Roman Notes PDF

Jodie Psaila – Roman Notes 1. The regal period: According to the traditional story Rome was founded in B.c. 753, and from that date until B.c. 510 was ruled by kings. This is the earliest or regal period of Roman history. But since most ancient monuments and records must have perished when Rome...

Jodie Psaila – Roman Notes 1. The regal period: According to the traditional story Rome was founded in B.c. 753, and from that date until B.c. 510 was ruled by kings. This is the earliest or regal period of Roman history. But since most ancient monuments and records must have perished when Rome was burnt by the Gauls, circ. b.c. 390, and what passes for the history of this time was largely a fabrication of later ages, or at best a vague tradition, adorned with stories of gods and heroes, we cannot have any exact knowledge of the course of events. We may, however, form some picture of the state of society. Ä The law was customary, not enacted, and when we find rules or institutions attributed to Romulus or another of the early kings all that we can conclude is that they were of a high antiquity, or, at least, were thought to be so in later ages. Ä The social unit was the patriarchal family, in which the highest living ascendant was sole proprietor and at the same time judge and priest. Kinship was agnatic, that is, reckoned exclusively through males. The family consisted of a group subject to the power of a living male ascendant (paterfamilias). The agnates comprised these and all others known to be descended through males from a common ancestor no longer living. Outside these was the gens or clan, whose members had a common name and a common worship, and supposed themselves related to one another by descent from a common ancestor, though the relationship was imaginary or too remote to be traced. Agnates are family members who are all descended from the same male ancestor through only male relatives. Beyond this close male-line family, there was a larger group called the gens or clan. Members of the clan shared a common name and religious traditions and believed they were all descended from the same ancestor, even if that connection was either imagined or too distant to prove. 2. King – Senate – People The organisation of the community was of a type which is not uncommon in primitive societies, and is familiar to readers of Homer’s Iliad. It consisted of three elements: 1. King The king held office for life, chosen by the people, or nominated by his predecessor. He was leader in war, chief judge and chief priest. 2. Council or Senate - an advisory body, chosen by, or imposed upon, the king 3. People The popular element was the Comitia or Assembly of the People. The People was distributed into thirty lesser units, called curiae, and the assembly was similarly constituted, each curia casting one vote. This body—the comitia curiata—is represented as giving its assent to measures proposed to it by the king; but it is more probable that it rarely, if ever, passed laws of general application its function was rather to authorise particular departures from settled custom – example: to allow a citizen to adopt into his family, and therefore into his potestas, another citizen of independent status, or to sanction a 1 Jodie Psaila – Roman Notes disposition of property by will contrary to the usual rule of intestacy, or to give effect to other processes intimately connected with the constitution of the Roman family. 3.Patricians – Plebians – Clients Many doubts exist as to the composition of the citizen body in this early period. We read of patricians, plebeians, and clients, but the nature and origin of these distinctions are obscure. It was formerly thought that the patricians constituted the original citizen body, and that the plebeians consisted of a rabble of fugitive aliens or manumitted slaves without civic rights or duties. But this view has not remained unquestioned. It is said that the distinction between patricians and plebians, “appears as far back in Roman history as we can go, and in all times of which we know anything for certain, the plebians were citizens – unprivileged citizens, no doubt, but not mere resident foreigners.” The clients may be regarded as occupying an intermediate position. They enjoyed the protection of the patrician houses at the expense of personal dependence. Every client had his patron. The bond which united them was held to be sacred. The Law of the Twelve Tables declared accursed the patron who wronged a client and Virgil in the Aeneid assigns to him a special place in hell. The institution of clientage was not peculiar to Rome it occurs also in Latium generally, and other parts of Italy, and in Greece. Indeed, such a relation easily arises wherever economic and social conditions weigh heavily upon a section of the community. Every client had a patron, and this relationship was considered sacred. Roman law severely punished any patron who betrayed a client, and even the poet Virgil imagined such wrongdoers being sent to hell. This system of clientage was not unique to Rome—it existed in other parts of Italy and Greece as well. 4. The Servian Constitution Servius Tullius, the last but one of the seven kings of Rome, is credited with the creation of a new popular assembly, part of the so-called Servian constitution, which may, however, belong to a later date. The Roman army was made up of companies of a hundred men called "centuries," and the Assembly, which was only the army under another name, was similarly organised under the name of Comitia Centuriata (Assembly of the Centuries). It consisted of ten centuries of cavalry (equites), rich patricians, and of the main body of infantry, distributed in five Classes progressively diminishing in wealth, subdivided into centuries (in the first 80, in the second, third and fourth 20, in the fifth 30). The whole scheme depended upon the ownership of land, later of property in general. Voting was by centuries and began with the equites. If they and the centuries of the first class were of one mind, as they usually would be, this secured an absolute majority of votes and the lower classes were not asked to express their opinions. It is plain that the system was nicely calculated to give a preponderating influence to the comfortable citizens of the first class, particularly if we consider that the impressive number of centuries assigned to them may have consisted largely of cadres which were 2 Jodie Psaila – Roman Notes never brought up to strength. But, however that may be, the Comitia Centuriata was always the army and as such met outside the City, usually in the Campus Martius. This condition attached to it until it expired in the first century of the Empire. The Assembly Was Based on Wealth: The Comitia Centuriata (Assembly of the Centuries) grouped citizens based on wealth, with wealthier people having more influence. The assembly was divided into military units called centuries, each representing a certain number of soldiers. Structure of the Assembly: The wealthiest group was the equites (cavalry), made up of rich patricians. There were 10 centuries of them. The remaining citizens were infantry soldiers, divided into five classes based on wealth: o 1st Class (richest): 80 centuries o 2nd, 3rd, and 4th Classes: 20 centuries each o 5th Class (poorest): 30 centuries In total, the wealthiest citizens (equites + 1st class) controlled 90 centuries, while the lower classes together had only 90 centuries or fewer. 1. How Voting Worked: Each century had one vote, regardless of how many people were in it. Voting started with the equites (richest citizens) and then moved to the 1st class. If the equites and 1st class agreed on a decision, they already had a majority of votes, so the lower classes were never even asked to vote. 5. Eclipse of Comitia Curiata The new assembly pushed the comitia curiata into the background. This lost any legislative functions it may have had, but continued to be convoked to give formal authority to the higher magistrates at the beginning of their term of office (lex curiata de imperio), and under the name of comitia calata so late as the time of Gaius still met to give formal sanction to adrogations and wills, and for other purposes affecting the family religion or otherwise of religious significance. These proceedings were controlled by the college of pontiffs, but the fiction of an assembly of the curaie was maintained by the attendence of thirty lictors, one from each curia. Cicero refers to this practice in connection with a meeting of the comitia curiata held for the purpose of taking the auspices. The farce was carried still further when it was possible to suggest that three augurs has been asked to swear to a meeting of the comitia which in fact had never taken place. - The creation of the new Comitia Centuriata (Assembly of the Centuries) made the older Comitia Curiata (Assembly of the Curiae) less important. It lost its power to make laws but still met for certain formal and religious purposes. What the Comitia Curiata Still Did: the Comitia Curiata formally approved the authority of high-ranking officials (magistrates) when they took office (lex curiata de imperio). Under the name Comitia Calata, it gave official approval to adoptions (adrogations), wills, and other religious matters. 