Roman Law and European Culture

It seems correct to speak about Roman law as one of the most important formants of the European culture as a whole. But this view of the relationship between Roman law and European culture is incomplete. European legal culture is constituted by a multitude of cultural formants. It is the way how these elements where mixed and mingled that constitutes the European culture. Then to what extent did Roman law contribute to the formation or acceptance of these axioms? What part has Rome been playing? If we compare Roman law which developed in antiquity (that means between the 1 st century before and the 3 rd century after Christ) and the Roman law which was studied and used from the 11th century onwards we can detect important differences. However, before we separate Roman law and later influences we must uncover antique Roman law; we must get to know how Roman law was like in antique reality

Martin Josef SCHERMAIER*50)

<Abstract>

It seems correct to speak about Roman law as one of the most important formants of the European culture as a whole But this view of the relationship between Roman law and European culture is incomplete European legal culture is constituted by a multitude of cultural formants It is the way how these elements where mixed and mingled that constitutes the European culture Then to what extent did Roman law contribute to the formation or acceptance of these axioms? What part has Rome been playing? If we compare Roman law which developed in antiquity (that means between the 1st century before and the 3rd century after Christ) and the Roman law which was studied and used from the 11th century onwards we can detect important differences However, before we separate Roman law and later influences we must uncover antique Roman law; we must get to know how Roman law was like in antique reality We should try to unveil influences

on Roman law which took place since late antiquity, particularly since the Middle Ages For this purpose, I selected three examples; one example stems from the law of obligations, one from the law of property, one from the law of succession In all three examples Roman law provides the shell for the modern solutions But their contents differ widely

or even totally from what Roman lawgivers and jurists designed In many instances new

law was formed out of the Roman sources, they produced an usus modernus iuris romani, as

we could call it This new law is indebted to Greek philosophy, to moral theology, to the Natural Lawyers or to other philosophic, sociologic or economic ideas of later times This

is why it is difficult to measure how Roman law formed or transformed European culture Many of the Roman concepts and some of the Roman institutes underwent a profound

* Professor of Law, University of Bonn.

change due to other cultural influences, mostly of philosophical or theological origin Though we use the same arguments as the Romans, we draw them from different valuations What does this mean for our discussion of Roman law and European culture? The consequences are twofold; first, we have to be aware of the differences Secondly, we have to explain how Roman law mingled with other cultural formants Only then it is possible to consider which cultural elements contributed to the formation of Europe and

to measure the mutual influences

[ Key Words ] Roman law, European culture, cultural formants, law of obligation,

law of property, law of succession

Ⅰ Introduction

Last year the most famous German law journal (the Juristenzeitung) published an article written by Reinhard Zimmermann entitled Roman Law and European Culture1) In this article,

Zimmermann elaborated on the well-known relation between the tradition of Roman law,

especially of Roman private law, and the formation of Europe2) The principles and solutions

of antique Roman law have been studied at the universities and applied in practice since the Middle Ages Since the 11th century, they influenced and even formed all European civil law systems Therefore it seems correct to speak about Roman law as one of the most important formants of the European culture as a whole

But this view of the relationship between Roman law and European culture is incomplete European legal culture is constituted by a multitude of cultural formants The European

jurisdictions are, as Zimmermann pointed out somewhere else3), mixed legal systems That means that they consist of both Roman and several other elements It is the way how these elements where mixed and mingled that constitutes Europe Thus European culture or

1) “Römisches Recht und Europäische Kultur”, JZ 2007, 1 ss.

2) Reinhard Zimmermann, The Law of Obligation Roman Foundations of the Civilian Tradition (Oxford, 1996) 참조.

3) Reinhard Zimmermann, Roman Law, Contemporary Law, European Law; The Civilian Tradition Today Clarendon

Law Lectures (New York: Oxford University Press, 2001), 158 ss.

이화여자대학교 법학논집 제12권 제2호 (2008 3)

Ewha Law Journal, vol 12, no 2 (2008 3)

