Principles of Roman Law: History, Government, and Legal Sources

Periodization of Roman History

Archaic Period > from the foundation of Rome (753 BC) to 250 BC Pre-Classical Period > from 250 BC to 27 AD, after Caesar's death Classical Period > from 27 AD to 476 AD, the fall of the Wester Roman Empire Dominate / Late Antiquity > from 476 AD to 565 AD, Justinian Age

The history of Rome is traditionally divided into four main periods based on the dominant constitutional structure:

Monarchy

According to the tradition, Rome was founded in 753 BC by Romulus and Remus, the descendants of Aeneas. During the monarchy there were administrative and political achievements. It was established the comitia centuriata, in order to ensure that the Roman army had an impact in the affairs of the State.

During the monarchy Rome acquired some of her most important institutions, in particular the Senate, a consultative body of elders and eminent citizens.

The monarch Tarquinius Superbus was expelled and the monarchy was abolished by an aristocratic revolt because the last monarch had tyrannical ways.

Republic

During the early centuries of the Republic a hierarchy of magistrates was established:

• consuls > the kingly power was transferred to two supreme magistrates, the consuls. They were supposed to consult each other and to govern in tandem; they could veto each other's proposals, this principle was intended to prevent tyranny but which if abused, could potentially lead to inaction and disaster.
• praetors > the aim of these figures was to reduce the legal jurisdiction of the consuls, they became the chief administrators of Roman legal system.
• quaestors > they controlled the administration of the financial matters of Rome.
• censors > they compiled the census in which Roman people were classified by wealth, tribal background and military ranking. The census was vital in determining the eligibility to vote, to serve in the legions.
• tribunes > they represented the plebeian body of the people

During the Republican Age there has been some friction between patricians and plebeians. The main political grievance of the plebeians was that the magistracy was entirely in the hands of the patricians. The plebiscita resolutions, taken by the plebeian assembly, were not considered to be binding on the whole people.

The concept of joint magistracy didn't lead to serious problems thanks to the control exercised by the Senate, which was the consultative and advisory body of government. Magisters had to consult the Senate on all-important matters, but on the other hand the Senate lacked the right to make law, and this led to the collapse of the Republic .

Empire / Principate

Augustus acted constitutionally, his aim was to restore the traditional forms of Republican government. Rome was to be governed by the princeps and the Senate, who were acting in partnership. The Empire was divided in a number of provinces that were ruled by governors who were the emperor's delegates. The Empire was divided into imperial and senatorial provinces. At first the Senate preserved its traditional roles, but then the emperor became too eminent that the republican institutions gradually waned.

This period witnessed a process of Romanization, indeed the inhabitants of the Empire were educated in Roman ways, dressed in Roman clothes.

Rome started to be invaded by the barbaric populations, so the economic prosperity of the second century gave way to a grave economic crisis because the financial resources were invested in the army. Roman territory was constantly invaded by barbaric population, in AD 410 Rome was captured by the Visigoth. The collapse of the West Roman Empire was forced by a racial and religious conflict between Rome and the Germanic tribes.

Dominate

Justinian's aim was to rebuild an united Empire, free of discord and disunity. He was successful in his administrative reforms, he made strenuous efforts to eliminate corruption. More effective was his contribution to the needs of industry, commerce and law.

The Justinian Code is the most important achievement for the codification of Roman law. He attempted to summarize the Roman law of the past, at the same time updating it, and propounding it as a model for the future, indeed Roman law would have become the foundation of the legal systems of many countries of today.

Sources of Roman Law

Roman world lasted thousands of years during which ways to administrate law changed many times. Nowadays we distinguish in:

Sources of Production

a gradual creation of law > Roman Law

Sources of Cognition

defined collections by which law is known > Italian Constitution

Archaic Period Law

In the archaic period the law was a mixture of custom and royal decrees (leges regiae). Custom was ius non scriptum, it consisted of those practices which have acquired mandatory force. Customary rules concerned matters of the family such as the formation of marriage, the position of the paterfamilias; they also concerned the basic notions and procedures in Roman property law that will lead to the formal legal act: mancipatio.

Later, law became subject to author active interpretation by the pontiffs and jurists, law tended to be written down and as a consequence custom ceased to be a formal source of law. Law was administrated by few people who were the pontiffs, they didn't administrate the law in a democratic way.

Leges regiae we're the primitive form of legislation, they were published periodically throughout the regal period.

Republican Period Law

The sources of law in Republican Rome were: legislation, the edicts of the magistrates and the interpretatio of the new legal scholars.

In this period of uncertainty during which there was a conflict between patricians and plebeians, indeed the latter demanded many concession in order to improve their social position. Plebeians' aim was to obtain the certainty of right, they fought to have a written law. They obtained a first victory with the compilation of the XII tables, which are considered the first important landmark in Roman law; moreover, even though plebeians were excluded by the political careers, plebeians obtained the plebiscita, an assembly whose purpose was to fight for plebeians' needs.