3 Jodie Psaila – Roman Notes These ceremonies were controlled by the college of pontiffs (priests), but they kept up the appearance of an assembly by having 30 lictors (official attendants), one from each curia, stand in for the people. Cicero’s Criticism: Cicero mentions a case where the Comitia Curiata was called just to perform a ritual for reading omens (taking the auspices). He also points out that the process had become a joke—sometimes, officials even claimed that an assembly had met when it never actually did, relying on just three priests to swear that it had happened. 6. Leges Regiae We have observed above that it is unlikely that there was anything that could be called legislation in the period of the kings. However, Pomponius, a jurist of the time of Hadrian, who, in a long passage cited in the Digest, is our principal source of information as to this early period of legal history, tells us that Romulus and the later kings laid projects of law before the comitia curiata. “ All of these”, he says, “ are extant in the book of Sextus Papirius ”, whom he describes as contemporary with the last king of Rome, and who may be the same as a Papirius elsewhere mentioned as first pontifex maximus of the Republic. “This book ”, he continues, “is called the jus civile Papirianum; not that Papirhis introduced into it anything of his own, but because he reduced to order statutes which had been passed without system If this is true, enacted law goes back to the time of the kings; but the story is generally discredited, and it is thought that the collection in question was made in a much later age. In any event. It was probably of a religious character or belonged to “the borderland between law and religion.” - During the time of Rome’s kings, it is doubtful that formal laws, as we understand them, existed. However, a jurist named Pomponius, writing during Emperor Hadrian’s reign, claimed that Romulus and later kings proposed laws to the Comitia Curiata (the early assembly). - Pomponius stated that all these early laws were recorded in a book by Sextus Papirius, who supposedly lived during the time of Rome’s last king. This book, called the Jus Civile Papirianum, was said to be a collection of the laws passed by the kings, organized by Papirius but not changed by him. If this account were true, it would mean that written law existed in Rome as early as the monarchy. However, most historians doubt this claim. They believe the collection was actually put together much later and that its contents were likely religious in nature or fell somewhere between law and religious customs. 7. The Roman Republic The monarchy came to an end—so the story goes—with the expulsion in b.c. 510 of Tarquinius Superbus, the last of the kings. The single ruler with a life tenure was replaced by two annual of Eieers called at first praetors, later consuls. A phantom king was retained for religious purposes. “In order that the national gods might not refuse to the Mngless city the protection which they gave to the royal city the so-called rex sacrorum was left in the ancient royal residence called the regia.” But all other functions of kingship passed to the new officers. An important consequence of the substitution of two annual magistrates for the single magistrate holding office for life was the 4 Jodie Psaila – Roman Notes increased power of the Senate, which was the most permanent element in the constitution. Its members were nominated by the consuls, later by the censors. In practice it came to consist, for the most part, of ex-magistrates. Originally a purely patrician body, it changed its character as plebeians, in the course of a long struggle between the two “orders ”, obtained access to the higher magistracies. It was the practice for the magistrates to consult the Senate on all matters of importance, so that it became the permanent executive of the Roman State. This body, or, more precisely, its patrician nucleus, gave a formal sanction to laws passed by the assembly. This was called the auctoritas patrum. By the lex Publilia Philonis of b.c. 339 it had to be given before, not after, a measure had been sub- mitted to the people. It is commonly said that this law reduced the privilege of the patrician members of the Senate to a mere formality. Whether it did so or not, the rapidly increasing preponderance of plebeians in the Senate soon had this effect. Even though Rome no longer had real kings, a symbolic "king of sacred rites" (rex sacrorum) was kept for religious ceremonies. This was done to ensure that the gods, who had protected Rome under the monarchy, would continue to do so after the kings were gone. With kings gone, the Senate became more powerful because: o Unlike consuls, who served for only a year, the Senate was a permanent institution. o The consuls (and later, censors) chose its members, usually former magistrates. o It was originally made up of only patricians, but over time, plebeians gained access after long struggles. o The Senate became the main governing body since magistrates routinely asked for its advice on important matters. 8. Lex Plebiscitum Another consequence of the abolition of the monarchy was the increased importance of the popular assembly. Its functions were electoral, legislative and judicial. Ä It elected the consuls. Ä It passed laws of general application. By a measure under the name of lex Valeria de provocatione attributed to the first year of the Republic, but probably of later date, it entertained appeals from capital sentences passed upon a citizen. Early in the Republic a new body came into existence called the comitia tributa, an assembly of the people organised on a basis of tribes or local divisions. Distinct from this, again, was a body called the meeting of the plebs (concilium plebis), which consisted exclusively of plebeians. It chose the tribunes , and passed resolutions called plebiscita, which originally bound the plebeians only, but by the lex Hortensia of B.C. 287 were made binding upon the whole people and so acquired the force of law. The same effect is attributed to two earlier statutes (one more instance of the uncertainty which attaches to all this period of Roman history). We get the surprising result that part of the community asserted and secured power to legislate for the whole, and that there were four types of assembly in theory or in fact competent to make laws for the whole people: 1. comitia curiata - was a legislative body in form only 2. comitia centuriata - was convoked (usually) by a consul 5 Jodie Psaila – Roman Notes The comitia centuriata was summoned to vote upon questions of peace or war, or otherwise of constitutional importance, and once in every four or five years passed the law which invested the censors with their functions (lex de censoria potestate). 3. comitia tributa – was convoked by a consul or praetor 4. concilium plebis – was convoked by a tribune In the later Republic the concilium plebis was the normal vehicle of legislation, and its enactments were termed leges (no longer plebiscita). 9. Senatusconsulta In addition to the above-mentioned modes of legislation, the Senate by virtue of its authority as the motive power of the executive, passed resolutions called senatusconsulta, which were directed to suspending the law in case of urgency or dispensing with it in favour of individuals, or assumed the form of advice, practically instruction, to a magistrate. In particular, the Praetor, if desired to do so, would incorporate such a recommendation in his Edict. This was, in effect, legislation promoted by the Senate. Under the early Empire senatusconsulta came to have an independent validity as a source of civil law. But to conservative sentiment this seemed an encroachment upon the legislative prerogative of the Roman People, and so Gaius wrote: " A senatusconsultum is what is ordered and established by the Senate, and it has the force of a statute, though this was formerly called in question." During the Republic in times of crisis the Senate on several occasions passed a resolution known as the senatusconsultum ultimum directing the consuls and other magistrates "to look to it that the commonwealth takes no harm." 10. The Twelve Tables The first certain landmark in the history of Roman Law is the Law of the Twelve Tables. The plebeians complained that knowledge of the law was withheld from them, and that its administration by patrician consuls was arbitrary and tyrannical. In the year B.C. 462 Gaius Terentilius Arsa, one of the tribunes, proposed measures of reform. After ten years of ierce controversy and civil commotion an agreement was come to. Ä Commissioners were to be appointed to draw up a code of laws. But first three delegates were sent to Greece to inquire into the laws and institutions of the Greek States and particularly to investigate the famous code of laws which Solon had given to Athens. After the return of the commission ten men, all patricians, were appointed to hold office during the following year. There was to be no appeal to the people from their decisions, and the functions of the other magistrates were to be in suspense. The ten men - decem viri - commonly known as the "Decemvirs," drew up ten tables of laws which were submitted to and approved by the comitia centuriata (B.c. 451). 