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How Roman Law Evolved Over 1,000 Years

Did Roman Law change at all during its long history of usage? Professor Richard Epstein distinguishes between the public law and private law parts of the Roman Law. The public law changed substantially, due to the changing political regimes. On the other hand, the private law remained stable and continuous despite political upheaval. https://youtube.com/watch?v=7faPvUfTx7A


When you're trying to figure out the way in which Roman law evolved, it’s a very long period of time. And probably the single most important break is the end of the Republic after the death of Caesar and the rise of Augustus, which spanned basically just before and just after the birth of Christ. And how does this influence things? The answers is, there are two ways you can look at this. One of them is a public law matter and the other is as a private law matter. If you're dealing with the public law matter, the changes are very large. A Roman Republic is res publica. It means that those affairs, the word res can either mean a tangible thing or a set of social affairs, which belong to the public should be decided by the public at large. And so you see a very large role that's given to two classes, one the Senate, which is a term we use for our upper house to this day, and then to the Publicians which become the House of Representatives. The theory was representing different individual groups in slightly different ways, there would be a clash in the set of checks and balances between these two parties so that you could be reasonably confident that no one person could take charge. Much of Rome was governed by two councils, not one. So what you did is one executive could give a check against the other. And what you saw was a political system which obviously would have many weaknesses in practice, but at least was alert to the dangers of arbitrary power. When you get to the Empire, all that starts to disappear. When it comes to the private law, the continuity across the Republican and the Empire is almost complete. If you go back and you start to read Gaius and so forth, what he does is he basically identifies two classes of scholars who differ from one another: the Sabinians and the Proculeans, one of them being more concerned with substance and the other being more concerned with form as a way of organizing a situation. So what he then does is he presents essentially 20 or 30 disputes between the two schools on how it is these scholars would resolve a problem. But essentially what happens is when you do Roman private law, you spend some time on the evolution of legal documents but you don't pinpoint or tie it to the political changes in the larger system. And so the continuity between the time of the twelve tables and the time of Justinian of 1,000 years on the private law subject is increasing sophistication. And they're major statutes. But again, the lex Aquilia, which is thought to be the single most important statute on the law of torts, is adopted roughly around 287 B.C. early in the Republic and they're construing it for all it's worth 400 years later. Obviously, the change between the Republic and the Empire does not have much to do with what's going on in that very difficult statutory construction.

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