Sources of law

Question 1

What are the sources of Roman law?

Answer 1

Leges 
Edicts of the magistrates 
Senatusconsulta 
Principum plata 
Responsa

Question 2

What are leges?

Answer 2

Leges were enacted by the popular assembly. They were often associated with plebiscites (ordinances of the plebs)

They were constitutional in nature and dealt with matters relating to public order

The only legislative power that the people had was to refuse the proposals of the Emperor/ magistrates

The Emperor could convoke the assemblies and submit proposals to them. The Emperor also controlled the magistracies as he personally recommended the presiding magistrates. Thus, it is clear that the Emperor had ultimate legislative power.

The popular assemblies never had the right to initiate legislation- voted on legislation submitted to them by the presiding magistrate

Question 3

What is the definition of a source of law?

Answer 3

The origin or how the law was created

Question 4

What was the difference between Gaius and Justinian’s classification of the sources of law?

Answer 4

Gaius believed that imperial enactments were important sources of law in the 2nd century.

Justinian added custom as a source of law. Otherwise, it remained the same. There were local and regional variations to custom

Question 5

What were the sources of law in the archaic period? (monarchy)

Answer 5

It was a mixture of custom and royal decree. Custom is law which acquired authority through long observance. It was unwritten law

Question 6

Why did custom decline in importance?

Answer 6

It declined in importance particularly after the publication of the XII tables/ as the law was written down by the jurists

The Twelve Tables had to be enacted due to popular discontent- law was administered and controlled by the plebeians

Question 7

What were royal decrees?

Answer 7

Laws of the kings acquired direct and binding legal force

Question 8

What were the most important sources of law during the Republic?

Answer 8

Legislation
Edicts of the magistrates
Interpretation of those learned in law

Question 9

What is the significance of the Twelve Tables?

Answer 9

The Twelve Tables was Rome’s first code of law. It was enacted by the comitia centuriata. It was probably based on the existing customary laws in Rome.

Question 10

What was the importance of the assemblies?

Answer 10

Comitia centuriata- elected the higher ranking magistrates
Comitia tributa
Concilium plebis- responsible for the plebiscites which came to acquire as much authority as statutes after the lex Hortensia. Became the most prominent assembly before the end of the Republic.

Voted on proposals sent from the magistrates. However, it was inherently corrupt as they voted in groups. Moreover,r in the comitia centuriata the higher ranking centuries voted first and this tended to influence subsequent voters

Question 11

What was the role of the lex Hortensia?

Answer 11

The plebiscites have to be followed by the patricians as well as the plebeians

Question 12

What was the role of the senate?

Answer 12

The senate did not have legislative power and it was more of an advisory council. The magistrates had to send their proposals to the senate before it could be put in front of the assembly.
It had the power to veto legislation

Question 13

What is the role of the edicts of the magistrates?

Answer 13

High-ranking magistrates had the power to issue edicts. This came to supplement the ius civile be the ius honorarium (the law of the magistrates)

Question 14

What was the role of the urban praetor?

Answer 14

An urban praetor was created as the consuls were too busy dealing with wars. The urban praetor exercised legal jurisdiction within the city. The urban praetor was responsible for conducting the administration of justice

Question 15

Why was a peregrine praetor created?

Answer 15

A single praetor became insufficient with the influx of foreigners in Rome/ expansion/ the constitutio antoniana. The peregrine praetor exercised jurisdiction among the foreigners

Question 16

How was the praetor responsible for creating a more flexible formulary system?

Answer 16

Initially, the praetor did not have much opportunity to influence the law because he was strictly bound to follow the ius civile. Influx of foreigners who could not participate in the legis actiones confined to civilians. The peregrine praetor created a new system- the formulary system. Eventually it was absorbed into the ius civile. The formulary system was much more flexible and gave the praetor discretion when dealing with particular disputes

Question 17

Edicts issued by the praetor

Answer 17

Enabled the evolution of the ius honorarium as the praetor could allow new remedies or defences. The edict also normally consisted of measures adopted by the previous praetor.

Question 18

What was the ius honorarium?

Answer 18

the law developed in edicts issued by the praetors during the Republic and early Empire, aiding, supplementing or amending existing rules or procedures of the ius civile. It was finalized in the 2nd century A.D. in the Edictum Perpetuum.

Question 19

How did the praetor’s role develop? How did the praetor become a substantial source of law in the late republic?

