LH0061 Roman Law

[Music] Even if a history of law antiquity is not among the scopes of this course, we need to refer quickly to the Roman law and through the role it has played in the formation of the Western idea of law. If we observe the history of the legal institutions in the very long period, we tend to label as Roman law a complex of institutions and cultural ideas that in reality changed very much in the course of many centuries. But the political and social evidence of the latent equity to which we will devote some attention, the publication of some important collections of Roman law texts, the collapse of the imperial power in the western part of the empire, all this cooperated to form the idea that the Roman law was a more or less unitarian and stabilized set of legal institutions. This pretended careerance of what we call the Roman law could be presented then as a legacy left by antiquity to the Middle Ages and then rediscovered the Renaissance and finally operating in some form until the present day. This relationship to this legacy was often controversial. It seemed to be completely lost for century, it was rediscovered and valued as a treasure. It was harshly criticised, it was forgotten or consciously put aside. What we call the Roman law was in turn related to despotism or to individual liberty or to individualism or to communitarianism, to natural rights or to oppressing powers. In the early 19th century Johann Wolfgangurte described Roman law as a diving duck, a permanent reference of the European civilization that was capable of disappearing from time to time, but was always also capable of resurfacing. While focusing on the history of law after the age of classical antiquity, we will look at this diving duck paying particular attention to some of its basic characters. When resurfacing at the contents of the European experience, Roman legal sources drove towards some basic feature. Let us try to list some of them. The legal norms are set by legislative power. They have coercive force, must be obeyed by citizens and respected by public officers. Legal norms are set to frame everyday life into legal abstractions. Let me make an example. If we agree on an economical object, we can just trust each other and expect our award to be kept. Or we can establish a contractual relationship following some formal steps set by the law. And in this case, our agreement will produce a legal obligation. As we establish legal obligations following the law, we not only expected the award to be kept, but we can force the counterpart to keep it sword, or to pay for damages produced by non-fulfillment of obligation. The legal norm that set the forms to create an obligation creates in the parties the right to sue in court, called by the Romans the Axial. Thanks to the Axial, the creditor has the power of asking the magistrates to force the debtor to fulfill his obligation. In the complex system created by Roman law, the legal norms create a large sect of abstractions large enough to frame at law an important part of the human activities. Not everything what a human being does and feel can be framed at law, but rights, duties, properties and honor ships, permanent relationships, engagements, torts, crimes, punishments are all defied by legal norms and can be described in legal terms. This description of the real happenings in legal terms is necessary to present them in court because the judge can see only what is described in legal terms. Some acts, but not all the human acts, some expectations, but not all human expectations, some relationships, but not all human relationships. Being based on rights and actions, what we are used to call the Roman law suggested a regulation of the society very different from the control of the souls claimed by the Christian religion. A very important Christian writer of the age of Constantine composed a book called Divine Institutions in which he marked the subtle and abstract reasonings of the jurists to exalt the simplicity and the concreteness of the Christian faith. Other contemporary Christians, however, applied the legal reasoning to theology and moral. So, also considering its relationships with the Christian religion, Roman law was a duck who dived and resurfaced.