The Historical and Constitutional Context of Roman Law: A Brief Overview

Faculty of Law, University of Auckland, Auckland, New Zealand


1.1 Divisions of Roman Constitutional and Legal History

The history of Roman law in antiquity spans a period of more than eleven centuries. Initially the law of a small rural community, then that of a powerful city-state, Roman law became in the course of time the law of a multinational empire that embraced a large part of the civilized world. During its long history Roman law progressed through a remarkable process of evolution. It advanced through different stages of development and underwent important transformations, both in substance and in scope, adapting to the changes in society, especially those derived from Rome’s expansion in the ancient world. During this long process the interaction between custom, enacted law and case law led to the formation of a highly sophisticated system, gradually developed from layers of different elements. But the great bulk of Roman law, especially Roman private law, was not a result of legislation but of jurisprudence. This unenacted law was not a confusing mass of shifting customs, but a steady tradition developed and transmitted by specialists, initially members of the Roman priestly class and later secular jurists. In the final phases of this process when law-making was increasingly centralized, jurisprudence together with statutory law was compiled and ‘codified’. The codification of the law both completed the development of Roman law and evolved as the means by which Roman law was subsequently transmitted to the modern world.

Roman history is traditionally divided into three major periods that correspond to Rome’s three successive systems of political organization: (1) the Monarchy, from the founding of Rome in the eighth century bc to 509 bc; (2) the Republic, from 509 bc to 27 bc; and (3) the Empire, from 27 bc to ad 565. The republican era is subdivided into two phases: the early Republic, from 509 bc to 287 bc, and the late Republic, from 287 bc to 27 bc. The imperial era is likewise subdivided into two parts: the early Empire or Principate, from 27 bc to ad 284, and the late Empire or Dominate, from ad 284 to ad 565. According to some Romanist scholars, Roman legal history follows these divisions as the various legal institutions adapted to the type of government in power.

Roman legal history may also be divided into periods by reference to the modes of law-making and the character and orientation of the legal institutions that prevailed in different epochs. In this respect, the following phases are distinguished: (1) the archaic period, from the formation of the city-state of Rome to the middle of the third century bc; (2) the pre-classical period, from the middle of the third century bc to the early first century ad; (3) the classical period, from the early first century ad to the middle of the third century ad; and (4) the post-classical period, from the middle of the third century ad to the sixth century ad. The archaic period covers the Monarchy and the early Republic; the pre-classical period largely coincides with the later part of the Republic; the classical period covers most of the first part of the imperial era, known as the Principate; and the post-classical period embraces the final years of the Principate and the late Empire or Dominate, including the age of Justinian (ad 527–565).1

Although the above divisions facilitate the study of Roman law, one must recall that Roman law evolved gradually and therefore no distinct lines separate the different stages of its development. The sources of law were, in varying degrees of strength from period to period, all present and in force at the same time, and in diverse ways qualified the influence of each other.

During the early archaic period, Roman society was governed by a body of customary norms with a largely religious character. Their formulation and articulation was mainly determined by the priestly college of the pontiffs. Only the pontiffs were acquainted with the technical forms employed in the typical transactions of private law and were entitled to offer authoritative advice on questions of law. Resembling the law of other primitive societies, the Roman law of the archaic period was characterized by its extremely formalistic nature. A legal transaction or procedure could not produce its desired effects unless it was performed in accordance with strictly prescribed rituals. A momentous event of this period was the codification of the customary norms that governed the life of the Roman citizens by the Law of the Twelve Tables, enacted around 450 bc. This law embodied the first written record of the rules and procedures for the attainment of justice and it entailed a new source of law, in addition to the unwritten customary law. In the years after the enactment of the Law of the Twelve Tables, legal development was based largely on the interpretation of its text, a task carried out by the pontiffs and, in later times, by secular jurists. Moreover, later in this period the office of praetor was introduced (367 bc)—a new magistracy entrusted with the administration of the private law. In the course of time the praetor’s edict became one of the strongest formative forces in the development of Roman law, furnishing the basis for a distinct source of law known as ius praetorium or ius honorarium.