Answer 19

early years the urban praetor had little room for manouuvere- limited to aiding civil law because of formalism of legis actiones. The praetors became more radical, particularly after the lex Aebutia which formally reconised the applicability of the formularly system to disputes between citizens. By the late republic the praetors had become the leading reformers within the Roman legal system- remedies included robberies, fraud and duress and more effective protection of property interests.

The fact that the praetors were able to ‘correct’ the civil law in such important matters demonstrates the extent of their indirect law-making powers in the late republic.

Question 20

What was interpretatio?

Pontiffs had a monopoly on the law

Answer 20

The interpreters were the college of priests and one was appointed each year to preside over the citizens. In early law there was a clear link between religion and law as the pontiffs were the interpreters of law. Their advice on the meaning and applicability of the law constituted interpretatio.

Their ability to do this was facilitated by the lack of information about litigation procedures in the Twelve Tables- allowed the pontiffs to exercise influence over civil disputes. Eventually, they were replaced by the jurists who were learned in law and gave legal opinions (response) in public. They were men from aristocratic families and gave responsa perhaps to gain respect as they wanted to go into politics

Question 21

What work was done by the jurists of the late republic?

Answer 21

To give advice- they were approached by the praetors, magistrates etc on advice on how to discharge their functions. Advice was not legally binding but helped to elucidate the law
Teaching
Jurists wrote commentaries on the XII tables- established a tradition of legal writing.

Question 22

Why was juristic writing significant?

Answer 22

Juristic literature converted Roman law into a science- body of laws that was analysed in writing

Question 23

What were the sources of law during the Empire?

Answer 23

The Empire was split into the Principate and the Dominate. During the Principate was when Roman law achieved its highest level of development because of the work of the jurists. However, there was a decline of Roman law during the Dominate it was imperial decrees and interpretatio that became more prominent

The Dominate was a period of decline as imperial decree essentially became the sole source of law. Imperial decree was the most important legislation

Question 24

Principate

Answer 24

At first, Augustus preserved many elements of the Republican constitution- assemblies, senate

Question 25

How did the role of the senate change during the principate?

Answer 25

Became much more prominent and although it initially had no legislative power it effectively replaced the assemblies and came to be regarded as the primary legsislative organ . Emperor exercised control over the senate and the assembly. Senatusconsulta- acquired force as the Emperor was a leading member of the senate- in the reign of Hadrian senatusconsulta acquired direct binding legal force without the need for praetorian intervention- the senate by this time had become a tool for imperial will.

The senate ceased to make laws in 200AD

Question 26

What was the role of the Emperor in making law?

Answer 26

Ulpian- ‘a decision given by the Emperor has the force of a statute. This is because the populace commits to him and into him its own entire authority and power’

This shows that imperial law-making was important in the later empire. The Emperor emerged as the sole source of legislative authority

Question 27

What were the main forms of imperial decree?

Answer 27

Edicta
Decreta
Mandata
Rescripta

Question 28

What was the role of Edicta?

Answer 28

The emperor like the magistrates had the power to issue edicts. However, unlike the magistrates (lapsed after time in office) the edict only lapsed on the death of the emperor and the edict could tackle an unlimited range of problems- for magistrates it was only their particular jurisdiction- wide scope.

Question 29

What was decreta?

Answer 29

Decrees of law. The emperor had substantial legal power.
‘Emperors had extensive judicial powers. They could decide cases on appeal or at first instance’. He could apply the existing law but had considerable discretion in its interpretatio. He could devise new principles and overrule existing law- council advised against radical departure from ius civile.

o Decisions by judges only affected parties in the case and were not regarded as precedents. However, imperial decretal were reported and filed in the imperial archives. They were regarded as authoritative because they were made by the emperor

o Jurists collected such decisions- as a result decreta acquired the status of binding precedents by the late classical period.

Question 30

What is mandata?

Answer 30

More administrative rather than law. On the advice of his council the emperor would issue detailed administrative instructions to subdue provincial governors etc

Question 31

What is rescripta?

Answer 31

Rescripta provided the richest source of imperial legislation. They were written replies from the emperor about legal questions or petitions

Question 32

What were the two kinds of rescripts?

Answer 32

Letter and subscriptiones
Epistulae were replies to queries from officials about their rights or duties- office of letters staffed by jurists- reply was a letter signed by emperor

o Subscriptiones were answers to queries from private citizens- queries presented in the form of a petition (private citizens not permitted to write to the Emperor)

o The query was dealt with by the bureau of petitions which would attach its answer to the petition- it was then signed by the emperor.

o Office of petitions was staffed by the leading jurists- ‘the issue of subscriptions became an ideal medium for the interpretation and development of the law’- e.g. the secretaryship of the office was held in turn by Papinian and Ulpian.

