We, and creation itself, actualize the possibilities of the God who sustains the world, towards becoming in the world in a fuller, more deeper way. - R.E. Slater

There is urgency in coming to see the world as a web of interrelated processes of which we are integral parts, so that all of our choices and actions have [consequential effects upon] the world around us. - Process Metaphysician Alfred North Whitehead

Kurt Gödel's Incompleteness Theorem says (i) all closed systems are unprovable within themselves and, that (ii) all open systems are rightly understood as incomplete. - R.E. Slater

The most true thing about you is what God has said to you in Christ, "You are My Beloved." - Tripp Fuller

The God among us is the God who refuses to be God without us, so great is God's Love. - Tripp Fuller

According to some Christian outlooks we were made for another world. Perhaps, rather, we were made for this world to recreate, reclaim, redeem, and renew unto God's future aspiration by the power of His Spirit. - R.E. Slater

Our eschatological ethos is to love. To stand with those who are oppressed. To stand against those who are oppressing. It is that simple. Love is our only calling and Christian Hope. - R.E. Slater

Secularization theory has been massively falsified. We don't live in an age of secularity. We live in an age of explosive, pervasive religiosity... an age of religious pluralism. - Peter L. Berger

Exploring the edge of life and faith in a post-everything world. - Todd Littleton

I don't need another reason to believe, your love is all around for me to see. – Anon

Thou art our need; and in giving us more of thyself thou givest us all. - Khalil Gibran, Prayer XXIII

Be careful what you pretend to be. You become what you pretend to be. - Kurt Vonnegut

Religious beliefs, far from being primary, are often shaped and adjusted by our social goals. - Jim Forest

People, even more than things, need to be restored, renewed, revived, reclaimed, and redeemed; never throw out anyone. – Anon

Certainly, God's love has made fools of us all. - R.E. Slater

An apocalyptic Christian faith doesn't wait for Jesus to come, but for Jesus to become in our midst. - R.E. Slater

Christian belief in God begins with the cross and resurrection of Jesus, not with rational apologetics. - Eberhard Jüngel, Jürgen Moltmann

Our knowledge of God is through the 'I-Thou' encounter, not in finding God at the end of a syllogism or argument. There is a grave danger in any Christian treatment of God as an object. The God of Jesus Christ and Scripture is irreducibly subject and never made as an object, a force, a power, or a principle that can be manipulated. - Emil Brunner

“Ehyeh Asher Ehyeh” means "I will be that who I have yet to become." - God (Ex 3.14) or, conversely, “I AM who I AM Becoming.”

Our job is to love others without stopping to inquire whether or not they are worthy. - Thomas Merton

The church is God's world-changing social experiment of bringing unlikes and differents to the Eucharist/Communion table to share life with one another as a new kind of family. When this happens, we show to the world what love, justice, peace, reconciliation, and life together is designed by God to be. The church is God's show-and-tell for the world to see how God wants us to live as a blended, global, polypluralistic family united with one will, by one Lord, and baptized by one Spirit. – Anon

The cross that is planted at the heart of the history of the world cannot be uprooted. - Jacques Ellul

The Unity in whose loving presence the universe unfolds is inside each person as a call to welcome the stranger, protect animals and the earth, respect the dignity of each person, think new thoughts, and help bring about ecological civilizations. - John Cobb & Farhan A. Shah

If you board the wrong train it is of no use running along the corridors of the train in the other direction. - Dietrich Bonhoeffer

God's justice is restorative rather than punitive; His discipline is merciful rather than punishing; His power is made perfect in weakness; and His grace is sufficient for all. – Anon

Our little [biblical] systems have their day; they have their day and cease to be. They are but broken lights of Thee, and Thou, O God art more than they. - Alfred Lord Tennyson

We can’t control God; God is uncontrollable. God can’t control us; God’s love is uncontrolling! - Thomas Jay Oord

Life in perspective but always in process... as we are relational beings in process to one another, so life events are in process in relation to each event... as God is to Self, is to world, is to us... like Father, like sons and daughters, like events... life in process yet always in perspective. - R.E. Slater

To promote societal transition to sustainable ways of living and a global society founded on a shared ethical framework which includes respect and care for the community of life, ecological integrity, universal human rights, respect for diversity, economic justice, democracy, and a culture of peace. - The Earth Charter Mission Statement

Christian humanism is the belief that human freedom, individual conscience, and unencumbered rational inquiry are compatible with the practice of Christianity or even intrinsic in its doctrine. It represents a philosophical union of Christian faith and classical humanist principles. - Scott Postma

It is never wise to have a self-appointed religious institution determine a nation's moral code. The opportunities for moral compromise and failure are high; the moral codes and creeds assuredly racist, discriminatory, or subjectively and religiously defined; and the pronouncement of inhumanitarian political objectives quite predictable. - R.E. Slater

God's love must both center and define the Christian faith and all religious or human faiths seeking human and ecological balance in worlds of subtraction, harm, tragedy, and evil. - R.E. Slater

Tuesday, August 2, 2022

UHAMKA - University of Jarkata for Studies

 



To my friends at Uhamka, Jakarta. Blessings. - re slater





HAMKA NEWGENS,
WELCOME TO UHAMKA!

