CONCEPT OF RIGHTS IN ROMAN LAW

By Nimrat Kaur, 1st Year LLM (Human Rights) NLSIU, Bangalore.

INTRODUCTION
ALL the law which we use, "concerns either persons or things or actions." No written law existed. Justinian code respected the rights of patrons, the rights of marriage, education to children. Laws were different for women, slaves, kings, cattle and the common man. Constitutional rights imposed checks and balances on the arbitrary power of Roman rulers.

No separate terminology that segregated rights and duties. The roman legal system developed in the era where slave trade was common. Roman law was based on the concept of JUSTICE and the RIGHTS OF THE INDIVIDUAL. It is from the Romans that we inherited the belief that a man should (a) not be accused anonymously, (b) not be penalized for what he thinks, (c)should be considered innocent until he is proven guilty.

JUSTICE UNDER ROMAN LAW

Justice, as defined by the Romans, was the steady and abiding purpose to give every man that which is his own ? Difference between ownership and possession; contract and tort law. Civil law and criminal law was developed and separate punishments were prescribed under them. Punishments included fines, flogging, loss of citizenship, banishment, forced labor in government mines, and death. Murder and theft against citizens were recognised as criminal acts. Jus had two meanings:
Law is the whole mass of rights and duties safeguarded remedies; Law is a right or privilege given to X against the entire general (rights in rem). A right added to one man subtracted from other men. (it is a negative right which the interest against the world).

by legal world in is right protects

RIGHTS UNDER ROMAN LAW

Rights were attached to land in the Roman law. Contractual rights also arose from Roman law (contract law as we understand has its roots in RL). Rights existed over the use of land, slaves and cattle ( at that time slaves were treated like objects). Restriction on possession of public lands(common good prevailed over individual good).

KINDS OF RIGHTS

PUBLIC

PRIVATE

PUBLIC rights- as authorised by government, Constitution, civil services. PRIVATE rights- individual rights like marriage, family, inheritance, right against trespass. COMMON rights- use of seas, air, water, common land (certain exceptions like first occupant, first finder, spoils of war).

RIGHTS OF CITIZENS
Every citizen has an equal right to enact the laws which he is bound to obey Birth, naturalisation and freeing slaves (freedmen). Right of trade and commerce, Right of marriage, Right to appeal, Right to due process of law, Right to vote, Right to civil property, Right to commit suicide or end their life, Right to hold office and official positions in senate. However, citizens also had duties which was peculiar only to them Duty to pay taxes , Duty to serve the army.

RIGHTS OF FREEDMEN

Freedmen are those who have been released from servitude imposed by law. Instrument of a juristic act- it was legal to keep slaves. Conditions for becoming citizens- honorable discharge after having served 25 years in the auxiliary force, or 26 years in the navy. No condition prescribed by law- personal favors, political consideration. Duty to serve the Navy. Foreigners could gain the rights of Roman citizenship only through Popular Assembly.

RIGHTS OF SLAVES
No right to marriage. No right to family. No right to property. No right to appear in court. Could not waive its rights, if any. Object of property and possession, alienable like other property (maybe jointly or severally owned). Some argued that slaves had moral rights. A right to freedom but its not defined anywhere.

RIGHTS OF WOMEN

She had no rights of her own and was treated as her husbands property.
The man bought the bride from parents by cash or kind payment. Sever all ties with her family and deities. In cases of adultery, the man could kill his wife. No right to own property- in Ancient Indian Law, there was no concept of women committing adultery. Only a man committed adultery. No right to stridhan.- contrary to practice in Ancient India She could be sold as a slave. Could not carry her own name. Citizenship only through her husband. No rights in public function. (civil service, witness, court proceedings)- purdah system in India. No right to legal representation. No patronage of her children.- similar to ancient India. No right to remarry incase of widow- similar position in ancient hindu law (widow remarriage act, 1856).

RIGHTS OF A PATRON

Pater familias had complete authority both over the children and his wife. Right to dispose off his children or his slaves. Impose punishment on children by whipping, imprisonment, exile, sending them to the country to work in chains alongwith his servants. Power of life and death; and the end result were bloody executions. Property accrued by the son in marriage, gift or succession was usurped by father. The rights of patron ended on his death or by voluntary consent.- this position subsequently changed under Roman law. Comparison with Karta under ancient Indian law.

CHANGING SCENARIO

Rights of women have been recognised (special provisions under Indian and International law). Also under Ancient India, women were powerful and had a divine status. Abolition of slavery- recognised as an offence. Right to life guaranteed to both citizens and non citizens. No absolute paternal power- rights of every human being are recognised. Right to property extended to daughters. No right to suicide- Gian Kaur v. State of Punjab. A duty of the State means a corresponding right of the individual ( change from right-duty to duty-right relationship). A WELFARE STATE concept with duties and liabilities.

COMMONALITIES B/W ROMAN LAW AND ANCIENT INDIAN LAW.

Constitutional power checked the arbitrariness of the ruler- Rajadharma kept the King under control. Use of common property under Roman law- welfare of people at large in accordance with Dharma. Status of a Patron- Status of Karta. Status of Women- dependent on father, husband, son. Imprisonment for a criminal act such as theft, murder etc. Right to appeal before the magistrate. Right to education of children- Duty of father to educate his child.

ANY QUESTIONS? AND A BIG THANK YOU