Faculty of Law, University of Auckland, Auckland, New Zealand
The Romans called their own law ius civile: the legal order of the Roman citizenry (cives Romani). Like other peoples in antiquity, the Romans observed the principle of personality of law, according to which the law of a state applied only to its citizens.1 Thus the Roman ius civile was the law that applied exclusively to Roman citizens.2 However, Roman law underwent an important expansion in the course of time. With the gradual enlargement of the Roman city state and the increasing complexity of legal life, Roman jurisprudence adopted the idea of ius gentium: a body of legal institutions and principles common to all people subject to Roman rule regardless of their civitas. By the introduction of the ius gentium within the body of Roman law, the scope of the law was considerably enlarged. Nevertheless, technically the position remained that some legal institutions were open only to Roman citizens. Such institutions were classified as belonging to the ius civile, while other institutions were regarded as belonging to the ius gentium in the sense that they were applicable to citizens and non-citizens alike. After the extension of the Roman citizenship to all free inhabitants of the empire by the constitution of Emperor Caracalla in ad 212, this technical distinction in effect vanished: in principle every free man within the empire was now a citizen, subject to the same law.
The term ‘sources of law’ denotes the ways in which law is created or comes into being. The Roman jurists, notwithstanding their liking for classification, were never very subtle in their approach to this term and different sources were highlighted as they existed in different historical epochs to reflect their predominance as vehicles of legal development. Reference may be made to a number of statements in which the sources of Roman law are listed, apparently without any specific order. In his Institutes, the second century ad jurist Gaius states that Roman law consists of statutes (leges), plebiscites (plebiscita), senatorial resolutions (senatus consulta), enactments of the emperors (constitutiones principum), edicts of the magistrates (edicta), and answers of those learned in the law (responsa prudentium).3 Gaius’ treatment was adopted by the drafters of Justinian’s Institutes in the sixth century ad, with the exception that the latter make a preliminary distinction between written and unwritten law.4 In Justinian’s textbook the specific sources mentioned by Gaius are subsumed under the category of written law (ius scriptum), while unwritten law (ius non scriptum) or custom is discussed briefly a few paragraphs below.5 The view that custom (also referred to as mos or consuetudo) was a source of law can also be found in the work of the first century bc orator and philosopher Cicero, who also included in his list of sources equity (aequitas) and decided cases.6 It should be noted, however, that Cicero’s conception of custom differed from that of the drafters of Justinian’s Institutes. Whilst for Cicero the term custom denoted ancestral tradition (mos maiorum) in the context of the Roman ius civile, the same term in the Institutes referred to regional and local variations on the law of the Roman Empire. The omission of custom from Gaius’ and other classical jurists’ accounts can probably be explained on the grounds that these authors did not view custom as a source of law distinct from jurisprudence, but regarded it as being connected with jurisprudence as “a special form of civil law that is founded without writing solely on the interpretation of the jurists.”7
2.2 Sources of Law in the Archaic Age
2.2.1 Customary Law and the Leges Regiae
The earliest source of Roman law was unwritten customary law, comprising norms (referred to as mores maiorum: the ways of our forefathers) that had grown from long-standing usages of the community, as well as from cases that had evolved from disputes brought before the clan patriarchs or the king for resolution. However, archaic Roman law was not marked by uniformity, since the two classes, the patricians and the plebeians, which made up the bulk of the population, appear to have been distinguished not only by the possession of different political privileges but also by the possession of different systems of customary law.8 A further divergence of practice in the primitive society out of which the city-state of Rome gradually evolved derived from the considerable amount of autonomy in legal relations that existed in the clans (gentes) out of which the earliest Roman community was formed. One might perhaps say that the earliest phase of Roman history is marked by a fundamental dualism: the civitas (in the sense of state or political community) on the one hand and the gentes on the other. Rome evolved politically as a unitary state when the gentile organization declined and the sense of unity among the population intensified. Thus, the initially diverse customs of the different gentes underwent a process of assimilation that engendered a common body of customary norms for governing the whole community. Furthermore, as the Roman state evolved, an attempt was made to create a uniform system by making the law of the patricians approximate as closely as possible to that of the plebeians.
Although the Romans themselves never analysed the concept of customary law and the classical jurists did not regard custom as a distinct source of law, there is no doubt that Roman law was almost entirely customary in its origin. Rome owed to custom an essential part of her family organization, such as the norms prescribing the rights and duties of family members and the position of the head of the family (paterfamilias); the rules regulating the formation of marriage; the earliest forms of property ownership and transfer; and a great deal of the formalities employed in legal procedure. Many of the relevant customary norms went back to the remote past of the Roman people, while others emerged later, during the formative years of the Roman city-state. The rules and procedures created in this way were characterized by extreme formalism, indeed ritualism: the casting of all juridical acts into an unchangeable form where successful completion depends upon strict adherence to a set ritual engaging certain words or gestures. This kind of formalism has a socio-psychological explanation: public opinion and, subsequently, public authority, refused to recognize rights or allow their enforcement, unless the act that created them had been performed with such publicity and formality as may draw the attention of society and leave no possibility of doubt as to its existence. In this respect it appeared fitting that the material signs (words or gestures) that accompanied the relevant act should be so precise that no doubt could arise with respect to its nature and object. It should be noted, further, that for a long time law (ius)9 was hardly distinguished from religion, being entirely a matter of ritual, and that the pontiffs (pontifices), the priests who were the first regulators of customary law, maintained in it this ritual and symbolic character.10
In the course of time, as Roman society continued to grow both in numbers and complexity, the role of custom as the principal source of law gradually diminished, for the customary norms, often vague and limited in scope, could not provide the certainty that a more intricate system of social and economic relations required. Thus, with the rise of the Roman city-state, the need emerged for the development of all-embracing legislation, i.e. the organization of law by public authority. While sanctioning the majority of customary norms already in existence, the state reserved to itself the right of making law in the future, and this opened the way to the ascendancy of written law (ius scriptum), initially in the form of statute. In later times, when law became subject to authoritative interpretation by the jurists, custom ceased to be regarded as a formal source of law having been incorporated into a variety of other sources, such as statutory law, the edicts of the magistrates and the responses of the jurists. However, customary norms continued to indirectly affect both the content and scope of laws. For instance, many transactions of private law became enforceable by actions with respect to which the judge was instructed to take into consideration matters relating to good faith (bona fides), a legal concept relating to the enforcement by legal means of what was generally viewed as social or moral obligations. Furthermore, it must be noted that the Romans did recognize local custom (mos regionis), especially in connection with customary usages prevailing in the provinces. In the post-classical period, well-established local customs were acknowledged as a supplementary source of law and exercised a considerable influence on both legislation and the administration of justice.