University of Muhammadiyah Prof. DR. HAMKA (referred to as UHAMKA) is one of the private universities owned by Muhammadiyah located in Jakarta. As one of Muhammadiyah's movements in education, UHAMKA is an Islamic university that implements the Al-Quran, As-Sunnah, Pancasila and the 1945 Constitution. UHAMKA also carries out the catur dharma Muhammadiyah universities involving obligations in education, research, community service, and Al Islam and Ke-Muhammadiyahan.


VISION, MISSION, GOALS

As a transformation process at Private Universities (PTS), Uhamka is here to build a progressive civilization as an effort to realize Islam Rahmatan Lil'Alamin, the Uhamka Vision for 2024 is formulated, namely:

Vision

"To become a prophetic teaching university that educates spiritually, intellectually, emotionally, and socially to create a progressive civilization"

Mission

Organizing education that integrates the values ??of Al-Islam and Muhammadiyah with science.

Organizing high-quality and innovative student education and development to produce graduates who are spiritually, intellectually, emotionally, and socially intelligent;

Organizing research and community service that is excellent and tangible;

Organizing high quality university asset management and services based on competency quality with the support of ICT;

Organizing financial and non-financial asset management to improve performance and welfare in a sustainable manner

Goals

Realizing a campus which has academic norms that integrate Al-Islam and Muhammadiyah with science;

Producing graduates who are spiritually, intellectually, emotionally, and socially intelligent;

Producing high-quality and broad-impact in scientific and community service works;

Realizing a transparent and accountable higher education governance system;

Realizing a transparent and accountable higher education governance system;

Basic ValueIntegrity : All Leaders, Lecturers, Education Personnel, Students, and Alumni of UHAMKA must make the value of honesty the basis for self-development.
Trust.: UHAMKA as the fire of civilization is responsible for continuously building trust for the sake of truth through studies and research.

Compassion (Caring) : UHAMKA must develop science, technology, arts and culture that provide great value for humanity. UHAMKA teaches and trains all human resources and students to care and have a strong side to the oppressed and marginalized groups.

Advantages of UHAMKA Graduates

Spiritual Intelligence

Obedient to Practice Religious, Diligent in Worshiping, Having Noble Morals, Conscience, And Deserves To Be An Model.

Intellectual Intelligence

a. Smart
b. Creative
c. .Innovative
d. Objective
e. Agile
f. Be a solution for the community

Emotionally Intelligence

a. Self-awareness
b. It is better to "give" than "to receive"
c. Empathize / without contempt
d. Eager to excel
e. Good at collaborating / synergizing

Social Intelligence

a. Beneficial to the environment
b. Tolerance / tolerance
c. Respect for others
d. Have a good relationship
e. Feeling an inseparable part of the social environment
f. Feeling responsible for being an element of the Muhammadiyah association


UNWANTED: CHURCH LAW over CIVIL LAW



UNWANTED: CHURCH LAW over CIVIL LAW

Sectarian Interpretation of God & Morality
more often Oppresses rather than Liberates

by R.E. Slater
August2, 2022


Judge Alito's reasoning for removing Roe was based upon his belief in GOP-based "Originalism," interpreting the US Constitution on a self-selective micro-reading of it's 1700s creed denying any rights to women (gained 150 yrs later in the 1900s). Those rights have been removed again by Republicans.

Ideology At It's Worst

Much like the TV Series, "The Handmaiden's Tale," Judge Alito chose to neglect the very reason the Constitution is the "supreme law" for America's liberal democracy. A legal document officially declaring the rights of all people - men, women, and children, of any color, faith, or culture. For it is the future of children Roe is most explicit by giving to the birthing mother the right to chose when and where she grants life. Not the Trumpian state, and certainly not the Trumpian church, which say they are pro-life but by their actions have never been.

Let's Not Forget the Declaration of Independence

Secondly, so-called "Originalism" is further rejected in the US Constitution as it is fully based upon the Declaration of Independence for all individuals living in America. That all laws must be fair, equitable, and just.

Thus and thus, in both essential, and pragmatically affective ways, Alito's judgment has been stripped bare of his arguments by showing his willfully ignorant interpretive reading of America's most basic, and foundational, creeds.

The Supreme Court is Supremely Wrong

Lastly, in denying America's national creeds, Judge Alito has set the "Supreme" Court on the paths of theocratic authoritarianism where church beliefs dictate the civil rights of a nation. Not a nation's civil documents meant to avoid unjust compromises under church readings of ethics and morality.

Beliefs which are held in subjective force to a subset of the American population pretending their "moral" judgments are from God. Judgments such as removing the civil rights of North American natives, the indentured rights of white slaves, the civil rights of Black slaves, or Asians, Hispanics, Muslims, etc. Often, Church decrees meant for good end up misusing and abusing the very people they are pretending to protect.

Church Law Often Oppresses

Further, today's evangelical church has given itself over to abhorrent socio-political white Christian nationalism which culture is neither fair nor just. Sectarian laws always oppress civil laws and never encompass all society members.

History has repeatedly shown the error of church based laws meant to honor God but in truth, destroy, persecute, and oppress those under its inquisitions and crusades with its legalisms, falsehoids, lies, and hypocrisies.

Civil Law is Meant for the Greatest Good of All People

We have civil laws for a reason. They are meant for the good and wellbeing of all society members when upheld in love, truth, and equitable observance.

