van den Berge on Roman Dictatorship: Emergency Government and the Limits of Legality @berge_lukas @UniUtrecht

Lukas van den Berge, Utrecht University Faculty of Law, has published Roman Dictatorship: Emergency Government and the Limits of Legality as a Utrecht University School of Law Research Paper. Here is the abstrac

Doctrinal approaches to Roman law are currently often supplemented by contextual legal-historical scholarship that aims to expose Roman law’s connections with its socio-political, religious and broader intellectual environment. This article draws attention to the relevance of such contextual research for modern legal problems. An analysis of the Roman dictatorship and its reception history in legal and constitutional scholarship serves as a case in point. Contrary to common belief, the far-reaching powers of the Roman dictator – acting to save the Roman Republic in times of great peril – were controlled by informal rather than formal legal restraints. A corrected understanding of the Roman dictatorship is arguably not only important for an appropriate assessment of the Roman constitution itself, but also for current debates on the limits of legality in times of emergency.

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Giltaij on Reinventing the Principles of Roman Law @helsinkiuni

Jacob Giltaij has published Reinventing the Principles of Roman Law. Here is the abstract.

This contribution examines whether the work Prinzipien des roemischen Rechts (1934) by the German professor of Roman law Fritz Schulz (1879-1957) counts as an example of "refugee scholarship".

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Domingo on Sources of Roman Law

Rafael Domingo, Emory School of Law; University of Navarra School of Law, has published Sources of Roman Law. Here is the abstract.

This chapter addresses the origin and development of Roman legal sources — that is, the methods and procedures for establishing new legally binding rules, standards, and norms. The source of a legal norm gives it ultimate validity. Legal sources can be classified in many different ways. In this chapter the classification will be based on the distinction between power (potestas) and authority (auctoritas) because this is probably the most comprehensive way to understand the legal implications of Rome’s transformation from the Republic to the Principate and then to the later Empire. During the Republic, the legal sources produced by individuals or institutions vested with power (popular assemblies and magistrates) were basically the statutes (leges and plebiscita) and the edicts of the magistrates. On the other hand, the legal sources produced by individuals or institutions vested with moral authority (auctoritas) were the legal opinions (responsa) of the jurists and the resolutions of the Senate (senatus consulta). The Principate brought a major alteration in the system of legal sources when the authority of the jurists and senators was subordinated to the power of the emperor. The emperor granted legislative power to the Senate. As result, senatorial resolutions became, in practice, legislation, that is, a source of coercive power instead of a source of moral authority. The responsa of the jurists, however, were submitted to imperial influence, opening the door to imperial rescripts, elaborated by the imperial chancellery under the direct control of the emperor. During the later Empire, all sources of law ended up being mere expressions of the imperial power (imperial constitutions). The authority of jurists and senators ceased to be a constitutional limit on imperial power. Moral authority and imperial power were entirely identified in the person of the emperor, whose will had the force of a statute.

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Grebieniow on Inheritance Law and Roman Law

Aleksander Grebieniow, University of Warsaw, Faculty of Law, Institute for Legal History, has published Inheritance Contracts & Roman Law. Here is the abstract.

The use of inheritance contracts is one of the most controversial issues about the Roman Law. It is not unanimous to whether the Romans knew them, and if so, whether they have practised disposing of one’s assets in the event of death by means of an agreement. It appears that the question can’t be solved without asking, how should we understand the notion of ‘inheritance contracts’. Are the modern concepts compatible with Roman legal experience being not compatible with each other? There are though certain proofs of ‘a contract-oriented way of thinking’ of the Roman jurists. They indeed prohibited some contract having a succession over a third person for an object but were not using a broader concept of inheritance contract. The present paper is meant as a reconsideration of this topic, with particular focus on the justifiability of the research questions which have been asked until now.

The full text is not available for download from SSRN.

Kearley on Roman Law Scholarhip and Translation in Early Twentieth-Century America

Timothy G. Kearley, University of Wyoming College of Law, has published Roman Law Scholarship and Translation in Early Twentieth-Century America. Here is the abstract.

