로마법과 비교법

Abstract

This article is dedicated to a survey of comparative law in Roman law. As a whole, the general attitude of the Roman jurists to foreign laws is to be characterized as Rome-centered. They encountered their Roman legal problems with their own Roman legal instruments. When they had to deal with problems arising from various foreign contacts, they normally reached at Romanized solutions by interpreting foreign legal institutions and concepts in the Roman way as the practice of imperial rescripts shows. Only extremely few cases are known where they allowed priority in application to foreign laws over the Roman law. Sometimes they proceeded against foreign laws in view of the Roman boni mores or in respect of good policy. They, however, never failed to respond to the challenges foreign laws engendered. Even though the unified Roman world always gave precedence to the Roman law of urbs Roma, the Roman government and jurists never levelled off entirely the local customs and traditional laws. Among the known Roman jurists, Gaius, the author of the Institutes, was probably the exception who made use of foreign legal materials in a comparative perspective to help law students understand their own law more precisely. But due to their great work of ius gentium, i.e. a body of law encompassing substantial legal norms common to all the civilized nations, their achievements in comparative law were destined to be negligible. They also had no need of developing a system of private international law. As an appendix I have made a classified list of Greek citations in the Digest and the Institutes of Justinian.