The Supreme Court’s reversal of Roe v. Wade has paved the way for many GOP-led states to ban or severely restrict abortion access across the country, despite around two-thirds of Americans supporting the right to an abortion in some cases. - Anon

Trust in the Supreme Court has never been lower, according to polling earlier this month that found just a quarter of Americans hold confidence in the high court. - Anon

R.E. Slater
August 2, 2022


 

Additional References

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Originalism

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In the context of United States law, originalism is a concept regarding the interpretation of the Constitution that asserts that all statements in the constitution must be interpreted based on the original understanding "at the time it was adopted". This concept views the Constitution as stable from the time of enactment and that the meaning of its contents can be changed only by the steps set out in Article Five.[1] This notion stands in contrast to the concept of the Living Constitution, which asserts that the Constitution should be interpreted based on the context of current times and political identities, even if such interpretation is different from the original interpretations of the document.[2][3] Originalism should not be confused with strict constructionism.[4]

Proponents of originalism argue that originalism has historically been the primary method of legal interpretation in America from the time of its founding until the time of the New Deal, when competing theories of interpretation grew in prominence.[5][6][7] Critics of modern originalism argue that it is rooted in conservative political resistance to the Brown v. Board of Education Supreme Court decision, as it was used by proponents of segregation to argue in opposition to civil rights legislation during the 1960s.[8] Originalism is an umbrella term for interpretative methods that hold to the "fixation thesis", the notion that an utterance's semantic content is fixed at the time it is uttered.[9] Two alternative understandings about the sources of meaning have been proposed:

Such theories share the view that there is an identifiable original intent or original meaning, contemporaneous with the ratification of a constitution or statute, which should govern its subsequent interpretation. The divisions between the theories relate to what exactly that identifiable original intent or original meaning is: the intentions of the authors or the ratifiers, the original meaning of the text, a combination of the two, or the original meaning of the text but not its expected application.


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This Court Has Revealed Conservative Originalism To Be a Hollow Shell

The Supreme Court’s right-wing justices claim to be originalists,

but then they pick and choose the history that fits

their ideological preferences.

When Justice Amy Coney Barrett joined the Supreme Court in 2020, conservatives celebrated that “there are now four avowed originalists on the Court.” To those on the right, the latest version of the Roberts Court had the potential to be the greatest originalist Court in history. But this term’s biggest decisions show how wrong those conservatives were—even as they got all the results they wanted.

Although conservative originalists have for years been touting their method as restrained, sensible, and tightly tethered to constitutional text and history, this term blew away such pretenses. If this is the great conservative originalism, then those professing it have finally and conclusively revealed it to be what many skeptics already considered it: a hollow edifice designed to hide an ugly and aggressive ideological agenda.

This is a radical Court dominated by conservatives who treat the past practices of state legislatures as determinative of the Constitution’s meaning, warping the broadly worded language that was meant to enshrine fundamental principles of liberty and equality in our national charter. This is a Court that insists it is following history and tradition where they lead, while cherry-picking the history it cares about to reach conservative results. These are damning moves for conservative justices who pride themselves on fidelity to the Constitution’s first principles.

Let’s start with Dobbs v. Jackson Women’s Health Organization, where a five-justice majority overruled Roe v. Wade and, for the first time in history, stripped away a previously announced constitutional right essential to bodily integrity and equal citizenship. Dobbs offers one of the most crabbed views of liberty in Supreme Court history. Justice Samuel Alito’s majority opinion presents liberty as an empty idea. According to Alito, “‘liberty’ is a capacious term” with hundreds of possible meanings. Because it could mean anything, Alito claimed, courts should be extremely loath “to recognize rights that are not mentioned in the Constitution.” Alito’s stingy view of liberty is driven by his fear that courts will inevitably engage in “freewheeling judicial policymaking” in the guise of protecting liberty. The Dobbs majority turned to “history and tradition” to stop courts from safeguarding unenumerated fundamental rights, beginning with the right to abortion.

Alito’s account of “history and tradition” ignores the most salient aspect of the Fourteenth Amendment’s history: the horrific abuses that led the Framers of the Fourteenth Amendment to push through changes to the Constitution to broadly guarantee the protection of substantive fundamental rights. The through line from the abolitionist critiques of slavery to the debates over the Thirteenth and Fourteenth Amendments was the idea that slavery was built on the denial of bodily integrity, coerced reproduction and the rape of enslaved women, and the tearing apart of Black families. Alito’s sweeping condemnation of unenumerated fundamental rights ignores the fact that the Fourteenth Amendment sought to guarantee rights to bodily integrity and to marry and raise a family, and the right to decide for oneself whether, when, and with whom to form a family.

In short, reproductive freedom is in the Constitution. Alito simply refuses to grapple with the Constitution’s true history.

Instead, Alito relies heavily on state practice, insisting that because abortion was widely prohibited at the time of the Fourteenth Amendment’s ratification in 1868, state bans on abortion are constitutionally permissible. Since Brown v. Board of Education, arguments from state practice have been the go-to argument for those seeking to gut the Fourteenth Amendment’s promises of freedom and equal citizenship. Defenders of school-segregation laws, bans on interracial marriage, bans on abortion, sodomy laws, and bans on same-sex marriage argued that each of these practices was constitutional based on state legislative practice at the time of ratification. Alito draws on similar arguments to justify overruling Roe.

