Turning into an empire from a small city-state, Rome succeeded in creating a peculiar law system that was applied in a fair and just way to the lands under its sovereignty throughout the years. From inception to its legacy that left a mark on the Roman-German law system, the Roman law, which was meticulously prepared, is significant for several countries in the world along with Europe as a whole. This significance is two-sided in terms of the Republic of Turkey; firstly, the land called Asia Minor was governed for centuries by the rules of Roman law as a state of the Roman Empire. Secondly, the first step to turn Roman law into the Roman-German system was taken by the Eastern Roman Emperor Iustinianos in Istanbul. If this action enabling Roman law to exist in modern law had not taken place, Istanbul would have been mentioned in the historical texts as an ordinary place like other capital cities under Roman law.
Therefore, without referring to Roman political history and law, it is impossible to put into words the significance of Constantinople/Istanbul and its relation with Rome. The law was, however, affected by the political and social changes and transformations in the empire.
Despite the class struggle of the Roman State, which marked the first centuries of the republican period (BC 527-510), Rome was handled in a reasonable way. This rational handling enabled Rome to dominate the whole of Italy and prevented the foundations of the state from being shaken by class struggle.
When Rome expanded its boundaries to the empire in the 2ndcentury BC, the ongoing republican regime became insufficient to resolve the problems in Italy. With its population of millions of people, Rome, as a capital city, began to take part in the political turmoil. The power struggle reached high levels, and the proletarius (proletarian) class became the reason for social unrest: The intended land reform was hindered in a violent and probably bloody way, and as a result the process of turning into a monarchy started. The army was added to the power struggle just because the mercenary army system was introduced. The land reform process came to an end immediately after Caesar, who was an army commander himself, wished to bring dictatorship like the Hellenic one and was therefore killed by a Roman group faithful to the republic. After Caesar, a new epoch began: The Empire Period.
Roman society highly criticized and reacted against the idea of making an administration led by one person, but Augustus (Octavianus), who took the lead, supposedly preserved the institutions (the comitia curiataand senate) that belonged to the republican period. Augustus, however, obtained authorization from these institutions and began to govern the Roman State by himself as the “principal” (princeps) person.1 The absolute monarchy descending from father to son got started with the regime of emperor Marcus Aurelius and the military government order began with Severus Dynasty.
The Roman Law
Constantinople/Istanbul had been the capital city of the Eastern Roman Empire for a long time. But the actual significance of the city lay behind the fact that the regulations and decrees enacted in the year 565 were compiled and an oeuvre comprised of all these documents was created.
Undoubtedly, the biggest work of the Roman people was the Roman law. What made Roman law attractive for the jurists were the technical excellence of the Roman law system and the logic of the law it developed. Thus, Roman law bequeathed to civilization an unending legacy in terms of the improvement and changes (mutatis mutandis) -when needed- of reason, knowledge, logic of law, and law in societies. In this way, Roman law played a significant role in building the culture of European common law.
Rome was not the first and only state of the Ancient World; but Roman law is the only law under which age-long scientific studies have been carried out. Considering the imperialism period it ruled through, from the 8th century BC to the 15thcentury AC (23 centuries) and the law system it developed, the jurists, members of the law schools, and philosophers of law still have not studied the rules of law of any state for eight centuries. Besides, Rome created a legal secular regime by separating the religious (fas) rule from the rule of law (ius).
As time passed, other tribes viewed Roman law within the framework of “iusgentium” and they saw the supremacy and justice of the law and experienced it. Also, this experience offered them a valuable field of study in that the Roman jurists created more flexible and soft rules. Made fit for justice for the sake of solving concrete problems with iusgentium, Roman law was transferred to civil law (iuscivile). After the tribes living within the borders of the empire were conferred Roman citizenship (212), everybody fell directly under the field of application of iuscivile.
In the 6th century, the East-Roman Emperor Iustinianos Konstantinopolis brought the work of the jurists together and added legal power to everything. After Iustinianos, during the Middle Age, this corpus was named as Corpus Iuris Civilis. Over the course of this study, the rules that became obsolete and/or invalid were all nullified, and the rules that did not respond to the new requirements were sorted out and new rules were established. Old rules of law were updated via interpolatio.After this corpus was completed, Roman law, which was the best-preserved law system of the Ancient Age, became the law that was known and implemented. It shaped modern laws within years and was very influential. Therefore, the work in question both introduces us to the law in force during that period and also acts as a significant source of information.
