The Influence of Ancient Rome in The United States Judicial Structure

Mozelle Garcia

For the context of this website, “Ancient Rome” refers to Rome between the 8th century BCE, when Rome was founded, to its fall in the 5th century CE (1).

Legal Basis

The Twelve Tables were established around 439 BCE. They were the backbone of Roman Law throughout the height of the empire until they were replaced by the Justinian Code around 529 CE (2). The influences of the Justinian Code permeated continental Europe and most European colonies, all the way to the United States today (3).

Judicial Structure

Ancient Rome

Under the Twelve Tables, from the 5th century BCE to the 2nd century CE, the first step in “legis actiones” or “Roman legal procedure” was for the plaintiff to approach the defendant in public and call him to court. The defendant could be brought in forcefully if necessary (4). A trial was divided into a preliminary hearing where a magistrate decided if there was a case worth hearing. A magistrate is a civil officer or lay judge who administers the law, usually only in minor areas. This was a very formal process in which precision of language was a key factor in determining success or failure. If a case passed a “judex” would then try it (4). A judex was not a lawyer or magistrate, but rather a person with professional knowledge in the subject. The role of a magistrate judge in the U.S. court system is similar to that of the original magistrates in Ancient Rome. The judex would make a decision in the trial, but had no power to enforce anything. Uncooperative defendants could be brought to a magistrate who could get property seized or even make the defendant a slave to the plaintiff to work off his debt (4).

As time passed in the republic, cases became more complex and as such it was required to write issues down to present them to the judex. This led to the formulary system where the magistrate had greater power in deciding if the case should go to the judex. Later in the republic power increased for the courts again as summons could be issued by the court, trials were held exclusively before the magistrate, and it became the court’s responsibility to see through the sentence (2). These changes occurred under the “cognitio extraordinaria” period of Roman Law. Herein an appeal system also developed, which is a core component of the justice system in the United States today.

Modern United States

It is important to note that the United States Judicial Structure is built on a system of appeals. This system of appeals originated in Ancient Rome, as cases became more complicated and the legal system became more intertwined with bureaucracy (2).  As this occurred, a distinction between civil and criminal disputes began to arise. This has further developed so that the difference is major in the United States. Civil disputes involve people, companies, entities, or other groups, who have allegedly harmed another. Criminal cases on the other hand are brought by the state. A criminal act is different from a civil wrong in that it is considered harmful to society as a whole, rather than a single person or group (5). Criminal cases end in a guilty / not guilty plea or verdict, and criminals will receive punishment from the state that can come in the form of a fine, imprisonment, or in some cases the death penalty. The structure of the appeal system is depicted by the chart below.

(6)

Personally, I find the shift of the justice system in the United States to being more specialized a positive thing. This gives lawyers more flexibility in what they choose to study and practice. Being able to focus on what interests you allows you to serve the public in the most effective way, as you have greater job satisfaction and motivation (5). I am not particularly interested in working as a prosecutor or defense attorney, but rather aspire to work in the corporate sector of the law. Because of the formal institutions separating these areas in place today, that is achievable. I have the late Roman empire to thank for starting this evolution.

The judicial system in the United States also demonstrates Roman influences in that it begins with a grand judge and / or a preliminary hearing. In many States, the accused have a right to have a jury decide if there is enough evidence to go to trial (7). Furthermore, both the prosecution and defense had advocates speak on their behalf as is the practice in the United States today (8).

In Ancient Rome It was not uncommon for the trials of lower class citizens to be held outside, with much jeering from the crowd of the market or square. While all judicial proceedings take place indoors in the U.S., the less serious the offense the more informal the proceedings. An example is the chaotic, quick pace of traffic court where several cases are addressed in the span of hours. This is another manifestation of court culture in the U.S. brought from Ancient Rome where we see that there is leniency on formality depending on the case.

The Death Penalty and Discrimination

Executions were rare for Romans of high status, but for slaves and common criminals it was quite common. Imprisonment was not a legally sanctioned punishment in Ancient Rome, the most that one would be locked up was when they were awaiting trial (8). Criminals were killed publicly, for the public to rejoice in their punishment (9). The trials of lower citizens on the whole tended to be very open to the public.