In the archaic period, legislation in the modern sense and as the Romans understood it in their politically mature eras, was practically unknown. The law was mainly construed as a sacred custom and thus not subject to change by direct legislative means. The classical jurist Pomponius describes the state of the law during this period as featuring a series of laws, referred to as ‘laws of the kings’ (leges regiae), which supposedly emanated from some of the early kings. According to Roman tradition, these laws were collected and recorded at the end of the regal era by Sextus Papirius, a pontifex maximus.11 The ius civile Papirianum, as this collection was known, if it ever existed, is lost to us, but a number of rules ostensibly promulgated by kings have been preserved in the works of later Greek and Roman authors. The leges regiae were probably little more than a gloss on the prevailing customary law that assumed the form of declarations composed by the kings and publicly announced during an assembly. The surviving fragments of these laws, as far as they are authentic, attest to the close connection between law and religion that marks the character of archaic law. For the most part, the kings’ laws were prescriptive or condemnatory in character. Examples of prescriptive laws, i.e. laws prescribing ‘correct’ behaviour, include a law of Romulus, Rome’s first king, prohibiting a wife from divorcing her husband12; and a law of King Numa according to which a pater familias could not sell a son to slavery after he had given him permission to marry.13 Condemnatory laws, on the other hand, laid down penalties for various forms of wrongdoing. These penalties sometimes consisted of private redress against the wrongdoer; e.g. retaliation (talio) was allowed in some circumstances as satisfaction for certain forms of personal injury. However, offences of a particularly serious nature, such as certain religious crimes, entailed more public forms of punishment, including ritual execution. Such punishments were primarily expiatory in character: they were aimed at eliminating the state of collective impurity created by the commission of the offence.14
2.2.2 The Law of the Twelve Tables and the Growth of Statutory Law
As previously noted, archaic Roman law initially consisted of a body of unwritten customary norms, the nucleus of which had its origins in the period when the gentile organization of society was still effective. These norms were characterized by a high degree of uncertainty and, when a legal question arose, it fell to the college of the pontiffs to give an authoritative answer thereto. As the members of this college, like all state magistrates, were at this time exclusively patricians, it is reasonable to suppose that the plebeians frequently accused them of showing class bias in their determinations. It is thus unsurprising that one of the plebeians’ chief demands during the struggle of the orders was that the customary law in force be written down and made public so that it could no longer be applied arbitrarily by the pontiffs and other magistrates charged with the administration of justice. After several years of strife, it was agreed that a written code of laws applicable to all citizens should be compiled. The idea of codification was probably borrowed from the Greeks, who had established colonies in Southern Italy and Sicily and with whom the Romans had from an early period come into contact.
According to the traditional account, before embarking on the work of codification, the senate dispatched a three-member commission to Greece to study the laws of the famous Athenian lawgiver Solon, and those of other Greek city-states.15 On the return of this commission it was decided that the constitution should be virtually suspended and that the reins of government should be placed in the hands of an annually appointed board of ten magistrates (all of them patricians). In addition to their regular governmental functions, these magistrates were to be assigned the special task of drafting a written code of laws (decemviri legibus scribundis).16 In 451 bc the decemvirs produced a series of laws inscribed on ten tablets (tabulae). These laws were considered unsatisfactory, which prompted the election of a second commission of ten men (now incorporating some plebeians) to complete the work.17 In 450 bc two further tablets of laws supplemented the existing ten and, after it was ratified by the centuriate assembly (comitia centuriata), the work was published under the name lex duodecim tabularum. According to Roman tradition, the second decemviral board refused to resign after completing their legislative work and endeavoured to retain their office by ruling as tyrants. Eventually, however, they were deposed following a popular revolt and the constitutional order of the Republic was restored.
The traditional account of the events leading to the enactment of the Law of the Twelve Tables, embellished with myths and legends, contains several inconsistencies and anachronisms. In modern times, the queries over the origin and nature of the decemviral legislation have generated much controversy. Some scholars have challenged the historicity of the second decemvirate and argued that the work of the original commission was probably completed by the consuls of the following year. Moreover, historians contend that the dispatch of a commission to Greece is highly unlikely and, even if such a mission existed, it may have visited only Greek cities in Southern Italy. The preserved fragments of the Law of the Twelve Tables reveal scant material that could be directly traced to a Greek influence, although certain parallels with the laws of other early societies can be observed.18 A Greek influence on the code, slight though it may have been, was the inevitable result of the prolonged influence of the Greek civilization, through its outposts in Southern Italy and Sicily, on Rome from the days of her infancy. But, in spite of the fact that a few of its ideas may have been borrowed from Greek sources, the Law of the Twelve Tables was basically a compilation of rules of indigenous Roman customary law, designed not to reform but to render the existing law more certain and more clearly known to the populace. Only the most important of these rules were included, while the general framework of the customary law was taken for granted. At the same time, an important objective of the compilers was to eliminate, as far as possible, the divergence in legal systems within the state and to make a common law for Roman society considered as a whole. In pursuance of this goal, certain disputed or controversial points must have been settled and some innovations made.
With regard to the nature of the particular rules themselves, the vast majority were concerned with matters of private law, in other words, with the rights and duties of individuals amongst themselves (not with the relationship between the individual citizen and the state). Special attention was given to matters of procedure in court actions and enforcement, as in this area the unskilled parties to a dispute, usually plebeians, could be misled by those conversant with the law. This was especially because the bringing of legal suits at this time was surrounded by a host of forms and technicalities. One can detect in these procedural rules the origins of the Roman state: they were in many ways a form of regulated self-help.19 There were also rules prescribing the monetary penalties required to be paid for wrongs done, and rules concerning family, property and succession rights. The treatment of private wrongs shows that the law had reached a phase of transition between a primitive state of permitted self-redress and the state at which the appropriate remedy had to be sought by legal process. It was provided, for example, that if a person was caught stealing by night, he might be lawfully slain on the spot20; but a man whose limb had been fractured might only revenge himself by inflicting the like injury on his assailant provided that no agreement had been reached for rendering compensation, in which case the remedy would be to take legal action against the wrongdoer if the promised ransom was not paid.21 With respect to other offences the law itself fixed the amount of compensation that could be demanded for the wrong done, and the victim was restricted to claiming that redress, thus being placed in the position of creditor rather than an avenger. In these provisions one might trace the origins of what was eventually to become a contractual obligation, a relatively advanced notion that was virtually unknown at the time of the Twelve Tables. The family law of the Twelve Tables revolves around the notion of patria potestas: the absolute power of the head of the family (paterfamilias) over his children and other family members.22 With respect to the law relating to property, the Law of the Twelve Tables shows the rigidity and formalism that prevailed, but rights in both movables and immovables were clearly recognized.23 During this early age a mere expression of intention was not enough to create liability or covey rights from one individual to another; some visible formality was necessary, by which the requisite intention was manifested to witnesses. Table V of the Law contained rules dealing with matters of succession and guardianship. It provided, among other things, that if a person died intestate, or if his will was found to be invalid, his property should pass to his nearest agnates (agnati, sui heredes) or, in the absence of agnates, to the members of the clan (gentiles) to which he belonged. The Law of the Twelve Tables contained also some provisions of a constitutional or religious character. For example, Table IX rendered it unconstitutional for a magistrate to propose a law imposing penalties or disabilities upon a particular person only, and declared that no one should be put to death except after a formal trial and sentence. It stated, moreover, that only the assembly of the centuries could pass laws affecting the political rights of citizens, and that no citizen should be condemned on a capital charge without the right of appeal (provocatio) to the assembly. Table X addressed sacral law and matters relating to the burial or cremation of the dead.24 Finally Tables XI and XII contained certain provisions of general character, such as the prohibition of intermarriage between patricians and plebeians (Table XI)25 and rules relating to the liability of a master of a slave for offences committed by the latter (noxae deditio).
