Abstract
The history of Roman law in antiquity spans a period of more than eleven centuries. Initially the law of a small rural community, then that of a powerful city-state, Roman law became in the course of time the law of a multinational empire that embraced a large part of the civilized world. During its long history Roman law progressed through a remarkable process of evolution. It advanced through different stages of development and underwent important transformations, both in substance and in scope, adapting to the changes in society, especially those derived from Rome’s expansion in the ancient world. During this long process the interaction between custom, enacted law and case law led to the formation of a highly sophisticated system, gradually developed from layers of different elements. But the great bulk of Roman law, especially Roman private law, was not a result of legislation but of jurisprudence. This unenacted law was not a confusing mass of shifting customs, but a steady tradition developed and transmitted by specialists, initially members of the Roman priestly class and later secular jurists. In the final phases of this process when law-making was increasingly centralized, jurisprudence together with statutory law was compiled and ‘codified’. The codification of the law both completed the development of Roman law and evolved as the means by which Roman law was subsequently transmitted to the modern world.
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Notes
- 1.
Some modern Romanist scholars consider Justinian’s age to constitute a distinct phase in the history of Roman law in its own right.
- 2.
In early times, the clan (gens) was the most important element in society as it performed most of the political, religious and economic functions that were only later gradually assumed by the state. A clan was composed of households (familiae) that traced their lineage back to a common male ancestor (real or legendary). Although in time the central state organization supplanted the earlier clan system, the latter continued to play an important role in social and religious life for a considerable time to come.
- 3.
The first four of these kings (Romulus, Numa Pompilius, Tullius Hostilius and Ancus Marcius) are believed to have Latin or Sabine origins, whilst the last three (Tarquinius Priscus, Servius Tullius and Tarquinius Superbus) were Etruscans.
- 4.
The senate was also entrusted with the task of governing the state during the period between the death of a king and the election of another (interregnum) through a succession of senators acting as temporary kings (interreges).
- 5.
The term res publica (from which the word republic is derived) is usually translated as ‘state’ or ‘commonwealth’. It should be noted that at no time was Rome a democracy in the Greek sense, i.e. a state ruled by the people. Its society was always rigidly divided by legal status and by class. Free persons were classified, for example, by reference to whether they were so by birth or by release from slavery, were independent or subject to the authority of a father or guardian, or were Roman citizens or persons holding ‘imperfect citizenship’ (e.g. the members of some Latin communities).
- 6.
The most noteworthy feature of the republican constitution at the height of its development (3rd century BC) was the balance of powers it presented. The Greek historian Polybius (Historiae VI. 11), drawing upon the work of Aristotle, described the Roman constitution as a mixed constitution: partly monarchic, partly oligarchic or aristocratic, and partly democratic. This, he argued, was why the Roman constitution was stable and didn’t have to change on a cyclic pattern the way Aristotle had predicted constitutions should. As Polybius saw it, the monarchic element in the Roman constitution was represented by the magistrates; the oligarchic or aristocratic element was represented by the senate; and the democratic element was represented by the Roman people and their assemblies. There was an elaborate system of checks and balances between each of the three components and in the stability that this system produced Polybius saw one of the principal factors in Rome’s rise to world empire. However, this approach to the Roman constitution can be misleading, for Polybius’ frame of reference was mainly Greek, not Roman. Thus, at no time was Rome a democracy in the Greek sense of rule of the demos or ‘people’. The Roman republic began, and finished, as a state largely dominated by the upper classes in society, i.e. the senators and the equestrians.
- 7.
The jurisdiction of the higher magistrates embraced the resolution of disputes between citizens (iurisdictio inter cives) and the confirmation of personal legal acts, such as adoptions, emancipations and such like (iurisdictio voluntaria). The lower magistrates (magistratus minores) who lacked imperium had only limited jurisdiction.
- 8.
As magistrates remained in office for a limited time only, it would have been difficult for them to carry out their duties efficiently without the help of advisers and experienced technical staff. Thus, when discharging his judicial functions, a magistrate was usually assisted by a council of experts (consilium). The daily routine and most of the clerical work was carried out by salaried civil servants (apparitores) or slaves (servi publici, ministeria). Moreover, a magistrate could perform some of his duties through delegates acting in his name, but could not appoint another person in his place.
- 9.
The censor’s disapproval was expressed in the form of a note added next to the culprit’s name in the register (nota censoria). Conduct likely to incur the censors’ disapprobation included, for example, maltreating one’s family members or clients, neglecting one’s religious duties, acting against good faith in private transactions or being engaged in a disreputable trade.
- 10.
The edicts of the aediles concerning market transactions played an important part in the development of the Roman law of sale.
- 11.
In discharging these duties the quaestors acted under the authority of the senate, which exercised general control over the administration of public finances.
