Antique legal systems are classics of jurisprudence. Many of their ideas and principles are also used in modern law. This is especially true of Roman law.
Let us first get acquainted with the laws of ancient Athens. They had the most developed legal system of all the ancient Greek polities, although it has not survived to this day in its entirety. But in Sparta, for example, there were no written laws at all. Laws themselves, it is true, did exist. They were given to the Spartans by the legendary Lycurgus.
He, in his turn, according to the same legends, received them directly from the god Apollo through the Delphi’s Oracle. This happened, historians think, sometime in the ninth century B.C. Likely, the laws of Lycurgus were set forth briefly enough (brevity, as you remember, was a distinctive feature of the Spartans). So they may well have been transmitted from generation to generation orally.
But the laws of the Athenian tyrant Dracontus in 621 B.C. were written down. Tyrants in the Athenian republic were called rulers who came to power by force. Some of them were wise and just rulers and patrons of the arts. Dracontus, judging from his laws, was a rather harsh man. Virtually any crime was punishable by the same penalty, the death penalty. This applied even to stealing vegetables from a vegetable garden or a bunch of grapes from someone else’s garden.
Plutarch, an ancient Greek writer from the beginning of our era, gave the following explanation of the ancient Athenian legislator: “All crimes, even minor ones, deserve this punishment, and for major ones I have found no greater.
It is true that a fine could be imposed for some offenses. For example, for invasion of personal integrity. The murderer could also be spared if he was able to reconcile with the relatives of his victim. In this case the court imposed compensation. Its amount was set by agreement of the parties. This only applied to unintentional murders.
Dracontus was probably the first to divide crimes into intentional and negligent. He introduced the principle of equality before the law in the sphere of criminal law. Any privileges, such as those of the clan nobility, were abolished in imposing penalties for crimes.
The laws of Dracontus, except those relating to punishment for murder and other serious crimes, were repealed in 594 B.C. Solon, the famous politician of Ancient Greece and one of the “Seven Sages” of Athens, compiled a new body of laws for the Athenians.
Solon was elected archonet (as the chief official in many ancient Greek polities was called) and was given extraordinary powers to carry out reforms. The situation in Athens at this time was difficult. Aristotle described it this way: “The majority of the people were enslaved by a few, and the people revolted against the nobles. The turmoil was great, and for a long time some fought against others.” The new laws were to reconcile the demos and the nobles.
First of all, Solon turned his attention to solving the problems of the debtors. The existing debts were cancelled. Researchers do not agree whether this applied to all debtors or to some part of them. The plots of land that were mortgaged against the debt were returned to the owners. Debt bondage, that is, enslavement for debt, was forbidden. All debtor-slaves were set free. Those that were sold outside Athens were bought out at the expense of the treasury.
The privileges of the clan aristocracy were done away with in the political sphere. The degree of participation of Athenians in the government of the state now depended not on nobility, but on their property status. This too, of course, was not full equality. Still, a person’s level of income and wealth depended more on his personal qualities and efforts than on the fact of being born into one family or another. None of the Athenian citizens were entirely deprived of political rights. All could participate in the People’s Assembly and be elected as judges. Citizens were also given the right to file public lawsuits. This meant that they could go to court on a matter that was not of personal interest to them, but of public importance. This was the basis of Athenian democracy.
Property relations were regulated in sufficient detail. The observance of the laws was to reduce to a minimum the possibility of harm to one another. Thus, there were obligations to plant trees at a certain distance from the boundary of a neighbor’s plot. The same rule applied to the digging of pits and ditches and the placement of bees.
Solon also passed a law on wills. Previously, the owner of property could not dispose of it at his discretion: after his death it all remained in his clan. Now, if the owner had no children, he could bequeath it to an outsider.
Much attention was paid to the legal regulation of family relations. In order to exclude fictitious marriages (for mercenary motives), age limits were introduced, and women were forbidden to bring her husband a large dowry.
In order to preserve morality and public tranquility, slander was punished. It was considered an insult to personal honor and led to a fine. This was considered an affront to personal honor and led to a fine. The demonstration of luxury and all immodesty and pretentiousness were restricted. This included, for example, the excessive mourning of women mourners at funerals. Yes, such things were also regulated by law. Adultery was severely punished: the husband had the right to kill his wife’s lover.
Solon’s laws also reflected a policy of protectionism. The development of handicraft production was supported. The export of grain was restricted (it was in short supply in Athens), and the sale of olive oil outside the polis was encouraged.
