Sources of Roman Law: From Republic to Empire

Posted on Dec 9, 2024 in Law & Jurisprudence

Sources of Roman Law

The Institutes of Justinian

The Institutes of Justinian states that “the law that governs us is written or unwritten.” The sources of written law are:

• The laws, passed by the Roman people gathered at polling stations upon the proposal of a magistrate.
• Plebiscites, decisions voted by the people in conciliaplebis.
• The Senate-consultations, decisions passed by the Senate.
• The imperial constitutions, decisions rendered by the Emperor.
• The edicts of magistrates; primarily, the rules of conduct that the magistrates inserted in the album to regulate their performance during their term of office.
• The responses of the prudent.

Unwritten Law

The unwritten law is that of custom. The unwritten law is that not enacted by the constituted authority, which has made use valid because the behavior of partners, repeated daily and approved by the consent of all who practice it, without it being possible to determine the time of its introduction, is tantamount to a legal rule.

In Rome, as in other towns, legal evolution had its initiation at a stage in which all the existing law was customary. Before the existence of written law (ius scriptum), there were unwritten rules, born among the people by constant use (consuetudo longa, inveterate consuetudo), with the general conviction of citizens as to their mandatory requirements, both for the particular individual and the community at large. Hence, it was said that for such customary law (non scriptum ius) to exist, three requirements should be met:

• It corresponds to a social need and not mere tolerance.
• To be sustained for a long time.
• To be observed almost constantly.

The starting point of custom, as a source of law throughout Roman life, is found in popular practices or consuetudo, whence is derived the name of customary law, in the practice of judges, consequential of the auctoritas rerum similiter perpetuo iudicatorum (authority of judges applied equally to similar cases), and in the opinions of the lawyers or prudentium responsa.

Written Law

The various sources of the ius scriptum became final through the different stages of the evolution of Roman law. These periods, as per the division of Eugene Petit, are four: from the founding of Rome until the issue of the Law of the Twelve Tables; from the issuance of the tables until the end of the Republic; from the advent of the Empire until the death of Emperor Alexander Severus; and finally, from the latter’s death (235 AD) until the death of Emperor Justinian (565 AD).

A. The Law

It is inseparable from the composition of the original Roman community, apparently of Latin, Sabine, and Etruscan elements. It is said that Rome was founded as a result of the meeting of three tribes in the Quirinal and Villa of the Spear: those of the Ramnes, a name derived from Romulus, and made up of Latins; that of the Titienses, an appellation descendant of Titus Tatius, and formed by Sabines; and that of the Luceres, presumably of Etruscan origin and that, due to the lateness of its civilization, during the monarchy, had power prevailing over the previous two, although some authors suggest that the third tribe was composed of elements of unknown origin and therefore went on to become the plebeian class.

The general opinion is that Rome had a gentile organization, to the extent that each of the three native tribes had islander groups or houses of 10 curiae, with no certainty about whether they included only the noble class (patricii, patrician) or whether they also included the plebeians (plebs).

In any case, in the tribal organization, the law (lex) was the product of agreements adopted by the Roman people in comitia, either at the polls by curia or in the election by centuries. In the beginning, voting was done by curiae, in which the vote was taken by individuals and took place not only to set standards of conduct on the proposal of the King (Rogatio) but also to approve the appointment of a new monarch. The precepts stated that polling stations relapsed on private law matters related to family and religion.

The vote by curiae avoided, perhaps wisely, that the vote would generate a direct and personal danger of capricious sovereignty of the mass. It was not enough that the people, in elections, adopted the draft law presented by the monarch to take the call lex Rogatae, since it was necessary to further the auctoritas patrum or sanction of the Senate, a body created by Romulus, with a hundred members. This number was subsequently increased or decreased depending on the vagaries of politics. It was a deliberative assembly that, contrary to what is happening today in the world, had no legislative powers, but at the end of the Republican regime, it replaced the monarchy. Then, later, during the high empire, it came to share power with the emperor and, ultimately, in the Lower Empire, was virtually without duties.

The comitia centuriata was an organization of the Roman people undertaken by King Servius Tullius, which led to the nobility of race or origin being replaced in power by the aristocracy of money. The monarch began to divide the city into four urban tribes and an unknown number of rural tribes, which came to be thirty-one. He then established the census to determine the fortune of each and every one of its inhabitants, regardless of whether they were patricians or plebeians, because what was sought was for all citizens to contribute to the maintenance of the state.