Alito’s state-practice argument is wrong and deeply dangerous: The fundamental rights of Americans do not rise or fall depending on a head count of state practice in 1868. The Fourteenth Amendment changed the Constitution to correct a long history of subordination and suppression of fundamental rights, not freeze into amber state practices of the day. But Alito’s majority opinion shows no interest in understanding the Fourteenth Amendment. His project, despite his denials to the contrary, was to overrule Roe and provide a road map to strip away bedrock rights that the Court has protected for nearly a century, including rights to use contraceptives, enjoy sexual intimacy, and marry the loved one of one’s choice, regardless of sex—protections that Justice Clarence Thomas, in his Dobbs concurrence, indicated he would take away.

In his account of state practice, Alito presents a slanted version of history, ignoring the fact that common law made abortion accessible early in pregnancy and whitewashing the illicit racist and sexist judgments baked into the campaign to prohibit abortion. When states moved to criminalize abortion beginning in the mid-19th century, it was based on the view, shared by the Supreme Court of that era, that a woman’s proper role was to bear and raise children, as well as racist fears that white Protestant women were flouting their maternal duties at a time when immigrant populations were expanding. This is hardly history that a Court concerned with the Fourteenth Amendment’s core commitments would defer to. Rather than grapple with it, Alito blithely dismisses it as irrelevant, allowing the dead hand of an unjust past to trump the majestic language inscribed in the Constitution.

Dobbs deployed selective history to take away a fundamental right; the 6–3 ruling in New York State Rifle & Pistol Association v. Bruen deployed selective history to create one: a radically expansive right to be armed in public. The most jaw-dropping aspect of Bruen is the newly minted test the conservative majority invented to adjudicate future challenges to gun-safety legislation. Instead of using the weighted interest-balancing approach that is the norm in constitutional law, the six conservatives insisted that “the government must affirmatively prove that its firearm regulation is part of a historical tradition that delimits the outer bounds of the right to keep and bear arms.” As guns have proliferated, weapons have become more dangerous, and mass shootings have become an all-too-common occurrence, the 6–3 conservative majority insisted that new approaches to gun safety are constitutionally illegitimate. Going forward, only gun-safety laws that are backed by strong historical precedents are constitutionally permissible.

Bruen never explained why a past tradition of gun-safety regulation—written at a time when firearms were less powerful than modern ones—is hardwired into the Constitution. The Second Amendment may protect an individual right to bear arms, but nothing in its history freezes in place gun-safety regulations of the founding era. The 6–3 Court has invented a harsh test completely out of whack with the rest of constitutional law, which takes into account both rights and government interests. Nowhere else in constitutional law does the Supreme Court employ a test that is so shackled to historical practice.

Justice Thomas’s majority opinion in Bruen devoted virtually no space to canvassing the text and history of the Second Amendment. That is because nothing in history supports the idea that the government cannot enact reasonable gun regulations that respect the right to own a gun, while also protecting public safety. The problem is not the Constitution; it is the fact that the 6–3 conservative Court invented the idea that only gun-safety legislation with a strong historical backing is constitutionally permissible.

The Bruen majority promised that the government need only “identify a well-established and representative historical analogue, not a historical twin,” then spent the bulk of the opinion dismissing every single example of what Justice Stephen Breyer’s dissent called “a 700-year Anglo-American tradition of regulating the public carriage of firearms in general, and concealed or concealable firearms in particular.” The takeaway is that the conservative-majority Court will relentlessly manipulate history to find a way to strike down gun-safety legislation that it dislikes. Bruen is just the beginning.

In this term’s religion cases, Carson v. Makin and Kennedy v. Bremerton School District, the 6–3 conservative majority dramatically expanded the protections of the free-exercise clause, without a whiff of attention to history and tradition, while whittling down the establishment clause in light of historical practice. As Justice Sonia Sotomayor trenchantly put it, “The Court leads us to a place where separation of church and state becomes a constitutional violation.” This emerges most starkly in Kennedy, where the conservative majority played fast and loose with both the factual record and the law to overturn the dismissal of a public-school football coach who was fired for leading students in prayers on the 50-yard line following his team’s games. Dismissing huge swaths of prior establishment-clause doctrine as long “abandoned,” Justice Neil Gorsuch’s majority opinion insisted that “historical practices and understandings” sharply limit separation of church and state principles. On Gorsuch’s account, it was the school district who overstepped its authority, and the idea that Kennedy’s prayers might have coerced nonbelievers can be dismissed.

Adam Laats: The Supreme Court has ushered in a new era of religion at school

It is no coincidence that, in the same term that the 6–3 Court dismantled the right to abortion, it also rejected the notion that the government must act with a secular purpose and may not endorse religion. Where will the Court’s disdain for the establishment clause go next? Kennedy raises the possibility that the conservative majority might allow official teacher-led prayers on the basis of historical practice of state-sanctioned prayers in public schools. Those who care about the religion clauses—both of them—should be gravely worried that the Court might enable state efforts that degrade “from the equal rank of Citizens all those whose opinions in Religion do not bend to those of the Legislative authority”—precisely what James Madison’s famous writings on freedom of conscience and religious equality warned against.

As these examples illustrate, “history and tradition” is the new calling card of a Supreme Court that is willing to upend our constitutional order in the name of traditionalism. Do not label the Roberts Court “originalist,” if that term is to have the methodological meaning its supporters have been advertising for years. It is not. It is a deeply unprincipled conservative Court majority that manipulates both the Constitution and history to reach conservative results, reversing rights it despises and supercharging those it reveres.

