Roman Law (PART II)

Dear readers,

this week we'll continue our journey across the development of Roman Law during the Roman Republic. You can find the first part here. Just as before, background knowledge of Roman history is strongly recommended and will enhance the experience.

The Roman Republic

Creation of Law in The Roman Republic

• Centuriate Assembly, Tribune Assembly and Plebeian Assemblies. In the later Republic, the concilium plebis gained importance when it came to passing legislation, due to the other assemblies being preoccupied with military duties.

• The Senate held no real legislative power, though they did have considerable influence. Their resolutions were not legally binding unless they were also the resolutions of an assembly or edicts of magistrates.

Sources of Law In the Roman Republic

The Twelve Tables (451 BC)

• We may describe it as Rome’s first code of law, although it is nothing like current-day law in terms of comprehensiveness and range of issues it covers.

• It has been speculated that some topics were omitted on purpose by the patricians (the ruling rich class with ties to the city of Rome) drafting it to control the amount of expertise that the plebeians (pretty much everyone else) could acquire in the law.

• Content: It contained some provisions of religious or constitutional character. The first three tables contained provisions devoted to procedure. Apart from that it contained substantive private law, e.g. Roman family law : a paterfamilias has absolute power over his children, land law. Table 11 prohibited marriage of patricians and plebeians.

Edicts of the magistrates

• High ranking magistrates (elected officials) had the right to issue edicts – legally binding statements of intent within their appropriate sphere or jurisdiction. The edicts of praetors (a type of elected official) have revolutionised Roman civil law in the late Republic, forming a body of law later described as the ius honorarium (the law laid down by the magistrates).

• The edicts were issued on wooden boards, displayed in the Forum Romanum at the beginning of the praetors’ tenure of office. They were a combination of directives and proposals regarding the performance of the magistrates’ functions. The praetor could allow for new remedies or defences, but mostly they stuck to measures adopted from the previous praetor, thus slowly creating the ius honorarium.

Interpretatio

Interpretation of the law, therefore it is not a source of new law. However throughout the process of interpretation, the law was slowly influenced over the years. The interpreters of the law in the Roman Republic were, for example, the pontiffs.

Jurists

Legal officials – Jurists, mostly, and most importantly gave advice in the realm of law. This led to them influencing Roman law. Their advice was not binding – it did not create a precedent– it did, however, hold some weight as Jurists were much more educated in the legal system than the average Roman. Sometimes they even became advocates, though that was not their main job. They wrote quite a lot too, so we thank them for a large portion of the written resources we have on Roman Law.

Some outstanding jurists:

1. Sextus Aelius; consul in 198 BC. 

2. Quintus Mucius Scaevola; Tribune in 106 BC, praetor in 98, consul in 95, governor of Asia in 94, and Chief Pontiff in 89, etc. *seen in the picure on the right

The next part of the series will describe the development of Roman Law during the times of the gloriously famous Roman Empire as well as the post-classical era.

Recommended reading: P.J.du Plessis, Borkowski's Textbook on Roman Law (Oxford University Press 2015)

*Please note that at no point in this blog am I providing legal advice or claiming to be a professional. These blogs are for entertainment and educational purposes only.*