THE LATE REPUBLIC: THE SOURCES OF LAW
We observed in the previous chapter that the later Republic witnessed Rome’s rise as the dominant power in the Mediterranean world. This era featured Rome’s territorial expansion and transformation from a small, closed, agrarian community into a commercial empire. Its archaic system of law, imbued with religious and ritualistic elements, was rigid in its application. Thus, it was bound to become stationary and habitually unresponsive to social change. Under the new socio-economic conditions that materialized in an increasingly complex society, it was vital to modify and extend the scope of the law. In response, Roman law broke through the barrier of formalism and was secularized and internationalized. It formed a highly flexible system that could constantly adapt to the requirements of social and commercial life.
The most important factors in this development encompassed the nascent contacts with other cultures and the increasingly intricate economic relations between Roman citizens and foreigners (peregrini). As the granting of Roman citizenship had not kept pace with Rome’s expansion, an increasing mass of foreigners residing in Roman territory did not have Roman citizenship and therefore lacked access to the Roman ius civile.1 A foreigner could not easily engage in legal transactions and, if aggrieved by another person, could not defend himself or prosecute a claim before the authorities of the city2 unless he secured personal protection from a community member. The development of foreign trade and the proliferation of foreigners living in Rome prompted the need to formulate rules applicable to disputes between foreigners, and between foreigners and Romans. This entailed the emergence of a new body of law that was Roman in origin and nature, but lacked the formalism and rigidity of the ius civile. This body of law was designated ius gentium (the law of nations) and originated from the edicts of the praetor peregrinus, the new magistrate charged with jurisdiction over cases involving foreigners.3 To a lesser extent, this law was also moulded by the edicts of the provincial governors whose jurisdiction embraced disputes between provincial Roman citizens and local community members, and occasionally cases concerning only foreigners. Attending to disputes involving people of diverse national backgrounds would have been difficult without employing rules based mainly on common sense, expediency and fairness, which were confirmed by general and prevalent usage among many communities.4 In contrast to the old ius civile, the ius gentium was characterized by its simplicity, adaptability and emphasis on substance rather than form. In this way, the ius gentium became one of the main channels whereby enlightened contemporary thinking, including Greek ideas and ethical principles, could infiltrate the system of Roman law.
However, this change of attitude did not entail relinquishment of the ancient principle concerning the restricted applicability of the Roman ius civile.Asthe office of the praetor peregrinus materialized, it induced a division in the law. The rights (iura) of citizens were recognized and protected before the old tribunal of the praetor urbanus, the magistrate in charge of the administration of the Roman domestic law. These rights were distinguished from those recognized and protected before the tribunal of the praetor peregrinus, the magistrate charged with jurisdiction over aliens. The rights within the province of the old tribunal were enforced by means of a legis actio and in accordance with the express terms of the Law of the Twelve Tables and subsequent legislative enactments. The other distinct rights were enforced through legal remedies introduced by the praetor peregrinus at his discretion and by virtue of his ius edicendi, the right to issue orders or administrative regulations that derived from his imperium. The peregrine praetor obviously enjoyed greater liberty than did his urban colleague, as no law limited his operations. Thus, when formulating remedies he could consider the new needs created by the ever-changing social and economic conditions. But where did he acquire the ideas that provided the basis of his solutions?
