Roman Law Notes PDF

CVL1020 – Roman Law Joshua Chircop LL.B. (Hons) 13/10/2012 13:40:00 Dr. Carm Mifsud Bonnici History of Roman Law: We examine the various and varying factors which affected the development of Roman Private Law during the thousand and more years which elapsed betwee...

CVL1020 – Roman Law Joshua Chircop LL.B. (Hons) 13/10/2012 13:40:00 Dr. Carm Mifsud Bonnici History of Roman Law: We examine the various and varying factors which affected the development of Roman Private Law during the thousand and more years which elapsed between the Period of the Monarchy and the Period of the Corpus Juris Civilis of Justinian. The evolution of the law is seen against the changing socio-political and constitutional background that inevitably had to leave its mark on the law itself. Particular attention is paid to the special position of Roman Private Law in Malta from the time of its reception following the Roman occupation of Malta at the commencement of the Second Punic War right down to our times. The fundamental and paramount influence exercised by Roman private Law throughout the centuries is considered and evaluated, particularly in relation to our present Civil Code, thus showing the relevance of Roman Private Law even today. Roman Law of Persons: We deal with the three determining elements of status: freedom, citizenship and family and then go on to consider the topic of the family in greater depth and from all aspects, including the legal position of dependent persons and those of independent persons who, for some particular reason, are unable to look after themselves and their own interests properly. Here the influence of Roman Law, though still palpable, has been least pervasive, owing to the gradual evolution of new ideas and ideals. Roman Law of Property: We deal with ownership and its characteristics and modes of acquisition as well as with the other real rights (iura in re aliena), both those which are usually defined as “fractions of ownership” (praedial and personal servitudes, emphyteusis and superficies) and those which serve as security (Fiducia, pledge and hypothec). We also consider possession and its protection and bring out the clear distinction that is made between possession and ownership. Here the Roman foundations of our law are unmistakeable and the influence of Roman Law is still very considerable. Roman Law of Obligations: In contrast with the previous section that deals with real rights, this section deals with personal rights (iura in 1 personam). We consider obligations from all aspects, including their sources, their requisites and their modes of extinction, as well as the individual contracts, quasi-contracts, torts and quasi-torts. It is here that the influence of Roman Law is seen at its greatest and its best, so much so that it has been stated that the Roman Law of Obligations is the modern law – and a study of our Civil Code broadly confirms this statement. Roman Law of Succession: We deal with testamentary succession and intestate succession and consider in some detail the rules in respect of both kinds of succession, emphasising the vital distinction between the heir and the legatee. The Roman Law of Succession has profoundly influenced our law and most of the rules contained in our Civil Code can be traced back to Roman Law. 2 Introduction to Roman Law Joshua Chircop Roman Law is the key to understanding modern civil and also European Law on which they are based. What do we mean by Roman Law? We will discuss what happened between 750BC-500AD. Under Roman Law there was no set law, there was no gathering of laws in one book under a schematic and systematic manner like it is today. Up until 750BC we are almost certain that Roman Law was unwritten, what we define as custom. From 750BC onwards they developed different mechanisms through which law was produced. In today’s world the production of law is easy, because legislation is made by one order of the state; parliament, it promulgates law. In Roman Law we have different sources in which this corpus of judicial work was gathered into what we define as Roman Law. For 1200 years we had these different sources of law interact. At times, certain sources of law existed for brief periods of time and then died out. This need to qualify Roman Law brought forward what is known as the Corpus Juris Civilis, which was the gathering of all that had occurred in the previous 1200 years in one book. Whilst today we start off from having a code where the laws are already qualified, Roman Law worked the other way round, after existing for years, it was then that they were codified. When this code was drafted, whatever the jurists felt to be Roman Law, was prescribed in this book. The need to codify came about because the jurists who had been practicing the law had found a certain amount of difficulties in the application of the law.  To identify which is the law which has to be applied in a particular dispute.  To identify the correct wording of that law. In today's day and age all of our laws are on the internet. At the time of the Romans most of the books of laws were written. Copies might cause mistakes to arise, leading to various interpretations. The question of interpretation of law was part of the great development that the Romans went through. One of the reasons why the Roman influence was asserted with such great strength, was precisely the fact that within Roman establishment was a strong marked importance given to the study of the law. This produced many lawyers, this was the key to most of the Romans' success throughout their term of dominance in the Mediterranean and all over Europe. When the Roman Empire died it left 1 as a legacy its laws. Despite the fact that their nation was obliterated, their laws continued to be applied in our Civil Law. The question of interpretation of the laws was a hotly debated matter. For a long time jurists in Rome had started to interpret the law and write books based on their interpretations. The fact that these authors were in great abundance put forward different opinions as to how one should interpret parts of the law. The difficulties encountered brought forward the need to have clarity, a well-defined source and not to have the possibility where one judge decides in a certain manner, and another decides in a similar case in a diametrically opposed manner. A legislation existed to put forward a mathematical formula to be applied in the interpretation of the law, however authors disagreed. Justinian, in the task he gave his jurists, set them first to codify all the previous legislation and identify the correct interpretation to be adopted. This meant that Justinian formulated a code whereby the law was clear and (in his opinion) the interpretation of that law was clear. The jurists came up with a book called the "Digesto" which was part of the Corpus Juris Civilis - a summary of the most important opinions of jurists which had to be used in the interpretation of the law. Justinian claimed that since the Digesto would become the law, no lawyer could interpret the law differently, but had to adhere to what was written there. The penalty for digressions was the capital punishment. This drastic measure goes to show that Justinian wanted to ensure that the law was clear, along with its interpretation. The establishment of facts in a law suit can take time. Now the termination of law suits could be easy. The Emperor was a military commander, not a lawyer. After his death, his law was brushed aside. It is impossible to keep people from interpreting the law differently. However, what Justinian had managed to do produced two basic effects, one negative and one positive. The first (positive) was that he managed to crystallise and preserve the law; 1200 years of sources and development of law which previously was scattered in different law books and imperial legislations made by different organs of the state. However at the same time it reduced the great amount of material which had been gathered, all the previous legislation and works of authors became obsolete. They had no relevance to the law, because the Corpus Juris Civilis was the essential tool box for all legal 2 practitioners. It became a capital punishment to have different material at their disposal, as that would mean a different interpretation of the law. The assemblies in Rome were mostly addressing matters of public law (constitutional, administrative, criminal or public international law) not of private law (Civil Law). The Roman constitutional framework is completely different from our framework, that is based on the doctrine of the separation of powers; the legislative, executive and judiciary are three organs of the state that must be separated. Under Roman Law this theory didn't exist, so Roman Law created officials of the state who had different forms of powers. They had a form of legislative, executive and judiciary power. They were quite practical in their approach. Their solutions to the problems of the state were not based first on theory then on practice. They were very pragmatic; if there was a problem a solution would be created. Secondly, when we speak about Roman Law, we are looking at 4 basic periods; the Monarchy (of which little knowledge is available), the Republic (when the Romans overthrew the king), the Principate (At this time the Romans created two consuls of the state (who replaced the King) and had the power of magister. They had control over the military, judicial and legislative. With them we see the creation of a number of officials: the Praetor Urbanus, the censors, the Quaestors for example who had specific direct tasks. These were not purely legislative, executive and judiciary but a mix of the three. This is the coming of age of Augustus the person to preserve the Republic; start of dictatorship. The emperor start to dissolve the powers of the different officials of the state.) and the Dominate (a stronger concentration of power in the hands of the emperor). Which were the reasons which brought forward Roman Law, which created this judicial system? Which were the sources which contributed to the formation of this law? Gaius and Justinian give their opinions in their institutes on what are the sources of the law. Gaius, in his institutes as a lawyer says that the laws of the Roman people are based on the following: acts (a law is known as an act), plebeian statutes, resolution of the state, imperial enactments, edicts of those rights to enact them. 3 Justinian starts off by saying the Roman Law is divided into written and unwritten laws (custom). Gaius within the Principate does not mention unwritten laws, however Justinian considers it necessary to say that unwritten law is relevant. The written law consists of laws (Plebiscitum - the general opinion on a particular point/everybody agrees). Gaius says an act is a law which the people (assemblies of Rome) decide and enact. Today, in most parliaments, we decide, discuss, and then enact. In Rome legislature was put forward to assemblies that would vote in favour or against. There was no discussion or amendment. A plebeian statute is law that the plebeians decide and enact. During the Republic, there were the assemblies of the patricians (dominated mostly by the nobility and the affluent), and there were the plebeians (that had no money, they were dependent on the patrician class). Under the Republic, one found this duality. The law of the Patricians applied to all the people, whereas the law of the Plebeians applied