After the academic and scholarly studies of the jurists and philosophers, this system was turned into the national law of European countries in the 11thcentury; and after the developments called “the second life” of Roman law, the law opinion and law terminology of most European countries were under the influence of Roman law concepts. The Roman culture, on the other hand, became one of the common foundations of the European Union through the Renaissance.
In the centre of this period lies Constantinople/Istanbul.
Beginning from the establishment of the Roman state between 754-753 BC to the legislation movement of Iustinianos in the 6thcentury AD, the law in Rome underwent a long development process. During this period, the Roman law did not undergo a radical change but changed in a continuous and organic way.
Roman law, the formation and development of which lasted for more than 1200 years, took various forms from the establishment of the Roman city to the death of Iustinianos. This is the result of the fact that Roman Law underwent a change and development in accordance with the political, social, ritual, and religious elements of Roman civilization.
We learned nearly all we know about Roman law from the legal texts that were compiled in the 6thcentury by order of the East-Roman Emperor Iustinianos. The contemporary private law systems affected Roman law and were compiled in Iustinianos’ corpus by researching about the law materials, jurists, the instructors of legal science, and law schools. The legal texts accepted in this corpus are the sum of the law tradition that uninterruptedly continued throughout the centuries. The law, in this period, gained a distinctive feature that determined the character of the future of Roman law.
East-Roman Empire and Constantinople
Roman law, which was compiled in the 6th century in Constantinople, which is today known as Istanbul, has been the subject of scientific studies since the 6th century in Europe, when European legal science was emerging. As is specified in the previous pages, all people living within the borders of the empire were conferred citizenship by the mandate (ConstitutioAntononiana) issued by the Emperor Caracalla in 212 BC. From this point on, Roman law became a law applied to all people, not only Roman people.
Among the reforms that were made since the late 3rd century, the leading reforms were, undoubtedly, the ones that were brought about by Diocletianus and Konstantinos. They were the reforms that started the political, social, economic, and cultural transformation of the ancient world.
The center of gravity in the empire that embraced the whole Mediterranean and extended over the Caspian Sea began to head toward the east from the west. It is clear that despite its prestige and reputation, Rome couldn’t continue to serve as the political and military capital city of the empire in an effective way. For this reason, the emperors2 had a try at various cities3 with an eye at making each place capital; however, none of the cities were found satisfying for being the capital city until Constantine the Great set his heart on Byzantion/Byzantium.
Byzantion was established and developed in time. At first, it was just a trade colony of the Megaran people. One of the most significant events that took place during Constantine the Great’s period was that Byzantion became the capital city in 330, the little settlement turned into the center of the world, and all the emperors began to live in this city. After Diocletianus carried the center of the empire to the east because of security and administrative reasons, Constantine the Great, who was aware of the fact that the danger wasn’t over, got Byzantion to be built as the capital city. Taking its name from the builder, the city made history as Constantinople (Konstantinopolis). Known as Byzantion until the year 330, the city was named “New Rome” (Roma Nova) since Rome, the capital city of the Roman Empire was taken as an example during the planning period and the city was constructed with precious works brought from both Rome and different areas of the empire, Greece in particular. After 330, it took the name of Constantinople.4 The split of the Roman Empire into east and west in the year 395 turned this city into the capital city of the East-Roman Empire and the center of civilization, culture, and religion.
Byzantion was constructed by leaps and bounds with ornaments, featured and decorative objects, and gravestones and statues brought from all concerns of the empire.5 Since it was located in a strategic position in terms of transportation, trade, and defense, an since it served as the capital city surrounded by water on three sides and protected by land walls, Constantinople, situated between Asia and Europe, remained in the central position of the empire until the fall of the Roman Empire.6 However, being unable to assimilate the East in its heydays, Rome began to be “Easternized”.
The Byzantine Empire was a Christian community since Constantinople was sanctified in the year 330. The fact that Christianity was accepted as the official religion of the Roman Empire affected the society and law structure in some respects. The state and religion were intertwined. After the East, in other words, the Church had great success, it did not ignore history and came up on Rome’s foundations7 and used the framework that the Roman Empire provided. It inherited the institutions, the style of organization, the administrative system, and the rules from Rome.
