The history of Roman law is divided into two great phases. The first phase spans more than a thousand years, from the formation of the city-state of Rome to the codification of Justinian in the sixth century ad . Roman law was devised for a small, rural community that developed into a powerful city-state and it evolved as the law of a multinational empire that embraced a large part of the civilized world. During this long process the interaction between custom, enacted law and case law led to the formation of a highly sophisticated system gradually developed from layers of different elements. But the great bulk of Roman law, especially Roman private law, derived from jurisprudence rather than legislation. This unenacted law was not a confusing mass of shifting customs, but a steady tradition developed and transmitted by specialists who were initially members of the Roman priestly class and then secular jurists. In the final stages of this process when law-making was increasingly centralized, jurisprudence together with statutory law was compiled and codified. The codification of the law both completed the development of Roman law and evolved as the means whereby Roman law was subsequently transmitted to the modern world.
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The Greek historian Polybius described the Roman constitution as a mixed constitution. The philosopher Aristotle almost 200 years before had defined three types of constitution: the monarchic, in which the power was in the hands of one person; the oligarchic, in which a few people held the power; and the democratic, in which the power was in the hands of the many. Aristotle had an elaborate explanation of how these constitutions changed over time and went in a kind of cycle. Polybius borrowed the basic analytic tool, the idea of three kinds of constitution, but jettisoned the claim that the three inevitably moved in a cycle over a long period. His claim was that the Roman constitution was partly monarchic, partly oligarchic or aristocratic, and partly democratic. This, he argued, was why the Roman constitution was stable and didn’t have to change on a cyclic pattern the way Aristotle had predicted constitutions should. As Polybius saw it, the monarchic element in the Roman constitution was represented by the consuls; the oligarchic element was represented by the senate; and the democratic element was represented by the Roman people and their assemblies. See Historiae VI. 11.
Consider Cicero, De republica 1. 32. 56.According to Gaius: “the rules enacted by a given state for its own members are peculiar to itself and are called civil law.” See G 1. 1.
This seems to be evidenced by the existence of dual forms for the attainment of the same end in some areas of Roman law. E.g., we have the marriage by confarreatio (a form of marriage involving an elaborate religious ceremony) side by side with marriage by usus (an informal variety requiring simply mutual consent and evidence of extended cohabitation); and the testament in the comitia curiata (now referred to as comitia calata) (testamentum calatis comitiis) side by side with the testament ‘per aes et libram’ (‘with the copper and the scales’) or mancipatory will. The exclusion of the plebeians from political office and the priesthood and the denial to them of the right of conubium (marriage, intermarriage) with members of the patrician class also point in the direction of a fundamental division between the two classes.
D 1. 2. 2. 1–2. The extant leges regiae can be found in FIRA I, 4–18; Bruns, Fontes, I. 1–14. D 1. 2. 2. 3–4. See also Livy, Ab urbe condita 3. 9. 2–3. 57. 10.The Law of the Twelve Tables does have some elements in common with Athenian law, but these are not of the kind that could suggest a direct influence. The relevant provisions that, according to Cicero, were extracted from the laws of Solon, pertain mainly to the settling of disputes between neighbours, the right of forming associations (collegia) and restrictions on displays at funerals. See Cicero de leg. 2. 23. 59; 2. 25. 64.
According to Roman tradition, these forms were not revealed until nearly a century and a half later.The historian Livy refers to the Law of the Twelve Tables as “the source of all public and private law” (fons omnis publici privatique iuris). See Ab urbe condita 3. 34. 6. Consider also Cicero, De oratore 1. 44. 195–196.
See, e.g., R. Schöll, Leges duodecim tabularum reliquiae, Leipzig, 1868; FIRA I, 23 ff. Bruns, Fontes I, 15 ff. E. H. Warmington, Remains of Old Latin III, Loeb Classical Library, 1938, 424 ff. A. C. Johnson, P. R. Coleman-Norton and F. C. Bourne, Ancient Roman Statutes, Austin, Texas, 1961, 9 ff. M. Crawford (ed.), Roman Statutes, London, 1996.