European law cannot be defined by focusing on just one element, and leaving out other components On the other hand it is not only the legal system that determines culture, but law is forms a part of culture itself, and both depend on one another If we pay regard to the basic principles of western culture, democracy, liberalism, the principle of free competition

on the one hand and socialism, altruism and the protection of the weaker party on the other,

we realise that these principles determine both western law and culture But vice versa these principles or axioms have been formed by Roman law, Christian theology and Greek philosophy And, moreover, modern law or, generally speaking, modern culture guarantees these principles and helps to defend them against other models of social organisation.But to what extent did Roman law contribute to the formation or acceptance of these

axioms? What part has Rome been playing? Zimmermann does not ask this question The fact

that we trace Roman law in all European jurisdictions cannot answer how Roman law contributed to Europe’s evolution Take, for example, the distinction between delict (or tort) and contract: From a doctrinal point of view, this distinction is not a necessary one: If one hurts another he has to recompense the victim for the damage done – regardless if he hurt another’s property or he did not fulfil an obligation Nevertheless, we find this distinction in all European jurisdictions4); it is a Roman distinction, born in the different actiones offered by

the praetorian edict But is it really a formant of European culture? Or, from today’s point

of view, would we say that a jurisdiction which does not share this distinction is not European? We learn from this example that the question, to what extent Roman law contributed to European culture is not easy to answer But maybe we have asked the wrong question

If we investigate in Roman antiquity we find out that Roman law acknowledged and even fortified most of the axioms we have referred earlier: liberalism and free competition as well

as some sort of altruism are the formants of Roman rules5) But we find these formants in Greek philosophy and in the Jewish-Christian tradition as well It is difficult or even impossible to judge which of the three possible sources paved the way for the development

of European culture

4) 이에 관하여서는 Zimmermann, Law of Obligation(n 2), 10 ss.; Martin Immenhauser, Das Dogma von Delikt

und Vertrag Zur Entstehung und Wirkungsgeschichte der zweigeteilten Haftungsordnung (Köln, 2006) 참조 5) 예를 들어 Fritz Schulz, Principles of Roman Law (Oxford, 1936), 140 ss (liberty), 189 ss (humanity), 223

ss (fidelity) 참조.

But if we compare Roman law which developed in antiquity (that means between the 1stcentury before and the 3rd century after Christ) and the Roman law which was studied and used from the 11th century onwards we detect important differences These differences may offer an insight into the components of the modern European legal systems and into European culture as well The reasons for the alterations of Roman law between the Middle Ages and the Natural Law-movement, too, must be traced outside Roman law This investigation is not as easy as it may look at first glimpse Before separating Roman law and later influences we must uncover antique Roman law; we must get to know how Roman law was like in antique reality And this goal is difficult to attain, because in looking at the old sources we bring in our modern conceptions and ideas about the rules in question Nevertheless, this investigation is the only one that promises new knowledge about the role

of Roman law in forming Europe Therefore, we should try to unveil influences on Roman law which took place since late antiquity, particularly since the Middle Ages

I selected three examples which can show such influences; one example stems from the law

of obligations, one from the law of property, one from the law of succession With these examples we cover the biggest part of modern private law We have to leave aside family law though we can trace a lot of Roman conceptions in modern family law regulations But the formants of family law differ significantly in each period and each society, depending on the state of social and economic development Therefore, let us concentrate on my three examples

Ⅱ The Law of Obligations

First of all, I will refer to the law of obligations, the set of rules which deals with the obligation of a person to render a performance Within this set of rules, we find a lot of regulations dealing with the compensation in damages They can be distinguished according to the facts which gave rise to the claim to damages The claim can be based on contract or tort The subdivision into contracts and torts is, as we heard before, an inheritance from Roman law This division is not necessary from a doctrinal, dogmatic point of view; we could easily replace it by a rule stating, that any damage caused by someone gives rise to a claim

to compensation – regardless if one did not fulfil a contract correctly or if one caused damages in another way6) I admit that there are some arguments indeed which speak in favor

of the subdivision But I won’t discuss these arguments now Rather, let us take the Roman division for granted, a division which was received into almost every civilian system

In Roman law, contract damages were granted if the debtor did not perform correctly He

was condemned by the iudex (judge) to pay that amount of money, which equalled the gain

the creditor has reasonably expected from the performance of the contract Within the context

of the bonae fidei iudicia this amount was indeed called the id quod interest creditori 7) Every sentence was expressed in a sum of money; the judge was not able to condemn the debtor

to specific performance The circumstances under which the debtor had to pay damages as

well as the amount of damages differed according to the claim (the actio) the creditor has raised The most important difference was the one between actiones stricti iuris and actiones bonae

fidei But common to all claims the debtor was only liable if he was responsible for not having

performed The sources argue: si per eum stetit quo minus solvit 8) In terms of the bonae fidei iudicia this responsibility arose from offending the bona fides, good faith, the standard which prescribes

how a diligent debtor should behave and perform

Tort claims or delictual claims arise from hurting someone outside a pre-existing obligation The main provision regulating tort claims, which later formed the basis for the European law

of torts, was laid down in the lex Aquilia de damno dato This lex dates back to the 3rd century before Christ9) Its claims where based on the fact that one person injured another’s property

by way of fault; he must have committed damnum iniuria datum – damage caused unlawfully10)

6) 이 개념은 윤리 신학의 토대 하에 자연법 운동 중에 생성되었으며, 여전히 일부 유럽의 법전편찬과 정에서 지배력을 발휘한다 예를 들면 §§ 1293 ss ABGB (Austria).

