The Influence of Roman Law and Lex Rhodia on Early UK Maritime Law
1.1. Background of Roman Law
The third attempt to receive Roman law spurred interestingly from a practical problem in commerce. In the mid-19th century – whilst not receiving the actual civil law system by this stage – England sought a resolution to a dispute between its positivist common law and the natural law and equity principles of the numerous foreign legal systems used by the ship-owners in the highly competitive shipping industry. The result of this was the 1861 Admiralty Court Act which effectively melded the common law and civil law systems and established a permanent and separate admiralty court to administer law and apply special procedure to cases in maritime law. From here it is evident that Roman law has influenced the development of English law and it is in maritime law where this influence is most marked.
The English preoccupation with history and its professional administration may have contributed to the prevalence and acceptance of Roman law and history has shown that there have been 3 attempts to receive Roman law into England. The first two attempts to receive and accept Roman law were met with a hostile English reaction to the foreign law – the translation of Justinian’s Institutes into English in 1533 and the 2nd, the reception of civil law into the legal curriculum at Oxford in the mid-18th century. The English people regarded the civil law with hostility as its foreign concepts of equity and natural law seemingly contradicted their own system.
The ancient Roman law is the founding stone of the modern legal systems. Roman law was the law of the city of Rome and subsequently of the Roman Empire. The sheer volume of law which has extended over a thousand years presents a substantial history of different phases of Roman development. Roman law covers the key periods in Roman history, which are divided into the Law of the Twelve Tables, the laws of the Republican era (which approximates to the work done by the classical jurists) and the laws of Justinian I which were written and compiled in the medieval era. These laws were to absorb Greece’s legal culture and in doing so it applied natural law philosophy and embedded the rationalistic method. Such a rich history and the prevalence of Roman law as the predominant legal system in Europe during the formative age of legal systems have contributed to it being received and adapted in various ways into nearly every country in the world.
1.2. Introduction to Lex Rhodia
The rules were mostly set up using praetorian edict and judicial interpretation, but occasionally in the era of classical jurisprudence, there were statute law and even constitutionally digested, for the Enlistitic and the post-Severian rescripts are, in fact, precursors of a statutory code and they were the official assimilation of Roman and Euganian iusfis praecepta which was an attempt to codify the old jus civile. But the crown of legislative activity in the field of private maritime carriage trade was the compilation of Rhodes in the wake of the Roman conquest of Delos and Corinth in 167 B.C. Records of earlier Rhodian laws as quantified by scholars in the Digest of Justinian indicate that they were nothing more than amendments to a body of traditional custom or ius non scriptum, but the Rhodes, the Rome itself, and the general ius gentium were in an era of codification. The jus Rhodicum as a systematic written law comprised the law of the Rhodian state proper and the laws wanted for use in foreign trials or litigation by non-Rhodians. This law was a major success and was to remain a vital part of maritime law from its completion right up to the Middle Ages. Indeed, many of its ideas are still present today.
The position of the civil law of the Romans in the historical background of ancient Rome is of great importance. The period of Rome’s expansion, lasting about 200 years from the Punic wars to the fall of the western empire, witnessed an extraordinary growth in legal scholars and legal composition. The Roman Empire began in the following century and achieved its greatest extent in the 2nd and early centuries of the Empire. This period saw extensive commerce between the many parts of the widespread Empire as well as with other states. Steps were taken to provide a stable legal system for the regulation of this commerce. The study of old ius civile was found to be inadequate because of the type of legal system arising from diverse sources in different regions, the variety of persons subject to it, and the large proportion of foreigners among them – a status often involving a systematic of law. It was adequately handled through the creation of an entirely new system known as ius gentium, because it was considered to be the law common to all persons in contradistinction to ius civile, the specific law of the Roman citizens. This new development in legal technique was, in fact, a bold constitutional innovation, for it created a legal system without any territorial or personal sovereignty to back it up, and it was one of the major contributions in the legal history of mankind. The precursors of what today is called public international law were left to the old ius civile. But the whole of the private law of an expanding Roman businesses…
1.3. Significance of Roman Law and Lex Rhodia in UK Maritime Law
The significance of Roman law and Lex Rhodia in UK maritime law is a topic that can arouse much interest, particularly as the influence of the Roman law grew in importance throughout the development of English law. The historical influence of the Roman law came in two main periods of time. Firstly, the 12th century when the study of Roman law in Bologna facilitated the emergence of a general European ius commune, and secondly, during the 16th and 17th centuries when the humanists brought about a purer form of Roman law. The model law period suited the needs of expanding commercial nations. One of the reasons for the importance of Roman law in the ius commune period was because much of it was based on the principles of law and not the compilation of laws. It was therefore suitable for development and enrichment. This meant that Roman law was able to change and develop and thus could be applicable to modern needs. Similarly, the UK maritime law has adopted much of the principles found in Roman law because they are laid out standards rather than strict rules and are thus conducive to legal compromise. An example of this is the Roman legal doctrine of “ubi ius ibi remedium” or “where there is a right there is a remedy”. This means that the aggrieved party is entitled to some form of redress. In modern UK maritime law, this can be likened to the Carriage of Goods By Sea Act.
