UNIVERSITY OF ZIMBABWE

FACULTY OF LAW
DEPARTMENT OF PUBLIC LAW
Course : History of Roman and Roman – Dutch Law LB104
Facilitator : Munyaradzi Gwisai mgwisai@law.uz.ac.zw
Topic : Roman Constitutional History 1st Sem. 2018

References and Further Readings

1. K Makamure, “Primitive society and the rise of State and Law,” (1999) pgs 5-9 .
2. K Makamure, “Roman constitutional history and achievements”, (1999) pgs 9-44.
3. A Borkowski, Textbook on Roman Law, 2nd ed, (1994) 1 - 25; and 26 – 62.
4. P Spiller, A Manual of Roman Law, (1985) 1 – 30.
5. H Jolowicz and B Nicholas, Historical Introduction to the Study of Roman Law, 3rd ed,
(1972) 1 – 57.

INTRODUCTION

The Roman state was founded in the eighth century BC in what is today central Italy. As a whole unitary
state it was to develop over a period of thirteen hundred years until the 6th Century AD after the death of
Emperor Justinian in AD 565 when the Western Empire effectively came to an end. The Eastern Empire
rump would continue until the 13th Century AD.
The Roman state was based on the slave mode of production, which came to exist across the world
on the basis of changes in the primitive communist society as productive forces developed. Slave societies
had existed in other societies prior to the Roman state, for instance in Egypt, India, China and Greece.
However it was in Rome, especially in the period 2nd century BC to 2nd century AD, that the slave-owning
mode of production was to reach its highest stage of development, basing itself and perfecting on
achievements in the earlier civilisations.
Like all slave states, the Roman state evolved from the womb of the ruins of the primitive
communal mode of production as productive forces developed, resulting from divisions or fragmentation in
the process of work, both natural and social ...e.g. from social relations that had emerged under primitive
communism: that is tribes, gentes (clans) and the patriarchal family.
The slave mode of production existed virtually across the entire planet. It existed in Egypt, India and China
from the 4th to the 2nd millennia B.C. In Greece it flourished in the 5th and 4th centuries B.C. It reached its
peak of development in Rome between 2nd century B.C. and 2nd century A.D.
On the basis of slave labour, the ancient societies made huge economic, political and cultural
advances, such as the emergence and advances of mathematics, astronomy, mechanics and architecture, law
and statecraft, as seen in the great civilisations of Egypt, India, China, Greece and ultimately Rome.

EMERGENCE OF THE ROMAN STATE

The Roman state was founded in the eighth century BC in what is today central Italy. It was to develop
over a period of thirteen hundred years.

In its history one may identify three main stages of the Roman state, namely:
a. Roman Kingdom
i. The Primitive Military Democracy

M Gwisai HRRDL No. 4, Roman Constitutional History 2018 Page 1

 ii. the Monarchical Dictatorship
b. Roman Aristocratic Republic
c. Roman Empire
i. the Principate
ii. the Dominate

The Roman state was based on the slave mode of production, rising from the break up of primitive
communal society. Thus the laws and factors governing its emergence, development and demise are
broadly the same as those relating to other slave-labour societies, outlined above.

THE MONARCHY

The earliest Roman state was formed around the 8th century B.C. Legend has it started as a city state around
the agricultural settlements around Palatine Hill along the River Tiber in Central Italy. The founding king
was Romulus.
The first Roman state, a primitive military democracy based on a city, was formed on the basis of social
structures inherited from the womb of declining – residing primitive communal society, namely gentile or
clan-based society. The Roman city state was formed as a result of the aggregation of pastoral - agrarian
tribes and gentes which had previously settled around central Italy in an area called Latium. The Roman
city state was made up of about 300 gentes, who were broadly divided into three main tribes – the Ramnes
(Romans), Tities (Sabines) and Luceres (Etruscans). Each ten gentes formed a curiae hence there were 30
at Rome. Each gente was led by a patriarch. The social set up of early Roman society was composed of
several classes and groups:
a. Populus Romulus – Roman citizens: This consisted members of the original gentes – rich and poor. It
also included a layer of the top wealthy families drawn from the leading gentes, not more than fifty,
which concentrated within it most of the land, cattle, slaves, money and other means of production.
This was known as the patrician order or class. Not surprisingly it included the patriarchs of the
gentes. The family household (famulus) was headed by a paterfamilias.
b. Clients: - These were outsiders who were incorporated into the gentes for protection purposes and
provided services in return. They did not enjoy full and equal rights to the patricians.
c. Slaves: - these were owned as property of the slave-owners and were not recognised as persons under
the law, and enjoyed no rights whatsoever. Slaves belonged to the family of the slave owner and were
initially domestic.
d. Plebeians (Plebes): - An assortment of free persons who came to settle in and around Rome and
consisted of craftsmen, artisans, merchants and small farmers – peasants. These did not enjoy full
citizen rights and Roman civil law, ius civile did not apply to them. Most of these were initially
clients of the king and subsequently released from clientship.

The main purpose of aggregation seemed to be for mutual protection and advancement of agriculture and
trade of the confederacy of the gentes. The main consequence of aggregation was the emergence of a
common public authority, the Roman City State, even though the gentes initially kept their separate social
and political identity, even as this increasingly came under threat from such emerging common public
power. Political and civil rights and duties were based on one’s class, with most rights enjoyed by Roman
Citizens, the Cives Romani, especially the aristocratic citizens, the cives optimo ure.

Constitutional set up
The constitutional framework of the initial city state was a simple one, based on three structures: the King
(REX); the senate (SENATUS) and two popular assemblies, (COMITIA CURIATA) and a religious
assembly, the Calate Assembly. The structure was as follows:

REX

SENATUS COMITIA CURIATA

M Gwisai HRRDL No. 4, Roman Constitutional History 2018 Page 2

 CALATE ASSEMBLY

Senex - Senate
a. The senate was an Assembly of Elders (senex) or patriarchs of the leading and richer gentes, the
patricians gentes, who numbered not more than fifty and representing the three original tribes.
Senators were selected representing each of the tribe’s ten curiae and appointed by the King,
following ancient custom.
b. The Senate had limited power under the monarchy but its principal role being to act as the king’s
advisory council on major issues and decisions affecting the state. However, other than during an
interregnum, only the King could convene meetings of Senate. It also had a law-making function.
Senate had the final power to veto or pass legislation passed by the Comitia Curiata and proposed by
the King. But very few laws were generally passed in this period, with customs and religion the main
social bond. The third function of Senate was in relation to election of the King. This body selected
a common leader from the patrician order, who was known as a Rex. When a king died, power
temporarily vested in members of the senate, on a temporary and rotational basis of five days, until
the election of a new Rex.

Rex - King
c. The organisation of the state was simple and primitive: the principal powers of the state were all
combined in the office of the Rex – who was the political leader, the military commander, supreme
magistrate, chief priest and chief judge, all rolled in one. But the king ruled with consensus and
advice from an advisory council of elders from the most powerful gentes, the senex or senate. The
King was a male patrician nominated by members of senate from amongst the patrician order after
the death of the preceding King and on recommendation of an interrex. The nominee selected by
Senate had to be approved by the people of Rome as represented by the Curiate Assembly (presided
over by the interrex). The assembly could accept or reject the nominated king, thereby ensuring
popular sovereignty over the election of the king, or primitive democracy. Before assuming office
an elected king – elect had to get the approval of the gods. A priest, thee augur, brought the king
before the citadel on the hill and placed him on a stone seat. If the gods approved, they sent
appropriate auspices or favourable tokens which would be announced by the augur. Thereafter the
King would propose to the Assembly a law granting him imperium, or power of command, and the
Assembly vote to grant it. Thus the early Roman ruling class used and deployed religion as a key
instrument to justify and legitimise their control of political power in society.
d. Every able bodied male member of society was expected to bear arms and contribute to the military
campaigns of the city state. During the rule of the first four kings, the King was not a autocrat but
one amongst equals of the patrician order, who ruled with active advise and consultation from the
senate – hence the description primitive military democracy.