David H. Gans is the director of the Human Rights, Civil Rights, & Citizenship program at the Constitutional Accountability Center.


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Virgin Mary (centre), Justinian I (left), holding a model of Hagia Sophia, and Constantine I (right), holding a model of the city of Constantinople, detail of a mosaic from Hagia Sophia, 9th century. | © Joel Carillet—iStock/Getty Images


The law of Justinian

When the Byzantine emperor Justinian I assumed rule in 527 CE, he found the law of the Roman Empire in a state of great confusion. It consisted of two masses that were usually distinguished as old law and new law.

The old law comprised (1) all of the statutes passed under the republic and early empire that had not become obsolete; (2) the decrees of the Senate passed at the end of the republic and during the first two centuries of the empire; and (3) the writings of jurists and, more particularly, of those jurists to whom the emperors had given the right of declaring the law with their authority. These jurists, in their commentaries, had incorporated practically all that was of importance. Of these numerous records and writings of old law, many had become scarce or had been lost altogether, and some were of doubtful authenticity. The entire mass of work was so costly to produce that even the public libraries did not contain complete collections. Moreover, these writings contained many inconsistencies.

The new law, which consisted of the ordinances of the emperors promulgated during the middle and later stages of the empire, was in a similarly disorganized condition. These ordinances or constitutions were extremely numerous and contradictory. Because no complete collection existed (earlier codices were not comprehensive), other ordinances had to be obtained separately. It was thus necessary to collect into a reasonable corpus as much of the law, both new and old, as was regarded as binding and to purge its contradictions and inconsistencies.

Immediately after his accession, Justinian appointed a commission to deal with the imperial constitutions. The 10 commissioners went through all of the constitutions of which copies existed, selected those that had practical value, cut all unnecessary matter, eliminated contradictions by omitting one or the other of the conflicting passages, and adapted all the provisions to the circumstances of Justinian’s own time. The resulting Codex Constitutionum was formally promulgated in 529, and all imperial ordinances not included in it were repealed. This Codex has been lost, but a revised edition of 534 exists as part of the so-called Corpus Juris Civilis.

The success of this first experiment encouraged the emperor to attempt the more difficult enterprise of simplifying and digesting the writings of the jurists. Thus, beginning in 530, a new commission of 16 eminent lawyers set about this task of compiling, clarifying, simplifying, and ordering; the results were published in 533 in 50 books that became known as the Digest (Digesta) or Pandects (Pandectae). After enacting the Digest as a lawbook, Justinian repealed all of the other law contained in the treatises of the jurists and directed that those treatises should never be cited in the future, even by way of illustration; at the same time, he abrogated all of the statutes that had formed a part of the old law. An outline of the elements of Roman law called the Institutes of Justinian (or simply Institutiones) was published at about the same time.

Between 534 and his death in 565, Justinian himself issued a great number of ordinances that dealt with many subjects and seriously altered the law on many points. These ordinances are called, by way of distinction, new constitutions (Novellae Constitutiones Post Codicem); in English they are referred to as the Novels.

All of these books—the revised Codex Constitutionum (the original work was revised four and a half years later), the Digest, the Institutes, and the Novels—are collectively known as the Corpus Juris Civilis. This Corpus Juris of Justinian, with a few additions from the ordinances of succeeding emperors, continued to be the chief lawbook in what remained of the Roman world. In the 9th century a new system known as the Basilica was prepared by the emperor Leo VI the Wise. It was written in Greek and consisted of parts of the Codex and parts of the Digest, joined and often altered in expression, together with some material from the Novels and imperial ordinances subsequent to those of Justinian. In the western provinces, the law as settled by Justinian held its ground.

Categories of Roman law

The law of persons

“The main distinction in the law of persons,” said the 2nd-century jurist Gaius, “is that all men are either free or slaves.” The slave was, in principle, a human chattel who could be owned and dealt with like any other piece of property. As such, he was not only at the mercy of his owner but rightless and (apart from criminal law) dutiless. Even though the slave was in law a thing, he was in fact a man, and this modified the principle. A slave could not be a party to a contract nor own property, but he could be given a de facto patrimony, which could be retained if he were freed; if he made a “commitment,” it could ultimately be enforced against his master. A manumitted slave became, in most instances, not only free but also a citizen.

The definition of citizenship was important for the purposes of private law because certain parts applied only to citizens (jus civile). Noncitizens could be either Latini, inhabitants of Roman settlements that had the rights of members of the original Latin League, or peregrini, who were members of foreign communities or of those territories governed but not absorbed by Rome. The great extension of the citizenship by the emperor Caracalla in 212 CE reduced the importance of this part of the law.

Family

The chief characteristic of the Roman family was the patria potestas (paternal power in the form of absolute authority), which the elder father exercised over his children and over his more remote descendants in the male line, whatever their age might be, as well as over those who were brought into the family by adoption—a common practice at Rome. Originally this meant not only that he had control over his children, even to the right of inflicting capital punishment, but that he alone had any rights in private law. Thus, any acquisitions made by a child under potestas became the property of the father. The father might indeed allow a child (as he might a slave) certain property to treat as his own, but in the eye of the law it continued to belong to the father.

