The ‘development’ of Roman law throughout the Roman political phases
Abstract
“Roman
law was in force (for) approximately twelve hundred years and it is, therefore,
obvious, that during this period Roman law developed. Law is one of the
products of a society and no society remains stagnant, but change and progress
will always and everywhere take place, causing the legal system to adapt.”[2] This entails that Roman
law developed since the primitive stages of Rome up until the post-classical
era. A discussion of how Roman law developed is hence inevitable. So as to
understand the background of our legal system. This article is only limited to
the development which took place during Rome’s political life. The development
of Roman law was accelerated by various factors emerging during respective
phases. The Roman society was changing, so as the law. The law was changing so
as to adapt to the then societal status.
Factors
which led to the development of Roman law can be broadly categorized into
political, social, economic, religious factors etc. The developments in the
political, social or economic organization of Rome influenced the development
of the law during the respective periods. Various other factors were also at
play. Roman law during the regal period was in its archaic stages hence archaic
law, it then developed into being classical law during the classical period and
it culminated with Justinian legislation in the sixth century.
This
article is divided into five parts. The first part explores the four political
phases of Rome. Roman law developed in each of these phases with more changes
in the legal system being witnessed during the period of the Republic. The
other four parts of the article explore the various factors which led to the
development of law during the four Roman political phases in their respective
order.
1. The State of Rome.
It
is imperative to have an appreciation of various political phases under which
Rome went through. This will help in the understanding of the evolution of the
law of the state of Rome as more commonly, the law developed during all phases.
Rome
is believed by legends to have been founded in 753 B.C. by Romulus, its first
king[3] andRoman history is
commonly treated in three great divisions which formed different Roman
governments namely the Monarchy, the Republic and the Empire.[4] The Empire period
stretched from 27BC to AD 284 and was divided into two phases namely the
Principate and the Dominate.[5] These two political phases
(the Principate and the Dominate) became known as the imperial government.[6] The first phase was known
as the Monarchical era, Rome was under the rule of kings.[7] This was changed following
the expulsion of the last Etruscan king by way of a revolt of the aristocracy
in 510 BC[8] and the subsequent
establishment of the Republic in 509 BC.[9] The Republic was put under
the rule of two consuls who equally exercised power in office. Following the
fall of the Republic, a Principate government came into force in 27 BC with the
emperor being head of government. This system continued into the Dominate era
of 284 AD[10]
and the period became the last phase. This article will discuss the development
of Roman law from the Monarchical to the Dominate era.
2. The period of the Monarchy.
The
history of this era has been largely distorted due to lack of a definite
source, scholars largely relied on archaeological and legendary evidence.
Notwithstanding that position, there has been an attempt to trace the shape of
the legal system during the Monarchy.
It
is imperative to first understand the meaning of the term “development” for one
to appreciate the scope of the term. The Oxford Student’s Dictionary, defines
development as, “the process of becoming bigger, stronger, better etc…” This
simple definition shows that development is said to have taken place where
something has been made into becoming bigger, stronger, better etc. This
implies that for us to talk of development, there must be something which is
available and that thing is then made into becoming bigger, strong or
better by various emerging factors. If the situation remains the same, that
is, has not been made into becoming better or stronger, there is no development
to talk about. In the same vein, we can only talk of ‘development of Roman law’
if there emerged factors rendering the existing Roman principles of law into
becoming better or stronger than they were before. Accordingly, the enquiry
would be to say, does this factor have the effect of making the existing
principles of Roman law into becoming better? If the answer is in the
affirmative, development is then said to have taken place.
NB. The idea is not only
to point out all the changes brought about in the legal system of Rome but to
also show the effect of the changes concerned. The question asked is, was the
law made into becoming better or stronger by the changes concerned? Thus, it
should be noted that some changes noticed led to Roman law developing in no way
and for purposes of this article, these will be ignored.
2.1 The legal developments during the
Monarchy.