Popular Assemblies
e. The third structure of the early monarchy were the popular assemblies – the Comitia Curiata, and a
religious assembly, the Calate Assembly. This was composed of the leaders of the thirty curials. Its
role was limited and mainly related to consultation by the Rex in matters of war and had
responsibilities in the area of family law. It acclaimed and ratified the election of a new king by
senate. It affirmed the laws proposed by the Rex after approbation by Senate.

The enjoyment of political and civil rights and office was dependent on one’s class, position and ethnicity
as well as gender. To enjoy full citizen rights, one had to have both public law rights and private law rights.
Public law rights included the uis suffragi – right to vote; and uis honorum – the right to hold office. The
private rights included, uis commercii (full property rights including the right to use Roman civil law) and
uis connubii (the right to enter into a Roman marriage. Only Roman citizens, Cives Romani, posses both
the public and private rights, with the aristocratic citizens enjoying the highest degree of rights, including
the right to become members of Senate. They were known as Cives Optimo Ure , which status was reserved
only to the patrician gentes . The ordinary citizens were known as Non Cives Optimo Ure. Women were
excluded from enjoyment of the public law rights.

M Gwisai HRRDL No. 4, Roman Constitutional History 2018 Page 3

Plebeians were denied the status and rights, whilst in addition Roman civil law, ius civile, was not
applicable to them. They were governed by international law – ius gentium. They could not serve in the
army or the state.
Slaves, servi, had no rights whatsoever – just obligations. At best they were persons, pro nullo, persons of
no account and at worst, known as “speaking tools.”

Law
At this stage, the Archaic Period, Roman law was simple, unwritten and largely based on the customs and
religious norms derived from the Roman ancestors. It was largely administered by the priests, the
pontifices. Thus customs founded on general consent were the basis of laws. When new laws were
proposed these were prepared by the king, usually on the advise of the pontificate, (religious figures drawn
from the patrician order) and were generally to confirm, add or modify rather than supercede the gentile
customs. The cornerstone of the law were mos maiorum (customs of the fathers/ ancestors.), which was an
unwritten code a good Roman citizen was expected to abide by. They were similar to Bantu value system
of Hunhu – Ubuntu. Slaw regulated very few aspects of real life and were largely derived from these. Some
of the more important of these mores were:
 Fides – meaning good faith, truth, honesty and trustworthiness, hence bonae fidei, or an act or
contract done in good faith, as for instance an oral contract. Fides, the goddess of good faith
presided over verbal contracts.
 Pietas –the Roman attitude of dutiful respect towards the gods, fatherland, parents and kinsmen.
 Religio and Cultus – represented the tie between the gods and mortals. It meant to have the
respect, awe a nd obligations to the gods though religious observence. Cultus was the obligated
performance of rituals to the gods.
 Disciplina –referred to education, self-control and discipline. It was presided over by he goddess,
Disciplina.
 Gravitas and Constantia – referred to dignified self-control in the face of adversity and
perseverance.
 Virtus – referred to the ideal of the true Roman male who knew what was good, evill, shameful or
dishonourable.
 Dignitas and Auctoritas – This was the end result of displaying the values of an ideal Roman
citizen in the public and private spheres. Dignitas referred to a reputation for honor, esteem and
worth for complying with his duties and obligations to society and the gods. A person who earned
this status had auctoritas, that is prestige and respect.

The law based on the personality principle whereby civil law, ius civile, applied only to Roman citizens
whereas plebeians could only use, ius gentium, international law. The most valuable forms of property such
as land and cattle rustic servitudes, known as res mancipi, could only be acquired and transferred using
Roman civil law modes of transfer. This meant that this property was only available to Roman citizens
with non-Roman citizens restricted to res nec mancipi. This limited the capacity of such working people
from accumulating wealth at the same level as Roman citizens. Their exclusion from service in the army
also led to the same result as they could not share fromt he spoils of war. Also a Roman marriage could
only be entered into by Roman citizens who alone had uis connubium. The clear class character of the law
as instrument of the patrician ruling class was shown in its first codified version in th Twelve Tables
concerning laws on debtors who, if they failed to pay off debts could be sold off into slavery or put to death
(Table III.1), prohibited marriage between patricians and plebeainas (Table XI.1) and declared women as
perpetual minors, (Table V.1).

Thus the class basis of the state and law as instruments of class rule were quite manifest right from the
emergence of the Roman state. Indeed to safeguard the class monopoly of power of the patrician class,
Roman family law, prohibited inter-marriage between the patrician and plebian classes.1 The patrician order

1
Compare this with the Immorality Suppression Ordinance No. 9 of 1903 and the Education
Ordinance No 1 of 1903. In terms of the former consensual sexual intercourse between black
males and white females was prohibited, with such offence punishable by mandatory jail

M Gwisai HRRDL No. 4, Roman Constitutional History 2018 Page 4

also had what was known as esprit de corps, which included the practice of inter-marriage amongst
themselves. At the same time, the patriarchal character of the state and law were manifest right from the
start of the Roman state expressing the emerged domination of women by men at the end of gentile society
that preceded the rise of the Roman state. However , at this stage Roman women still retained a degree of
respect as reflected in the naming of the thirty curiae after the thirty Sabine women whom legend stated had
stopped the war between the Latins and Sabines and led to the emergence of the first Roman state under
Romulus. The State and law were also deeply rooted in religious norms which were used to disguise and
legitimise the rule and power of the ruling classes.

Development of the Roman monarchy into the Monarchical Dictatorship

The period of monarchy lasted up to the 6th century B.C. with a total of seven kings. The first four kings
were elected and non-hereditary. The period of the monarchy lasted from 753BC - 509BC with the
following kings: (1) Romulus;(2) Numa Pompilius; (3) Tullus Hostilius; (4) Ancus Marcius; (5) Tarquinius
Priscus; (6) Servius Tullius; and (7) Tarquinius Superbus.
The last of the period with the reign of the last two kings saw major transformation of the Roman
state, from the primitive military democracy to the monarchical dictatorship. A new constitutional
framework emerged which saw changes in the character of the state, especially under the reign of Servius
Tullius. The new constitutional set up was as follows:

Rex

Senate Comitia Centuriata

Comitia Curiata

There were several reforms that were introduced under the Servirian Constitution. The main objectives of
the reforms were dual: one, to preserve the domination of the state by the patrician order, but maintaining
social order by conceding some political role to sections of the hitherto excluded plebeian order; and two,
to strengthen the state through centralisation of power in the king and reducing those of the patriarchs or
senate.
These objectives were achieved through various reforms. The first was the creation of the Comitia
Centuriata, which came to replace the Comitia Curiata as the popular assembly and which shared some of
the powers of the Senatus in particular approval of new laws. The Comitia Curiata was reduced to a
ceremonial role.

Unlike the Comitia Curiata, which was based on the pre-existing primitive communist gentile structure of
Rome, the Comitia Centuriata reflected changes that had emerged in Roman society under the slave mode
of production. Its composition was based on the geographical, military and class divisions of Rome. The
population was divided into six classes, according to a valuation of their wealth, but all citizens, whether
patrician or plebeian were granted the right to vote, but only through military companies of a 100, or
centuries. The wealthy classes had a total of 98 centuries, whilst the combined classes of the rest of society
were 85. The top layers now included the wealthiest sections of plebeians who had prospered with the
development of Rome, even if the patrician class remained the senior section. Voting was by century and

sentences. Under the later government funding for education in urban areas was restricted to white
children, for whom attendance at school was compulsory, whilst state funding for blacks was
restricted to partial and minimum subsidies only to rural mission schools whose syllabus was
required to ensure that “pupils are systematically taught habits of discipline, cleanliness and
industrial work.”