6 Jodie Psaila – Roman Notes But their task was incomplete. A new commission of ten, this time including some plebeians, was appointed for the following year. They produced two additional tables, which Cicero describes as of an inequitable character. When their term of office was over, they continued to exercise a usurped authority during another year, until a popular rising overthrew them and re-established the old constitution (B.C. 449). Nevertheless, the newly elected consuls submitted to the comitia the two last Tables, which, together With the first ten, constituted " The Law of the Twelve Tables." This was looked upon by the Romans of later ages as the starting point of their legal history, "the fountain," Livy calls it, "of all public and private law." It remained formally in force until superseded by Justinians’ legislation, nearly ten centuries later. 11. The Law of the Twelve Tables Ä usually spoken of as a code, but it was far from being a codification of the whole law Perhaps it dealt with matters of current controversy and left untouched principles which had not been called in question. But as to this we have no certain knowledge, and we cannot say what changes the Tables made in the law. Our knowledge of their contents is derived from fragmentary citations, references and descriptions, to be found in legal literature, or in the worts of Cicero and other ancient writers. Ä the fragments which in one form or another have come down to us convey an impression which we can rely upon as tolerably complete and accurate. It is a picture of a primitive agricultural society, in which government has scarcely emerged from the stage of regulated self help, in which law has not yet been disentangled from religion, in which the sinister exercise of magic is a thing to be guarded against and visited with religious sanctions. On the other hand, the provisions for bidding excessive expenditure on funerals, said to be derived from the laws of Solon, seem to point to increasing wealth and inequality in its distribution. Modern editors, beginning with Jacques Godefroy (Gothofredus) early in the seventeenth century, have attempted to assign the fragments to their appropriate Table and by doing so have, if nothing else, reduced them to system. They are found to relate to: - Civil Procedure and Execution (Tables 1, 2 and 3) - Patria potestas (Table 4) - Tutelage, Inheritance and Property (Tables 5, 6 and 7) - Crimes (Table 8) - Public Law (Table 9) - Sacred Law (Table 10) - with two further Tables described as an appendix But this reconstruction is wholly artificial, and is useful merely as a general indication of the scope of the decemviral legislation, so far as we have knowledge of its contents. 12. Interpretatio Law of whatever kind calls for interpretation, and those who are accepted as interpreters of the law necessarily influence its development. For about a century after the enactment of the Twelve 7 Jodie Psaila – Roman Notes Tables the interpretation of the law and of the actions founded upon it was in the hands of the college of pontiffs. After the Twelve Tables (Rome’s first written laws) were created, the college of pontiffs (a group of high priests) controlled legal interpretation for about 100 years. During this time, they developed legal fictions—clever ways to get around strict rules by indirectly achieving new results (examples include adoption and property transfers). The ascendancy of the pontiffs came to an end in B.C. 304 when, according to the story, one Gnaeus Flavius, secretary of Appius Claudius (censor in 312), stole his master's manuscript and made public the forms of action appropriate to each state of circumstances, a secret up till then jealously guarded by the priesthood. Perhaps his master was privy to the "theft." This completed the process begun by the Twelve Tables. The law and above all its use in practice was no longer hidden in the bosom of the priests. From having been religious, it became secular, and public property. It is perhaps not unreasonable to see some connection between the publication of this so-called jus Flavianum and the lex Ogulnia of B.C. 300 which for the first time admitted plebeians to the pontifical college. At first, only the priests knew the proper legal procedures, keeping them secret from the public. In 304 B.C., a man named Gnaeus Flavius, who worked for a high-ranking official, supposedly stole and published these legal procedures. This made the law public knowledge, taking it out of the hands of the priests and making it more secular (non-religious). Around the same time, a new law allowed plebeians (common people) to become pontiffs, ending the religious elite’s monopoly on the law. A further step in the same direction was taken by Tiberius Coruncanius, consul, B.C. 280, first plebeian pontifex maximus, B.c. 253, who, as Pomponius tells us, was the first to profess law publicly, which seems to mean that he held himself out to give consultations accompanied by instruction to students of law, a sort of legal hospital practice. A second publication enlarging the work of Gnaeus Flavius, to which Pomponius gives the name of jus Aelianum, is attributed to Sextus Aelius, consul B.C. 198. He was also the author of a work called Tripertia, so which expounded the civil law under three heads: - The Law of the Twelve Tables - the interpretation of the same - statute actions (legis actiones) Tiberius Coruncanius became the first plebeian pontifex maximus (chief priest) in 253 B.C. He taught law publicly, offering legal advice and lessons, similar to a modern law school or legal clinic. This made legal knowledge even more accessible. This was the earliest systematic treatise on the civil law. It is significant that Pomponius describes the civil law as "that which consists without writing entirely in the interpretation of learned men." There were in fact in these early days but two principal sources of law, custom and the Twelve Tables and of both the lawyers were the skilled interpreters. The contribution of the law making bodies to the development of the law was relatively unimportant. 13. The Jurists at work The jurists of this early period, who are referred to in later writings as the veteres, or ancients, engaged in activities which are described in semi-technical language as respondere, cavere, scribere, agere. 8 Jodie Psaila – Roman Notes They advised clients, or the magistrates, or judges (respondere). They saw that legal forms were properly employed and drafted legal instruments (cavere scribere). They undertook the general conduct of litigation (agere). - the task of argument in court was reserved to another class of men, known as advocates - Publius Mucius Scaevola (consul B.C. 133, later pontifex maximus) and with him Brutus and Manilius, are named as "founders of the civil law." 14. Magistratum edicta In 367 B.C., the Licinian Laws (proposed by two tribunes, Sextius and Licinius) required that at least one consul must be a plebeian (a commoner). Sextius himself became the first plebeian consul. The patricians (nobles) didn’t like this, so they created new positions to maintain some control: o Curule Aediles (officials in charge of public buildings and festivals) o Praetors (officials focused on law and justice) The praetor was to be a colleague of the consuls, but specifically for the administration of justice. About 242 a second praetor was instituted to administer justice in cases in which one or both parties were aliens. The first came to be known as the praetor urbanus, the second as the praetor peregrinus. All the higher magistrates of the Roman People had authority to issue edicts or administrative orders dealing with matters within their competence, and the praetors, in particular after the lex Aebutia and perhaps before, at the beginning of their term of office issued an edict in which they stated the rules of procedure by which they intended to be governed in the coming year. Since it was valid only for one year, it was called the "Perpetual Edict" (edictum perpetuum), though most of it stayed the same over time. The unchanged parts were called "Edictum Tralaticium" (the "handed-down" edict), while new rules added by a praetor were called "Edictum Novum" (new edict). These were inscribed on wooden tables in black letters with a white background (whence the description of the document as the praetor's album) with red captions (rubricae) and posted in the forum. This edict, being intended to remain in force during the praetor's year of office, was known as the perpetual edict (edictum perpeturn) by way of contrast with edicts of a merely occasional nature. - the great mass of the edict went on unaltered from year to year and became a perpetual edict in a larger sense. In this connection it is called the edictum tralaticium, or the edict "handed on," while any new matter was known as edictum novum. - from time to time that magistrates arbitrarily departed from the terms of their edict - lex Comelia of B.c. 67 à required that praetors should abide by their edict during their term of oftice. This assured to the edict a stability which it was in danger of losing. 