Although little information exists on the methods employed by the peregrine praetor in performing his functions, we may surmise that he adopted the ius civile when applicable to the relevant case. Moreover, the customary norms common to many nations must have been relevant to determining whether or not a claim was founded on ius. For example, a magistrate could easily fathom that many nations transferred titles to land and property by mere delivery and payment, and not by the formal methods familiar to Rome. This entailed an increasing recognition by jurisdictional magistrates of the validity of informal agreements or consensual contracts based on good faith (bona fides) in commercial transactions – contracts where Romans and foreigners alike could engage.5 However, an important fact to note is that when a magistrate addressed a dispute involving foreigners he had to bear in mind that his solutions must accord with what was considered proper and reasonable from a Roman citizen’s viewpoint. Thus, the ius gentium might be described as a complex system of generally observed customs and rules embodying elements which the Romans regarded as reflecting the substance of ius, or law in a broad normative sense – in other words, ‘that which was good and fair’ (bonum et aequum).6
When an appeal was presented to the praetor peregrinus, the primary basis for legal redress was the magistrate’s sense of what was right and equitable. The absence of any rigid rules in the procedure implemented by the peregrine praetor created sufficient elasticity for its adjustment to the demands of the relevant case. For that reason, not only foreigners but also Roman citizens increasingly relied on it as a means of resolving legal disputes. In time, however, the elastic technique of the peregrine praetor was adopted by the urban praetor when deciding cases between citizens that fell outside the scope of the existing positive law. At the same time, elements of the ius gentium entered the province of domestic Roman law (ius proprium Romanorum) through the urban praetor’s edict. The transition to a more flexible system of procedure acquired legislative recognition with the lex Aebutia (late second century BC), although the recognition most likely occurred long before the enactment of that law. As a result of this development, the urban praetor was no longer bound by the old statutory forms of action (legis actiones) and had freedom to devise new remedies and corresponding procedural formulae to tackle ad hoc controversies engendered by novel socio-economic circumstances. Such measures were not restricted to the application of the laws in force, but could be used to modify or replace existing law. Although in principle neither praetor had legislative authority, they actually created new law by extensively engaging their right to regulate the forms of proceedings accepted in court. A new body of law emerged that incorporated the norms of private law derived from the edicts of the praetors and other magistrates: the ius praetorium or ius honorarium (because it proceeded from the holders of offices – honores). The ius honorarium did not conflict with the existing ius civile but functioned conjunctively by supporting, correcting and complementing it.7 In this respect, it is often compared to English equity. However, unlike English common law and equity the ius civile and the ius honorarium did not operate as two separate systems administered in different courts, but were regarded as two sides of the same legal system.
The praetors were not solely responsible for the creation of the ius honorarium. Like all other magistrates, they were primarily soldiers and administrators whose duties often far surpassed in importance their legal activities. Generally, they were not legal experts and were essentially uninterested in the intellectual and scientific development of the law. This prompts the question of who demonstrated the techniques to them for producing the required legal innovations. As one might expect, responsibility for these advances is mainly attributed to the jurists (iuris consulti or iurisprudentes) who imparted advice on which the magistrates usually relied for formulating their edicts. The activities of the jurists essentially consisted of presenting of opinions (responsa) on difficult points of law to jurisdictional magistrates, judges and litigating parties, framing the formulae used in legal proceedings and drafting memoranda of transactions that could lead to future litigation. Their responsa were collated into books and, over time, an enormous mass of legal literature emerged to furnish the basis for the development of Roman law in the ensuing centuries.
After the introduction of the Law of the Twelve Tables, custom (consuetudo) ceased to operate as a direct source of law. However, it prevailed as a component in the formulation of the norms of positive law as found in the leges, the edicta of the magistrates and the interpretations of the jurists.8 Thus, many forms of action devised by the praetors to address situations not covered by the existing ius civile reflected customary norms endorsed by public opinion and actually observed by the people (opinio necessitatis).9 Similar considerations informed the jurists when formulating their responsa.
The edicts of the magistrates
As elaborated previously, an established principle of Roman law declared that the higher magistrates of the state (consuls, praetors, censors, aediles and others) had the authority to issue edicts (edicta) within their field of competence (ius edicendi). Diverse kinds of such edicts were formed: some merely gave public notice of certain facts, others contained orders that required the compliance of citizens and others delineated a programme of policy that a magistrate intended to pursue. In the field of Roman private law, important edicts were issued by the jurisdictional magistrates, especially by the praetors, aediles and provincial governors.
The praetor’s edict was designed to provide some measure of certainty in the administration of justice and it enumerated the principles which the magistrate intended to employ in discharging his duty.10 This edict was issued at the beginning of each successive praetor’s year of office and was later called perpetual edict (edictum perpetuum) as its validity was intended to subsist throughout the magistrate’s term of office. The praetor might issue further edicts during the year when certain occasions arose.11 Theoretically, a newly elected praetor was free to introduce any measures he deemed appropriate, but in time an expectation surfaced that he would absorb most of his predecessor’s edict and only initiate limited alterations. The portion of the edictum perpetuum that was retained from year to year was referred to as edictum tralaticium. No legal obligation was imposed on the praetor to abide by the directions elaborated in his edict as this was simply assumed. However, the collapse of good government in the closing years of the Republic dictated the enactment of the lex Cornelia (67 BC) that forbade the praetors’ departure from their edictum perpetuum.