7) 이에 관해서는 Max Kaser, Das römische Privatrecht, 1 Abschnitt: Das altrömische, das vorklassische und klassische Recht, 2nd ed (München, 1971), 500 ss.; Max Kaser/Rolf Knütel, Römisches Privatrecht (München,

2005), § 36 n.; Dieter Medicus, Id quod interest, Studien zum römischen Recht des Schadensersatzes (1962); Heinrich Honsell, Quod interest im bonae fidei iudicium Studien zum römischen Schadensersatzrecht (1969); Zimmermann, Law of Obligations (n 3), 826 ss.; Martin Josef Schermaier, in: Reinhard Zimmermann et al (eds.), Historisch-kritischer Kommentar zum BGB, vol II, §§ 280-285, n 46 ss 참조.

8) Kaser, Das römische Privatrecht I (n 6), 513 ss.; Zimmermann, Law of Obligations (n 3), 781 ss.; Kaser/Knütel,

Römisches Privatrecht (n 6), § 36, n 13 ss and 18.

9) 정확한 사실의 문제에 대해서는 다음을 참조 William M Gordon, Dating the lex Aquilia, (Acta Juridica, 1976), 315 ss; Zimmermann, Law of Obligations (n 3), 955 ss.

10) 참조 Maria Floriana Cursi, Iniuria cum damno Antigiuridicità e colpevolezza nella storia del danno Aquiliano (Mailand, 2002); Nils Jansen, Die Struktur des Haftungsrechts Geschichte, Theorie und Dogmatik außervertraglicher

All three requisites: damnum (damage), iniuria (fault) datum (has been done) where subject to discussions and explanations Iniuria was identified with culpa, meaning that the one who

caused damage behaved unlawfully, in a way the creditor did not expect and therefore does not have to accept From the 2nd century before Christ this meaning of culpa was adopted into the terminology of contractual damages A debtor who was responsible for not having

performed was in culpa 11) Later on, in the time of classical Roman law, jurists distinguished between certain degrees of responsibility, depending on the standard of care the debtor was supposed to comply with according to the respective kind of obligation They did not only

distinguish between culpa and dolus, but they separated culpa into culpa levis and culpa lata thus

defining different standards of reasonable conduct Who behaved carelessly in a way that no

one else would have behaved under these circumstances, committed culpa lata 12) But who

showed up as diligent as possible and nevertheless caused damage, can be blamed for culpa

levis only The debtor who gained advantages from the contract concluded, was normally liable

for the whole range of culpa, including culpa levis, whereas the debtor to a contract which only favoured the creditor was only liable for dolus und culpa lata This differentiation13) is common

to all European jurisdictions The distinction between dolus und culpa on the one hand and the different forms of culpa on the other provides a good example for how Roman law formed

and determined modern European law

But the meaning of culpa has changed considerably Whereas in Roman law it depicted undue or unreasonable conduct, the medieval jurists understood culpa as bad conduct In Christian theology culpa stood for “sin” (peccatum); culpa in this sense blamed for wrongdoing14)

Culpa was no longer defined as acting contrary to how my counterpart expected me to act,

but acting against what God expected Culpa therefore was regarded as defective will, showing that the will of the actor was not in line with the will of God This connotation of culpa is

still valid in modern criminal law: We punish people because of their bad intention The one

Ansprüche auf Schadensersatz (2003), 202 ss.

11) 참조 Kaser, Das römische Privatrecht I (n 6), 505 ss.; Schermaier, HKK-BGB (n 6), §§ 276-278, n 7 ss.; Kaser/Knütel, Römisches Privatrecht (n 6), § 36, n 18 ss.

12) D 50,16,213,3 (Ulp 1 reg.): Lata culpa est nimis neglegentia, id est non intellegere quod omnes intellegunt.

13) “Principle of utility”라고 불린다 참조 Zimmermann, Law of Obligations (n 3), 198 ss.; Kaser/Knütel,

Römisches Privatrecht (n 6), § 36, n 20; Dieter Nörr, Die Entwicklung des Utilitätsgedankens im römischen

Haftungsrecht, ZRG (RA) 73 (1956), 68 ss.