9 Jodie Psaila – Roman Notes The praetor could not, properly speaking, make law, because he had no legislative authority, but owing to his control of procedure he was able to make fundamental changes in the legal system, as, for instance, in the matter of intestate succession. Sometimes praetors ignored their own edicts and changed the rules whenever they wanted. In 67 B.C., the Lex Cornelia required praetors to follow their own edict throughout their term. This made the edict more stable and reliable. A praetor could not create new laws, but since he controlled legal procedures, he could change how laws were applied. For example, he helped reshape inheritance laws (who gets property when someone dies without a will). 15. The praetor's control of procedure was one aspect of the imperium or residuary sovereignty vested in the higher magistrates of the Roman People, a legacy, it is said, of the paramount authority of the kings. It assumed several forms. In particular, since the administration of justice was placed in his hands, it was within his competence to give or refuse an action (edere actionem-denegare actionem). If he said in his Edict judicium dabo or agere permittam he made law, not civil law but practorian law. If he said potestatem agendi non faciam he did not indeed repeal the civil law, but checked its effect. The praetor had significant power in Roman law, especially when it came to legal procedures. This power was part of the imperium, or authority, given to Roman magistrates, a system that came from the ancient kings of Rome. In simpler terms: The praetor controlled how legal cases were handled and could decide whether or not someone could even start a legal action (a case). For example: o If the praetor said "I will allow this case to go forward" (judicium dabo), he was making a legal decision. o If the praetor said "I will not allow this case" (potestatem agendi non faciam), he didn't cancel the law, but stopped it from being used in that case. The praetor could also shape and change the law in various ways. Some examples include: Adapting civil law actions: The praetor could make adjustments to how cases were handled under civil law. Using exceptions: The praetor could include exceptions in legal decisions, like: Exceptio doli: An exception to protect someone from unfair tricks or deceit. Exceptio pacti: An exception to protect agreements made in certain situations. Praetorian creations: The praetor also introduced new legal procedures to help solve problems, such as: 10 Jodie Psaila – Roman Notes Interdict procedure: A legal tool to protect someone’s property or rights temporarily. Restitutio in integrum: A way to restore a person to their previous legal situation after something unfair happened. Missio in possessionem: A method to transfer possession of property. Praetorian stipulations: Special agreements introduced by the praetor for certain cases. 16. There were many other contrivances by which the praetor re-formed or developed the law. Such were the adaptation of civil law actions, the use of exceptions in the formula, particularly the exceptio doli and the exceptio pacti, and a number of praetorian creations, particulars of which will be given in later pages the interdict procedure, restitutio in integrum, missio in possessionem, praetorian stipulations. 17. The outcome of the activities of successive generations of praetors was to bring into existence a supplementary body of law which came to be known as the jus honorarium or jus praetorium. It neither absorbed the civil law, nor was absorbed into it. Rather the two systems continued to exist side by side. This continued until, and even after, the Roman State had lost its identity in the Roman Empire. It is significant that the great jurists of the golden age, in particular Ulpian and Paul, are still found to be writing separate treatises on the Civil Law and on the Edict. Over time, praetors (Roman officials) developed new rules and procedures to handle legal cases. These rules created a separate set of laws called the jus honorarium or jus praetorium. The jus honorarium was the law created by praetors that worked alongside the regular civil law, but it didn't replace it. Civil law (the original laws of Rome) and praetorian law (the rules created by praetors) both existed at the same time and were used together. This situation continued for a long time, even after the Roman Empire lost its earlier identity. Importantly: The great Roman jurists (legal experts like Ulpian and Paul) still wrote separate books on the Civil Law and the Edict (the praetorian rules) because the two types of law were treated as separate even though they worked together. 18. In addition to the edicts (official rules) made by the two praetors and the ones made in different Roman provinces, there were also edicts made by the curule aediles. The curule aediles were officials in charge of keeping order in the city of Rome and managing the markets. They created rules about buying and selling goods in the markets. These rules later influenced modern laws about trade and sales, especially in systems that follow Roman law traditions. The laws from these officials were called jus honorarium because they came from people holding official positions (like the praetors and aediles). When people simply refer to "the Edict" in Roman law, they usually mean the edict of the urban praetor (the praetor who handled legal cases in the city of Rome). 19. Just like the civil law, the Edict (official rules made by praetors) was studied and explained by experts. The first important book written on the Edict was by Servius Sulpicius Rufus, who was a Roman consul in 51 BC. He wrote two short books called "On the Edict." Even though these books were short, he is said to have written around 180 books in total. 11 Jodie Psaila – Roman Notes Servius was a well-known speaker (orator) and was highly respected, second only to Cicero. He started studying law after Quintus Mucius, a famous legal figure, criticized him for not knowing the law, even though he worked with it every day as a nobleman and advocate. During the Roman Empire, there were many important books written on the Edict. Some well-known examples include: Ulpian (in 81 AD) and Paul (in 78 AD) both wrote important commentaries on the Edict. Their work was later used in Justinian's Digest (a collection of laws). Gaius wrote: A 30-book commentary on the rules for Roman provinces. A 2-book commentary on the rules about the curule aediles (officials in charge of markets and city order). He also wrote several separate pieces about the urban praetor's Edict (the Edict used inside the city of Rome). However, there is no record of any commentary on the peregrine praetor's Edict, and very little is known about it. 20. The Magistrates of the Republic Before we move from the Roman Republic to the Roman Empire, let's talk about the main leaders and positions in the Republic: 1. Consuls: o The two consuls were the most important leaders after the kings in the Republic. They were chosen by the comitia centuriata (a voting assembly). o Both consuls had equal power. They could call meetings, suggest new laws, and lead the government together. 2. Dictator: o In times of great trouble or crisis, a consul could choose a dictator. The dictator had absolute power, but only for six months. This was like temporarily going back to a single ruler, similar to a king. After the Roman Empire started, being a consul became a less powerful and more symbolic role. The emperors often gave out consul positions, and sometimes emperors even became consuls themselves. Eventually, in 541 AD, Justinian (a Roman Emperor) officially ended the consulship, but later emperors still sometimes used the title of consul. 