only to the Plebeians. Only very rarely were matters of Civil Law address by both assemblies. These matters were not decided upon by the assemblies but by the officials of the state that had the trust and strength of the Roman people. The acts and plebeian statutes were mainly addressed towards the Roman people. The resolution of the Senate is, according to Gaius, disputable. The Roman people granted the Senate the power to decide on matters of war and public importance, but the Roman constitution did not give the Senate the right to enact laws. It was made of the most important persons in Roman society; the elders, and later the officials of the state who had occupied a high position. It was very authoritative, but not legislative. The resolutions of the Senate were granted importance because, as Gaius justly says, the Senate would debate matters of civil and public law, however the debate would move into a rapporteur stage. The Senate was consulted, an opinion was shared and then the Senatus Consulta was produced; a very strong declaration by a strong Assembly of the Roman people, that had a strong moral influence on the administrators of the state. It did not have the powers of law, it was simply an advice, a secondary form of a source of law. 4  The Romans believed in the principle that justice must prevail, even in the absence of formal guidelines. This underlines the importance of judicial discretion, ensuring that no case remains undecided due to gaps in the law. The Roman idea of Civil Law was that it was dynamic and needed some mechanism which responds to that dynamic change. Under Roman Law, the commercial aspect of society was part of Civil Law, so the Romans felt that it was better for them to have officials of the state who are prepared to deal with this aspect. The Romans inserted a maxim that the courts have to decide on disputes which appear before them independently of whether there is written law, custom, or some other rule making form. The Praetor The Praetor was one of these mechanisms which gave a reply to this fast development in society; he was an official of the state who was entrusted to administer the decisional process in the finalization of judgments on civil disputes. There are different types of rights. There is a distinction between a right, and a right of action; that means I can file in a law suit. I can have a right but this doesn't mean I have a right of action linked necessarily to it. The Praetor was entrusted by the Roman state, the right to grant rights of action to citizens even though there was no specific right encrusted in any specific law or custom. He had the right to grant an effective remedy. He had an Assembly of people who were fluent in law who would advise him on whether he had the right of action or not. The Praetor is one of the examples that shows that the Roman approach to Civil Law was not one of legislation but was part of every day life. Today the science of the law is very much developed, however in Roman times it wasn't. One mustn't expect their system to be as developed as ours. However in the 1200 years of Roman Law, the norms developed to such a degree that whilst originally it was lacking to our rights, it became a strong legal framework. What we have found written has always been written ex post facto. Most jurists did not make the distinction in their writings between the concept of a norm at the initial period of Roman Law and what it became in the end. The knowledge which we have received should always be interpreted in this framework. Patricians & Plebeians Gaius defines an ‘act’ as law which people decide and enact. Legislation was not the law. In Roman times a bill was either accepted or removed. The Plebiscitum is a law which the Plebeians decide and enact. Plebeians and people differ because the people as the whole citizens are without Gaius defined an "act" as a law enacted by the people through a formal decision. However, legislation alone was not law —a bill had to be accepted or rejected to become binding 5 The Plebiscitum refers to laws enacted specifically by the Plebeians in their own assemblies, without Patrician involvement. Originally, these laws (plebiscita) only applied to Plebeians, as Patricians claimed they were not bound by them. patricians. This is why formerly the Patricians used to say that that they’re not bound by plebeian’s statutes. Subsequently however the Hortensian act was passed providing that plebeian statues should bind the whole people and so they placed on the same level as acts. During the Republic there were assemblies made up of the nobility, in the sense that they were persons who were affluent and strong in the matters of the state and the Plebeians who were poor and depended on the richer class. In time they felt it was necessary for there to be an Assembly just for plebeians where patricians do not enter whose laws only applied to them. This also happened for the Patricians creating a difficulty in the law. They both agreed in the Hortensian act which applied to both of them. During the Roman Republic, assemblies included a mix of the nobility (Patricians) and commoners (Plebeians). Plebeians felt the need for their own exclusive assembly (where Patricians could not participate) to pass laws relevant to their interests. ** Patricians also had their own exclusive laws, creating confusion and division in the legal system. Similarly, The sources of Roman Law  Assemblies  Edicts of the Magistrates  Imperial decrees  Senate  Jurists  Custom Those sources in society which led to the gathering of norms and laws which we call Roman. The Roman Law idea of civil was that it was a dynamic method of law which needed some form of mechanism which responds to that dynamic change. Under Roman Law the commercial aspect of society was part of Civil Law so the Romans felt that it was better for them to have officials of the state who are prepared to deal with this aspect. The Romans set a rule that the courts have to decide on disputes which appear before them independently before them regardless of whether there is written/unwritten or some other rule making application under the edict/edictum (the power to issue a command which has to obeyed in society). The Praetor was one of those mechanisms which gave a reply to this fast development in society; it was an official of the state who was entrusted to administer the decisional process in the finalisation of judgements on civil disputes. 6 The Praetor had to establish a formula; whereby an appointed Iudex would contemplate on the questions asked by the Praetor to carry out law within society. The Praetor was given, by the Roman state, rights of actions to citizens even though there is no specific right specified in any written law or custom. So the Praetor had the right to give you an effective remedy. The Praetor had an Assembly of people fluent in law who would advise him if he has the right of action or not. The Roman Law approach to Civil Law was not legislative but the every day life in Roman society. Today the science of the law is very much developed; how u should right, the differences bet the diff spheres; criminal, civil, commercial; according toe ach diff branch today there’s a science. In Roman times this didn’t exist. We have to accept however the role Roman Law played gave society uniformity-order. It developed into a strong legal frame. At the time of the monarchy and for a good period of the Republic; most things that we written were ex post factum. Jurists didn’t make a distinction between the concept of a norm at the initial period of Roman Law and wrote with their own frame of mind. Justinian He makes a preliminary distinction between written and unwritten law. Unwritten is custom. At the start of society the laws were not written they were what we call custom; what people felt was the law-it was applied. When they start to legislate on certain points that brought in the introduction of written law. For 1200 years we have several laws which were developed. At the end of his term he declared that although there is writ law; Corpus Juris Civilis; still he felt the need to affirm that there is also unwritten law. The difference in time between him and Gaius are shown in different values they give to the importance of law. They accept the same sources of law however they give them different importance. THE ASSEMBLY/COMITIA After the monarchy, and after the Republic we find that the concept was introduced whereby the people of Rome represented by the assemblies; the Comitia; made of males, would debate. They were very initially 7 Voting was organized into units or groups (e.g., the Curiae in the Comitia Curiata). Each unit would vote internally, and the majority decision within the unit determined how that unit cast its single vote in the larger assembly. This meant that individual influence was limited to convincing their unit to vote a certain way. The Comitia Curiata was an early form of the assembly, consisting of 30 Curiae (subdivisions of the Roman people). Each Curia had only one vote, so decisions were made based on a majority of Curiae rather than a direct count of individual votes. If 16 Curiae voted in favor of a law, it was passed. structured; where votes would be taken on different subjects amongst these we have identified legislation; acts. These assemblies were assemblies which were convened on specified dates. In these meetings every male adult who was a Roman citizen had a right to participate. These assemblies were permitted to vote only on proposals forwarded to them by the presiding officers. The work of the Assembly was carried out without the possibility of debate or amendment. The Comitia was divided into sub-committees which would vote between themselves and their vote would amount to one vote in the Assembly. Voting was not by the individual citizens but by the units which constituted the Comitia. So fundamentally, all the ordinary citizens could do was get the people for his unit was to vote his way. For example, the Comitia Curiata was made up of 30 Curie (unit of people). Each of these Curie would vote and then what was the prevalent and internal vote in each Curia would be what each Curia would vote. Each Curia had one vote; if there were 16 Curie on one law that would mean it was approved. Lex/Law The Comitia developed what is known Lex, or laws. This meant that the law under Roman Law started off to be a decision deliberation by a popular Assembly. In the Republican era the Lex was employed for different reasons. It became the word which identified the will of the people. It was employed for example; as the conclusion of a treaty, in the regulation of certain provinces and areas, for the ordering of a particular matter which today we can easily identify as matters of constitutional and administrative law. The Lex was whatever the assemblies agreed upon and decided upon because they voted. The Lex was usually employed in matters which needed to be regulated in society, matters which are of such high regard that the Roman people felt it was imperative for them to legislate upon. It looked more at administrative questions or where economic or social matters needed to be regulated because their regulations meant that there was a cause of concern to the Roman society such that if there is no legislation on the matter there would be social chaos. So the use of the Lex was left only to matters of high importance to Roman society. In Roman Civil Law the Lex played a part when it was used as a tool to 