Sources of Roman Law Flashcards
Magistrates during the Roman Republic
Hierarchy of magistrates, which were essentially political offices responsible for fulfilling certain govt. duties.
a) Consuls - two consuls ruled jointly together. Each had a veto over the other.
b) Praetors - established in 367BC Chief administrators of Roman legal system.
c) Quaestors - financial equivalent of praetors.
d) Censors - responsible for compiling the census and appointing members of the Senate.
e) Tribunes - magistrates elected to represent the plebeian body, rather than the patricians.
f) Aediles - responsible for exercising care over the city and its inhabitants, e.g. maintaining infrastructure.
Sources of Roman law
1) Legislation
2) Senatus consulta
3) Jurists’ opinions
4) Magisterial edicts
5) Custom - local and regional variation of laws of the Roman Empire.
Constitutional Bodies
a) Comitia centuriata - generally the body which carried out passing of legislation. Arranged in terms of military equipment, which was tantamount to economic status. Voted in 5 different blocs based on economic importance - disproportionate number of votes for the most powerful bloc.
b) Comitia tributa - this was an assembly based on geographical location. Groups arranged in tribes in the comitia.
c) Concilium plebis - assembly which passed legislation for the plebeian body only.
Lex Hortensia
c. 278BC - gave plebiscites (votes in the concilium plebis) the same status as leges.
Senatus consulta
Resolutions of the Senate. Not legally binding strictly, but carried great persuasive weight. The Senate was the most influential advisory body in the RR and Roman Empire, although its influence may have diminished during the RE.
Senate was mainly composed of retired magistrates with expertise in a number of different areas of public life. Also appointed regional governors, although Augustus (and subsequent) emperors started simply appointing the most important regional governors themselves.
Edicts of magistrates
Edicts were legally binding statements of intent as to how the magistrate intended to carry out their office. It was essentially a manifesto issued by the relevant magistrate prior to them taking office.
In the case of the praetor, edicts were extremely important as a means of the praetor influencing the development of the law.
Body of law created by praetorian edicts = ius honorarium. This was a supplement to the ius civile, similar to equity and common law in English law.
Peregrine Praetor
Peregrine praetor was a separate administrative office responsible for developing Roman law in relation to foreign citizens. Large influx of foreign citizens into Rome and increased economic activity necessitated a different body of rules for such transactions.
Responsa
This was the tradition whereby eminent individuals, learned in the law, gave legal opinions in public. Responsa was the first way in which jurists began to influence the development of Roman law. Wealthy men used responsa as a means of advancing their own political ambitions by earning good grace of the public and demonstrating their capabilities.
Figures advised by jurists
a) Judges - during formulary system, trials were conducted by lay judges who lacked legal expertise.
b) Praetors - jurists invariably helped praetors draft their edicts.
c) Magistrates and provincial governors - needed legal advice in the performance of their duties.
d) Ordinary Roman citizens - wanted advice on their legal position. E.g. drafting wills - since there were a number of complex formalities, citizens may well have sought legal advice.
Imperial Councils
Jurists had a more subtle influence during the Roman Empire - became increasingly employed by the State as bureaucracy expanded. E.g. on imperial councils which advised the Emperor on how to exercise his duties and functions. Judicial council was the most influential council that jurists could sit on.
Ius Respondendi
Augustus introduced this right of jurists to give responsa, sanctioned by the emperor.
A written reply by a jurist to a judge was seen as highly persuasive, if not strictly binding. Gaius wrote that in the later history of the ius respondendi, the response of the jurists was only binding on the judge if the opinion was unanimous. If there was disagreement, then the judge was free to take the interpretation he preferred.
Edicta
Emperor had the power to issue edicts. Unlike the other magistrates, the emperor had authority to issue edicts on an unlimited range of matters. Judicial council advised emperor on his edicts.
Decreta
Judicial powers of the emperor. Emperors could decide cases on appeal or at first instance. Decreta were more authoritative than ordinary judicial decisions, since they were made by the Emperor.
Rescripta
Rescripts were written replies to an official who directly asked the Emperor how they should approach a particular legal matter. This allowed jurists to directly influence the outcome of legal cases.
By contrast, subscripts were questions on the legal position of an individual sent directly from a Roman citizen to the Emperor. The replies to subscripts were publicly posted.
Theodosian II
Theodosian II attempted to codify Roman law during 426 - 438 AD. Codex Theodosianus was published in 438 AD, but it omitted major areas of law. As a result, it was not seen as fully authoritative, and thus people turned to the old sources of law and the codification was not successfully followed.
