Published December 1, 2018
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Exploration of the Roman Notions of International Law
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In an attempt to explore the Roman notions of international law, this paper analyses the notions of jus gentium, commonly perceived as Roman International law, jus fetiale, and jus belli. It argues that although jus gentium resembles the modern private international law, it cannot be labeled as public international law. It claims that jus fetiale, which is more a ceremonial system than legal, resembles modern international law more than jus gentium. The paper concludes that the Roman empire did not observe an international law proper. Instead, it observed two sets of laws where the first set regulated relations between Romans and Romans (jus civile) while the second set dealt with relations between Romans and other individuals (jus gentium). In none of the two sets do we observe rules that regulate relations between two states, which is the primary focus of international law.
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- 1 Jaap Hage, "Sources of Law", in Introduction to Law, ed. Jaap Hage, Antonia Waltermann and Bram Akkermans (Switzerland: Springer, 2017), 4-8. 2 Nussbaum, Arthur. "The Significance of Roman Law in the History of International Law." University of Pennsylvania Law Review 100, no. 5 (1952): 678-87. Available online at: <https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=7998&con text=penn_law_review> (Last accessed on June 10, 2019). 3 See for instance, Oppenheim, International Law: A Treatise (London: Longmans, Green, And Co, 1905), 52-53. 4 See for instance, Conway Henderson, Understanding International Law (West Sussex: Wiley-Blackwell, 2010), 9-13. 5 Regarding the rise of Rome and its transformation from a 'republic' to an 'empire', it is said by the historians, that three wars known as 'Punic wars', which they fought against Carthage, an ancient city in the North Africa, situated in the today's Tunisia, between the years 264 BCE and 146 BCE, was the real cause of it. Carthage was a rival state to the Rome and both strived to control the Mediterranean Sea. In a series of Punic wars, Rome gained full control over the Mediterranean paving its way to become a great power. In the mid-first century BCE, Julius Caesar, a Roman general and politician, raised to power and following defeat of his rival, Pompey, assumed the role of a dictator thereby effectively transforming the republic into the Roman Empire. 6 Ibid. 7 Christopher Kelly, The Roman Empire: A Very Short Introduction (Oxford: Oxford University Press, 2006), 4.8 Ibid., 1. 9 Ibid. 10 It is a period of nearly 200 years in Roman history in which there was many advances and developments in the Empire. It is also the period, which witnessed a comparative peace in the Mediterranean world. This era ended with the reign of Marcus Aurelius (161 –180 CE). See "The Pax Romana," Ancient Civilizations Online Textbook, http://www.ushistory.org/civ/6c.asp (Last accessed on June 10, 2019); The Editors of Encyclopedia Britannica, "Pax Romana," Encyclopedia Britannica, https://www.britannica.com/event/Pax-Romana (Last accessed on June 10, 2019). 11 Civil wars ensued this ear leading Diocletian to power in 284 CE who was able to restore peace in the Empire at the cost of unity of the Roman Empire as it was in his reign that the Empire was divided into Western and Eastern History.com Staff, "ANCIENT ROME." 12 In 324 CE, Constantine reunified the Empire and moved its capital to the city of Byzantium, which then became Constantinople. He converted to Christianity and declared it the formal religion of the Empire. However, 30 years after his death, the Empire disintegrated once again to Western and Eastern empires. Finally, in the year 476 CE, Western Roman Empire collapsed due to different uprisings and wars. Ibid. 13 John L. Teall, Donald MacGillivray Nicol, "Byzantine Empire," Encyclopedia Britannica, https://www.britannica.com/place/Byzantine-Empire (Last accessed on June 10, 2019). 14 Malcolm Shaw, International Law (Delhi: Cambridge University Press, 2008), 16. 15 Eamonn Hall, "A Brief Introduction to Roman Law," The Faculty of Notaries Public in Ireland, http://www.notarypublic.ie/download/Roman%20Law.pdf (Last accessed on June 10, 2019). 16 Different classes of people lived in the ancient Rome. Patricians were the elite class and the Plebeians were the common citizens. Some among the elites were interpreting the customary law; hence, they were giving decisions in favor of Patricians. The Plebeian struggled for the law to be in the written form. Twelve Tables came as the corollary of the struggles of the Plebeians. See "Roman Legal Tradition and the Compilation of Justinian," The Robins Collection, https://www.law.berkeley.edu/library/robbins/pdf/RomanLegalTradition.p df (Last accessed on May 6, 2019). 17 For instance, third table says that the debtor shall have thirty days to pay his debts. If he was unable to pay it on the prescribed time, then forcible seizure of him is allowed. If he owed sum to more than one, then they can cut his body and divide it among themselves. In addition, table four says that afather can kill his deformed son. See Ellie Crystal, "Law in Ancient Rome," Crystal links, http://www.crystalinks.com/romelaw.html (Last accessed on June 10, 2019). 18 "Roman Legal Tradition and the Compilation of Justinian". 19 Hall, "A Brief Introduction to Roman Law". The Digest (digesta), which was prepared in 533, in fact was summery and extracts of some of the existing Roman law. The Code (codex), which was prepared in 534, was combination of the actual laws of the Empire. The Institutes (institutiones) was a textbook prepared for the students of law in 535. It summarized the digesta. The Justinian's Code is also known as the corpus juris civiles. 