8 regulate or abolish social evils, i.e. behaviour in society that the Romans felt could encourage chaos in the social order of society. So the Lex was used first in this abolition of social evils or when the rules where such of positive nature that only the state could enact them. Only the voice of the Comitia would be accepted in Roman society to be a strong statement whereby a rule could not be ignored. So the Romans had at that time the idea that Civil Law matters should be legislated upon by these assemblies first for the abolition of these social evils and in the affirmation of social rules and we see thirdly at times the norm was enacted when matters of administrative rules would be combing to matters of Civil Law. Most jurists said that the law is a juridical law emanated by the people on the proposal by an official of the state who had the power of magister, the power to issue edicts of the state. The three Comitias The main Comitia, we are led to believe, was dominated by persons in the higher part of society known as the patricians. It is said that because of the dominance of the patricians in the Comitia Curiata that a need arose to set up two other committees to allow plebeian citizens to have their presence, vote and internal strength. Firstly, the Comitia Centuriata (a mixture of Plebeians and patricians) was formed and still however the plebeian class felt they still weren’t represented well so – they set up the Comitia Tributa (an assembly was made exclusively of plebeians). This assembly had an official of the state called the Tribune who had the power to veto the laws which were promulgated in the Comitia Centuriata and Curiata. He had the strength of a sort of ombudsman. So he had to be extremely popular to be voted in office. It is generally considered that these assemblies had the power to initiate and approve legislation. What was approved in the Comitia Curiata and Centuriata was the Lex and in the Comitia Tribute, the Plebiscitum. The Comitia Curiata The Comitia Curiata was made of 30 of patricians. It gave approval to measures approved by officials of state. It would authorise particular changes in custom. It is the oldest known committee. Within each Curia a vote was taken with the first 16 agreeing carrying the day. The Comitia 9 Curiata was there for quite a good period of time and we know that even during the Principate the Comitia Curiata was still functional. But its importance changed significantly throughout the Republic and especially under the Principate. The Comitia Centuriata The Comitia Centuriata was divided into 5 classes. Each class was given different voting rights; the first class was given 80, from the second to the fourth given 20 and the last was given 30.1 The Comitia Centuriata had a different structure with different voting rights where the military was balanced with the social side, where for the first time Plebeians found themselves in this committee, however it was still unbalanced We know that this Comitia Centuriata had the power to enact legislation but had the right also to elect officials of the state. So the consuls, Praetor and the censor were elected within the Comitia Centuriata. It had the power to declare war. Moreover this committee was given the specific function to hear political trials; i.e. if someone is accused of having been a traitor to the Roman society he was prosecuted and judged before the Comitia Centuriata. THE XII TABLES The Comitia Centuriata is regarded with great importance because it was the committee which commissioned the XII Tables and was the committee which promulgated XII Tables. There had been attack within the committee in order to formulate laws which would have bearing on the Civil Law aspect in Roman society. In 400 BC it is said that the first attempts were made within Comitia Centuriata and Roman society to start off a process whereby a first set of rules appertaining to laws was put forward including Civil Law. This was mainly rejected because within the Senate the debate was carried against this. Fortunately 10 years later the Comitia Centuriata managed to take the upper hand and a commission of 10 members, known as the Decimviri, were delegated to go to Greece to examine the laws in Greece and to come back with laws for Rome. When Rome started off and became a militant strength it started to encounter 1 Those that were knights; went to battle on a horse; higher in military class. 10 civilisations which were far more advanced than they were. It was for this reason that the commission went to Greece and looked at the different code that existed there and came back with these laws. Initially they came up with 10 tables. Upon submission to the Comitia Centuriata, it felt they were incomplete and so new Decimviri were appointed in order to look into what had been prepared and to come up with new laws in order to supplement what they consider to be the lacuna (a hole in the law- where it doesn’t speak about a particular matter). Finally the Comitia Centuriata approved these original ten and two supplementary tablets as one. They started to be known as the laws of the XII Tables. ** Roman Law is not only the best-known law but also the most highly developed and most highly influential system. It has the remarkable beneficial judicial system that has an unbroken traceable history from its primitive beginning to its stages of elaborate specialisation. Effectively, the Western World has been largely influenced by the Roman Law tradition and the Anglo-American common law. These have dominated law-making principles, their understandings and interpretations, which make the basis of the Corpus Juris Europeia – the basis of the legal systems in Europe. The world ‘law’ in this context is quite a misnomer because we wont be studying one set of rules pertaining to one generation but Roman Law form different generations. The commission of jurists compiled what for them, of the legal material, was considered worthy to declare as the existing law. This was made from all the different traditions and successions that had produced them. One can say that from 700 BC, a system of laws started to operate. This commission was indeed successful, and on different levels. It was one of the most successful in the history of humanity. It managed to compile in a single book and in a clear and direct manner leaving out as much as possible many legal disputes. The idea of codification is a Greek culture, the Romans themselves were in nature against codification. In truth this book gave birth to a legal product which the world had never seen before and never seen again. 11 Other sources of law include the inadequate codes work made by jurists at the end of the Principate and beginning of the dominant whereby the jurists attempted to code the whole decrees of the emperors. They are inadequate in comparison to the Corpus Juris Civilis. Nonetheless they are a source. The history of Roman Law presents to us a succession of sources of written or unwritten law which gradually supersede one another according to the classes of people or the different forms of governance. With regards to the assemblies, the most important laws they produced were the laws of the XII Tables. The plebeians called for the codification of unwritten laws because they accused patricians of taking advantage over them. The XII Tables are the earliest documents of Roman Law, the first true legislation. The legislation emerged from the struggle between the two classes. In c.462 a certain Tribune, the official elected by the Comitia Tributa, Terentius Varro, moved in favour of the people this request that rules of custom be recorded and made publically available to all the people in Rome such that this would stop the arbitrary application of law by the patricians. When the last Roman king was thrown out all the laws fell through and for a second time the Roman people set about working with vague ideas of right and with customs of a sort rather than legislation and they put up with that for nearly 20 years. They wrote out the laws in full on tablets in evidence to everyone. Cicero writes how he knew these XII Tables by heart. The people discovered a deficiency in these first set of laws, in that of the 10 jurists who came from Greece and a new commission was formed resulting in a final 2 more tables. There is considerable agreement between regulations of XII Tables and legislation in Greece. Greek culture made great strides at the same time the XII Tables was put into being. It has to be remembered that the southern part of Italy and Sicily were Greek colonies and formed part of extended Greece. For this reason, there is ample opportunity to argue that the Greek influence in the legal sphere did not occur with a commission actually going to Greece, but the influence beneath Rome itself. As a matter of fact, as far as vocabulary and perhaps style, a few traits of Greek origin can hardly be denied. It may be true, but this itself 12 is not enough to prove that the Romans copied them, they were influenced, but then, independently invented their own laws. The Romans had military strength but did not share the same ideologies and culture of the Greeks. The XII Tables were emanated during the mid 5th century BC and it was the first true written law of the Roman people which was available for everyone. There are two disputes tied to them. 1. Is there a Greek influence in the tables? How much? 2. Secondly, what can you say about the actual content of the XII Tables? It is also said that they were destroyed and an attempt to reconstruct them was made. They are not written in the same way and the content was not all identified. The subject of the XII Tables is various: procedural, criminal, civil, criminal procedure, statute law. What we have today identified as the XII Tables is said to be a reconstruction. The original text of the XII Tables we have to accept is lost. What we have consists of quotations in the work of lawyers, historians and grammarians who were writing later on in Roman times. These writers modernised these texts in language and interestingly enough consciously and unconsciously re-adapted them to the needs of society. When a text is lost you depend on the fragments which you find. This can lead itself to abuse – those who use the situation to move the goalpost further in their line. Just the same, the provisions of the XII Tables did not lose one important point, i.e. they were written in the form of terse, very short commands and prohibitions. Moreover, interestingly enough the law was written in a way that facilitated the memorising of the law. The words used were those of which you can easily remember because they are like part of a song. The original version retained even though the jurists adapted. A major principle found in the XII Tables still applies today, i.e. law should be public made available, understood and memorised by all. It is truly marvellous to speak about the XII Tables and to know that in 450 BC there was a civilisation that not only wrote laws but also wrote them for a specific purpose. This purpose shows that the Romans did not copy Greek laws at face value but they themselves took the influence of Greece 13 and transformed it. It shows that from the start, if we encounter the products of laws each civilisation produced, we have achieved what the Romans have achieved in such bleak ages, the text itself is not always understandable. This archaic community managed, to a great degree, to have a duality. On one side there