

^ http://www.britannica.com/EBchecked/topic/178179/Ecloga

^ "Civil law (Romano-Germanic)". Encyclopædia Britannica.

Berger, Adolf, "Encyclopedic Dictionary of Roman Law", Transactions of the American Philosophical Society, Vol. 43, Part 2., Pp. 476. Philadelphia : American Philosophical Society, 1953. (reprinted 1980, 1991, 2002). ISBN 1584771429

[edit]Further reading


W. W. Buckland, A Textbook of Roman Law from Augustus to Justinian, Cambridge: University Press, 1921.

Fritz Schulz, History of Roman Legal Science, Oxford: Clarendon Press, 1946.

Peter Stein, Roman Law in European History. Cambridge University Press, 1999 (ISBN 0-521-64372-4).

Andrew Borkowski and Paul Du Plessis, Textbook on Roman law. Oxford University Press, 3rd Ed. (ISBN 0-19-927607-2).

Barry Nicholas, An Introduction to Roman Law. Rev. ed. Ernest Metzger. Clarendon Press, 2008 (ISBN 978-0-19-876063-4).

Jill Harries, "Law and Empire in Late Antiquity" Cambridge, 1999 (ISBN 0-521-41087-8).

Gábor Hamza, Das römische Recht und die Privatrechtsentwicklung in Russland im modernen Zeitalter In: Journal on European History of Law, London: STS Science Centre, Vol. 1, No. 2, pp. 20 – 26, (ISSN 2042-6402).

[edit]External links


An extensive collection of digital books and articles on Roman Law and History, in various languages. By professor Luiz Gustavo Kaercher

A very good collection of resources maintained by professor Ernest Metzger.

The Roman Law Library by Professor Yves Lassard and Alexandr Koptev

The Roman Law Articles of Smith's Dictionary

Roman Legal Tradition: open access journal devoted to Roman law


Most Popular Posts