The Sources of Roman Law

Problems and Methods for Ancient Historians

O. F. Robinson

• Publisher: Routledge
• Year: 2006
• ISBN:
  9781134877768
• Edition: 1
• Topic: History
• Subtopic: Ancient History
• Index: History

The notion and understanding of law penetrated society in Ancient Rome to a degree unparalleled in modern times. The poet Juvenal, for instance, described the virtuous man as a good soldier, faithful guardian, incorruptible judge and honest witness.
This book is concerned with four central questions: Who made the law? Where did a Roman go to discover what the law was? How has the law survived to be known to us today? And what procedures were there for putting the law into effect? In The Sources of Roman Law, the origins of law and their relative weight are described in the light of developing Roman history. This is a topic that appeals to a wide range of readers: the law student will find illumination for the study of the substantive law; the student of history will be guided into an appreciation of what Roman law means as well as its value for the understanding and interpretation of Roman history. Both will find invaluable the description of how the sources have survived to inform our legal system and pose their problems for us.

Chapter 1
The Makers of Roman Law

THE BEGINNINGS

Once upon a time, and I use the traditional phrase deliberately, Rome was a small city state governed by kings and closely connected to the Etruscans, a relatively advanced people of central Italy, with wide trading links. Rome was probably founded as a community, that is as a potential city state rather than just the site of a few shepherds’ huts, as early as the eighth century BC. The traditional date has long been 753 BC, and archaeological evidence shows that the ‘city‘ was certainly in existence by the early sixth century. The rule of the kings at Rome in this period is confirmed by the surviving sacral offices of interrex and rex sacrorum.¹ There were laws traditionally ascribed to these kings (leges regiae), which seem to have been customary rules dealing with matters on the frontier between law (public and private) and religion.² They were probably made into a collection quite late in the Republic to explain points of sacral law; they bear no strong resemblance to the law as it was later developed, or even to the Twelve Tables.³ On those matters that may be classed as private law, the leges regiae deal with aspects of the (extended) family. These aspects comprise the power of life and death of the paterfamilias, the marriage relationship, Caesarian operations to try saving the child of a dead mother, mourning periods, the citizenship of formally freed slaves, and relations between patron and client.

According to tradition again, in 509 BC the kings were expelled from Rome, and a republic was established. It is quite clear that the republic was for long a society in flux. The portrait given us by the historians (writing at least 400 years later) is of conflict between patricians and plebeians, known as the struggle of the orders; this distinction may only have hardened after the overthrow of the kings. Various attempts at a lasting constitution seem to have been made, at least in the eyes of those who recorded them much later. We hear of plebeian secessions, military tribunes with consular power as well as consuls, of the institution of a (patrician) censorship. However, a settled, although unwritten, constitution for the Republic, as we know it in reliably attested times, was established by the Licinian Sextian Acts of 367 BC. The Urban Praetor and the curule aediles date from them; they also marked the beginning of the end of the struggle of the orders.

However, the legal history of Rome has some different landmarks from the political history. The foundation of Roman law, the legal attitude of Rome, is generally accepted as being based on the Twelve Tables of the mid-fifth century BC. Livy called them ‘the source and origins of all our law’.⁴ We have no complete account of them, although Cicero indeed says that, as a boy, he had to learn them by heart.⁵ What we have instead, is quotations, modernized or paraphrased, from the Twelve Tables, by, among others, Cicero, Festus, and Aulus Gellius to illustrate points they were making. Moreover, the jurist Gaius wrote a commentary on them, of which some fragments survive, in which he gives us some quite extensive quotations on procedural law.

The Twelve Tables were portrayed as one result of the political struggles of the early Roman Republic. The original nature of the legal distinction between privileged patrician and unprivileged plebeian, despite much debate, remains obscure; this is partly because it was no longer of any real social or political importance after the Hortensian Act of 287 BC. It is said that the citizen body wanted restraints upon the power of magistrates, and that the humbler elements of society, the plebeians, wanted the law made public in the sense that they wished to be able to know how to use it. As Watson has pointed out,⁶ the patricians responded with great political skill. The plebeians were indeed made aware of some basic rules of procedure which they would need in order to make use of the law, and some areas of substantive law were clarified, but everything in the sphere of sacral law and of constitutional power was omitted from the codification. Thus matters affecting the governance of the city-state remained in the hands of the patricians, exclusively for most of the next century, and to a considerable extent throughout the Republic. Hence also Roman private law, because it was founded in the Twelve Tables, was secular law, and religious argument played virtually no part in it. The form taken by the Twelve Tables was ‘legislation’, that is they were a statute – or rather two – passed by the most important of the assemblies of the Roman people, the comitia centuriata, and this brings us back to the constitution.

THE CONSTITUTION OF THE MIDDLE AND LATE REPUBLIC

From 366 BC until the last century BC the constitution was stable, even if its conventions were not always observed. There were three elements, magistrates, Senate, and people.⁷ The magistrates exercised the executive power; they were elected annually, and each magistracy was collegiate, that is, there were two or more of each rank.⁸ Any magistrate could veto (by intercessio) the act of his colleague(s) or of any lower magistrate; the tribunes of the people had a general power of veto. Magistrates with imperium, while ceasing technically to be magistrates after their year of office, could have their power prolonged; they were known as proconsuls or propraetors. The Senate was the body which advised the magistrates, and represented the majesty of the Roman people – SPQR, Senatus Populusque Romanus. All but the most junior magistrates already belonged to it before their term of office. The people, that is all male adult citizens,⁹ met – when summoned – in various assemblies, elected the magistrates, passed (or rejected) laws proposed to them, and exercised some criminal jurisdiction.

