Medieval Interpretations of Roman Law

By Paraschiv, Elena | Contemporary Readings in Law and Social Justice, July 1, 2012 | Go to article overview

Medieval Interpretations of Roman Law


Paraschiv, Elena, Contemporary Readings in Law and Social Justice


ABSTRACT. The material gathered in this study provides a rich and diverse context for understanding the indebtedness of the common law to the Roman law, the historical and continuing contribution of Roman law, the Roman contribution to the common law, and the relationship between the Roman and the canon law. The paper generates insights about law as an object of knowledge, Roman legal reasoning as a complex logic operating within specifically definable formal systems, the richness and complexity of the Roman heritage, and the uses of Roman law in the modern world.

Keywords: medieval Roman law, legal environment, jurisprudence

1. Introduction

Considerable research attention has focused on the values of Roman civic culture, Christianity as the dominant religion of the Roman empire, the political and social structures of the Roman empire, and law as a means of organizing society in terms of political institutions. My aim in this paper is to examine the role of the Roman law as a universal law embodying principles of natural law applicable for all time, the influence of the Roman law upon the common law, the diffusion and dissemination of Roman law and Roman law concepts, and the historical and modern role of Roman law. This paper discusses the major trends in scholarship about the continuing influence of Roman law in today's legal environment, the evolution of Roman law, and the codified legal systems that build on Roman origin. The objective of this paper is to emphasize the importance of the evolution and functioning of Roman law, the legal rules and the methodology of Roman jurisprudence, and the adaptability of Roman law to economic and political intentions. I am specifically interested in how previous research investigated the evolution of Roman legal science, the legal "monopoly" of the Roman jurists, the sources of the peculiarities of Roman law, and the uniqueness of Roman law in world history.

2. The Development of Roman Law

Borkowski asserts that Roman law was almost entirely customary in origin (some of the basic notions and procedures in Roman property law originated in custom). The Romans considered the Twelve Tables as the foundation of their civil law. The Roman assemblies rarely enacted laws that conflicted with the Twelve Tables. The comitia centuriata elected high-ranking magistrates and was organized as the Roman people in military array. The edicts of the praetors have revolutionized Roman civil law in the late Republic. The ius honorarium constituted a gloss or a supplement to the ius civile, in a manner comparable to the relationship between equity and the English common law.

What matters for the present discussion is that by the late Republic, the praetors were the leading reformers within the Roman legal system. As Borkowski explains, the giving of advice was the jurists' most important function,1 because of its potential effect on the whole Roman legal system. The jurists of the classical period enabled Roman law to have great influence on later civilizations. Justinian's codification of Roman law made possible the Reception of Roman law in medieval Europe and in other parts of the world.2

Samuel suggests a new epistemological model to understand Roman legal reasoning: an epistemological model of Roman legal reasoning may be as relevant to the common lawyer as to the Civilian. Roman legal reasoning was about making sense out of facts via a series of systems which had to do especially with a structure of institutions and concepts through which facts and rules were to be interpreted, involving the creation of a series of conceptual networks within which any particular rule or principle was fitted only as part of a system. The notion of a right confuses the issue when the exercise is to isolate an epistemological model of the legal phenomenon (rights can appear and disappear depending upon the level at which one operates), and should not be used as a means by which the difference between the objective and the subjective view of law can become eclipsed. …

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