HISTORY AND SOURCES OF THE LAW

INTRODUCTION

It is said that Rome was founded in 753 BC. Since then, Roman law has had two
lives. In its first life, it was the law of the city of Rome. In its second life, which
represents the state of its ultimate maturity, it was the law of the whole Roman
Empire. In the hands of the Romans, law became, for the first time a thoroughly
scientific subject. It became an elaborate articulated system of principles
abstracted from the detailed rules which constitute the raw material of law.

This process of abstraction is important mainly because principles, unlike rules,

are fertile. By combining two or more principles, a lawyer could create new
principles and therefore new rules. It was the strength of the Roman lawyers
that not only did they have the ability to construct and manipulate these
abstractions on a scale and with a complexity previously unknown, but also had
a clear sense of the needs of social and commercial life. Beyond that, they had
an eye for the simplest method of achieving a desired practical result and a
readiness to reject the logic of their own constructions when they conflicted
with the demands of convenience.

The first life of Roman law was summed up and in the event brought to a close
by the Emperor Justinian in the sixth century AD. Five and a half centuries later,
the law books of Justinian came to be studied in northern Italy. This at first
occurred in the universities and later in the courts. This signified the beginning
of the second life of Roman law. This second life gave to almost the whole of
Europe a common stock of legal ideas, a common grammar of legal thought and
to a varying, but considerable extent, a common mass of legal rules. England
never accepted this reception of Roman law opting to retain its own common
law which however had not entirely escaped the influence of Roman law. This is
why there are two main sources of law of European origin. There is the common
law of England and embracing the greater part of the English-speaking world.
There is also the one which is rooted or partly rooted in the revived Roman law
and including almost all the countries of Europe. The Romanistic systems of law
are distinguished from the common law by being referred to as civil law. It has
been said that Roman law provides the Common lawyer with a key to the
common language of almost every other system of law which traces its origin to
Europe.

The Romans made a distinction between public law and private law. Public law
was concerned with the functioning of the State and included constitutional law
and criminal law. Private law was concerned with relations between individuals.
Roman lawyers devoted their main interest to private law. It is the same private
law which gave great importance to the second life of Roman law. Our focus
therefore in this course will be on private law.

THE CONSTITUTIONAL AND HISTORICAL BACKGROUND

To understand the law as it existed at the time, it is essential to understand the

history of the society it served and regulated at the time. The following is a
sketch of some of the features of the history of Rome in the 13 centuries which
end with the death of Justinian in AD 565.

THE STRUGGLE BETWEEN THE ORDERS AND THE REPUBLICAN CONSTITUTION

This covers the first period ending in 510 BC. In the first period, the Roman
Republic emerges as a small city-state, based mainly on agriculture, but already
acquiring some commercial importance. It is also during this period that it was
showing signs of highly competent military abilities. The first century and a half
of the Republic, which is the period from 510-367 BC, was devoted largely to the
internal struggle between the two orders or classes into which the citizens were
divided. These were the Patrician nobility and the Plebeians who were a large
portion of the population. The struggle was for equality, partly economic, but
mainly political. The Constitution of the Republic consisted of 3 elements: the
magistrates; the Senate; and the Assemblies.
The Magistrates

These were the inheritors of royal power. This is because the principal political
consequence of the revolution which inaugurated the Republic was simply the
replacement of the King by two magistrates who were eventually known as
Consuls. They were endowed with full executive power (imperium) which was
subject only to three limitations:
(i) though each had full power, each was subject to the veto of the other;
(ii) they held office for one year; and
(iii) their power could be limited by legislation.

As Rome developed, other major magistracies were created to relieve the

Consuls of their duties in specific spheres, but the principle of the imperium
remained, subject to the limitations as stated. The magistrates had sweeping
power and this can be seen from the fact that it was only by legislation that a
citizen had the right of appeal to the Assembly from an order of a magistrate for
his or her execution.

The magistracy which most vitally concerned the private law was the
Praetorship which was created in 367 BC to take over that part of the consuls’
duties which concerned civil jurisdiction and as such was responsible for the
administration of the civil law. In about 242 BC a division of the functions of the
Praetor became necessary. Consequently, two Praetors were appointed. One
had jurisdiction in cases in which both parties were citizens and was called the
Urban Praetor (praetor urbanus). The other was called the Peregrine Praetor
(praetor peregrinus, or in full, praetor qui inter peregrinos ius dicit) and had
jurisdiction in cases in which at least one party was a foreigner.

