University of Virginia Library

ANCIENT ROMAN IDEAS
OF LAW

In a brief article the vast and complicated subject of
the history and historical importance of Roman legal
ideas must be presented in general fashion. For the
classical Roman law, then, reference will be made only
to the Corpus Iuris Civilis; that is, the codification of
the common law of Rome made at the very end of
the ancient Roman Empire. In 529-34 a commission
of jurists, at the command of the Emperor Justinian,
made collections of imperial laws (the Codex, referred
to as C.), and of opinions of Republican and imperial
jurisconsults (the Digest, D). They also compiled a
textbook for the use of students in the law schools (the
Institutes, Inst.). It was this Corpus Iuris Civilis which
played the leading role in the great revival of the
Roman law in the Middle Ages (ca. 1100-1300), in the
“Reception” of the modern age, and in the medieval-
modern development of legal science. (The reader
should be familiar with one more reference that will
occasionally appear in these pages, Glos. ord., that is,
the Glossa ordinaria of Accursius, ca. 1230, a great
compilation of the opinions of the early professors of
the Roman law at Bologna.) Despite later disagree-
ments with many of the opinions in the glosses, the
work of Accursius was disseminated throughout west-
ern Europe, was printed over and over again in the
sixteenth century, and is itself massive evidence of the
contribution of the Corpus Iuris Civilis to the medieval
renaissance of Roman law and legal thought.

We must not glorify beyond measure the contri-
butions of the Roman law and legal thought to the
history of civilization. It is going too far to say that
“it was the majestic and beneficent Roman law which
more than any other single element brought civili-
zation back to Europe following the barbaric deluge
of the Dark Ages” (Sherman, I, 1). There is more
justification for such a claim, however, than for the
attitude of nineteenth-century British historians who

were almost obsessed with the belief that all that is
constitutional and democratic and noble in the English
common law and in the history of Parliament derives
from early Germanic and Anglo-Saxon traditions. (It
is a matter of irony that Tacitus, a Roman historian,
was an important source of this romantic idealization
of Germanic customs.) Bishop Stubbs said (Letters, p.
159), the Roman law has been “a most pliant tool of
oppression... no nation using the Civil Law has ever
made its way to freedom... wherever it has been
introduced the extinction of popular liberty has fol-
lowed sooner or later.” Indeed, to this day some
scholars attribute the rise of royal absolutism to the
revival of the Roman law in the Middle Ages, as they
attribute the growth of a limited or constitutional
monarchy to the English common law and to feudalism.

There is, of course, some truth in this hostility to
Roman legal ideas: one finds no democracy in the
jurisconsults' treatment of the power or authority of
the emperor; the Roman law sanctioned slavery; even
free men could be tortured and deprived of the right
of fair trial when suspected of treason; punishments
for crime were cruel; and the Roman courts and judges
were readier to help the rich than the poor. Medieval
and modern supporters of the royal authority and
absolutism have found inspiration in Roman legal
thought. They deduced from the Roman laws on trea-
son that it was just to deny the rules of fair trial to
heretics as well as traitors; and thus they helped create
the medieval Papal and the modern Spanish Inquisi-
tions. Nevertheless, medieval and modern men have
also found inspiration in the Roman laws dealing with
the fundamental rights of the individual and with
“constitutionalism.” Our study of Roman legal ideas
will show, indeed, that despite all shortcomings the
Roman law was in sober fact one of the greatest
achievements of the ancient world and one of the
greatest contributions of Rome to medieval and mod-
ern European and American legal science.

The achievement was not, however, exclusively
Roman. Just as the Anglo-American common law owes
much to Roman and Germanic ideas and customs, so
the Roman law drew abundantly from earlier Mediter-
ranean laws and customs and legal thought and philos-
ophy. During the thousand years of the history of the
ancient Roman Republic and Empire, the common law
of Rome gradually absorbed important legal principles
and practices of the conquered peoples and civili-
zations. From Greek Stoicism Roman jurists borrowed
their essential philosophy of natural reason and justice.
From the maritime law of Rhodes they took many laws
pertaining to trade and shipping. From the Near East
came Tyrian and Syrian men of learning who, having
a knowledge of the legal systems of the Phoenicians
and indirectly also of the earlier traditions of Ham-
murabi and Babylonia, became distinguished Roman
jurisconsults in the second and third centuries A.D.
From Egypt came ideas of property rights related to
irrigation. And if Saint Paul was a Roman citizen and
knew something about the Roman law, no doubt Jews
in the Empire taught the Romans matters of value
about Hebrew laws and customs. Yet the growing body
of law remained essentially Roman, the creation of
those practical Romans who conquered and learned
how to govern Italy and the ancient Mediterranean
world. By the end of the ancient Empire, Christianity
was contributing its special influence. But the substance
of the Roman law that was codified at the command
of Justinian had developed as the common law of
“pagan” Rome.