The Law of the Twelve Tables is a highly casuistic, case-oriented (in contradistinction to generalizing, principle-oriented) piece of legislation reflecting the life of a fairly primitive agricultural community. However, even though archaic in form and content, it contains elements indicative of a legal system that had advanced considerably beyond its original, primitive stage. Of particular importance for the subsequent development of the law were the rudiments of inter-organ controls to prevent excesses in the administration of justice. But the significance of the Law of the Twelve Tables lays not so much in its contents as in the fact that it opened up new possibilities. Considered from a political angle, its main achievement was vindicating the monopoly of state authorities over all acts of judicial administration. As it produced a common body of law for the populace regarding the legal matters most important for daily life, private citizens and magistrates alike were made subject to the sovereignty of the law and members of the plebeian class were no longer exposed to the vagaries of customary rules administered by patrician officials. At the same time, the process towards the secularization of the law was accelerated: conduct patterns that were in the past shrouded in religious ritualism were rationalized by general rules of substantive and procedural law in a written form, and thus ascertainable by all people. As the law was now publicized, it began to lose the immutable quality of a religious mystery and evolved into a conventional, human form that was therefore subject to change.
Later generations of Romans felt the greatest veneration for the Law of the Twelve Tables, which was described as the ‘foundation of all public and private law’.26 Indeed, for a thousand years, this enactment remained the only attempt by the Romans to comprehensively record their laws. This first attempt ushered in the history of Roman law as discernible today and for a thousand years it formed the basis of the whole legal system, despite changes in social, economic and political conditions. Legal development in the succeeding centuries was effected without directly repealing the provisions of the Law of the Twelve Tables, but mainly through their interpretation by trained jurists, who adapted them to the changed conditions of later eras.27
In the period following the enactment of the Law of the Twelve Tables, legislation by popular assembly evolved as a generally acknowledged source of law. However, in contrast to the role of legislation in the Greek world, Roman legislation remained largely underdeveloped. Controversy still prevails as to the extent (or the exact time) it was deemed legally viable to modify the ancient ius civile. The Romans’ disinclination to apply legislation derived from their conservative attitude towards law and the deeply rooted conception of the merits of their ancient customs reinforced by the special position accorded to the Law of the Twelve Tables. It was not easy to frame statutes in a way that avoided infringement of these established norms, especially in the field of private law. Therefore, the necessary reforms were fashioned in an indirect manner by means of interpretation. Accordingly, statutes remained relatively rare and dealt only with certain special matters. Statutes were enacted, for instance, to incorporate in the constitution the gains forged by the plebeian movement and to create new magistracies. In matters of social concern, legislation was occasionally relied upon to instigate reforms or merely to appease the populace. Some legislation had a hybrid character displaying a political basis and also elements that affected the private relations of citizens—this embraced specific laws relating to civil procedure, marriage, debts and testamentary benefits.
Important statutes of this period in the field of public law encompass: the lex Valeria Horatia (449 bc), which recognized the inviolability of the plebeian tribunes; the lex Canuleia (445 bc), which removed the rule prohibiting intermarriages between patricians and plebeians; the leges Liciniae Sextiae (367 bc), which admitted plebeians to the office of consul and established the praetorship; the lex Publilia Philonis (339 bc), which removed the rule directing that the legislative enactments of the popular assemblies had to obtain senate approval after their passage; and the lex Hortensia de plebiscitis (287 bc) that rendered the resolutions of the plebeian assembly binding on all citizens. In the fourth century bc a number statutes were passed that established a limit on the interest rate charged on debts for borrowed money, such as the lex Duilia Menenia of 357 bc and the lex Genucia of 342 bc. Other statutes eased the debtors’ burden with respect to the securities they could be requested to provide against the risk of non-payment, as well as pertaining to the sanctions they incurred for non-payment. Thus the lex Poetelia Papiria of 326 bc forbade the private imprisonment of the debtor by the creditor, which entailed the former becoming a slave of the latter.
188.8.131.52 Law-Making in the Roman Assemblies
As elaborated in the previous chapter, the Roman popular assemblies existed in two forms: those including all citizens, who voted either according to wealth (comitia centuriata) or tribe (comitia tributa); and the assembly of the plebeians (concilium plebis), which excluded the patrician upper class from its membership. Statutes (leges) enacted by the comitia centuriata and the comitia tributa were binding on all citizens, whilst the resolutions of the plebeian assembly (plebiscita) were initially only binding on the plebeians.28 Since the enactment of the lex Hortensia in 287 bc, at the latest, the plebiscita were considered as complete laws binding on the entire citizenry.29 Thereafter, the concilium plebis, convened under the presidency of a tribunus plebis, became the most active legislative body and the great majority of the statutes that we can observe in the sources were, strictly speaking, plebiscita.
The Roman assemblies could only meet to discharge their functions when formally summoned by a magistrate empowered to convene and preside over a popular assembly (ius agendi cum populo).30 When a magistrate submitted a proposal to an assembly he was said to ask or request (rogare) the people. Thus, his proposal was called rogatio legis and the resultant laws were identified as leges rogatae.31 Custom and eventually law dictated that the full text of a proposed measure must be publicly posted 24 days before its formal submission to the assembly (promulgatio, promulgare rogationem). During this interval the citizens had the opportunity to discuss the bill and recommend changes, or even its withdrawal, to the magistrate in informal gatherings (contiones). It should be noted that legislative measures proposed by magistrates were normally debated in the senate before promulgation. This debate was much more important than any public discussions that might occur in contiones. Once the bill was presented to the assembly it could not be modified; the assembly could either accept (iubere rogationem) or reject the bill as a whole and in the precise form it was delivered by the magistrate.32
In all Roman assemblies voting was by group rather than by individual suffrage. For example, in the assembly of the centuries (comitia centuriata) decisions were reached by considering the number of centuries that voted in favour of or against a proposal; the vote of each century was determined by the majority of the individual voters it comprised.33 During the early republican age voting was done orally. The method of voting by ballot (per tabellas) was introduced in the later Republic by a series of laws referred to as leges tabellariae.34 When an assembly was summoned to decide on a legislative proposal, each voter-member was given two wooden tablets (tabellae). The tablet representing a positive vote was inscribed with the letter V, which stood for the phrase uti rogas (‘as you propose’, ‘as you ask’)35; the other tablet bore the letter A, which stood for the word antiquo (‘I maintain things as they are’), and indicated a vote against the proposed measure. After the vote of each group (centuria or tribus) became known, it was reported to the presiding magistrate who made a formal announcement. When the votes of all the groups had thus been reported and counted the magistrate notified the final result to the assembly. According to tradition, a law passed by the people could not come into force until it received the senate’s approval (patrum auctoritas).36 This rule was reversed by the lex Publilia Philonis of 339 bc that stipulated that the patrum auctoritas must be issued before, not after, a legislative proposal was submitted to the people. Thereafter, laws usually had immediate effect following the formal announcement of the assembly’s decision endorsing the magistrate’s proposal. After their passing, laws were inscribed on tablets of wood, copper or stone and retained in the state treasury (aerarium populi romani) under the supervision of the quaestors.