Later in the Republic, the number of Praetors was greatly increased, but only the
Urban Praetor and Peregrine Praetor were concerned with the private law. The
other magistrates were known as Curule Aediles and were appointed for the first
time in 367 BC. These were the magistrates responsible for what might be
referred to as public works in the city and also for the supply of corn. Their
importance for the private law was due to the fact that they had control of the
market place in relation to which they exercised a limited civil jurisdiction.

The other kind of magistrates were the Censors. These were first appointed in
443 BC. They were appointed every four or five years and held office for not
more than 18 months. The Censors had no direct concern with the law, but
exercised a general supervision over morals. This supervision of morals came
from their main function which was the taking of the census. This involved the
allotting of each citizen to his or her appropriate group for political, military and
taxation purposes. The Censors would place a mark (nota) against the name of
any person whose conduct, whether in private or public life, they disapproved.
For example, a nota would be placed against the name of any person for abuse
of paternal power, for luxurious living, for bad husbandry, for desertion in the
army or even for improper conduct as a magistrate. Censors also had the
function of revising the list of members of the Senate. This function was
transferred to them from the Consuls. Their prestige exceeded that of the
Consuls and from the middle of the third century BC they were drawn exclusively
from among those who had already held the position of Consul though the
Censors had no imperium. In the last 50 years of the Republic, however, the
office of the Censors was in decay and no Censors were appointed after 22 BC
though the Emperors continued to exercise the power of the nota.

The Senate

There was also the Senate. This was a council of elders who were recruited
almost entirely from the ranks of ex-magistrates. They were 300 in number until
the last century of the Republic. Its function was mainly advisory, though it came
to be the most powerful element in the constitution.
The Assembly

This was a very different body from the modern legislature. Instead of
representatives, it was made up of the entire citizen body. One its main
weaknesses was that it lacked initiative. It was presided over by a magistrate.
Only the presiding magistrate could convene it and decide what motions could
be put before it. There were no private members bills and no power of
amendment. The Assembly could only accept or reject a proposal put before it
by the magistrate. Such a proposal would previously have been debated and
approved by the Senate. Voting was by groups and there was no principle of one
man one vote. It was this group voting which enabled the Patricians to retain
their supremacy over the Plebeians during the struggle between the orders. The
voting in groups limited the power of the Plebeians as the voting groups would
be fewer in number in comparison to the Patricians.

There were three assemblies in total differing in the unit on which the voting
group was based. The first assembly was the comitia curiata in which voting was
by 30 curiae. The curiae were simply represented by 30 lictors who were the
attendants of the magistrates. The comitia curiata never had an important
political function. The politically effective assemblies were the comitia
centuriata and the comitia tributa.

There also existed an assembly of Plebeians alone known as the concilium plebis,
the voting unit of which had the same basis as that of the comitia tributa. It was
presided over by special Plebeian magistrates known as the Tribunes. Its
resolutions known as plebiscita originally had no legal effect. However, these
eventually gained legal effect on the basis of the lex Hortensia of 287 BC which
enacted that plebiscita should have full legal force.

Thus at the end we find that there were three effective legislative bodies: these
being the comitia centuriata; comitia tributa (both of which consisted of the
whole citizen body); and concilium plebis (consisting of the Plebeians alone).
Eventually, the concilium plebis became the normal legislative organ because
the Tribunes had more time for such duties than the Consuls or Praetors who
presided over the comitia. This amounted to a concession of legislative power
to a section of the population which was considered inferior. One of the factors
which might have allowed this to happen was the possibility that the Patricians
constituted only a very small proportion of the citizen body.

At the end of the struggle between the orders was enacted the leges Liciniae
Sextiae of 367 BC. This was a legislation which conceded the main economic
demands of the Plebeians and also their most important political demand which
was that one of the Consuls must in each year be a Plebeian. Not long after that
Plebeians were admitted to all magistracies. However, only the wealthier
Plebeians benefitted from the political emancipation. This resulted in a new
nobility based on office. There was a move away from the classification of
Patrician and Plebeian to classification based on those families whose members
had held one of the higher magistracies and those who had not. It became
unusual to secure election to one of the higher magistracies unless one’s
ancestors had held such office. Also, since the holding of office came to be key
to admission to Senate, there also emerged a Senatorial nobility.