By the 1st century CE there were already modifications of the system: the father’s power of life and death had shrunk to that of light chastisement, and the son could bind his father by contract with a third party within the same strict limits that applied to slaves and their masters. Sons also could keep as their own what they earned as soldiers and even make wills of it. In Justinian’s day, the position regarding property had changed considerably. What the father gave to the son still remained, in law, the father’s property, but the rules concerning the son’s own earnings had been extended to many sorts of professional earnings; and in other acquisitions (such as property inherited from the mother), the father’s rights were reduced to a life interest (usufruct). Normally, patria potestas ceased only with the death of the father; but the father might voluntarily free the child by emancipation, and a daughter ceased to be under her father’s potestas if she came under the manus of her husband.

There were two types of marriage known to the law, one with manus and one without, but the manus type of marriage was rare even in the late republic and had disappeared long before Justinian’s day. Manus was the autocratic power of the husband over the wife, corresponding to patria potestas over the sons.

Marriage without manus was by far the more common in all properly attested periods. It was formed (provided the parties were above the age of puberty and, if under potestas, had their father’s consent) simply by beginning conjugal life with the intention of being married, normally evidenced by the bringing of the bride to the bridegroom’s house. The wife remained under her father’s potestas if he were still alive; if he were dead, she continued (as long as guardianship of women continued) to have the same guardian as before marriage. Both spouses had to be citizens, or if one was not, he or she must have conubium (the right, sometimes given to non-Romans, of contracting a Roman marriage). In marriage without manus, the property of the spouses remained distinct, and even gifts between husband and wife were invalid.

Later, divorce was always possible at the instance of the husband in cases of marriage with manus; in marriage without manus, either party was free to put an end to the relationship. A formal letter was usually given to the spouse, but any manifestation of intention to end the relationship—made clear to the other party and accompanied by actual parting—was all that was legally necessary. The Christian emperors imposed penalties on those who divorced without good reason, including prohibitions on remarriage, but the power of the parties to end the marriage by their own act was not taken away.

Concubinage was recognized in the empire as a “marriage” without a dowry, with a lower status for the woman, and with provisions that the children were not legally the father’s heirs. A man could not have both a wife and a concubine. In the 4th century the emperor Constantine first enacted a law enabling the children of such unions to be legitimated by the subsequent marriage of their parents. Medieval civil law extended this rule to all illegitimate children.

Persons under the age of puberty (14 for males, 12 for females) needed tutores if they were not under patria potestas. Such tutors could be appointed under the will of the father or male head of the household. Failing such an appointment, the guardianship went to certain prescribed relatives; if there were no qualified relations, the magistrates appointed a tutor. Originally, children were considered adults at the age of puberty; but, after a long development, it became usual for those between the ages of puberty and 25 to have guardians who were always magisterially appointed. Originally, all women not under patria potestas or manus also needed tutores, appointed in the same way as those for children. By the early empire, this provision was little more than a burdensome technicality, and it disappeared from Justinian’s law.

Corporations

The Romans did not develop a generalized concept of juristic personality in the sense of an entity that had rights and duties. They had no terms for a corporation or a legal person. But they did endow certain aggregations of persons with particular powers and capacities, and the underlying legal notion hovered between corporate powers, as understood in modern law, and powers enjoyed collectively by a group of individuals. The source of such collective powers, however, was always an act of state.

Four types of corporation were distinguished:

1. Municipia (the citizen body, originally composed of the conquered cities and later of other local communities) possessed a corporateness that was recognized in such matters as having the power to acquire things and to contract. In imperial times, they were accorded the power to manumit slaves, take legacies, and finally—though this became general only in postclassical law—to be instituted as an heir.

2. The populus Romanus, or the “people of Rome,” collectively could acquire property, make contracts, and be appointed heir. Public property included the property of the treasury.

3. Collegia—numerous private associations with specialized functions, such as craft or trade guilds, burial societies, and societies dedicated to special religious worship—seem to have carried on their affairs and to have held property corporately in republican times. The emperors, viewing the collegia with some suspicion, enacted from the beginning that no collegium could be founded without state authority and that their rights of manumitting slaves and taking legacies be closely regulated.

4. Charitable funds became a concern of postclassical law. Property might be donated or willed—normally, but not necessarily, to a church—for some charitable use, and the church would then (or so it appears from the evidence) have the duty of supervising the fund. Imperial legislation controlled the disposition of such funds so that they could not be used illegally. In such cases ownership is thought to have been temporarily vested in the administrators.

The law of property and possession

In Roman law (today as well as in Roman times), both land and movable property could be owned absolutely by individuals. This conception of absolute ownership (dominium) is characteristically Roman, as opposed to the relative idea of ownership as the better right to possession that underlies the Germanic systems and English law.