21. Praetors The praetors are described as colleagues, but minor colleagues, of the consuls. Like the consuls they were competent to command armies, to initiate legislation in either comitia, to summon, and transact business with, the Senate. But while the consuls exercised an unlimited imperium derived from the monarchy, the praetors, apart from these general powers. were contined to the special sphere of action assigned to them by lot after their election to office, and they were subject to the consular veto. Praetors were like assistants to the consuls, but with less power. 12 Jodie Psaila – Roman Notes Both praetors and consuls could lead armies, suggest new laws, and work with the Senate. However, consuls had unlimited power (like kings), while praetors had limited power. Their specific duties were decided by lot (randomly assigned) after they were elected, and they had to follow the consul's orders. Some praetors were responsible for justice, handling court cases. At first, there were only two praetors handling justice. But over time, the number of praetors increased: o 4 praetors in 227 BC, o 6 praetors in 198 BC, o 8 praetors in 81 BC (by Sulla). Most of these praetors stayed in Rome during their term, where they handled civil (non-criminal) and criminal cases. 22. Curule Aediles The aediles were originally plebeian officers. From B.C. 366, the year which saw the institution of the praetorship, two other aediles were appointed with a superior status. They were magistrates of the Roman People and were distinguished by the name of " curule aediles" because, like the other bigher magistrates, they sat in a chair of state (sella curulis). Reference has already been made to their control of the markets. Aediles were originally officers who represented the plebeians (common people) in ancient Rome. In 366 BC, when the praetorship was introduced, two more aediles were added with higher status. These new aediles were called "curule aediles" because, like other higher officials, they sat on a special chair of state (called sella curulis). Curule aediles had important duties, including controlling the markets in Rome. 23. Censors The censorship, instituted in B.C. 443, was an office of great dignity. The censors (two in number) were chosen every four or five years for the purpose of the census or roll of citizens. Ä They assessed each person's means for purposes of taxation and assigned his place in century and tribe. Ä They placed government contracts and let to farm the sources of revenue. About 100 years after the office was created, the censors also had the important job of deciding who could be a member of the Senate. They could even remove people from the Senate or prevent new people from joining. This gave the censors control over public morals by making sure only suitable people were in the Senate. 24. Quaestors The office of quaestor goes back at least to the beginning of the Republic. Each year two quaestors were nominated by the consuls à later elected by the comitia tributa, to assist the consuls in matters of finance. This continued to be their principal concern, but they enlarged their functions as their numbers increased. 13 Jodie Psaila – Roman Notes The quaestorship was not held in such high esteem as the other magistracies of the Roman People. Custom or law prescribed a regular succession of ofices through which a Roman ambitious of public distinction rose to the high dignity of consul. This was known as the cursus honorum. The quaestorship ranked below the curule aedileship and practorship, which with the consulship made up the "tergemini honores" of Horace. The censorship and the ofice of pontifex maximus were usually the reward of elder statesmen, though Julius Caesar procured his election to the latter dignity at the early age of thirty-six. At first, the quaestors mostly handled money and financial tasks, but as more quaestors were appointed, their responsibilities grew. The quaestorship wasn't considered as important as other positions like aedileship (market and police leaders) or praetorship (judicial officers). Romans who wanted to move up in politics followed a path of offices known as the cursus honorum. The quaestor was the first step on this path, and it was ranked lower than positions like aedileship and praetorship, which were seen as more prestigious. The censorship (a position with moral authority) and the job of pontifex maximus (head of Roman priests) were usually given to older, respected politicians. But, Julius Caesar became pontifex maximus at only 36 years old, which was unusual. 25. Tribunes The tribunate was a plebeian ofice - to protect the plebeians from the arbitrary authority of patrician consuls. The plebeians set up for themselves on the "Sacred Mount," thus forcing the patricians to come to terms. Ä Their person was sacrosanct and consequently immune from arrest. From this seemingly modest beginning they attained a position of formidable predominance and by their power to veto and annul the acts of other magistrates (intercessio) found it only too easy to hold the State to ransom in the interest of party. They acquired the right to sit in the Senate and (ultimately) to convoke it. They convoked and initiated legislation in the concilium plebis. It is significant of the importance attached to the office that Augustus and succeeding emperors caused themselves to be invested for life with tribunician authority. From the tribunes of the people must be distinguished military. tribunes with consular power (tribuni militares consulari potestate). 26. Transition to empire à the Principate The Roman Empire may be said to date from B.c. 27 when Octavian, laid down the extraordinary powers assumed during the civil wars and "restored the Republic." This (paradoxically) marks the beginning of the Empire. The change was at first disguised. Octavian, better known as Augustus carefully retained the forms of republican government, and by concentrating numerous offices in his own hands gave a formal validity to his usurpation of power. This inaugurated the first imperial period, which lasted until the end of the third century. It was in form a joint rule of emperor and senate, to which the name has been given of diarchy or principate. However, this "restored Republic" was a bit of a trick, because Augustus still kept control and didn't truly give power back to the people. He just made it look like he did, keeping the old forms of government while holding all the important offices himself. 14 Jodie Psaila – Roman Notes This period, where Augustus had most of the power but still worked with the Senate, is called the "Principate" or "diarchy". This means that it looked like there was shared rule between the emperor and the Senate, but in reality, Augustus was in control. 27. The legal system under the empire In the first century of the Empire the old forms of legislation passed out of use. In the early years of the Roman Empire, the old laws passed by the people (like lex and plebiscitum) stopped being used. Even though a lawyer named Gaius still mentioned them in the 2nd century, they were no longer important sources of law. Instead of the old laws, new laws came from the Senate. However, at first, these were not seen as official laws; they were simply instructions for the magistrates (officials). Over time, the Senate began passing laws directly, but they were really just reflecting the Emperor's wishes. The Emperor had most of the power in lawmaking. When the Emperor wanted to pass a law, he would introduce it to the Senate, but the Senate's role was mostly just a formality. For example, in A.D. 195, the Emperor Severus made an important law through a speech in the Senate, which was treated as law even without the Senate's decision. The Senate's advice (senatusconsultum) continued for a while but eventually was replaced by other ways of making laws. The praetors and aediles (officials who handled the law) continued to issue laws every year. However, in around A.D. 130, the Emperor Hadrian asked the lawyer Salvius Julianus to make these yearly laws permanent, which became known as the Edictum Perpetuum or Salvianum. After this, the Edict was no longer a changing source of law, but its ideas continued to influence Roman law for many more years. 28. Imperial constitutions It has been already remarked that senatusconsulta were, in effect, dictated by the Emperor. The Emperor had the power to make laws and decisions. These were not always passed through the Senate, but were instead made directly by the Emperor in different ways. Different Types of Orders: Decrees (Decreta): The Emperor’s official decisions. Rescripts: Written responses to questions from magistrates or regular people. Mandates: Instructions given to officials (people working for the government). Edicts: Orders given by the Emperor in his role as the head of the government. All these forms of orders from the Emperor were called constitutiones, meaning anything the Emperor decided through decrees, edicts, or letters.These constitutiones were not always meant to make new laws. Sometimes they were just answers to specific questions or instructions for certain what the Emperor said. 15 Jodie Psaila – Roman Notes As time went on, the Emperor had complete control to make laws however he wanted, and these different types of decisions (like decrees, rescripts, and edicts) all became part of the Emperor's absolute power to legislate. 