All the developments transforming the Roman Empire, Roman people and law system continued nearly 50-60 years after the fall of the first empire. After that, the Dominatus period began and had its own new character. Roman people were not the citizens but the national subject; the emperor, on the other hand, is Dominus et Deus, in other words, “master and God”. The emperor dominated over everything, even the church after Christianity became free in the empire and was adopted as the official religion by the emperor.
During this period, in full-fledged officialdom, bureaucracy came into existence. People were split into different classes. The organization of judges and the tax system changed.8 During the period in which autocracy entirely reigned over the empire, it was impossible for people other than the emperor to create a law and during this period, there were no classic characteristics of jurists. The only source that created the law was “mandates of the emperor”, and the only law-maker was the emperor.
Constantinople and Corpus Iuris Civilis
One of the most distinguished law schools of this period was in Constantinople. In the year 425, a law school was established upon the mandate of Theodosios in Constantinople. The Roman law used to be taught in these schools and studied as a subject in scientific studies. The period of study was, at first, four-years but then it was extended to five years. In order to provide qualified education for the students, the emperors intervened in the school many times. As ordained by decree, public law education took the place of private law education. And therefore, the legislation, which was prepared in public offices under the control of high-ranking bureaucrats, most of whom studied law, reflected the existence of a certain law culture.
Until the 5thcentury, Athens was a significant area in terms of prominent philosophical schools within the Roman Empire. When compared to the other cities, private lessons and conferences were in more demand in Athens. At the end of the 6thcentury, the Christianity victory adversely affected Athens’ school; the invasion of Greeks of Visigoths wrecked intellectual life of Athens. And the law school opened in Constantinople also had an effect on this issue.
After Constantinople became the center of the empire, lots of rhetoricians and philosophers came here. It is actually known that there was a kind of university here before Theodosios; and many professors and students came to Istanbul from Africa, Syria, and other countries.9 In accordance with Theodosios’ mandate about the establishment of a high school, the number of professors would be thirty-one; and one professorship for the philosophy department and two for the law department would be assigned as well. In a short span of time, this school in Istanbul turned into a center where the prominent intellectuals of the empire came together.
The palace in Constantinople also provided a service as a shelter for classic Greek culture. A distinguished community that was composed of scholars had lived here for centuries; and a great deal of works by Plato, Euclid, and Sophocles were saved from being destroyed since the scholars meticulously copied these Greek texts.
During the period of Theodosios, Codex (decrees of the emperor), which survived until today, was published. Including all the decrees enacted during the period from Constantinos to Theodosios, the Codex is the product of 8-years of extensive research; and it was prepared by taking Codex Gregorianus and Codes Hermogenianus as models, which did not survive until today except for fragments. This work is significant in that it covers the period during which Christianity was the state religion, transfers all the amendments of the new religion into law, and implements the regulations.
Corpus Iuris Civilis was the greatest legislation movement in legal history that caused Roman law to affect the modern national law. It took place during the period of Iustinianos in Constantinople (Istanbul). The fact that Roman law, which was established in Constantinople, affected all European laws enabled us to attribute a special importance to Istanbul in the world legal history.
Having a history going back to a time when Latin culture dominated over the area, Iustinianos, from Constantinople in the 6th century, controlled the empire that extended over Mesopotamia from the Strait of Gibraltar. Thanks to the endeavors of Iustinianos,10 who was the emperor of East Roman Empire between the years 527-565, Roman law was compiled in written format. This was his first success. There was, actually, another reason lying behind Iustinanos in this endeavor. While attempting to compile the law, Iustinianos actually wished to politically and geographically return the Roman Empire to its previous glorious condition. He, by ensuring unity in legal terms, aimed for strengthening the political association that he provided with the successes he gained in various wars. During the last five centuries, Roman law turned into a clumsy pile of the mandates of emperor, in which the opinions of some jurists were also included. The majority of and strength of the laws and mandates differ, as there was a lack of an archive to bring all these together. In short, this muddle of documents created the need for the revision of the whole legal system by official authorities and preparation of a balance sheet of the progress that had lasted for centuries. What’s more, according to Iustinianos, a legal system united on the basis of Roman traditions was necessary for state security.
