Term Paper on "Roman Civil Law"

Term Paper 8 pages (2532 words) Sources: 1+

[EXCERPT] . . . .

Roman Law

The Praetor is commonly described as the gatekeeper of common sense in the Roman legal system. Discuss. Was he effectively a legislator?

The position of praetor was developed to create a new, more flexible system of law that could be more responsive to the needs of a dynamic and increasingly complex Roman society. The praetor was a magistrate of the people and was technically not a legislator. He could not create legal precedents that other praetors must follow when he issued his edicts. However, unlike the actions of a judge in America, whose edicts must conform to the laws passed by the congress, the results of the praetor's rulings were both legally protected and could provide a guide for interpreting existing and future laws, and were based largely upon his own personal judgment. The precedents set by the current praetor's predecessor were not binding upon the rule of the succeeding praetor. Still, the acts of the former praetor often provided a guide and thus a kind of de facto, if not de jure system of precedent was created in praetorial law.

To create an image of impartiality and to set the tone for his administration, much like a legislator, a praetor, on assuming office would announce the principles, particularly the new principles that would govern his decisions. According to the Encyclopedia Britannica's entry on "Roman Law," "In place of the legis actiones," the praetors often used the formulary system, whereby "a formula, like a legis actio," would act a device for determining the issue between the parties; but instead of being a mere interchange of prescribed speeches, it provided a structure for discussing the actual dispute. Whichever method was used, when the nature of the dispute was agreed upon, the parties brought their case before the judex, a private functionary, who considered the evidence and gave judgment." ("Roman Law," Answers.com, 2006) For the first time in Rome, an adversarial and inquisitorial, or interactive system of justice was created -- judges acted as fact-finders and the parties in a dispute acted as advocates for their cause. The praetors were thus intimately involved in the administration of justice, perhaps even more than a legislator, as the praetors got to know all of the persons at the heart of the dispute, and the specific facts of the issue under discussion.

As the civil law tradition began to develop in Rome, a system of praetoric law also began to emerge that was used to supplement or correct the rigidities inherent in the earlier system of Roman law. Praetoric law was based upon practice, not upon theory, hence the idea that the praetor was the arbiter of common sense in the Roman judicial system. Also, because the praetor was not technically responsible for setting the law of the land, he could be more responsive to the needs of specific situations and extenuating circumstances that other members of the judicial system.

Being a praetor was not quite the same as being a legislator, as praetorial law tended to be more situationally specific than civil law, and it did not hold true for all of Rome. Also, the praetor's successor, if he chose, could disregard the precedents set by his predecessor. Praetors had considerable leeway in administering their judicial authority. They were supposed to abide by the principles set by the beginning of their regime upon their honor as Romans, however the populace had to abide by their commands. Praetors were not responsible for setting the policy or the morality of the land, unlike legislators, nor did they often deal with matters of national concern, but their actions could have ramifications beyond that of the immediate case, depending upon the nature of the case, and how their fellow praetors viewed their decision.

Works Cited

Roman Law." Answers.com. 2006. [4 Jan 2006]

http://www.answers.com/topic/roman-law

Explain how the commercial utility of certain slaves contributed to the rise of a form of "agency" in Roman law.

Under Roman law, a paterfamilias or male head of the household was responsible for the debts and actions of his slaves, as slaves could not own property. However it was often in the economic interest of many slaveowners to allow valuable slaves, such as teachers or cooks, to contract their work out to other Romans. But originally, under Roman law, third parties such as owners could not be bound through contract, even if they controlled one of the contracting parties. "Such a norm acted as an impediment to commerce, however, because it made conducting business through other parties (agents) difficult, if not impossible." (Hillman, 1997, p.1) But, "eventually, Roman law responded to meet the needs of the commercial environment in which it was applied. One sign of that change was the development of the actio institoria," which allowed a claim against a principal or owner for acts done by the agent or slave in the course of a contracted business. In other words, the slave owner was responsible for the actions or business of the slave contracted out to another Roman. (Hillman, 1997, p.1) If the slave refused to fulfill his obligation, although the slave could not be punished, the owner could be punished as he was responsible for the actions of his slave, and could compel the slave to perform the contractual oblication.

The development of the concept of a "peculium," or assets entrusted to a slave by his master or to a son by his father that could not be touched by the master eventually created a legal form of agency that made it easier for persons do business and to feel assured that the contractual obligations would be honored by the bound person. (Hillman, 1997, p.1) A peculium was a kind of limited liability. When commercially minded slaves were encouraged to trade, even though slaves could not own property, under law, debts and liabilities incurred in such trading could only be enforced by third parties against the master or paterfamilias to the extent of the peculium, or the predetermined amount entrusted to the slave, and not against all of the paterfamilias' property.

This created a closer relationship, quite often, between slaves and masters. Any Roman seeking to invest in a business could trade through his slave or son and limit his liability by fixing the size of the peculium. As observed: "[I]n commerce a slave can do much more for his master than an extraneous free person could. A Roman with mercantile interests in Alexandria would, from a legal point-of-view, be well advised to have a slave agent there rather than employ a free agent. The advantages of using the slave were particularly great for acquiring rights under contracts The use that could be made of slaves, though it cannot be a full explanation, may help to explain why there was apparently little pressure to create direct agency." (Hillman, 1997, p.1)

This new concept of agency by slaves further empowered slaves as: "It was in the interest of masters and slaves alike that a master acquire the reputation for allowing his slaves to buy their freedom with the peculium," to ensure the interests of master and slave were aligned in terms of the success of the venture. (Hillman, 1997, p.1) By acting as agents in commerce, many slaves were able to secure their freedom. Thus the interests of all parties were satisfied. Paterfamilias were able to limit their liability in commercial ventures by primarily dealing through their slaves. Slaves had a better chance to assume their freedom. Persons trading in Rome could still be assured that they had some redress, as the peculium limited some of the risks in dealing with slaves who could not legally own property or have agency within the Roman system of law.

Works Cited

Hillman, Robert W. "Limited liability in historical perspective."

Washington and Lee Law Review, Spring 1997. [4 Jan 2007] http://www.findarticles.com/p/articles/mi_qa3655/is_199704/ai_n8764879

To which extent were slaves and sons in power in the same legal position? What were the main differences?

Under Roman law, the oldest male was always the head of the family. This paterfamilias was personally answerable for all of legal responsibilities of his dependant children and his slaves. However, in the case of wrongdoing by either his sons or slaves, the paterfamilias could turn over either his slaves or his children to the law courts rather than answer for their legal debts. This often rendered both the man's sons as well as his slaves dependant upon the paterfamilias for their legal status and lives.

Neither slave or a dependant child could own property under the Roman system. Also, the paterfamilias had considerable control over the child from birth, as the practice of infanticide attests to, which was often practiced in poorer Roman families against girls or against weaker or sickly children. Furthermore, father could order a son from his home at will, just as he could sell a slave at will, essentially divesting himself of his legal obligation to his son. A financially bereft paterfamilias could even sell children into slavery.… READ MORE

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