14) Schermaier, HKK-BGB (n 6), §§ 276-278, n 28 ss.

who tries to murder someone or who only plans to murder is subject to punishment although

he did not yet kill This connotation of culpa also dominated civil law up to its codification and, even more, up to now Donellus for example, a famous French jurist of the 16th century

formulated culpa peccatum est, culpa is sin15) His view prevailed up to the 19th century; we can

find it, for example, in Rudolf von Jhering’s writings16) And if we look to modern law books

we are immediately confronted with the rule that culpa is the same criterion for responsibility

throughout the law, that means in both criminal and in private law

This is the reason why civilian jurisdictions had immense problems to accept the model of strict liability, meaning that someone is liable without being at fault We can trace these problems both in contract law and in tort law In contract law jurists could hardly admit that

a debtor is liable for the only fact that he did not fulfil his obligation They where used to condemn only the “guilty” debtor, the one at fault A good example for this kind of misunderstanding is the term of “Pflichtverletzung” in German Law17) This sort of dogmatic barrier has its counterpart in tort law: Because people are only punished if they are at fault,

it seemed consequent that only dolus or culpa should result in liability for compensation At the

end of the 19th century new techniques in production and transportation raised the question, whether someone could be liable for the sole fact that he used or ran a dangerous item18) Think, for example, of railway accidents or mining accidents Wouldn’t it be unjust that the dozens of injured men are barred from claims in damages against the mining company for the

only reason that they could not prove the company’s culpa? The mining company and the

railway enterprise gain profits from incurring a certain risk It seemed just that they should

be responsible if the risk materializes in doing harm to the workers or passengers: qui habet

commoda debet ferre onera But how should we reconcile this responsibility with the model of culpa? Some, for example Jhering, argued that he who creates a risk is in culpa for the very

reason that he created the risk19) But in almost all countries new laws where promulgated

15) Hugo Donellus, Commentarii de iure civili, in: idem, Opera omnia, Bd IV, Lucca 1764, lib XVI, cap VII,

§ 2 (col 663): “Omnis autem culpa peccatum est” ; Commentarii in selectos quosdam titulos Digestorum, in: idem,

Opera omnia, Bd X (Lucca, 1766), ad legem Aquiliam (ad D 9,2), cap 1 n 5 (col 3).

16) Rudolf v Jhering, Das Schuldmoment im römischen Privatrecht Eine Festschrift (FS für Birnbaum, 1867), in: idem,

Vermischte Schriften juristischen Inhalts (Leipzig, 1879), 155 ss.

17) 이에 관해서는 Schermaier, HKK-BGB (n 6), 6 ss and 91 ss 참조.

18) 참조 Regina Ogorek, Untersuchungen zur Entwicklung der Gefährdungshaftung im 19 Jahrhundert, (1975).

19) 전보를 이용하는 것은 위험한 일이며, 그러므로 culpa가 있다 Rudolf v. Jhering, “Schadensersatz bei

which granted claims if someone was injured by risky things or risky conduct Thus, the so-called “Gefährdungshaftung” was re-invented We have to say that it was re-invented, because we know that already Roman law granted special claims if dangerous things, for example animals, caused damage But those roots have been forgotten Since the Middle Ages

these Roman rules have been interpreted as special cases which nevertheless require culpa 20)

And blinded by culpa which was deemed to be an emanation of the all-prevailing will-principle

the modern Jurists too where unable to depict a unique, undivided law of torts, based on a single theory of attribution of responsibility This is why we nowadays learn and teach that

tort law is based on two pillars of responsibility: culpa and “Gefährdung” (risk).

Let me conclude: Decisive for the development of modern tort law was the concept of culpa

The term stems from the Roman law of torts and was equally used in the Roman law of contracts But only the external form survived in late antiquity and the Middle Ages: its content

was moulded by the Christian concept of culpa as peccatum In connection with the will-theory,

equally deriving from Greek philosophy and moral theology, this Christian concept prevailed

and still nowadays dominates modern European law The change of the concept of culpa from

unreasonable conduct to bad will was not understood neither by medieval nor by modern jurists They took it for granted that Roman jurists thought the same way than they did

Ⅲ The Law of Property

Similar developments can be found throughout the law of obligations21) But the next example which I want to present forms part of the property law This is not the only difference: our second example does not deal with the transformation of a Roman concept but shows how a social conflict is considered and decided under totally new aspects The law

of property contains all the rules which allocate and defend the right on things, as – for

nichtigen oder nicht zur Perfection gelangten Verträgen”, JhJb 4 (1861), 1 ss (111).

20) Reinhard Zimmermann, Effusum vel deiectum, in: FS für Hermann Lange zum 70 (Geburtstag, 1992), 301 ss.; Schermaier, HKK-BGB (n 6), §§ 276-278, n 39 and 46.