M Gwisai HRRDL No. 4, Roman Constitutional History 2018 Page 5

by order with the top two layers voting first. Once a majority of the top orders had voted for a motion, the
voting ceased, meaning the lower orders did not get to vote. Thus although the right to vote and participate
in public affairs had been extended to greater numbers of the free population – this was illusory for political
power remained in the hands of the wealthiest class, even if its composition was undergoing change. The
Comitia Centuriata remained an organ of class domination.
At the same time the new constitution strengthened the power of the king viz the patriarchs, even if overall
state power remained in the hands of the patrician order. The Comitia Centuriata could only be convened
by the king who also set the agenda of its meetings. Thus the power of initiating political and legal change
lay in the hands of the king, who had entered into a tactical alliance with the wealthier sections of the
plebeians at the expense of the patrician order. Unlike the consensual and consultative rule of the earlier
kings, (within the patrician order) the king now enjoyed the power of command – or imperium. Originally
frommilitary terms, referring tot he power of the IMPERATOR (general in the army) to command. Derived
from IMPERARE (to command) hence subsequently Eng word – EMPEROR. This is why it is referred to
as monarchical dictatorship.

There were several factors behind the changes in the Roman monarchy. Firstly was the effect of wars and
economic development. War became a primary instrument of economic activity for Rome, besides the old
pastoral – agrarian activities. New technologies and systems in warfare were developed in the 6th century,
which greatly expanded the predatory role of the Roman state. Because of growing wealth from wars that
were fought by Rome, initially within Italy, there was a growing tendency of strong, central power in the
state, i.e. the king, who with his closest commanders, were the principal beneficiaries of the loot of war.
This led to growing tensions and struggles within the political ruling class over the organisation of the state.
At the same time sections of the plebeian order, especially those engaged in trade and crafts witnessed
immense growth in their economic power as Rome underwent rapid economic development. On the other
hand sections of the old gentes suffered economic decline if not ruination under the changing society, and
were resentful. To wage successful wars, on whose loot and slaves, the Roman state was increasingly
reliant, the king required a strong state, and the contribution and support of the rich plebeians became
essential. The new Servirian constitution gave effect to these changed needs by granting a political role to
the plebeians and centralising greater power in the hands of the king, as the political representative of the
patrician class.
Not surprisingly the patrician class resisted these attacks on its traditional power and authority. Initially this
involved the assassination of Servius Tullius. With no change with his successor, Tarquinas Superbus (The
Proud), the patricians, in 509 B.C. led by Brutus overthrew the king and abolished the institution of the
monarchy, to replace it with a new form of state – the republic, under which they sought to restore
democratic patrician rule but still guarantee a strong state, militarily and economically as well as keep the
lower orders subordinate. The name of monarchy, then became associated with INFAMY or ODIUM , that
is infamous.
It can therefore be said that intra-ruling class struggles in response to changes in the economy and pressures
from a new emerging economic class had played the decisive role in the transformation of the Roman state.

THE ARISTOCRATIC REPUBLIC

This ran from the 6th century BC to 2nd century AD. During this period the Roman city state underwent
immense development from the city state to a national state covering most of present Italy. Here the ruling
class developed within itself a democratic process of political administration primarily for its own interest.
Yet despite the overthrow of the monarchy, the challenges that had confronted the patrician order in its late
stages, namely how to accommodate the newly emerging economic class of wealthy plebeians, continued
and accelerated, as more non Roman peoples were added to the growing Republic. This forced further
transformation in the nature of the ruling class and the political organs of the state as well as the law. At the
same time the massive growth of the slave class led to growing slave revolts and uprisings sometimes
joined by the poorer peasants and free Romans, undermining the ruling class domination of the state and
law. The constitutional framework of the early Republic was organised thus:

Executive / Judicial Authority Legislative Authority / Popular Assemblies

MAGISTRATES ASSEMBLIES
 Consuls (x 2) * Senate

M Gwisai HRRDL No. 4, Roman Constitutional History 2018 Page 6

  Praetors * Commitia Centuriata
 Quaestors * Comitia Tributa
 Censors * Comitia Curiata
 Tribunes
 Aediles

Under the new Republican constitution, the objectives of the patrician ruling class, which at that stage
constituted less than ten percent of the Roman population, were dual: firstly ensure a strong state, militarily
and economically, capable of countering internal and external enemies but a strong state under the control
and domination of the patrician order – a situation that had increasingly come under threat in the later years
of the monarchy; and secondly, create intra-ruling class systems of checks and balances to ensure that no
one person, family or section amongst the patricians may monopolise the state thereby leading to abuse at
the expense of the rest of the patrician order, as had happened under Servious Tullius, in other words
prevent the emergence of monarchical dictatorship or tyranny.

These objectives were achieved through several means: Firstly through a system of public officials
(magistrates), responsible for the executive decisions of the state, with a sophisticated division of functions
between different officials. Secondly, patrician ruling class domination was ensured by initially confining
eligibility to the public offices solely to members of the patrician order. Thirdly to counter the potential
tendency towards abuse and concentration of power amongst executive officials, the Roman aristocratic
ruling class developed two key principles: the principle of collegiality or multiple exercise of office and
power and the principle of brevity and limitation of tenure of office. Finally the power and role of the
Senate was strengthened as a monitor or supervisor of executive authority as well as in the approval of
laws, whilst its exclusivity was ensured by its esprit de corps, inter-marriage and prohibition of extra-class
marriages. Thus the system ran as follows:

CURSUS HONORUM

Was e sequential order of public offices held by politicians in the Republic and early empire. Comprised of
a mixture of military and political administration posts. Each office had a minimum age of election. Offices
normally held by patricians and certainly excluded plebeians –originally but with development of Roman
state eventually included the plebeian novus homunes... eg like Cicero.

Cursus honorum started with ten years of military duty in the Roman cavalry (the equites) or in e staff of a
general who was a relative or a friend of e family. Around 20 years cd be elected a military tribune.

Consuls 509 B.C.

The role and powers of the king were substituted by two public officials or magistrates, who were elected
annually – these were known as Consuls or consules, meaning colleagues. They were elected by the
Comitia Centuriata but from a list proposed by senate from its ranks, which increasingly and exclusively
became within a very small inner ring of the patrician families. The consuls shared the previous powers of
the king – the imperium, such as command of the army, authority to convene the popular assemblies and
there propose bills to be voted on. However, because the consuls had co-equal power, each entitled to place
a veto on the proposed conduct of the other, they would be forced to govern in consultation with another
and thereby prevent personal dictatorship. Further their title (derived from consulere: to consult) also
indicates that they were bound by the convention of consulting the senate on major issues. The consuls
were however, not conferred with the religious powers of the former kings, which fell under the Pontifex
Maximus who headed the priesthood, which was in turned controlled by the patricians. In times of acute
security emergency, such as national wars or major class uprisings the democratic, the consultative and
collegiality principles were superceded with the consuls empowered to nominate one person with supreme
and undivided imperium. Such a person was called a dictator. But to protect the overall democratic basis of
the state, a dictator could only hold office for a maximum period of six months. Dictator had 24 lictors
outside Pomerium and 12inside and dictator’s lictors carried axes within the Pomerium because dictator
could enact capital punishment within Rome.