In Roman legal history, since the dynamics of the society, politics, and the empire had changed and developed throughout the years, Roman law peaked in the period called the “Classical Law Period”. During this period Roman law became old and became an inadequate response to society’s needs. Iutinianos wished to revalidate Classical Period law so as to enable it to respond to the new requirements and gather all the mandates of the emperor in one Codex. To do so, he brought Tribonianos to this legalization movement that he anticipated completing in ten years. Tribonianos made a committee of ten people, lawyers and professors, to prepare Corpus Iuris Civilis. Afterwards, this committee revised and sorted out the works of the Roman jurists and mandates of the Roman emperors, they corrected all the deficiencies and put them in order. During this period, this committee had to read nearly 2000 books comprised of more than 3 million lines.
This compilation has been called Corpus Iuris Civilis since the Middle Ages. Corpus IurisCivilis was prepared in Constantinople between the years 528-534. Iustinianos’ main goal was not to “transfer Roman law to the next generations, put Roman law on paper, and save it from getting lost” however, if Corpus Iuris Civilis had not been prepared, then it would not have been possible for Roman law to affect so many modern laws. Since the purpose was to compile the laws to be enforced during period it was prepared, Corpus Iuris Civilis was thought of as a law, but it also carried the characteristics of the legal compilations in contemporary laws. Today, when legislation rules are gathered they are put in a system ranking from general to private. In Corpus Iuris Civilis, the rules that fulfilled the legal requirements of the period were systemically gathered, but these rules were pertaining to several special cases. For this reason, it was not easy to establish general rules that applied to every case while considering only a few cases. Nearly all the rules were written in Latin, but in fact, Greek was the spoken language in the East-Roman Empire. Thus, Corpus Iuris Civilis was generally used in law teaching. This compilation of Iustinianos was prepared in 3 sections (Institutiones, Digesta and Codex), and later, the 4th section (Novellae) was added.
The ones doing the compilation were called compilators. As stated above, the compilators, making the necessary changes according to the amendments in the law by the mandates of the previous emperors and Iustinianos, gathered together the texts of the classical period.
Institutiones might be seen as a student book having legal power. Although it was prepared as a course book, it gained legal power after it was published as an expression of the absolute will of the emperor.
Digesta was, however, created in the year 530. The council began to work to compile some parts of the classical jurists’ works to be used according to the requirements of the time. The council also worked to sort the unnecessary ones out, sweep away the discrepancies, and to make changes in the old concepts. The members of the council revised the classical works and necessary changes called interpolatio were made in the text; they eventually completed their work in 533. The changes made in the texts to modernize the archaic texts were called interpolatio. There were various reasons to make interpolatios. For example, the allocation of the goods was done as mancipi-res necmancipi; and res mancipi goods were transferred by mancipatio or in iurecessio and res necmancipi goods were transferred by traditio. During the period of Iustinianos, since the allocation of movables-immovables was preferred to the allocation of the goods made by res mancipi-res nec, we obviously see that traditio was applied for all the goods in this period as a transfer process. For this reason, traditio was preferred over the concepts mancipatio and in iure cession; and movables-immovables were written instead of resmancipi-res necmancipi.
Similarly, interpolatio was applied in order to conveniently or effectively eliminate dissidence between classical jurists due to religious or moral reasons. Despite the fact that all the works of the classical jurists were reviewed and amended to prepare Digesta, the works of the prominent jurists of that period survived until today. However, the violation of the original Roman law was widely criticized.
Codex is the third part of Corpus Iuris Civilis. The mandates are arranged from old to new. The name of the emperor was written at the head of the mandate and the date was given at the end. Long mandates were broken into paragraphs. From that day forth, only Codex would be used in the courts. It started being prepared in 528 and was published in the year 529. Considering other mandates enforced during the period of four years in which Institutiones and Digesta were prepared, Codex was revised and republished in 534 with necessary additions and amendments. This Codex destroyed other three Codex that were in existence and this last Codex became compulsory for the whole empire.
It was this compilation that would pass over the Middle Age Italian schools and it would comprise one part of the legal traditions of some countries such as South Africa, France, and Germany. What is more, this compilation was the symbol of Iustinianos’ determination to secure administrative unity that was dependent upon Roman principles rather than Greek ones.