21)이에 대한 다른 예시들은 James Gordley, The Philosophical Origins of modern Contract Doctrine (Oxford, 1991)

참조 같은 내용, “Tort Law in the Aristotelian Tradition”, D G Owen (Hg.), Philosophical Foundations

of Tort Law (Oxford, 1995), 131 ss.

example – ownership (dominium) and possession My example deals with a very famous

controversy22): If a person A forms a new thing out the matter belonging to another person

B, the question arises who should be the owner of the new thing If, for example, A creates

a statue out of the timber of B, or makes wine out of the grapes of B, who should be the owner of the statue or the wine? Such cases were later perceived as “specification” because

one had made a new species (speciem facere) out of another’s matter The cases were, in classical

times, vividly discussed and solved in totally different ways23): The Sabinians, named after their

founder Massurius Sabinus, held that B should always acquire the ownership of the new thing They argued that without the matter of B the new thing would not exist: quia sine materia nulla

species effici potest The Proculians, the followers of the early-classical jurists Nerva and Proculus,

held that A should be owner of the new thing The thing did not exist before, and by producing it A was the first to have it in possession Because the one who primarily possesses

a thing acquires ownership trough occupation, A becomes owner of the product

Though we know about the solutions and arguments we do not know how this cases where judged in everyday life Maybe the mischief of B, the former owner, was to prove that he has been the owner of the matter For if A produces wine out of my grapes it is thoroughly impossible to prove that those grapes were mine From this point of view the Proculian solution seems more practical because the owner of the previous thing loses his right anyway Whatever practice was in place, and no matter which of the two schools prevailed in later classical times, we are informed at least that in the course of the 2nd century AD Proculians held that the one who lost his property through specification should be indemnified by the new owner24) According to the Sabinians the problem of indemnification did not even arise because B, the owner of the matter, acquired the new thing too But what about the investments of A, the producer? He could have invested either his own materials as well or

at least his work, time and skill If he used his materials and thus combined his matter with the matter of B, the Roman jurists would not speak of specification, but of accession25) They

22) 이에 관해서는 Theo Mayer-Maly, Spezifikation: Leitfälle, Begriffsbildung, Rechtsinstitut, ZRG (RA) 73 (1956),

120 ss.; Martin Josef Schermaier, D 41,1,24 und 26 pr “Ein Versuch zur Verarbeitungslehre des Paulus”,

in: Zeitschrift der Savigny-Stiftung für Rechtsgeschichte, ZRG (RA) 105 (1988), 436 ss.; idem, Materia Beiträge zur

Frage der Naturphilosophie im klassischen römischen Recht (1992), 191 ss 참조.

23) 참조 Gai inst 2,79; D 41,1,7,7 (Gai 2 rer cott.).

24) Kaser, Das römische Privatrecht I (n 6), 431; Kaser/Knütel, Römisches Privatrecht (n 6), § 26, n 17 ss 25) D 6,1,3,2와 5 (Ulp 16 ad ed.); D 6,1,23 (Paul 21 ad ed.); 다른 예시들은 Kaser, Das römische Privatrecht

would pay regard only to the fact that materials of two persons were inseparably connected

In some of these cases (especially the cases of confusio or commixtio) most were of the opinion,

that the new thing, the product of A’s and B’s matter, belongs to A and B as well, that they become co-owners or joint owners of the new thing

But let us come back to the case, where A contributes time and work only In that very case the jurists were only interested in what happened to the property of the matter belonging

to B They did not pay regard how much time or skill A contributed This is surprising, especially from an economic point of view Even more surprising is the solution which

Justinian suggested26): According to him the producer A acquires ownership if the new thing

cannot be brought back into the previous status (in pristinam speciem non potest reverti) But if it

is possible to alter the thing again and to restore the original matter, then the new thing is

attributed to the owner of the previous matter This solution was called the media sententia,

because it formed a compromise between the Sabinian’s and the Proculian’s solution It is Salomonic, but like the judgment of Salomon it seems wilful and unpractical It only pays regard to the fact that the restitution of the previous matter is possible or not; the value of the work is completely neglected Think for example of the case where A fabricates a statue

If he uses wood the original wooden block can not be reproduced from the statue If he instead uses gold, the original bar of gold can be reproduced by melting the statue down to the bar Neither the fact that the statue is – in both cases – a new thing nor the work and time invested by the producer are taken into account

As a matter of fact all three solutions, the one of the Sabinians, the one of the Proculians

and at least the media sententia found their way into the Corpus Iuris Civilis of Justinian and where thus handed down to the jurists of the Middle Ages Most of them accepted Justinian’s

solution27), and nobody paid regard to the value of the invested work or the skill of the producer This point of view changed considerably in the Natural Law movement of the 17th

century Inspired by Greek, especially Aristotelian philosophy Grotius argued that both parties

contributed to the new thing28): The owner of the material brought the matter, and the

I (n 6), 428 ss.; Kaser/Knütel, Römisches Privatrecht (n 6), § 26, n 9 ss 참조.