is legislation which looks to the future, and on the other side legislation which is a statement written in a primitive form of legislation of long observed principles essential since time immemorial. ** If a person is summoned to appear before a magistrate and doesn’t go the plaintiff can go and bring him by force. Monstrous or deformed offspring maybe immediately destroyed by the father. He has absolute power over his legitimate children. He may imprison them, flog them, sell them and even take their lives whatever their position in society. There is a mixture of laws in the Roman Laws, it isn’t simply family law but criminal, ownership, inheritance, etc. THE SENATE The XII Tables are the result of the assemblies of Rome. The 4th Assembly, the Senatus, is interesting because the Senate produced also material for the sources of Roman Law. The Senate was the last of the 3 pillars on which the Republican constitution rested. The word Senatus derives from the meaning ‘old men’. It was originally a group of old men, advisers to the king, who picked them (we can presume) from the elder experienced men of the patrician class. It is also held that at an early stage of the monarchy some members of the plebeians were also called in, patres conscritti, called into the service by the king. When the official of the state, called the censor, was appointed, then this function passed to the censors office. They originally enjoyed great discretionary powers in how they chose the sentence which was exercised once every five years. We know that the censors discretionary powers were reduced because by a Lex ovina (law passed by comitia Curiata) we find that the committees gave directions to the senator to prefer men who had occupied a position in the Curie Aediles. A member of the Senate was appointed for life. Anyone appointed as a senator by the censors was 14 considered a senator for life unless he misbehaved and was removed because he was deemed to be an unworthy person. The number of senators throughout the Republican period was 300. Once every 5 years they would supplement the senators who would have died or had been removed. Under Julius Caesar we know that the Senate had grown to about 900 senators but with the beginning of the Principate, Augustus reduced the compliment to 600. During the Republican period the Senate became very important institutionally becoming the strongest political organ in Rome because it became permanent when the political officials came up for election each year. This was copied by the Americans because senators have a longer legislature than the house of representatives. During the Republican period he principal powers of the Senate were: 1. Auctoritas – the powers to agree and uphold the decision of the assemblies. In the initial period of the Republican era the power of the Senate was exercised after the Assemblies decided. During the term of the Republic this was changed and the Senate started to be the intitial part where matters were discussed than alter referred to the Assemblies for decision. If the Senate thought that what they had agreed upon was worthy to be legislated upon by Lex or Plebiscitum, then it started to direct itself. We speak of auctoritas because there was the political and military decisions which bore weight within the Roman society. 2. Auctoritas Concillium (power to advice); the concillius was considered to be advices by the Senate directed towards the magistracy. This was by far (for matter of sources of law) that most important function of the Senate. A function which was expressed through the famous Senatus Consulta – Senate advises. This had a direct effect on peoples lives. It has been hear that although these Senatus Consulta were not juridically binding on the officials of the state (those who had power of magister), rarely would these officials depart or ignore this advice. To a great degree they were the exe peters of the will of the Senate. Magistrates could reject their advice with the help of a Tribune or a consul of the state who would position himself against the advice of the Senate. Here we see the intermingling of the legal and politics. The strength of the Senate came about because in reality it 15  represented accumulated wisdom and experience led it to move forward the Roman society in the right directions. The moral, political and legal authority of the Senate was very strong. 3. They had a monopoly of foreign affair established in their power to take Rome to war, undertake diplomatic relations and political military alliances. We also know that the Senate had what used to be called the pro gatio imperi (the right to extend the term of office of those officials of the state who had already surpassed their year). They could decide that a particular consilio or Praetor should stay longer. We also know they had the Senatus Consulta ultimum when they needed to make important decisions. ** The Senatus Consulta was the gathering of old people voted by censors. It became a very important for the development of law. The strong assertion comes over from the start of the Principate; when Augustus asserted a new political era; necessary in order to control all social and economic developments. Hence the Senatus Consulta did not remain advice; it became law. Itself, the Senatus Consulta originated through the form of a commission, whereby a group of persons where entrusted to report to the Senate on a particular point. This report was submitted to the Senate for its discussion and approval. The text submitted would motivate the senator’s line of thought. After that the Senate would decide whether to accept the report or not. Most of the Senatus Consulta had titles. To be distinguished from other Senatus Consulta were given names. During the Republican period it is evident that the person who wrote the report had the advantage/disadvantage of having his name attached to the Senatus Consulta. The Senatus Consulta, after the Principate is mentioned specifically within the Corpus Juris Civilis, first part – commissioner is mentioned, second part – senators mentioned and the person who inspired the Senate to write it the Senatus Consulta. There is a Senatus Consulta adorazione Marcus e Commodus. It was made through the drive of Emperors Marcus Aurelius and Commodus. It prohibited marriages between a girl (ward) in tutorship and the person The Senatus Consulta was a formal decision made by the Roman Senate. The Senatus Consulta started as reports created by special groups investigating specific issues. These reports were then discussed and approved by the Senate. The person who wrote the report often had their name attached to it. Over time, these Senate decisions became official laws, and they were later recorded in Roman legal texts. 16 The Senatus Consulta Macedonianus was a Roman Senate ruling named after a man called Macedonius, who had taken advantage of others financially. To prevent similar abuse, the Senate prohibited lending money to someone else’s son. However, the ruling also outlined specific situations where lending was allowed. (guardian) who is taking care of her. This was intended, for under Roman Law, the person who marries another, takes on his estate as his. There is a Senatus Consulta macedonianus given this title because the person who had abused and the Senate felt the need to restrict this abuse was named Macedoni. It held in it a prohibition of giving, on loan, an amount of money to a son of somebody else. It was extremely interesting because it issued this prohibition but went into detail giving situations where someone can indeed give a loan to someone else. In the 1st century, the Senatus Consulta starts to decline in importance. Whilst in the Republican period it was the legal voice of the Senate towards the reform of law, with the Principate the Senate becomes the rubber stamp of the emperor. Most of the Senatus Consulta which were emanated by the seal of the emperors. It was rendered superfluous because the emperor assumed so much power that it became impractical the importance of for him Senatus to stay Consulta (Senate going to theUnder rulings) declined. Senatus Consulta the Principate to get (when emperors heldpermission. most of the power), the Senate became more of a formality, simply approving what the emperor wanted. Eventually, the emperor gained so much authority that he no longer needed the Senate’s approval, making these rulings almost unnecessary. Edicts Edicts were a source of law, which especially at the end of the Republic and Principate period played a determining role in the transformation of Roman private law. Edicts could be issued by certain officials under the Roman constitution. More often than not the use of the edict was a declaration made at the beginning of their tenure of office establishing guidelines for how they would issue edicts during their tenure. Gaius says the ‘magistrates of the Roman people have the right to issue edicts’. Justinian, on the other hand, says ‘the edicts of the Praetors are also of great authority’ these are honourary law, ‘Curie Aediles’. The Romans created a distinction between Jus Civile (promulgated by Lex and Plebiscitum) and Jus honorario (promulgated by officials). ROMAN OFFICIALS Though the consulship and Praetor had their special duties, just the same the fact that their power came from the state meant that they had could issue edicts on a bigger and more flexible approach towards managing the function which the state gave them. The authority for the The word Praetor refers to a high-ranking official in ancient Rome who was responsible for administering justice. Praetors had significant legal authority, including overseeing courts and interpreting laws. 17 In this context, the passage explains that both Consuls (Rome’s top officials) and Praetors had specific duties, but because their power came from the state, they had the ability to issue official orders (edicts). This allowed them to take a broad and flexible approach to carrying out their responsibilities, adapting as needed to different situations. magistracy was so great they could disregard the law on almost everything except where the assemblies of Rome had specifically legislated to control their power. In addition to the general power occupying the power of the magistracy these officials possessed the further power known as Imperium (the force and strength of the state behind you). This power originated from the military meaning the absolute power of the general to issue and enforce orders, a power which existed with respect to the soldiers under his command as well as the people in the area of the military operations. The more important officials of the state were the two consuls. Then came the Praetors who fulfilled the function of the administrator of justice; they had the power to decide criminal and penal matters; hence playing a crucial role in the development of Roman Law. After the Praetors exist the Curie Aedile who would administer public buildings and places. They had a very significant strength and importance in the Republican period because we know Cicero divides their work into 3: 1. The care of the city: preservation of temples, aqueducts, streets; regulations regarding dangerous animals; precautions against fires; punishment of gamblers, the care of public morality including the prevention of foreign superstitions. 