M Gwisai HRRDL No. 4, Roman Constitutional History 2018 Page 7

IMPERIUM distinguishable from REGNUM , which royal power –which was inheritd. IMPERIUM shown
by two main things: a curule magostyrate carried an ivory baton surmounted by an eagle as a personal
symbol of office (eg Kaunda’s handkerchief?? Nyerere’s baton??); Secondly escorted by a number of
bodyguards dependin .g on rank – LICTORS. These carried FASCES (bundle of sticks representing
power and authority) when outside Rome or inside the PROMERIUM. But when outside added axes to the
fasces. Axes represented magistrate’s powers to enact capital punishment when outside Rome –only
exception was the DICTATOR whose lictors carried axes within Rome, because a dictator entitled to carry
out capital punishment in Rome. In the field a magistrate of praetor and above carried a sash. Also a
magistrate with imperium entitled to e curule chair.

With the growing weight of state business and with consuls continuously engaged in the wars of
accumulation, a further sub-division of executive authority to lower public offices by the consuls developed
over the next several centuries. The magistracy was an honos – an unsalaried office, meaning only the
wealthier classes could access them. These were in order of importance: praetors; quaestors; censors;
tribunes and aediles. The first three were initially reserved for members of the patrician order, whereas the
last two were subsequent offices that emerged independently from the plebeian order and only received
subsequent legal recognition. They were constituted at different times, between the 5th century B.C. and the
3rd century B.C. By 250 B.C. the executive or public office structure of the Republic was as follows:

Magister equitum ( the dictator’s deputy) 6 lictors

Praetors: (from 367 B.C.): These were elected annually and exercised the judicial functions previously
exercised by the consuls, especially civil process. In such functions they enjoyed imperium. There was a
praetor who dealt with litigation of citizens (praetor urbanus) and who was the senior, and a junior one who
handled litigation of non-citizens – the praetor peregrinus. They also had authority to convene the
Commitia Curiata. Here we see the emergence of the judicial arm of the state. Later such senior magistrates
could be appointed governors of newly acquired provinces as pro-consuls. Entitled to 6 lictors (2 within the
pomerium)

Quaestors: ( quaestores - from 447 B.C.). Age – at least 30 years but could subtract two years if of patrician
rank. These were also elected annually to supervise the state treasury or 2nd in command to a governor in
the provinces or pay master of a legion. Su[pervised public games. Originally they were two but eventually
20. Allowed tear toga praetexta but did not have imperium or escorted bylictors. This starting position.
After 80BC election to quaestor brought automatic membership SENAE.

Censors: (censores from 443 B.C.). Two were elected every five years but in practice served only for 18
months (an excerption to the one year brevity and limitation of tenure principle). Initially they took over the
role of the consul of compiling the census on the basis of which the citizenry was divided into tribes -
tribus (now geographical) and centuries and the military role of each of its members. They became
increasingly very powerful officials with more powers, e.g. to de-rank a person or remove them from a
tribe; they made the contracts under which state revenue was raised by tax-farmers; let out public land drew
the contracts for public works such as roads, and after 312 B.C. became responsible for the selection of
new members of the senate.

Curule Aedile (aedilis curulis) – had 2 lictors. But the plebeian aedile (aedilis plebis) did own imperium
and therefore had no lictors.

POPULAR ASSEMBLIES
The principal assemblies under the Republic were a retention of the ones under the monarchy but
significantly modified. These were, in the early stages of the Republic – the comitia centuriata, the comitia
tributa, and subsequently the council of plebeians – the concilium plebis.

Comitia Centuriata

M Gwisai HRRDL No. 4, Roman Constitutional History 2018 Page 8

This became the politically most important popular assembly as the Comitia Curiata went into oblivion. As
under the Servirian Constitution, one of its main roles was in law-making. Its laws, called (leges), were
statutes that bound the whole citizenry. It was the final court of criminal appeal in terms of capital
sentences; it elected the magistrates with imperium – the consuls and praetors. It could only be convened
by a consul. However, under the Republic it increasingly came under subordination of the Senate.

Comitia Tributa
This was a new popular assembly created and based on the new tribes of Rome which were based on
geographical / residential rather than the original ethnic tribes. There were originally 20 (with 4 being in the
actual city) but eventually reached 35. It could be convened by either consul or praetor. It elected lower
public officials like the aediles and quaestors; had criminal appeals of a certain level; and enacted some
leges, although not of a considerable extent. Although more democratic in its composition, the comitia
tributa suffered an inferior status to the ruling class dominated comitia centuriata and Senate. Moreso under
the clientele system, both popular assemblies suffered from the influence of the patrician families due to the
patronage system.

Concilium Plebis
This was the assembly of plebs alone which met by tribes. It was convened by a magistrate of the plebs, the
tribunes. It had a legislative function. Initially its legislation, plebiscita, applied to plebeians alone.
However in the later part of the Republic, its laws applied to all citizens subject to patrician Senatorial
ratification. Following the lex Hortensia of 287BC, the need for patrician approval was removed, and it
became the usual platform for passing laws,

SENATE
This became the most powerful institution under the Aristocratic Republic, even if in theory it was not a
legislative body but a mere consultative body as under the monarchy. No legislation passed by any of the
popular assemblies was operative without ratification by the senate as a whole or its patrician members:
(patrum auctoritas); before a proposed bill / measure could be put to an assembly, senatorial approval had
to be acquired first – hence the senate had the power of surveillance of the legislative proposals of the
magistrates; the senate allotted the magistrates their spheres of activity (provinciae) and extended their
imperium as pro-consuls in the territorial provinces; the senate had control of public finance and revenue; it
conducted foreign affairs – it declared war and peace, received ambassadors and made treaties in the name
of the Roman people; and finally the senate established the convention, that consuls would nominate a
dictator only on its suggestion and, by a resolution of last resort (senatusconsultum ultimum), could charge
the consuls to “save the Republic” – i.e. giving them dictatorial powers after the dictatorship fell into disuse
after the Second Punic War. Its composition was constituted by two layers: firstly were the patrician
senators, i.e. from the original leading patrician families, which was the more senior, and subsequently
added by former senior magistrates such as ex-consuls and praetors. The consuls were much more
dependent on the Senate than the earlier kings: the brevity of their tenure of office and the process of their
nomination from the senators, prevented them from acquiring the experience that a life monarch or a life
senator would have had.

Subsequent development of the Republican state

Developments in the state and law during the Republican period may be explained at different levels.
Changes in the early phase are largely explained by class struggles amongst the free citizenry, i.e. pitting
the plebeian classes against the patrician classes, in what were termed the Conflict of Orders in the first two
hundred or so years of the Republic. What aggravated these struggles was the serious economic decline in
this period especially commerce and industry, whilst there were recurring famines and wars with
neighbouring city states, which were not always successful. The expansion of the Roman city state into a
bigger political entity covering the whole of Italy also raised tensions, in so far as the early Republic
constitutional framework was not designed to regulate such a bigger entity. Subsequent developments in
the Republic are explained by the transformation of the class struggle to a higher plane, with the chief
contradiction becoming between the paticio – plebeian ruling class and the slave class, often supported by
the poorer layers of the plebeians. Conflicts over usury debts were a key feature of these conflicts. To quote
Marx –

M Gwisai HRRDL No. 4, Roman Constitutional History 2018 Page 9

 “The class struggles of the ancient world took the form chiefly of a contest between debtors and
creditors, which in Rome ended in the ruin of the plebeian debtors. They were displaced by
slaves.” 2

