Background

  • The Romans considered laws to be an issue of societal custom as they evolved through time rather than absolutes
  • The Justinian Code was collected under the authority of Byzantine emperor Justinian I during the years between BCE 529 to 565; these were the first laws to be codified in Rome- this made them more accessible and comprehensible to laypeople
  • Laws applied only to citizens of the Roman Empire and were thus referred to as “ius civile” (civil law)
  • The Justinian Code (Corpus Juris Civilis) or “Body of Civil Law”, is a civil law code
    • provided basis for law in after the 11th century
    • was by later edited by Napoleon to form the basis of his laws
    • reflected past law and the opinions of esteemed Roman jurists, also contained new laws dictated by Justinian
  • The Code was compiled into four works; The Codex Constitutionum, Pandectae, and Institutiones were published in Latin; the Novellae Constitutiones Post Codicem was published in Greek
  • The Codex Constitutionum consisted of all past  “constitutions” declared by previous emperors as decided by a committee of ten men
  • the Pandectae was a revised selection of the Codex
  • The Institutiones, was essentially an outline of Roman law intended for first year law students
  • The Novellae Constitutiones Post Codicem contained outlines of Justininian’s new rulings made between BCE 534 and 565

Key Legal Issues

  • The code established Christianity as the religion of the state and outlawed paganism- this clear violation of religious freedom was not an issue at the time, as minority groups were not well represented
  • Empress Theodora fought for women’s rights- the Empress is considered to be an early pioneer of women’s rights and influenced the way the law treats women today
  • Helped laws pass which prohibited trafficking of young girls
  • Fought existing divorce laws to make them fairer to women
  • Pandectae: the jurist Ulpianus’ thoughts on prostitution
  • A woman who has engaged in prostitution is not exempt from punishment simply because she is poor
  • Pandectae: the jurist Ulpianus’ thoughts on adulterous women and their cohorts
  • a woman caught engaging in adultery is a criminal; if she is found guilty, she will be labelled “infamous” (this classification removed certain privileges) not just because she was caught committing an offence, but because she was also convicted
  • if the adulterous woman is not caught in the act but is still found guilty, she is labelled as infamous because she was convicted of a criminal offence; she is also infamous if she was caught but not convicted
  • Ulpianus states that a woman should be considered infamous even if she is acquitted because the law surrounding adultery states it as an act of infamy regardless of the outcome of the case
  • If a father catches his daughter by surprise in the act of adultery, he is permitted to kill the man she is involved with; this opinion is echoed by the jurist Pomponius, as long as the man is killed in the duration of the sexual act
  • Homosexuality 
    • under the Lex Julia de adulteris, those who commit adultery or engage in lustful acts with other men are to be executed
  • Slavery
    • freedom is the ability to do as one pleases unless it is illegal or forcibly stopped
    • slavery is an institution of nations which allows a man to be made property
    • masters have the power of life or death over their slaves and own all that the slave accrues
    • cases could occasionally be settled prior to trial by the taking of oaths before the Gods
  • If a defendant could not take an oath (e.g. lie in front of divine authorities) the case was lost; however, the defendant could send the obligation back to the plaintiff- this idea is similar to plea bargaining today in the sense that both parties conceding can be more effective than a trial

Case

In one particular incident, a Roman shopkeeper kept his business open at night and left a lamp on a countertop facing onto the street. A man later came by and stole the lamp. The shop-keeper chased the thief, who was carrying a weapon. The thief struck the shop-keeper, who then took out one of the thief’s eyes. The jurists presiding over the case struggled to decide whether the shop-keeper was to be held accountable for the injury. They eventually decided that this constituted (an early form of) self-defence, and the shopkeeper was not punished. The similarity to modern Canadian attitudes illustrated by this idea demonstrates that although some rules remained barbaric, particularly those regarding adultery and slavery, an early understanding of fairness was being developed.