2. The duty to take care of the provisions; investing of art and supply, correctness of weight and measures, 3. Care of games; organise superintendence of the public games After the Curie Aedile, we have the Quaestor, citing in assistance to the consulate in financial and other administrative matters. He was the Roman treasurer. Apart from the quaestors were the censors, originally for military matters, this office lacked Imperium. This was considered one of the highest dignities a Roman citizen could have. This implied the power to determine the political and social status of every Roman citizen, it was the greater because there was no appeal from the decision of the Praetor. Those entitled to the strength of a Roman citizen need to have their status accepted by the censor. There are two other officials of the state who in times of emergency the Romans felt they must appoint an extraordinary who take care for this emergency, an extraordinary magistrate, the dictator was the person 18  who was protecting Rome in the moments when emergency needed this to occur. He was supposed to resign as soon as the emergency was over. His office named him for a six-month period but there are instances when one would find himself in supreme power and so stayed on. They became the commanders in chief both for the military side and the social and economical side. Tribune was a title shared by elected officials in the Roman Republic. Tribunes had the power to convene the Plebeian Council and to act as its president, which also gave them the right to propose legislation before it. They were sacrosanct, in the sense that any assault on their person was prohibited. They had the power to veto actions taken by magistrates, and specifically to intervene legally on behalf of plebeians. The tribune could also summon the Senate and lay proposals before it. The tribune's power, however, was only in effect while he was within Rome. His ability to veto did not affect regional governors. Because it was legally impossible for a patrician to be a tribune of the plebeians, the first Roman emperor, Augustus, was offered instead all of the powers of the tribunate without actually holding the office (tribunicia potestas). This formed one of the two main constitutional bases of Augustus' authority (the other was imperium proconsulare maius). It gave him the authority to convene the Senate. Also, he was sacrosanct, had the authority to veto (ius intercessionis), and could exercise capital punishment in the course of the performance of his duties. Most emperors' reigns were dated by their assumption of tribunicia potestas, though some emperors, such as Tiberius, Titus, Trajan and Marcus Aurelius had already received it during their predecessor's reign. Marcus Agrippa and Drusus II, though never emperors, also received tribunicia potestas. By extension from the Roman historical experience, some modern politicians have been called "Tribunes of the People." The analogy is mostly with the original function of the Tribunes as champions of the downtrodden and disadvantaged in Roman society, rather than with the later technical Roman governmental usage giving legitimacy to Imperial power. In ancient Rome, the Tribune of the Plebeians was a powerful position meant only for commoners (plebeians), so a noble (patrician) like Augustus couldn’t officially hold the title. However, to give him similar authority, he was granted tribunicia potestas—the powers of a tribune without the actual office. 19 With tribunicia potestas, Augustus could: call meetings of the Senate, declare himself legally untouchable (sacrosanct), veto decisions (ius intercessionis) and order executions when carrying out his duties During the late Roman Republic (last century BCE), praetors’ edicts became a key part of Roman law. This period came before the development of Jus Honorarium, a type of law created by officials to improve or correct the existing civil law (Jus Civile). The Praetor’s Law was designed to serve the public interest, fixing gaps in traditional laws and making justice more flexible. To ensure fairness and transparency, praetors publicly displayed legal rules (formulas) at their tribunal (court). These formulas outlined legal actions people could take in court, covering written laws, unwritten customs, and new legal principles introduced by The Praetor the praetor. These legal notices were posted on boards known as tavole (or albi). Not all the officials could issue edicts, but the most important was the praetor, the official of the state who was given the power to assist the consulship in the administration of justice. It is during the late Republican period covering the last century where the edict comes to be the chief performing factor of the Roman Law. It can be described as the period which is earlier than the Jus Onorario. The law of the Praetor is that which is in the public interest, which the Praetors have made in aid, supplement or correction of the Jus Civile, an honourary law made so in virtue of the fact that this law was made by high officers of the state. It was turned into a source of law through the use of the edict. The permanence of the law for everyone to know, inspired the Praetor to act in such a transparent matter. At the seat of the tribunal, there used to be a set of formule; the rights of action which were necessary to conduct legal proceedings. Hence, at the seat of the tribunal formule would address: written, unwritten and new areas the praetor developed. These boards on which the formule were written were called the (something). The praetor, upon appointment, would renew the rights of action of previous praetors for it was deemed that as soon as a praetor's office comes to an end, so would the validity of the tavole. The fact that the officials of the state changed every year meant each Praetor would add new rights of action, written on tavole. The main drive of the development of these rights of action comes mainly in 2 directions: 1. Rights of action which emanate from written law. Where law is certain; certain rights of action develop because the law stipulates their development. 2. Unwritten law was known and accepted, yet the rights of action which were written down were, by nature, clearer. When the Praetor recognised an unwritten law as law, he was exercising a function of granting rights of action on points acceptable to society. By granting such rights of action he would be acknowledging the existence of such customs. Hence through the Praetor it was established which rights people emanate through custom. 20 There used to be a set of formulae: written, unwritten and the new areas which the praetor developed. It was the duty of every new praetor to renew the rights of actions which he had inherited from the previous Praetors because it is said that under Roman Law the validity of the tables with the lapse of the term of office of one praetor to another, the edicts live on and are usually adopted. The renewal was made by means of the edictum perpetuum. It is a reaffirmation of the strength of the state. The praetor was not bound to follow the rules laid down by his own edictum perpetuum. The Romans argued that if a praetor, in the exercise of his edict at the beginning of his term of office told the public that he would be applying the law and would decide to change it, it would be a legitimate right of his edictum. In c.67 BC they changed it because they said its unfair if someone files a law-suit on a law which the Praetor promulgated, could change midstream meaning he would lose the case. We find a Lex corneria which directs that if he declares a particular right of action at the beginning of office he can’t change it. The Praetor becomes bound by his own edictum perpetuum. Hence, by the end of the Republic, an edict called the traladicium was enacted, whereby rights of action would not need to be renewed year after year. The Roman Law of procedure gave him great power over the granting or refusal of rights of action. The Praetor’s powers  The Praetor has the power to decide on a particular issue in court.  He can reject or accept what is said.  He decides if someone can file a law-suit by granting someone a right of action to use. If there is no right of action he can deem not to grant the case.  The Praetor has no discretion where the law is written. Even if it is unwritten law deemed custom then again he has no discretion. You have the right of action. However where there is no law he may grant a remedy in the courts and use his powers. This becomes law.  The three laws under the Praetor: written law (Lex and Plebiscitum), unwritten law (also law meaning you have the right of action) and the rest, which comes to action under the Praetor. He had the help of jurists to decide whether there is written or unwritten law. 21  Once a right of action is given; the case is also given.  No one could appeal the praetor’s decision.  He had the power and duty to apply justice being the sovereign power of the state.  The laws of other praetors tied him down.  A right of action he would grant would create the right. Thus as time went by his power was diminished due to the fact that granting a right of action in a particular way is controlled by previous rights.  The praetor urbanus power was limited. The praetor peregrinus’ power was not so limited as a result of the nature of his work involving the relationship between the Romans and foreigners. What he developed was a further development in the rights of action granted by the praetors. He developed rules on consensual contracts by granting rights of action on this point. Remember the Romans were taught the doctrine of law from a young age, as Cicero pointed out. Surely, when there were matters of extreme difficulty he had to depend on advice. The praetor had the flexibility and velocity to meet the needs of the time in question. The praetor became a vehicle to tackle the lacunae of the law. The laws of procedure went hand in hand with this development. Originally, the method of procedure, known as legis actio prevailed. These were actions at law, which were strictly tied up to the letter of the law. Legis actio covered only a limited number of rights. This actio enabled the submission of a lawsuit. If the actio’s wording was not precise, one’s action would be thrown out. It had a very rigid formality – it did not give the opportunity for the praetor to give this direction of new remedies – he had to wait to be able to grant certain action. He did have imperium and great power, but, initially the administration of justice was more restricted. The turning point in procedure came about because of the void found in the vague nature of contracts and trade. They needed judicial review, which was as yet not provided for in the Civil Law. The development laid in the pressing need of commercial transactions to move forward through contracts – they were not yet in the dimension as needed. Rome became 22 a strong cosmopolitan city. During the Principate and the Dominate, huge consignments were taken from Egypt to Rome. They had established the principle that the court of law must give you a remedy. The praetor found it imperative to provide such a provisional action. This was done by a special decree for particular cases – he ordered the parties to submit to arbitration. The praetor peregrinus did not have such rigidness – he started to submit the formula; a question submitted to the Iudex (a judge) who would listen to the facts. In Roman Law, the magistrate was superior to the judge. The praetor would formulate a question. If it appears that x owes y 1000 euro, payment should be made. The praetor was opening new