As observed earlier, a citizen could obtain remedies from the praetor by means of a legis actio and in conformity with the express terms of a statutory enactment. There also existed the possibility of appealing to the praetor for aid during an emergency in accordance with the terms of the edict. The edict equally created important limitations and extensions that the praetor declared to observe when granting a legis actio. But what was the source of the praetor’s power to initiate measures in concord with principles not provided by the law in force at the time? The ius obtained through the methods provided by the praetor rested wholly on his imperium. This denoted the absolute authority, in military and civil matters, inherent in the higher magistrates of the state. We must recall that this ius honorarium did not initially resemble a system and the praetor, at best, only had the power to deny an action based on the law (legis actio), even if all forms were observed, if he thought that the granting of such an action was morally unacceptable. The ius honorarium only started to develop as a distinct system supplementary to the existing ius civile when the office of the praetor peregrinus emerged in the middle of the third century BC.
With the progressive complexity of socio-economic life, the praetor gradually recognized that new needs could be better satisfied by engaging a different method for administering the judicial powers entrusted to him. Thus, he began to devise novel remedies and procedural formulae to protect rights and interests that fell outside the scope of the existing ius civile. This process inspired the creation by the praetor of a new system of procedure known as the formulary or per formulam procedure.12 The praetor availed himself of this procedure to recognize and enforce claims arising from novel socio-economic relationships that had no basis in the ius civile.13 It must be assumed that innovations in the substantive law were gradual and organic. Whenever possible, a new formula was integrated into the system of actions recognized by the ius civile. In other cases, the praetor emancipated himself entirely from the positive law by instructing the judge to decide the case on the basis of the factual situation, thus in essence functioning as a law-maker. The praetor’s edict contained model formulae for each promised remedy and for those that already existed to enforce the traditional ius civile. However, new remedies could be granted by the praetor at any time after the publication of the edict. The new remedies and relevant fomulae were usually embodied in the edict published by his successor in the following year. In this way, the formulae used in specific types of cases became relatively fixed and the collection of established formulae was constantly augmented by new formulae.14 As previously noted, the enactment of the lex Aebutia in the late second century BC was the turning point in the development of the formulary system. This law recognized the right of the praetor to invent new fomulae to deal with claims not covered by the traditional ius civile.
But how did the praetor choose which rights to protect? The main basis for this choice appears to have been the new social and ethical values generated by the conditions of the times. These values materialized in appropriate guidelines that emphasized the importance of fairness and honesty in business practices, accorded preference to substance over form in transactions and refused to uphold obligations arising from promises elicited by fraudulent means. An important factor was the growing role of contractual good faith (bona fides) as a legal concept relating to the enforcement by legal means of what had previously been viewed as merely social or moral obligations.15 The classical jurists used the term aequitas (equity) when referring to the basis or the qualifying feature of praetorian measures granted on a case-by-case basis and promised in the edict.16 There are two ways to understand the connection of equity with positive law: first, aequitas may be construed as the substance and intrinsic justification of the existing legal norms; second, it may be conceived as an objective ideal that the law aims to effectuate and which determines the creation of new legal norms and the modification of those that do not conform with society’s sense of justice or fail to accomplish the requisite balance in human relations. This second understanding of aequitas served as the basis of the innovations produced by jurisdictional magistrates and jurists. However, according to classical jurists, what has positive force is not aequitas as such, but ius, or law in a broad sense. Thus, until aequitas is transfused into a positive norm it remains confined to a pre-legal sphere. Once this transfusion has occurred, ius has notable significance while aequitas exists as the matrix.17 The incorporation of equity into the administration of the law is attributable to the praetorian edict and the interpretations of the jurists. This redressed the formalism and rigidity of the traditional ius civile and enabled the creation of new law that could fulfil the needs of a changing society.
It is germane to present a few examples to illustrate the techniques engaged by the praetor for surmounting the difficulties arising from the rigidity of the ius civile.
The idea that legal obligations could materialize from anything other than a strict form was strange to the original structure of Roman law established in the Law of the Twelve Tables. Such obligations could only arise from transactions executed in a few solemn forms and rites that had a predominantly public and partly sacred character. Consider stipulatio, for example. This formal transaction consisted of a solemn question posed by one party to the other as to whether the latter would render specific performance, followed by a solemn affirmative answer from the other party. This exchange of question and answer created an actionable obligation of the answering party under the ius civile. Circumstances could exist that made it unfair for the creditor to enforce the transaction. However, no remedy was provided by the ius civile in such a case. If the parties had observed all the prescribed formalities, the validity of the contract could not be questioned. To rectify the situation, the praetor could use his own authority to include an additional clause (exceptio) in the relevant formula that enabled the defendant to render the plaintiff’s claim ineffective by showing grounds for denying judgment in the plaintiff’s favour. When the exceptio was based on the allegation that the plaintiff had acted fraudulently (dolo), it was designated exceptio doli