Ancient Rome vs. 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 on 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.

The clip is from the film “Legally Blonde” and shows a comedic but fairly representative cross-examination in a court, as well as the responses of the jury and judge.

Judicial Structure continued

Modern United States:

In the United States, there are two separate bodies of courts. The structure is as follows:

(5)

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).  

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 (14). Furthermore, both the prosecution and defense had advocates speak on their behalf as is the practice in the United States today (15) .

The most significant distinction in the United States’s judicial system is between civil and criminal disputes. 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 (8). 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.

  • In the U.S. the death penalty is highly controversial. 20 out of 50 states do not allow it. 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 (5). In Florida, for example, the jury must unanimously recommend the death penalty in order for the judge to be able to impose the sentence (5).
  • In contrast, execution in Ancient Rome was much more swift and brutal. 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 (15). Criminals were killed publicly, for the public to rejoice in their punishment (7). The trials of lower citizens on the whole tended to be very open to the public. This can be seen in the fictionalized clip from the HBO series “Rome” wherein Titus Pullo, accused of homicide, is given a trial where his lawyer is booed by the crowd and insults are thrown around with no order.

As can be noted from the clips above, the atmosphere of judicial proceedings in Ancient Rome may be different from that of the modern United States, but the basic processes are nearly identical, as there is a magistrate judge in both, advocates speaking on behalf of clients, and an incorporation of the public through a jury.

Another accurate detail from the clip of “Rome” is that the trial was held outside, which was not uncommon for lower class citizens. In contrast, even despite the comedic undertones of the clip from “Legally Blonde” the United States courtroom is consistently called to order, and proceedings are always held indoors. It can be conceded, however, that similarly to courts in Ancient Rome, 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. It should also be noted that the accusation of homicide was brought by the friends of the victim. This is because in the early years of the republic (the events of this clip occur before the 1st century CE) where Romans did not have a very distinct separation of civil and criminal proceedings.

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 (8). 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.

Legal Education


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. Because the U.S. has a common law system which builds on precedent, law students must learn to interpret and synthesize large quantities of statutory law (5). Upon graduating from Law School, one must pass the Bar exam of the states wherein they intend to practice law before actually being considered an attorney.

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 (9). 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 (9).

Legal Jargon

One way that those in the legal profession are always reminded of the United States’ legal system’s connection to Ancient Rome is through the frequent use of latin terminology. 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” (10,11).  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 form the common law system of the United States today (2).

The Role of Women

An important detail to note from the clip of “Legally Blonde” is the fact that both lawyers and the judge in this clip are women. The United States Census Bureau reports that as of today approximately 1 in 3 lawyers are women (12). While there is still progress to be made before equality in the workplace is achieved – the top 10% of female lawyers earn more than $300k a year while the top 10% of male lawyers make upwards of $500k – the U.S. does offer gender equality in the legal profession under the law.

women-lawyers-figure-1

This is of particular significance to me as I aspire to be a lawyer. I am fortunate to be starting my career in a time where other women have paved the way to make achieving my goals much easier. While the occasional “powerful woman” was respected throughout Roman history, in the United States today the celebration of strong women is far more widespread.


Women in Ancient Rome

In all legal matters in Ancient Rome, women were required to have a nominated male family member act in their interests, this was called the principle of “tutela mulierum perpetua,” (13). The only exceptions were for women with three children, freed slave women with four children, or vestal virgins, which are similar to nuns (13). The purpose of these legal limitations was to keep property in the male-controlled family despite male and female children having equal inheritance rights under Roman Law (13). History shows that some families diverged from these rules, but whatever the case, the laws oppressing women in Rome were significant. Women of lower classes and prostitutes had even less rights, as they were not even allowed to prosecute for rape (13).

We can look to the 12 tables of Rome evidence of legal discrimination towards women, and for evidence on how they were regarded by male society.

  • Table V:  Females should remain in guardianship even when they have attained their majority (2).

This law stated that women were allowed to inherit but not control property, as they were perceived as being too delicate to manage such affairs, an idea the Romans called “infirmitas consilii” which translates roughly to “womanly weakness,” (2).  Evidence of this perception permeating far into the law is present in Table X part three of the 12 Tables, which states, “the women shall not tear their faces nor wail on account of the funeral,” (2). This being written into the 12 Tables, which are essentially the backbone of Roman law, shows the blatant sexism and discrimination against women in Ancient Rome in that they are depicted as weak, overly emotional, ridiculous creatures who must be warned against showing excessive emotion apparently just so that they do not annoy the men around them.

One positive right that Roman Law did offer women was that their property was kept separate from her husband’s and could be reclaimed in the event of a divorce. Divorces were also easy to obtain under Roman Law, but legally children belonged to their fathers or the father’s closest male relative if he was dead.

Protection of Rights

One essential factor which differentiates the judicial structure of the modern United States from that of Ancient Rome is the increased incidence of protections for citizens’ privacy and freedom, as well as the legislation put in place to ensure equality for all citizens.

Section one of the 14th Amendment to the U.S. Constitution states: All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

This reflects a major difference from Roman law wherein slaves (who were not considered citizens) had no recompense against their masters or other wrongdoers, and women had very limited rights in terms of legal actions.

References:

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. 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.

6. “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.

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

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

9. 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.

10. 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/.

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

12. Day, Jennifer C. “Number of Women Lawyers At Record High But Men Still Highest Earners.” The United States Census Bureau, 8 May 2018, www.census.gov/library/stories/2018/05/women-lawyers.html.

13. Cartwright, Mark. “The Role of Women in the Roman World.” Ancient History Encyclopedia, 22 Feb. 2014, www.ancient.eu/article/659/the-role-of-women-in-the-roman-world/.

14. “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.

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


Leave a Reply