History Flashcards
Magistrates
lots of diff types-elected officials of Roman republic
-consul- start with 2 of them in republic and they have “imperium power”
-Quaestors- lower ranking magistrates, principally acted as financial officers under the consuls
-censors( censores) – primarily appointed to compile cenus , however gained a lot of power as were able to degrade someone’s social rank and remove them from their tribe
-Praetor- took over admistration of the civil process from the councils.
-aediles-became true magistrates with municipal functions-supervised cleanliness, water supply, corn supply + other things …..
-Tribunes-first plebian officers- original function to protect plebs from arrest and punishment by pat magistrates
Periods of Roman History
1- Monarchy 753bc-510bc
2- The republic 509-27bc
3- The empire 27bc-565 ad
Dominate and principate
1 -earlier period – known as principate – emperor is supreme but his power hidden in republican forms , “the disguise” of his powers slowly gets weaker and weaker- Third century AD it is no longer hidden
2- later period- often known as the Dominate – as emperor has gone from princeps( first citizen) to dominus ( master)- roughly starts 284 AD-Diocletian on the throne – for the rest of the roman period the empire was an absolute monarchy
Periods of Roman Law
1- Archaic period -monarchy and then first 3/3.5 centuries of the repunlic. Tweleve tables drawn up during this period (451-450bc)- these form most of our knowledge on private law from this period.
2- Formative period- Last 150 years of republic and 1st century of empire
Economics + sociasl dev from end of punic war in 201 bc – this also leads to dev of the law too , movement away from the XII tables and towards more flexible system- great jurists mould this system- end of republic pace slows up of dev and law seems to settle
3- Classical period- law has reached stable maturity by the reign of Hadrian- 150 year period of 2nd century and first half of 3rd century – can be split into 2 Eras.
1) early classical period-reigns of Hadrian and antonine emperors ,more of creative period , introducing new ideas
2) later classical period -under Severi – more working out and modifying existing principles
4- The post-classical period-Ad 235 to the reign of Justinian- line of jurists came to a sudden end – no place in empire ( absolute monarchy) for individual jurists-Lawyers still working but work is under emperors name and legislation. Quality of legal thought falls
5- Reign of Justinian- he was a great legislator – enacting no of statutes – a few of great importance – created “digest” which contains a great lot of excerpts from classical authors – he gave roman law in sense “ its final form “.
Republican constitution
contained 2 elements(the Senate and the Assembly)- the magistrates are successors to royal power- when the republic was formed 2 magistrates ( “consuls”) were elected as heads of state.
Consuls only held office for a year but had the same powers the king used to have – few statutes restricted the powers in time – but still powerful – often called as an “imperium” power.
Other magistries introduced too ( quaestors etc) to help relieve the burden of the consuls
Assemblies of the people
Comitia curiata- first assembly to discus and pass votes in and create legistlation- inisignificant durinf republic times
“comita centuriata” – voting body consisting of centuries – military companies divided by class, unfairly distributed voting power to “equites” who were also eligible to serve as judges.
· Later on in republic had “comita tributina” – full legislative power, but its functions parallel but inferior to comitia centuriata: election of lesser magistrates, adjudication on “provocation” against fines levied by the curule aediles – magistrates that looked after markets
Concilium plebis- only for plebs- pats had no place there
A lex
enactment of the comitia
development of assemblies
later republic- three bodies capable of passing binding statutes
comitia centuria
comitia tributina
concilium plebis
Roman assembly procedure
can only meet when summoned by a magistrate + can only discuss business proposed by magistrate - proposal accepted or rejected
Legisalation could be debated in senate
- but makes no difference to the validity of the law once passed
edict
was a source of law
produced + published by magistrate when bill was drafted
once bill accepted - became law instantly
roman principle of confliction in laws
previous enactment can always be repealed by a subsequent one, where a subsequent enactment conflicts with a previous one it must be taken as repealing it to the extent of the inconsistency.
The roman senate
consultive body- could not pass laws
grew in power as consulted on all matter except routine
but their decisions not legally binding
Edict of urban praetor
so potent a source of new law in republic – 130 AD after jurist salvius Julianus consolidation of edict – it was promulgated into a statute- no further change could be made in its contents without the emps app
more than any other single factor, it transformed the Roman law from the rigid
narrow set of rules in the Twelve tables into the flexible and comprehensive system .
did not appear to alter civil law
sources of law
2 types
ius no scriptum - unwritten law - natural law etc
ius scriptum - written law
many different things comprised the written law
leges
an enactment of the comitia - approval of a magistrates proposal =lex
an enactment from the consilium = plebiscite - sometimes referred to as a leges
they were original declarations of the law rather than alterations of it
XII tables
Republican legislation par excellence was the Twelve Tables
Passed by comitia centuriata- derived real validity from being a first expression of law, and realistically a settlement of a political crisis from the
body.
Body of 5 men proposed to draw it up in 462 bc but took ages so in 451 , the constitution suspended and 10 men with consular authority drew them up, drew up 10 tables in a year- second commission of 10 was appointed in 450 BC and drew up 2 more tables – constitution restored and twelve tables were ratified by the assembly.