G 1. 3; Inst 1. 2. 4. See Aulus Gellius, Noctes Atticae 15. 27. 4. And see D 1. 2. 2. 8. D 1. 2. 2. 5–6.Another example of a rule developed through juristic interpretation is the rule relating to the guardianship of freed persons. According to Gaius: “The same law of the Twelve Tables assigns the guardianship of freed men and freed women under puberty to the patrons and their children. This form of guardianship is called statutory, not because it was expressly stated in that body of law, but because it has been accepted by interpretation as if it had been introduced by the words of the statute. For, by reason that the statute ordered that the estates of freed men and freed women who died intestate should go to the patrons and their children, the early jurists deemed that the statute willed that tutories also should go to them, because it had provided that agnates who were heirs should also be tutors.” See G. 1. 165.
Consider D 1. 2. 2. 7. Livy, Ab urbe condita 8. 12. 14–16. Topica 5. 28. The lex Aquilia is discussed in the chapter on the law of obligations below. D 1. 2. 2. 10. See Dio Cassius, Historia Romana 36. 40. 1–2.In the course of time, the formulae used in specific types of cases became relatively fixed and the collection of established formulae was constantly augmented by new formulae. The number of established formulae had become so great by the end of the Republic that there appeared to be a formula for every possible occasion. See Cicero, Pro Roscio comoedo oratio 8. 24.
See, e.g., Cicero in Verrem 1. 45. 117.Besides playing a part in the formulation of legislative proposals, the senate indirectly exercised a lawmaking influence by advising the praetors and other jurisdictional magistrates to implement certain lines of policy. In such cases its recommendations would normally be incorporated in the edictum perpetuum issued by each magistrate at the commencement of his year of office. In this way, the senate contributed to the development of ius honorarium.
D 1. 1. 7. 1. According to the classical jurist Marcianus, “the ius honorarium is of itself the living voice of the ius civile.” See D 1. 1. 8.
Aristotle defined equity (epieikeia) as a principle of justice designed to correct the positive law where the latter is defective owing to its universality (Nic. Ethics, 5. 10). Legal rules are necessarily general while the circumstances of every case are particular, and it is beyond the power of human insight to lay down in advance a rule which will fit all future variations and complications of practice. Therefore law must be supplemented by equity; there must be a power of adaptation and flexible treatment sometimes resulting in decisions which will even be at variance with formally recognised law and yet will turn out to be intrinsically just.
Topica 2. 9. D 1. 1. 1. pr. De oratore 1. 48. 212.Although trained in law, advocates often relied on the help of jurists in difficult cases to ensure that their clients’ claims were properly stated according to the prescribed formulae. Moreover, an advocate might seek a jurist’s advice when he intended to request the granting of a new form of action from a magistrate (at the in iure stage of the proceedings), and when he pleaded the case before the judge (apud iudicem). See Cicero, Topica 17. 65.
The jurists presented their replies verbally or in writing and the audience which received them was by no means confined to those who sought the jurists’ advice.
See Cicero, De oratore 1. 57. 242.The only proof of the validity of a juristic opinion was its acceptance by a court. But even this was but a slender proof, for different jurisdictional magistrates or judges might be under the sway of different jurists.
Cicero, De officiis 2. 19. 65. Systematic instruction by professional law teachers was not introduced until the later imperial age. D 1. 2. 2. 41. Cicero, Brutus 39. 145–46. And see D 1. 2. 2. 41–42. See D 1. 2. 2. 44.For a reconstruction of works of the late republican jurists see O. Lenel, Palingenesia iuris civilis, 2 vols, Leipzig, 1889, repr. Graz, 1960. See also F. Bremer, Iurisprudentiae ante-hadrianae quae supersunt, I, Leipzig, 1896.
The concept of good faith (bona fides) probably had a Roman origin and initially appeared to be linked with the notion of fas, or divine law. However, a Greek influence cannot be ruled out. In the sphere of private law bona fides was perceived in two ways: (a) from an objective point of view, bona fides was associated with the general expectation that persons should behave honestly and fairly in legal transactions; (b) from a subjective point of view, bona fides pertained to a person’s belief that his actions were just and lawful and did not violate another person’s legitimate interest. Several general rules based on the concept of bona fides are included in the sources, e.g. “bona fides requires that what has been agreed upon must be done” (D 19. 2. 21); “bona fides demands equity in contracts” (D 16. 3. 31. pr).