As for the ideas, one could simply follow Sherman's
example (Roman Law) and list a great number of ideas
whether in the realm of general principles or in the
realm of private law on property, contracts, partner-
ships, corporations, and injuries, among other subjects.
It seems better, however, to call attention principally
to general theories of law and justice. Ideas belonging
either to property rights or to crime are, after all,
subordinate both to the general principles followed by
the courts and to the public law of the state. But a
few of these should be mentioned. The Roman law
affirmed the private ownership of property, giving to
the owner the full right to sell and lease without outside
interference. The acquisition of property by purchase,
gift, and inheritance, and by prescriptive right, was
of course the subject of many laws. The law also recog-
nized servitudes or easements, rights such as passage
by path or road through lands of others, or the drawing
of water. Naturally, contracts (pacta) relating to prop-
erty rights were well protected, except that no contract
was valid that was contrary to the public law and
welfare. Property usually concerns families: the Roman
law carefully regulated problems of marriage, such as
dowries, the rights of women and children, wills, and
inheritances. In the Republic the head of the family,
paterfamilias, theoretically had absolute power over
his wife and children. In the Empire, however, the wife
and female heirs were given full recognition of their
rights. It is evident, despite differences, that much of
the American law on all these matters bears the impress
of the Roman law.

Property rights belonged not only to natural but to
corporate or juridical persons. The Roman law on
corporations, in fact, is the foundation of medieval and
modern corporate law. From it we retain the idea that
what is done by the majority of the members of a
corporation (in the Roman law, if two-thirds of the
membership, a quorum, attended the meeting) was

done as if it were by all the members and therefore
by the corporation as a person. The corporation could
act by means of representatives appointed with plena
potestas (“full powers of attorney”). From this devel-
oped in the thirteenth century the idea that English
shires and towns could be represented in Parliament;
and indeed modern representation of communities is
based on this principle, as it is based on another Roman
principle, that any important business that affects the
rights of natural and corporate persons should be
treated in their hearing and concluded, in many cir-
cumstances, with their consent. Not only was the cor-
poration or guild of artisans or merchants treated as
a person, so also was the city and even the state. As
a result, today the state itself is looked upon as a kind
of juridical and moral person, having its own rights
apart from and superior to the individual rights of all
the members, whether viewed individually or collec-
tively. In the thirteenth century canon lawyers ad-
vanced the theory that since only a natural person
could have a soul and could be excommunicated, a
juridical person or corporation was soulless and hence
could not be punished. But the Roman idea persisted,
and exists now, that while the corporation as a whole
is not subject to punishment for a delict, the officers
can be punished.

The Roman public law, as we have observed, made
the public welfare ultimately superior to private rights.
Does this mean that the Roman Empire was a “wel-
fare” or social-welfare state? Not at all. Nonetheless,
the Roman law considered problems of the public or
common interest in relation to private rights of owner-
ship. So we find laws that condemned the building of
dwellings that deprived others of space and light, that
condemned owners who allowed their buildings to
become a public nuisance, and that required adequate
drainage or sewage in towns. Further, there were laws
that frowned on public charity for those who were
healthy and able to work; the shiftless should not be
supported by the state. (How these principles were
reconciled with panis and circenses is too complicated
to treat here. We may remark, however, that just as
the Romans could reason that it was for the public
welfare that the mob in the great cities should be fed,
so it was for the public welfare or entertainment that
gladiators be supported by the state and given the
lawful right to kill others and die in glory.) On the
whole, however, there was no theory that it was the
duty of the state to furnish social security or to establish
a system of socialized medicine. The state did not
provide education for children; there were no public
elementary and high schools. Only a few schools, cen-
ters of higher learning, chiefly in law, received public
support by way of salaries for the professors.