The form of the early struggles took the form of general strikes by plebeians, whereby the plebeians
withdrew their economic and military services from Rome and threatening to secede from Rome, the
SECESSIO. There were about five of these during the Republic with the first one occurring in the late 5th
century and are sometimes referred to as the struggle of the orders.
The economic difficulties in the first century of the Republic hit hardest the plebeian classes, many of
whom were forced to mortgage their small plots of land to richer members of the ruling class to raise loans.
On failure to pay they lost their lands, became clients of the richer families or even sold into slavery. The
laws of usury were very severe including granting the creditor the right to take the life of an insolvent
debtor in the last instance. At the same time the growing wars of accumulation placed a growing burden on
the lower classes. At the same time participation in the wars increased the political consciousness of the
plebeians. At Rome initially, plebeians organised themselves around the Market at Aventine Hill, organised
around the market wardens – the AEDILUS. Their leaders came to be known as TRIBUNES. The plebeians
took oaths – the LEX SACRATA -to protect their leaders from punishment or elimination by the patricians
as at such stage the tribunes were not recognised in law. Thus the person of the tribunes was SACRO
SANCITUS – anyone who harmed a tribune was liable to death. One of the main functions of the tribunes
was to protect plebeians from oppressive and arbitrary measures from the magistrates. The plebeians
developed their own assembly – the CONSILIUM PLEBIS TRIBUTUM – which was convened by the
tribunes. This power was called the COERCITIO. It was initially exercised without legal recognition, but
with the intensification of class struggle the plebeian assembly was recognised by Rome through the LEX
PUBLILIA (471 B.C.).
The aristocratic revolution had sought to circumscribe the growing political role of the richer plebeians –
the NOVUS HOMINES – that had emerged in the late stages of the Monarchy. Such marginalisation had
driven the upper layers of the plebeians into alliance with the lower layers in common revolt against the
patrician order – a thing that the Sevian Constitution had tried to forestall by granting some concessions to
the upper layers of the plebeian class – i.e. co-opt them as junior partners of the patrician ruling order. The
failure of the early Republican constitution to accommodate the emerging plebeian nobility drove them into
alliance and leadership of the general plebeian class including the secessios, moreso given the greater role
in military affairs that they now played. The result of these struggles led to major changes in the
Republican constitution. Some of the major changes included:

a. Codification of Roman law, through the Twelve Tables. One of the main demands of the plebeians
was to the removal of uncertainty, arbitrariness and oppression of the laws – as applied by the
patrician magistrates in alliance with the pontificate college. This was especially so in relation to the
harsh treatment of debtors under the usury laws. Following the first secessio, Roman law was
codified in what became known as the Twelve Tables. This was a summary of Roman law up to
date, with minimum modifications. Some of the main features included:
a. right of appeal of plebeians in criminal matters to the popular assemblies.

b. Legal recognition of the consilium plebes and the tribunes. After second secessio in 449B.C. under
the VALERIO HORATIAN LAWS, the resolutions of the Consilium Plebis were given the force of
law, and called PLEBISCITA. By the 3rd century B.C. the Consilium Plebis had become the
principal law-making assembly.
c. Enhancement and legal recognition of the office of the tribune. Through the LEX HOATANSIA, the
person of the tribune became SACRO SANCITUS, i.e. anyone who harmed tribunes liable to death.
d. Opening up of the magistrates offices to plebeians. Plebeians could become military tribunes and
they became eligible for the office of questors and censors. In 445 B.C. the prohibition of inter-
marriages between classes was removed, allowing plebeian penetration of the patrician order.
e. Following the 3rd secessio, further major developments took place, including:
a. promulgation of laws against usury.

2
K Marx, Capital, Vol 1, p. 135.

M Gwisai HRRDL No. 4, Roman Constitutional History 2018 Page 10

 b. land – holdings in public land were reduced to a maximum of 300 sesteres, thereby
realising more land to plebeians, as well as a cap on the number of livestock on public
livestock per family.
c. the consulship was opened to plebeians.
d. dilution of the PATRUM AUCTORITAS – whereby previously the patrician senators
exercised veto power over proposed measures / bills by magistrates, now the magistrate
could get such power before deliberations.

Thus it is clear that despite the original intentions of the Republican aristocrats to monopolise state power,
class struggle with the plebeians, resulted in them being forced to concede significant reforms to the
plebeians, in particular the novus homunes. This resulted in significant changes to the character of the state
and law, including the first codification of Roman law. The result of this was the emergence of a new type
of ruling class, constituted of the old patrician layer and the emerging economic order of the upper
plebeians, the novus homunes. Thus the old plebeian inter-class alliance was broken as the upper layers of
the plebeians were co-opted into the old ruling class, to create a new ruling class – the Paticio – Plebeian
nobility, hence the removal of the ban on inter-class marriages. 3 This development led to the relative
stabilisation of the Republic and its expansion through a series of wars of accumulation, starting with the
conquest of the whole of Italy. Subsequently the Roman state expanded to include the conquest of Gaul and
other parts of Western Europe, west and east, Asia Minor, the Middle East, North Africa including
Carthage and Egypt.

Fall of the Republic

The Republic was to fall in the later part of the 1st century B.C, to be replaced by the imperial state,
decisively in 27B.C. when Augustus introduced the Principate Constitution. This followed an intense
period of almost a century of intense instability characterised by intercine civil wars and class struggles in
which the military/the generals came to play the decisive role in Roman political life as Republican
institutions were subverted.

Two inter-related factors were primarily responsible for the demise of the Republic. On the one hand was
the degeneracy of the ruling class as Rome became an empire. The institutions of the Republican
Constitution were suitable for a city state or something slightly bigger, but became completely inadequate
to deal with the challenges of the huge empire that Rome had become. For instance it physically became
impossible for popular assembles to meet. As the wars of accumulation continued the role of the generals
who led such campaigns, such as Lucullus, Pompey, Grassus and Ceasar came to accumulate considerable
power and wealth. They aligned with factions of the political class. This led to the militarisation of political
conflicts leading to civil wars in which the military commanders became the final arbitrators. However,
decisive in this process of the growing tendency towards military dictatorship was the new level – type of
class struggles that engulfed Rome, namely the uprisings of the slaves. By the 1st century B.C. the slave
more of production had become the dominant form of labour in Roman society. Production was based on
large estates, latifundias, employing thousands of slaves, who suffered severe levels of exploitation and
oppression. Such slaves had no inherent interest in the expansion of production but instead worked under
the of force of the whip. In periods of acute famine or economic recession when oppression became
intolerable slaves would rise up in revolt. Increasingly though such slave revolts were joined by the poor
plebeians and colonii or oppressed and subordinate nations in the empire. The break-down of the plebeian
inter-class alliance greatly aided such process. Further the very mode of production of slavery itself pushed
the free but poor citizens towards revolt. They could not compete with the large scale production of the
latifundias based on cheap slave labour driving many of them into ruin, losing their lands to mortgagors for
bed debts or sold into slavery. Thus slave revolts increasingly became the biggest threat to the Roman
ruling class, with the biggest revolt in 72B.C. led by Spartacus, which was only crushed after an immense

3
Compare with emergence of a new post-colonial ruling class after the post 2000 Fast Track Land
Reform Programme in Zimbabwe – i.e. an alliance between the remaining old landed Rhodesian
settler ruling class, foreign capital and the newly propertied black ruling class farmers. See, Moyo
S. “Three decades of agrarian reform in Zimbabwe”, [Reader 1, pgs 232-235]. Also, N. Manheru,
“Spit out the MDC within US” – The Herald, Saturday 11 October 2006.

