Can Roman Law claim a 'second life', as it is a part of the national legal history of every modern continental lawyer

Essay I

The question, whether the Roman Law can claim a ‘second life’, and is a part of the national legal history of a modern continental lawyer seems to be - at least at a first glance - answered easily. But in order to show the remaining influences of Roman Law on - in this case - the French legal system and its legal history it seems to be necessary to gain a deeper insight into the French legal history (I.). In a second step similarities between Roman Law and French Law should be shown, therefore using some examples (II.).

I. A brief history of the French legal system

The effective beginning of the ‘evolution’¹ rather than revolution of the French legal system can be found in the 12th century, not in 1789, the year of the French Revolution. Today’s knowledge about Roman Law reaches back to the Roman conquest of Gaul in 52 BC², the sole description of Celtic customs in France (Gaul) before the Roman period can be found in Caesar’s Comentarii de Bello Gallico. Thus, in a way, the French legal history, as far as we know it, started with the Romans.

In the 4th century AD, French Law was sourced from the code of Georgius and Hermogenius as well as the Institutes of Gaius³. One century later not only had Gaul been occupied but the Code of Thedosius ⁴ had been compiled as well, providing a collection of imperial constitutions⁵. Due to the Lex Romana Visigothorum (506) passed by Alarsic II, a Visigoth king, Roman law in France didn’t suffer the same fate as the Roman Empire, which collapsed in 476 AD⁶. This statute shows - apart from its name - how big Roman influences were on the French law of those days, as it included a summary and commentary of the Code of Theodosius as well as a summary of the Jus and the Leges ⁷. The Leges were made up by a certain amount of contitutiones, documents about opinions, enactments and decisions⁸ of various former emperors. The Jus were the writing of jurists, including both their interpretation and the development of legal sources⁹, many of them Roman ones, back to the 3rd century AD. Because all these documents were heavily influenced by Roman law, the statute of Alaric II was the basis of the survival of Roman Law in the centuries after the existence of the Roman Empire as such. French Law and Roman Law seemed to be, apart from some ‘vulgarisation’¹⁰ through being woven with local customs, each other’s cup of tea.

With the 6th century came a system of ‘personal laws’¹¹, which did not remove the Roman Law. Instead the different tribes in France lived according to their own laws, whilst the Roman subject lived according to their law. The South stayed firm to its Lex Romana Visigothorum, the South of France preferred to apply its own laws, customary laws of Germanic origin¹². However, once again Roman Law prevailed over general changes and did not fade away completely¹³.

During the 9th century a ‘territoriality of law’¹⁴ appeared bringing different laws for different locations and classes of people, a real ‘feudal system’¹⁵. In the 13th century law in France split further into the law of two different geographical zones. The north stick to its local customs of Germanic origin, as it did in the 6th century. The south of France (midi) followed its ‘path’ of Roman Law, laid down in the 6th century.

Eventually, in the south, most local customs died out¹⁶, while Roman Law was used in the north in the law of contracts and obligations, because coustumes ¹⁷ were silent on these important areas of law¹⁸. Here you can see that Roman Law paramounted at least in two-fifth of France (the south) for the 12th century in a row, making the deep impact of Roman Law on the History of the French legal system very obvious. Although it should not be forgotten that this Roman Law in France was not Roman Law in its purest form, rather some kind of customary Roman Law¹⁹ During the period between 1500-1789 royal power became more influential in France. Due to an order of Charles VII most of French customary law became written law. Furthermore, a lot of royal ordinances were passed in those and the following years, most of them about administration or civil and criminal procedure²⁰. Some grand ordinances were produced as well, the Ordinance of 1667 on Civil Procedure, for example, or the 1670 Ordinance on Criminal Law and Procedure ²¹. They were heavily influenced by Jean Baptiste Colbert (1619-1683), the chief minister of Louis XIV and Guillame de Lamoignon (1617-1677), the first president of the Parlement de Paris. Especially Lamoignon’s works remained authoritative and prestigious, as jurist throughout the 18th century relied on them²². A collection of laws, the Customs of Paris²³, mainly derived from the customs of the French capital Paris, was a small step to a common French law²⁴.