roads in procedure – there are elements of arbitration. It is, however, the formula showing the point of issue was by the plaintiff (the one asking for the lawsuit) and not the praetor and the defendant – there was a contractual element that the parties accept to fall under this procedure. The strength of Roman Law that the people entrusted to law increased significantly and in various directions. Roman citizens had the rights of the Jus Civile but non-citizens could not. The difficulty was to exercise jurisdiction over non-Roman citizens. The legis actio rigidity was removed to allow flexibility and different forms of action could be taken. It allows the praetor to ignore the traditional sources and use this mechanism. Although legal assistance was not necessarily given by a lawyer he should be literate. The development of the jurist under Roman Law is eye opening because strangely enough the EU has put up the level of civilization in the matters of law – the areas of practice for a lawyer have increased as the system depends on it. Contracts resting upon the powers of the praetors – udirum imperium – the contents are based on the power of the praetor, whilst the legitimum is based on the law. Against the old and rigid system under the legis actio, the system had the power of adaptation, enabling relevance and application to the developing society. This was the first reform in the administration of justice. This 23 form was accepted by the legislative when the lex abucia – the parties even in the old system are allowed to use the new formula. The possibility of disallowing an action through wrong wording was removed. The Libel The writ of summons – allowed corrections and additional submissions to change – this was removed and replaced by a “sworn application”. The decline in the importance of the XII Tables is found in the increased importance of the praetor. The edicts profoundly influenced the laws of succession. The praetor developed a duplicated system of the XII Tables coupled with these actions. This meant that it is more convenient to use the laws of actions, which are granted by the praetor than to go to the old rigid formalities of the old written and unwritten law. ** The Roman Emperor Who were the officials, under the Roman Republic, who were given the power to issue edicts? The official utilizing this edict best was the praetor but this function was steadily removed out of his hands and into the hands of the emperor. The Roman society had expanded so much that it needed instruments which were more able to reply to the daily needs of such a large society. Hence, when the praetor was functioning, Rome was at its initial stages. By the time of the Principate the solution towards this expansion was giving office to more than one praetor. Yet, this was found to be inadequate after a period of time. Hence, the power eventually passed on to the Emperor. The Emperor was, to a great sense, the successor to the officials of state who had the power of edictuum. How the edict was used was hence different in the Principate. The practice of law steadily developed from the Principate onwards, for the Emperor became the chief amongst the officials of the Roman State; for the Emperor assumed the functions of the consulate, issuing edicts. This was the beginning of imperial power in Rome. The earliest edicts issued by the Emperor generally followed a Republican pattern. Hence, they were mainly concerned with extensions and 24 corrections of existing legislation. This period started in c.27 BC when Augustus came to power. He assumed extraordinary power in an attempt to reinstate the Republic. Hence, the old forms of making law through the comitia were abolished as were the powers of the praetor; with the Senate, for a brief period, assuming the powers which were in the hands of other abolished officials of State. The law was given strength through the hands of the emperor and his edict; the latter being the main vehicle through which the emperors in Rome assumed the legislative functions which were previously in the hands of other officials of the Roman State. In the Corpus Juris Civilis, we find a number of edicts issued by Justinian, proving that upon the start of the Roman Empire, the edict was still used. The powers of the Emperor in the exercise of the edict (jus edicendi) could be used without any form of legal limitation. This contrasted to the edict of officials of state who were elected for one year in the Republic. The strength of the emperor's edict was not limited to a particular branch of power, as would happen with officials of the State in the Republic. Yet, we find that the edicts of Emperors were frequently renewed by their successors. This practice of renewal became so common that the emperors' edicts became permanent. The social, economic and political strength of the emperor meant that his edict had imperial strength because it could only be changed by his successors and by no one else whilst he was alive. The foundation of the imperial legislative authority is not to be found in legal development but in the stark, political reality of the day. The emperor's power evolved so that his assumption of a direct legislative role could not be challenged. The Principate starts off with Augustus who tried to centralize powers in his hands. The Republican officials and assemblies steadily declined in importance. The edict was a mechanism through which imperial authority was expressed. The jurists around the emperor started to categorize the nature of the commands of the emperor; whether they are of a legislative function etc. The emperor became the sole repository of political power. He was in charge of all administrative, legislative and judicial activities. The emperor issued decreta; judgments given by the emperor in lawsuits brought before him. The decreta was the function of a judicial nature which the 25 emperor assumed. A judgment on a legal matter by the emperor extended itself steadily and we know that the judicial function of the emperor came about because besides the structure, the right to individual petition was granted to any citizen in the Roman society. This was known as the supplicatio; the right to individual petition. It paved way for the emperor to issue a decreta not in a reactionary fashion but issuing a decreta whilst something is going on. Romans developed law because they believed that human interaction needed some form of order. The vast majority of decreta did not create new law; rather they created clarity for existing law. The emperor assumed such great powers that the decreta became a source of private law because it helped the system to function better. It became the interpretation of the desires of the emperor. The function of the decreta by the end of the 3rd century became impossible to sustain. In its place, the Digesto formalized how one should interpret the law. Furthermore, there was a development of another instrument known as the rescripta. It is a superior development on decreta because it was more than an appeal by the parties, it was the submission of a particular case by the magistrate or by the judge directly from the emperor and his reply would not be through a decreta but by a reply known as rescripta. Hence, rescripta are simply replies by the emperor to a legal dispute. They had the force of law because they exercised great legal authority. With regards to the external form of the rescripta this could be made in different forms namely annotazio subscriptiones (answers to enquiries and petitions from private persons), epistola or prammatica sanzio. Hence the imperial function realized the importance of promoting how law should be interpreted. The rescripta had a great practical difficulty because its primary purpose was not the reform of law. It applies to persons who ask for advice and not to others but gradual change meant that it started to be applicable to everyone. The rescripta started to be categorized into 4:  rescripta which merely stated the law  those which laid down a new rule but this new rule was not intended for a general application.  those rescripte which (didn't manage all these josh) 26 There were rescripts which were running contrary to law and Constantine had to legislate specifically that those rescripts running contrary to law cannot be considered binding. The Emperor Constantine felt that a matter where the state was establishing law and order required the expression and will of the emperor had to be observed and adhered to. Hence the development of the power of the emperor started off through the use of the same methodologies of officials in the Republic yet it then changed. ** The interesting distinction made by Constantine with regards to the above was that he attempted to say that those rescripts that run against private law should be ignored whilst public should be adhered to. One can easily understand the Emperor Constantine that a matter of private law was one thing, but when the state was establishing law and order then the expression of the will of the Emperor had to be observed and adhered to. This is the raison d’être which led to this interesting distinction. But the real issue here is that during the initial period of the empire, through the Principate and through the Dominate, the expression of the imperial will started off by attempting to reflect the use of the edict which was used by the republican officers of the state. It changed into being an instrument of the emperor and therefore, new vehicles were inserted, like the rescripta and decreta. It is law in an authoritative manner. Mandata, directions addressed by the emperor through the prefect, seemed to be matters of administration, administrative law or constitutional law but jurists do not agree whether the ‘mandata’ had also the force of law not because they come from the emperor, but whether it had influence of law in the civil/private aspect. Some authors say that mandata like edicta were true and proper laws which were binding on the judge and parties. The mandata contain instructions of law with regards to the provinces. Other authors say that mandata are unimportant in public law. Mandata had a specific function: the emperor in the use of his supreme authority gives directions in administrative matters. The subsequent emperors, would, on the opinion of the civil servants in Rome give the direction that these directions be renewed even within the change in an emperor. The truth is that since the emperors became the 27 sole source of power it was up to them to decide how to issue rules so he could make law in any form he chose thus he could also do it through mandata. In the jurists’ words we know that proper recognition of the power of the emperor to make law is recognized by the 3rd century. This meant that whether he chose to issue law was his affair because any declaration which he made was obvious that it was considered to be binding. We know that the emperor’s powers became total and absolute in the period known as the Dominate. During this time, the 4th century, the powers of the emperor were so absolute that his declarations were considered to be law. At this period we find a decline in the study of law, and the strength of the civil service bringing about a confusion in the terminology used. From this period onwards, for e.g., the name ‘edict’ was applied to provisions usually applied to mandata. Nearly all Justinian’s edicts are in themselves more likely to be declared mandata and thus the emperor’s will started to be put under a general definition of law which whatever form the emperor had chosen to bring it into life as new supreme power. We can safely say that these vehicles served for a long period of time. However the emperor had established in his practice two very important mechanisms which were operative in certain periods of time:  Oraziones – proposals of law. The initial part of the process which would lead to a senatusconsulta by the emperor.  