A statute was composed of three parts: (1) the preamble (praescriptio legis) that embodied the name of the magistrate who had proposed it (and after whom it was named), the place and time of its enactment, and the name of the group (centuria or tribus) that had cast the first vote in the proceedings37; (2) the text of the law (rogatio) that was usually divided into sections; and (3) the ratification of the law (sanctio). The sanctio specified the penalties that would be imposed if the law was violated, and stated the rules governing the relation between the new statute and earlier and future legislation.38 A distinction was drawn between ‘perfect laws’ (leges perfectae), ‘imperfect laws’ or laws without any sanction at all (leges imperfectae) and ‘less than perfect laws’ (leges minus quam perfectae). Acts performed in violation of a perfect law were deemed null and void.39 The infringement of an imperfect law, on the other hand, did not affect the validity of the relevant act.40 Similarly, when a less than perfect law was violated the relevant act itself remained valid, but the transgressor was liable to punishment. Laws containing unrelated or superfluous provisions were designated leges saturae or per saturam and were forbidden under early law.41
2.2.3 The Pontiffs and the Beginnings of Jurisprudence
The central role of the pontiffs in the interpretation and application of customary law shows the interconnection of religion and law in the archaic age. During this period all legal knowledge was confined to their college and was handed down to new members by tradition and instruction. As guardians of ancestral tradition, the pontiffs alone knew all the laws, the forms of actions and ritual techniques, the court calendar and the authoritative opinions their predecessors had rendered in the past. Thus, it was to them that private citizens had to go to obtain advice on whether specific rules of law applied to their particular case and the correct procedure in litigation.42
In the period following the enactment of the Law of the Twelve Tables, the population mass and intricacy of Roman society proliferated. Thus, the old rules proved increasingly inadequate for fulfilling the requirements of social and commercial life. But the Romans did not respond to the need for legal change by replacing the Law of the Twelve Tables with fresh legislation. As noted, the Romans were conservative and extremely careful in their approach to legal matters. They were attached with great tenacity to the Law of the Twelve Tables, which they considered as the foundation of their legal system. Although legislation introduced some new rules, interpretation was the chief means of changing the law (especially in the field of private law). Because a close connection still prevailed between the legal and religious spheres, it is unsurprising that the interpretation of the law and its deriving actions lay in the hands of the pontiffs. Through skilful interpretation of the provisions of the Twelve Tables and later statutes, the early jurists filled the gaps in the law and also succeeded in infusing the old rigid rules with new substance, thus adapting them to changed conditions.
The influence of the pontiffs on legal development was also connected with their role in the administration of justice. The Romans construed the term lex as a formal act of the people that required or permitted a magistrate to enforce a right (ius), which was demanded in a particular way by a particular procedure. In the archaic period the principal method for obtaining a ius was the legis actio (literally, an action based on the law)—a ritual procedure that was conducted orally and divided into two distinct phases. The first phase (in iure) originally proceeded before a pontiff or, according to some scholars, a consul. This official determined on the basis of the applicable law whether the plaintiff could initiate legal action and, if so, its required form.43 In the second phase (apud iudicem) a private judge (iudex), appointed by both the pontiff or magistrate and the relevant parties, considered the evidence and decided the case within the frame set by the pontiff or magistrate. In the in iure phase of the proceedings the plaintiff had to couch his claim in set words, and the defendant also replied in set words—this formed the actual legis actio. If a party used the wrong legis actio or departed from the set form, his claim was rejected. The pontiffs possessed knowledge of the word forms that could be admitted as efficacious. They could expand or restrict the scope of a legis actio by construing it broadly or narrowly as required by the needs of the relevant case. This was rendered possible by the fact that, despite the emphasis that archaic law attached to the letter of the law and the forms of action based on it, there was a tendency to permit a slightly greater degree of freedom in legal proceedings than was allowed in purely religious ceremonies—at least in the era when the legis actio emerged as a definite form of procedure.44
A well-known illustration of law-making through interpretation is the method devised for releasing a son (filiusfamilias) from his father’s control (patria potestas). As Roman society developed in complexity, cases emerged where a son’s absolute dependence on the father regarding his legal position had to be overcome so as to sustain the healthy functioning of economic life. Originally, the power of the paterfamilias over his children (and also over his grandchildren and more remote descendants) entailed complete control over them. Only the father had any rights in private law—he alone was entitled to own property, including all the acquisitions of the subordinate family members. As economic conditions changed, this rigid system could not be absolutely sustained in practice. The problem was resolved by the constructive interpretation of a certain clause of the Twelve Tables that was apparently designed to protect a son against a father who misused his power. A father could consign a son to another person for money on the understanding that the son obtained manumission upon completion of work for that person. Following the manumission, the son returned automatically into the potestas of his father and the sale process could be repeated. Table 4.2 limited this right of the father by stating that if a father sold his son three times, the latter acquired freedom. The pontiffs seized on this provision and engaged the pretence of interpretation to introduce the rule that if a father completed a fictional threefold sale of his son to another person, the son after the third alienation and manumission gained release from the partia potestas and became sui iuris (in control of his own affairs).45 This example displays how a legal provision was utilized to achieve a purpose quite different from that originally contemplated by the legislator and how, through interpretation, a new norm was created as required by altered conditions.46 While the pontiffs retained their monopoly in legal matters, it was mainly through their interpretations that innovations in the field of private law could be effected. At the same time, the pontiffs’ activities as interpreters of the law forged the groundwork for the subsequent development of Roman legal science.
According to Roman tradition, the pontifical monopoly of legal knowledge came to an end after the publication in 304 bc by a certain Gnaeus Flavius, clerk of Appius Claudius (a prominent patrician who was appointed censor in 312 bc), of a collection of formulas and ritual words that were recited in court when litigation took place (ius civile Flavianum). Although any alert citizen must have known a great deal of the information embodied in the ius Flavianum, it was now rendered official and the jurisdictional magistrates could no longer refuse what all the people would know to be the law. From the late third century bc, an increasing number of leading Roman citizens adopted the practice of proffering legal advice without being members of the pontifical college. Around 200 bc one of these jurists, Sextus Aelius Paetus Catus, consul in 198 bc, published a book containing the text of the Twelve Tables, the interpretations of its rules by the pontiffs and secular jurists and a list of the legal forms employed in civil procedure. This work, known as ius Aelianum, marks the beginning of Roman legal literature and the transition from the unsystematic approach of the earlier priest-jurists to a new approach that may be termed scientific.47
2.3 Sources of Law in the Late Republic
As previously noted, in the period following the enactment of the lex Hortensia (287 bc) the term lex in a broad sense denoted not only a statute voted in the comitia on the proposal of a higher magistrate but also a plebiscitum passed in the concilum plebis. This period is rich in statutory enactments, but the leges that were passed encroached on the field of private law only with hesitation and within narrowly defined limits. As it was not easy to frame statutes in such a way as to avoid infringing long-established legal principles and customs (especially those embodied in the Law of the Twelve Tables), changes in this field were effected indirectly, primarily by means of praetorian action and juristic interpretation. Changes in the field of public law, on the other hand, were difficult to effect indirectly, since these were largely dictated by new situations or socio-political developments. It is thus unsurprising that the great majority of the statutes enacted during the later republican epoch fell in this field. Some statutes had a hybrid character, having a political basis but at the same time affecting the private relations of citizens. To this category belonged, for example, statutory enactments concerned with the distribution of land, release from debt, testamentary benefits and court procedure. As a whole, legislation was employed to deal with specific problems rather than to establish rules and principles governing social policy or constitutional arrangements in a comprehensive and permanent manner. Statutes were enacted, for example, to create new magistracies or to define the nature of public crimes and the procedures for dealing with them. In the field of private law statutes were relied on as a means of supplementing or limiting private rights, or instigating changes in civil procedure when juristic interpretation or magisterial action were deemed unable to produce the desired effect.
Among the statutes relating to private law of special importance were: the lex Aquilia (286 bc), which set general rules of liability for damage caused to another person’s property; the lex Atinia (second century bc), which excluded stolen property (res furtivae) from usucapio (the acquisition of ownership through possession of a thing for a prescribed period of time); the lex Laetoria de minoribus (passed early in the second century bc), which aspired to protect persons under 25 years of age from fraud; the lex Cincia de donis (204 bc), which prohibited gifts in excess of a certain (unknown) amount with the exception of those in favour of near relatives and certain privileged persons; the lex Voconia (c. 169 bc), which imposed limitations upon the testamentary capacity of women; and the lex Falcidia (40 bc), which specified the amount of legacies that could be bequeathed.