“The
law under the monarchy and the early republic is usually referred to as archaic
law because it was still in an early stage of development.”[11] (Emphasis is mine) During
this Monarchical era, people had their conduct regulated by a series of norms
called mores maiorum.[12] These norms were believed
to have been inherited from the Roman ancestors.[13] They (the social norms)
were also believed to have two categories of origin namely, human and divine
origin. During the early years of the Monarchy, which period maybe referred to
as the early Roman law period, there was no a clear distinction between the
norms of a divine origin and those with a human one.[14] Development of the law
was hence experienced when a distinction was made between human law (ius) and divine law (fas).
It
has been established that ius Quiritium was
the law which was applicable during the Monarchy and that there has been no
considerable developments in the law observed during the period of the
Monarchy. However, few social, political and economic factors were responsible
for the minor developments which took place during this period.
One
notable development of the lawwitnessed during the time of the Monarchy was the
making of a distinction between human law and divine law. This was observed
towards the end of the Monarchy.[15] However, the Romans did
not made a clear distinction between the human law and divine law as there was
still a bit of interaction between the human law and divine law for some years.[16] What is however important
is that there has been development to the existing ius Quiritium in the sense that a distinction was made, though not
absolute, between the norms of a human origin and those of a divine origin. One
question which may arise is therefore that, what factors were therefore
responsible for such a development? As already said, the factors can be broadly
categorized into social, political and economic factors. They all contributed
towards the development of the law witnessed towards the end of the Monarchical
era that is of the making of a distinction between human and divine law.
The
society of Rome consisted two elements namely, familia and the gens with
the pater familias being the head of
a familia.[17]
The pater familias was the only
person within a familia who had
rights in private law.[18] This means that he was
the only one who was entitled to property ownership. Those under his potestas and manus could acquire rights under private law once they became sui iuris. This led to the need for a
distinction between human law and divine law. The society of Rome was also
divided into the Plebeian and Patrician groups. The Patricians were believed to
be the descendants of the early nobility.[19] The Patricians were
therefore generally the rich land and slave owners. The growth in their numbers
(as they were property owners together with the pater familias of the familias)
led to the need for a distinction between human and divine law. Human law was
need specifically to govern the relations or conduct between man and man
especially in areas of property law. Generally, the Patricians were the rich
slave owners, land owners and cattle and could influence legislation. It is
most probable that by the end of the Monarchy, though still few, Rome had a
considerable number of the rich Patricians who influenced legislation in a way
that would render protection to their property hence a need for a distinction
between human and divine law.
The
population during the primitive stages of Rome, especially the early years of
the Monarchy, was relatively low such that Rome would only cover a fairly small
area.[20] By the end of the
Monarchy, the population had increased such that it became difficulty with a
notable growth in wrongs done to another to determine whether the wrongs so
done were a violation of human law or divine law. What was needed was some sort
of a distinction between human law and divine law to cure the problem that had
arisen where specific human laws were now needed. It must be recalled that the
distinction made during this period, that is the end of the Monarchy was not a
comprehensive distinction since the interaction between human and divine law
continued to exist into the Republican era.
The
main economic activities of Rome during the period of the Monarchy were
agriculture and cattle-rearing.[21] The growth in the farming
activities which was stimulated by the two of the last three kings of the
Monarchy pushed towards the distinction between human and divine law. The
lifestyle of the Etruscans as revealed by the Etruscan kings Tarquinius Priscus
and Tarquinius Superbus became largely based on agricultural activities. The
abovementioned kings were known for enhancing the economic life of the Romans
through building large temples and installing a drainage system notably known
as the Cloaca Maxima.[22] Such economic
developments witnessed during the last years of the Monarchy led to the need
for a distinction between human law and divine law as many individuals began to
own various pieces of land hence need for a separate body of law to regulate
inter-human conduct.
Due
to numerous efforts in building up the economy of Rome done by the Etruscan
last kings of the Monarchy, and the geographical location of the city, Rome
developed into a central trading port. Agricultural yields, cattle products,
slaves and many others were brought before the market for trade. The growth in
slave trade mainly led to the need for a distinction between human and divine
law. There was now need to provide a separate set of rules of procedure
involved in the trading of slaves for example the formula and words said on emancipation. There is thus no doubt the
economic activities were also at play in the minor development of the law
during the Monarchy.