29. Responsa prudentium One more source of law remains to mention, response prudentium. In ancient Rome, there were professional lawyers (called jurists) who gave legal opinions or advice when people had questions about the law. These opinions were called responsa. At first, these opinions didn’t have much official weight or authority. But, under Emperor Augustus, the law was changed so that certain jurists could give their opinions with official approval from the Emperor. This made their answers more important and respected. Some jurists were given special permission, known as jus respondendi (right to give legal opinions). They were allowed to give authoritative advice on legal matters. The first jurist to get this special permission was Masurius Sabinus, but this came from Emperor Tiberius, not Augustus. Importance of Responsa: By the time of Gaius (a famous Roman lawyer), these legal opinions had become so important that they were considered a source of written law. Gaius referred to them as the decisions and opinions of jurists who were officially allowed to create law. Over time, especially by the third century, the practice of giving these authorized legal opinions started to fade away. 30. The jurists - the law of citations To what extent these opinions were authorative is difficult to say. Gaius continues: "If they are unanirnous they have the force of law : if they disagree the fudge may follow whichever opinion he chouses, as is ruled by a rescript of the Emperor Hadrian." Evidently, diffculty had arisen from the fact that the opinions of the jurists were frequently conflicting. Roman jurists (legal experts) often had different opinions on the law. Sometimes their opinions agreed, but other times they disagreed, which made things confusing for judges. What Happens When Opinions Disagree? If all jurists agreed on something, it was treated as law. If they disagreed, the judge could choose which opinion to follow. This rule came from an Emperor Hadrian's order. The Importance of Jurists’ Opinions: 16 Jodie Psaila – Roman Notes The law had to be understood by looking at many opinions from jurists, including those who were alive and those who were dead. These opinions were often found in legal books and writings. Over time, these opinions became the foundation of later legal texts, like Justinian's Digest. There were two main groups of jurists in Rome, the Sabinians and Proculians, who disagreed on some points. Famous jurists like Papinian, Ulpian, and Paul were part of this period. The Problem of Confusion: As the Roman Empire went on, there were too many opinions from many different jurists. This made it hard to know which laws to follow. Legal science was getting worse, and it became difficult to find clear answers. To fix this problem, the Emperor Constantine and later Theodosius II and Valentinian III decided on reforms to make things clearer: They confirmed the writings of certain important jurists like Papinian, Paul, Ulpian, and Modestinus as authoritative. If jurists quoted earlier writers, their opinions were accepted too, as long as they could be verified. If opinions disagreed, the majority opinion would be followed. If there was a tie, Papinian’s opinion would take priority. They also said that some opinions, like those of Ulpian and Paul, should not be used anymore 31. Absolute monarchy - the divided empire Shift from Shared Power to Absolute Power à In the beginning of the Roman Empire, the Emperor and the Senate shared power, which was called "diarchy" or "principate." Over time, this changed, and the Emperor became more powerful, turning the Roman government into a system of absolute monarchy, where the Emperor had full control. Diocletian tried to make the succession of emperors more peaceful by dividing the Empire into four parts. There would be two Augusti (main emperors) and two Caesars (junior emperors), each ruling over a different part of the Empire. The plan was that when an Augustus died or retired, a Caesar would become the new Augustus. However, the plan didn’t work as expected and caused instability. After years of conflict, Constantine the Great became the sole Emperor from 324 to 337. He made significant changes: In 313, he issued the Edict of Milan, allowing Christianity to be tolerated in the Empire. In 330, he moved the capital of the Empire to Byzantium, renaming it Constantinople. Division of the Empire: Diocletian’s plan hinted at the future division of the Empire into two parts: the Eastern Roman Empire and the Western Roman Empire. In 364, the Empire was officially divided into two parts when Valentinian shared power with his brother Valens. Theodosius I ruled alone from 392 to 395, but when he died, the Empire was divided between his two sons, Arcadius and Honorius. Even though the Empire was divided into two parts, it was still considered one Empire in theory. Laws were created for both parts of the Empire and were meant to apply everywhere. But as time 17 Jodie Psaila – Roman Notes went on and the separation grew stronger, laws from one part of the Empire only applied in that part unless specifically adopted by the other. 32. Decline and the fall of the Western empire Rome is Attacked and Plundered à in 410, Alaric the Goth and his army attacked and plundered Rome, which was a huge blow to the Western Roman Empire. Britain Under Attack à Around the same time, Britain was left weak and vulnerable to attacks from groups like the Picts, Scots, and Saxons. This was because the Roman soldiers, who usually defended the region, were taken away to help fight over who should be the next Emperor. In 455, Rome was sacked again, this time by the Vandals. The Western Empire Falls Apart à By 476, the last Roman Emperor in the West, Romulus Augustulus, was forced to give up his throne to a barbarian leader named Odoacer. This event is often marked as the fall of the Western Roman Empire. For a short time, Emperors Zeno and Justinian tried to bring back Roman authority in the West, but they were not successful in the long run. After the Western Roman Empire collapsed, it broke up into different barbarian kingdoms built on the ruins of the old Empire. The Eastern Roman Empire (also known as the Byzantine Empire) kept going until 1453, when Constantinople(the capital of the Eastern Empire) was taken by the Turks. 33. Roman law in western europe After the Western Roman Empire fell, the barbarian tribes that conquered the land had been exposed to Roman civilization for a long time. While they had their own laws, many of these laws were influenced by Roman traditions. Barbarian Laws à The laws of these tribes are called Leges Barbarorum. They show signs of Roman influence because the barbarians had been in contact with Roman culture for many years. The barbarian tribes made their own collections of laws, and three important ones were made around 500 AD: Lex Romana Visigothorum (also called the Breviarium Alarici): This law code was created by Alaric II, King of the Visigoths, in 506 AD. It was a shortened version of Roman law and included parts of the Theodosian Code and Gaius' Institutes, as well as some writings from Roman jurists like Paul and Papinian. Lex Romana Burgundionum: Likely created around the same time by King Gundobad of the Burgundians. It was a collection of laws for his people. Edict of Theoderic: This law, created by Theoderic the Great, King of the Ostrogoths, was a bit different because it applied to both Romans and Goths. Theoderic ruled as a representative of the Eastern Roman Emperor rather than as a conqueror. 