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Ampliatio

(130 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] An ampliatio (continuation of the case at another date) happened in Roman criminal proceedings if part of the jury (e.g. according to the l. Acilia it had to be a third) by special declaration or withdrawing of vote in the question of guilt made it clear that they did not yet regard the case as ripe for judgement ( non liquet). Ampliatio should be distinguished from   comperendinatio , legally prescribed in certain cases. Republican legislation had, it seemed, already tried to oppose the proliferating use of ampliatio by threatening fines against the judges in the c…

Ignorantia

(193 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] An old Roman legal rule deals with ignorantia, also ignoratio (ignorance). According to Paulus (3rd cent. AD, Dig. 22,6,9 pr.) it reads: iuris ignorantia nocet, facti vero ignorantia non nocet (‘ignorance of the law is harmful, but not ignorance of the facts’). The preferred term since the Middle Ages is error. For the Romans error and ignorantia were probably synonymous. Error in law neither prevents responsibility for individual behaviour (under criminal and civil law), nor the effectiveness of the   consensus in legal transactions inter vivos or in declarations…

Petitio

(325 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] The word petitio ('request') referred to a specific form of action used in the Roman formulary procedure ( formula ), for example for the actio (action), which arose out of a specific object or a specific sum of money (Dig. 12,1), or the action of the true heir against the possessor of an inheritance ( hereditatis petitio, Dig. 5,3; Cod. Iust. 3,31). Besides these, claims arising from the cognitio procedure ( cognitio ) were mostly referred to as petitio. A strong conceptual distinction between actio, petitio and persecutio (prosecution) did not exist in Roman legal…

Patria potestas

(908 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] The PP, which continued to exist as paternal power in the German Civil Code was only replaced in Germany following an interim stage of parental power with effect from 1.1.1980 by paternal care, in Rome referred to the extensive right of control which the pater familias exerted over the family. Originally the PP, like the manus over the wife (Marriage III.C.), probably had no legal boundaries, but merely moral and religious ones. The transgression of these could, for example lead to a loss of honour or an exclusion from the nobility or the equites. In Imperial times the PP…

Condictio

(1,036 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] A. Type of suit in the ius civile Sentencing to a particular payment could be achieved with the   legis actio per condictionem after the 3rd cent. BC: certa pecunia based on a lex Silia, other certae res based on a lex Calpurnia (cf. Gai. Inst. 4,17 b-19). The condictio (‘announcement’) is merely a procedural designation: the court date was not granted immediately but only after the expiry of an ‘announced’ term of 30 days to allow the debtor the option of compliance without court procedure. The certum in this suit is, in the first place, a payback guarantee for an …

International law

(1,438 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] I. Overview International law (IL) was established as a field in its own right during the early modern period (especially by Hugo Grotius, 1583-1645). The term   ius (A.2.) gentium, which originated in Roman law, established itself as its name. However, in antiquity this term did not mean IL but those concepts of  law in general that were assumed to be common to all peoples. This also included principles that belong to IL in its narrow sense such as the inviolability of diplomatic representatives (Dig. 50,7,18). Antiquity did not have a term for IL per se. However, ancient …

Castigatio

(189 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] Expression describing an educational measure, as can be inferred from the meaning of the word ( castum agere, ‘to make pure’). The person carrying out the punishment is often excluded from liability for the consequences of castigatio upon the punished: thus the master punishing his apprentice (e.g. Dig. 9,2,5,3). The same goes for the paterfamilias with regard to his children and the master to his slaves (Dig. 7,1,23,1; 48,19,16,2). Castigatio as a policing or juridical measure is partly linked to such private authority-based relationships: by the …

Effractor

(68 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] In Roman law the thief who obtains his loot through break and entry. According to Dig. 47,18 he commits a criminal act that is prosecuted as a   crimen ( publicum). In the Republic it was still a civil offence. An escapee was called an effractor ( carceris) and was also prosecuted as the perpetrator of a crimen in a   cognitio extra ordinem . Schiemann, Gottfried (Tübingen)

Gesta

(320 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] In the Republican period in Rome the records (also   commentarii ) that a magistrate made or had made regarding the orders decreed by him (  acta ). They were personally archived by the magistrate after the end of his period in office (Cic. Sull. 42). From the 3rd cent. AD the term gesta superseded the expression commentarii for the official records. Apart from gesta the word cottidiana occurs in the same sense . With this meaning gesta can be found in all levels of the administration of late antiquity. Ultimately the recording of official files and negotiations by gesta was tr…

Vidua

(16 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] Latin expression and Roman legal term for widow (II.). Schiemann, Gottfried (Tübingen)