19 20 In some countries, Roman law applied until very late. For instance, in Germany, it was applied until 1900. See: Maurice Alfred Millner and others, "Roman law," Encyclopedia Britannica, https://www.britannica.com/topic/Roman-law (Last accessed on June 10, 2019). 21 Olga Tellegen-Couperus, A Short History of Roman Law (London: Routledge, 1993), 18. 22 "Jus Civile," Merriam-Webster, https://www.merriamwebster.com/dictionary/jus%20civile (Last accessed on June 10, 2019). 23 Hall, "A Brief Introduction to Roman Law". 24 Tellegen-Couperus, A Short History of Roman Law, 18. 25 David Johnston, Roman Law in Context (Cambridge: Cambridge University Press, 2004), 4. 26 Donald L. Wasson, "Patrician," Ancient History Encyclopedia, http://www.ancient.eu/Patrician/ (Last accessed on June 10, 2019). 27 Alina Kaczorowska, Public International Law (Oxon: Routledge, 2010), 7. 28 Gaius is a famous Roman scholar who lived in second century CE and is writer of The Institutes of Roman Law. It is an authoritative work on the Roman law. 29 Gai Institutiones or Institutes of Roman Law by Gaius, with a Translation and Commentary by Edward Poste, 4th ed. revised and enlarged by E.A. Whittuck, with a historical introduction by A.H.J. Greenidge (Oxford: Clarendon Press, 1904), 1. 30 A question may arise here, that is: what is the difference between jus gentium and jus naturale? Both are the laws that natural reason acquires and is same among all people. Some scholars did not differentiate between the two. Others say that there is a small difference in application. For instance, slavery is not a part of jus naturale, but a part of jus gentium. Samuel Gregg says that in Justinian's Institutes a different distinction is available. The Justinian's institutes says natural is taught by nature to all animals but jus gentium is limited to the human beings. See Samuel Gregg, "Natural Law and the Law of Nations," Natural Law, Natural Rights and American Constitutionalism, http://www.nlnrac.org/earlymodern/law-of-nations (Last accessed on June 10, 2019); William Warwick Buckland, A Text-Book of Roman Law from Augustus to Justinian (Cambridge: Cambridge University Press,1921), 54. 31 Powell and others, "Roman Law," Encyclopedia Britannica. 32 Gregg, "Natural Law and the Law of Nations". 33 Buckland, A Text-Book of Roman Law from Augustus to Justinian, 53. 34 Kaczorowska, Public International Law, 7. 35 See Buckland, A Text-Book of Roman law from Augustus to Justinian, 53. 36 The general perception is that jus gentium is international law. Even Merriam Webster dictionary defines it as synonymous with international law. Which misleads the reader about it. See https://www.merriamwebster.com/dictionary/jus%20gentium (Last accessed on June 10, 2019). 37 James Hadley, Introduction to Roman Law: In Twelve Academical Lectures (New York: D. Appleton and Company, 1902), 90. 38 However, some sources use the term diplomat instead of herald, but the world herald would be better, because it was not confined to the diplomats, but included diplomat and non-diplomat herald. 39 Gordon E. Sherman, "Jus Gentium and International Law," The American Journal of International Law, Vol. 12, No. 1 (Jan., 1918), pp. 56-63. Available on: http://www.jstor.org/stable/2187613 (Last accessed on June 10, 2019). 40 The general rule among all people was that herald must not be killed, therefore jus gentium asserted on it. It is also said that King Tatius used the envoys of Laurentes in a plot for restoration of kingship, but they were caught and afterwards freed because they were ambassadors and their ill-treatment was against jus gentium. Nevertheless, it seems that it was the only content of jus gentium, which is a part of today's public international law. Thomas Alfred Walker, A History of the Law of Nations (Cambridge: The University Press, 1899), 45, 46. 41 Abla Mayss, Principles of Conflict of Laws (London: Cavendish Publishing Limited, 1999), 1. 42 W. W. Buckland, A text-book of Roman law from Augustus to Justinian, (London: Cambridge University Press, 1921), 54. 43 Walker, A History of the Law of Nations, 47; Benjamin Straumann, Roman Law in the State of Nature, tr. Belinda Cooper (Cambridge: Cambridge University Press, 2015), 143.44 Roman jus sacrum was a part of the public law which regulated religious affairs, such as worship and appointment of priests. See "Jus sacrum", Bouvier's Law Dictionary, 3rd Revision, 1914, Vol. I, p. 1794. 45 Michael A. Meyer and others, Reflections on Law and Armed Conflicts (The Hague: Kluwer Law International, 1998), 5. 46 Ibid. 47 Ibid. 48 Bederman, International Law in Antiquity, 231-232. 49 Ibid. 50 Walker, A History of the Law of Nations, 47. 51 Bederman, International Law in Antiquity, 233. 52 Walker, A History of the Law of Nations, 47. 53 Mark, "Ancient Rome." 54 Cicero was the most famous Roman philosopher and thinker. For details, see: Cicero (106—43 B.C.E.), in Internet Encyclopedia of Philosophy, linked here: http://www.iep.utm.edu/cicero/ (Last accessed on June 1, 2019). 55 Kelly, The Roman Empire, 19. 56 He was a warrior and head of Caledonians who fought the Roman Empire. See "CALGACUS", Undiscovered Scotland, http://www.undiscoveredscotland.co.uk/usbiography/c/calgacus.html (Last accessed on June 10, 2019). 57 Kelly, The Roman Empire, 22. 58 Taking heads of the enemy is evident in their triumph column in Rome. See for details: "Caput Mundi – Beheading and Barbarism on Trajan's Column," Roma Invicta, https://garethharney.wordpress.com/2013/06/21/caputmundi-beheading-and-barbarism-on-trajans-column/ (Last accessed on June 10, 2019). 59 Kelly, The Roman Empire, 15. 60 ."Marcus Tullius Cicero Quotes," Goodreads, http://www.goodreads.com/quotes/49233-in-times-of-war-the-law-fallssilent-silent-enim (Last accessed on June 10, 2019)