- 12.
Tribunus was originally a military title probably used to describe the commander of the armed forces of a tribe (tribus).
- 13.
The original number of the tribunes is believed to have been two (as in the case of the consuls), but that number was subsequently increased to five and, around the middle of the fifth century BC, to ten.
- 14.
As the tribunes were regarded as being inviolable and sacrosanct (sacrosancti), any person who impeded or assaulted a tribune in the execution of his duties could be declared an outlaw and put to death without trial.
- 15.
The lex Publilia Philonis of 339 BC provided that the approval of the senate had to be given in advance (i.e. before a proposal was put to the vote of the people). Under the lex Maenia (early third century BC) candidates for the highest offices of the state had to be approved by the senate before they were formally elected by the assembly.
- 16.
With the senate appears to have rested the ultimate responsibility of declaring war and concluding peace, although in principle this power belonged to the people.
- 17.
The senators were selected first by the consuls and, from 443 BC, by the censors (censores). The latter were entrusted with the task of drawing up the senators’ list (album senatorium), filling up vacancies caused by the death or the expulsion of senators.
- 18.
According to the lex Ovinia de senatus lectione, enacted in the late fourth century BC.
- 19.
The curiae originated from the prehistoric organization of the Italian tribes into groups of clans, probably bound together by blood ties and united for common defence. Besides kinship, territorial proximity between different clans must also have played a part in the formation of these groups.
- 20.
When it was summoned to perform these functions the curiate assembly was referred to as comitia calata.
- 21.
This assembly originally consisted of the citizens in military array. As time went on, however, its military basis was deprived of all reality and the century became merely a voting group that might be of any size, the literal significance thereof, as a body of a hundred men, being entirely lost.
- 22.
Legislative proposals were submitted to the assembly by the consuls or the praetors by whom it was convened. Depending on the magistrate by whom they had been proposed, laws (leges) were referred to as leges consulares or leges praetoriae.
- 23.
The assembly of the plebeians (concilum plebis) was created in 471 BC, following the recognition by the Roman senate of the plebeians’ right to hold meetings to elect their leaders (the tribuni plebis) and discuss matters concerning their class.
- 24.
The jurisdiction of the plebeian assembly also captured appeals against decisions of the tribunes imposing fines and other minor penalties.
- 25.
Although the formal distinction between the concilum plebis and the comitia tributa was retained until the close of the Republic, the differences between the two bodies, regarding their composition and the laws they enacted, gradually faded away. This mainly emanated from the elimination of the political division between the patricians and the plebeians and the rapid increase of the plebeian population.
- 26.
The third century BC is marked by Rome’s two great wars for control of the Western Mediterranean against Carthage, an old Phoenician colony in North Africa and a great maritime power. Despite the initial successes of her armies, Carthage was finally overwhelmed by the Romans and was reduced to the position of a client-state of Rome. In 188 BC, after a four-year war, the Romans broke the power of Antioch III, King of Syria and Asia Minor, and extended their control over the Eastern Mediterranean. In 148 BC, following a protracted struggle, Macedonia was defeated and turned into a Roman province. With the dissolution of the Achaean confederacy and the sacking of Corinth in 146 BC, the whole of Greece fell under Roman domination. The same year marks the end of the Third Carthaginian or Punic War (149–146 BC), which resulted in the complete destruction of Carthage and the annexation of her territory as part of the Roman province of Africa. In 88 BC Rome embarked on a series of wars in the East against King Mithridates of Pontus, who had declared himself liberator of the Greeks and launched a campaign aimed at expelling the Romans from Asia Minor and Greece. After Mithridates’ defeat in 63 BC, Rome regained control of Greece and a continuous belt of Roman provinces was created along the coasts of the Black and Mediterranean Seas from Northern Asia Minor to Syria and Judaea. This phase of Roman expansion ceased with the conquest of Gaul by Julius Caesar (58–53 BC) and the annexation of Egypt by Octavian in 30 BC.
- 27.
Greek philosophical thinking, especially Stoic philosophy, attracted many followers among the members of Rome’s upper classes. The success of Stoicism was to a large extent due to the fact that it reflected best the cosmopolitan ideals of the times. In particular, the Stoic ideal of a world state based on the brotherhood of men exercised a strong influence on Roman thought and furnished one of the foundations on which the political philosophy of the empire was built.
- 28.
The increase in economic activity during this period is manifested by the development and widespread use of currency and the establishment of financial institutions in Rome and other cities in Italy and overseas.
- 29.
An active and visible minority within the equestrian class acquired their wealth by entering into contracts with the Roman state for the collection of public revenues. These contractors, referred to as publicani, assumed the risk and expense for exploiting the state’s assets and paid an annual fixed sum to the Roman state treasury. The wealth and influence of this class of businessmen grew rapidly as Rome’s territory and revenues expanded.