The
political organization of the Monarchical era also led to the distinction
between human la and divine law.
The
king was the head of the state during this period. He received advices from the
senate whose other duties were to support the king, choose the king and would
assume supreme power called interregnum from
the death of the current king until the appointment of a new king.[23] The last three kings who
became known for introducing a new supreme command called imperium which gave them unfettered power over the administration
of justice, law-making, the army among other things. Such abuse of power led to
the overthrow of the Monarchical government giving way to the government of the
Republic, it is said. Given the background that all powers were now vested in
the hands of the king by the end of the Monarchy such that he could largely
influence legislation, it is most likely that the king saw the need to
distinguish between human law and divine law and also due to the fact that he
was involved in the settling of disputes of all kinds, he met difficulties in
the applicable laws in respect of the disputes concerned such that a
distinction between human law and divine law became unavoidable.
There
was an assembly of the people in the political structure of the Monarchy called
comitia curiata.[24]
The primary duty of the assembly was to vote on the laws proposed by the
king. Accordingly, their contribution
towards the development of the law during the Monarchy was inescapable as they
had a direct influence on legislation. Several laws were passed towards the end
of the Monarchy which laws became known as leges
regiae. These laws were collected at the end of the Monarchy by a pontifex maximus called Sextus Papirius.[25] It has been however
argued that these laws were simply pronouncements by the king on the position
of the law.[26]
As the king had also an intermediary role[27], he was the one
exclusively exposed to the norms with a divine origin and human origin, it is
most possible that he saw the need to make a distinction between human and
divine norms.
3. The Republican era.
Compared
to all the political phases, several and probably major developments in the law
occurred during the period of the Republic. It is believed that this period
commenced in 509 BC when the absolute power of the king was transferred to two
high-ranking magistrates with the senate retaining its advisory function.[28] During this period, a few
developments in the law happened during the Early Republic and a variety of
changes were then witnessed during late Republic where there were vast changes
in the organization of the state. These changes had a bearing on the law
itself. Before probing into a discussion of the various factors which made the
law into becoming better (development), it is important to first highlight the
law which was later on developed.
3.1 Development of law during Early
Republic.
As
noted above, there were few improvements in the law during the early years of
the Republic. During this early period of the Roman Republic (for 150 years),
law-making powers was in the hands of the college of pontiffs consisting of
about five Patricians.[29] The pontiffs following
the publication of the tables also, “continued in their role of giving opinions
(responsa) on the law”[30] and this saw the law
developing in many respects.One major development which took place during the
early Republican period was recording of the law. This process saw the law
being reduced down into writing. Before then, the norms regulating human
conduct within the boundaries of Rome were not recorded anywhere hence by mere
recording, development was noted. The purpose for recording the laws into
writing is something outside the purview of this article therefore will be
ignored. However, one purpose, interesting to mention is that, the recording of
the law saw the uplifting of a ban of intermarriages as it became clearly
stipulated in the tables that no intermarriage (between a Patrician and
Plebeian) was to be legally valid.[31] The recording of the law was hard-pressed by
the struggle between the orders which started around 500 BC.[32] The tensions were
aggravated by an increment observed during early Republic in the Plebeian
population which saw some Plebeian families becoming wealthier thus sought to
have equal rights and privileges as the Patricians.[33] It is believed that it
was a Plebeian tribune, C. Terentilius Arsa who proposed that the law be
written down in 462 BC.[34] This buttresses the view
that it was the struggle between orders, driven by the increase in numbers of
the poor Plebeians which led to the development of the law through reducing the
law down into writing.
By
reducing the law into writing, the law continued to develop for a century after
the law of the XII Tables now through interpretation[35] thus it is said, “legal
developments during this early period consisted very largely of interpretation
of the text of the XII Tables.”[36] In other words, new laws
began to be formulated through interpreting the tables. The law hence developed
in this way. During the early period of the Republic, the first phase of the legis actiones procedures (civil
litigations) were under the exclusive control of the pontiffs such that they
could influence development of law in many respects, through either widening or
limiting the scope of the procedure by interpretation.[37] By so doing, new laws
began to be formulated hence development of the law.[38] It can therefore be safely concluded that the
law developed during the early Republic through interpretation of the XII
Tables.