26) D 41,1,7,7 (Gai 2 rer cott.); I 2,1,25 일부는 이 절충설이 이미 고전기에 다듬어졌고, 더 심화된

논의가 후대에 다루어진 것이라고 본다 Schermaier, ZRG (RA) 105 (1988), 479 ss.

27) 참조 Harald Elbert, Die Entwicklung der Spezifikation im Humanismus, Naturrecht und Usus modernus, Diss

(Köln, 1969), 66 ss.

producer brought the new form, the nova species Because every thing is constituted by both matter and form (materia et species), Grotius could argue that the producer added the form to the other’s matter and therefore caused a sort of accessio 29) The consequence of this argument was that if both contributions are more or less equivalent (that means that the value of the one does not exceed the other by far), the new thing becomes common to both parties A and B, producer and owner of the material, become co-owners of the new thing.

This point of view led to a paradigm shift Though even Grotius did not pay regard to the

value of the work, his solution brought to the jurist’s mind that the new thing is the product

of two identifiable contributions A few generations later the jurists began to replace the factor

“form” by the factor “work”, thus estimating both time and skill the producer invested This

idea was born by the English economists, especially by John Locke 30) who regarded human work as the only justification to acquire property31) This idea flourished in the 19th century

for example in the work of Karl Marx 32) and thus paved the way for the interesting solution

of the German BGB According to German law the producer of the thing always acquires ownership unless the value of his work is much less than the value of the matter (§ 950 BGB) This resembles the Proculian solution because it favours the producer, but in fact it

is the final outcome of Grotius’s invention, that the new thing is the product of two separate

contributions Nevertheless German legal historians still quarrel if the Proculians already wanted to favour work over matter33) This is a good example of how modern developments are projected into the past and determine our interpretation of antique law Modern legal historians sometimes ignore the fact that today’s legal practice is the outcome of a long and winding development and that the past did not present the same variety we know today This does not mean that Roman law was primitive compared to modern law The variety of Roman law was different and it must be our aim to detect the differences

28) Hugo Grotius, De iure belli ac pacis (Paris, 1625) (repr Hildesheim 2006), lib II, cap VIII, § XIX, 2 29) 같은 논의가 이미 중세 법학에서도 있었으나, 유스티니아누스 황제의 media sententia모델에 관한

것만 다루었다.

30) John Locke, Treatise of Civil Government, First ed (London, 1698), esp § 27.

31) 이에 관해서는 Reinhard Brandt, Eigentumstheorie von Grotius bis Kant (Stuttgart/Bad Canstatt, 1974), 69 ss.; Manfred Brocker, Arbeit und Eigentum Der Paradigmenwechsel in der neuzeitlichen Eigentumstheorie (Darmstadt,

1992), 125 ss 참조.

32) Brocker, Arbeit und Eigentum (n 30), 326 ss.

33) 이것에 대한 예시는 Schermaier, Materia (n 21), 227 s에 인용되어 있다.

With regard to our example of specificatio we can sum up as follows: The three solutions

which Roman law offered for the conflict between the owner of the matter and the producer did not pay regard to the value of the work All three solutions were, from the modern point

of view, economically insufficient though dogmatically arguable The modern aspect that only human work creates new values comes in only at a very late level of European legal history

As its foundation we identified Grotius’s theory of accession which embraced specificatio The

innovation to evaluate human work developed in the late 18th and the 19th century, coinciding with the rise of the European codifications The problem itself and its possible solutions have been formulated by the Roman jurists, but the modern outcome is product of Greek philosophy, the balance of matter and form, on the one hand, and modern economic theory

on the other

Ⅳ Law of Succession

Let us finally touch an example drawn from the law of succession This example deals with

a more general issue than the two before, and it focuses on a very early change of antique Roman law It deals with the order of succession in case someone deceased without leaving behind a will In that case we speak of intestate succession Older Roman law of intestate

succession was dominated by special family relationships which were known as manus and

patria potestas Both were emanations of the patriarchal power of the pater familias The

relationship to his wife as well as to his children was designed after the example of dominium,

the ownership on goods and slaves34) Manus over his wife and the patria potestas over the children were as absolute as ownership of goods They included the ius vitae necisque, the right

to capital punishment of both wife and children Manus, the power exercised over the wife, means “hand” in its original meaning “Hand” or manus shows power and control, as we know from the mancipatio, which means: capture by hand, or which is also expressed by the

manumissio, which means: releasing a slave from one’s hand.