184.108.40.206 The Role of the Senate in the Legislative Process
As previously observed, during the later republican period the senate became the centre of government and the most important stabilizing factor in the republican constitution. In domestic administration it was consulted by the magistrates on all important matters of the state; in foreign policy it directed negotiations with foreign powers, concluded treaties and appointed commissioners to oversee the organization of conquered territories; in finance it determined the use of public revenues and authorized public works; and in military affairs it prescribed the sphere of operations of the military commanders and their supplies of men and funds.
Even though under the constitution the senate had no direct power to enact laws, it played an increasingly active role in the legislative process, largely by virtue of its influence over the magistrates. As was previously noted, it was customary for the higher magistrates of the state to seek the senate’s opinion on legislative proposals before submitting them to the assembly. Although the magistrates had the liberty to ignore such opinion, so great was the senate’s power and prestige that they would normally defer to its authority and follow its lead. Ordinarily, the senate thoroughly discussed the drafts of legislative proposals and, if necessary, amended these drafts in accordance with the views of the senate’s majority. A finally approved draft would then be incorporated in a resolution (senatus consultum) advising the magistrate concerned to submit it to the assembly, whose subsequent action virtually amounted to nothing more than a formal ratification of the terms of the senatus consultum. In this way, it was possible for the senate to bring about what amounted to indirect legislation as a result of which changes in the law could be effected, even though a senatus consultum could not be put into effect until it was adopted by a magistrate and had technically become part of a statutory enactment. Furthermore, in circumstances of emergency the senate could encroach on the power of the assemblies by claiming the right of suspending the constitution and of overriding the law by issuing a special resolution (senatus consultum ultimum)48 that authorized the consuls to apply any extraordinary measures deemed necessary to avert the danger.
Besides playing a part in the formulation of legislative proposals, the senate exercised a lawmaking influence by advising the praetors and other jurisdictional magistrates to implement certain lines of policy. In such cases its recommendations would normally be incorporated in the edict (edictum perpetuum) issued by each magistrate at the commencement of his year of office. In this way, the senate contributed to the development of magisterial law (ius honorarium), i.e. the law that derived its formal force from the authority of magistrates, as opposed to the ius civile construed as the law that derived its formal force from statute (lex) and juristic interpretation (interpretatio).
In the last century of the Republic, when the Roman state was embroiled in a political and administrative crisis and the influence of the assemblies declined, it sometimes happened that a legislative proposal sanctioned by the senate was not presented to the people, but immediately entered into force. Moreover the senate at times assumed the power to declare statutes null and void based on some alleged irregularity or violation of an established constitutional principle.49 As the government transformed into the bureaucratic administration of a world empire during the early Principate era and the mode of creating law by vote of the people gradually withered away, the legislative function passed to the senate, whose enactments thus acquired the full force of laws.
2.3.2 The Rise of Magisterial Law
The Roman law of the archaic period was built around a relatively simple system of rules for a community of farmers and large landowners and its scope of application did not extend beyond the boundaries of the city-state of Rome. Like other primitive systems of law, it was closely bound up with religion and custom and was characterized by its formalism, rigidity and limited field of application. As a result of Rome’s transformation from a small agrarian community into a vast transnational empire during the later republican era, the Romans faced the problem of how to adjust their law so that it might meet the challenges imposed upon it in this new era. In response to this problem, Roman law broke through the barrier of archaic formalism and formed a highly flexible system that could constantly adapt to the changing demands of social and commercial life. Important factors in this development encompassed the nascent contacts with other cultures and the increasingly intricate economic relations between Roman citizens and foreigners (peregrini). The transition to a more flexible system was made possible by the practice of granting wide powers to the jurisdictional magistrates who declared and applied the law, thus enabling them to mould the law in its application.
We observed earlier that the praetor was the official who supervised the administration of justice. In civil cases his role was to conduct a preliminary investigation where he determined the admissibility of the plaintiff’s claim, i.e. whether the plaintiff had an action at law. If he was satisfied on this point, the praetor appointed the judge (iudex) before whom the case would be heard; in the opposite scenario, the plaintiff could not proceed to enforce his rights. In archaic Roman law, legal suits had to fit into certain set actions and comply with certain strict formalities. If the correct form of action was identified and the requisite formalities were adhered to, the magistrate had little choice but to grant the action and appoint a judge. However, in the later republican period there emerged a far more flexible procedure for initiating legal actions that allowed the magistrate greater discretion and freedom of action. Under this system, litigants could raise claims and concomitant defences that were not provided in the recognized actions. The admissibility of these claims and defences was determined in an informal procedure before the magistrate. The main reason behind this development was that as social and economic life grew in complexity there increasingly emerged cases where a right should clearly have been recognized, but this right and an appropriate legal action were not accommodated by the traditional ius civile. The magistrate was thus empowered to proceed beyond the strict letter of the law and admit or reject an action when he considered this right or equitable, even where this was not in accordance with the ius civile. He did not accomplish this step by introducing fresh legal rights (magistrates had no formal law-making authority), but by promising the applicant a remedy. He would inform the plaintiff that he now had an action on which to proceed in the subsequent hearing before the judge, and that success at that hearing meant his claim would be enforced by a remedy the magistrate granted. Ultimately, the end result was largely the same: though no civil law right existed, there was a praetorian remedy and hence a praetorian right. At the end of the proceedings before the magistrate, the latter composed a written document (formula) that prescribed the direction for the investigation and determination of the case by the judge appointed to try the case. In this document, he authorized the judge to condemn the defendant if certain facts were proven or to absolve the defendant if they were not proven. It must be assumed that the innovations in substantive law introduced through this system were gradual and organic. Whenever possible, the new formula was fitted into the system of actions recognized by the ius civile; in other cases the magistrate emancipated himself entirely from the established law by instructing the judge to decide the case on the basis of the factual situation, thus in essence functioning as a law-maker.