Development
during the early years of the Republic was also necessitated by the role played
by pontiffs in giving advices to the public concerning rule of law and, they
also played a critical role in the law-making process for about 150 years of
the early Republic.[39] They were being consulted
by the citizens and would give advice on the law but, “in their advice,
however, the pontiffs not only interpreted existing legal concepts, they also
introduced entirely new institutions while pretending to give interpretations.”[40] This led to the
development of Roman law. They got involved in giving responsum to magistrates or parties hence development of the law.[41]
Following
the law of the XII Tables, tensions between the orders increased such that the
law started to develop in some way. This was so because, since the law had been
written down, it was now easily accessible by the Plebeians. Given the fact
that the pontiffs were entitled to give advices on the rule of law as shown
above and an increase in number of the rich families from the Plebeians, the
long-standing resentment since 500 BC was captivated by the table which
uplifted the ban on intermarriage. This immediately led to the formulation a
new law called lex Canuleia hence
development of the law.
3.2 Development of law during the late
Republic.
A
perusal of various sources portrays the period of the late Republic as a period
where vast developments in the law were witnessed. It had been said that, “the
late republic saw a number of important changes in the law which can be
summarised by the terms secularisation, internationalisation and
liberalisation.”[42]
The late Republic became the period when Roman law was internationalized.[43]
The
changes brought in the legal field were mainly imposed by the expansion of
Roman power which expansion wielded an effect on the social and economic
structures of the day such that the old legal system became inadequate, for it
is said, “due to the expansion of Roman power and the changes that this expansion
brought about in the socio-economic field the old legal system was no longer
adequate.”[44]
The Romans now concentrated more on expansion as the differences which used to
exist amongst the societal groups in Rome had been extinguished following the
law passed in 367 BC called the leges
Liciniae Sextiae.[45]This
law brought an end to the long-standing conflicts between the Plebeians and
Patricians and also re-organized the state. Rome was engaged in a series of
wars during the late Republic. Rome managed to conquer the following
territories during the late Republic, Syria and Asia Minor (192-188 BC), Egypt
(30 BC), Celts (200-190 BC), several towns and cities in South of Italy (275
BC), Latium (338 BC), Phoenicia (264-201 BC), Macedonia (200-168 BC) and
several other groups.[46] This led to a growth in
the population of Rome. The conquered territories did not automatically
attained Roman citizenship.[47] They were supposed to
formerly acquire Roman citizenship so that they could be bound by the ius Civile which was only limited to
Roman citizens given the personality principle which was observed during these
periods. The personality principle would provide that a person is bound by the
law applicable in his/her respective territory. Since Rome had conquered many
territories a large influx of slaves and people with a foreign origin began to
be experienced in Rome such that to apply the personality principle, a lawless
and disorderly environment would be created, separate legislation was put in
place to cater for the foreigners within and outside the borders of Rome. There
is no doubt that this led to the formulation of the ius Gentium which operated side by side with the ius Civile. The former became the
international law of the day and became used to regulate the conduct amongst
foreigners themselves and Roman citizens. The foreigners could not institute
the old legis actio procedure. There
was hence need to develop the law and it was during the late Republican times
when the formulary procedure was formed and could be used by foreigners in
almost the same way as Roman citizens.[48] By so doing, the law was
developing. This also saw a second praetor being appointed in 242 BC for
purposes of carrying out civil litigation between Roman citizens and foreigners
and between foreigners themselves.[49] This second praetor came
to be known as praetor peregrines and
the praetor urbanus became solely
responsible for matters between Roman citizens.[50] The appointment of
praetors to the development of law in many ways for instance;
Praetors
contributed to the development of the law in the sense that, they had ius edicendi therefore could introduce
new legal remedies available to parties when supervision of civil litigation
had passed from the hands of pontiffs to the praetor in 367 BC.[51] It is also said that,
“…in the late republic the praetor set about creating a new way of civil
litigation, the formulary procedure, and began drawing up new legal norms.”