M Gwisai HRRDL No. 4, Roman Constitutional History 2018 Page 11

and long military campaign. Growing centralisation of power in the military and subversion of the
democratic institutions of the Republic became the dominant character of the Republic in its last days, as
the Roman ruling class tried to counter the growing threat to its power and rule by the slaves and poor
peasants. In 50B.C. three of the most powerful generals established a triumverate of consuls, Pompey,
Ceasar and Crussus. This subsequently collapsed in civil war with Ceasar emerging as the new undisputed
supreme military and political leader of Rome. Ceasar was subsequently assassinated in 44 B.C. by
Republican faction led by Brutus. This was followed by another triumvrate composed of Octovius Ceasar,
Mark Anthony and Lepidus. This lasted for ten years but again collapsed in civil war, which was won by
Octavius Ceasar in 31B.C. who became the supreme authority of Rome, establishing a new constitution in
27 B.C. the Principate, which in fact heralded the end of the Republic and establishment of a new state
system.

PRINCIPATE

Although he now had supreme authority, Octavius Ceasar was keenly aware of the strong Republican
impulse of the Roman ruling class and its abhorrence to monarchical dictatorship which had led to the
assassination of Ceasar, even as he recognised the need for a strong state to deal with the growing threats,
internally and externally to the Roman state. To deal with these dual competing pressures he devised a
constitution which on the one hand preserved in form the democratic institutions of the Republic, whilst in
substance centralised real power in his hands, in a manner similar to the monarchical dictatorship.
Thus he was referred to as PRINCEPS SENATUS (first member of the senate). In form no changes
were made to the doctrine of popular sovereignty though assemblies, which continued with their law –
making functions. But in reality this increasingly became mere ratification of the de facto emperor’s
wishes. The election of magistrates passed from the popular assemblies to the senate. But the senate in turn
came under the direct control of the emperor as he exercised decisive control over its composition through
his censorial powers. By virtue of these powers the emperor could not only remove members of the Senate
but he could also grant membership to the Senate directly. 4 Augustus assumed the power to make peace
and war as well as the judicial functions that used to be exercised by the popular assemblies, such as being
the final criminal court in matters involving capital punishment. The Senate lost control of foreign policy
although the emperor might ask it to perform ceremonial functions from time to time. 5
So far as state administration was concerned, the Senate continued to exercise the general powers
of supervision, but now subject to the Emperor’s wishes. The Republican hierarchy of magistrates was
retained but like the rest of the Republican machinery, it now functioned mainly as a non political side of
government. In fact, increasingly, its functions were superceeded by the new Imperial Civil Service, which
grew up around the imperial administration and made up of paid professionals.
The consulship still remained but it became a mere titular office with no political consequence.
The emperor also conferred on himself the title and power of tribune.

Augustus’s political strategy was based on three platforms:

a. He reserved for himself the military power and control over the foreign policy of the empire;
b. He reserved for himself overall power of general supervision over the whole civil administration of
Rome and the empire, including supervision over development of the law;
c. He left the details of civil government to members of the nobility whom he employed as public
servants.

4
Compare and contrast with the powers of the executive president to appoint members of the
National Assembly under Constitution of Zimbabwe Amendment (No 7 ), 1987 and under s 34
(1) (d) of the Constitution as read with s 7 of the Constitution of Zimbabwe Amendment (No 17),
2005 and s 38 (1) (d), with the powers of the prime minister and president under the Constitution
of Zimbabwe, 1979.

5
Compare with s 31H (4) and s 31I of the old Constitution of Zimbabwe on the executive functions
of the President and the prerogative of mercy. See sections 104, 107, 108, 109; and sections 110
to 113, Constitution.

M Gwisai HRRDL No. 4, Roman Constitutional History 2018 Page 12

Social basis
Augustus’ power was based on the political support of the Roman higher and lower nobility. For political
purposes there were two important orders – the Senatorial Order and the Equestrian Order, both of which
were based on wealth. To belong to the first group one had to have a property qualification of at least one
million sesteres. The Senatorial Order was occasionally augmented by the exercise of Augustus’ patronage,
with certain persons nominated by the emperor to the order. It included surviving layers from the old
governing families of the Republic, but from Augustus onwards was drawn from a far wider area than that
of the Republican nobility and was continuously replenished by the novus homines.
The Equestrian Order was the second highest social class in Rome. To be a member the property
qualification was ½ million sesteres.
It was from these two orders that both the political and military leadership of Rome was derived from
whilst public offices were their exclusive domain. This ensured general support of the economically
dominant class of the new political order, which in turn guaranteed political stability including effectively
suppressing revolts from below.

Constitutional innovations
Ruling class acquiescence was also achieved through the nominal sharing of power with Senate, which
diluted Republican impulses amongst members of the patrician order. Augustus allowed Senate, the
supervision of Rome and Italy and half of the empire’s provinces, whilst he himself directly supervised the
other half of the empire. The Senate was also granted judicial functions, e.g. jurisdiction over political
crimes and those in which senators were involved.
The real key to the autocratic powers that Augustus enjoyed lay in the nature of his prerogatives (exclusive
sphere of powers). These included:
a. IMPERIUM PROCONSULARE (power of the consul). Under this power, Augustus had authority to
exercise ultimate control of the provinces, were the bulk of the army was stationed, especially key
provinces like Egypt and Syria.
b. TRIBUNICIA POTESTAS. The full powers and prestige of the tribunes were conferred on Augustus,
i.e. his person became inviolable - SACROSANCTITAS, so that any indignity offered to him could
be treated as a crime6 – he was the overall protector of the masses; had power to convene Senate;
present legislation and exercised directly or indirectly criminal jurisdiction;
c. IMPERIUM PRO CONSULAE MALUS. This power allowed Augustus to exercise superior control
over the entire imperial administration including the areas under the Senate. It also gave him
complete command of the entire imperial army. The princeps assumed power to hear final appeals
from decisions of magistrates in special tribunals.
d. Right of nomination to magistracies. Augustus had power to appoint all the magistracies, giving
them to members of the two top orders, as part of patronage. 7
e. Control of foreign policy. Augustus had overall control over all matters connected with foreign
nations, and the Senate only acted with his consent or authority.8
f. Augustus also appointed the Pontifex Maximus, i.e the chief religious figure of the empire. Future
emperors in fact assumed the post of the Pontifex Maximus.

Imperial Executive
The Republic had no bureaucratic apparatus of running the State. Augustus developed an imperial civil
service of personal advisors who became paid, professional and permanent administrators. The major
imperial officials were the PREFECTS. For instance the PRAEFECTUS URBI who was the prefect of the
city of Rome and who became the chief criminal court of Rome; and the PRAEFECTUS PRAETORIO – the
commander of the imperial body-guard (the praetorian guard) – who was also the emperor’s chief of staff,

6
Compare with s 98 Constitution.

7
See by comparison – sections 31G, 31H (4) (5), s 74, s 76 (1), s 77 (1), s 78, s 84 (1), s 93 (1), s
96 (4)old Constitution of Zimbabwe AND NOW section 110 (2), s 180, s 202, s 204, s 205, s
213, s 216 (2), s 237 Constitution.

8
Compare with s 110(2); s 111, s 327 Constitution.

M Gwisai HRRDL No. 4, Roman Constitutional History 2018 Page 13

chief advisor and executive officer in civil and military matters and assumed judicial functions as well.
Augustus also developed a secretariat who served as accountants and secretaries, usually former slaves.
This secretariat discharged a whole range of public duties and indeed formed the nuclei of a large and
important branch of the executive. In financial matters Augustus had an imperial treasury or FISCUS /
PATRIMONIUM, with he was able to pay the civil service and army.

From the Principate to the Dominate

Augustus Caesar was in power for about 40 years, in which period he consolidated the rule of the Roman
ruling class, successfully crushing slave revolts and also secured the borders of the empire from foreign
barbarian attacks.

