The Vital Influence of Roman Law in Spanish Legal Practice: Enduring Principles for Modern Lawyers

I have to admit that, although I had a magnificent professor of Roman Law at the University of Málaga, I did not give it the importance it deserves, nor did I realize at that time that this subject could have very practical effects in the profession of lawyer, as there are times when you need legal grounding and don’t know where to turn, but if you remember a Latin phrase, it helps you out of trouble and warms you up for the search for current legal regulations…

Mr. Antonio Carrillo de Albornoz was, as they say now, a genius; he strolled around the classroom giving master classes, with stories that truly kept us engaged and taught us. He had an extraordinary command of the classroom and earned a special place in the hearts of thousands of students through his merits. I want this article to be my small tribute to one of the best law professors in Spain.

   Roman Law in Modern Legal Practice

   Contents [Index]

• Why Roman Law is studied at Spanish universities

   Introduction: Roman Law has left an indelible mark on the legal practice worldwide, and Spain is no exception. Although at first glance it may seem like an ancient legal body outdated by time, its fundamental principles continue to significantly influence the current Spanish legal system. In this article, we will explore the practical importance of Roman Law in the daily work of lawyers in Spain, highlighting how its concepts and principles remain relevant in resolving modern cases.

   Foundations of Roman Law in Spain: Since the time of the Roman Empire, Roman Law has been a cornerstone in the legal structure of Spain. For centuries, Roman laws influenced Spanish legislation, and although new codes and legal systems have emerged, the Roman legacy remains palpable. In fact, it is the basis of Civil Law. Furthermore, it allows us to understand how legal concepts have developed and evolved throughout history and how they influence contemporary law.

   Jurisprudence: The interpretation of the law through Roman jurisprudence laid the groundwork for the current Spanish judicial system, where judicial precedents hold significant weight in decision-making, but our Article 1.6 of the Civil Code includes it as a complement to the legal system. Equality Before the Law: The principle of equality before the law, proclaimed by the Romans, continues to be a fundamental pillar in the Spanish and even global legal system, which we can see in Article 14 of our Constitution, guaranteeing that all citizens are treated equitably and justly. Property Law: Roman concepts of property and contracts remain relevant in modern legal practice, providing a solid framework for resolving disputes related to goods and commercial transactions. Civil Liability of 1902 and the following Civil Code: Roman foundations of civil liability have been incorporated into the Spanish legal system, establishing the basis for compensation for damages in cases of negligence or breach of contract. Latin terms like damnum emergens («emerging damage»), lucrum cessans («lost profit»), and neminem laedere («do not harm anyone») are still in use.

   Practical Application in the Lawyer’s Work: Lawyers in Spain benefit from a deep understanding of Roman Law in their daily work. From drafting contracts to representing clients in litigation, Roman principles inform legal strategies and the interpretation of the law.

   Importance in Legal Education: Teaching Roman Law remains fundamental in the training of lawyers in Spain. Understanding the historical foundations of law provides professionals with a solid base to face contemporary legal challenges.

   Development of Analytical Skills: The study of Roman Law involves analyzing ancient legal texts and understanding their relevance in the modern context. This helps develop analytical and critical thinking skills that are essential for legal practice.

   Practical Examples of Roman Law

Although ancient, Roman Law continues to have a significant influence on numerous aspects of the modern legal system. Here are some practical examples of how Roman Law is applied today:

• Contracts: Roman principles regarding the formation and execution of contracts remain relevant today. For example, the concept of pacta sunt servanda (agreements must be kept) is a fundamental basis in contractual law, both in Spain and other legal systems.
• Property: Roman concepts of property, such as usucapio (acquisition of property by continuous possession), still apply in modern property law. In cases of disputes over real estate ownership, Roman jurisprudence can be invoked to resolve issues of possession and property rights.
• Civil Liability: Principles of civil liability established by the Romans, such as the notion of culpa (fault) and the obligation to repair damages, are fundamental in modern civil law. These concepts are applied in cases of negligence, personal or material damages, and other legal matters related to civil liability.
• Successions: Roman norms and principles regarding successions and inheritances remain relevant in modern succession law. Many countries, including Spain, have incorporated aspects of Roman Law into their succession laws to determine the distribution of inheritance among heirs.
• Criminal Law: Although modern legal systems have evolved considerably since Roman times, many principles of Roman Law continue to underpin current criminal legislation. For example, the principle of nullum crimen sine lege (no crime without a prior law establishing it) is a fundamental principle in contemporary criminal law, as recognized in Article 9.3 of our Constitution.

These are just a few examples of how Roman Law continues to be relevant in modern legal practice. Its enduring influence manifests in various areas of law, providing a solid foundation for the functioning of the legal system today.

   Terms of Roman Law Still in Effect Today

Although Roman Law is an ancient legal tradition, many of its terms and concepts remain relevant and in effect in contemporary legal practice. Here are some terms from Roman Law that are still used today:

• Pacta sunt servanda: This Roman principle means that contracts must be fulfilled. Although it may not be expressed exactly the same way, the idea that parties must comply with the agreed terms in a contract is a fundamental principle in modern contractual law.
• Usucapio: Usucapio is the concept of acquiring property rights over an asset through continuous and peaceful possession for a period established by law. This principle remains relevant in many jurisdictions as part of laws regarding prescription and acquisition of property by possession.
• Ius cogens: This term refers to imperative norms or fundamental principles of law that are universally accepted and cannot be derogated by agreement between parties. Today, these principles apply in areas such as human rights and international law.
• Culpa: In Roman law, culpa referred to negligence or fault in committing an unlawful act. This concept remains relevant in modern civil law, where fault is a key element in determining liability for damages in negligence cases.
• Fiducia: Fiducia was a type of contract in Roman law in which one party transferred ownership of an asset to another party with the intention that the latter would maintain or manage it for the benefit of a third party. This concept has similarities to trusts in Anglo-Saxon law.
• Testament: The Roman testament was a legal instrument that allowed a person to dispose of their property after their death. Although the formalities and procedures have changed over time, the concept of a testament remains fundamental in modern succession law.

These are just a few examples of terms and concepts from Roman Law that continue to be relevant in contemporary legal practice. Its legacy endures in many areas of law, providing a solid foundation for the functioning of the legal system today.

   Conclusion: In summary, Roman Law is not merely a relic of the past, but a vital component of the Spanish legal system. Its enduring influence is reflected in the principles and concepts that guide the daily legal practice of lawyers in Spain, demonstrating that even in the modern era, historical foundations remain relevant in the pursuit of justice.