Like all legal systems, the Roman law naturally dealt
chiefly with problems associated with rights in material
things, or with the protection of free men from crimes
and injuries to their property rights. Yet there was a
real concern for human rights. Influenced by the ideals
of Stoicism, Ulpian and other great jurisconsults of the
Golden Age of the Empire subjected all laws, private
and public, to the natural law as a universal reason
that should be observed in legislation and in all judicial
decisions of courts. The natural brotherhood of all men
demanded equality before the law and the right of free
men to a fair trial according to principles of equity
rather than the letter of the law. The relation of the
higher law of nature to the science of law was stressed
by Ulpian. Law and justice, he said (D. 1.1.1), are a
sacred art, the professors of which can be called priests
and true philosophers. (Medieval professors of the
Roman law carried this idea further: as professors of
a sacred science and a true philosophy they were the
equals of priests and philosophers, and their science
was the equal of Theology, the Queen of Sciences; and
since Justinian spoke of how the Empire was armed
by laws as well as military might, they pretended to
an equality with feudal knights and lords—they
were themselves noble; perhaps they prepared the
way for the “nobility of the robe” in early modern
France.)

Thus the higher law of nature or reason was the
foundation of law and justice. (As Saint Augustine held,
it was by the gift of reason that men are made in the
image of God.) If the lower law of nature was animal
instinct, the higher law taught men to live free and
equal, in a universal brotherhood, innocent of property
rights and the need of a state and its laws. As a result
of human greed and disorder, however, men could no
longer live in this primitive, completely natural society.
Separate peoples and their states resulted from the
necessity of creating some law and order to protect
good men from the wicked. Customs and laws arose
that were common to all peoples, the Ius gentium, a
kind of international law which regulated the relations
of peoples or states with each other in such matters
as war and peace, slavery, commercial relations, and
the rights of men belonging to one state who lived
as foreigners in another state. In the Ius gentium also
were those principles of natural reason which approved
the right of each society, people, or state to wage war
in defense of its safety, which inspired men to revere
the gods and obey their fatherland and their parents,
and which demanded equity or natural reason in men's
handling of problems of relations between their states.
Indeed, some jurisconsults looked upon the Ius gentium
as the natural law itself insofar as it applied to man-
kind.

As a result of this, in the Middle Ages and in modern
times the doctrine has arisen that if the Ius gentium
is an aspect of the law of nature, the state itself is
natural, not a necessary convention or lesser evil as
in Stoic thought. The Christian emphasis on God's
approval of the state and of its government (“the
powers that be are ordained of God”), on the king's
ruling Dei gratia, reinforced this tendency. While the
revival of Aristotle's Politics in the mid-thirteenth cen-
tury added a secular emphasis on the naturalness of
man as a political and social animal and on the
naturalness of the state, the Roman-Christian ius
gentium and natural reason were a significant support
of the idea that the state is natural itself and a supreme
moral value that, in times of great danger or necessity,
“knows no law.”

If, according to the Romans, the law of nature thus
participated at least as an element in the Ius gentium,
its participation in the laws of each society or state
was less apparent. Yet the natural law, as reason and
equity, was presumed to subsist in the positive laws
of the state, the civil law. To be sure, the civil law
as the body of laws needed for law and order in the
state could not perfectly imitate the higher law of
nature; as Justinian said, the lower nature of men and
society is constantly changing in relation to new situa-
tions, and new laws become necessary. Nevertheless,
all laws and customs should contain reason. That is
to say, whatever the needs of men because of their
violence and greed, some natural reason must remain
a kind of fundamental law which the laws of the state
could not change—but could modify for the human
environment. As Ulpian said (D. 1.1.6), the civil law
neither departs altogether from the natural law, nor
obeys it in all things.

Medieval legists and theologians offered their own
solution. By the law of nature, all things are held in
common; but the civil law, like the Ius gentium, legal-
ized private property rights. By the law of nature
marriage and the rearing of children belong to the
procreative instinct; but the divine law and positive
laws of the state made marriage a human institution.
From Saint Augustine on, Christian theologians went
so far as to admit that some laws of the state were
good, even when they seemed to be contrary to the
natural law as the moral commands of God. Prostitu-
tion itself, though immoral, should be legalized by the
state. As Nicholas of Lire said (early fourteenth cen-
tury, in his preface to Postilla), the state can legalize
prostitution lest the natural libido of men (belonging
to lower nature) cause anarchy and destroy the public
welfare.