Augustus also used the political technique of granting privileges of autonomous and indirect rule within the
traditional leaderships of the various provinces of the Empire. This secured for him political legitimacy and
eliminated potential sources of anti-Roman uprisings.
So successful was he and his immediate successors over the next two hundred years, in their military and
political control of the empire that peace and prosperity were there throughout the empire. This period is
known as PAX ROMANA (Roman Peace).

The growing prestige of the emperor made Octavian both a political and religious head. The emperor was
seen to enjoy AUCTORITAS – supreme political prestige and charisma. Octavian was given the name
AUGUSTUS – meaning grandeur and majesty as well as holy and worshipful – just as the earlier
monarchical dictators. This served with time to further relegate the Republican institutions into oblivion
and to strengthen the centralised power of the Emperor. The worship of the emperor also had the tendency
of universalising the empire. With time official positions and citizenship was made open to non-Romans.
This meant that Roman citizenship, ultimately did not as in former times, depend upon Roman birth. Thus
prominent official positions were held by Africans, Greeks, Asians, Seminetes and Europeans. In the later
period after Augustus, even Rome ceased to be the centre of the empire when Constantine established the
capital of the empire at Constantinople. In 212AD Emperor Antoninus Caracala decreed by edict the
extension of Roman citizenship to all free members of the Empire. This reflected the climax in the
development of the Roman state, namely the emergence of a supra-national world empire from the first city
state.

However, by the end of the 2nd century AD, the empire was engulfed in numerous military, economic and
social crises, that were threatening the very existence of the empire. Externally there were growing attacks
from tribes at the frontiers of the empire, whilst internally economic recessions hit hardest the poorer
plebeians driving them into revolts, in conjunction with slave revolts. Such crisis ultimately emanated from
the fundamental contradictions of a system of production based on slavery --- its brutality drove the slaves
into revolt whilst productivity reached a climax given that slaves had no inherent interest in maximising
production, whilst the large scale production based on cheap labour brought constant ruination to the
peasantry and the need for slaves drove the state into continous wars to get slaves besides throwing more
sections of economically ruined plebeians into slavery.

The Principate also suffered from lack of a clearly defined structure of succession, given that although it
was a de facto autocracy, it still retained in form the institutions and characters of democracy of the
Republic. Initially the emperor would designate and adopt a successor, who would be trained from a young
age in the duties of the emperor. However, in the later years of the principate, as economic and political
crisis grew, such system collapsed, bringing in great instability. As observed – “it was a monarchical
regime clothed in republican forms.” These contradictions were only resolved by movement into an open
and formal dictatorship based on the military, similar to the monarchical dictatorship, where the emperor
would exercise undivided and supreme authority. As in the later years of the Republic, the army again came
to play the decisive role in the political life of Rome, including in determining the succession of the princeps.

In 284 AD, Diocletian ascended the imperial throne and proceeded to establish a new state system based on “an
unconcealed and unlimited monarchy with a bureaucratic administration.” The predominance of Rome and Italy in the
empire disappeared, with the eastern Greek oriented half assuming increasing dominance. In 330 Emperor Constantine

M Gwisai HRRDL No. 4, Roman Constitutional History 2018 Page 14

founded a second imperial capital at Constantinople. This new system was distinct from that of the Principate.
Historians call it the DOMINATE (from dominus – Lord).

The Dominate was based on the open and undisguised autocratic power of the Emperor supported by a Senate
composed of his personal appointees and a well developed and structured civil service. The pre-eminance and
centralisation of power in the emperor was reflected in that the emperor was now revered as a god – who could only be
approached through elaborate ceremonies. This was accelerated in the 4 th century AD with the adoption under
Constantine of Christianity as the new official religion of the state. Whereas Christianity had arisen as an autonomous
and religion of resistance under the empire in the 1st century AD, it was now co-opted as a ruling class ideology in
which the church leaders were given a exalted position similar to the pontificate college in the Republic, in return for
their subservience to the emperor.

The popular assemblies were no longer in existence. Senate continued to play a residual if not ceremonial role and was
now based at Constantinople. However, the senatorial order continued to play the pre-eminent class role – and it was
from their ranks that the heads of the imperial army and bureaucracy were drawn.
The consulate was retained, but increasingly only in a ceremonial capacity. The actual administration of the empire lay
in the imperial civil service which had emerged in the principate. The civil service was based upon the recruitment of
life-long professional officials whose salaries were paid for by the emperor. At the top of the imperial administration,
which was divided into two for each half of the empire, were the MAGISTER OFFICIORUM (master of the offices).
This was the chief of the imperial secretariats, who supervised the division of the various imperial offices and also
acted as the Minister of Foreign Affairs. Second in importance was the QUAESTOR SACRI PALATII (magistrate of the
sacred palace) who was in fact the emperor’s Minister of Justice. He prepared drafts of laws and answers to petitions.
There were other prominent officials who belonged to the emperor’s Council of State, which advised him on matters of
administration, legislation and justice. In that way the Dominate achieved the separation of the civil service from
military command.

Law and Legal Developments

In the judicial area, knowledge and practice of the law also emerged as a distinct and specialised arm of the state
separate from the religious arms. The old divisions of the law were destroyed, such as the distinction between the IUS
CIVILE and IUS GENTIUM, or between CIVIS and PEREGRINUS, since every free inhabitant of the empire was now a
citizen, subject to the same “Roman law.” This was achieved through the works of jurists who received special
recognition under the Dominate.

Jurists had emerged towards the end of the pre-classical period as lay persons specialised in the knowledge of the law,
who whilst drawn from the patrician order did not belong to the pontificate college. They were called
IURISPRUDENTES (those possessing knowledge of the law) or IURISCONSULTI (those consulted concerning the
law). They had three main functions, namely:
a. were consulted by magistrates and judge (IUDICES) to give opinions on questions of the law (RESPONSA)
as well as individual litigants or as purely hypothetical legal problems;
b. assisted litigants in the procedure of actions before the courts (AGERE) – jurists did not argue cases in the
trials – this was done by ORATORS; drafted legal documents such as contracts and wills to guard against
future eventualities (CAVERE); and
c. wrote summaries or textbooks on the law and undertook the legal education of students, who were taken as
apprentices living with the jurist’s family.

In the pre-classical period jurists were not paid and were only part-time, seeking to get into higher public office. Their
opinions whilst highly respected, were not binding. But by the 1st century B.C. specialisation emerged as jurists
withdrew from politics. Legal developments rapidly expanded in the classical and Dominate periods. Augustus granted
certain jurists the IUS RESPONDENDI – the right to give legal advice, which became of high persuasive authority to
judges and magistrates.

Under the Dominate in the early second century, the responsa of jurists with IUS RESPONDENDI became legally
binding. The connection between urban Roman jurists and the imperial administration became very close, with jurists
attaining the very highest administrative offices including the office of the PRAEFECTUS PRAETORIO. Also greatly
expanding was the writing of legal works, such as (a) responsa and quaestiones – collections of opinions delivered by
jurists with the IUS RESPONDENDI, for practitioners; (b) LIBRI or DIGESTA – general works on the civil law and on
the edicts; (c ) monographs – on particular laws or legal institutions, dealing with the logical and systematic treatment
of actual or hypothetical cases; (d) INSTITUTIONES – systematic outlines or textbooks for beginners and students; (e)
REGULAE or SENTENTIAE – short statements of the law, in easy form for students and practitioners.
Some of the prominent jurists included Gaius, Celsus, Julianus and Papinianus. They were different schools of jurists,
with specialised academies for the training of lawyers emerging in the Dominate. This resulted in a very sophisticated
development of Roman substantive and procedural law.