Question 33

What was the development of the edicts of the magistrates?

Answer 33

The praetor’s issued edicts, but their importance waned in 1 AD. As the emperor’s control over the state increased the praetor’s lost their influence over legal developments- especially after Hadrian commissioned Julian to draft a revision of all the praetorian edicts

Question 34

What was Julian’s consolidation called?

Answer 34

The Edictum perpetuum- was regarded as the final version of the praetor’s edict in terms of structure and content

Question 35

How did the role of the jurists change?

Answer 35

There was a change in how the jurists worked- they were increasingly employed by the state. At first this was on an ad hoc basis, but then more regularly.

The jurists were tasked with advising the Emperor (e.g. drafting imperial decrees), judges, public. In the early classical period, under Augustus the ius respondendi was introduced- enabled the jurists to give responsa with the authority of the emperor. Some responsa acquired more authority than others, for example if it was a written reply given under a seal to a judge it was almost binding.

Most leading jurists of the classical period were given the ius respondendi- responsa was only binding if it was given by jurists with ius respondendi

‘Gaius states that responsa are the opinions of men permitted to lay down the law’p44- if the opinions are unanimous, they have binding force, if not the judge can choose which to follow.

Question 36

What was the role of the jurists with regards to teaching?

Answer 36

Teaching was informal and students would attach themselves to eminent jurists. The proculian school was much more logical while the sabinian school justified things referring to the nature of things- much more custom based

Question 37

What was the role of juristic literature?

Answer 37

character of classical writing was casuistic- it was done on a case to case basis- involved extensive discussion of cases with little reference to abstract reasoning.

Proculian school was much more logical in their approach

Question 38

Who were the prominent jurists?

Answer 38

Papinian, Paul, Ulpian, Gaius (divided the law into persons, things and actions), Modestinus, Julian (solidified the edict)

Question 39

What was the period of decline in Roman law?

Answer 39

From the end of the classical period to the beginning of Justinian’s reign- the interim of this period. This was because Rome was becoming more Catholic and imperial decrees essentially became the sole source of law and the importance of jurists waned.

Dramatic change in post-classical legal development was the lack of outstanding jurists- lack of legal science from the classical period- the law had been analysed in great detail in legal literature- increasing weakness of the empire made juristic activity less likely

Transition of Rome from principate to dominate meant juristic activity lost individuality- it had to appear like it emanated from the Emperor.

Question 40

Post-classical legislation

Answer 40

The amount of legislation increased in the later Empire. This was because of the imperial decrees, rescripts etc.
The decrees issued by one emperor were not binding on all other emperors
Theodosian code was a collection of all the imperial decrees.

Question 41

How did Justinian’s codification begin?

Answer 41

Justinian’s codification began in AD528. It was difficult to ascertain the law before Justinian’s codification.

Question 42

What were the stages of Justinian’s codification?

Answer 42

Codex Vetus 
The Fifty Decisions 
Digest
Institutes
New Code 
Novellae

Question 43

What was the purpose of Justinian’s work?

Answer 43

Remove repetitions, make corrections, adapt to his reign- collect the law in a codex that could be used by citizens

Question 44

What was the codex vetus?

Answer 44

10 men collated all imperial enactments still in force into a code which repealed the Theodosian code and previous imperial enactments.

Question 45

What was the Fifty decisions?

Answer 45

AD 530 Justinian issued a number of decrees to remove obsolete rules, make corrections and resolve a number of contentious points of law. This was contained in the Fifty Decisions but a copy has not survived.

Question 46

What was the Digest?

Answer 46

A compilation of juristic literature that was adapted for contemporary use by Justinian’s compilers. It is the centrepiece of the Corpus Iuris Civilis. Led to the repeal oft the law of citations as all the jurists in the Digest were regarded as equals.

It was composed by a team of 10- lead by Tribonian. They wanted to remove any repetitions etc- read 1300 books- 38 different jurists. Argument about whether the books were actually read as they were compiled in 3 rather than 10 years.

He regarded the Digest as a model for the future and banned any commentaries. Flawed because it was intended to be used contemporarily

Question 47

What was the purpose of the Institutes?

Answer 47

Textbook for students