This article provides an overview of the book Lost in Translations, which examines the lives and work of five twentieth century American Roman law translator-scholars: Wyoming Supreme Court Justice Fred H. Blume (1875-1971), who single-handedly translated Justinian’s Code and Novels; gentleman-scholar Samuel Parsons Scott (1846-1929) and classics professor Clyde Pharr (1883-1972), both of whom created massive translations of ancient Roman law; Charles Phineas Sherman (1874-1962), a lawyer-professor who translated some Roman law and wrote prolifically about it; and, finally, Charles Sumner Lobingier (1866-1956), a judge-professor who wrote about Roman law, translated a little, championed the publication of Scott’s work, and was connected to all of the others. All of these men were prominent during their lifetimes but are largely forgotten now. It is hoped that Lost in Translations will draw attention to the work these extraordinary men did and stir an interest to our classical past.

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ICYMI: Bateman on the Supreme "Courts" of the Roman Empire @cg_bateman

ICYMI:

C. G. Bateman, University of British Columbia Faculty of Law, has published The Supreme 'Courts' of the Roman Empire: Constantine’s Judicial Role for the Bishops. Here is the abstract.

Constantine, the Roman Emperor from 312-337, was a law-giver who first put the Christian Church in the place of primacy in the organization of the state that it only lost as recently as the seventeenth century; as such, he is very important to legal and social history in the Western experience. This thesis explores the degree to which the Emperor Constantine’s adoption and adaptation of the Christian religion’s bureaucratic structure affected the social and legal order of the Roman state bureaucracy in the fourth century: I do this by examining both the question of his legislation pertaining to making bishops judges and the legal nature of his relationship with the bishops which developed as they appealed their own decisions to his imperial court, specifically in both the Donatist and Arian crises. Constantine’s two pieces of legislation that most directly bear on this question come from 318 and 333: Codex Theodosianus (CTh) 1.27.1 and Sirmondian Constitution (Sirm.) 1, respectively. In the first, an edict, Constantine allows that any litigant may have their case transferred to a bishop’s court if they so choose, but he is careful to emphasize the right of the presiding judge to make this transfer official. In the second, a rescript, Constantine significantly expands the powers of the bishop’s as judges, and indicates that, among other things, just as with decision of the praetorian prefects, any decision of a bishop is not subject to appeal. In this way, the bishop’s court seemed to be positioned by Constantine as an appeal court of kinds, but in practice and according to the small amount of evidence we have on the subject, these courts, the episcopalis audentia, heard most legal matters as a working court of first instance, like that of any other local magistrate. The uniqueness of the court is evident not so much in their powers as judges, but in the fact that they began to hear matters between litigants applying Roman law to enforce their rights. The focus of my research is the seeming expansion of powers that Constantine gives to the bishops from the first to the second piece of legislation. The 333 rescript was actually a reply to the Prefect of Rome, Ablavius, who was questioning the use of the Edict of 318, and because of this, perhaps, we learn a great deal more about what Constantine wanted that earlier law to mean in 333, but whether he initially had this in mind is unknown since the first piece of legislation was very brief. I argue that he did not have this in mind, and that only after his relationship with the bishops grew in the intervening years, highlighted jointly by his blatant adoption of the Christian religion and subsequently assuming state responsibility for their protection and dispute settlement mechanism at the Council of Nicaea in 325, would such expansion of judicial authority make any reasonable sense. The emperor was in some ways compelled into a relationship with the Church because of the internecine conflicts within it which threatened the stability of his Empire, the two most important being the Donatist and Arian crises.

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Bateman on The Hermeneutics of Sovereignty: The Written Word, State Sovereignty, and Freedom of Religion in the Late Antiquity Roman Empire @cg_bateman

C. G. Bateman, University of British Columbia, Faculty of Law, has published The Hermeneutics of Sovereignty: The Written Word, State Sovereignty, and Freedom of Religion in the Late Antiquity Roman Empire at 34 The Journal Jurisprudence 311 (December 2017).