The landscape where Roman law was born and grew up began in Rome and was established on seven hills and the life of the Roman Empire. It ended up in Istanbul, another city established on seven hills. The city of Istanbul was one of the two great centers where the law was developed, not only because Istanbul was the country-of-origin of Iustinianos’ compilation, but also because it was the capital city of the Roman Empire from the beginning of the 4th century. The function of Roman law in Constantinople was not solely to protect the city. The sense of Eastern law in that period was in conflict with the sense of Roman law; and so a new law system developed which appealed to all tribes, rather than just one tribe. Undoubtedly, if Roman law had preserved only its Roman characteristics in Italy, it would not have had the same effect in the European countries that held different views.
When it comes to the relationship between Roman law and Turkey, the law was applied in the Ottoman Empire during the period from the conquest of Byzantine (Constantinople, 1453) by Fatih Sultan Mehmed (The Conqueror) to the proclamation of the Republic (1923) and Islamic Law.
Roman law and Islamic law are so different from each other. Roman law became a secular law in old times. In other words, it was humanized. The religious principles (fas) and legal (ius) rules were separated from each other in the early period. The one issued from necessity was composed of the rules established by the law of human reason and instrument; the philosophy they are fed by is also different.
At last but not least, the points given below should be taken into consideration. The East Roman Empire that burned down in 1453 maintained its effect in three areas in subsequent centuries:
Area of politics: Germen emperors especially were crowned under the title of the Roman Emperor and so they behaved as if they had been the successor of the Roman emperors in order to legitimize their empires. Due to the same reason, Roman law was applied in their countries.
Area of religion: It became effective to unite Christianity, the center of which is in Rome, and Europe. The Vatican City is within the borders of Rome, which is still the most important center of Christianity.
Area of law: In the last years of the Middle Ages, Rome was the center that united Europe in the area of law. The cultural and legal effect of the Roman Empire directly continued until the legalization movements that took place at the end of the 19th century.
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1 There is a similar example in the end of the French Revolution, 1789: In May 18th, 1804, the empire was established without obviously abolishing the republic. In short, the existence of the institutions does not always mean that the regime remains unchanged.
2 The Empire is where Cesar is.
3 Some wereMediolanum (Milano), Augusta Trevirorum (Trier), Serdica (Sofya), İzmit (Nikomedia) in the 3rd century.
4 Generally, the word urbiswas used to define the city, but polis was enough to explain the name of this city by saying “şehir (city)”. So the Word stinpoliused to say “şehirde (in the city), şehre (to the city)” appeared as the old name of Istanbul. The expression “Istinbol” became common and established during the Muslim-Alevi siege.
5 The resources of the 5th century mention the works built in the city. Unfortunately, none of the buildings survived until today including the Great Palace, university, two theatres, fifty-two cinctures, four courthouses, fourteen palaces, five market places, eight public baths, one hundred-fifty three private baths, twenty public bakeries, one hundred-twenty private bakeries,, fifty-two porticos and four thousand three hundred eighty-eight residential buildings. Today, this is the difference between Istanbul and Rome that preserves the historic fabric of the city of that period.
6 The transport of the empire center to Constantinople provided a political advantage for the Roman bishop (Papa) as it resulted in the decrease of sovereignty effect of the emperors in the West.
7 Eclesiavivetlege Romana: “The Church lives in accordance with Roman law.”
8 The researchers, who are looking for the answer to the question why the West-Roman Empire was broken down before, also refer to the tax injustice along with other reasons. Below is what Salvianus (400-470) stated about the abrasive effects of the taxing: “If the tax had been equally shared by the all public though it was harsh and cruel, it would not have been so heavy. As not everyone carried the burden it loaded, it is more embarrassing and abrasive. The tax that should be taken from the rich is collected from the poor; the weak carries the burden of the strong. The poor cannot carry the whole burden because what is wanted from them exceeds what they own… Who can find the appropriate words to express the awfulness of our condition in today’s world? While the Roman community, which has already distinguished or breathes its last while in the death agony in the corner, is dying with the tax rope around its neck as if it was caught by bandits, still the number of the rich people is high and the poor carry the tax burden…”
9 Therefore, in various resources, it is specified that the university was not built by Theodosios but renovated by him.
10 Since wars are really expensive, Iustinianos made some economical arrangements. During this period, there was a decrease in public service and a strict inspection system was put into place to control the accounts of the army. It became necessary to require a new land tax (aerikon) and to impose monopoly on various products. A great deal of money was spent for the reconstruction program applied in the all parts of the empire. One of the many innovations in the area of architecture and the pre-eminent success of the empire was the renovation of the Hagia Sophia in Constantinople.