In the U.S. the death penalty is highly controversial. 20 out of 50 states do not allow it (10). In those where it is allowed, it is typically very difficult to attain, and when they do there are several regulations that go along with it. To end the life of the criminal a lethal injection is usually administered (10). In Florida, for example, the jury must unanimously recommend the death penalty in order for the judge to be able to impose the sentence (10).

There are prominent arguments in the U.S. which note how, similar to in Ancient Rome, the distribution of the death penalty is not equally applied to all citizens. For example, a 2014 study found that a death sentence was three times more likely to be recommended for a black defendant than for a white one in a similar case (11). Furthermore, black sentences account for 34.2% of executions when they only make up 13.4% of the U.S. population (12). It is well known that in the United States minorities are disproportionately affected by poverty and poor education (13). On the other hand, those with greater resources can hire better attorneys and achieve more lenient sentences in that way.

This is a negative practice to have inherited from the Romans as it perpetuates an inequality in the Justice system, but it is a manifestation of Rome in the US that must be pointed out nonetheless. The systematic separation of classes is something present in many societies, but that does not mean it has to stay this way. While our judicial system has drawn inspiration from Ancient Rome in many ways, we have also refined several practices, and the application of capital punishment is an area where adjustments are still needed.


Legal Education


While education in law is considered a “distinctively Roman development,” legal education in Ancient Rome was much more informal during the earlier years of the empire (14). However, formal legal education began to rise and become more bureaucratic under the later empire. Law became increasingly centralized as the power of the state grew (14).

In the U.S. today, a legal education entails enrolling in a Law School, typically for a period of three years with exceptions being made for part-time programs. Prior to this, students must obtain a bachelor’s degree and pass the Law School Admission Test. In Law School, students are not directly taught the law, but rather are taught how to think like a lawyer. Emphasis is placed on analytical reasoning and logical thinking. With this it is clear that the core competencies of a good attorney remain the same as they were in Ancient Rome. Particularly in litigation, the teachings of Cicero are still used to teach young lawyers to be good orators.

Public Speaking

Public speaking is an essential part of being a good litigator. The devices that people use today to write their arguments and prepare for trial were also emphasized in Ancient Rome. While Greece is considered the true birthplace of rhetoric, the Romans adopted the Greek teachings and expanded upon them form around 90BCE (15). Marcus Tulius Cicero 106-43BCE) lived during the decline of the Roman Republic but was considered the greatest of Roman orators. He was a lawyer, as well as a politician and philosopher. He wrote De Inventione and De Oratore, which offered theories of oral discourse and emphasized the five canons of rhetoric, Invention, Arrangement, Style, Memory, and Delivery (15).



The study and practice of rhetoric has hardly evolved since the days of the Romans. For example, today as part of the Pre-Law Certificate Program at Florida International University, students are required to learn about rhetorical theories and practices. These courses place great emphasis on the teachings of cicero and other Roman influencers. The canons of rhetoric are easily identifiable in the speeches given by politicians and senators as they strive to achieve the same goal of persuasion that their Roman counterparts had. L

Legal Jargon

One of the most prominent ways in which the influences of Ancient Rome manifest themselves in the United States Judicial Structure is through the use of Latin terminology and principles. Through classes under the Pre-Law certificate program here at FIU, an undergraduate aspiring to go to law school such as myself will become well-versed in terms such as “stare decisis, culpa en contrahendo, and pacta sunt servanda.” (2). These translate roughly to “stand by things decided” (a legal principle wherein things are decided according to precedent), “fault in contracting” (which points out the importance negotiating with care), and “agreements are to be kept” (16,17).  The prevalence of these terms as well as the principles they uphold is a clear indicator of the extent to which Ancient Roman custom is alive within the U.S.’s legal system. Stare decisis is actually outlined by table XII, as it states, “whatever the people had last ordained should be held as binding law”. This helped shape the common law system of the United States today (2). Common law is a system which builds on precedent; decisions are made by considering the outcomes of previous similar cases (17). The Ancient Romans began building the common law system as they kept records of proceedings in the later periods of the empire.

Why so Roman?