M Gwisai HRRDL No. 4, Roman Constitutional History 2018 Page 15

Under Emperor Justinian in the 6th century AD Roman law reached its peak and most sophisticated form and treatment,
with the codification and modification of all hirtheto existing Roman law under the CORPUS IURIS CIVILIS of
Justinian under the guidance of the jurist Tribonianus.

Thus the fundamental character of the law as a class instrument of the economically and politically dominant class to
regulate social production and society in general in their interest and at the expense of the working classes became quite
obvious and distinct, as argued by Engels. This is why Emperor Justinian could declare in 533AD that - “the Imperial
Majesty should not be only made glorious by arms but also arms with laws,” and ordered the codification of the laws of
Rome.

The objectives of such codification were: (a) to gather together and to present in amended form, the works of the major
Roman jurists – which would be the sole authority for the jurisprudential writings and the leges referred to them – this
became known as the DIGEST or Pandects of 533AD (digest means book that contains everything or encyclopedia);
(b) to improve and systematise the quality of legal education – based on the compilation of a book of the first principles
in the law, which would clearly introduce the law to students. This became known as the Institutes from INSTITUTIO
to instruct - also of 533 AD; and (c) to gather together, and to bring into harmony the imperial statutes which had been
promulgated up to that time – this became known as the CODEX (book or manuscript) of 534AD. The totality of the
codified law came to be known as the CORPUS IURIS CIVILIS of Justinian (great body of law). Justinian declared that
this shall be the sole source of law for all time – Indeed it has formed the basis of our knowledge of Roman law.

Collapse of the Empire

Under the Dominate the empire was divided into two sectors, the western empire and the eastern empire, each run by a
principal administrator. Rome and Italy ceased to play the predominant role in the empire. In fact in 300AD Emperor
Constantine moved the capital of the empire to the east to Constantinople.

Despite the authoritarian reforms of Diocletan, the Roman empire was in mortal decline after the 3 rd – 4th centuries AD,
and was to ultimately collapse in the 6-7th century AD. Tensions and pressures from internal revolts and external
attacks by other states had led to the division of the now unwieldy empire into two parts, the western and eastern halves
of the empire. The western part of the empire was the first to face increasingly intractable crisis. In the 4 th and 5th
centuries AD it faced repeated invasions from barbarians – European tribes of a lower level of civilisation such as the
Germanic tribes, the Vandals in western Africa, the Franks in Gaul and the Angles and Saxons in England. By 500 AD
the western empire had virtually collapsed and replaced by various barbarian chiefdoms, with the advanced Roman
economic system replaced by subsistence agriculture and the urban centres were destroyed or abandoned. Although
also facing pressure from the Persian Empire, the eastern empire survived much more intact, centred around richer
provinces like Egypt and Syria and their economic centres like Alexandria and Antioch.

In the 6th century AD, emperor Justinian, using the eastern empire as his platform – embarked on ruthless campaigns to
re-conquer the western empire and re-establish the power of the empire across the east and west. By 560 AD he had
succeeded in doing so. The eastern part continued to be governed as before, whilst the re-conquered eastern provinces
were placed under the emperor’s governors – viceroys with full military and civilian powers. Christianity was re-
imposed as the dominant religion. Whilst the empire underwent a mini-revival in the economic, political and legal
spheres based on a highly authoritarian structure.

However, even by then the Roman empire was faced with mortal decline, and soon disintegrated after the death of
Justinian, under the pressure of fresh barbarian invasions and from the east. The ultimate cause of the collapse of the
Roman empire lay in that the slave mode of production had reached its peak and had become historically obsolete in
view of the advanced stage of productive forces. The Roman state relied on the brutal exploitation of slave labour and
continous wars were to ensure a continous supply of slaves was a precondition for its survival and sustainability. As the
empire reached the peak of its boundaries the source of slaves began to dry up. Further although the major revolts of
the 1st century AD were successfully crushed, the slave mode of production ensured the ruination of small peasants and
plebeians and regular economic recessions which continued to breed revolts that undermined the overall might of the
Roman empire.

Towards the end of the empire, many of the large latifundis underwent massive crisis suffering from shortages of
manpower as the source of slaves dried up whilst tenants and lesser officials fled from their tasks or the onerous
taxation burdens to support the imperial army and civil service. They were broken into smaller units worked by persons
who were not slaves but free and subordinate persons given life-long use of the plots of land – colonii. The advances in
technology allowed more efficient use of such small plots of land than the latifundias reliant on slave labour. The
colonii would pay tribute in money or kind to the land lord who owned or controlled the plots. This system, arising
from the womb of slavery in fact forelay the feudal system that was to succeed the slave mode of production. Slavery
had become obsolete and a break on the further development of productive forces. The ruling class itself became

M Gwisai HRRDL No. 4, Roman Constitutional History 2018 Page 16

degenerate and demoralised in the face of growing difficulties and factional fights over succession, as there was no
clear succession line to the emperors. All this broke / weakened the military, economic and social fabric of the Roman
state, making it vulnerable to attacks from the barbarians and Persians, ultimately leading to its collapse. Slavery had
reached its peak, and society could only move forward on the basis of a reorganisation of the relations of production in
a manner that would facilitate and not destroy the chief productive force of society – the slave. That system was
feudalism.

Conclusion
Thus at a certain stage the deep and severe contradictions under advanced and late slavery led to its own demise in
Rome as it had elsewhere. The exploitation and oppression of the slave was severe. The slave system was based on
severe exploitation if not actual destruction of the slave – who was in fact the main productive force of society. The
slave owner had complete power over the slave, including the right to kill them; like cattle, slaves were driven to work
by the whip – hence the reason why Romans called slaves “speaking tools”; the slave owner assimilated the entire
product of slave labour, while the received the most meagre quantity of means of subsistence as to prevent him/her
from dying from hunger so that s/he could continue working; the offspring of the slave belonged to the slave – owner,
who could sell them. All this led to massive slave revolts and uprisings that threatened the entire fabric of slave-owning
society.

Similarly the slave mode of production bred tensions and struggles within the classes of free persons. The demand for
more slaves led to continuous wars, but the burden of war through taxes and soldiers was disproportionately met by the
peasants and craftsmen and other poorer classes, whilst the loot of war was primarily assumed by the richer families.
On the other hand competition from large-scale production based on cheap slave labour led to the regular and constant
ruin of the peasants and craftsmen, threatening to turn them into slave bondage, just as it undermined the entire
economic base of slave society through frequent production recessions. Thus there were constant struggles between the
classes of the poor and those of the richer classes, just as they were also struggles amongst the rich for greater control
of the wealth of society
This regular and constant ruination of the peasants and craftsmen due to competition from large scale production due to
cheap slave labour led to regular economic recessions and political strife from the lower orders, who saw no vested
interest in defending the status qua. Eventually the slaves were joined in their uprisings by free peasants and craftsmen
as in the Spartacus Slave Uprising of 74 – 71B.C. The constant flow of slaves dried up as the slave state reached its
peak in terms of geographical space and as victories were increasingly followed by defeats from competing states.

All the above factors undermined the economic, political and military might of the slave-owning state, leading to its
eventual collapse from a combination of internal factors and external factors.
Thus although the slave-owning mode of production, as most manifest in Rome, heralded massive and unprecedented
gains / achievements in the fields of natural and social sciences including statecraft, law and religion in human history,
it had become an irreconcibale break on the forward movement of society. To quote Engels –

“Universal impoverishment; decline of commerce, handicrafts, the arts, and of the population; decay of
the towns; retrogression of agriculture to a lower stage – this was the final result of Roman world
supremacy.” 9

9
F. Engels, The Origins of the Family, Private Property and the State(1972) 146.

M Gwisai HRRDL No. 4, Roman Constitutional History 2018 Page 17