Development was noted mainly because the old procedure existed before the late
Republic, the legis actio could not
be instituted by foreigners[52] of which due to a number
of reasons, the number of foreigners had increased by late Republic, and hence
there was need for a procedure to accommodate both foreigners and Roman
citizens. The private law of Rome also developed due to the contribution of the
praetor who was responsible for developing a new complex of private law which
came to be known as the ius praetorium or
ius honorarium.[53]This
law was formulated since, “in those days Rome, with its port of Ostia, began to
become a very important centre of trade. These changes led to the development
of a new complex of Roman private law which came to be known as iuspraetorium or ius honorarium.”[54]To
signify a development in the law, this newly formed law was first used side by
side with the ius Civile and was
later on merged to the latter.[55]
Population
growth also contributed to several developments which took place in the Roman
legal system during the end of the Republic. This is so for it is said that,
“it was not until 287 BC when, due to territorial expansion, there were more
plebeians than patricians, that the plebiscites were declared binding for all
the people by virtue of the lexHortensia.”
This shows an apparent development which took place during the late Republic
due to territorial expansion. Before then, plebiscites were regarded binding on
the Plebeians alone. Another most probable reason which led to the passing of
the lex Hortensia is that, the
distinction between these orders (Patrician and Plebeian) had since been wiped
away in 367 BC following the passing of the leges
Liciniae Sextiae. It is also argued that following the leges Liciniae Sextiae, the society was now divided into three new
orders namely, the equites, senatorial
aristocracy and the middle and lower classes.[56] This furthered
development of Roman law in the sense that since the plebiscites had also
acquired the status of a law (lex) hence
binding on every citizen, several laws began to be made. This was however only
until the first century BC, “when the Roman republic was caught up in an
administrative crisis and the assembly had lost a good deal of its influence.”
Several
developments in the criminal law were also noted in the late Republic thus it
is said, “it was not until the last century of the republic that penal law
began to develop: the number of punishable offences and the number of courts
were increased.”[57]
During the Early Republic, “a large group of offences was regarded as being
harmful to the individual citizen but not to the state; the perpetrators were
therefore not prosecuted by the state.”[58] Conversely, “about 100
BC, when Rome had grown into a large town with all the associated problems,
this system was no longer adequate.”[59] The developments in
criminal law during the late Republic were therefore caused by population
increment in Rome. The following measures were taken hence development; all
low-ranking magistrates were clothed with criminal jurisdiction[60] and permanents courts
were established to deal with specific offences.[61] Legislative measures were
also taken during this period in furtherance of the development of penal law.[62] All these measures
contributed towards the development of Roman penal law hence development of
law.
Administration
of justice also played a fundamental role to the development of Roman private
law.[63] It was during this time
of the Republic when there was an increase in the number of courts as shown
above. This led to the increase in the number of officers of the court namely,
judges, magistrates, advocates etc. The judge was responsible for the second
phase of the newly formed formulary procedure[64] which could now be
instituted by foreigners unlike the old legis
actio. The judge could instruct the praetor to alter the formula in question hence leading to
development of private law.[65] Advocates also played a
crucial role in the development of Roman law. They emerged during the late
Republic as it was the time when the prestigious order became the senatorial
aristocracy and for one to be appointed to the senate, he should have served as
in the high-ranking magisterial office. Advocates worked in courts mainly to
gain and reputation such that they may be elected as magistrates[66] and “in this way the
advocates through their speeches and the judges through their verdicts made an
important contribution to the development of Roman law.”[67]
The
jurists who had a special knowledge of Roman law contributed to development of
Roman legal science.[68] They, “directly
contributed to the development of the law in two fields: giving opinions on the
law (responsa) and the writing of
legal works.”[69]
Jurists had a respondere role that is
giving opinions on a legal problem and, “by giving responsa and engaging in several other practices the jurists helped
to develop private law; they also began to record the responsa they had given in writing, arrange them in a certain order
and publish them.”[70]
The curule aediles also emerged during the
Republic with a role of supervising the market. They had the right to issue edictas on the law of sale and, “by
issuing edicts on the law of sale the aediles
contributed considerably to the development of Roman private law.”[71]
It
was during this period when the power of the senate was increased leading to
some developments in the law. Before 339 BC, the decision made by the assembly
on matters of law was not valid until approved by the senate. A law which was
passed in 339 BC, the lex Publilia
Philonis changed this old position and provided that the proposed laws were
supposed to be ratified by the senate before going before the assembly.[72] Another law was also
passed, lex Maenia also, “stipulated
that proposals regarding the election of magistrates also had to receive the
prior agreement of the senate.”[73] These developments saw
the senate wielding exclusive powers over legislation to be passed. Senators
were now chosen by the two censors from amongst those who would have previously
served as magistrates following a law passed in 312 BC, the lex Ovinia.[74]This
law came after the leges Liciniae Sextiae
of 367 BC which put an end to the conflicts between the Patricians and
Plebeians enabling members from the Plebeian families to serve as magistrates.