Words are important. We order our lives around words. States and international bodies, themselves, are set forth as being based on what amount to collections of words in constitutions, charters, and codes. But these written legal instruments all refer to more basic philosophical principles and notions of justice, and those are the basis and justification for the laws themselves. But that they are written is important, and it gives us a starting point for trying to determine just what those principles are on which our society is based. We can also look back at the laws of earlier times to see just what principles guided their justifications, and very likely see reflections of our own choices on principles in theirs. The various states of the world constitute themselves based on documents which refer to these principles, as noted. What makes them a state, and one that can be thought of and recognized as a state vis-à-vis other states, is based on another principle laden idea, that of state sovereignty. But state sovereignty is not a thing, it does not really have an existence, instead it describes things, groups of people who order their lives around words. State sovereignty, in a real sense, is just words; what is far more important is what it signifies, and that is fairness and functional order in a defined societal unit. Words have been essential to the creation of sovereign states since at least, referring to the history of the Western world, the seventh century B.C.E; and for most of the intervening twenty-seven centuries, the belief in a single deity has set the parameters for what the Constitutions of the various Western states in our common history were based on. It is only in the last five centuries, perhaps, that Religion began to lose its sin qua non status in the organization and delivery of social services and justice in the Western experience. If historical context means everything, then historical context is everything when it comes to interpreting historical events. Like historian John Lukacs noted: “…the history of everything amounts to the thing itself.” Constantine and other emperors of Rome made laws they believed would encourage the stabilizing of their societies; we make laws for the same reason. We use the same means, legislation, but we justify it not on the pleasure of the gods, but on principles we believe in just as strongly. But these principles are in flux, and just as religion was jettisoned as a justification, so some of our ideas about justice have had to change.

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Silver on Serfdom By Contract In the Late Roman Empire

Morris Silver, City College of New York, Economics Department, has published Serfdom by Contract in the Late Roman Empire. Here is the abstract.

Legal codes and other documents of the late Roman Empire reveal a system, the colonate, which resembles serfdom in the Middle Ages. Farmers (coloni) had their (head and land) taxes paid by estate owners in whose census rolls they were registered. If the land changed ownership coloni were entitled to stay and were registered in the tax roll of the new owner. However, coloni and their offspring lacked the right to migrate. The paper argues that the pristine or original form of the colonate is a voluntary contractual arrangement among free farmers, estate owners, and the imperial Fiscus which acquired a public law dimension because it required a change in the personal status of the farmer. By means of this serfdom contract the contractors expected to share in the aggregate gains from reducing tax-collection costs and from stabilizing tax revenues. The paper goes on to suggest that a secondary or derived form of the serfdom contract probably emerged in response to the Roman state’s interventions in credit markets. The paper next considers the implications of the colonate for economic efficiency and concludes with some observations on the reasons for changes over time in its importance.

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Palmer on Empires as Engines of Mixed Legal Systems @TulaneLaw

Vernon V. Palmer, Tulane Law School, has published Empires as Engines of Mixed Legal Systems as Tulane Public Law Research Paper No. 17-13. Here is the abstract.

Nowhere else is the evolution of pluralism more accelerated than in the legal transformations brought about by assembling and managing empires. Whether Roman, Ottoman or English, Empires have been veritable engines of mixed and plural laws. This essay will suggest that mixed legal systems have been with us since antiquity and have been continually generated in conditions of increased social contact, commerce and communication between peoples. The incubation of mixed systems within empires suggests that legal mixing is unavoidable (and maintaining original purity unsustainable) when there is sufficient social and intellectual connection between peoples who fall under the same imperial sovereign. Different variables affect the speed and thoroughness of integration, for instance the social distance between cultures and civilizations, the prestige and rational appeal of the imperial law, and imperial policies which promote assimilation or seek to maintain separate laws for different peoples. Furthermore empires have distinctive purposes and devise distinctive strategies toward foreign laws. The Roman and Ottoman Empires clearly had different purposes and strategies and such differences have contributed to two forms of pluralism we find in the modern world.

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Domingo on Justinian and the Corpus Iuris: An Overview @RafaelDomingoO1

Rafael Domingo, Emory University School of Law; University of Navarra, has published Justinian and the Corpus Iuris: An Overview. Here is the abstract.