Every magistrate at Rome was in the habit of notifying to the public the manner in which he intended to exercise his authority, or any change which he contemplated in existing regulations, by means of a public notice (edictum).50 With respect to magistrates who were merely concerned with administrative work, such notices were often occasional (edicta repentina). With respect to magistrates concerned with judicial business, they were of necessity valid for the whole period during which the magistrates held their office (edicta perpetua). The edicts of the praetors were necessarily of this latter type.51 Although a newly elected magistrate was in theory free to introduce any measures he saw fit, over time it was expected that he would absorb the bulk of his predecessor’s edict and make only limited alterations (that part of the edictum perpetuum adopted from year to year was referred to as edictum tralaticium). No legal obligation was imposed on the magistrate to adhere to the directions set out in his edict, for that was taken for granted. However, the breakdown of good government in the closing years of the Republic prompted the enactment of the lex Cornelia (67 bc) that forbade the praetors departing from their edictum perpetuum.52
The edictum of the praetor, in the sense in which this word is commonly used, is really a colloquial expression for the album, or great notice board exhibited by that magistrate, which contained other elements besides the edicta in their true and proper sense. It contained the legis actiones (actions provided by statute) and the formulae of the traditional ius civile, probably preceded by certain explanatory headings, but by no ruling in law (for the praetor did not create the rulings on which these civil actions and formulae were based). But the edict contained also model formulae for each promised remedy created by a praetor and his predecessors. Each of these formulae must have been preceded, at least eventually, by the ruling in law, which might have grown out of the formula, but finally served as its basis and justification.53 Thus the edictal part of the album was really a series of separate edicta, each edict being followed by its own formula; it was regarded as being a supplement to that portion which specified the actions of the ius civile; and it really had this character of being a mere supplement in so far as praetorian actions were rarely granted where a civil action would have sufficed. But its supplementary role had far-reaching implications for the development of the law. This is because the edicts might take cognizance of cases not provided for by the ius civile at all; they might replace the mechanism provided by the civil law for attaining a legal end; and they might alter the character of the end itself. The edict of the peregrine praetor (praetor peregrinus)54 was necessarily still more of a substitute for the ius civile than that of his urban colleague (praetor urbanus).55 For, as the actions of the civil law could not (at least in many cases) be employed by foreigners, the peregrine praetor was obliged to devise equivalents for these actions and the forms by which they were accompanied.56
The various rules and remedies by which the magistrates were actually transforming the old ius civile furnished the basis for the development of a new body of law that was ultimately designated honorary or magisterial law (ius honorarium)—because it proceeded from the holders of offices (honores)—and that existed in contradistinction with the narrowly defined ius civile. The magisterial law served a vitally important function in the Roman legal system in various ways. Firstly, it aided the ius civile as the magistrate introduced remedies in addition to those that the civil law provided for the person who possessed a civil law right. For instance, the edict would state that an individual recognized as the owner of property under the civil law might be granted, in addition to the normal action, a speedier magisterial remedy. Secondly, it supplemented the ius civile as the magistrate granted remedies to persons who had no rights or remedies under the civil law. For instance, the wife of a deceased person who died intestate without leaving children or relatives had no rights to his estate. However, the edict would grant the widow a remedy to acquire possession of the estate. Thirdly, it amended or corrected the civil law as persons who had no rights or remedies under the civil law were granted remedies by the magistrate at the detriment of those who did have such rights. For instance, the edict might provide that the magistrate would uphold certain wills that did not meet the requirements of the civil law and he would grant a remedy to the person nominated as heir in such a will at the detriment of the intestate heir who would have succeeded under the civil law.57 Through these means, the magisterial law became the living voice of the law of the Romans. Alongside the rigid and formalistic ius civile there emerged a body of law that was progressive and free, and subject to continual change and development.58 It is germane to note at this point that the magistrates were not solely responsible for the creation of the ius honorarium. Since magistrates very often possessed little knowledge of the law, most of the techniques they engaged to produce the required legal innovations were demonstrated to them by expert jurists (iurisconsulti or iurisprudentes). The jurists explained the law to magistrates and offered guidance in framing their edicts and drafting the formulae used in legal proceedings. Thus, the legal norms incorporated in the edictum perpetuum at any given time represented the consensus of opinion of the best-qualified legal minds of the day.
But how did the praetor choose which rights to protect? The main basis for this choice appears to have been the 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 been previously viewed as merely social or moral obligations.59 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.60 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; secondly, it may be conceived as an objective ideal 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 nor 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.61 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 fulfill the needs of a changing society.
The following two examples provide good illustrations of 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.62 Granting exceptions was an ingenious device that enabled the praetor to deliver appropriate relief in individual cases without questioning the validity of the relevant legal rule. Thus the exceptio doli left the principle of the stipulatio intact, i.e. the obligation to act as one had promised by responding in a particular way to a specific question posed. The form of the transaction still created the legal obligation, although the recognition that intention had priority over form was implicit in accepting the exceptio doli.
An important distinction in the early Roman law of property existed between res mancipi and res nec mancipi. Res mancipi included land and buildings situated in Italy, slaves and draft animals, such as oxen and horses. All other objects were res nec mancipi. The ownership of res mancipi could be transferred only by means of a highly formal procedure called mancipatio. The ownership of res nec mancipi, on the other hand, could be passed informally, e.g. by simple delivery (traditio).63 If a res mancipi was transferred to someone in an informal manner, the transferee did not acquire title under the ius civile.64 In such a case, if the transferee lost possession of the property he could not recover it from the person with the current holding. While retaining possession of the property he could be challenged by the transferor who remained the lawful owner (dominus). As economic relations grew more complex, the strictness of the law proved detrimental to many legitimate interests. To rectify the situation, the praetor intervened and placed the transferee in the factual possession of a civil law owner. The property was then regarded as in bonis (hence the concept of ‘bonitary’ ownership) and such a ‘bonitary’ owner could acquire true ownership by usucapio (i.e. through lapse of a certain period of time).65 If the bonitary owner lost possession of the property, he could recover it by means of the actio Publiciana.66 This action was granted to all bona fide possessors in the process of acquiring ownership by usucapio, and was based on the fiction that the period required for obtaining the property by usucapio was completed. If the original owner endeavoured to claim the property, the bonitary owner could raise the defence of exceptio rei venditae et traditae (defence of a property sold and delivered by traditio),67 or the exceptio doli. The praetor engaged these devices to create a new type of property right that supplemented those recognized under the traditional ius civile and this generated a considerable improvement in the Roman law of property.68
The above examples present a sketch of the techniques the praetor used to invent not merely supplementary but often superseding rights that galvanized the development of the ius honorarium. The descriptions expose two interrelated characteristics of the Roman legal system: a pervasive dualism, perhaps even a dialectic relationship between old and new; and a tendency towards gradual adaptation. There is the dualism between ius civile and ius honorarium, between an adherence to past forms and an admirable ingenuity in designing ways to address new situations and problems. This system is even more remarkable as both the aspects of respecting the past and adapting to the new were combined in the praetor. The praetor used all his creativity to construct devices that tackled the problems arising from novel socio-economic circumstances, and also acted as a guarantor of the basic forms and principles of the old law. Such a system seemed to satisfy the people’s desire to believe that things remained the same as long as they were ascribed the same labels. It created the comfortable illusion that nothing really had changed. The reluctance to abandon the fundamental principles of the traditional legal system is aptly illustrated by the institution of the patria potestas, which was recognized by the Romans as a characteristic element of their system. Despite the enormous inconveniences generated by this institution, it survived until as late as the fourth century ad. Devices were designed to mitigate its unwanted consequences in a new era that no longer required a family structure based on the traditional patia potestas; yet, these devices did not affect the essence of that institution. Although several aspects were modified, like the power to prevent the marriage of a daughter, it had a longevity that virtually resembled that of Roman law. The practice of the praetor to grant exceptions to defendants illuminates the same tendency for observing the old rules. Granting exceptions was a cautious device that retained the essence of the rules, while providing relief in a particular case or type of case. Indeed, classifying a particular case as exceptional would appear to confirm the validity of the relevant rule. Similarly, the use of fiction helped the victim of bad faith or error in cases where the requirements of strict law were not fulfilled. However, it did not diminish the validity of the legal principles that applied under the old ius civile. For example, the fiction of a completed usucapio in the actio Publiciana did not affect the basic principles of the ius civile relating to the acquisition of ownership over res mancipi. Fictions and other praetorian devices facilitated the cautious and gradual adaptation of the rules insofar as this was deemed necessary, but did not appear to change any elements on the normative level. On closer observation, it is not difficult to discern that these devices produced important changes to the law. This evokes the Hegelian idea that a change in quantity may lead to a change in quality. Although the form of this change suggested that only a minor detail of a rule was affected, a major principle of the Roman ius civile was actually rendered ineffectual or set aside. The relationship between the ius civile and the ius honorarium (or between law and equity) clearly exhibits the Romans’ commitment to the two notions of stability and change, of preservation of the past and efficient adaptation to new needs.