The laws of the state must never completely violate
the fundamental laws of nature. Natural reason de-
manded that human laws should not legalize injury to
lawful rights as established in the courts, nor approve
crimes that hurt the innocent and injured the state and
its law and order. New laws could change punishments
but never condone fraud, theft, murder, or adultery.
(As for adultery, however, a late thirteenth-century
philosopher held that if it was committed for the safety
of the state, in order to wreck the plans of a tyrant,
it was a lesser evil than the destruction of the public
welfare.) Above all, natural reason commanded that
equity or fairness should prevail in the administration
of justice and the interpretation of the laws. Justice,
as defined by Ulpian (D. 1.1.10—Ius suum cuique),
since it was related to many intangibles in human
relations, could not perfectly obey natural reason.
Given the complications of laws on slavery, property,
and crime, and given special circumstances, it was
difficult to determine what a man's ius or legal right
was. Nonetheless, the Roman principle of justice in
accordance with reason and equity and human rights
has ultimately inspired medieval and modern concepts
on the equal rights of all men.

The higher law of nature, therefore, demanded fair
trial as a natural right. Judges themselves should be
fully aware of their high duty; they should be impartial,
never acting as judges in matters that concerned their
own interests, always following the rules of reason and
equity rather than the letter of the law, and avoiding
undue severity in the decision of cases. By the late
Empire they took an oath of office according to which
they swore that they would respect both the laws of
the state and the rights and welfare of all subjects of
the emperor. (This oath, indeed, may be in part the
background of the coronation oath of the medieval
king: that he would do justice to all in accordance with
the customs and laws of the kingdom.) In general, then,
Roman judges should never be influenced by the great
and powerful at the expense of the humble, nor should
they accept bribes from the wealthy. (The practice did
not always reflect the ideal. In the Middle Ages lawyers
were to admit that a judge could accept gifts provided
that he was not influenced by them—surely an antici-
pation of famous statements attributed to Sir Francis
Bacon and Talleyrand.)

More important than the idea of the good judge were
Roman laws on legal procedure which the courts
should respect as a protection of the accused. When
a man was accused of injuring another's rights in prop-
erty or of committing a crime, he should be presumed
to be good or innocent when he came to trial. He
should be given the benefit of all legal means of de-
fending himself against the accusation. (One recalls the

words of Saint Paul, that as a Roman citizen he had
the right to face his accusers.) But there were important
qualifications of the ideal of the presumption of inno-
cence and of fair trial. For once a man had by fair
trial been declared guilty of a crime, such as theft,
he was no longer presumed to be innocent when later
accused of the same crime. As a medieval glossator
said (to D. 48.2.7.2): “Once wicked, the accused (in
the same kind of crime) is thereafter presumed to be
wicked (malus).” (However, this is but the same popu-
lar attitude that is known today: a repeater is not
always presumed to be innocent, whether by the police
or by the courts.) A far more serious qualification must
be emphasized. Slaves did not enjoy the benefits of the
free citizen, and they could fear torture in ordinary
cases. (Juvenal, Satires, VI, however, may express the
feeling of the more enlightened jurisconsults: he con-
demned the arbitrariness of a lady who demanded that
a slave be punished at once, without a hearing of his
defense—the husband vainly pleaded for reason.)
Moreover, not even a free man or citizen was given
the benefit of the presumption of innocence if accused
of treason to the emperor or to the state. To be
suspected of treason was to be presumed guilty. Trial
did take place, but the accused was deprived of the
advantages of fair trial, and, subjected to torture, could
be forced to confess (self-incrimination).