47. Other roman law sources 18 Jodie Psaila – Roman Notes The Corpus Juris of Justinian is the principal source of our knowledge of Roman Law. But there is a considerable mass of material of earlier date. Important Sources of Earlier Roman Law: Codex Theodosianus: This is a law code that has already been mentioned. It’s one of the important early sources of Roman law. Vatican Fragments: These are a collection of texts that contain quotes from famous Roman legal experts like Papinian, Paul, and Ulpian. These quotes are not changed or altered by later editors, which makes them valuable for studying original Roman law. The Vatican Fragments were created before the Theodosian Code. Collatio Legum Mosaicarum et Romanarum (Collatio): This is a comparison between Jewish law (the law of Moses) and Roman law, focusing mostly on criminal law. It was created in the 4th century and seems to try to show that Jewish law was superior to Roman law. It includes parts from earlier legal writers but isn’t as valuable as the Vatican Fragments because it wasn’t written by a lawyer. Tituli ex Corpore Ulpiani: This is a shortened version of a work by Ulpian, a famous Roman lawyer. It's a simple, abridged version of his book, or perhaps another similar writer’s work. Sententiae of Paul: These are writings by Paul, which were also included in the Breviary of Alaric. These writings are a mix of Paul’s work along with later legal ideas that came after his time. 48. Gaius Noster Gaius was a Roman legal expert who is very important for understanding Roman law, but we don’t know much about his personal life. He became well-known during the later Roman Empire. Though he didn’t have the special legal right to give legal opinions (called jus respondendi), a law called the Law of Citations made him one of the most important sources of law, and Justinian (another famous Roman emperor) even called him “our Gaius.” Here’s what we do know about Gaius: He lived during the reigns of the emperors Antoninus Pius (138-161) and Marcus Aurelius (161-180). He was still alive in 178 AD, when he wrote a legal work about a law that was passed that year. Some believe he was not from Rome but from somewhere else in the empire, though people are not sure about this. Gaius is best known for writing the Institutes, a key legal textbook that later influenced Roman law. He is also believed to have written other legal works, such as: Res Cottidianae (likely a work on daily legal matters) Commentaries on important Roman legal texts like the Twelve Tables and writings by other famous legal figures. Another important figure from Gaius’s time was Sextus Pomponius, a legal writer who was a contemporary of Gaius. Unlike Gaius, Pomponius was often cited by later legal scholars. Pomponius 19 Jodie Psaila – Roman Notes is especially known for his interest in the history of Roman law. One of his works, called Enchiridion, was included in the Digest (a collection of Roman legal writings), but we only have a small part of it. If the entire work had survived, it would have been very valuable. 49. The Institutes of Gaius The Institutes of Gaius is the most important legal work from the classical period of Roman law that we still have mostly in its original form, as Gaius wrote it. For a long time, it was only known in pieces, such as excerpts in the Digest (a collection of Roman laws) and a shortened version in the Breviary of Alaric. But in 1816, a historian named Niebubr discovered a manuscript (a handwritten copy) of the full Institutes of Gaius in Verona, Italy. This manuscript was special because it had been erased and reused for writing other things, but enough of it could still be read. This manuscript is called the Verona palimpsest, named after the city where it was found. The manuscript is still kept in the chapter library at Verona. Later, some fragments (pieces of text) were found in Egypt, which helped complete and verify the text even more. Additionally, in 1898, some fragments of a paraphrase (a simplified version) of Gaius were found in Autun, France. These fragments don't add much value to understanding the law but are still interesting, especially for one specific topic related to the law of delict (a type of legal wrongdoing). 50. Niebuhr's discovery The discovery of Niebuhr's manuscript was a huge moment for the study of Roman law. This manuscript gave a clear, summarized view of Roman law as it was in the second century. Since Emperor Justinian used the Institutes of Gaiusas a model to create his own legal work, it became possible to compare the two. By putting them side by side, scholars could see what had changed in the law over the four centuries between the two versions. The most important part of the manuscript was the fourth book of Gaius, which was missing from the earlier summaries. This book provided a lot of information about civil procedure (the rules and steps for legal cases). It became our main source for understanding the formula used in Roman law and how it was applied in real situations. 20 Jodie Psaila – Roman Notes THE INSTITUTES - PRELIMINARY DEFINITIONS 51. Justice - jurisprudence The Institutes begins with definitions borrowed from Ulpian. "Justice is a set and constant purpose, giving to everyone his due...." “Jurisprudence is the knowledge of things divine and human; the science of the just and the unjust.” The first was a common place of the schools of philosophy. The second, if it is to bo regarded as anything more than a rhetorical fourth, may bo a tradition from a time when the sanctions of law and religion were not sharply distinguished. The definition of justice siven in men chat it er. To tho lag a rod the won a rie a "justice " suggest rather the quality of an act estimated with reference to some standard of conduct. This may be (a) a moral standard, or (b) a legal standard. The first definition is a philosophical idea that was common in ancient schools of thought. The second definition suggests that law and religion were once closely linked. Over time, law and religion became separate, but this definition may come from a time when they were still connected. When defining justice, different views can be taken: It can be based on morality (what is right or wrong). It can be based on legal rules (what the law says is right or wrong). 52. (a) When we apply a moral standard we find it outside the limita of any Biven system, if one ventured to say that an Act of Parliament or a decision of the House of Lords was " unjust." Our standard here is external to the law. It in one by which a rule of law may he criticised and perhaps con. demned. To fix this standard is the business not of law, but of ethics, or moral philosophy. (b) When we apply a legal standard we mean by "justice," right or wrong as determined by the law of our country. In this sense we speak of the " administration of justice." 53. Jurisprudence is the science of justice in the legal sense of the word. Ulpian's definition is too comprehensive, for it seems to merge into a single formula, law, morality and religion. This may be attributed partly to the historical connection of Roman Law with Roman religion, partly to the ambiguity of the word jus, which includes both morality and law. However, it serves to correct the too narrow deinition of jurisprudence adopted by some English writers. Thus Holland denies jurisprudence as "the formal science of positive law." This will do well enough so far as relates to what is called specifically " analytical jurisprudence," which consiste in the analysis and classification of legal institutions and terms, but is inadequate as an account of legal science in general, because it fails to take account either of historical jurisprudence, that in the study of the way in which law has grown up, or of critical (or, as Bentham calls it, censorial) jurisprudence, that is the theory of what law ought to be. We must be content to define jurisprudence as "the science of law,' distinguishing its three departments, analytical, historical and critical. Any one of these may employ the comparative method of study. This is the meaning of the elusive term " comparative law." 21 Jodie Psaila – Roman Notes 54. Jus Publicum - Jus Privatum Justinian goes on to say that the study of law comprises two branches, Public Law and Private Law. This is the division which the Roman lawyers take as the primary line of cleavage in the legal system. Public Law has regard to the constitution of the Roman State (includes constitutional law, administrative law, criminal law and procedure and the jus sacrum.) Private Law is concerned with the interest of individuals (comprises those branches of law which regulate the relations of citizens to one another, family law, property, obligations and succession.) The classification is intelligible and convenient, though there are points at which the two overlap. The Institutes is mainly concerned with private law. It ends with one Title on criminal law, which belongs to the jus publicum. 