Law and Justice – Roman Law and Human Rights – 14.6 Roman Law and Human Rights
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Law and Justice – Roman Law and Human Rights – 14.6 Roman Law and Human Rights

December 3, 2019


>>>>Dr. Kyle Harper: Let’s continue exploring
Roman law by looking at a question that’s a lively debate among contemporary historians,
legal historians, and political philosophers. This is the question what are rights, and
where do rights come from? We’ll be looking at this question across many of our lessons
but we want to ask specifically in the context of Roman law, are there rights in Roman law
and more particularly, what do we mean by that? Are there human rights are there natural
rights? And so we’ll take our conversations a step further by trying to define those and
in looking at Roman law and asking if they exist within the legal system of the Roman
Empire. Roman law, after all, says that justice is the will to give each person what they
are due, to give each person their jus, to give each person their right. And if Roman
law sees justice as an attempt to give each person what they are due, then we must say
what is it mean by this concept of right? Is it similar to our concept of human rights
or natural rights? We’ve talked about rights going back to some of our first lessons looking
at Hohfeld’s system of what a rights claim means, and we’ve seen that rights can have
different kinds of aspects. They can be claims, they can be privileges, they can be powers,
they can be immunities. And it’s important to keep that conversation in mind as we think
about this problem. Now let’s think about the nature of rights from another direction.
Let’s think about not what kinds of powers or claims rights have or make, but instead
where do rights come from? How are they specified? And let’s think in terms of three different
kinds of origins for rights. One is simply what we can call a legal right. Some kind
of just claim that can be enforced by law, and so a legal right is specifically a right
that’s enforceable by law. A kind of claim that an individual can make that can be enforced
by the state because it’s just, legal right. Then let’s think of civil rights. Civil rights.
Now when an American says civil rights we think particularly about the kinds of rights
to participate in political life that are guaranteed in our constitutional system and
we think more particularly about the kinds of political rights in our own history that
were denied to certain categories of even citizens, especially the legacy of race and
the civil rights movement that guaranteed political rights, that guaranteed the rights
of participation to African-Americans, rights that were protected and guaranteed like voting.
And so civil rights more generally are rights that flow from citizenship and so a legal
right is specifically a right that’s enforceable by law generically. Civil rights we mean the
rights of the citizen that flow simply from the fact of his or her citizenship. And so
when we say civil rights we’re talking about an origin. We’re talking about the place that
those rights flow from and why they are justified. They are the rights of the citizen. A third
category though, what we can think of as human rights. These are sometimes called natural
rights, sometimes more blandly individual rights, and those may have different connotations
but let’s think of them as human rights. Legal rights are rights that are specified at law,
civil rights are rights that flow from citizenship, human rights are this special category of
rights that flow simply from the virtue of one’s humanity. Human rights have a very particular
and a very powerful charge in our own political discourse. To say that something is a human
right implies that it’s fundamental that it’s something someone has simply by virtue of
being human. Do these different kinds of rights exist in Roman law? There’s been extensive
debate among scholars whether it’s correct to say that there’s even a concept of legal
rights in the Roman system of law, because legal rights are kind of subjective claims
that are vested in the individual. But there’s really no doubting that Roman law protects
individual legal rights. The Roman law of property is fundamentally a system for providing
the enforcement of an individual’s just claims to have certain kinds of privileges over things.
And so there’s no doubting that Roman law can be considered a system of legal rights,
a highly specified and complex system of legal rights. Are there civil rights in Roman law?
This is an interesting question, and the answer is fundamentally again, yes. There are certain
kinds of claims that individuals can justly make that are enforceable in Roman law and
that flow from their citizenship. We’ll look in the next lessons at some examples that
are well known from the history of early Christianity. And in fact, one of the most important features
of the history of the Roman Empire is the gradual extension of citizenship across the
Roman world. When Rome conquered the Mediterranean citizenship was still the privilege of Romans
and eventually inhabitants of Italy, but over the course of the centuries the Romans ruled
this Mediterranean world and they began to assimilate its inhabitants. It’s one of the
hallmarks of Roman Imperialism that the peoples that it rules gradually become Romanized.
And so the French to this day think of themselves as deeply influenced by Roman civilization
even though they’re not conquered and brought into the Roman Empire until the age of Julius
Caesar. But this is the nature of the Roman Empire’s gradual Romanization, and it happens
at different paces in different parts of the empire. In some places there is severe and
violent resistance against Romanization, but inexorably Roman citizenship and the Roman
way of life spreads all across the Mediterranean world. The Roman citizenship is especially
prized because it brings with it certain specific kinds of privileges, certain civil rights
and the rights of the Roman citizen gradually spread throughout the Mediterranean world
until a monumental legal act. In 212, passed under an empire named Caracalla, decreed that
all free inhabitants of the Roman Empire were to be made citizens. And so we can think of
this is a highly symbolic date 212, when Roman citizenship becomes effectively universal
around the Roman world. This was also one of the greatest generations of Roman law,
and that’s no accident. This is the generation that produced the greatest of all the Roman
lawyers, a man named Ulpian. Ulpian – the greatest of the Roman jurists. He himself
is from the East Mediterranean, from Tyre. He rises throughout the Roman Imperial system
the Roman administration and becomes a very high ranking officer of Roman state. He is
the most important of the Roman jurists. And “The Digest” of Roman law, the most important
text of Roman law that was compiled in the reign of Justinian is 40% comprised of the
writings of Ulpian. So he’s fundamental to the period of Classical Roman law. He’s a
provincial; he’s from the Eastern Mediterranean, but rises to the heights of Roman administration
because of his talent. And he is a particular expression of this moment of Roman history
when a provincial could rise to the very heights of power, and he represents this generation
when citizenship became universal across the Roman world. And to a large extent Ulpian’s
legal writing is part of the context of Romanization around the Mediterranean. And it’s been asked:
does Ulpian’s legal thought allow for a concept of human rights? Ulpian’s thought seems to
be influenced by Stoicism, a Greek philosophy that became the ordinary philosophy of many
Romans across the Roman Empire that taught that there was an orderly cosmos, a natural
order of things that was discoverable by human reason and that taught that all individuals
had a kind of moral worth, that all humans were naturally equal in moral terms. And so,
there may have been some influence of Stoicism in Ulpian’s outlook. He’s certainly influenced
by the universalization of citizenship in his age. And he has great faith in the ability
of jurists and in the ability of law. Ulpian writes that law is the art of the good and
the fair and he believes that the jurists are priests of the temple of the law. So he
has a very high ambition for the potential of law to embody that which is just, and it’s
therefore been asked does Ulpian envision a kind of right, a kind of claim that one
can have simply by virtue of their being human? And so I’ve asked you to look at a number
of passages that are from the pen of Ulpian and to ask, is there a sense in any of these
texts that there is a human right?

