Roman Law and political control — from a primitive society to the dawn of the Modern World

Abstract

The purpose of this paper is to survey the history of Roman Law in order to shed light upon processes whereby society may grow more dynamic. Roman Law is the only one whose development can be traced for over thousand years, a time during which two main epochal crises brought about far-reaching changes to Roman society. The first was a consequence of the second Carthaginian war (218-200 BC), when the raw inhabitants of Latium, in a mere space of sixty years, attained supremacy over the ancient world. The second followed closely upon the death of Emperor Alexander Severus (235 AD), when the growing strength of alien populations was becoming a serious threat to the Empire.

These two historical watersheds mark three different ages and three correspondingly quite different law systems that can be named: (i) the Quiritarian or strictly Roman Law, (ii) the Universal-Roman Law, (iii) the Greek-Roman Law. The legal sytem of the first epoch was suitable to a narrow rural society. The law system of the second age was suitable to the ends and values of an open civilised society. The last stage of Roman Law unfolded in the Eastern Empire, and the well-known Code of Emperor Justinian (527–29) marked the climax of this process.

As a result of cautious reforms lasting several centuries, the political structures of primitive Roman society(familiae, gentes, tribus) declined, a powerful central authority was built, the nuclear family became the basic building block of society displacing extended family and clan structures, the condition of women was freed from obnoxious tutelage.

Traditionally, the Roman estate of thefamilia was nearly a territorial State. Primitive buildings, often mere huts, were independent from each other. The drive to an increasingly civilised urbanisation inevitably brought about a closer spatial integration of the built-up area, and therefore made it necessary the establishment of more and more frequent praedial servitudes. To allow the organisation of urban space to emerge, the builder had to be granted a right to hold the building thus erected, for a limited time or in perpetuity, by lease or sale, against the territorial pretence of extended family or clan authority. Usucaption, pledges, mortgages, initially used in provincial lands, replaced the traditional Roman land transfer procedure(fiducia).

In the time of the late Empire, slavery declined and was to some extent replaced by serfdom(colonatus). Roman citizenship was granted to all (212 AD), but the commoners(humiliores) suffered under heavy disabilities. Powerful families(honestiores) often retreated to the countryside, while the rest of the urban population was left to her own devices under an oppressive taxation system. Many luckless heads of families had to become tax proctors: they were held responsible for the gathering of taxes to the extent of their whole estate, and even on pain of torture. The State increasingly took control over most features of social and economic activity, from agriculture to the prices of foodstuffs; while individual enterprise, progress and creativity became more and more stagnant. All these are indicators of an increasingly static society. Oriental despotism became the dominant form of political organisation.

Thus, while private law became more and more modernised, paving the way to the present legal systems, the social structure and the spatial organisation became more rigid and less open to innovation. Therefore a very incomplete modernisation occurred. The emergence of more open and dynamic societies was to take place many centuries after the fall of the Western Empire, precisely in the same geographical space that had belonged to it, mainly under the impulse of the more efficient and civilised among the new (Germanic) peoples (Angles, Saxons, Jutes, Franks, Longobards, etc.) who immigrated there with theVölkerwanderung and injected fresh blood into the lands of the former Western Empire, thereby ending oriental despotism. The heritage left by the evolution of Roman Law, however, was to be felt and assimilated by these peoples: it was to become a considerable part of their own cultural and legal heritage, and one of the many factors paving the way to the eventual emergence of dynamic Western societies.

The age-long process of change of Roman Law can provide useful glimpses on how attitudes and cultural values not hostile to development may arise and grow to full maturity. Its study can help — though by no means alone — to understand how that part of Europe which came under its direct influence was able to achieve cultural traits open to socio-economic innovations and development.

Though each social and spatial system follows its own distinctive path to development (or stagnation), some necessary cultural preconditions are broadly similar for any society. Stress upon individual values is doubtless one such inescapable precondition to the emergence of a dynamic society capable of endogenous development. Unfortunately, utterly opposite values are firmly entrenched in many “Third World” countries, and social evolution there is, under this viewpoint, exceedingly slow — if any.

Centuries had still to elapse for individual values to prevail in Europe after the age of Justinian, and more centuries went by between the triumph of these individual values and the actual take-off stage, which only came about with the industrial revolution. Bearing in mind these facts, the inescapable conclusion arises that the apparent lack of significant cultural change leading towards a dynamic society in many countries must necessarily be a matter of the deepest concern. This is aggravated by other disquieting features of the “Third World”, such as the propensity to authoritarian regimes — a propensity which in its own turn is closely related to poorly developed individual values.