In the Middle Ages legists and canonists accepted
both the presumption and the limitations. By the mid-
thirteenth century the Papal Inquisition applied to
heretics the Roman law on treason, for it was assumed
that the accused could be guilty of the highest treason
of all, namely, treason to God and the faith. Hence
he was presumed to be guilty, was deprived of ade-
quate legal defense, could not know and challenge his
accusers, had no public trial, and was tortured if he
refused to confess. Although the Papal Inquisition was
never established in England, in the Tudor Age men
accused of treason to the king suffered a similar kind
of treatment. (No wonder that in reaction to this the
maxim arose which later became a part of our Fifth
Amendment: no man shall be compelled “to accuse
himself” or “to be a witness against himself.”)

Nonetheless it was the Roman law, not the English
common law, which first laid down the principle that
normally the man accused of a tort or a crime should
be presumed innocent. Implied as it is in Magna Carta
(c. 39), the presumption of innocence was first literally
stated, it seems, by Jean Lemoine, a canonist and car-
dinal in the time of Pope Bonifice VIII. Making use
of Stoic-Roman-Christian ideas of natural, human, and
public law, and of the ideas of legists and canonists,
he declared that every man accused of a crime had
the full right to public trial and to full legal defense
by lawyers and documents and witnesses. For every
man, he declared, “is presumed innocent until proved
guilty” (quilibet praesumitur innocens, nisi probetur
nocens, Glossae to Extrav. Communes, 161-65).

All ideas of private law, however much they are of
direct interest to individuals and their rights, must
finally be subordinated to the public law and the state.
Ulpian (D. 1.1.2) defined the public law as the law that
pertains to the “state of the Republic”—that is to say,
it is the law concerning the “state of the State.” There-
fore it regulated all matters related to the public wel-
fare and safety of people and state. To it belonged the
magistracy or government and the public rights of
legislation, jurisdiction, and administration. As Justinian
and medieval legists said, without magistrates the laws
are useless and the state cannot exist. Furthermore, as
Ulpian and other jurisconsults held, all sacra (all things
“religious,” such as temples, objects used in the cult,
and also everything relating to the cult of the Emperor
Augustus) and priests are subjects of the public law
and the state.

No separation of “Church and State” was recog-
nized. Partly directly, partly indirectly, to repeat, the
public law affected the private law and private rights.
Legislation on private rights and jurisdiction over them
belonged to the state and the government; and to the
state belonged the right to prevent abuses of ownership
in property. The “public welfare clause” was as serious
an interference with absolute private ownership then
as it is now. Above all, the necessity of the safety of
the state and measures taken to assure it gave the
imperial authority extraordinary powers in times of
emergency or necessity. Private properties could be
expropriated, though with compensation to the owners.
In times of just wars waged in defense of the Empire,
the emperor could demand patriotic loyalty and ex-
traordinary sacrifices. Urbs and orbis constituted the
common fatherland, the patria communis—for which,
classical writers and jurists loved to say, it was glorious
to fight and die.

Such theories of public law played a significant role
in the rise of medieval-modern states and nationalism.
In the twelfth century, urged on by advisers trained
in the Roman law at Bologna, Frederick Barbarossa,
German king and emperor, tried to make the medieval
Empire truly Roman, calling it the Holy (Sacrum)
Roman Empire, thus challenging the Holy Roman
Church and the superior authority claimed by the
prope. By the mid-thirteenth century, however, despite
the brilliance of Frederick II, the Church triumphed
over the Empire. Canonists declared that the pope was
the true emperor, that the Holy Roman Church was

the true heir of the Roman Empire; and soon Pope
Boniface VIII claimed that all kings and princes were
subject to the papal authority. Indeed, the Church had
become a great state, with its own public law taken
largely from ancient Rome. The pope was more than
a ghostly imitation of the ancient Augustus.

But the triumph of the Church was short-lived.
English, French, and Spanish students of the Roman
law at Bologna were already going home to become
advisers of their kings or were writing treatises which
transferred ideas of Roman public (and private) law
to independent kingdoms. By 1200-60 they were say-
ing that England and France were sovereign realms,
and that the king who recognized no superior was the
emperor in his kingdom (so Jean de Blanot in France
and Bracton in England). Each kingdom became a
“common fatherland,” an Empire in itself; it was also
an independent, sovereign state, governed by principles
of public law. So, by the public law, the king enjoyed
extraordinary powers when enemies threatened the
safety of the people and the “state of the realm.” In
times of national emergency or in cases of dire neces-
sity, it was both the duty and the public right of the
king to make use of the right of eminent domain and
to levy taxes to pay for the costs of defending the
realm. To be sure, the king, like the Roman emperor
normally limited by the laws, had to respect all private
rights; and when he needed an extraordinary subsidy
he consulted with and obtained the formal consent of
his subjects in a representative assembly. Nevertheless,
“right of state” and “reason of state” gave an able
monarch the public right to demand consent. Both the
royal authority and the state thus began to overcome
old feudal rights.