The assemblies

All citizens had membership of the popular assemblies, whether meeting by curiae, by centuries or by tribes. While every citizen had a vote in each of these assemblies, not all votes were equal because, although voting was by head within each constituent group, the groups as such then cast their votes, and these groups were of different sizes. In this way even the popular element in the constitution was democratic only in a rather limited sense. Rome was, however, unusual in the ancient Mediterranean world in that, throughout the whole of Roman history, freed slaves normally became citizens, and, until quite late in the Republic, the barriers to immigrants becoming citizens were not high.

The oldest assembly was the curiate, but the nature of the thirty curiae which composed it remains obscure; there was some link with the clans (gentes), and this probably explains why the curiate assembly, presided over by the pontifex maximus, continued to be the forum for various legal transactions involving the family, such as will-making and adrogation (a particular form of adoption). It had some sacral functions. It also confirmed, purely formally, the election of magistrates with imperium.

The centuriate assembly was created later, but it was reckoned as the most important – comitiatus maximus, as described by Cicero.¹⁰ It elected magistrates with imperium, supreme power, power of life and death over the citizens whether in war or peace (although there came to be certain restrictions on the exercise of this power). The centuriate assembly often acted as a court in capital cases. It could pass legislation, although after the Twelve Tables it did so only rarely. It also made formal declarations of war and ratified treaties of peace. It was divided into notional centuries, clearly representing the citizens in arms of the early period; these centuries were distributed among classes, theoretically based on the level of armour the citizen could afford. Although every citizen had a vote within his century, the first class and the equites (cavalry or equestrians)¹¹ together had a majority of the centuries. In the third century BC some link between the centuries and the tribes was established, but its nature is obscure.

The tribal assembly was organized originally by area; there were four urban tribes within the City and, by 241 BC, thirty-one others called rustic. Again, every citizen had a vote within his tribe, but the four urban tribes were much the largest – to them were assigned freed slaves, although a few senatorial families continued to be members – and so a vote within one of them had much less weight. The same grouping was used for meetings of the concilium plebis, the assembly which excluded the patrician gentes. Since by the later Republic the great majority of even senatorial families were technically plebeian, there was scope for confusion between the two assemblies, especially after the Hortensian Act of 287 BC had given the same force to the resolutions of this plebeian assembly (plebiscita) as to the legislation (leges) of the assemblies of the whole people. In fact most legislation of the later Republic seems to have been before the plebeian assembly, since the tribunes (tribuni plebis), who normally presided over it, did not, unlike the higher magistrates, have the distractions of military command or jurisdiction. Whatever the assembly, legislation was drafted by a magistrate, perhaps with the help of jurists,¹² and normally debated in the Senate; the bill (rogatio) was then proposed to the people who could vote only to accept or reject, without any power to amend. The tribal assembly sometimes acted as a court in non-capital trials. It also elected the lesser magistrates, without the presence of patricians for the election of the specifically plebeian magistrates, that is the plebeian aediles and the tribunes of the people.

The magistrates

The supreme executive power in the state was held by the two consuls, elected by the centuriate assembly, which was summoned by one of their predecessors (or by a dictator or interrex when there was no surviving consul). The consuls shared power – imperium – jointly; it included the supreme military command, jurisdiction, the proposal of business to an assembly or the Senate, and whatever else might be necessary.¹³ Particularly in military matters this shared power sometimes led to confusion, and it became normal for the consuls to alternate the power of commander-in-chief in the field either daily, or monthly as they did at Rome; this arrangement could be altered by agreement or by lot. Each consul, during his turn, was entitled to twelve attendants, called lictors, bearing the fasces (rods) and – when abroad – an axe, as symbols of his power to enforce his authority. The consuls also were eponymous, that is they gave their names to the calendar year of their office.

Jurisdiction, however, particularly civil jurisdiction, was the job of the praetor, a magistracy created in 367 BC specifically to relieve the consuls of this function. At first the praetor was viewed as a junior colleague of the consuls; he too was elected by the centuriate assembly and exercised imperium, but was entitled to only six lictors, and his acts could be vetoed by a consul. After 242 BC the praetorship became properly collegiate when, because there had been such an increase in litigation, a second praetor was created to exercise jurisdiction over foreigners (peregrines), and, later, also in actions between citizen and foreigner.¹⁴ The very existence of such a magistrate is a remarkable demonstration not only of Rome’s growth but also of her openness. Thereafter the senior praetor (the one who had most votes) was called the Urban Praetor and the other the Peregrine Praetor. Because the praetorship necessarily gave the holder imperium, for military reasons the number of praetors was enlarged, to four in 227 BC and to six in 197 BC, as Rome acquired provinces which needed governors. Sulla used them to preside over his system of criminal courts, while sending out governors to the provinces with proconsular or propraetorian imperium. We shall return in the next chapter to the Urban Praetor, the one meant when there is reference simply to the praetor.

Below the praetors, and without imperium, were the aediles. The two plebeian aediles, whose office went back to the early Republic, were elected by the concilium plebis; two more, the curule aediles, elected by the tribal assembly, were created in the reforms of 367 BC. In spite of their different origins, the four operated as a college. Their chief concern was the c...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Preface
• Abbreviations
• Chapter 1 The Makers of Roman Law
• Chapter 2 The Legal Sources
• Chapter 3 Transmission
• Chapter 4 The Settling of Disputes
• Chapter 5 The Uses and Pitfalls of Using the Sources of Roman Law
• Further Reading