The increased power of the senate did not apply to plebscites being laws coming from the assembly of the Plebeians[75], the concilium plebis. More laws began to flow from the senate towards
the end of the Republic as it is said that, “in the first century BC,…it
sometimes happened that a proposed law which had been approved by the senate
was no longer put to the assembly but came into force immediately. The senators
could pass senatorial decrees which by the late Republic, were regarded as a
source of law, just as the leges and
plebscites.[76]
This shows that the rate at which laws were now being made had relatively
increased due to the increase in senatorial power hence development of law.
4. The Principate.
The
Principate period came after the Republican era. Several political changes were
noted with probably the most important one the introduction of emperors. These
political changes became the major driver of the changes in the legal field.
The
period became known as the Golden Age of Roman law.[77] Roman law was now at a
developed stage thus, “nowadays the law of this period is normally referred to
as classical law.” (Emphasis is
mine). Pure Roman law was still applicable during this era. It was not until
the end of the Republic when Roman citizenship was extended over the whole of
Italy.[78] This means that Roman law
was also now applied in Italy. The position was changed, “…when Roman
citizenship had been granted via the constitutio
Antoniniana to all free inhabitants of the empire at the beginning of the
third century, all these people could now participate in Roman law.”[79] This does not mean that
local laws were not in force[80] most probably because of
the personality principle which was being observed. Roman law thus became
applied together with other laws applicable in conquered territories.
4.1 Development of the law.
“The
beginning of the principate was marked by sweeping changes in the law”[81] The population had increased and it reached
its maximum point during the Principate.[82] The empire now covered
also large parts of central and Western Europe.[83] This population growth
saw several developments in the law. A remarkable development was the extension
of Roman citizenship to all the free inhabitants within the empire such that
they could also participate in Roman law. Local laws however retained their
force of law with a result of the fusion of Roman law with local laws hence
development.[84]
During
this period, “real power was now in the hands of the emperor.”[85] Accordingly, supervision
of legislation was transferred from the senate to the emperor.[86] Development was however,
gradual in the early years of this era since the emperor by virtue of his
imperial powers could influence the content of the laws which were still being
made by the comitia and senate during
the first years of the Principate.[87] However, “in the long run
the emperors themselves began enacting laws”[88] for instance through
passing decrees (decreta)[89]
and thus, “ultimately, the republican methods of legislation fell into disuse.”[90] It was now emperors who
were vested with legislative powers[91] with the example of
Emperor Claudius who passed the lex
Claudia.[92]This
shows that emperors were no longer indirectly influencing law-making since,
“…they themselves also created new law.”[93] This was development in
the sense that magisterial edicts of the Republican era were only binding
whilst the magistrate concerned was still in office, imperial edicts had an
unlimited validity[94] that is they were binding
even after when the emperor concerned had left office. Moreover, emperors could
issue binding edicts in any field[95] yet, magistrates were
only allowed to issue edicts on issues falling within his field[96], for instance, aediles could issue edicts concerning
the market. The emperors also created new law through giving advices on legal
problems concerning the law. His advices were written, the rescripta[97]and
were binding[98]
and in the Principate, the rescripts were important for the development of the
law.[99] The emperor was also
responsible for the development of the law because it was during this era when
the emperor issued mandates to his officials and, “because mandates could be
relied upon by other citizens as well, they began to be regarded as a form of
legislation”[100]
and these instructions or mandates became, “important in developing certain
branches of law.”[101]
The
work of classical jurists also led to legal developments during this era for it
is said that, “the jurists of the principate did much to develop and elaborate
Roman law.”[102]