The laws were hammered out on 16 wooden boards and displayed for all to see. Solon obtained from his fellow citizens a promise to follow these regulations for at least a hundred years. But such a situation, so that everyone would be satisfied with the laws, was in principle impossible. The peasants demanded a redistribution of the land. The nobility resented it, for they were deprived of the privileges and free labor of the debtors. To resist the temptation to change the laws he had just passed, Solon left Athens. And spent at least ten years traveling outside his homeland. Let us highlight the legal principles that flowed from Solon’s legislative reforms.
- The principle of the priority of law over the opinion of its interpreters, however authoritative they may be.
- Equality before the law and equal right to speak.
- The right to bring a public lawsuit, including in defense of democracy.
- The right to appeal the decisions of officials to a people’s jury.
The ancient Roman civilization fell under the blows of the barbarians, but its legacy played an important role in the development of Europe. Roman law has had a particularly fortunate fate. European jurisprudence and civil law practice have developed on its foundations. This is particularly true of the civil law family, the Romano-Germanic family of law. You know that the modern Russian legal system is also part of this family, don’t you?
Of course, Roman law didn’t develop overnight. It took centuries. Roman historians claimed that written laws existed at the time of the first kings – Romulus and Numa Pompilius.
They probably had grounds to say so, but these ancient legal monuments have not reached our days. The oldest body of Roman law is the Laws of the Twelve Tables.
They were created by a special commission of 10 men. The original version, adopted in 451 BC, fit on 10 metal tables. But in the opinion of the plebeians (the lower classes of Roman society), they did not sufficiently protect their rights. That is why two more tables of laws were adopted the following year.
Until 387 B.C., anyone could read them in the Forum in front of the Senate building. But during the Gallic attack the tables were destroyed. Therefore, the laws of the Twelve Tables have survived only in fragments, in the retelling of later Roman lawyers. As far as can be judged, they focused on family and inheritance law. The laws were set out in succession, without division into branches. In the list of penalties, the ancient principle of talion coexisted with pecuniary penalties.
But, of course, the development of Roman law did not stop there. Social life was getting more complicated, the state territory was growing, and the political order was changing. New laws were adopted and old laws were abolished. This process continued after the fall of the Western Roman Empire – in Byzantium. It was there, in 529, that the Code of Justinian, the most complete collection of ancient Roman laws known to us, was compiled.
Justinian was a Byzantine emperor of the 6th century AD. He set out to restore the Roman Empire under his rule. He even managed to take over the Apennines, the south-west of the Iberian Peninsula and part of North Africa. But in doing so, he upset the public finances and pushed most of the country’s population to the brink of poverty.
Roman lawyers were the first in history to divide law into two parts: jus publicum, public law, and jus privatum, private law. Ulpianus wrote about it this way: “Public law is that which refers to the status of the Roman State, and private law is that which has in view the benefits and interests of individuals.”
Ulpian is perhaps the most famous ancient Roman jurist. He lived in the late first and early second century. He was an advocate of natural law. That is, he believed that human rights derive from his nature, rather than being granted by someone, were inalienable. Ulpian’s authority was so high that in the early fifth century his writings were given legal force.
In this way, public law regulated the issues of governance, the position of magistrates (authorities), the order of holding public office, and issues of a religious nature. It also included norms related to the organization of court proceedings and criminal law, as well as the procedure for determining the legal capacity and capacity of persons. The norms of public law had imperative (imperative, obligatory) nature and could not be changed.
Private law regulated property and family relations, property relations, the procedure of concluding and executing contracts, inheritance… State intervention in these relations was minimal. Citizens had to decide for themselves whether or not to exercise this right, to choose a variant of conduct, and to enshrine it in contracts. The main thing was not to overstep the boundaries set by law. If necessary, their private rights could be protected in court.
The method of legal regulation of relations between equal subjects on the basis of their free choice, the contract lawyers call dispositive. It can also be expressed in the following way: “Everything that is not expressly forbidden by law is allowed”.
Beginning in the twelfth century, Roman private law began to be widely studied in the universities of Western Europe and applied in the courts. It turned out that the dispositive method of regulating property relations and part of personal non-property relations fit very well into the life of the new European society. Other principles characteristic of Roman law were also in demand.
- The principle of the common good – the law is a manifestation of the common will, the protection of the law above the protection of the individual.
- Principle of Equality – rights are not created for individuals, but in a general way.
- The principle of justice – what is important to the law is what is fair; a case in court should not be decided more strictly or more leniently than the case demands.
We will talk about these and other ideas of the ancient Roman jurists in more detail when studying other topics. For now, let us summarize what has been said.
The principles elaborated by ancient law are interesting not only from a historical point of view. Many of them form the basis of modern legal systems. The idea of natural law and equality of all before the law, the principles of the rule of law and justice, the treaty as a source of private law (dispositive method of legal regulation), the right of appeal against the decisions of officials and courts – this is by no means a complete list of the heritage that we actively use.