34) 로마법상의 친족관계에 대한 포괄적인 개관은 Richard P Saller, Patriarchy, Property and Death in the

Roman Family (Cambridge, 1994) 또한 Kaser, Das römische Privatrecht I (n 6) 58 ss.; Kaser/Knütel,

Römisches Privatrecht (n 6), § 12, n 4 ss 참조.

In Roman law relationship was defined according to these forms of rights or powers

People who have the same pater familias or had have the same wouldn’t he have died before were called adgnates This agnatic relationship was decisive for all family affairs If for example the father died leaving children behind, the proximus agnatus, the next agnate, was deemed to

be their tutor35) It also dominated intestate succession: If a pater familias died all those persons who attained liberty from familial power, who were freed (so to say) from manus or patria

potestas, became heirs36) They were called the sui heredes, “his heirs”, an expression which shows that during lifetime of the deceased these heirs belonged to him Among these sui

heredes was the wife in manu and the children living in the household If the man was married

but did not acquire manus over his wife (what was legally possible) she was not a heir because with the death of her husband she did not gain freedom from manus The same is true for children who did not live under patria potestas in the very moment their father died: If they

were emancipated37), or if daughters married a man who acquired manus they did no longer belong to the potestas of the father What could be an advantage while the father being alive,

could become a drawback in the occasion of the father’s death Boys for example were

emancipated to enable them being their own pater familias and attaining ownership on things and manus or potestas on persons by themselves But in the case of their father’s death they did not belong to the group of sui heredes and therefore did not succeed their father in case

of his intestate decease

If we compare these two examples, the wife without manus and the emancipated son we

detect an important difference: The wife never belonged to the family of her husband and is therefore not related to him The son once belonged to the family, because he stood under

patria potestas; but since being emancipated he forms a family by himself Emancipation in this

instance brought him a position similar to the case the father has died Therefore the son is

related to the pater familias; he belongs to his agnates but is not suus heres any more This is

also true for a daughter who has been emancipated Let us take as a third example a daughter

35) Gai inst 1,155 s.; cfr Kaser, Das römische Privatrecht I (n 6), 87 s.; Kaser/Knütel, Römisches Privatrecht (n

6), § 62, n 6 ss.

36) Pasquale Voci, Diritto ereditario romano, 2nd ed., vol II: Parte speciale (Milano, 1963), 5 ss.; Kaser, Das

römische Privatrecht I (n 6), 95 ss and 695 ss.; Kaser/Knütel, Römisches Privatrecht (n 6), § 66, n 1 ss 37) 이것은 법률행위에 의해 patria potestas에서 해방된 것을 의미한다 참조 Kaser, Das römische Privatrecht

I (n 6), 68 ss.; Kaser/Knütel, Römisches Privatrecht (n 6), § 60, n 37 ss.

who married a man in manu Also in this case the daughter once belonged to the family of the pater familias But by marrying in manu she left the family and joined a new one Therefore she is neither heres suus (his heir), nor does she belong to his agnates The same is true for

a son who changed the family by being adopted by another pater familias.

From these examples we learn a lot about agnation and succession: If we compare the wife

sine manu, the emancipated son and the married daughter we see, that none of them is heir

of the pater familias, but only the son is one of the agnates Therefore he can inherit the property if the pater familias had no sui heredes As two principles we can formulate that: a) every person who stands under the power of the pater familias, is heres suus,

b) every person who stands or once stood under the power of the pater familias is agnate

to him, unless he or she changed the family

The wife sine manu has never been under power of her husband; therefore she is neither

suus heres nor does she belong to his agnates The children of emancipated sons are agnates

to the pater familias, but they are not, if the son has been adopted into another family The children of emancipated daughters, even if they remain sui iuris, never belong to the agnates

of the pater familias Agnatic relationship and succession are built upon the forms of power which the pater familias can exercise or – at short – built upon the institute of pater familias

itself

This system of agnatism and intestate succession was weakened as early as the praetorian edict won control over the development of civil law This might have been in the 2nd century

BC already The praetor introduced a new system of intestate succession, which on the one

hand respected the system of sui heredes, but on the other favoured cognatic relationship, i.e

the relationship by way of birth38) In the pyramid of succession the first position was held

by the liberi, the children of the deceased That means that all children he fathered, regardless

if they have been under his patria potestas, are intestate heirs This new system concurred with the old one because if the pater familias did not father children but had only adopted or arrogated sons, these sons or the wife in manu came next This second position, called unde

legitimi, was followed by a third, called unde cognati, in which all other relatives, his parents,

brothers and sisters, uncles and aunts etc were taken into account At least the wife of the

