Ius privatum – ius publicum, vzájemné vztahy

Roman law is one of the greatest legal systems that have ever existed. The continuous uninterrupted development of Roman law for the long period of a thousand years from early custom to the Justinian codification, as well as certain specifics in its creation (e.g. the activities of the praetors in the sphere of private law and the customary basis of the public law), make it a very good object of study of the relation between ius privatum and ius publicum. Naturally, various similarities and rules for making and applying legal norms and even the existence of directly identical analogies between these two fundamental legal spheres, such as using the same general institutes, are to be found not only in Roman law, but are typical for every legal system. Interactions between Roman public and private law have not been constant throughout the whole period of existence of the Roman legal system, their intensity differed from time to time. In the earliest period of the Roman state – that of the kingship – there existed many correlations in the two spheres. In the archaic period the Roman legal system was in the process of development and was therefore not so colourful and elaborate as in later years. This simplicity led to frequent reciprocal imitation and penetration of the two spheres. For example, the number of rights of the father of the old Roman patriarchal family – pater Camillas were similar to those of the king (with the exception of the authority of the king as the commander of the Roman national army and some typical rights of the pater familias, such as ius vendendi). A very significant change in the structure of the Roman criminal procedure was made in the second century B.C. New jury-courts – quaestiones perpetuae – were formed in addition to the only criminal procedure used until that time, which was held before the popular assemblies. It is natural that procedures which proved competent in proceedings in private actions were adopted in a large number in the sphere of criminal process. Totally different reasons then caused the penetration of both spheres during the Roman Empire. The principal difference was the change in the technique of introducing new rules of private law. Throughout the Republic, Roman private law developed naturally, judged at least by the conceptions of that time. It was created mostly by the activities of the praetors and other magistrates, who had ius edicendi – the right to issue judicial edicts. In the course of the Principate and especially the Dominate that was not the case. The changes did not originate in the judicial praxis, but were dictated from above, being formed mostly at the emperor’s court. Not only did the frequency of this interference grow, often it has a rather brutal character. Especially evident were the social effects of such changes and the violence of this intervention into the norms of private law. When studying reciprocal relations between both spheres it is possible to observe not only a large number of different reasons for these relations but also many techniques which brought about this mutual influence. The easiest technique was simply to take over or more exactly unify the contents of institutes that existed in private and public law (e.g. – noxae datio – extradition to the enemy of the commander-in-chief who concluded a disadvantageous treaty). Other institutes that were at the borders of both spheres (so called “border institutes”) and which oscillated between them in different periods of time (delicta and their transformation into public criminal offences – crimina) may be studied as another example of a technique of mutual influence. Etymological correlations between both spheres are an other form of reciprocal relations one such example being intercessio (a form of assumption of an obligation or the right to countermand an order of a colleague in office or of a magistrate of lower rank). It is also possible to find connections on a completely general level, as for example the casuistic form of work of Roman lawyers or the basic sources of private law as well as the settlement of private law disputes by organs of the state. Specific for the Roman law was the fact that the conduct of the procedure as well as the reaching of the decision was in the hands of private persons. The influence between Roman private and public law was never one-sided, but was reciprocal. In some cases institutes, after their further development in one sphere, returned after a certain time to the branch of law in which they had originated. Such was the case of the condicere, which was originally a time – limit to make amends given by the Roman community to an enemy before declaring war. This institute appears in the Roman private law process and later again in public law, this time in the criminal procedure before the quaestiones repetundarum. When studying acts of state organs, which constituted norms of private law, we see an interesting tendency in the development. The state intervention was scarce at first, its number grew only gradually. For this we may find two principle reasons. Firstly, almost the only source of law was originally the custom (consuetudo) and secondly the scope of law forming private law at first in the almost exclusive sphere of the authority of the father of the Roman patriarchal family. Apart from the Lex XII tabularum, which was in all ways exceptional, it is in the time of the Republic that a large number of comitial laws appears, the number of which grows significantly from the 2nd century B.C. There are only four senatus consulta from the same period which concern, at least partly, private law. At the beginning of the Principate private law was regulated by a large number of leges, then by the decrees of the senate and most of all by imperial decrees – constitutiones. The exact specification of the contents of the terms ius privatum – ius publicum was not a point of interest for Roman lawyers, due to their mainly practical orientation. This is also the main reason why we do not find such a classification of the law in sources of law from the time of the Republic. Should we abstract from the legal thinking of that time, it would also not be right to connect such a classification with this period. The difference between private and public law tends to be more evident only at the end of the Republic, in connection with the constant changes in the public law by means of new laws. M. Tullius Cicero was the first, who attempted at a more exact specification of both terms. In his conception the whole problem was quite simplified and could be narrowed to just the question of the sources of law. The definition of Festus is equally not very exact. Cicero and Festus, as well as a number of other Roman lawyers, paved the way for the Severian lawyers, especially Ulpian, who is the author of the probably most exact ancient characteristic of both legal branches.