Considerations on the matrimonium Juris Gentium : an invitation to compare Roman law and international human rights law

What is the underlying reason behind human rights cases? If international law, generally speaking, focuses on states, how can human rights diverge from this general perspective and focus on the human person instead? This paper seeks to address whether human rights, with its human-centric reasoning, creates a new framework detached or only vaguely linked to modern international law, or, rather, it has deep-rooted historical roots. The main argument is that contemporary human rights reasoning stems from Roman law. More specifically, the current expansion of the right to marry bears strong similarities with the development of the right to marry within Roman law. This paper does not intend to prove that these institutes and doctrines on marriage are the same. Quite the opposite, current society and legal systems diverge significantly from the Romans. However, contemporary law, including international human rights, is strongly connected with Roman law, as past legal systems, especially the Roman, influence and serves as the foundations of current law.This paper addresses how Roman law was divided between civil law (jus civile) and the law of nations (jus gentium). The former, the traditional part of Roman law, regulated most aspects of people’s lives, including marriage. However, jus civile was mainly applicable to Roman citizens, which meant that foreigners would not meet the requirements for legal marriage. The limitation on marriage started to change with the increasing development of jus gentium, which changed the Roman formalistic approach to marriage to be based on consent and de facto marriage-like unions, which allowed foreigners to marry legally.The reasoning behind jus gentium’s development and change of civil law institute’s such marriage mirror that of current international human rights law, which seeks to apply its treaties and change domestic laws based on less formalistic approaches rooted on de facto considerations and consent.