Week 1- Sources of Roman law Flashcards
What is the history of Roman law divided into and what dates do they range between?
- History divided into 3 parts-
- Monarchy (eighth century BC- 510 BC),
- Republic (509-27 BC) and
- Empire (27BC- AD 565)
What were the 6 magistrate roles under the republic, in order of hierarchy?
Consuls Praetors Quaestors Censors Tribunes Aediles
What roles did the top 3 magistrates have under the republic?
Consuls- transference of power to two consuls after -Consuls- transference of power to two consuls after monarchy was abolished. They consulted each other and veto each-others proposals in order to avoid tyranny. They were commanders of the army, appointed by the Comitia Centuriata (Roman army) usually for up to a year. Either consul could appoint a dictator with supreme power for up to 6 months.
- Praetors- Created to reduce legal jurisdiction of consuls in 367 BC, also appointed by Comitia Centuriata. Chief administrators of the legal system (highest ranking judge).
- Quaestors- Financial equivalent of Praetors, elected by Comitia Centuriata, eventually becoming law officers under the empire when Praetors significance falls.
What roles did the bottom 3 magistrate offices have under the republic?
Censors- Elected by Comitia Centuriata from 443 BC and were administrators of the census, an important role in determining the eligibility to vote, serve legions and pay taxes.
Tribunes (494 BC)- magistrates to encourage cohesion between plebeians (commoners) and Patricians (upper class), tribunes represented the plebeians. They themselves were plebeians. Members of the senate and could veto acts of other magistrates.
Aediles- Exercise care over the wellbeing of the city, its inhabitants and infrastructure
What was the role of the senate under the Republic and emperor?
Role of the Senate
- Prestige and moral authority in Rome, consultative and INFLUENTIAL ADVISORY body of government, with magistrates consulting the senate on important matters. -Authorised and ratified treaties with other powers.
- No legislative power, was an advisory council, exercising influence and control over leading members of the state. The senate’s directives (senatus consulta) carried great persuasive weight but were not legally binding unless they had been incorporated into a magistrate’s edict.
- A magistrate who wanted to put a proposal in front of the assembly had to gain senate’s permission.
- They were a vital yet indirect source of law under the republicans, they had powers to suspend laws in times of emergency and could declare laws invalid (Borkowski p33). but no direct legislative powers.
What is custom as a source of law? (recognised by Justinian and alluded to by Gaius)
Non-written laws. Well-established practices with ‘obligatory force’, whos authority was challenged later on as to whether it also needed some formal recognition in order to be binding, or if it was so fundamental as to not need further enactment. Roman law in its early parts was almost completely customary.c
What different sources of legislation existed as per Gaius 1.2?
- statutes (leges), -ordinances of Plebeians (plebiscite),
- decrees of the senate (Senatus consultum),
What was the XII tables, who created it and who enacted it?
-Regarded as a ‘victory for the plebs’ (page 14 Jol), the XII tables was the first roman law code. The provisions of the 12 tables were enacted by the Comitia Centuriata and given publicity. It was basic in comparison to modern codified constitutions but nevertheless regarded as the first of its time. It didn’t take account of all aspects of the law which might require codification, such as acquisition of property, but it was written by patricians as a body of law which they were willing to share with the plebeians, following the latter’s calls for “equal rights of liberty” (Watson page 38). (overall Borkowski page 30-31)
What were the two aspects of the 12 tables?
A) Public law: laws of a religious or constitutional character eg funeral etiquette (religious) or legislation regarding the operation of the constitution eg right of appeal against the death sentence, only Comitia Centuriata inflicting capital punishment. (Borkowski p31)
B) Private law: Included procedural law eg the procedure of bringing about litigation and court proceedings, dictating what was and wasn’t acceptable in bringing about court proceedings. Also substantive private law which touched on things like land, family law, torts.
What 4 assemblies operated under the 12 tables and what roles did they have?
1) Comitia Centuriata- most important, existed during the monarchy and survived its downfall, it elected high-ranking magistrates and organised by Roman people in military array. It enacted the XII tables. Most legislative power.
2) Comitia curiata- oldest assembly, few legislative powers, main function was conferring powers onto magistrates.
3) Comitia tributa- an assembly of people divided into tribed by geography, handled routine legislation and elected lesser magistrates. (less important, no legislative power)
4) Concillium Plebis- Plebeian assembly became the dominant assembly before the end of the republic, it became “the usual organ for passing laws in the later republic, as its presidents, the tribunes, had more time for, and interest in, legislation than the consuls, who were frequently engaged in military duties” (Jol and Nicholas p26)
What were the 3 parts of the emperors constitution?
3 parts of the emperor’s constitutions as per G 1.5
- Decrees: laws derived from the decisions of the emperor sitting as a judge, binding on all parties
- Edicts: rules deliberately introduced to make new law or change old law. These powers were held by magistrates under the republic and the emperor simply exercised the same powers.
- Letters: rescripts by the emperor addressed to private individuals, as responses to petitions. Letters referred to all communications by the emperor. Overtime, and by the time of the 3rd century AD, this job was delegated to subordinates.
What were leges, Plebiscites and senatusconsultum,
- Plebiscites were statutes derived from the plebs and only binding on the plebs
- Leges were statutes enacted by the whole of the citizenry, binding on the whole citizenry whereas plebiscites only via the plebs.
- senatusconsultum (as per Gaius) which were commands and ordinances of the senate, with the same authority as lex (statute). However, the doubt expressed by Gaius as to their authority suggests that despite the influence of the senate, it was unable to legislate for Rome.
How did the authority of plebiscites differ to those of leges and what changed this?
Plebs bound by Leges and plebiscites whilst Patricians only bound by the leges (as well as plebs). It was the lex Hortensian which elevated plebs from a ‘second-class legislation’ to that equivalent to Leges. (eventually plebiscitium referred to as leges when binding on the whole citizenry)
What two types of Praetors existed and how did they roles differ?
Urban Praetor was the highest ranking judge, enforcing the Ius Civile (civil law binding on romans only)
Foreign Praetor (Praetor Peregrinus) settled disputes between non-Roman citizens.
What does Jolokwicz say about the formulation of the Praetors edict?
- Any edicts made by the Praetors was on the same level of law as the ius civile, arising from statute and interpretation. The edict was published each year at the start of their office. It was to be valid throughout their year in office and gained the name perpetuum (continuous). Each praetor had a freehand in their own edict, but in reality this was done through amending the previous praetors edict as was necessary.
- The edicts didn’t allow praetors to be a source of law (legislator) in the way that assemblies and the emperor were; instead they were comprised of a number of statements explaining how a praetor would act in a certain situation.