In effect, the public was divided into five classes, but the ordo equester, or order of knights, consisted of the richest and was entitled to eighteen centuries. The first class comprised those possessing one hundred thousand or more asses, and they formed eighty centuries; the second, for people with seventy-five thousand to one hundred thousand asses, formed 20 centuries; the third, with the holders of fifty thousand or more asses up to seventy-five thousand, formed another twenty centuries; the fourth, with 25 thousand to fifty thousand asses, formed twenty centuries more; and the fifth, with the fortune of eleven thousand to twenty-five thousand asses, formed thirty centuries.

A sixth class was virtually added, consisting of low-income people, sappers, and musicians, to form another five centuries. The total was one hundred ninety-three centuries, entitled to participate in the comitia centuriata, which ultimately meant no advantage for the poor plebeians, since rich commoners made common cause with the patricians. This is because the voting was done by centuries, being launched by 18 of the knights, and then by the 80 of the first class. So that if both were matched in the vote, there was no need to inquire about the views of the other classes, since those with more than was obtained an absolute majority (half plus one of the 193 centuries), enough to make a decision.

Notwithstanding the foregoing, it is argued that during the monarchy, customary law was in force, and that if there were some regal laws, they did not reach us, but tradition assigns to Papirius the compilation, if any. For his part, Dionysius of Halicarnassus notes that 50 laws on contracts and crimes were reached by comitia centuriata vote.

B. Plebiscites

Commoners, following their first secession in the year 494 BC, succeeded the patrician ruling class in the designation of tribuni plebis, magistrates of plebeian extraction, created to defend the patrician class, with inviolable personality and the right of veto over decisions taken by the consuls that proved injurious to the people. These tribunes, with desires for popularity, led the commoners to convene to make decisions that have led to concilia plebis meetings, which, precisely, from the year 471 BC, were used to elect tribuni, an initiative in legislation. The plebiscite was, then, that which the people, in their meetings, commanded and established; Plebiscitum est quod plebs iubet atque constituit. These decisions, in principle, did not bind the whole Roman people, as the tribunes had no power to summon the patricians, but following the Lex Hortensia (around the year 287 BC), the determinations of the plebeian assemblies acquired overall value. Its importance was capitalized during the Republican regime, initiated in 509 BC (when there was the fall of the monarchy) and ended in 27 BC (with the advent of the Empire), as in the infighting of Roman society, commoners achieved that one of the two consuls, heads of government of the Republic, belong to the plebs.

In procuring plebiscites binding generally, there was little difference with the law, which, according to Papinian, is a general norm. However, although both sources of law materially came to have equal significance, they were formally distinct because lex rogatae was under consideration for approval of the Roman people at the polls. It also refers to the lex data, but this was the precept given by the magistrate under his ius edicendi.

The law consisted of three main parts:

• The praescriptio, with signs of the proposer and expression of the reasons for it.
• The rogatio, which was the same text of the law.
• The sanctio, made up of provisions to ensure compliance and punish the breach of the same.

C. The Edicts of Magistrates

During the monarchical era, ranging from the founding of Rome until the advent of the Republic, sovereignty resided in the people, which was the highest legislature and judicial authority, being the executor Max King, assisted by officials who did not reach the status of judges.

The judiciary was born, really, on the occasion of the Republic, because the State, which is a fictitious person, was unable to act for itself and became necessary to have officials who exercise sovereignty, with its two key events: the potestas—power to impose standards of conduct—and the imperium—power to execute or enforce standards of conduct.

Thus arose the magistratus populi Romani, who, as successors of the kings, became the delivery of public power, but not divorced from the religious organization that dominated the whole public conduct of the Roman, and even acts of the administration, to the point that if she went to vote a law, it would first have to consult the gods to make it clear whether these were or were not favorable, and when to make a declaration of war was, it was necessary sacrifices to the gods to find favor with them. Moreover, the College of Pontiffs, presided over by the king himself during the monarchy, was the possessor of the law, as the representative of divine authority, and therefore rightful to say how they should administer justice. With the fall of the monarchy, that role was assumed by the Pontifex Maximus, a role assumed in the imperial period by the emperors.