In the imperio vespasiano the senate is asked to grant powers to emperor to exercise his power.  If something needed to be applied within this state it should be done beneath the power of the emperor. The republican officials had served their purpose but when Rome became so big there was a need for a stronger mechanism in making law, and keeping law and order throughout. The assemblies, senate, quaestors all became inadequate. They were supplemented with the strength of the emperor, which was a crude one, but they were mostly educated, well versed in the law, rhetoric, grammar or literature, strong at times on the military side. So we see that in the development in the use of imperial authority grows in 3 steps:  How not to appear as a dictator. From that moment onwards all emperors wanted to appear that though they have absolute 28  power it is coming to them because they are expressing the voice of the Roman people. They aren’t the dictators imposed on the people. They are there because there is a popular will behind them. The initial republican period served for the jurists to show them they can make good use of imperial power to establish rules in keeping order in a civilised and fashioned manner. the use of the decreta, rescriptum, mandata, were all vehicles created by the Roman jurists in order to render logical the strong power which an emperor had. With the Dominate, where all of the previous Republican institutions where the emperor becomes the sole holder of power , there the legal finesse of explaining an expression in terms of decreta. The Roman mentality, legal culture was one which went for legislation which is not qualified, the idea of codification was taken as a Greek question.. Julius Caesar was faced with the accusation that he wanted to codify Roman Law which was unacceptable. During the Principate, by the end of the 3rd century we see that the west is still united to the east. At a certain point we find two emperors one for both sides. These two emperors are faced with gr8 difficulty to say what is the laws of Rome. How can we specifically say the laws of Rome are so and so. With coming in of the dominate, especially the east was faced with the dilemma of: what is the law? The fact that at no time did Roman aw remain static led to the difficulty which was not easy to decipher and so we find that this pushed a drive to try and rationalise, bring to a logical position as to what the Roman Law really contains. This led to many jurists to attempt to collect in a systematic manner the different legal appearances because the first attempts at some form of codification in an area which is in favour of codification was to look at what the previous had laid in their costituziones. Roman Law did not develop in a revolutionary method but as a living organism, steady and natural progress. We must recognise it as one which occurred throughout centuries so the jurists who stayed. ** 29 At the beginning of the dominate, there is a drive towards codification, a counter-tendency of what had been the current trend of what had been the legal culture before this period. There is such an accumulation of law that it is difficult to identify which is the law because there was no central authority where all the different legislations were kept in a systematic manner. The central administrative role, the provincial governments and the different libraries who all kept records. Thus it was difficult to ascertain the current state of the law. In this period, law in this period becomes a matter which the central government realises it needs to be addressed directly because legal clarity is essential. The success of the jus edicta, rescripta, mandata of the emperors had in themselves the difficulty because whatever had been legislated upon had not been collected in a clear manner. In the Principate, the imperial edicts were usually posted in the principal towns of the places of legislation and left on the display for a while. So even though they were somewhat available there was no permanent central record. How to give the population certainty at law? Lawyers from as early as the 2nd century AD started to react to this lacuna. They began to compile collections of imperial constitutions privately, for their own use. Some were published, but not as documents of law, just collections relevant to jurists practising law. (In c.200 AD, certain rescripts of Septimus Severus, his constitution, was produced at the closing year of the Principate.) During this time, we find that the lack of codification was remedied by the publication of two semi-official (de facto) collections of law. In these two codes, another step was made, they started to be used and cited by lawyers and judges in court. We also have parts of the Corpus Juris Civilis and literature and which speaks of these two codes. Codex Gregorianus contained imperial constitutions, mostly rescripts from Emperor Hadrian (117-130 AD) and some from Diocletian. (rescripts were replies with directions of law to judges) It was from Hadrian’s time that the most relevant rescripts were formulated. Gregorianus’ publication had no imperial authority behind it but it become official – de jure. Around the same time, c.245 AD published a supplementary collection of costituziones which was not covered by Gregorianus by a jurists Hermogenianus titled Codex Hermogenianus. It was subdivided into 30 titles and organised the costituzione into chronological order. It was reedited several times adding more costituziones. Hermogenianus added other rescripts of Diocletian of importance and also other rescripts. These two documents obtain extraordinary moral and legal authority being the most significant factor distinguishing them from the previous private collections of legislation. The courts recognised these codes as authorities and exhaustive collections. This was partly because they were included in the principal texts of legal education and were so strong as they served as models for the official law code known as the Theodosian code brought into action by Emperor Theodosius II. However, much record of the two has been lost and the Codex Juris Civilis is the main indicator for the authority that these two codes have. A commission of nine men carried out the work which in a 9 year term came up with a document which came up with the Codex Theodosianus. In this codex we have 16 books. Its purpose was specifically to contribute to the clarification of the law and ease the task of jurists and judges who were in principle were supposed to use the imperial laws included in the code. The code was enforced in the east and the west. The next task was to combine this with previous collections and classical jurists’ texts to have a comprehensive and harmonious collection of the law. The second commission appointed was slightly different because it was appointed to assemble the costituziones issued since the reign of Constantine into a single collection – to allow legal profession to access the imperial legislation. So the Codex Theodosianus was the declaration of a new code, an extensional continuation of previous publications. Thus it was not enough to reach the level of the digest. The first 5 books focused on private law, 6-8 address matter of constitutional and administrative law, 9 is the subject of criminal law, 10- 11 public revenue, 12-14 rules governing municipalities and corporations, 15 provisions public works and games, 16 ecceclestian matters. The Codex Theodosianus has been transferred virtually in its entirety and with few lacunae. From 117 AD – 438 the work of the jurist was complicated by the fact that the laws weren’t systematic, there was no central authority in which 31 the laws were placed but what was legislated upon by the emperors was truly law. The law was never static, there was always the matter of change. At the most important of those moments, Justinian not only codified by the law but took up the work of the first commission of Theodosius. The Corpus Juris Civilis is the latest face of the long development of the Roman Law. It has a preeminent importance because it is the climax of the development reaching a system of completeness. Justinian Justinian has been described as a prince of extraordinary justice and on the other hand at the base of a corrupt and weak society by Procupius (principle authority on Justinian). One of Justinian's first jobs was to appoint commissioners who were instructed specifically to construct a collection of imperial enactments including the Theo codes, the costituziones from AD 398-529 when Jus was issuing his creed. They were empowered to delete out-dated or superfluous elements from the text, repetitions contradictions and effect any necessary amendments to update the material. The commission arraised the costituzione systematically according to subject matter and list it chron. The first major work was to consolidate what had been done in the past in the promulgations of these semi off codes and the only official code. The new collection was published on 7 April 529 under the title of codex Justinianus which came in force on 16 April after 529 imperial costituziones were issued a fresh this first code was soon out- dated and replaced in AD 534 by a further revised edition, and so Justinian directed his attention to systemising the part of the law based on the works of the classical jurists. They felt there was a need for a codification and simplification for the entire juridical literature. The trust started by Theodosius to bring Lex together, was continued by Justinian, and the drive to change law meant that they started to see the various difficulties they had in the interpretation of those costituziones. There was, so, a need for the simplification of this juridical literature. The first step was made by Justinian with the first 50 decisions, costituzione, which were brought on 17 November 530 whereby they endeavoured to provide solutions to controversies that had risen amongst 32 classical jurists and to correct obsolete legal issues. Justinian instructed Tribone to make a commission of 60 members with the objective to:  Collect  Review  Present in an abridged form the writing of the classical jurists. This commission was given a very wide brief; exceptionally ambitious in its aims because it attempted to do the impossible because it was known that for centuries, the Roman courts of law were given the responsibility to decide the right interpretation to be given to law. Not only did juridical literature attempt to give an interpretation, it was often considered as law itself. Hence, these different interpretations gave rise to various difficulties. These commissions had wide juridical powers. They were given a carte blanche not only to select but also to change texts, not only to choose texts of preference but also remove texts they felt had no relevance to their work. The collection was to exist as a correct statement of the law at the time of publication and to be considered the only authority in the future for the works of all. It was stipulated the work