Ancient History & Civilisation

9. LAW

The purpose of this section is to refer briefly to the principles and method of Roman law, not to the details of particular institutions. Roman law is a peculiar manifestation of the Roman spirit, and its history ‘affords a unique example of the juristic method of legal development, of law not simply positive, but existing of right and co-ordinated and developed by reason… a consistent body of reasoned doctrine, essentially not created by the State, though sanctioned by its protection’. In this one department of thought the Romans proved superior to the Greeks, despite the richness of Greek jurisprudence. Here Greece did not take Rome captive, but Rome merely accepted from her a few individual ideas. The Greeks ‘enter into the legal history of Europe only by their contribution to the cosmopolitan jurisprudence of Rome.’24

Our chief concern is with private law. Of the two principal divisions of public law, the development of constitutional law has been treated in connection with Rome’s political history; of criminal law, which was not scientifically handled by the Romans themselves till Hadrian’s day, little need be said. In the Twelve Tables it was not distinguished from private law and though it was marked off when iudicia privata were assigned to a praetor (366), much of the field covered by modern criminal law (e.g. theft and assault) fell within the ambit of the civil law of delict. Crimes, such as murder, treason, evasion of military service and certain religious offences, came within the jurisdiction of the magistrates (quaestors, aediles, tribunes) and the assemblies of the people. This procedure by which the accused, if a citizen, could appeal from a magistrate’s sentence to the Comitia Centuriata (whose function resembled that of the English Crown rather than of the Court of Criminal Appeal) and could escape the death penalty by exile, long sufficed, but in the second century it was reinforced by the appointment of special ‘ad hoc’ quaestiones. These served as precedents for the later quaestiones perpetuae, of which the first was established in 149 (p. 297).

We must now turn to the development of civil law (ius civile), the legal customs of the Roman citizens. Early customary law, based in part on religious sanctions, changed very slowly in both its secular (ius) and religious (fas) aspects. It was interpreted by an exclusively patrician college of pontiffs, who advised the king as a council on religious questions, while its individual members could give professional advice (responsa) on matters of private law (ius); their function was thus advisory, not judicial. The first breach in this monopoly was made by the publication of the Twelve Tables in reply to popular demand. This code, which marks the beginning of historical Roman law, remained the fundamental statute of the Republic. It is primarily secular and concerned with private law, and is a remarkable testimony to the legal genius of the Romans in that they detached law from religion at so early a date. A small community of peasant-proprietors had established a body of law which found its sanction not in the authority of a divine or human lawgiver, but in a sense of justice and equity which was inherent in the peculiar genius of the Latin race.

This great achievement outlasted the national period during which Rome conquered Italy, but it naturally had to be adapted to fresh needs. The method of change, or the ‘source of law’, which for English Common Law is statute (Act of Parliament) and precedent (principles established by individual judges), among the Romans was statute, jurisprudence (or interpretatio, and magisterial edict. The original statutes of the Twelve Tables were modified, exceptionally by fresh legislation (as for example by the Lex Canuleia of 445), and constantly by interpretation, first by pontiffs and then by professional jurists. The privileges of the pontiffs were gradually whittled down. Men would still have to consult them after the publication of the Twelve Tables in order to learn the correct legal formalities, but their decisions would now have to square with a public code. The next attack came from Cn. Flavius, who in 304 published the correct forms of procedure, and four years later the College of Pontiffs was opened to plebeians (p. 111). The first plebeian Pontifex Maximus, T. Coruncanius (253), primus profiteri coepit; this apparently means that he admitted the public, or at any rate students, to his consultations. There thus grew up a class of men known as iuris consulti, or iuris prudentes, who interpreted the law to the changing needs of their age. These jurists were professional lawyers in a limited sense; they received no fees and were public men who shared in the administration of the state, e.g. Coruncanius who as consul took the field against Pyrrhus in 280, Publius and Sextus Aelius, the consuls of 201 and 198, and M’. Manilius who attacked Carthage in 149. They were in practice recruited from the nobilitas, and they regarded jurisprudence as part of the art of government, so that they developed Roman law to keep pace with the needs of the state. Their chief service was to give advice (responsa) either to individuals (cf. our ‘opinions’ of counsel) or to magistrates or judges (iudices) who were laymen more like our jurymen than judges. Such opinions, though theoretically only persuasive, were in fact generally accepted as binding precedent by custom, though not by law, and so Roman law was modified and built up much like the ‘judge-made’ law of England. As an example of ‘interpretation’ and of the extraordinary adaptability of Roman institutions the development of the emancipation of children from their father’s power may be cited. The Twelve Tables enacted that a son who had been sold by his father three times should be free from his control. This measure, which was designed to punish the misuse of patria potestas, was ‘interpreted’ to emancipate a son by a fictitious threefold sale. Further, it was extended to the emancipation of daughters who need be ‘sold’ only once, since the Twelve Tables demanded three sales for sons and did not mention daughters.