38) 참조 Voci, Diritto ereditario II (n 35), 10 ss.; Kaser, Das römische Privatrecht I (n 6), 697 ss.; Kaser/Knütel,

Römisches Privatrecht (n 6), § 65, n 11 ss.

deceased was granted the property if the first three positions have been void This forth

position was called unde vir et uxor and was relevant in two cases: if a man died and left a wife sine manu and if a women died and left a man without having other legitimate heirs.

We can see from this overview that the praetorian succession was kind of a compromise between the agnatic model and a pure cognatic one In the course of the next centuries special law granted the right to succession between mothers and children39) But the end of the agnatic system of succession was reached only with the influence of the Jewish-Christian tradition, which followed strictly a cognatic law of succession This influence prevailed in the

4th century AD when Christianity became the official religion under Constantine the Great and

his successors40) and ended up with a totally new concept of intestate succession by Justinian

(Nov Iust 118)41)

The reason for the early changes initiated by the praetorian edict, which first took cognatic

relationship into consideration, was the diminishing importance of paternal powers like manus and patria potestas But this was, as I said, only the first step towards a modern system of

succession from today’s point of view Therefore we can trace at least three steps that led from the agnatic system of succession towards the cognatic system, which only pays regard

to blood-relationship (consanguinity) As a first step we identify the praetor’s initiative to strengthen relationship outside the old family system As a second step we can name different laws of the emperors of the 1st and 2nd century which granted mother and child a mutual right

to succession The third step was in fact the most important; together with the Christian believe the Jewish-Christian principle of cognatic succession swept away the traditional agnatic model which was already mingled with praetorian and legal alterations

Summing up the chapter on the law of succession we see that the decisive change of Roman law took place already in antiquity There are, nevertheless, enough testimonies in the Corpus Iuris which show the old law of succession But they are hidden behind the changes

39) The Senatusconsultum Tertullianum (Hadrianus 치세의 원로원 결의)와 the Senatusconsultum Orfitianum (a 178);

이에 대해 더 자세한 것은 Voci, Diritto ereditario II (n 35), 17 ss.; Kaser, Das römische Privatrecht I (n 6), 701 ss.; Kaser/Knütel, Römisches Privatrecht (n 6), § 66, n 18 s를 참조할 것.

40) 참조 Voci Diritto ereditario II (n 35), 36 ss.; Max Kaser, Das römische Privatrecht, 2 Abschnitt: Die nachklassischen Entwicklungen, 2nd ed (München, 1976), 497 ss.; Kaser/Knütel, Römisches Privatrecht (n

6), § 66, n 20 s.

41) Voci Diritto ereditario II (n 35), 54 ss.; Kaser, Das römische Privatrecht II (n 39), 510 ss.; Kaser/Knütel,

Römisches Privatrecht (n 6), § 66, n 22 ss.

made by the later emperors and Justinian and appeared more clearly only when the Institutes

of Gaius were discovered in 1816 This is why the European tradition since the middle-ages

took the cognatic law of succession for granted: being on the one hand the law of the church and on the other the law of the Roman emperors

unlawfulness and signified unexpected behaviour; since the middle-ages it signifies wrong

behaviour in the sense of bad conduct Acquisition of ownership through specificatio was first

described by the Roman jurists but it was only the Natural Law school which gave this institute the modern shape, balancing matter and form, or – in the more modern sense –capital and work The law of intestate succession was neatly elaborated in old Roman law already but by and by due to social and religious changes it developed in a different sense,

in a sense not designed for Nevertheless Justinian’s law of succession and even our modern

laws preserved most of the old regulations, especially those which deal with the conflict between testate and intestate succession I have to admit that our last example, the perishing

of the agnatic system, is a special case This is because the alterations where already

incorporated into Justinian’s law book, the Corpus Iuris Civilis Therefore the medieval jurists

or the jurists of the enlightenment as well as the Natural Law movement did not do, what they have done in so many other instances: To renew the Roman sources by interpreting them

in a new way In the case of the law of succession they only brought Justinian’s law to a lasting victory

But in so many other instances they formed new law out of the Roman sources, they

produced an usus modernus iuris romani, as we could call it This new law is indebted to Greek

philosophy, to moral theology, to the Natural Lawyers or to other philosophic, sociologic or economic ideas of later times Both the ways and the results of this mutual influence differ