The magistrates, the king’s successors in the management of the state, were:

• The consuls, who, two in number, became the chief executives in the Republic. They ruled jointly, but with intercessio or veto, a power that allowed them to challenge the determinations of the colleague when considered harmful. They lasted until the end of the Republic with the same functions, and if at first they were patricians, from 367 BC, the plebeians came to the judiciary, then, at least one of the two, should belong to the plebs.
• Dictators also appeared during the Republic, following threats from the Tarquins, expelled from the government along with the fall of the monarchy. The dictatorship was necessary to contain those, but then it was used, provided that the Roman nation was facing war, at the request of one of the consuls and by order of the Senate, thus, that the patricians recovered their previous preeminence.
• The tribunes of the people, of whom we have already spoken, arose to protect the interests of the people, with their assistants the aediles plebis, councilors of the commoners, so named for being guardians of the people’s file into the temple of Ceres and had powers of policing.
• The censors, who appeared to reform under the Serbian monarch Tullus, with the establishment of the comitia centuriata, took responsibility for his choice, later in number two, for a shift of 18 months. They were responsible for the tax census of citizens (with signs of class and tribe) and for preparing the Senate, which is why they enjoyed wide influence in politics. From the year 403 BC, plebeians could be censors, and the Lex Publilia Philon, from 338 BC, prescribed that one at least had to be plebeian. As well, they should ensure good habits, they could even get to testify unworthy of the consuls.
• The quaestors were responsible for managing the accounts of the Roman state and public resources. They existed in the monarchy and disappeared with the advent of the Republic, but resurfaced in 421 BC, to be appointed by the consuls in number two. They were later appointed two by the comitia tributa in increasing numbers (2, 4, 8), with the addition of functions in the pursuit and punishment of murderers.
• The curule aediles were two police chiefs without imperium, with powers similar to those of the aediles of the commoners, but higher. Its name was derived from the right to transportable judicial seats (sella curulis), indispensable to the exercise of jurisdiction who held business.
• The praetors appeared in 367 BC, and since 337 BC, the plebeians could be praetors. They were elected for one year by the comitia centuriata and with taxing power (imperium). They are of more bearing among the magistrates in regard to the study of Roman law, as they assembled general and ordering functions of practice before any jurisdiction (iurisdictio). From the year 242 BC, this role was split between two praetors: the Praetor Urbanus and the Praetor Peregrinus. Moreover, for the administration of justice in the overseas territories, a product of the two Punic Wars, four other praetors were created. The Praetor Urbanus was called to intervene in disputes that arose between Roman citizens, governed by the ius civile and therefore subject to precise legal rules. Instead, the Praetor Peregrinus intervened in disputes between pilgrims, or those with Roman citizens (inter cives et peregrinos).

The edicts of magistrates, products of the ius edicendi, gave birth to the right fee. That ius edicendi limited the scope of the functions of the magistrate, in a way that everyone would use it in accordance with the powers of its own. Of the edicts, by their influence on Roman law, protruded from the urban praetors and peregrinus, like the curule aediles in the city of Rome and, beyond, the governors and quaestors.

The edicts of magistrates were directed toward the application of civil law, to the completion of this, when they were living in situations not covered in it, and the correction of the civil law when the rules were rigid or contemplated accused inequitable.

The praetor, upon assuming the bench, generally accepted standards of its predecessor (translatitia pars), added new ones (nova pars), or abandoned others (pars quae exspirat). The new edict, to which the praetor would confine its activities during the year of his duties, was the edictum annuum or perpetuum, as opposed to edictum repentinum, which was tantamount to a decision by the praetor to resolve cases not covered in that.

The aforementioned perpetual edict (valid for one year) is not to be confused with the Perpetual Edict called of Julian. This was a compilation made by Salvio Giuliano at the behest of Emperor Hadrian in 131 AD of the Christian era. He understood the various edicts exceeded earlier by the urban praetor and peregrinus since the creation of the praetura in 367 BC, edicts were forming a more just and equitable right to the rigorous civil law. And as a result of the enactment of the codification of Julian, a senate decreed that the magistrates did not change, as this had to implement the work of Julian in context, without prejudice to, in case of doubt, recourse to the emperor to pave the difficulty.

D. The Senate

The Senate in Rome had no legislative functions, but only for advice and counsel, but over time, and since the growth of the city made the calling of the people difficult to vote in the election laws, the corporation acquired senatorial powers similar to the legislative and went on to direct public affairs almost from the Republic. Thus was formed the senate director of the consuls and magistrates, of worship and the army, in charge of concluding international treaties, in charge of enacting the contributions and the obligation to declare the country in danger, with the subsequent appointment of a dictator.