Quintilianus, Institutio oratoria 12. 3. 7: “Those laws which are written or established by the custom of the state present no difficulty, since they call for knowledge, not reasoning. But those matters which are explained in the responsa of the jurists are founded either upon the interpretation of words or on the distinction between right and wrong.”
The following extract from Cicero is illuminating: “So I say, Brutus, I think that Scaevola and many others had a practical knowledge of the civil law, but he [Servius] alone mastered it as an art; which he never could have done from the knowledge of the law itself without having in addition that art which teaches us to divide the whole into parts, to describe the unknown by definition, to explain the obscure by interpretation, to see first what is ambiguous, then to distinguish, and finally to provide a standard [regula] by which the true and the false may be adjudged and what conclusions may be deduced from what premises and what does not follow. This art, the greatest of all arts, he [Servius] brought to bear on all those things which, scattered, had been given as responses or brought forth at trials. See Brutus 41. 152–53.
Under the Empire, persons granted citizenship were not required to abandon the citizenship which they had previously held (abandoning one’s former citizenship seems to have been a condition for holding the Roman citizenship during the Republic). Thus newly admitted Roman citizens were not released from their civic duties towards the communities to which they belonged. Persons who did not belong to organized communities (peregrini dediticii) and who thus lacked citizenship (nullius civitatis) could also acquire Roman citizenship but only after they had formally been admitted as citizens of another state.
A fragment of such an enactment is the extant lex or senatus consultum which enumerates powers with which Emperor Vespasian was invested at his accession (this is known as lex de imperio Vespasiani). Although it is generally described as a law, it was probably a decree of the Senate, which was intended to be submitted to the people for their formal approval. The powers of the princeps enumerated in this document include the powers of making treaties, proposing candidates for public office, and issuing edicts as interpretations of law. For the text of this law see Girard, Textes 106; and see A. C. Johnson, P. R. Coleman-Norton and F. C. Bourne, Ancient Roman Statutes, Austin, Texas, 1961, 149.
The term ‘diarchy’ is sometimes used to describe the joint rule of the princeps-emperor and the senate.
These laws aspired to promote marriage and the procreation of children, and to check the decline of traditional family values. The lex Iulia de maritandis ordinibus introduced several prohibitions on marriage (it prohibited marriages between members of the senatorial class and their former slaves, and between free-born men and women convicted of adultery). At the same time, various privileges were granted to married people who had children whereas severe social and economic disadvantages were imposed on unmarried and childless persons. The lex Papia Poppaea excluded unmarried men aged between twenty-five and sixty, and unmarried women aged between twenty and fifty from succession under a will. See Bruns, Fontes I, no. 23, 115 ff.
These laws completed the transition from the legis actiones to the formulary procedure. D 47. 21. 3. 1.See Aurelius Victor, De Caesaribus 19. The text of the codified edict has not survived in its original form. Modern reconstructions are based on commentaries and interpretations of later jurists, especially those of Pomponius, Gaius, Ulpianus and Paulus. See O. Lenel, Das Edictum perpetuum, 3rd edn, Leipzig, 1927, repr. Aalen, 1956.
Emperor Hadrian declared that any new point not contemplated in the codified edict should be decided by analogy with it. It is probable that such new points were still drawn attention to in successive edicts, for there is no doubt that the edict still continued to be published annually. Iulianus’ work could, therefore, never have been intended to be unchangeable in an absolute sense. Such invariability would have been inconceivable, for although changes in law were now made primarily by means of imperial enactment, yet these very changes would entail related changes in the details of the edict. The fixity of Julianus’ edict was to be found mainly in its structure and in its guiding principles—in the way in which the various legal norms were ordered and in the general import of these norms.
See G 1. 4; D 1. 3. 9.It provided that when a master of slaves was killed and the identity of the murderer or murderers remained unknown, all slaves who lived with him had to be tortured and eventually killed. If the victim’s heir failed to take steps to have the murder investigated, he would lose his entitlement to the inheritance. See Tacitus, Annales 14. 42–45.