Law schools were established in the first century[103] and it was the jurists
who were leaders of the schools for they had exceptionally good knowledge of
the law.[104]
The jurists did not cease giving responsa
during the Principate.[105] This time, since the
opinions had an imperial backup, they became binding even on judges.[106] It appears that the
powers of classical jurists were increased during this time by virtue of the
privilege granted by the emperors to issue binding responses. Their responses
were collected and the also started publishing introductory textbooks.[107]
Several
improvements were also noted in both criminal and private law during this era
due to political changes and changes in the administration of justice. Though
the formulary procedure (in private law) and quaestiones (for criminal offences) were still used in early
Principate,[108]
a new form of procedure was formulated called cognitio extraordinaria which, “was used by or on behalf of the
emperor in connection with both types of case.”[109] Administration of
justice was now in the hands of provincial governors and officials applied the
newly formed procedure in both private and criminal offences.[110] In criminal law, the old
position that had a great probability of complaints being lodged by people
without a peculiar interest in the matter as any citizen was allowed to bring a
complain became obsolete since, “by the end of the principate all that was left
was a sort of complaint which could be put forward by the injured party.”[111] City prefects and
governors were given criminal jurisdiction, this led to development in criminal
law as jurists who had a specialized knowledge of the law could also serve as
prefects.[112]
5. The Dominate era.
Roman
law became fully developed during this era. It became the last phase in the
political history of Rome. The legal developments culminated with the Justinian
law which came during this period.
5.1 The legal developments during the
Dominate.
Roman
law continued to be applied however, “legislation in the dominate shows the
intrusion of non-Roman elements and of vulgar law into official Roman law.”
This caused uncertainty concerning the content of the law leading to Justinian
codification.[113]
After the codification, the law which became applicable was the code, Corpus Iuris Civilis.
A
major development which took place during the Dominate was codification of the
law. In the political setup, the emperor now exercised exclusive legislative
powers unlike the Principate era.[114] This is a probable
reason which led to the major development (codification) during this era.
Another reason is of a social nature. During this era, the empire had grown so
big to such that every free inhabitant was allowed to participate in Roman law
leading to intrusion into the official Roman law by non-Roman elements. To put
an end to such a setting, there was need for a uniformly observed law hence
codification. It is true that before then, no law was codified. Given such a
population growth and scattered pieces of legislation, it became inevitable to
encounter difficulties.
The
establishment of more law-schools had an impact on the development of the law.
This is so for, “it was also at these schools that the foundation was laid for
Justinian’s codification of the law.”[115] The main purpose for
these schools was for training of people to work in civil service.[116] The schools also
produced qualified advocates which in turn led to the development of the law
through speeches now of professional advocates.
Before
the major development which occurred during the Republic, there were also other
important developments which had occurred. In the criminal side, “the range of
offences for which prosecution could be instituted was widened considerably.”[117] Since legislative powers
were now exclusively in the hands of the emperor, both the old and new offences
were now based exclusively on imperial constitutions (leges generates).”[118]
The
rise of Christianity also led to development of the Roman law. Special
procedure for Christians became available[119] whilst bishops assumed
judicial powers.[120] The most probable reason
for the latter position is that, Christianity as it was a state religion, it
dominated over the empire such that bishops became important. There was also a
legislative need to govern the state-church relations. More special courts were also established for
specific matters and persons.[121]
During
this era, there were changes in the administration of justice.[122] The cognitio procedure was still observed and minor changes were note.