The Senate was summoned by the king, by the consuls, by the magistrates, by the tribuni plebis, and lastly by the emperor. The senate proposal was made by the convener through an oratio, and in imperial times the emperor by letter or per epistolam. The opinion of the senate or senatus consulta consisted then of two parts: the oratio or explanation of the grounds and the senatus consulta itself, which came to be as resolved or disposed.

In the empire, many were taught, one of the most important sources of Roman law. But, by way of examples, it is worth quoting the Neronian, which determined how wills should be drafted; the Velleianum, which established that women could not be bound by bonds; and the Macedonian, which prohibited loans to the children of the family.

E. Prudent Response

Under the Institutes of Gaius, the responses of the prudent are judgments and opinions of those who had permission to sit upright, with the addition that when the opinions were unanimous, those had the force of law, whereas when they were divergent, the judge could follow that would satisfy him.

Livy says that knowing the right time was for a long time the exclusive privilege of the College of Pontiffs, whose responsibility it was to attest to the existing law, interpret, identify propitious days (dies fasti) in which justice could be administered, and develop formulas they should be subject to the demands of justice for citizens. Hence, it is argued that this time the law was eminently secret.

It was in the reign of Augustus, who wanted to gather all the branches of government, where the emperor chose to give the jurists addicted to his regime respondendi ius ex auctoritate principis (right to respond with authority of the prince) or respondendi publice ius (public right of reply).

Thus appeared two categories of lawyers: those officially approved for the right answer, and those who simply had to move in the private sphere and doctrine. But as the law would improve, the responsibilities were prudentium is applied, by extension, to similar cases, even when Hadrian decided that judges should fail to agree with the views of the prudent, provided that these were uniform.

But the decline of the empire ensued, and with it, the right, is molested appointments, with sequelae that judges, when the pagan empire, were limited to making a ruling supported a cautious approach from any and considers avenues to the case. This state of affairs led to the later empire, Emperor Theodosius II, issues of “Law of Dating”, whereby, they could only serve as a basis for the judgments, opinions of jurists Gaius, Papinian, Paul, Ulpian, and Modestinus, for if they were not consistent, the majority opinion should prevail, and if that majority was not obtained because some of these lawyers had not discussed the matter, the prevailing opinion of Papinian, but that if he had not made any pronouncement on the case, the judge was free to choose. The quote operated through the works left by the legal experts mented, as for the age of Theodosius II because they had died.

The nature of sources of Ius Civile, which took responses from lawyers, evidence that the Pandects or Digest, in his 50 books, no more or less orderly exposition of those responses.

F. The Imperial Constitutions

The Constitution of the Prince is what he emperor established by edict, decree, mandate, and rescript, without so much as doubt that had the force of law.

The edicts were those constitutions which contain general provisions applicable to all citizens, without the limitations of the edicts of the other judges.

The decrees were orders resolutions judiciales.

Los imperial mandates were addressed to the lieutenants, on the handling of things attached to their jobs.

The responses were rescripts emperor or right to consultation on specific legal issues and could be given by letter or, then the same statement which contains the question.

Gayana institutions seem to imply that under the generic letter, were including rescripts and mandates, but most authors apply the term Roman law rescript, which literally means a written response, as understanding of the Epistles and mandates perhaps because both women and men were issued in writing.

The imperial constitutions

Acts by which the emperors create legal norms. The imperial constitution is what the emperor commanded by edict or epistle, Constitutio principis est quod imperator decree edict vel vel constituit epistle (Gaius)

Constitutions can be classified into:

• Edicts, addressed to all or part of the population, are those that derive from the right to order (jus edicendi) of the emperor, who hold as a result of having already command (imperium) proconsular.
• Decrees, decisions are legal disputes, extra ordinem referring to knowledge of the emperors in the first instance or on appeal.
• Rescripts, are responses that give the emperors on legal questions submitted to them for consideration by public and private officials.
• Mandates, are the instructions given by the emperors to peripheral administration bodies, provincial governors of both provinces as the imperial senaturiales. They are never explicitly listed as constitutions, but there is no doubt that they are also sources of law. Some private law rules are introduced through them. Unlike other constitutions, have effect while the prince from whom emanate, remains in power. The successor usually confirm. Each province has its collection, taken according to a chronological order, which is the status of its administrative organization.

The constitutions of all types are listed in the comments, of which there are as many as those categories. It is, as mentioned, a strict chronological order. Constitutions of Marcus Aurelius is remembered semestria collections calls, is probably selections published every six months.