55. Jus naturale - jus gentium - jus civile The jus privatum, we are told, is threefold. "It is derived from natural precepts, or from the precepts of universal law," or from the precepts of the civil law." Ä This is taken from the Institutes of Ulpian Combining passages taken from Ulpian and Gaius, Justinian goes on to develop the subject in the following passage: "The law of nature is the law which nature has taught all animals... This is the source of the union of male and female, which we call matrimony, as well as of the procreation and rearing of children.... The civil law is distinguished from universal law as follows. Every people which is governed by laws and custons uses partly a law peculiar to itself, partly a law common to all mankind. For the law which each people makes for itself is peculiar to itself and is called the civil law, as being the law peculiar to the community in question. But the law which natural reason has prescribed for all mankind is held in equal observance amongst all peoples, and is called universal law, as being the law which all peoples use. Thus the Roman People uses a law partly peculiar to itself, partly common to all mankind." Roman law was divided into three types: 1. Jus Naturale (Natural Law) – This is the law that applies to all living beings, including humans and animals. It comes from nature itself. Examples include the instinct for survival, the bond between parents and children, and the natural formation of families (marriage and raising children). 2. Jus Gentium (Law of Nations) – This is the law that is common to all human societies. It includes basic legal principles that different civilizations naturally develop, like trade rules, contracts, and agreements between people. It was used to govern interactions between Romans and non-Romans. 3. Jus Civile (Civil Law) – This is the law created specifically for Roman citizens. It includes rules and customs that are unique to Rome and not necessarily followed by other societies. 56. Such is the threefold division of the Roman private law, which has been the source of endless commentary. The difficulty is that each of the three terms-jus naturale-jus civile jus gentium—is used in various senses and the meanings which have most value for the legal historian are not the meanings which are given to them in the above passage. It is necessary, therefore, to examine each of them in tum and it will be convenient to begin with the jus civile. 22 Jodie Psaila – Roman Notes 57. Jus civile In ancient times, each nation or community had its own set of laws, which it followed without much concern for the laws of others. These laws were unique to each society and were considered an important part of its identity. For Rome, Jus Civile originally referred to the traditional laws of Roman citizens. These laws were based on customs and written rules, like the Twelve Tables (Rome’s first written legal code). Over time, Roman legal experts (jurists) refined and expanded these laws. The term Jus Civile can have different meanings depending on the context: Broad meaning: It refers to the entire legal system of Rome. Narrow meaning: It is sometimes used to contrast with other types of law, such as: o Jus Gentium (Law of Nations): Laws that applied to all people, including non- Romans. o Jus Honorarium: Laws introduced by Roman officials (praetors) to make the legal system fairer. A similar comparison exists in English law, where the term "common law" can have both broad and narrow meanings depending on how it is used. 58. Jus Gentium The term jus gentium has two meanings—one practical and one theoretical. In early societies, laws might seem unchanging, but they actually evolve over time. This change happens even faster when influenced by outside factors. Rome experienced this when it moved away from laws controlled by priests and had to deal with a growing number of foreigners (aliens) living in the city. These foreigners were not covered by the existing Roman civil law (jus civile), but Rome couldn't just leave them without any legal protections. So, the Romans created a separate legal system that could apply to both foreigners and citizens. This new system was called jus gentium, meaning "law of the peoples" or "law of the world." Eventually, Roman law as a whole came to include two parts: 1. A core law (jus civile) that was exclusive to Roman citizens and included formal legal traditions. 2. A broader law (jus gentium) that was simpler and applied to both citizens and non-citizens, especially in areas like trade, contracts, and property transactions. This allowed Rome to govern a diverse population more effectively while maintaining its traditional legal customs for citizens. 23 Jodie Psaila – Roman Notes 59. the origin of the jus gentium The jus gentium (law of peoples) did not come from a single planned effort. Instead, it developed gradually through court decisions and legal experts who combined elements of Roman law with influences from outside cultures. There was no deliberate attempt to make Roman law match the laws of neighboring regions, nor was there a shared commercial law among ancient trading nations like there was in later times (e.g., the Rhodian Sea Law). The jus gentium mainly took shape in the courts, especially under the authority of the Praetor Urbanus (a Roman official responsible for legal cases in the city). As his workload increased, another official—the Peregrine Praetor—was introduced to handle cases involving foreigners. This division of duties was similar to an earlier change when the position of Praetor was created to help the Consuls with legal matters. Some believe that jus gentium entered Roman law through the edicts (legal proclamations) of the Peregrine Praetor, but this idea is incorrect. Instead, it was a natural evolution driven by legal practice and the needs of a diverse society. 61. Jus Naturale Jus naturale, or natural law, is a concept that refers to basic principles of fairness and justice that are believed to be universal and rational. It is different from man-made laws because it is based on what is considered naturally right and fair. How did the Romans See Natural Law? The Roman jurist Ulpian described jus naturale as "the law that nature teaches all animals." This means he saw it as something even broader than human laws—like instincts shared by all living beings. However, most Roman legal experts ignored this idea. Instead, they focused on natural law as a set of rational rules for human behavior, which was very similar to jus gentium (the law of nations). The Key Difference Between Jus Naturale and Jus Gentium Jus gentium was a practical legal system applied to both Romans and foreigners. It accepted things like slavery because it was widely practiced. Jus naturale, however, was more of an ideal standard—later thinkers argued that slavery was against natural law because it went against basic human equality and reason. Jus Naturale as an Ideal Jus naturale wasn’t an actual written law but rather a guiding principle to judge whether existing laws were fair. It later influenced medieval and modern political ideas, including the belief that societies were formed through social contracts (the idea that people agreed to live under laws for mutual benefit). 24 Jodie Psaila – Roman Notes Thinkers like Grotius used the idea of natural law to help develop international law, shaping how nations interact with each other today. Today, the term "natural law" is often used to refer to basic moral principles, such as human rights and justice, which are thought to apply universally, beyond specific legal systems. 63. Jus scriptum - jus non scriptum Justinian goes on to distinguish written law and unwritten law. The Romans use the term jus scriptum in a sense which is wide enough to include any authoritative statement or exposition of the law which is expressed in writing. English usage limits the term " written law" to statute law, that is "an express precept which not only declares or conteins, but in its very words constitutes the law." Unwritten law is law which is created by custom or usage, which as Justinian quaintly observes imitates a statute. This recalls the equally strange idea once current that the English common law was statute law ground small. Jus scriptum: The Romans had a broad definition of written law. It included any official legal text written down, such as: Laws passed by the government (statutes). Decisions made by emperors, judges, or legal scholars. Legal textbooks or commentaries. In contrast, modern English law defines “written law” more strictly. It usually refers only to statutes (laws officially passed by a legislature)—rules that are written and officially declared as law. jus non scriptum: refers to laws that were not formally written down but developed over time through customs and traditions. People followed these laws because they had been practiced for so long that they were accepted as legally binding. Justinian described customary law as something that "imitates a statute," meaning that even though it wasn’t officially written down like a statute, it was still treated as law. The English Common Law Comparison: There was once a strange idea in English legal history that common law was just old statute law that had been broken down into smaller pieces over time (hence the phrase "statute law ground small"). In reality, English common law developed from court decisions and traditions rather than from a single written code, making it similar to Rome’s jus non scriptum (unwritten law). 25