With the French Revolution in 1789 the ancien regime ²⁵ came to an end, and a period of metamorphosis, pushed forward by three desires, awoken in the course of the revolution began. These desires can be seen in the wish to repeal the existing legal system, to enact a codification of civil law and to define legitimate governmental powers in a written constitution²⁶, all of them with regards to the main aims: egalit é , fraternit é et libert é ²⁷. For the purpose of this essay the codification of civil law is to be focused on, as it shows Roman influences quite clearly. In his book The French Legal System²⁸ West defines codification as ‘the enactment of a methododical planned collection of legal rules organised in articles expressing the general principles governing the determined branch of the law’. But how did this codification happen and which were the persons involved in this codification?

Since the French Revolution took place in 1789 one might think that its famous legal ‘spouse’, the Code Civil was drafted in its course. But, and this is a fact that can still be seen in our days, a proper statute or code doesn’t know any need for a hurry. With the decret du 24 thermidor an 8 (13-08-1800) Napoleon appointed a commission to draft a civil code, which is therefore known as the Code Napoléon. This commission, consisting of four lawyers needed five month write this draft. They relied heavily²⁹ on the works of Domat and Pothier. On the 21.03.1804 the loi du 30 ventose an 12 put the 36 in this way written laws together and formed the Code Civil de Français. The drafters had written a clear and concise³⁰ code in accordance with the spirit of the French revolution.

Nevertheless the code cannot be regarded as a complete breach with the legal past of France. First of all the drafters of the Code Civil themselves stated its rules were derived from Roman Law³¹, and that the Code Civil was a modernised form of Roman Law³². This gets clear when you just have a look at the structure of the Code Civil. Furthermore, it is made up of three ‘Books’, as are Gaius’ Institutes. But there is another noticeable link to Roman Law, since its provisions as regards to contract and delict have three different origins: customary law, Canon law and once again, Roman Law³³.

The law that helped to build up the huge Roman Empire with all its cultural, political and philosophical influences on Europe has definitely been woven into the French legal history³⁴. Famous legal writers such as Pothier had their roots in Roman law and its mechanisms, therefore influencing the French legal history on this basis in a ‘Roman’ way.

II. Particular influences

But are there examples which show that there is not an abstract impact of Roman Law on the thinking of French legislators and the French legal history? Are there some general principles and practical examples showing that even today’s lawyers make decisions based on Roman Law?

First we might have a look at some principles of French law. In France property law is regarded as a discrete legal subject, it is written as well as studied as such³⁵. When a French lawyer or law student is faced with a certain problem of civil law, he is not only reminded of the existence of the Code Civil, but something else pops up in his head. What he should think of immediately is the fact, that French law makes a distinction between the law of persons, the law of property and the law of obligations. This might seem totally alien³⁶ to somebody who studied English Law, but has its roots in Roman law. This gets clear as soon as you open a Roman law book and have a look at Gaius’ Institutes. Gaius draws a clear distinction between these three different legal matters. In the first book of his ‘Introduction’ he immediately begins to divide the persons into free ones and slaves³⁷, Gaius I 9-11. In the second book of his ‘Introduction’ he goes on with this scheme and therefore distinguishes between things³⁸, (Gaius II 2-4.8-14), some are subject to godly law, some are exposed to earthly law. In his third book of the ‘Introduction’ Gaius takes the existence of the law of obligation besides the law of persons and the law of things as granted when he states, more or less by the way, (Gaius III 88), let’s talk about the law of obligations³⁹ ! A distinction between obligations based on a contract and those obligations that are based on delict follows⁴⁰, (Gaius III 88).