The Law of the Twelve Tables

The Romans wanted advice from the famous study of legislation then in Greece, and for this, sent in 301 to three patricians to Greece, where laws were in force of Solon and Lycurgus. They returned after a year, bringing Greek laws. Hermodorus, banished from Ephesus helped in the task of drawing up the law of the Twelve Tables.

The following year, the magistrates were suspended by mutual agreement, and all powers were entrusted to ten judges patricians elected in the elections for centuries, the dicenviros, who they are responsible for making law. After a year, published their work, written about ten tables, and then in 304 to appoint other disenviros added two more to complete twelve tables. After the judges wanted to stay in power illegally, and were ousted restored the consuls, the tribunes and all the old courts.

The law dicenviral was recorded on tablets of bronze and displayed in the forum; Although it is known today which was the fate of these, the text is still familiar to lawyers of the end of the republic and the first centuries of the empire. The true content of the Twelve Tables, have only come to this a few fragments, preserved in treaties of some jurists who commented on the law, especially Gaius from which extracts have been inserted in 18 Digest of Justinian. From the seventeenth century, has tried to reconstruct the law of the Twelve Tables, has been largely achieved at least preserve the meaning of these, but this work does not rest on any serious basis for in no way proved that each table form a complete whole and that the content has been determined other than by chance the writing.

We know what has come from the law dicenviral that this was essentially Roman character, and she is not, as has sometimes been wanted to pretend that a single copy of Greek laws.

The law of the Twelve Tables regulates both public law and private law. The Romans considered the source of their own right. Excellence is the law and all that derives from it is treated as legitimum, subsequent laws did more than develop the law of the Twelve Tables to Justinian and ever, none of its provisions were repealed. Although imperfect, this law made real progress. There hereinafter public law, applicable to all citizens.

From the Law of the Twelve Tables to the End of the Republic

During this period the commoners get slowly than they had expected without the law of dicenviros: equality with the patricians, public law and in law Since private 309, the tribune Canuleyo obtained, after long discussion, the vote of Canuleia law that allowed legitimate marriage between patricians and plebeians. This proved to be the complete mixture of races and the merger of two orders. So finally accepted the patricians commoners reach the highest magistrates, after sharing with them on the battlefield, had but to accept that they too had rights, and thus some plebeians came to the consulate.

On the year 307 are created quaestors charge of treasury and the censors in charge of the census, guardians of public morality and private, in 387, the Praetor, who administers justice, and the same year, the councilors curial charge of the high police of the city. From the 333 commoners could be quaestors and the number of these judges was increased to four. That same year, efforts by the tribunes Licinius and Lucius Stole Sixth, the plebeians came to the consulate. After that the other magistrates also were open to them, and reach the dictatorship in the year 398, the censorship in 403, the Pretura in 417 and finally the commoners to 454 are placed between the pontiffs and augurs, and 500, one of them, Coruncarioi Tiberius, is elevated to Grand Pontiff.

For these changes altered the composition of the Senate, under a law Ovini, of uncertain date. Soon, the commoners were the Senate majority. In addition, Hortensia of 468 law gave legal force to referendums, voted in plebis reconciled, and thereafter would be mandatory for all citizens.

Third Period

From the Birth of the Empire to the Death of Alexander Severus

In the early eighth century, the constitution Republican Rome was replaced by a monarchy, leaving Octavian as sole lord after the battle of Actium, took the titles of Imperator and Augustus, the town was granted and the Senate, 726 to 741: proconsular power. Which invested him command of all armies of the empire; tributicia the power that made him and gave inviolable right of veto on every judge; the censorial powers that allowed him to complete the Senate and religious power. None of the old magistracy was abolished.

Fourth Period

From the Death of Alexander Severus to the Death of Justinian

After the death of Alexander Severus begins in the late empire period that extends until the reign of Justinian. This is the stage where intestine wars for the throne, and the invasions of the barbarians gradually consumed in the Roman society disorganization. The ascent to the throne of endless talent lacking emperors to rule starts the fall of the already corrupt Roman society. With the strength of some as Constantine, who formalized Christianity as official religion, is achieved by a long slow process dissolution of empire, but do not last long barbers to re-invade the Italian peninsula. After the death of Teodocio, the empire is divided into two parts, the West and the East. The Western empire disappeared in 476 AD invaded by barbarians. The Orient, located in what is now Turkey, called New Rome Justinian again find some prosperity, but Italy finally falls into the hands of barbarians and after the death of Justinian, the Byzantine Empire is but a Greek empire.