2. Development of UK Maritime Law
The end of the 11th century marked a significant turning point corresponding with the unusual occupation of England by Norman Conquest. With this occupation came the introduction of feudalistic ideas and along with them the beginnings of a centralized state system of governance. Consequently, the king was accepted as the fountain of justice and the community of realm emerged as the population of England and subjects to the same system of law. With the extension of a stable system of government across the country, it was possible for measures by way of legislation passed in the king’s courts to affect the entire nation, thus a national law was born. However, medieval England was still far from the powerful maritime nation it became in Elizabethan times. The sea was perceived as a hostile entity and was generally avoided as a means of transportation. As a result, the development of UK maritime law lagged far behind that of its continental neighbors and it was not until much later in history that effective measures were passed to institute a satisfactory maritime legal framework.
An early attempt came in the 13th century when the Selden Society is credited with having produced the Black Book of the Admiralty, a collection of laws and regulations deemed suitable for governance of the English navy during a time when conflict with France and other nations was frequent. This work, along with other statutes was essentially a translation of contemporary feudal and common law into naval terms and it was not till a further 200 years that any measure of effectiveness can be said to have come from it. This is because a distinct body of laws and regulations specific to maritime affairs did not emerge until the 16th and 17th centuries, an era often associated with the birth of general modern legal principles.
2.1. Early Legal Framework in the UK
When there was a need for expert knowledge in some point of the common law, the king in council was in the habit of directing the question in the form of a commission to common law judges. This practice subsequently crystallized into a method of obtaining a judgment in the admiralty by a process of stating a case for the opinion of the common law courts, which had been affected in a series of decisions by the eighteenth century and came to be known as the Judiciary Act.
In 1285, an offshoot of the common law for the first time was established when a statute appointed the admiral to administer law in cases specially affecting the sea. This statute and the admiral’s jurisdiction have had considerable influence in the development of maritime law, as the jurisdiction of the admiral soon became exclusive in cases of contract and damage to ships or goods, and in time extended to other matters affecting mariners.
Towards the end of the reign of King John, a significant step was taken in bringing the administration of justice in the King’s courts to the water, and the first “Maritime Charter” was given the force of law. Its clauses provided that “all pleas which touch shipwreck be determined by the ancient laws of the sea and judgment of the elected.”
2.2. Influence of Roman Law on UK Maritime Law
The Romans were great lawmakers and administrators with a natural genius for order and organization. When they acquired maritime supremacy, their attention was bound to turn to the subject of maritime law. Drawing on the Greek tradition of “philosophy of law”, they established the first elements of a science of maritime law. Roman authorities now had to decide difficult cases involving shipping and they found the Greek law inadequate, and often had to seek guidance from equity and good conscience. Roman equity satisfying both the need for legal change and gaps in the existing law, by the development maxim that “what lacks is made up” i.e the restatement of the legal rule to one which is needed to bring about a just decision, and with the development of legal fictions which were statements known to be false, to avoid an injustice, but which were made for certain purposes. An example of a legal fiction in the context of the development of maritime law was the action in rem for a ship which enabled the recovery of damage done by a ship against which a decree in personam for the damage caused would have been worthless. The action was only claimable if the ship was within the jurisdiction of the Court and therefore the fiction was that the ship committed a legal wrong by causing damage. This creative and pragmatic approach to law proved to be the right medicine for the nomophiles and with the rapid growth of sea trading through the Roman empire, the increased attention to sea power and the frequency of naval warfare, a comprehensive body of maritime law developed and this was the first time in history there was something resembling a legal code which was devoted solely to the subject of maritime law.
2.3. Incorporation of Lex Rhodia into UK Maritime Law
The carrying of goods, both passengers and freights, is the most common type of marine activity in navigation. The problems that arise during shipments, especially with small or medium-sized vessels, often leave a negative impact on the vessel’s condition. Later on, these problems contribute to the marine law to consolidate the laws into one comprehensive law today. One of the most modern laws today is Lex Rhodia.
The purpose of Lex Rhodia is to provide legal protection to the shipowners, operators, and charterers by imposing liability with their vessels. This also, at the same time, protects the interests of claimants in the event of a problem occurring during sea transport by providing a source of funds that can be claimed. This law is selected because it is very relevant to the current marine legal issues and also due to its comprehensive and modern structure. In order to make an extensive comparison between current Malaysian laws and Lex Rhodia, it is decided that only a certain part of marine laws should be compared. And this comparison will only focus on the loss or damage to the ship or cargoes. This part only represents a small fraction of marine laws, but it is still considered lengthy.
