[Transwriting] The Evolution of Roman Law and Its Impact on the Modern Legal System
The legal systems of countries all over the world can be majorly categorised into civil law and common law systems. Taiwan has adopted civil law and its law system is greatly influenced by the Roman Law not only its concept but its terminology. However, while not so greatly influenced, in the common law system famously adopted by the UK and the US, Roman law’s concepts can still be seen. Roman law is the law made during the Roman Republic and the Roman Empire. The systematic promotion of Roman Law was at its peak first under the rule of Justinian the Great.[1] Second the Code of Justinian was re-discovered in the eleventh century[2] then started Rome’s third conquering of the world, by its law, as Rudolf von Jhering would say[3]. In this report, it will be briefly explained how Roman Law’s evolution and its impact on the modern legal system especially that of the Republic of China.
Written Law
Back to the day when the patricians held the knowledge of customary law from the plebians, as time went by, the plebs were not happy about it so the Twelve Tables, the first written law in Rome, were asked to be created. However, like most ancient laws, public law, private law, and code of procedure are all pretty much mixed together. Romans usually did not alter the law of those they had conquered. At first, Roman law, jus civile, only applied to Roman citizens but no foreigners, but by the third century, there was no much difference between, jus civile and jus gentium, a mixture of international public and private law. One of the most important concepts about Roman law is that they believed in laws of nature, jus naturale, all the citizens are equal.[4]
Corpus Juris Civilis
Before Justinian the Great, there were Codex Gregorianus, Codex Hermogenianus, and Codex Theodosianus, but so many laws had been made that the laws themselves often interfered with each other. Thus with the help of Tribonian, a jurist, Justinian enacted the Corpus Juris Civilis, the Body of Civil Law. At the time when Corpus Juris Civilis was made, the Western Roman Empire did not exist anymore due to the invasion of Germanic peoples, and Europe had entered the Middle Ages. Although Roman law had thrived in Eastern Europe, in Western Europe it had to wait until the Renaissance of the 12th century that people started to study Corpus Juris Civilis in universities, known as the revival of Roman law. The reason was that before the 12th century, there was still some sort of Roman law applied in Western Europe but it was a mixture of the Germanic tribe’s law, the barbarized Roman law, and it was not applicable to the thriving economy and society during the Renaissance.[5]
Impact
Romans had complicated governmental and legal systems, and a lot of concepts they had are still applicable such as checks of balances, separation of powers, veto, prescriptive period, and periodic election. Also, the legal reasoning technique that first appeared in Rome is still in use. The civil code of the Republic of China was made by using the Japanese civil code after the Meiji Restoration as one of the references, which was based on the French civil code, used to be called the Code Napoleon, which was based on the Institutiones, a component of the Corpus Juris Civilis. Hence it is easy to see what the civil code of the ROC has inherited. The determination of the degrees of kinship is the same. In ancient Rome, if the father misused his patriarchy, the family council could interfere, and the civil code of the ROC had family council written on it, too. The famous Actio Pauliana can also be found in article 244 of the civil code. The contract of sale on approval of article 384 is also a Roman concept of sales.[6]
Conclusion
Roman law is the most important origin of the modern civil law system[7] and it has been influencing Chinese culture since the end of the Qing Dynasty. William Alexander Parsons Martin, an American Presbyterian missionary and the first president of the School of Combined Learning founded by the Qing government, translated Wheaton’s International Law into Chinese[8], which covered the impact of Roman law on international law.[9] Those who study laws can benefit a lot by comparing the reception of Roman law and the current law[10], and so do those who study translation, for example, I.
[1] 楊崇森. (2022). 羅馬法對現代法之貢獻（羅馬法伴讀）（上）. 全國律師月刊, 1月, 68–94. www.twba.org.tw/publ...
[2] 楊崇森. (2022). 羅馬法對現代法之貢獻（羅馬法伴讀）（下）. 全國律師月刊, 2月, 91–104. www.twba.org.tw/publ...
[3] Graeber, D. (2014). Debt: The First 5,000 Years, Updated and Expanded. Melville House.
[4] 楊崇森. (2022). 羅馬法對現代法之貢獻（羅馬法伴讀）（上）. 全國律師月刊, 1月, 68–94. www.twba.org.tw/publ...
[5] 楊崇森. (2022). 羅馬法對現代法之貢獻（羅馬法伴讀）（下）. 全國律師月刊, 2月, 91–104. www.twba.org.tw/publ...
[6] 楊崇森. (2022). 羅馬法對現代法之貢獻（羅馬法伴讀）（上）. 全國律師月刊, 1月, 68–94. www.twba.org.tw/publ...
[7] 楊崇森. (2022). 羅馬法對現代法之貢獻（羅馬法伴讀）（下）. 全國律師月刊, 2月, 91–104. www.twba.org.tw/publ...
[8] 马祖毅. (1998). 中国翻译简史: “五四”以前部份. (2版(增订版)). 中国对外翻译出版公司.
[9] Lesaffer, R. C. H. (2011). Roman law and the early historiography of international law: Ward, Wheaton, Hosack and Walker. In T. Marauhn, & H. Steiger (Eds.), Universality and Continuity in International Law (pp. 149-184). Eleven International Publishing.
[10] 楊崇森. (2022). 羅馬法對現代法之貢獻（羅馬法伴讀）（下）. 全國律師月刊, 2月, 91–104. www.twba.org.tw/publ...