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  1. natures god is above this roman law and that is why we did a declaration of independence and our original constitution to the 13th article was our only constitution that i stand under and i am above this roman law due to my god which is natures god … all this in essence is bullshit unless you allow it to be …

  2. this only vindicates the guilt of lawyers who have distilled the whole world of its rights ..death to them and the bullshit above them kill all royalty and the church should also go to the hell they created.

  3. I have a question that is not at all designed to spark a religious debate, in fact I will not even debate on religion vs naturalism. However I have a question based on both, the implications of both and the validity of them. Now I think it is safe to say that religion specifically Christianity can justify their belief in law, order and justice so there is no real need to go into that. However, remove God, God does not exist, we are just animals. Animals take what they want when they want. Therefore on what grounds does the atheist claim rape, murder and pedophilia is wrong? If according to the atheist humans are mere animals, regardless of advancement in intelligence on what basis does the atheist say that kidnapping is wrong? Because the mother mourns the loss? Animals in the wild such as birds, elephants, cats etc have all been observed to mourn loss of their offspring. What makes human sense of loss more important than that of a bird, elephant or cat? The bird doesn't want it's offspring taken by the weasel, but the weasel doesn't care. A human mother doesn't want her children taken by a pedophile bu the pedophile doesn't care. In the wild the weasel isn't hauled off to prison, but humans who are just animals according to atheists are. on what grounds can this be justified by the atheist? This is an honest question of philosophy and I am absolutely serious it is not designed to start a debate on evolution vs creationism. I just want to hear the justification for laws that are applied to humans which are just animals like any other animal according to the atheist.

  4. If the contemporary scholarly consensus is that all humans are equal thus law is justified, why is the prevalent view worldwide that some humans are inferior to others 2000 years after this philosophy was recognized. It feels like the consensus of equality is only philosophical. We constantly hear the word equality preached, and justice for all. Then we watch 2 men commit the exact same crime, one is wealthy the other is poor. The wealthy man hires an attorney and gets almost no time or in some cases no time at all, the poor man gets 5 years in prison. Take for example the male school teacher vs the female school teacher, they both molest a student, the male gets 5 years in prison the woman gets 6 months probation. Modern day equality really sounds more like the survival of the fittest mantra preached by champions of evolution. This causes me to ask a couple questions. If the justification of law is that all humans are created equal, but is not the attitude prevalent in modern society one could argue that all men are not in fact equal and therefor justification of law is nonexistent at least on the merit of all people are equal. Law could be justified by other means I suppose. However as an atheist, the existing law today does in fact reflect a more survival of the fittest attitude. Which at it's core really means, law exists to protect the wealthy from the poor. Translated to the animal kingdom, the squirrel who has many nuts makes a law so the squirrel with few nuts can not steal from his stash of many nuts. No law like this exists in nature, but has been constructed by humans. The reality is to whose benefit? Everyone's? Or the wealthy?

  5. Actually, it was Celsius who said that law is the art of good and fair, not Ulpian (in Latin it sounds like that: Jus est ars boni et aecqui)

  6. Dear My Lawyer, H.N. Year, in case you right now can't call me, Chile, I'm just happy w. Your Relev. Reception of my good msg. that there are many, who can 'testify(!)' to being false about, what good news truly deserves & IS, so I can find out etc., all my best N. Year regards, up there, 'J.A.,' Stgo., The Danish Law, My Semi-ac. Wendy & for inst. certain speculations on This Jehovanu's 'Famous' Palace That seems to be no big case, (perfection), of mine.

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