XII Tables

XII Tables > ten members (decemviri) were enforcing the law, they wrote and published the XII Tables in in 451-450 BC. They're considered as Rome's first code of law, they were prepared by patricians as the law they were willing to share with plebeians, in response to the latter's demand for equal rights of liberty.

They were destroyed when Rome has been invaded by the Gallic population. XII Tables were known by heart by the elite, indeed they arrived to us thanks to the many quotation that were reported in Roman lexes.

The XII Tables were based on the existing customary law of Rome, but with the addiction of some royal decrees and innovations. They contain the first important statements concerning public and private law, the latter is greatly predominant.

Public Law

The legislation concerning capital punishment established that it can be passed only by the comitia centuriata. Moreover no one can be ordered to be executed without a trial. There is a right of appeal against a death sentence.

Private Law

Contained provisions relating to procedural manners and substantive law. They presented some useful details on how begin and lead proceedings and how to enforce judgment.

Moreover they contained the fundamental principle of Roman family law: the paterfamilias has absolute power over his children.

The tables forbidden marriage between a patrician and plebeian, a measure that will be repealed within a few years.

The Romans considered the XII Tables as the foundation of their civil law.

Assemblies in Republican Rome

Assemblies > there were some important assemblies in Republic Rome, they differed in their functions but they had features in common. The assemblies could not initiate legislation, they met to vote on proposals drawn up in a draft bill that normally would have been debated in the Senate.

Although the procedure was ostensibly democratic, in practice some votes counted for more than others. For example in the comitia centuriata they voted in order of rank, beginning with the highest; thus, those voting first tended to have an influence on the later voters. Women could not appear in the assemblies and thus could not vote. The comitia centuriata was the most important of the assemblies, it elected high-ranking magistrates; it enacted the XII Tables, but had a minor role in legislation.

Senate's Role

Senate > it did not possess legislative power, it acted as an advisory council, it exercised a great influence on the higher magistrates and it controlled over the leading men of the State. A magistrate who wanted to put a proposal before one of the assemblies, had to obtain the Senate's approval.

Edicts of Magistrates

Edicts of the magistrates > high-ranking magistrates had the ius edicendi, the right to issue edicts. The edicts of the praetors revolutionized Roman civil law in the late Republic, forming a body of law described as the ius honorarium, that was a supplement to the civil law, ius civile. The ius honorarium infused to Roman law with a new vigor and a fresh direction, transforming an introverted body of law into as outward-looking and cosmopolitan system.

The figure of the praetor was necessary in the Roman legal system, because consuls were often being called away to the wars. At first it was instituted the figure of urban praetor that exercised his jurisdiction within the civitas; then a single praetor became insufficient because a great crowd of foreigners had come into the civitas, thus another praetor was established, peregrine praetor, he exercised jurisdiction over cases in which at least one of the parties was a foreigner. After Rome's territorial growth, the system necessitated the creation of praetors for the provinces.

With the increase of bankers and business operators, as a consequence the amount of litigation increased as well, in which praetors' intervention was crucial.

The urban praetor inherited a system of procedure enforced by the legis actiones. It was a highly formal system in which the praetor was strictly bound to follow the ius civile.

The procedure by legis actiones was confined to citizens, thus the peregrine praetor could not use it for foreigners' affairs. A new procedure, called 'formulary system', was developed by the peregrine praetor for the benefit of foreigners because it was much more flexible than legis actiones.

Magistrates started to publish edicts in order to let the citizens know the jurisdiction they would exercise over any given matter.

Edicts were issued on wooden boards displayed in the Forum. They consisted of a mixture of directives and a list of procedural remedies concerning the performance of the magistrates' functions. The praetor could allow new remedies or new defenses, but also with the issued of the edicts they accumulate all the measures adopted from the previous praetors, in this way a stock body of rules was carried over from year to year, contributing to the development of the ius honorarium.

Although the content of the two type of praetors differed at first, by the end of the Republic there was considerable assimilation between them.

Interpretatio

Interpretatio > the interpreters gave an elucidation of existing rules of law but they could not create a new law. At first the pontiffs had the monopoly of the interpretatio because they were the only ones able to read and understand the law. Then their monopoly was broken, some eminent individuals learned in law, called 'jurists', gave their legal opinions in public, responsa. Their advices were not binding but the accumulation of responsa helped to elucidate the law, to give it shape, and to fill in the gaps.

Although during the Republic jurists' opinions were highly considered, on the contrary during the Empire interpretatio was lower considered.

Imperial Period

Republican Assemblies in the Imperial Period

Republican assemblies > Augustus's aim was to preserve elements of the Republican constitution in order to bring back the stability unknown to Rome for over a hundred years. The assemblies represented the will of the people, but this situation did not lasted long. The assemblies started to implement the wishes of the emperor.

Senate in the Imperial Period

Senate > although the Senate had a pronounced influence on legislation, it had no direct law-making powers. In the early Empire it was regarded as the primary organ of legislation; but in the later Empire, the close association between the Senate and the emperor lead the Senate to be identified with the imperial will. The Senate did not have the power to make