220.127.116.11 Relationship with Non-Roman Communities and the Concept of Ius Gentium
The development of the ius honorarium in the later republican era was closely connected with the dramatic increase in contacts between the Romans and non-Roman communities, and the growth in economic relations between Roman citizens and foreigners (peregrini). As the granting of Roman citizenship had not kept pace with Rome’s expansion, a growing mass of foreigners residing in Roman territory had no access to the Roman ius civile.69 However, 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. The Romans responded to this need by appointing (from c. 242 bc) a special praetor, the praetor peregrinus, to handle cases involving foreigners. The peregrine praetor enjoyed greater liberty than his urban colleague did 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. Governors in the provinces were also granted jurisdiction over disputes concerning Roman citizens settled there and provincials; and, occasionally, over cases involving foreigners. The edicts of the praetor peregrinus and, to a lesser extent, those of the provincial governors engendered a new system of rules governing relations between free men without reference to their nationality. Although this body of law was Roman in origin, it became known as ius gentium: the law of nations.70
From an early period the Romans realised that certain institutions of their own ius civile also existed in the legal systems of other nations. As contracts of sale, service and loan, for example, were recognised by many systems, it was assumed that the principles governing these were everywhere in force in the same way. These institutions which the Roman law had in common with other legal systems were thought of by the Romans as belonging to the law of nations (ius gentium) in a broad sense. But this understanding of the ius gentium was of little practical value for the Roman lawyer, for the specific rules governing the operation of such generally recognised institutions differed from one legal system to another. When the Romans began to trade with foreigners they must have realised that their own ius civile was an impossible basis for developing trading relations. Foreigner traders too had little inclination to conform to the tedious formalities of domestic Roman law. Some common ground had to be discovered as the basis for a common court, which might adjudicate on claims of private international law, and this common ground was found in the ius gentium, or the law of nations in a narrow, practical sense.
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 acceptable. 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.71 However, an important note is that when a magistrate addressed a dispute involving foreigners he had to recall 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 that embodied elements 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).72
Attending to disputes involving people of diverse national backgrounds would have been difficult without employing rules based on common sense, expediency and fairness that were confirmed by general and prevalent usage among many communities. In contrast to the ius civile, the ius gentium was thus characterized by its simplicity, adaptability and emphasis on substance rather than form. 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 resorted to the procedure as a means of resolving legal disputes. The elastic technique of the praetor peregrinus was gradually adopted by the praetor urbanus, the magistrate in charge of the administration of the Roman domestic law (ius proprium Romanorum), when deciding cases between citizens that fell outside the scope of the traditional ius civile. 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 thus emerged that incorporated the norms of private law derived from the edicts of the praetors and other magistrates: the ius honorarium.
2.3.3 The Jurists of the Late Republic
As previously noted, during the archaic era knowledge of the law and the rules governing legal procedure was confined to the priestly college of the pontiffs. After the enactment of the Law of the Twelve Tables and the introduction of the system of legis actiones the authoritative interpretation of statutory law and the conduct of the actions at law remained within the province of these priests.73 According to Roman tradition, the pontiffs’ monopoly of legal knowledge ended in 304 bc when Gnaeus Flavius published a manuscript containing the procedural formulas and ritual words employed in litigation. In c. 253 bc Tiberius Coruncanius, the first plebeian pontifex maximus, began to discuss cases and to give legal advice in public (publice profiteri) in such a way that the knowledge he imparted became common to all.74 Thereafter, an increasing number of secular jurists (jurisprudentes or iurisconsulti)75 engaged in furnishing legal advice and by the end of the second century bc they had supplanted the original interpreters of the law. These jurists were members of the Roman aristocracy and were actively involved in politics. Like the pontiffs before them, they received no remuneration for their services for they considered it their civic duty to assist citizens who sought their legal advice. Although jurisprudence did not become a profession through which one could earn a living, it provided an important outlet for members of the nobility who sought to distinguish themselves in social and political life. Because of the respect and honour they gained through their activities, these individuals were able to increase their influence among their fellow citizens and, by widening the circle of their friends and dependants, to win their way to high office.
Cicero declares that jurists had to be skilled in three respects in matters of law: agere, cavere and respondere.76
Agere (literally, to act) meant managing a legal cause or suit. The jurists gave help on matters of procedure and prepared the forms that had to be used by the parties to lawsuits. As noted previously, in the archaic era a person initiating a lawsuit was required to fit his claim within one of the set forms of action prescribed by the law. The rigidity of this system considerably limited the scope of juristic intervention. However, a new flexible system of procedure for initiating legal actions emerged in the second century bc. Under this system, the final settling of the plaintiff’s statement of claim was an extremely technical process and this provided broad scope for the intervention of the jurists in litigation. It is important to note, however, that the jurists very rarely argued cases in the courts—this task was left to the oratores.77
Cavere (literally, to take precautions) meant the drafting of legal documents, such as contracts and wills, designed to preserve a person’s interests by protecting them against certain eventualities. This cultivation of forms was one of the most important contributions of the jurists to the development of legal thinking and language. It was mainly through this work of form development over the centuries that Roman legal speech attained its perfection.
Respondere (literally, to answer) meant giving advice or opinions on questions of law. A practice applicable to every field of Roman life was that an individual would elicit the advice of competent and impartial persons when contemplating a serious decision. Thus, the jurists gave responsa or replies to private citizens involved in lawsuits or other legal business that required attention, and to jurisdictional magistrates and the judges (iudices) appointed to decide particular cases.78 The responsa were expressed in a casuistic form: the jurist restated the factual aspects of the case in such a way to illuminate the legal question presented to him. By drawing on the wealth of legal principles applied in the past or encountered within his own experience, he rendered a decision that only obliquely referred to the principle or rule that supported it. It should be noted that the casuistic form in which the responsa were expressed entailed considerable differences of opinion among individual jurists with respect to certain matters.79 In many cases, opposing points of view were adopted by contemporary or later jurists. Many of these controversies persisted for decades or even centuries.80
Besides the practical activities outlined above, the jurists were occupied by two further tasks that were instrumental in the development of Roman law: the education of those aspiring to enter the practice of law, and the composition of legal works.
Legal education in republican Rome had a largely practical orientation; there was neither theoretical nor academic legal training or educational institutions where law was formally taught.81 Upon completion of their basic education, young men would enter the household of a jurist to live with the family. They would attend consultations when clients sought legal advice, and accompany the jurist to the marketplace where they observed him imparting legal advice, drafting legal documents and assisting parties in legal proceedings. In this way, students acquired knowledge of the law through contact with legal practice and professional tradition.82 Sometimes, the jurists gave opinions when their students raised purely hypothetical cases for discussion. These opinions were almost equal in influence to those given on real facts, and possibly helped to develop Roman law in new and unique directions.
From the second century bc, prominent jurists began to compile books of responsa that they had issued and were applied in practice (especially those ratified by virtue of a judicial decision). The need to create such collections derived from the fact that in Rome the administration of private law was not closely regulated by the state and hence judicial decisions were not formally collected on behalf of the state. In their collections the jurists sometimes included summaries of important cases, and recorded the relevant court decisions and the opinions rendered to the parties concerned. The jurists also composed various commentaries or treatises on different branches of the law and, over time, a large body of legal literature materialized. The emergence of legal literature is associated with the influence of the Greek culture and science on the Roman aristocracy that encompassed the jurists. It is important to note that the contributions of the jurists are not evenly distributed over the whole field of law; private law and civil procedure patently dominate, whereas many areas of public law were never the object of the same intensive analysis and constructive development.