Calumnia

(295 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] In classical Roman law, the deliberate, groundless and bullying filing of suits and charges. In the regulatory procedure for disputes amongst private individuals, the Praetor awarded a special iudicium calumniae decimae partis, i.e. a penalty for failure to observe correct procedure of 1/10 of the value of the claim (Gai. Inst. 4,175). In the case of manumission or status claims the sanction against the fiduciary claimant (  adsertor in libertatem ) amounted to as much as 1/3 of the value of the slave. The person affected could demand four times the value ( quadruplum) wi…

Discussor

(154 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] A discussor (Greek logothétēs, etym. from discutere in the meaning of ‘to check, investigate’) was an official of the late antique Roman state, to whom article 10,30 of the Cod. lust. was dedicated. The main tasks of the discussores lay in tax administration. In that context, they apparently carried out external audits of the tax bases set by the   census through self-assessment ( professio). They also appear as auditors for customs, public building projects, and state regulated prices. Administrative acts issued by the discussores were called   sententiae

Legacy

(81 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] The technical term legacy in modern law is a literal translation of the Roman legatum . In the testamentary settlement of the succession of property rights after death, Roman law differentiated between the appointment of the fully valid legal successor as heir ( heres, for this see Succession, law of III.) - or several heirs - and the allocation of individual objects as legacies. Other ancient laws contain no comparable construction. Fideicommissum; Testament [2] IV. Schiemann, Gottfried (Tübingen)

Lex commissoria

(213 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] A Roman forfeiture or cancellation agreement, it was usually a unilateral (hence: lex ) clause inserted in conditions of sale (see emptio venditio D), or a pledge ( fiducia , pignus ). Upon purchase the clause granted the vendor a right of rescission if the purchaser did not pay the purchase price - for instance, in the event of an agreement for payment in instalments or a date of payment. If the vendor exercised the right of rescission, he could request the return of the sold property by means of the actio venditi (according to the Sabinians) or by means of an actio in factum (acco…

Denuntiator

(89 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] Someone who has something to announce or proclaim. In a narrower sense the term is applied to those who, whether as a private individual or on behalf of an office, report a criminal offence. Denuntiator is then very often synonymous with   delator . The excesses of the latter had a lasting effect on the public opinion on denunciation. Denuntiatores crop up in Rome even as junior officials in the role of heralds. For similar functions in Greek law   menysis ,   sykophantes . Schiemann, Gottfried (Tübingen)

Conubium

(399 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] In Rome being eligible to marry ( conubium) was a prerequisite for a legally valid marriage. Both partners had to have the conubium: Conubium est uxoris iure ducendae facultas. Conubium habent cives Romani cum civibus Romanis: cum Latinis autem et peregrinis ita, si concessum sit. Cum servis nullum est conubium (‘ Conubium is the legal ability to marry a woman. Roman citizens have the conubium to marry each other but, only by special dispensation, to marry Latins and other foreigners . There is no conubium with slaves’; Ulp. 5,3-5). That description omits to mentio…

Suicide

(502 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] Suicide, from neo-Latin suicidium ('self-killing'), a parallel formation on homicidium , was a subject of lively intellectual debate in Greek and Roman Antiquity: in schematic comparison it can be said that the followers of and successors to Plato, as well as Aristotle [6] and Neo-Platonism, condemned suicide, whereas some Sophists, and the Cynics (Cynicism) even more, acknowledged suicide as an expression of individual freedom, even expressly endorsing it. This point of …

Lawcourt

(459 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] The institution of the law court (LC) has existed from the beginning of state control in antiquity. It is no longer possible to deduce whether and where a phase of arbitration preceded it. In the documents of the Ancient Orient LCs are attested on many occasions [1; 2; 3]. The respective city prince or king was probably also the master of the court although in Mesopotamia there was also local jurisdiction (i.e. within certain groups) [2]. The scribes were suited for work as judg…

Basilics

(144 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] The ‘Basilics’, after the Greek term basiliká (n.pl.: ‘imperial’; sc. law books), are a compilation in Greek of the most important parts of the   Corpus iurisDigesta and   Codex (II)Iustinianus, as well as extracts from   Institutiones and   Novellae C.) from the time of the Byzantine emperor Leo(n) [9] VI (886-912). For five-and-a-half centuries the Basilics secured the continuance of Roman law in Byzantium (I. B.3). At the same time, they are an invaluable secondary source for the survival of the Corpus iuris, above all the Digesta (A.3). The Basilics also f…

Absolutio

(227 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] in Roman court proceedings is the opposite of ‘condemnation’ (  condemnatio ). In civil proceedings the formula in which the praetors set down the programme for the iudex ends stereotypically with the judicial command ... condemnato. Si non paret, absolvito. Both absolutio and condemnatio were final and absolute, in other words the decision -- apart from the special case of   appellatio -- was irrevocable, the dispute was definitively concluded and the exceptio rei iudicatae (demurrer of legal force) stood in the way of a new action. The saying omnia iudicia absolutor…
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