The authors explores the most important legal undertaking of Antiquity: the Corpus Iuris Civilis promulgated by Emperor Justinian. Justinian’s codification is the bridge that links Antiquity, the Byzantine Empire, and Europe. It is also the link between civil law and common law, and between canon law and civil law. To know about the Corpus Iuris is to know about something that was instrumental for the development of justice and law in the past, continues to operate in the present, and will probably have its impact in the future. The Corpus Iuris, especially the Digest, has not only a historic value but an intrinsic one because it embodied the creative spirit and permanent character of all of Roman jurisprudence.

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Domingo on the Law of Property in Ancient Rome @EmoryLaw

Rafael Domingo, Emory University School of Law; University of Navarra, has published The Law of Property in Ancient Roman Law. Here is the abstract.

This paper addresses the Roman law of ownership and the rights that modified it, including, for instance, the rights of predial servitude and usufruct. Classic Roman jurists focused on private property over other kinds, such as sacred property and public property. Their doctrine of ownership was so influential that it has prevailed for centuries and even now maintains a substantial presence in the legal systems of the civil law tradition and in the realm of international law. There are even similarities to English property law, although English common law developed separately, based largely on feudal law.

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Domingo on the Roman Law of Succession @EmoryLaw

Rafael Domingo, Emory University School of Law; University of Navarra, has published The Roman Law of Succession. An Overview. Here is the abstract.

The law of succession addresses the legal destiny of a person’s rights and duties after his death. Closely tied to the fundamental and peculiar features of Roman family and society, the law of succession presents vast difficulties for Roman lawyers because of its highly sophisticated nature and lack of systematic coherence. It is no coincidence that eleven out of fifty books in the Digest address the law of succession. The development of the law of succession reflects important social changes in Roman economic structures and value systems. It echoes the progression from an old Roman agrarian society to a new commercial one. From a technical legal perspective, the law of succession reveals the tension between civil law and praetorian law. Without formally altering the civil law, the praetor introduced fundamental adjustments to protect emancipated persons, blood relatives in the female line, and surviving spouses, among others.

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Domingo on The Family in Ancient Roman Law

Rafael Domingo, Emory School of Law and University of Navarra, has published The Family in Ancient Roman Law. Here is the abstract.

The family constituted the basic structural framework of Roman society. The Latin term familia means, essentially, household. It can refer to both persons and things It encompasses all persons who are under the power of a single head (the paterfamilias), and, in a broader sense, all relatives connected by blood or marriage. In a still broader sense, the Roman family encompassed all personal property, including slaves and physical objects. Social stratification, sexual inequality, and legal subordination were defining features of the Roman family.

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Bateman on the Supreme Court of the Roman Empire: Constantine's Bishops

C. G. Bateman, University of British Columbia Faculty of Law, has published Supreme Court of the Roman Empire: Constantine's Bishops. Here is the abstract.

Constantine, the Roman Emperor from 315-337, was a law-giver and put the Christian Church in a place of primacy in the organization of the state which it only lost as recently as the seventeenth century: as such, he is very important to legal and social history in the Western experience. This thesis looks at one aspect of the degree to which the Emperor Constantine’s adoption of the Christian religion’s political structure affected the social cohesion of the state. I suggest that the adoption was the single most important confluence of state powers in Late Antiquity, and I demonstrate how Constantine did this using the instrumentality of legislation regarding religious tolerance and the vaulting of Bishops in to the position of appeal court judges throughout the Roman Empire. I suggest what Constantine was trying to achieve was an imputation of his own consciousness into the legal life of the Empire by making Christian bishops the final court of appeal for anyone who felt they would get a more fair hearing in front of a bishop than they would under a Roman provincial magistrate: and, very importantly, we know from the legislative record that Constantine was very concerned to root out corruption in the practice of court officials across his empire. He was able to accomplish this in large part, I suggest, by opening up new courts of appeal across his empire which all Roman peoples, Christian or not, could get a more just hearing at. In this way, I will demonstrate how Constantine, having the Bishops already beholden to him by his adoption of their religion, thought he could count on these prelates to employ his consciousness to the various matters that came before the court. In other words, his close relationship to the bishops, established at Nicaea, was used to consolidate his control over the Roman legal system by making the courts of bishops a kind of Supreme Court of the Roman Empire. By alleging this I then agree with Burckhardt, that Constantine did use the Church to his own political ends.

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