The legal history of the pre-classical period is marked by the emergence of the first secular jurists (iurisconsulti or iurisprudentes), who, like the pontiffs, were members of the Roman governing aristocracy. The main focus of their activities was presenting legal advice on difficult points of law to judicial magistrates, judges and parties at law, and the drafting of legal documents. Towards the end of this period the first systematic treatises on civil law emerged—a development reflecting the influence of Greek philosophy and science on Roman legal thinking. The legal history of this period is marked also by the development of the ius honorarium, or magisterial law, as a distinct source of law. As noted, early Roman law was rigid, narrow in scope and resistant to change. As a result of the changes generated by Rome’s expansion, the Romans faced the problem of how to adjust their law to address the challenges created by the new social and economic conditions. In response to this problem the law-dispensing magistrates, and especially the praetors, were granted the power to mould the law in its application. Although the magistrates had no legislative authority, they extensively used their right to regulate legal process and thus in fact created a new body of law that was progressive, flexible and subject to continual change and development.

Roman law reached its full maturity in the classical period and this emanated mainly from the creative work of the jurists and their influence on the formulation and application of the law. From the early years of the Principate age the emperors customarily granted leading jurists the right to present opinions on questions of law (ius respondendi) and deliver them by the emperor’s authority. In the later half of the second century it was recognized that when there was accord between the opinions of the jurists who had been granted this right, these opinions operated as authoritative sources of law. Besides dealing with questions pertaining to the practical application of the law, the jurists were also engaged in teaching law and writing legal treatises. The main fabric of Roman law, as we know it today, was established upon the writings of the leading jurists from this period. During the same period, the resolutions of the senate and the decrees of the emperors came to be regarded as authoritative sources of law. On the other hand, the role of the magisterial law (ius honorarium) gradually declined as praetorian initiatives became increasingly rare. The final codification of the praetorian edict in ad 130 terminated the development of the ius honorarium as a distinct source of law.

In the post-classical period the only effective source of law was imperial legislation, largely concerned with matters of public law and economic policy. Moreover, as jurisprudence had ceased to be a living source of law, earlier juristic works were regarded as a body of settled doctrine. At the same time, custom again played a part as a secondary source of law. During this period, as the body of imperial legislation grew, there emerged the need for the codification of the law. In addition, direction was required for the use of the classical juridical literature—a vast body of legal materials spanning hundreds of years of legal development. The process of codification commenced with the publication of two private collections of imperial law, which appeared at the end of the third century ad: the Codex Gregorianus (ad 291) and the Codex Hermogenianus (ad 295). These were followed by the Codex Theodosianus, an official codification of imperial laws published in ad 438. The process of codification ceased in the middle of the sixth century ad with the great codification of the Roman law, both juristic law and imperial enactments, by Emperor Justinian.

1.2 The Archaic Period (Monarchy and Early Republic)

1.2.1 General Historical Background

Ancient legend and modern archaeology converge in the story of the Palatine Hill. On this hill, situated in the lower valley of the Tiber River on the central Italian plain of Latium, tradition asserts that Romulus founded the city of Rome on the 21st April of 753 bc. Archaeology confirms the settlement of a pastoral community on the Palatine Hill in the eighth century bc. At some time in the seventh century bc the Etruscans, a highly civilized people who occupied the neighbouring territory of Tuscany, crossed the Tiber River and conquered Latium. It would have been now that the villagers of the Palatine Hill joined up with other clans (gentes) in the area to form a larger political entity in the form of an autonomous city-state, according to the Etruscan system of political organization.2

The earliest Rome was an agricultural community: the mass of the population was composed of small freeholders and economic life was based on cattle-raising and the cultivation of the land. Political power was in the hands of a landowning aristocracy, the patricians, who dominated the most important political body, the senate, out of which the highest magistrates of the state were chosen. Social life revolved around the family (familia), the basic social unit, whose head (paterfamilias) had absolute authority over all persons and all property in his family group. A turning-point in the history of this period was the overthrow of the monarchy, Rome’s earliest system of government, at the close of the sixth century bc and the establishment of an aristocratic republic. During the period from the sixth to the mid-third century bc Rome’s social and political organization underwent a series of important changes derived from the so-called ‘struggle of the orders’: the internal political strife between the old aristocracy, the patricians, and the lower classes, the plebeians. By the middle of the third century bc a precarious equilibrium between the classes had been established and the Roman state came to be dominated by a new nobility composed of both patrician and wealthy plebeian families.

