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H - 3 : The Beauty of Roman Law

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Sarcophagus of the prominent Roman Jusist Valerio Petroniano from 320 AD


Consulting the lease agreement for the Dragonfly the other day, it occurred to me that my lease and the route we shall be sailing this summer are both governed by Roman Law. As unlikely as it sounds, the key elements of commercial and private law were well established in Roman time. A Roman contract defined the counterparties, their obligations under any arrangement and came with a dispute mechanism. Particular attention was paid to property ownership commercial contracts, marriage, divorce and inheritance Commercial contracts were used throughout the Mediterranean and governed both the import and financing of bulky goods (grain, olive oil and wine) as well as high value items such as silks, cotton, spices, exotic woods and precious stones from Asia. Emperor Justinian, whose Church of Saint Nicholas we are visiting in Myra (Demre) in our 2nd  week, streamlined and codified Roman Law into a coherent body.


Roman Emperor Justinian with his military and civil Staff in the Church of Ravenna


What is truly amazing is that Roman Law today dominates most of the world. Not in its original form. It evolved over time. Most significantly with the English Common Law and the French Code Civil from 1803. The colonization of the world by European powers from the 16th century on certainly helped spreading its use. But one wonders why Sharia Law or Chinese Laws, both developed in empires bigger than Rome, are no rivals. They both show similar complexity and sophistication. But more on this a bit later.


Origin and Base of the Legal Systems used globally today


The origin of Roman Law is not much different from other ancient laws. Written on 12 tablets in the 5th century BC, it was a potpourri of public, private, criminal and ecclesial law. Written for a closely knitted municipality on seven hills, this was entirely sufficient. Other towns and kingdoms around the Mediterranean had similar laws. As Rome became the Med’s dominant power though, things changed in three fundamental ways:


With regular Census, the Roman Empire kept an eye on its Population


  • Long-distance trading was the base of a sophisticated division of labor. Wheat came from Egypt, Sicily and North Africa, olive oil from the Levant and Mauretania, fish sauce and silver from Spain, timber from Gaul, wine from Greece, copper from Cyprus. Trading on such a large scale required the formation of partnerships, the formalization of purchasing contracts and lease agreements as well as trade finance. Roman contract law evolved to cover these needs. It was not set in stone.

  • The large size of the Roman Empire made consistent enforceability a key. A legal text without a dispute mechanism has little value. It is just a moral declaration. The enforcement of Roman Law moved from people’s courts in Rome to magistrates appointed by the emperor. Legal experts started to support dispute parties. Slowly but steadily, a legal profession evolved who kept track of new legal edicts from the emperors, of magistrate decisions and documented the evolution of law.

  • Last but not least, as Rome expanded, it began to rule over people with different religious believes. The empire had no ambition to proselytize and allowed people to keep their Gods as long as they recognized the Roman Emperor as God of Goods. As a consequence, moral and divine considerations faded from private law. You could adhere to Roman Law without believing in Roman Gods or morals.  

Most Legal Proceedings were kept on Wax Tablets thus are lost forever. But Laws survived


Roman Law was far from being perfect. It was often messy. Various magistrates in different regions interpreted the law in different ways. New imperial edicts often contradict old ones.  Several efforts were made to clean up the mess. Justinian was just the most prominent and much of his work (or better his legal experts’ work) survived to today. Also, the law had no enforcement mechanism. If you won a case, you had to collect the awards yourself.


Roman Lawyers streamline the body of Roman Law. Anyone knows where the mosaic is from?


When Augustus came to power, constitutional law fell into a beauty sleep. Whilst he formally respected the rules of the Roman Republic and institutions like the Senate, he and all future emperors diluted them to an extent that they became ceremonial. What counted was the emperor's word and edict, men with incredible military power who had to be respected. 


When Constitutional Law was still in the Hands of the Senate. The Trial of Catalina in 65 BC


Chinese and Arab law took a different path which may explain why they are less suitable for a modern, always rapidly changing world.


The scope of Sharia Law is much broader than Roman Law. It also rules on everybody’s relationship with God and establishes a moral codex for individuals. If everybody was doing what was morally right, there would be no disputes. Sounds like a stroke of genius. Moral behavior however is far more difficult to police than simple contract law. Also, Sharia is the expression of divine will. After the death of Mohammed in 632 AD, communication with Allah ceased. The Sharia cannot develop any further. The law is fixed and immovable. Of course, various rulers and Qadis (judges) found workarounds. But it is a fundamental problem. If only God can edict law, then people (or parliaments) cannot change them.  A good illustration is the replacement of Sharia Law in Turkey in 1926 by the Swiss commercial code. It was simply impossible to reform it.


Many Muslim Countries have fully or partially abolished the Application of Sharia Law


The Chinese law tradition, the world's oldest, suffers from a similar feature. The Confucian School believes that people cannot be governed by strict laws but that the law must be based on moral conventions. Thus, legislation, administration and adjudication have to be seen through the lens of moral principles. One of the Confucianists highest ranking principle is harmony. This means law suits have to be avoided and arguments should be settled through mediation. The Confucian utopia was a society without lawsuits. The three factors of “heavenly order” (natural law). “the legal code of the nation” (law) and “human relations” had to be in harmony. Whilst this may theoretically work, in reality it does not. The Chinese Emperor was part of the “heavenly order” thus any conflict with his priorities could not be resolved - harmony is more important. The need for harmony kills the certainty and predictability that the Rule of Law creates. Does anybody wonder why China never developed an independent class of industrialists and capitalists even though they were the biggest inventors prior to the 19thcentury? The Chinese Emperor did not tolerate a rich bourgeoisie which could become a political rival as it did in England – or in his words would "disturb the harmony”. Sounds eerily similar to today.


A Chinese Official mediating between two Disputing Parties


This is my last blog in preparation of this year's trip - as of tomorrow I will be reporting every day on the progress of following the tracks of Saint Paul, the Apostle from Cyprus to Knidos


A Page of Justinian's Cofe re-printed in 1632



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This blog is about getting to places which are today off the beaten track but where once the world met. It talks about people, culture, food, sailing, architecture and many other things which are mostly forgotten today.

 

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