After some 250 years of development which was mainly juristic, fresh need stimulated new methods. The chief need was created by contact with foreigners and the method used was the magisterial edict. Theoretically the ius civile applied only to citizens, and foreigners had no rights or duties under it. Commerce demanded that this condition should cease. After extending their rights to the Latins and concluding special treaties with Carthage the Romans had appointed a special praetor peregrinus (c. 242) to deal with disputes in which foreigners were involved and to relieve the praetor urbanus of this duty. With the acquisition of provinces the sphere of foreign jurisdiction was immensely widened; the magistrate had to develop a method of his own, since the Roman legis actionprocedure was not available, and to decide what law to apply, since the ius civile was designed only for citizens. To build up a code of ‘private international law’ would prove too cumbersome, and in practice the praetor peregrinus and the provincial governor issued edicts, stating what principles they would adopt. These would naturally be based mainly on Roman law, but Roman formalism was tempered by foreign, especially Greek ideas. Thus a system was created which was not the Roman ius civile; it governed all free men, irrespective of nationality. This led to the conception of ius gentium, or ‘that part of the law which we apply both to outselves and to foreigners’. Later in the first century under the influence of Aristotle’s division of law into ‘man-made’ (νοµιϰόν) and ‘natural’ or ‘common’ (ϕυσιϰόν: ϰοινόν), and of Stoic ideas of ‘life according to nature’, the ius gentium was identified with the law of Nature or a law common to all peoples. This creation of ius gentium, or commercial law, was a magnificent achievement by which Roman law was modernized. It was made possible by the praetorian edict.

As the English legal system comprises common law and equity, so beside the Roman ius civile, which was formed by statute and interpretation, there was created a counterpart to the earlier English equity: a system of magisterial law (ius honorarium) grew up from the edicts in which higher magistrates, especially praetors, proclaimed their orders and intentions. Though such edicts were valid only for the year, each magistrate would in practice take over the bulk of his predecessor’s proclamation. Since the praetor could not legislate, his edicts were not statutes, but they were nevertheless an important source of law; he could not give a right but he could promise a remedy, and this in turn implies the existence of a right. According to Papinian the function of the ius honorarium was to ‘aid, supplement or correct’ the civil law. It is uncertain when the praetors attained this full right: indeed this is one of the most controversial questions of Republican law. For many years the early system of legis actiones and purely civil law prevailed, until the Lex Aebutia (c. 150) substituted for the stereotyped legis actiones a formulary system of procedure by which cases were tried in a form of words which depended on the praetor. It would seem probable that this law was preceded by a period in which a praetor, who had public opinion behind him, could exercise some influence, but he was not legally given a free hand until the enactment of the Lex Aebutia, which marks the beginning of the great period of the praetorian edict. The ius civile was gradually amended by the ius praetorium. Thus the law of a city-state was adapted to meet the needs of an empire, and Roman law became one of the chief civilizing forces in the history of mankind, and the basis of a large part of modern European law.

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