Rome’s social and political development during the early republican age was directly related to her steady expansion throughout Italy. In 493 bc, Rome concluded a treaty with a league of Latin cities whereby each party undertook to aid the other in the event of war. Thereafter, the Romans concentrated on quelling the power of opposing tribes to the north while gradually dominating the Latin cities. During the fourth and early third centuries, the Romans fought a series of wars against the Samnites (a tribe from the Apennine area); the Latins who rose in revolt; the Celts and the Etruscans; and finally the Greek city-states of southern Italy. By the time these wars were over in 272 bc the Romans had gained control over most of the Italian peninsula. This did not entail the formation of a single state; rather, the various Italian communities were more or less allowed to govern themselves but they were made subordinate to Rome in different ways.

1.2.2 The Constitutional Framework

According to Roman tradition, a succession of seven kings had governed Rome in the first two and a half centuries after the city’s establishment.3 Although knowledge of the political history of the regal period is scarce, its institutions must almost certainly have included a council of elders, or senate, in which the heads of the noble patrician families had a seat, and a popular assembly, where the voice of the people could make itself heard from time to time. The king (rex) wielded much of the same power over his subjects as that of a Roman head of family over his household, including the right to inflict capital punishment. He was also responsible for foreign relations and for war, public order, justice and the maintenance of Roman state religion. In carrying out his various duties the king would usually seek the advice of the senate, which was taken to represent the collective opinion of the patrician class. One of the matters that came before the senate was the choice of a king, for the Roman monarchy seems to have been elective rather than hereditary.4 The royal power appears to have significantly expanded in the late seventh century bc with the introduction, under Etruscan influence, of the principle of imperium or supreme command.

The kingship came to an end in 509 bc when King Tarquinius Superbus was overthrown and replaced by two annually elected magistrates. Apparently, the fall of the Monarchy was devised by the patricians who, chafing under high-handed foreign monarchs who did not respect their prestige (dignitas) or their advice, led a movement that wrested control of the state from the king. The uprising was probably inspired by similar movements in neighbouring cities and precipitated by the general weakening of the Etruscan power in Italy.

Roman writers describe the end of the monarchy as one of the fundamental events of Roman history. However, the constitutional change from monarchy to republic was gradual and the political machinery of the Roman state underwent a long and complicated process of development and adjustment. Of particular importance was the gradual shift of power from the exclusive control of the patrician class towards the plebeians. This was reflected in the creation of political institutions specifically designed to safeguard plebeian interests and the opening up of offices that had traditionally been the preserve of the patricians. However, the plebeians’ success in the so-called ‘conflict of the orders’ did not entail the eradication of socio-economic inequalities and the fundamentally aristocratic character of the Roman state did not change. What changed was the composition of the aristocracy in power: the old patrician aristocracy was replaced by a new and exclusive patricio-plebeian nobility (nobilitas) based on wealth and office-holding.5

By the middle of the third century bc, the Roman constitution comprised three major components: the magistrates (magistratus), the senate (senatus), and the assemblies of the people (comitia).6 The Magistrates

The magistrates represented the executive. Their functions were carefully prescribed, and their powers limited by two important constitutional principles: annuality and collegiality. Annuality meant that a magistrate held office for a year only; collegiality denoted that there were at least two magistrates of equal power in the same office. Furthermore, after leaving office, a magistrate could be held liable for any offences he committed while in office.

The magistrates were elected by the assemblies of the people, which also invested them with potestas or executive power and, in the case of higher magistrates, imperium or supreme command. In exercise of his potestas a magistrate could issue executive orders (edicta) and employ any coercive measures deemed necessary for the enforcement of his orders (coercitio minor). From the imperium a magistrate derived the power to assume command of an army, convene and preside over the assemblies of the people (ius agendi cum populo) and summon and preside over the senate (ius agendi cum senatu). Moreover, only a magistrate with imperium had the full power of iurisdictio, i.e. the power of prescribing the legal principles for determining legal disputes,7 and could impose severe penalties for violations of their orders, including capital punishments (coercitio maior).8

The highest executive office of the state was held by two annually elected magistrates, the consuls (consules). Their functions were very broad and included the administration of the state, leadership of the army and holding supreme command in war. Moreover, they convened the senate and the assemblies of the people, presided over them as chairmen and introduced matters for senate discussion and legislative proposals for assembly voting. Before the introduction of the praetorship in 367 bc, they also governed the administration of justice in relation to both civil and criminal matters.