Edicta magistratum
the edicts of magistrates
all magistrates could publish them - they were proclamations which notified people of their order and intentions
Edicts very important source of law – praetor couldn’t influence law directly – not legislator- the essence of praetors power lies in his control over remedies
Ius civile-
civil law – arising from statute and interpretation
Ius honorarium
magisterial law arose from edicts of magistrates whose role included jurisdiction- esp that of praetor Urbanus
Praetors
main function to administer the existing statutory and unwritten law , however his edict ended up becoming chief source of new law for essentially 3 centuries
his sphere is the private law between citizens
senatusconsulta
Lack of legislative function in the republic
+ resolutions were instructions to magistrates – not direct changes in the law
In the principate the senate became the main body used for amendment and alteration of the law
Emperor or magistrate on his behalf would put forward a proposal ( oratio), which when then voted for, became a senatusconsulta
Over time the vote of the senate became a formality and oratio became regarded ( even by jurists) as the real source of law
Principum Placita
comitial legislation died out in 1st century empire
Edict loses creative potential
Senatusconsulta declined in 3rd century
leaving emperor as the sole source of legislative power and new law
decreta
rulings made by an emperor who heard a case on appeal or 1st instance
these were definitive interpretations of the law
Rescripta
answers made by emperor on points of law by his subjects
the principle method of setting legal points
2 kinds of them
epistulae
supsciptiones
epistulae
answers to queries from officials - by the emperor
form of rescripta
subscriptiones
second form of rescripta
answers made by emperor to enquiries from private people
period of pontifical legal intepretation
first phase/era of roman jurisprudence
earlier centuries of republic – priests would interpret both the written and unwritten law – pontiffs were essentially men of affairs – priesthood yet another honour
period of vetres (republican jurists)
last 2 centuries of republic
steady body of jurists creating/defining the law
Last century of republic – Jurists roles could be summarised as “scribere , agere, cavere , respondare.”
Scribere – denotes drafting of documents
Agere – prep of cases for court- advise on evidence etc
Cavere - advising clients on safeguards
Respondare - jurists most important function- giving advice on points of law + their applicability in the case at issue
- One more function could be considered to be docere – accepted duty + privilege of jurists to educate their successors – allowing presence at discussion etc.
classical period of roman law
principate
early empire brought the jurists increased respect- 2 particular phenomena were Viz, the ius publice respondendi, and the school of jurists
jurisprudence of last 130 yrs or so of principate – consolidstion of the Edict by Julian meant jurists could treat their material as a whole and due to their education were able to do so.
Classical jurists of the great age wanted elengentia, elegance- it denoted the careful simplicity and precision of language. – quality if both Roman legal thought and literature
Institutiones ( or Enchiridia) were elementary manuals for a novice to give a general picture of the law , from middle of 2nd century of the empire , the institutes of classical law are those of Gaius.
Ius publice respondendi
introduced by Augustus- the right of giving opinions under his authority and seal – given to certain jurists
school of jurists
became apparent in 1st century of principate – traditionally known as Sabinians and Proculians- all great lawyers of 1st 150yrs of the empire belonged to one of the 2 schools.
postclassical period of roman legal science
saw an end to the line of great jurists
with the death of Modestimus – Ulpian’s pupil
Smart+ ambitious men look to the church and theology for advancement instead of law
Quality of juristic science perm lowered – despite dev of schools in E and W empires.
After third century of empire – nothing heard of Ius Responsdendi, abridgements reduced the familiarity with great works of the past
Law of citations – issued in AD 426 , works of Papinian , Paul, Ulpian , Gaius and Modestinus became principle authorities for use and citation In courts.
reasons for the decline in jurists in the dominate
1, the ius civile and ius honorarium being harmonised and commentaries of Ulpian and Paul, recorded everything from the past until their own time – little room for anything else
2, the collapse of the principate – jurists of the classical period owed their influence to a stong central GOV , Bureaucracy of dominate – everthing was done in emp’s name – esp pronouncements of and on law – independent opinion + comment was stifled
Imperial legislation on juristic literature also further reduces individual initiative
The praetor
could only create and control the granting of remedies in law
but this was of vast importance as a roman lawyer thought in terms of rights not remedies
so praetor essentially controlled the development of the law
had a particular and a general function
particular = day-to-day control of litigation- granting remedies in cases
general function= issuing of the Edict that sets out the circumstances and ways that he will discharge his particular function during his year of office - sets out his remedies and powers
said to be the general function that gives him his importance in law
development of praetorial importance
first two centuries of his existence, however, the power of the Praetor in regard to granting remedies lay was unused
He only began to make his influence felt
when a new and more flexible system of actions—the formulary system—was introduced
this system set the framework for the classical period
unclear when the system came about
- certainly by 125 AD
development of roman legal system
legis actiones system - passing of laws in comitia’s
to
formula system - for each cause of
action there was an appropriate form of action, and that each action was expressed in a set of words or formula
to
cognitio extra ordinem
- system in which hearings would take place under a judge and they would be reasoned through and decided by the judge
significant change to previous two where the parties would solve the disputes themselves
Jurists
they were advisors
could not directly create the law
they advised:
the Praetor in the formulation of his Edict and the granting of remedies in individual cases
the Iudex in the hearing and decision of a case
private individuals in the drawing up of documents and the making of
other legal acts, and also in the conduct of cases before the Praetor or the Iudex
They built up a great legal literature and also undertook what legal teaching they had
BUT ALSO
they influenced the practice of the law at every point.
sort of fulfilled the roles of a modern-day practicing lawyer and an academic
Ius respondeni
responses and opinion from jurists to questions of law posed to them by others
do not know if it was binding or not in law
some jurists given a special version of it by Augustus