- 30.
In the second century AD, regular commercial contacts were established with lands as distant as India, China, Arabia, central and southern Africa, and the Scandinavian regions. Of far more importance was the trade conducted within the empire itself, between different provinces and cities.
- 31.
An outstanding social by-product of the empire’s prosperity was the emergence of a numerically small but significant middle class in the provincial cities and towns, which was composed largely of landowners, merchants, bankers, and private contractors. This class furnished the members of the municipal councils (decuriones) who, after their election, became citizens of Rome.
- 32.
The last law passed by the comitia was a lex agraria enacted under Emperor Nerva (96–98 AD). This law is mentioned in the Digest of Justinian in an extract of the jurist Callistratus (D. 47. 21. 3. 1.).
- 33.
In the first century AD the procedure leading to the enactment of a senatus consultum was initiated by the emperor himself, or a magistrate acting in his name, through a speech containing the emperor’s legislative proposal (oratio principis in senatu). From the second century AD the emperor’s proposals were approved by the senate as a matter of course and, in most cases, without discussion.
- 34.
Whereas during the Republic the office of consul was normally held by two persons in the course of one year, it now became common practice to appoint several pairs of consuls during one year, and this number varied according to the number of persons on whom the emperor wished to bestow the title.
- 35.
During the Principate the number of praetors was increased, initially to twelve and later to eighteen. Of these the praetor urbanus and the praetor peregrinus had general jurisdiction, whilst the jurisdiction of the rest was limited to certain matters only. Thus, in the Augustan era the management of the public treasury (aerarium) was entrusted to two praetors, referred to as praetores aerarii; from the time of Claudius a special praetor was appointed to deal with cases concerning trust estates (praetor de fideicommissis); under Nerva a special praetor was entrusted with the resolution of disputes that arose between private individuals and the imperial exchequer (praetor fiscalis); and in the time of the Antonine emperors the appointment of guardians and the resolution of disputes which arose between guardians were consigned to a special praetor known as praetor tutelarius.
- 36.
The office of praetor peregrinus disappeared after the Roman citizenship was granted to all the free inhabitants of the empire in the early third century AD.
- 37.
Subsequent emperors regarded their auctoritas as the ultimate source of their acts in the legislative, judicial and administrative fields (ex auctoritate nostra).
- 38.
From the word princeps arose the term ‘principate’, by which the new system of government became known.
- 39.
The praefectus annonae had general jurisdiction in matters connected with the supply and trade of foodstuffs.
- 40.
This official was the head of Rome’s fire brigades (cohortes vigilum) and his duties included policing the city by night and dealing with fires and any other natural emergencies that might arise.
- 41.
In the course of time the fiscus assumed a special legal personality and, from the late second century AD, it began to be represented in the courts when disputes arose between the fiscus and private individuals concerning debts. Distinct from the fiscus was the personal property of the emperor, referred to as patrimonium Caesaris, which was administered by officials known as procuratores patrimonii.
- 42.
Claudius Gothicus AD 268–270, Aurelian AD 270–275, Probus AD 276–282.
- 43.
Constantine’s decision to establish a new capital city testifies to the fact that the empire’s political and economic centre of gravity had shifted inexorably to the East.
- 44.
This date is traditionally regarded as marking the end of the Roman Empire in the West.
- 45.
He was referred to as dominus (lord), and so this era has become known as the Dominate.
- 46.
In later years, the recognition of Christianity as the state religion compelled an adaptation of the imperial cult to the demands of a stringent monotheism. The emperor was installed by the grace of God and his empire existed as a reflection of the heavenly kingdom; both were deemed divinely inspired and protected, and everything remotely connected with the imperial personage partook of imperial sanctity.
- 47.
The emperor was held to exist above the laws, in the sense that he could not be held responsible for his legislative and administrative acts; however, he was bound to respect the laws and abide by his own edicts as his authority rested on obedience to them.
- 48.
In later times the city of Ravenna in Italy was chosen as the new home of the Western emperors, while the administration of the East centred around the eastern emperor at Constantinople.
- 49.
The sacrum consistorium developed from the earlier consilium principis as organized by Emperor Hadrian in the second century AD.
- 50.
However, the institution of the defensor civitatis ultimately failed to achieve its declared goal as many of those individuals who held the office often committed abuses themselves or were prone to manipulation through bribery or intimidation.
- 51.
For example, the office of consul was abolished by imperial decree in AD 541.
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Mousourakis, G. (2015). The Historical and Constitutional Context of Roman Law: A Brief Overview. In: Roman Law and the Origins of the Civil Law Tradition. Springer, Cham. https://doi.org/10.1007/978-3-319-12268-7_1
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