In 367 bc the Leges Liciniae Sextiae introduced the office of praetor—an office of particular importance for the development of Roman law. The praetor’s function was the administration of civil law, which had hitherto belonged to the consuls. From c. 242 bc a second praetor was appointed to exercise civil jurisdiction in disputes between foreigners (peregrini) and between foreigners and Roman citizens. The new praetor (praetor peregrinus) was distinguished from the original official whose jurisdiction was normally restricted to disputes between Roman citizens (iurisdictio urbana) and was thus termed praetor urbanus or praetor urbis. In the course of time a number of additional praetors were appointed for various purposes, for example, to act as provincial governors or as chairmen of the newly established standing criminal tribunals (quaestiones perpetuae).

From 443 bc two censors were elected for the purpose of taking the census, a function that hitherto had pertained to the consuls. Censors were elected every 5 years, but held office for 18 months, which was an exception to the annuality principle. On the occasion of the taking of the census, these officials were entitled to inquire into the private and public life of citizens and to stigmatize those whose behaviour violated generally accepted moral norms.9 They could also promulgate general measures for repressing modes of behaviour or living (e.g. excessive luxury) they considered to be contrary to the public interest or the moral traditions of the community.

From 367 bc, two aediles curules were elected each year to oversee law and order and to attend to the care and upkeep of the city. Their functions included the supervision of public works, streets and buildings in Rome, the maintenance of essential food supplies and the organization of certain public games. They also controlled public markets, laid down rules governing the sale of goods therein and exercised jurisdiction with respect to market disputes and matters of public order.10

From the middle of the fifth century bc, quaestors were elected annually to supervise the state treasury (aerarium). These officials were also entrusted with the collection of public revenues derived from taxation and other sources and the financing of public works and military operations.11

At the beginning of the fifth century bc, the plebeians decided to elect their own officials, called tribunes (tribuni plebis),12 to safeguard their interests.13 The tribunes had the right of affording aid (ius auxilii) to members of the plebeian class who were the victims of oppression at the hands of patrician magistrates. In time, the tribunes were endowed with a general power of veto (intercessio), which they might exercise against practically any act of a state organ and so bring about a deadlock in the machinery of government.14 When the political differences between the patrician and the plebeian classes disappeared the tribunes were regarded as magistrates for all the Roman people and by the third century bc they had become the chief proponents of legislation. The Senate

The senate (senatus), the great council of the state, was the most important stabilizing factor in the republican system of government. This was largely due to its prestige and influence in society and the permanence of its constitution. Its resolutions, referred to as senatus consulta, although not legally binding, carried special weight in the eyes of the magistrates and the assemblies of the people. In particular, it was the constitutional practice for magistrates to seek the advice and cooperation of the senate on the formulation and implementation of laws and other important matters of the state. In addition, resolutions passed by the assemblies of the people could not acquire the full force of laws without their ratification by the senate (patrum auctoritas).15 The senate had control of public finances, which placed the magistrates, whose activities entailed expenses for the state, in a position of dependence. It also exercised control over foreign policy: it received envoys of other states, conducted negotiations with foreign powers, appointed ambassadors (legati) out of its own ranks, concluded treaties and alliances and intervened in disputes between cities in alliance with Rome.16 Finally, it fell upon the senate to ensure that acts of state organs were carried out in accordance with the prescribed religious forms. In times of crisis the senate could declare a state of emergency, passing a special resolution (senatus sonsultum ultimum) by virtue of which the consuls were authorized to apply any extraordinary measures deemed necessary to avert the danger.