  • Mancipatio, or formal transfer of property, involved a ceremonial conveyance needing for its accomplishment the presence of the transferor and transferee, five witnesses (adult male Roman citizens), a pair of scales, a man to hold them, and an ingot of copper or bronze. The transferee grasped the object being transferred and said, “I assert that this thing is mine by Quiritarian [Roman] law; and let it have been bought by me with this piece of copper and these copper scales.” He then struck the scales with the ingot, which he handed to the transferor “by way of price.”
  • In jure cessio was a conveyance in the form of a lawsuit. The transferee claimed before the magistrate that the thing was his, and the transferor, who was the defendant, admitted the claim. The magistrate then adjudged the thing to the transferee. (The sham-lawsuit theory, however, is not acceptable to all modern scholars, principally because the judgment of ownership was valid against any possible private claimant, not merely against the defendant, as in a true lawsuit.)
  • Usucapio referred to ownership acquired by length of possession. In early Roman law, two years of continuous possession established title in the case of land, one year in the case of movables. In the developed law, possession must have begun justifiably in good faith, and the thing must not have been stolen (even though the possessor himself may have been innocent of the theft) or acquired by violence.
  • In terms of occupatio, ownerless things that were susceptible to private ownership (excluding such things as temples) became the property of the first person to take possession of them. This applied to things such as wild animals and islands arising in the sea. In some views, it also applied to abandoned articles.
  • Accessio worked in this manner: if an accessory thing belonging to A was joined to a principal one belonging to B, the ownership in the whole went to B. For example, if A’s purple were used to dye B’s cloth, the dyed cloth belonged wholly to B. By far the most important application of this rule asserted that whatever is built on land becomes part of the land and cannot be separately owned.
  • Specificatio was somewhat different. If A made a thing out of material belonging to B, one school of thought held that ownership went to A, and another held that it remained with B. Justinian adopted a “middle opinion”: B retained ownership if reconversion to the original condition was possible (a bronze vase could be melted down); A obtained ownership if it was not (wine cannot be reconverted into grapes).
  • According to thesauri inventio, or treasure trove, the final rule was that if something was found by a man on his own land, it went to him; if it was found on the land of another, half went to the finder, half to the landowner.
  • Traditio was the simple delivery of possession with the intention of passing ownership and was the method of conveyance of the jus gentium. If A sold and merely delivered a slave to B, under the jus civile, A remained the owner of the slave until a specified length of time had elapsed. The praetors, however, devised procedural methods of protecting B’s possession in such a way that A’s title became valueless, and B was said to own the thing in bonis. This was a remarkable triumph for informality in the granting of title. From the phrase in bonis, later writers coined the expression “bonitary ownership.” Justinian abolished the theoretical distinction between civil and bonitary ownership.
  • The ordinary leaseholder had no protection beyond a contractual right against a landlord and could not assign tenancy. But there were certain kinds of tenure that did provide the tenant protection and that were assignable: agricultural and building leases granted for a long term or in perpetuity often enabled leaseholders to enjoy rights hardly distinguishable from ownership.
  • There were also servitudes, in which one person enjoyed certain rights in property owned by another. Rights of way and water rights were rustic servitudes; rights to light or to view were urban servitudes. Ususfructus was the right to use and take the fruits (such as crops) of a thing and corresponded to the modern notion of life interest. A more restricted right, likewise not extending beyond the life of the holder, usus permitted merely the use of a thing; thus, a person could live in a house but could not let it, as that would be equivalent to “taking the fruits.”
  • Since ownership was absolute, it was sharply distinguished from possession, which the civil law did not protect as such. Any owner wishing to interfere with an existing possessor, however, had to bring legal action to prove his title. If he interfered on his own authority, the praetor would see that the original state of affairs was restored before adjudicating the title.

Delict and contract

Obligations were classified by classical jurists into two main categories, according to whether they arose from delict or contract. Justinian’s law recognized two further classes of obligation, termed quasi-delict and quasi-contract.

As early as the 6th and 5th centuries BCE, Roman law was experiencing a transition from a system of private vengeance to one in which the state insisted that the person wronged accept compensation instead of vengeance. Thus, in the case of assault (injuria), if one man broke another’s limb, talio was still permitted (that is, the person wronged could inflict the same injury as he had received); but in other cases, fixed monetary penalties were set. Theft involved a penalty of twice the value of the thing stolen, unless the thief was caught in the act, in which case he was flogged and “adjudged” to the person wronged.

By the early empire, reforms had substituted a fourfold penalty in the case of a thief who was caught in the act, and the court assessed all penalties for injuria (which by then included defamation and insulting behaviour). The law of damage to property was regulated by statute (the Lex Aquilia), which in turn was much extended by interpretation. Additionally, there were situations in which a person could be held liable for damages even though he was not personally responsible. In Justinian’s Institutes only four delicts were dealt with: theft, robbery with violence, damage to property, and verbal or physical assault.

In the early republic, a law of contract hardly existed. There was, however, an institution called nexum, of which little can be said with certainty except that it was a kind of loan so oppressive in character that it could result in the debtor’s complete subjection to the creditor. It was obsolete long before imperial times. The contracts of classical law were divided into four classes: literal, verbal, real, and consensual. The literal contract was a type of fictitious loan formed by an entry in the creditor’s account book; it was comparatively unimportant and was obsolete by Justinian’s day. The verbal contract required set words or patterns of words to be spoken. The stipulatio was the most important form of verbal contract, for it established a form in which any agreement (provided it was lawful and possible) could be made binding by the simple method of reducing it to question and answer: “Do you promise to pay me 10,000 sesterces?” “I promise.” Originally it was absolutely necessary that the words be spoken, but by Justinian’s day a written memorandum of such a contract would be binding, even though, in fact, nothing at all had been spoken.