The founding fathers of the United States drew inspiration from Ancient Rome in a number of ways. Entire projects can be devoted to identifying the influences of Rome in U.S. executive and legislative strict, as well as in federal architecture and culture. Certainly, the influence of Roman judicial structure was no exception as the structure of the courts was outlined, and the system for keeping laws determined.

Implications

Taken collectively, the influences of Ancient Rome are present in nearly every aspect of the Judicial Structure in the United States today. The Romans were the first to conduct the classic trials in the way we know today, and they paved the way for the study and practice of law to become one of the most respected positions. As I prepare to enter this profession as well, I will continue to be exposed to many terms from the Latin language, rhetorical techniques, and the same system of law used in ancient times. With new knowledge about the roots of the Judicial System, I will understand more readily how everything goes together while at the same time be able to look at the negative commonalities and plan my role in changing them.


References:

  • All images are in the public domain. The chart depicting U.S. Court Structure is shared publicly via slide-share on LinkedIn.

1.—. “Ancient Rome | Facts, Maps, & History.” Encyclopedia Britannica, www.britannica.com/place/ancient-Rome.

2. “Law in Ancient Rome, The Twelve Tables – Crystalinks.” Crystalinks Home Page, www.crystalinks.com/romelaw.html.

3. Syam, Piyali. “What is the Difference Between Common Law and Civil Law?” Law Degrees Available Online | @WashULaw, 28 Jan. 2014, onlinelaw.wustl.edu/blog/common-law-vs-civil-law/.

4. Editors of Encyclopedia Britannica. “Roman Legal Procedure.” Encyclopedia Britannica,
www.britannica.com/topic/Roman-legal-procedure.

5. Haskins, Paul A. Essential Qualities of the Professional Lawyer. Amer Bar Assn, 2013.

6. Toth, Bryan. “Organization Of U.S. Court System.” Share and Discover Knowledge on LinkedIn SlideShare, 24 May 2009, www.slideshare.net/bmtoth/organization-of-us-court-system.

7. “The Criminal Justice System.” Welcome to the National Center for Victims of Crime,
victimsofcrime.org/help-for-crime-victims/get-help-bulletins-for-crime-victims/the-criminal-justice-system.

8. “Crime and Punishment.” Life in the Roman Empire, carolashby.com/crime-and-punishment-in-the-roman-empire/.

9. CMHypno. “How and Why the Romans Executed People.” Owlcation, 27 Oct. 2011,
owlcation.com/humanities/roman-executions-why-the-romans-executed-people.

10. “30 States with the Death Penalty and 20 States with Death Penalty Bans.” Death Penalty ProCon.org, 13 Mar. 2019, deathpenalty.procon.org/view.resource.php?resourceID=001172.

11. “Facts about the Death Penalty.” DPIC | Death Penalty Information Center, Apr. 2019,
deathpenaltyinfo.org/documents/FactSheet.pdf.

12. “U.S. Census Bureau QuickFacts: UNITED STATES.” Census Bureau QuickFacts,
www.census.gov/quickfacts/fact/table/US/PST045218.

13. US Census Bureau. “Income and Poverty in the United States: 2017.” Census.gov,
12 Sept. 2018, www.census.gov/library/publications/2018/demo/p60-263.html.

14. Riggsby, Andrew M. “Roman Legal Education – A Companion to Ancient Education.” Wiley Online Library |Scientific Research Articles, Journals, Books, and Reference Works, 2015, onlinelibrary.wiley.com/doi/abs/10.1002/9781119023913.ch30.

15. “Origins of Public Speaking: The Roman Republic’s Adoption of Rhetoric | Public Speaking.” Lumen Learning – Simple Book Production, courses.lumenlearning.com/publicspeaking/chapter/the-roman-republics-adoption-of-rhetoric/.

 16. US Legal, Inc. “Culpa-In-Contrahendo Doctrine Law and Legal Definition.” Legal Definitions Legal Terms Dictionary | USLegal, Inc, definitions.uslegal.com/c/culpa-in-contrahendo-doctrine/.

17. —. “Pacta Sunt Servanda Law and Legal Definition.” Legal Definitions Legal Terms Dictionary | USLegal, Inc, definitions.uslegal.com/p/pacta-sunt-servanda/.

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