At the beginning of the republican period the senate was composed of 300 members, chosen exclusively from the patrician class.17 Leading plebeians began to be admitted to the senate after the passing of the leges Liciniae Sextiae in 367 bc. From that time the senators were drawn from among those who had occupied the highest offices of the state (notably, former consuls and praetors)18 and held their office for life. Although there is no evidence that during the Republic admission to the senate depended upon the possession of certain amount of property, there is no doubt that the senatorial class (ordo senatorius) as a whole represented the wealthiest element of society. The Assemblies of the People

Legislative power vested in the assemblies of the people, whose principal functions were the enactment of statutes and the election of magistrates. All male Roman citizens with the right to vote (ius suffragii) had a seat in these assemblies. The assemblies met when convened by the appropriate magistrate, who would place a proposal before them. This proposal could then be approved or rejected and this was done on a block vote system, not by the method of one man, one vote. The voting took place either by curia, a unit going back to very early times, or by centuria (century) or by tribus (tribe) or, in later times, by geographical unit.

Depending on whether voting was done by curia, centuria or tribus, there were three types of assembly: the comitia curiata, the comitia centuriata and the comitia tributa. Alongside these assemblies was the concilium plebis, which was reserved for the plebeians.

The earliest popular assembly in Rome was the curiate assembly (comitia curiata), based on the division of the Roman people into 30 curiae, or brotherhoods of men.19 The principal function of this assembly during the Republic was to vote on the lex de imperio, the special law whereby the imperium was vested to the higher magistrates. Furthermore, twice a year it was convened to witness and confirm certain ceremonial acts of private law, such as the making of wills and adrogatio (the adoption of a person not subject to paternal control).20

The comitia centuriata, the greatest of all Roman assemblies, consisted of the citizens organized on a timocratic basis into classes and centuries (centuriae).21 Of the political functions of this assembly the most important was the election of the higher magistrates of the state (the consuls, praetors and censors). Within its province fell also the enactment of legislation.22 Originally, it seems, legislative measures were regularly brought before it, but eventually this assembly, presumably because of its cumbrous nature, was seldom convened for legislative purposes—after the enactment of the lex Hortensia (287 bc), practically all legislative measures were brought before the concilium plebis. The comitia centuriata operated also as a court of justice hearing appeals against sentences involving death and other severe punishments imposed by magistrates.

The comitia tributa was the assembly of the citizens organized into groups according to their place of residence. This assembly possessed the important political function of electing the lower magistrates of the state, such as the aediles and the quaestors. Another task of this assembly was voting on laws proposed by higher magistrates, although generally these laws were less politically important than those enacted by the centuriate assembly. However, the relatively uncomplicated proceedings in the tribal assembly often inspired the senate, in emergencies or for expediency, to request magistrates to submit bills to this assembly rather than the comitia centuriata.

The concilium plebis was the assembly of the plebeians alone, and the voting unit therein was the tribe.23 This assembly passed resolutions (plebiscita), which originally had no binding effect outside the plebeian class. After the plebeians’ success in the struggle of the orders, the plebiscita were recognized (by the lex Hortensia de plebiscitis of 287 bc) as having the full force of laws binding on both patricians and plebeians alike. Besides its legislative functions, the concilium plebis acted as a court of justice to hear cases involving violations of the plebeians’ rights.24 From the time of the lex Hortensia onwards, this assembly, sitting under the presidency of a tribunus plebis, was by far the most active legislative organ of the state, and the great majority of the laws of which we have record were, strictly speaking, plebiscita.25

1.3 The Pre-classical Period (Late Republic)

1.3.1 General Historical Background

The late republican period witnessed Rome’s ascendancy as the dominant power in the Mediterranean world. By the middle of the third century bc the Romans had conquered most of the Italian peninsula and, by the end of the first century bc, they held sway over the entire Mediterranean basin.26 It was during this period that the Romans came into direct contact with the Greek world and were fully exposed to the influence of the Greek and Hellenistic culture. The massive influx of Greek ideas and practices had a profound impact on every aspect of Roman life, including education, religion, art and science. As the demand for instruction in Greek language, rhetoric and philosophy increased, schools began to be established under the patronage of prominent men.27 Furthermore, Rome’s expansion was accompanied by profound changes in economic life. In the course of the second century bc the city of Rome emerged as an important commercial centre and private businesses of all kinds were set up that provided services and manufactured goods.28 Rome’s increasingly sophisticated economic life required enterprising men to direct her trade, undertake the construction of public works, manage war contracts and collect taxes. This entailed the emergence of an important new class of merchants and entrepreneurs, which were known as the equestrian class (ordo equester).29

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