From the thirteenth century on, therefore, despite
the threat of privileged nobles and communities and
despite civil and religious wars of the early modern
age, the public law and the state gradually became
predominant. Further, the Roman principle that the
public law gave the ruler and the state control over
religion, priests, and churches, reached its climax when
Henry VIII declared in effect that the imperial crown
and empire of England were completely independent
of the Holy Roman Church. The modern national state,
an empire in itself, the common fatherland of all peo-
ple in its territory, had appeared. (One remark is nec-
essary: the Constitution of the United States, while
retaining other Roman principles of public law, de-
parted from Rome altogether in separating Church
from State.)

It is regrettable that the influence of the Roman law
on literature as well as legal science cannot be dis-
cussed. Mention can be made, however, of how
Shakespeare reflected the continuing role of the Roman
law in the education of English jurists in his time. For
example, he was echoing a Roman maxim (D. 4.4.37;
C. 6.30.22.12) in the words of Sicinius, that Coriolanus
“hath resisted the law, and therefore the law shall scorn
him further trial” (Coriolanus 3.1. 265-69)—a maxim
which one finds also in medieval legists and canonists.

In conclusion, the few ideas discussed in this article
surely illustrate the greatness, nobility, and practical
usefulness of the Roman law to the medieval and mod-
ern world. The eager acceptance of its ideals and
scientific character is witnessed by the stages of recep-
tion from the twelfth to the twentieth century. Unfor-
tunately, in nineteenth-century Germany, and above
all, more recently in Nazi Germany, extreme Germanic
nationalism, allegations that the Roman law was
Semitic (because of Near Eastern influences), and the
Nazi denial of all decent principles of fair trial and
of the rights of men, caused a reaction to the Roman,
civilized ideas of law—a reaction that one finds in all
totalitarian systems. It is fortunate indeed that the
Roman achievement in legal thought still promises well
for civilization wherever the Roman law is studied.

BIBLIOGRAPHY

The following sources were consulted: Corpus Iuris
Civilis, ed. Mommsen, Krüger, et al., 12th ed., 3 vols. (Berlin,
1911); Glossa ordinaria of Accursius, to C. I. C., 5 vols.
(Lyon, 1604); Jean Lemoine, Glossae to Extravagantes com-
munes, at end of the Lyon (1559), ed. of the Liber sextus;
Nicholas of Lire, Postilla (Mantua, 1477); William Stubbs,
Letters, ed. W. H. Hutton (London, 1904).

Among the many secondary works the following are
important: C. P. Sherman, Roman Law in the Modern World,
2nd ed., 3 vols. (New York, 1924), the most detailed account;
Fritz Schulz, Principles of Roman Law (Oxford, 1936);
W, W. Buckland and A. D. McNair, Roman Law and Com-
mon Law (Cambridge, 1936); Paul Koschaker, Europa und
das römische Recht (Munich and Berlin, 1947), the best
general interpretation of the medieval and modern “Recep-
tions” of the Roman law; C. H. McIlwain, Constitutionalism:
Ancient and Modern (New York, 1940), partly about Roman
contributions to theories of limited monarchy; E. Kantoro-
wicz, The King's Two Bodies (Princeton, 1957; rev. ed.,
1968), makes good use of Roman law on medieval theories
of kingship; G. Post, Studies in Medieval Legal Thought,
Public Law and the State (Princeton, 1964), emphasizes the
influence of the Roman law on medieval representation and
consent, and on the origins of the medieval-modern state;
P. Vinogradoff, Roman Law in Medieval Europe, 2nd ed.
by F. de Zulueta (Oxford, 1929), gives a general history,
not of ideas, but of the revival of the study of Roman law.

GAINES POST

[See also Constitutionalism; Equity; Justice; Law, Ancient
Greek, Natural; Property; State; Stoicism.]