would take 10 years but worked with speed and was finished in 3. References to the original works were declared superfluous and commentaries on the digest were prohibited. For Justinian it became si ne qua no that no one could comment on the Digest. It had to remain as a piece of work which could be used for help but not referred to or used to confuse any longer. No new commentaries would be allowed and no previous documents could be re-used. From nearly 2000 books with 3 million lines, they reduced this 150,000 lines. The digest itself created problems for jurists had the right to change and correct the texts, leading to problems known as interpolaziones. Why did this happen. When Justinian ordered the commission of the Digest, he wanted to create a body of law which would fulfil the needs of his own time. The jurists felt what had been written in the Digest did not necessarily make precise sense. The corrections, at times were made intelligently, but at others were not. In three years, certain shortcuts were inevitable but the commission was replying the evident need to give the courts tools to solve the different problems in solving legal matters in a pragmatic way. 33 ** 34 Custom – Dr. Mifsud Bonnici Joshua Chircop Custom is the Jus non Scriptum. With regards to what Justinian and Gaius say is a marked difference. In his law, Gaius does not mention custom whilst Justinian, strangely enough, because there was a gap of hundreds of years. Metzger, a jurist teaching Roman Law in the University of Aberdeen has written a book on Justinian’s intistitutes, Andrew Borkowski, Pasquale Voci Diritto Romano, Roman Foundations of Roman Law Jolwitz and Von Savigny (known to be the strongest advocate in favour of custom). Metzger says that from a historical perspective a number of rules forming part of the legal system had been observed in customs or usages of the people. These rules were gradually accepted as law or transformed into law through some particular act such as legislation or adoption by the court. There were rules which people obeyed not because they were written down but because people felt they have to obey them. these rules were accepted as law of their own or else became sources of law because the unwritten rules were transformed into written rules. The transformation into written rules under a period of time in Roman Law under 2 situations:  When there is a court judgement that accepts there is custom  Or the legislator himself transforms the rule into law.  Or the exercise of imperial will Customary practises have been absorbed into the legal system through some particular legal mechanism. There are two problems with custom. Was custom ever recognised as a source of law? And if so, one must define the criteria by which it was identified. Written law is an expression of the will of the people, whilst unwritten law is, in theory, also the expression of the people. However, the classical period, the Principate, Dominate until Justinian, custom was not always accepted as a source of law. However Justinian does in fact accept custom as a source of law. In the Digesto, a jurist called Julianus, said the immemorial custom was binding on the account of the approval of the people, the force of a statute. Most jurists debate this:  This extract from the Digesto indicates that before the CJC the idea of unwritten law was not acceptable but when this quote of Julianus was changed in legal position. 1   Right or wrong, authentic or non-authentic, the fact that the Digesto had this quotation inserted meant that if you had a custom, you must also prove it is immemorial. With this extract from the Digesto the law seems to have changed in two senses: o Acceptance of custom in Roman Law o Not any unwritten law is acceptable but a rule which is proved to be in court of immemorial use. Since Justinian took the step to take unwritten law in consideration. SO jurists took this in 3 parts:  The unwritten law does not speak about the matter, it is a lacunae. A rule which they feel they are bound by the matter.  It helps it written law, the law on the matter has been written but there are fine points whereby you have custom.  Can you have a custom which runs counter to written law? Metzger says that Justinian prohibited that custom runs contrary to written law. What constitutes custom? Borkowski says that those practises which had become so firmly established as to require obligatory force, i.e. the behaviour has become so strong in the minds and will of people to believe that that is a law. When people feel tat an unwritten law should be applied, it is evident that custom has gathered enough force to be changed into written law. Customs are those human interpersonal practices which become so firmly established in people's minds, hence requiring obligatory force. Borkowski spoke on how jurists debated on whether custom should be transformed into law or only regarded as indirectly binding; needing the recognition of juristic interpretation. Is custom law in itself? Or does it need a court judgment stating precisely it is a law? This was debated much by jurists. Most modern jurists accept that most probably, the praetor and other officials with edicta, would use those unwritten rules to accept that people in Roman society believe they should behave in a particular matter and so would insert them in law. This is tricky, because as a legislator, law can be made in a way that people think is right. 2 According to Pasquale Voci, custom is a behavior which is inline to a rule which is not imposed by law but because of the fact that there is continual practice of this rule which renders it obligatory. These are behaviour which have going on for long periods of time and there is the comfort that people accept them to be manner the way in which they must behave. He lays down these five qualities:  Custom must emerge spontaneously, i.e. it does not have any origin in written law.  It must consists in a long period, for the duration of a generation.  It receives a juridical value by the fact that people generally accept it as a must. They believes it to be the manner they must accept and follow in their daily life.  The fourth point is severely debated. It does not need to be confirmed by law.  In people’s mind and at the law courts, it has the same strength as written law. Looking at these elements and the extract of Julianus in the Digesto, law and custom are similar because they are the expression of popular will and the distinction is not so much in the source but the formality. How can we identify what is custom and not custom? SAVIGNY enters into how we can prove in court the existence of written law. In his approach to custom, Jolovitz recognises custom as a small part of today’s highly developed system of law. He affirms that except for Justinian, most of the jurists and the inadequate codes were hostile to custom. This seems to have arisen because within the Principate and Dominate, an exaggerated faith in the efficacy of law emerged. This eliminated the possibility of accepting the presence of custom. What mattes is not the form but the method of creation and customary rules did not change their manner if they came to be written down; not even if this was done authoritatively, as certain statues were in the time of the Principate. Hence, Jolowitz sees the presence of custom in two directions:  The unwritten law itself  Where the written law gives direction to the unwritten. He addresses three points: 3   The time period. He says we find a fairly strong opinion on those who commented after Justinian, the glossators and post- glossators saying 10 years were necessary for a custom. This rule however was not accepted by Canon law which was developed on the basis of Roman Law held that that custom was needed for forty years. Other authors writing in the same period said time immemorial means a hundred years. Eventually it was left to the courts to decide whether it would be a 10 year to a 40 year industry.  The repetition of this custom. Is it enough to make it law? The jurists writing at the school of bologna wrote that twice is enough. Other authors said that it must be frequent, a greater number than two. In court, one must prove it is accepted by people as the law even though it isn’t written. The debate developed, is it just the need to show human practise who state on oath before the judge saying they have been following this custom for such a period of time. Should the court accept in more than one judgement that a particular behaviour is custom?  The way people should behave, the opinio necessitates, the opinion of people i.e. it is the necessary matter in which one has to behave. The practise must not have risen from any conviction accept that it is legal necessity to behave in such a manner. Von Savigny looks at this problem and says that from his studies he would indicate there are two fundamental points which have to be looked into to guide a judge whether to accept a certain behaviour to be custom or otherwise because rightly so he said custom cannot be ignored and must be accepted. However, the courts of law need guidance in two directions:  How can a judge decide whether a certain behaviour amounts to the possibility of being accepted as custom?  Once there is a court judgment between two parties does that judgment consider the wishes of other parties. The first step Savigny says is the behaviour must be rational, i.e. it must be in itself good and the right way how to behave, not illogical, contrary to how people would be expected to behave. Secondly, it must be legitimate. Firstly, it must not run contrary to the law and secondly, and in furtherance of the right putting in order of society. 4 The authors, and Savigny seems to agree, say that custom is the law of the people. However, to which standards, what is the work that a judge has to go through in order to establish that there is a custom to which he is now going to give the force of law. It is prima facie that it is rational and legitimate and secondly, like it or hate it, custom is not in the natural mode of forming a law (through the mechanisms of the state), so it is natural in itself in that it needs special mechanism to be accepted by the state as law. The law courts only have the right to interpret law but not create it. So the judge needs to establish, through evidence, that that behaviour which has been submitted by a party to be written law has to be then accepted by the judge. Savigny says most of the writers here say one should leave the decision in the hands of a judge who gives great attention and is in absolute discretion to decide whether a custom is law. He says certain points need to be stated however. The acts must be uninterrupted in time and uniform, repeated for a long period of time but not differently, precisely. What are the consequences of a court judgement that had been delivered before this point? The fact that certain judgments are given in sectors where there is not written law; do the judgments themselves constitute to an uninterrupted behaviour towards law. The acts must be in such a way that they can be proven in court; that the interpersonal relation of citizens is made in a public way. This is another way Savigny said that the judge must take into consideration whether there is or not the presence of a custom. Savigny says that we should accept custom because Byzantium at that time was becoming a strong maritime country. We know that the island of Rhodes was one of the most advanced in terms of m