3. Impact of Roman Law and Lex Rhodia on UK Maritime Practices
As the process of “reception” shows, Roman law has had a great influence on the laws of many countries and England was certainly no exception. Though there is a dearth of evidence to show that the early medieval maritime laws of England had been influenced by Roman laws, by the late 16th century, it was clear that principles of Roman law had made their impact in the decisions of English judges. This came about for two reasons. Firstly, in about the 12th-13th centuries, English judges became acquainted with the Corpus Juris Civilis, which was Roman law contained in a collection of Justinian’s Institutes, Digest, Codex, and Novels. The reprinting of the Institutes in the late 15th century allowed for wider access to the Roman laws, instigating more specifically, the application of Roman legal principles in the decisions of English judges in the admiralty courts.
3.1. Application of Roman Legal Principles in UK Maritime Cases
The Roman legal system was wholly intertwined with the socio-political climate of early Europe and significantly with ancient Britain, due to the Roman conquest of much of the island, including Wales and most of what is now Scotland, over a period of almost 400 years between 43 BC and 410 AD. During this time, in particular during the Claudian invasion and the following Romanisation of Britain, the legal doctrines of Rome were instilled in the populace and knowledge of the law became quite widespread, particularly among the upper classes who would have been the leaders in legal cases. Roman law had a solid presence in the islands and evidence dates its practice in later years too, but there was never a time when it was truly implemented as law. Despite this, its influence in certain areas is overwhelming, particularly in maritime law.
The Roman legal system provided a very comprehensive guide to different types of contracts, including those in maritime trade. The invaluable details of the contracts let it be known what exactly was expected of each party and provided the rules that would decide what would happen in case of breaches of contract or other such misdemeanors. This was an excellent basis for any legal system and the contracts of Roman law were highly influential to those later developed in Britain. With specific relevance to maritime law, the General Average was derived from Roman sea venture contracts. This part of Roman maritime law was largely influenced by the Greek maritime law of the Rhodians, but it was included in the body of Roman law and so it will be addressed together with the Roman contracts that greatly influenced UK maritime law. Overall, these Roman contracts provided a foundation for maritime law and were since built upon using similar principles with increased doctrines to cover every eventuality.
3.2. Role of Lex Rhodia in Shaping UK Maritime Practices
The Lex Rhodia, like the principles of law relating to jettison, general average and bottomry, endeavours to lay down rules to meet the peculiar perils of the sea in the interests of the adventure as a whole. The ancient ordinances of the Rhodians were part of the customary law of the sea recognised throughout Western Europe and the Mediterranean for over four centuries. Yet it will be seen that though the consuetudo Rhodie Capitula may have influenced English law in some respects, in the main it fails to account for observed parallels between English and Roman maritime law. A close examination of the consuetudo Rhodie Capitula and the wider body of Roman law gives an indication as to why this should be the case.
In respect of its aim to create rules for maritime trade, the lex Rhodia comes closest to the character of early English law in its own time, as opposed to the scattered references through the works of Justinian which are evidence of a system largely formed from terrestrial laws. On the other hand, the importance of the consul in providing edictum which served as a source of law in disputes between parties engaged in maritime trade may be seen to parallels the role of the Roman praetor. However, the far wider body of edictum which flourished both under the republic and the early empire is arguably of greater importance the development of maritime law in Roman law. Again, the edictum of the consuls of the Rhodians carries echoes of the nature of English law in the time of the Consulate when statutes were used to guide the lord chancellor in creating rules of equity, at a time when equity was seen as a supplement to the common law, rather than a law in its own right.
3.3. Comparison of UK Maritime Law with Roman Law and Lex Rhodia
The development of Roman law in the sphere of maritime law during the medieval period was characterised by a movement from the application of law based on the will of sovereign to law based on principles of uniformity and justice. The pivotal point of reference for all maritime law during this time was the lex Rhodia, and although lex Rhodia was not a de jure precursor to any English statute, many of the principles contained within it were eventually assimilated into English maritime law. However, it is difficult to draw comparisons with modern English maritime law with that of the Roman law either classical or of the medieval period. In his work as advocate for the Admiralty, E. S. Roscoe stated “the judgment of the wise and the consensus of the learned is all that is obtainable, there are no decisions of our courts and no modern statutes directly.” This serves to highlight the irregularity and ambiguity in maritime law today, and the absence of sources of law which are vital in understanding Roman law. Akin to the situation in the mid 19th century with CJ in The Bona Ventura regarding the judgment being based on general principles and not coming from specific sources of legislation. This lack of codified legislation when compared to Roman law can be seen as a regression, as whilst some principles reflecting those of the lex Rhodia are present in English law today, there is a lack of cohesion and consistency in application. An example of this is in the law of general average, whereby it is claimed that the law as it stands does not reflect the principle of general average in its purest form, and it is necessary to refer back to the jettison of cargo. This is further complicated by the fact that despite being a principle of law maritime law is only taught in a few universities in the United Kingdom. The absence of codified statute on many issues has resulted in common law method of resolving issues and is administered in England through the Admiralty Court. This is in direct conflict with Roman law which despite developing a system of ius commune never wavered from the idea of having a binding code of law. The disparity between what is ius dispositivum and ius cogens has also served to create confusion as to what is the actual law and what is merely the decision of a judge in England today.