As unemployment grows, more and more people sue each other over succession, to get a piece of the cake. Therefore it is interesting to find out whether there are any Roman influences on the French Law of succession. The first two parts of the Code Civil (Articles 718-1100) deal with the inheritance of property. Some writers⁴¹ claim that these provisions are rooted in the ancien droit. They might be worth a closer look. Now, in opposite to pre-revolutionary times, France applies the doctrine of universal succession⁴², including the whole property of a departed person in the fund for distribution⁴³. Looking for money, what can the heir do, if he or she is not quite sure whether the deceased’s property is something to be happy about in the monetary sense? Being confronted with the deceased’s property, the heir can choose to accept the property in two ways. With a pure acceptance the heir gets the property, but acquires a liability on the corresponding debts as well⁴⁴. It might probably be better avoided, which is possible in the French law of succession, as Articles 793-810 provide the heir with the possibility of an inheritance ‘under benefit of inventory’⁴⁵. This gives the heir the opportunity to make an inventory of the departed moveable property within three months. Furthermore she gets forty days in which she can decide, whether to accept the inheritance or not to. This acceptance, and this is the reason for this procedure, and possibly an advantage, keeps the deceased’s property separate from the heir’s own property. Apart from that it restricts the heir’s liability for any debts on the property to the amount received in the inheritance. Looking at Imperator Iustinianus Aug. ad senatum⁴⁶ a similar institute can be found. It provides the heir with thirty days for starting to make the inventory⁴⁷ and a further 60 days to finish it and to think about what to do. She can be made liable for any debts just to the amount received in the inheritance (4). These two examples show (and there are more, for example as far as classes and degrees of successors are concerned, see Gaius III 1-4.J-13.22 and for the French law Articles 739-745), that even today the influence of Roman Law on the French legal system as a whole is bigger than many may think. This might be the reason why it still has to be studied at many universities throughout France.

The statement given is completely right. A French Lawyer can never deny the origins of his legal system and should never do so, if he wants to understand the reasons for the law he uses every day.

III. Bibliography

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¹ West, p. 1; Dadomo/Farran p. 9

² West, p. 1

³ Cruz, p. 59

⁴ Codex Theodonisanus

⁵ West, p. 2; Cruz, p. 59

⁶ Cruz, p. 59; Dickson, p. 2; West, p. 2; Zweigert/Kötz, p. 77; Dadomo/Farran, p. 2

⁷ Cruz, p. 59; Zweigert/Kötz, p. 77

⁸ Cruz, p. 59; Zweigert/Kötz, p. 77

⁹ Cruz, 5. 59; Zweigert/Kötz, p. 77

¹⁰ Dickson, p. 2

¹¹ Cruz, p. 60; West, p. 2; Dadomo/Farran, p. 3; Dickson, p. 2

¹² Cruz, p. 60; Zweigert/Kötz, p. 78

¹³ Zweigert/Kötz, p. 78

¹⁴ Amos and Walton

¹⁵ Cruz, p. 60

¹⁶ Cruz, p. 61

¹⁷ customs

¹⁸ Cruz, p. 61; Dickson, p. 2

¹⁹ Dickson, p. 2

²⁰ Dickson, p. 3; Cruz, p. 63

²¹ Dadomo/Farran, p. 5; Dickson, p. 3; Cruz, p. 62

²² Cruz, p. 62

²³ Coutome de Paris

²⁴ Dadomo/Farran, p. 7

²⁵ period of ancient law

²⁶ West, p. 21

²⁷ equality, fraternity, liberty

²⁸ West, p. 24

²⁹ Write, p. 25, Dadomo/Farran, p. 9

³⁰ Dadomo/Farran, p. 10; Cruz, p. 63

³¹ Cruz, p. 63

³² Cruz, p. 63

³³ Write, p. 26; Dadomo/Farran, p. 9 (especially footnote 32)

³⁴ Cruz, p. 69

³⁵ Dickson, p. 204

³⁶ Dickson, p. 204

³⁷ ‘Et quidem summa diviso de iure personarum haec est, quod omnes hominess aut liberi sunt aut servi’

³⁸ ‘…nam aliae sunt divini iuris, aliae humani’

³⁹ ’Nunc transeamus ad obligationes’

⁴⁰ ‘…omnis enim obligatio vel ex contractu nascitur vel ex delicto’

⁴¹ for example Dickson, p. 226

⁴² Dickson, p.227

⁴³ l ’ unit é du patrimoine

⁴⁴ Dickson, p. 227

⁴⁵ sous benefice d ’ inventaire

⁴⁶ - Cod. VI 30,22,2.2a.4

⁴⁷ …ut intra triginta dies… (2)