(1) formation
From the 3rd century BC to 1 century BC, the Roman slave economy developed rapidly, and the territory through which Rome fought was unprecedented. In order to cope with the increasingly complex contradictions between slaves and slave owners, citizens and non-citizens, the activities of jurists have become increasingly important. As early as the 4th century BC to the middle of 3rd century BC, Roman jurisprudence had been formed.
In 27 BC, Augustus granted some jurists the privilege of public interpretation of the law, giving them the effect of the law, and the status of jurists also rose. It was during this period that the Roman jurist group was formed.
In 426 AD, the Eastern Roman Emperor promulgated the Reference Law, which made the jurist's interpretation of the law formally become an integral part of Roman law. The law clearly stipulates that when encountering difficult problems, if there is no clear stipulation in the written law, they will be solved according to the works of the five great jurists. In the case of disagreement among jurists, it depends on the majority; In case of disagreement, the theory of PaPigna Yunus shall prevail. The Eastern Roman Emperor formally appointed five jurists and made their theories part of Justinian law. Since then, Roman jurists have played a more prominent role.
(2) Five jurists
Gaius (gaius, 1 17- 180), a famous jurist in the early Roman Empire, wrote The Ladder of Law. This book became the teaching material of the Song School of Law at that time, and it was also the only ancient Roman jurist's document that was completely circulated in later generations.
Paul (12 1- 180) is Bignian's assistant and a member of the Imperial Senate. There are 20,865,438+0 pieces selected from his works in The Essays of Justinian.
Urpia Nuss (170-228), who had close contacts with Palne Ann and Paul, was once an adviser to the emperor and was recognized as one of the greatest jurists in ancient Rome. Among the jurists' works extracted from Justinian's theoretical collection, Urbian ranks first.
Pa Pigna Yunus (140-2 12), a famous jurist in the early Roman Empire, held a senior legal position in the Roman Empire, served as a consul, and was later executed by Emperor caracalla. His theory is very authoritative. It was not until the 4th century that Constantine the Great ordered his theory to be sorted out and his authoritative position respected. It is further stipulated in the Law of Citation that if five jurists disagree, the majority shall prevail. If a majority cannot be formed, PaPigna Yunus will prevail. If Pa Pigna Yunus has no opinion, the law enforcers will choose for themselves.
Modestinus (Modeslinus，？ -224), a student of Urbian, can be said to be the last Roman jurist, and his masterpiece "Essentials of the Collection".
Second, the concept of law.
In Rome, "law" has two uses: lex, which refers to the laws formulated by the ancient Roman kingdom and the people's congresses of various times, is generally translated into law; Jus, which has the meaning of right and law, is generally interpreted as the law from which rights arise. In Roman law, jus also has the meanings of litigation procedure, qualification and magistrate court. That is, it can be used in the law of determining rights.
Roman jurists have different views on the definition of law. Urbian (law is the will to give everyone stability and eternal rights); Pa Pigna Yunus (Law is the norm for all; This is the decision of the wise; This is a punishment for intentional crime or crime due to ignorance; Is the * * * agreement of all the people of the Republic of China); Celsa (Law is the pursuit of virtue and justice). In a word, the definition of law by Roman jurists inherited the viewpoints of justice, rationality and justice advocated in ancient Greek natural law thought, and deepened and concretized this concept.
In Rome, the word "law" was clearly defined for the first time. Urbian pointed out that "law is a knowledge about God and personnel, and a science about justice and injustice".
Third, the classification of law.
The theory of legal classification is one of the important contributions of Roman jurists, and the division of public law and private law became the basis of civil law classification later. Other classifications, such as natural law, civil law, civil law, personal law, substantive law, procedural law, and the division between written law and unwritten law, have a far-reaching impact on future generations.
(1) natural law, civil law and civil law
This is put forward by Urbian, and it is divided according to the level of effectiveness and scope of application of Roman private law.
Natural law refers to all universally applicable, correct and reasonable laws that conform to the principles and spirit of nature. Natural law is higher than ideological law and is an ideal law. Urbian said that "natural law is the law that nature teaches all animals". Gaius said, "To some extent, it was formulated according to the gods and remained stable all the time." Paul pointed out that "natural law is always just and kind". In a word, natural law is regarded by Roman jurists as the highest, most fundamental and final authoritative law. As the standard and basis of artificial legislation, it guides human legal activities.
The law of ten thousand names refers to the law applicable to all human beings (free men), that is, the law that the Romans and other nationalities * * * share all human beings. In Rome. This law, which is applicable to all mankind, is a universally applicable law to adjust the property relations between Romans and foreigners and between foreigners.
Civil law-refers to the law regulating the relationship between Roman citizens. It was formulated and approved by the Roman people and only applies to Roman citizens. At that time, the civil laws in Rome mainly included: Twelve Bronze Tables Law, Yuli Law, Minika Law, Arria Law and Sendia Law, especially Asian Law.
In AD 2 12, Emperor caracalla of the Roman Empire issued the famous constitutional order of antonini, granting all foreigners in the Roman Empire Roman citizenship, and the distinction between civil law and civil law disappeared.
(2) public law and private law
It was first put forward by Urbian, and it was divided according to the different adjustment objects and value orientations of law.
In his view, public law protects the interests of the public, and the purpose of adjusting political relations and the state should be related to the stability of Roman countries, such as constitution, administrative law, religious law, criminal law and so on.
Private law protects private interests. Adjusting the relationship between citizens and determining the conditions and restrictions of personal interests involve personal welfare. Private law includes natural law, civil law and civil law. Justinian's Encyclopedia of State Law is a typical encyclopedia of private law.
(3) Personal law, substantive law and procedural law (private law theory)
This division is based on the protection of subject, object and individual rights by law.
Personal law is a law that stipulates the subject, the qualification and ability of the subject, and defines personality and identity. The most important division of human law is free man and slave. A free man has the right to dispose of his own person and behavior according to his own wishes within the statutory limits, which is the subject of private law; Slaves are not the subject of rights, but "a part of others' property". They have no "personality right" and are not bound by various provisions of the civil law. Slaves must have a series of legal conditions to be liberated and become free men.
Substantive law-refers to the object of rights, the acquisition, change and distinction of ownership, as well as inheritance and debt.
According to the Procedural Law, the right of action refers to "the right to bring a lawsuit before the court and get the benefits due". Litigation can be divided into: (1) litigation in rem and litigation in person. Litigation in rem refers to litigation in rem, which can only be requested by the owner; A lawsuit against someone is a lawsuit for payment, a lawsuit for giving something or doing something. (2) Public prosecution and private prosecution. There are already relatively systematic litigation procedures in this horse law, including legal litigation, procedural litigation and special litigation.
(four) written law and unwritten law (omitted)
Division based on legal form.
Fourth, the origin of law.
Roman jurists pay special attention to the origin of law. They argue that the highest origin of law is far from positive law. Gaius's book The Ladder of Law systematically discusses the origin of Rome.
1. Law. Laws are approved and formulated by the people.
2. Civilians will make decisions. It was approved and formulated by civilians.
3. Senate resolution. It is approved by the Senate and has legal effect.
4. Sovereign decree. It was made by the emperor through rulings, notices or letters. Have legal effect.
5. Notice issued by the person who has the right to issue the notice. Notice is a norm formulated by people with ruling power. The consuls of Rome and the Republic have this power.
6. The jurist's answer. It's the opinions and opinions of people who are allowed to sort out the law.