4. Evolution and Modern Relevance of Roman Law and Lex Rhodia in UK Maritime Law
The evolution of UK maritime law in the previous century and the contemporary application of Roman legal concepts in the UK maritime law has rekindled an interest in the doctrine of Lex Rhodia. Roman law ceased to be applied in any of the Western legal systems with the advent of Justinian’s Institutes. Yet its lasting influence, both on the civil and common law, has been well documented. Although Lex Rhodia was a law of the sea, very little is known about its origins, the nature of the society it governed, or the extent to which it applied to other legal systems. It is widely believed that the law was a body of customary rules which developed around the 5th century BC and continued until the 13th century AD, applying to the Rhodians and other maritime communities, such as the Greeks and Phoenicians. The only, and best known, surviving statement of the law is that found in the title 14, Treatment of Contracts, of the English translation of the Consulate of the Sea. Though the Consulate of the Sea was not a compilation of Rhodian law, the law of the Rhodians was assimilated with the general body of maritime law and custom, and hence it is here that the best comparison can be made.
4.1. Evolution of UK Maritime Law over Centuries
In the ancient world, ocean-going vessels were owned by private individuals or by merchants rather than by the state. If a ship was stolen or the cargo was stolen while being carried on board a ship belonging to someone else, an action lay for the theft under the Aquilian law. An action would also lie under the lex Aquilia on the part of a ship owner against a person causing damage to or killing the skipper of his ship or to his ship’s slave or pack animal, for it was well established that a ship’s slave or pack animal was assimilated to a ship for purposes of that action. In these cases, the animal’s or slave’s owner would himself have no standi to sue since nothing belonging to him had been damaged, but the owner of the ship could sue in respect of his consequential loss in being deprived of the services of the animal or slave. An actio legis Aquiliae was also available in respect of damage wrongfully caused to a ship. Evidently, the law did not regard a ship as a res mancipi, else an action in rem would have been available under the vindicatio, but an owner could recover a monetary sum assessed by the damage done.
4.2. Contemporary Application of Roman Legal Concepts in UK Maritime Law
Defined and codified over nearly a millennium, the Roman legal system is the most complex in the history of legal development. The Roman system of laws is the oldest and most influential. It began in 550 BC, with the development of the Twelve Tables, which were a code of laws developed from the early customary law of the Roman people. During the time from the Twelve Tables to the Corpus Juris Civilis, Roman law underwent substantial development. From the time of the early republic to the time of the Principate, the jus civile evolved into a highly complex system with a number of different modes of legal procedure, and a great many branches of law. This was one of the contributing causes to the collapse of the Roman Empire, but the Byzantine Empire and in the modern world it has been recreated in a way and is used in some areas to prevent the repetition of history. That is not to say that Roman law completely disappeared when the empire collapsed. Roman law has been revived in some ways because of the very revival of the Roman Empire in the east. The Roman emperor Justinian I, who was a Byzantine emperor, sought to revive the old Roman system of laws by creating his own code of laws, which is known as the Corpus Juris Civilis.
4.3. Importance of Preserving Roman Law and Lex Rhodia in UK Maritime Jurisprudence
English maritime law has developed over a period of more than a thousand years, from Anglo-Saxon times to the present day. It has become a highly sophisticated body of law, which governs many different aspects of the shipping industry. Despite its heavy reliance on legislative developments in the 19th and 20th centuries, the general principles of English maritime law have much in common with those of continental Europe, and it is to these general principles that English maritime lawyers frequently turn when they are faced with new and unfamiliar problems. There is no doubt that the general principles of English maritime law derive in large part from the maritime laws of ancient Rome, and particularly from the law of contracts, which is an area where the principles of the Roman law and those of lex mercatoria have had a lasting influence on UK law. The general principles of English maritime law have much in common with those of continental Europe, and it is to these general principles that English maritime lawyers frequently turn when they are faced with new and unfamiliar problems. There is no doubt that the general principles of English maritime law derive in large part from the maritime laws of ancient Rome, and particularly from the law of contracts, which is an area where the principles of the Roman law and those of lex mercatoria have had a lasting influence on UK law.