As the foregoing discussion suggests, Roman jurisprudence evolved largely from legal practice with a notable contribution from the discussion of individual cases. A distinction is usually made between two types of juristic method: the empirical or casuistic and the deductive. The Roman jurists were typical representatives of the former method. When dealing with legal problems, they resorted primarily to topical rather than axiomatic argument. If a legal rule or concept is formed by logical reasoning from basic principles or axioms, it invokes axiomatic argument. Topical or problem reasoning, on the other hand, occurs when one proceeds from the case to identify the premises that would support a solution, and then formulates guiding principles and concepts as a basis for attaining a solution. The rules and concepts devised in this manner are not rigid and inviolable but are subject to change, depending on the circumstances of the relevant case. Moreover, it is generally believed that the Roman jurists reached their conclusions intuitively. This intuitive grasp of the law is attributed to the Romans’ innate sense for legal matters, and to the jurists’ experience with the everyday practice of the law. However, one should not construe Roman jurisprudence as a merely pragmatic, unprincipled case law or believe that Roman decision-making was based solely on free and creative intuition. The greatest achievement of the Roman jurists was their ability to extend beyond the accidental elements of the relevant case to illuminate the essential legal problem as a quaestio iuris. As the jurists gradually acquired familiarity with Greek philosophy and the intellectual methods and tools the Greeks had created, they developed a systematic approach to legal knowledge and to handling legal problems. Thus, acquaintance with the logical syllogism (or reasoned conclusions) enabled them to construct legal concepts in a deductive manner. The jurists engaged the dialectical method: a form of logical analysis that both distinguished between various concepts and subsumed those sharing the same essential characteristics under common heads. This fostered their learning to divide (into genera and species) and define juridically relevant facts, and thereby distinguish and categorize juridical concepts. Moreover, awareness of the sociological function of law led the jurists to attach more emphasis on equity (aequitas), good faith (bona fides) and other general guiding principles.83 The jurists’ tendency towards systematization not only allowed them to present their casuistic approach in a more simple and elegant manner, but also helped to improve their decision-propositions. This improvement in decisions was closely connected with the requirement for integration in the growing empire and the need to adapt the legal system to its deriving socio-structural changes.
A celebrated jurist of the later republican period was Quintus Mucius Scaevola, pontifex maximus and consul in 95 bc. Scaevola is declared to have been the first jurist who endeavoured to systematize the existing law in a scientific fashion. Unlike earlier jurists, he did not confine himself to the discussion of isolated cases or questions of law. Rather, he made great efforts towards a higher level of generalization and ventured to introduce more definition and division. In his comprehensive treatise on the ius civile, he assembled related legal phenomena and principles under common headings. He also distinguished the various forms of appearance of these broader categories. For instance, he first defined the general features of possession, tutorship and so on, and then described their various individual forms (genera) existing in the legal system. He also seems to have written a book that featured brief definitory statements (horoi) indicating the decisive factual moment (horos) of a certain legal consequence or decision.84 Scaevola is also attributed with formulating certain standard legal clauses and presumptions, such as the cautio Muciana (a promise by a legatee that he would return the legacy if he acted against the attached condition) and the praesumptio Muciana (the presumption that all the property a married woman possessed was furnished by her husband, until the contrary was proved). As governor of the province of Asia, Scaevola also composed a provincial edict (edictum provinciale) that was used as a model by other provincial governors. Scaevola’s work was an important step forward as it introduced a scheme of law conceived as a logically connected whole alongside the collections of precedents and isolated legal rules. It had enduring influence and commentaries on it were still written as late as the second century ad.85
Other distinguished jurists of the later republican period included: Manius Manilius, consul in 149 bc, whose work venalium vendendorum leges (‘conditions of sale for things capable of being sold’), mainly elaborated model formulae relating to contracts of sale86; M. Porcius Cato Censorius, consul in 195 bc and censor in 184 bc, whose work de agricultura (‘on agriculture’) comprised forms and precedents for drafting agrarian contracts; the latter’s son, M. Porcius Cato Licinianus, who authored a celebrated treatise on the ius civile (de iuris disciplina)87; M. Junius Brutus, praetor in 142 bc, who wrote books on the ius civile 88; Gaius Aquilius Gallus, praetor in 66 bc, who introduced the action and exception of dolus (a term that merges the ideas of fraud, abuse of right, and the general concept of tort)89; C. Trebatius Testa, a friend of Cicero’s, whose work on the ius civile was highly regarded by the classical jurists90; P. Alfenus Varus, consul in 39 bc, who produced an extensive work (Digesta) in 40 books91; Servius Sulpicius Rufus, consul in 51 bc, whose writings included an important commentary on the praetorian edict92; and P. Rutilius Rufus, consul in 105 bc, who devised the bankruptcy procedure described by Gaius (actio Rutiliana).93 Only a few scattered and fragmentary traces of these jurists’ works survive through the writings of jurists from the classical period embodied in the Digest of Justinian.94
2.3.4 The Role of Custom
In the later republican era, custom (consuetudo) no longer operated as a direct source of law. However, it prevailed as a component in the formulation of the norms of positive law as found in statutory enactments, the edicts of the magistrates and the interpretations of the jurists.95 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).96 As previously explained, the principal duty of the praetor when faced with a legal dispute was to determine whether the plaintiff’s claim was admissible and, in doing do, the magistrate was to a large extent guided by current public opinion and the general sentiment as to what was right and proper in the circumstances. Similar considerations informed the jurists when formulating their responsa.
2.4 Sources of Law in the Principate Era
2.4.1 The Decline of Popular Law-Making
After the establishment of the Principate, the assemblies of the people continued to operate. However, their significance as constitutional organs was greatly diminished as the laws they enacted were all part of imperial policy and expressed the emperor’s will. Abiding by a tradition that accepted comitial enactment as the exclusive source of legislation, Augustus used the assemblies to procure the enactment of several important laws. Some of these laws were passed directly on the emperor’s motion while others were passed on the motion of higher magistrates, though obviously the emperor was their real promoter. In this way, statutes were passed concerning legal procedure (leges Iuliae iudiciorum publicorum et privatorum)97; marriage and divorce (lex Iulia de maritandis ordinibus, lex Papia Poppaea)98; adultery (lex Iulia de adulteriis coercendis)99; the repression of electoral corruption (lex Iulia de ambitu)100; and the operation of the senate (lex Iulia de senato habendo).101 Other noteworthy enactments of this period were the lex Fufia Caninia (2 bc) and the lex Aelia Sentia (ad 4) that introduced restrictions on the testamentary manumission of slaves; and the lex Claudia de tutela mulierum, a law passed under Emperor Claudius, that abolished agnatic tutelage over women.102
However, almost since the emergence of the new order, popular legislation was destined to wither away. It succumbed to the necessities of a community transformed from a city-state into a world empire, and a political system where the leadership shifted from short-term magistracies to the supremacy of a single ruler. As the political functions of the assemblies declined rapidly, this form of legislation soon became obsolete and ceased to exist at the end of the first century ad—the last known lex was an agrarian law passed in the time of Emperor Nerva (ad 96–98).103