Roman Law Tutorial Essay
The importance of custom as a source of law for Roman Law
Name: Kristina Azzopardi
I.D. card: 492895 M
Roman law is the legal system of Ancient Rome and it is a rather primitive law as it dates back to hundreds of years B.C. mainly because Rome was founded in B.C. 753. During this period, law was customary rather than enacted however it was developed because the Emperor Justinian felt that an organised society was essential and that laws should not remain scattered, and in fact, what today is called ‘law’ is a result of Emperor Justinian’s request. Tony Honorè, in his book “About Law: An Introduction” holds that ‘Rome gave civilisation the law’. Roman law has had a great influence on European legal systems and thinking as a whole as it provides the foundations of a number of legal systems around the world. Throughout the ages, legislators have found it helpful and convenient to refer to Roman law since it is primitive and therefore closer to human beings as people with souls rather than simply physical objects. Aristotle, for example, argued that in order to discover the good for man, one must understand man’s proper nature and for this reason, biologists such as Wilson prefer looking at primitive societies since they are closer to nature. Emperor Justinian set up a commission of jurists which compiled a ‘basic text’- jus commune1- of all that it considered worthy and these had to be based on custom since custom may be considered the ‘building block’ for all laws. Questions such as ‘if the law had not been written down, would it then be legal to kill?’ arise, and hence customary laws fill the gaps in law that are ‘obvious’ in relation to a particular society. However, a definite definition of custom as a behaviour which is generally accepted to a particular society may not be ‘definite’ at all but rather quite vague since custom belongs to that particular society and therefore one may never understand this term entirely unless one actually
Name: Kristina Azzopardi
I.D. card: 492895 M
Roman law is the legal system of Ancient Rome and it is a rather primitive law as it dates back to hundreds of years B.C. mainly because Rome was founded in B.C. 753. During this period, law was customary rather than enacted however it was developed because the Emperor Justinian felt that an organised society was essential and that laws should not remain scattered, and in fact, what today is called ‘law’ is a result of Emperor Justinian’s request. Tony Honorè, in his book “About Law: An Introduction” holds that ‘Rome gave civilisation the law’. Roman law has had a great influence on European legal systems and thinking as a whole as it provides the foundations of a number of legal systems around the world. Throughout the ages, legislators have found it helpful and convenient to refer to Roman law since it is primitive and therefore closer to human beings as people with souls rather than simply physical objects. Aristotle, for example, argued that in order to discover the good for man, one must understand man’s proper nature and for this reason, biologists such as Wilson prefer looking at primitive societies since they are closer to nature. Emperor Justinian set up a commission of jurists which compiled a ‘basic text’- jus commune1- of all that it considered worthy and these had to be based on custom since custom may be considered the ‘building block’ for all laws. Questions such as ‘if the law had not been written down, would it then be legal to kill?’ arise, and hence customary laws fill the gaps in law that are ‘obvious’ in relation to a particular society. However, a definite definition of custom as a behaviour which is generally accepted to a particular society may not be ‘definite’ at all but rather quite vague since custom belongs to that particular society and therefore one may never understand this term entirely unless one actually
Bibliography: R.W. Lee: The Elements of Roman Law: IV Edition pg. 1 (1956) Eight Theories of Ethics: Gordon Graham pgs. 56-61 (2004) K. Larez, Methodenlehre der Rechtswissenschaft 338 (2nd ed. 1969) http://en.wikipedia.org/wiki/Roman_law http://en.wikipedia.org/wiki/Customs http://en.wikipedia.org/wiki/Opinio_juris_sive_necessitatis http://translate.google.com.mt/translate?hl=en&sl=nl&u=http://nl.wikipedia.org/wiki/Ius_commune&prev=/search%3Fq%3Dius%2Bcommune%26biw%3D1241%26bih%3D606