If an agreement was not clothed in the form of a stipulation, it must, to be valid, fall under one of the types of real or consensual contracts. A real contract was one requiring that something should be transferred from one party to the other and that the obligation arising should be for the return of that thing. Real contracts included loans of money, loans of goods, deposits, and pledges. Consensual contracts needed nothing except verbal or written agreement between the parties, and though there were only four such contracts known to the law, they were the most important in ordinary life—sale, hire of things or services, partnership, and mandate (acting upon instructions). In Justinian’s day there was a further principle that in any case of reciprocal agreement, such as an agreement for exchange (but not sale), if one party had performed, he could bring an action to enforce performance by the other. In addition to the foregoing contracts, a few other specific agreements were recognized as enforceable, but the general recognition of all serious agreements as binding was never achieved by the Romans.

Quasi-delict covered four types of harm, grouped together by no clearly ascertainable principle. They included the action against an occupier for harm done by things thrown or poured from his house into a public place and the action against a shipowner, innkeeper, or stablekeeper for loss caused to customers on the premises through theft or damage by persons in his service.

Quasi-contract embraced obligations that had no common feature save that they did not properly fall under contract, because there was no agreement, or under delict, because there was no wrongful act. The most noticeable examples were, first, negotiorum gestio, which enabled one who intervened without authority in another’s affairs for the latter’s benefit to claim reimbursement and indemnity, and second, the group of cases in which an action (condictio) was allowed for the recovery by A from B of what would otherwise be an unjustified enrichment of B at A’s expense, such as when A had mistakenly paid B something that was not due (condictio indebiti). This notion of unjust enrichment as a source of legal obligation was one of the most pregnant contributions made by Roman law to legal thought.

The law of succession

The law of succession is one of the most complex areas of Roman law. Any Roman citizen who was of age could make a will, but several very formal requirements had to be met for the will to be valid. The first requirement was the appointment of one or more heirs. An heir, in the Roman sense of the term, was a universal successor; that is, he took over the rights and duties of the deceased (insofar as they were transmissible at all) as a whole. On acceptance, the heir became owner if the deceased was owner, creditor if he was creditor, and debtor if he was debtor, even though the assets were insufficient to pay the debts. It was thus possible for an inheritance to involve the heir in a loss. Until Justinian’s day this consequence could be avoided only by not accepting the inheritance, though certain categories of heirs could not refuse. Justinian made one of his most famous reforms by providing that an heir who made an inventory of the deceased’s assets need not pay out more than he had received. Freedom of testation, furthermore, was not complete: a man was obliged to leave a certain proportion of his property to his children and in some cases to ascendants and brothers and sisters.

With regard to intestate succession, or succession without a will, those first entitled in early times were the deceased’s own heirs—that is, those who were in his potestas or manus when he died and who were freed from that power at his death. Failing these heirs, the nearest agnatic relations (relations in the male line of descent) succeeded, and, if there were no agnates, the members of the gens, or clan, of the deceased succeeded. Later reforms placed children emancipated from potestas on an equal basis with those under potestas and gradually gave the surviving spouse (in marriage without manus) greater rights of succession. By Justinian’s day the system had evolved as follows: descendants had the first claim, and failing these heirs, came a composite class consisting of ascendants, brothers and sisters of full blood, and children of deceased brothers and sisters. Next came brothers and sisters of the half blood and, finally, the nearest cognates (relations in the female line). Husband and wife were not mentioned, but their old rights were kept alive in the absence of any of the preceding categories. Justinian also gave a “poor” widow a right to one-quarter of her husband’s estate unless there were more than three children, in which case she shared equally with them. If, however, the heirs were her own children by the deceased, she received only a ususfructus (life interest) in what she took.

The law of procedure

The earliest law suits (legis actiones) were conducted orally in two stages: a preliminary one before the jurisdictional magistrate, in which the issue was developed; and then the actual presentation of evidence to the judex, or judge. The first stage required that set forms of words be spoken by the parties and, sometimes, by the magistrate. The parties making an assertion of ownership, for instance, would grasp the thing in dispute and lay a wand on it, after which the magistrate would intervene and say, “Let go, both of you.” So formal was the procedure that a plaintiff who made the slightest mistake lost his case. For the second stage, before the judex, there were no formal rules. However, the plaintiff had the burden of proof, was responsible for physically producing the defendant in court and, often, for carrying out the sentence.

Under new procedures developed in the 2nd and 1st centuries BCE, the issue at the magisterial stage was formulated in written instructions to the judex, couched in the form of an alternative: “If it appears that the defendant owes the plaintiff 10,000 sesterces, the judex is to condemn the defendant to pay the plaintiff 10,000 sesterces; if it does not so appear, he is to absolve him.” A draft of these written instructions was probably prepared for the plaintiff before he came into court, but there could be no trial until it was accepted by the defendant, for there was always a contractual element about a lawsuit under both the new and the old systems. Pressure, however, could be exercised by the magistrate on a defendant who refused to accept instructions that the magistrate had approved, just as a plaintiff could be forced to alter instructions that the magistrate had disapproved, by the magistrate’s refusal to otherwise give the order to the judex to decide the case.

In late republican times, still another system developed, first in the provinces, then in Rome. Under the new system the magistrate used his administrative powers, which were always considerable, for the purpose of settling disputes. He could command: thus if one person brought a complaint against another before him, he could investigate the matter and give the order he thought fit. As imperially appointed officers superseded republican magistrates, this administrative process became more common. The result was that the old contractual element in procedure disappeared as did the old two-stage division. Justice was now imposed from above by the state—not, as originally, left to a kind of voluntary arbitration supervised by the state.