It became common during this period that parties were represented by
professional advocates from the law schools.[123] The consilium which had been responsible advising the emperor during
the Principate was now outmoded by the consistorium,
which, “functioned as a kind of council of state and supreme court.”[124]
BIBLIOGRAPHY
Baumann R. A, (1983): Lawyers in Roman Republican Politics. A
Study of Roman Jurists in their Political Setting- BC, Munich, Beck
Cary H, and Scullard H. H, (1975): A History of Rome 3rd ed-
Macmillan, London.
Du Plessis P, and Borkowski A, Textbook on Roman Law 4th ed- OxfordUniversity
Press Inc, New York.
Ferenczy E, (1976): From the Patrician State to the
Patricio-Plebeian State- Amsterdam, Hakkert
Gardner J. F, (1986): Women in Roman Law and Society- Croom
Helm, London and Sydney.
Jolowicz H. F, and B.Nicholas B,
(1972): Historical Introduction to the Study of Roman Law 1, 3rd
ed- Cambridge University Press, Cambridge.
Nicholas B, (1962): An Introduction to Roman Law- OxfordUniversity
Press Inc, New York.
Olga E, (2003): A Short History of Roman Law- Taylor & Francis e-Library
Schulz F, (1946): History of Roman Legal Science- Oxford, Clarendon.
Sherwin-White A. N, (1973): The Roman Citizenship 2nd ed- Oxford,
Clarendon.
Spiller P, (1985): A Manual of Roman Law- Butterworth
Publishers (Pvt) Ltd, Durban.
Watson A, (1975): Rome of the XII Tables- Princeton University Press, Princeton.
Wolff H. J, (1951): Roman Law: An Historical Introduction- University
of Oklahoma Press, Norman.
[1] Student, Faculty of Law, Midlands
State University, Gweru, Zimbabwe.
[2] Ph. J. Thomas Introduction to Roman Law (1986) 1.
[3] H. J. Wolff Roman Law: An Historical Introduction (1951) 7
[4] H. F. Jolowicz and B.Nicholas Historical Introduction to the Study of
Roman Law (1972) 1, 3rd ed.
[5] B. Nicholas An Introduction to Roman Law (1962) 10.
[6] Wolff(n 3 above) 45.
[7] Wolff (n3 above) 8.
[8] P. Du Plessis and A. Borkowski Textbook on Roman Law 4th ed. (2010)
[9] Du Plessis and Borkowski (n8 above)
[10] E. Olga A Short History of Roman Law (2003) 110
[11] Olga (n10 above) 17.
[12]Olga (n10 above) 17.
[13]Olga (n10 above) 17.
[14]Olga (n10 above) 17.
[15] “…at the end of the monarchy, the
Romans began to distinguish between human and divine norms…” Olga (n1o above)
17.
[16] Jolowicz and Nicholas (n4 above) 30.
[17] A. Watson Rome of the XII Tables (1975) 47.
[18] Olga (n10 above) 6.
[19] E. Ferenczy From the Patrician State to the Patricio-Plebeian State (1976) 15.
[20] Olga (n10 above) 9.
[21] “Agriculture and cattle-rearing were
the main means of livelihood.” Olga (n10 above) 9.
[22] Olga (n10 above) 11.
[23]Olga (n10 above) 11.
[24] “Under the monarchy the usual form of
assembly was the comitia curiata” Olga
(n10 above) 11.
[25] Olga (n10 above) 19.
[26]Olga (n10 above) 19.
[27] Olga (n10 above) 10.
[28] Jolowicz and Nicholas (n4 above) 30.
[29] “During that period the college
consisted of about five patricians.” Jolowicz and Nicholas (n4 above) 30.
[30] P. Spiller A Manual of Roman Law (1985) 4.
[31] “The purpose of codification was not,
as one might think, to achieve complete equality in law for patricians and
plebeians; the first step in that direction was the lifting of the ban on
marriage between the two orders in 445 BC.” Olga (n10 above) 20.
[32] Olga (n10 above) 7.
[33] “In the early years of the republic
the number of impoverished plebeians increased whereas some plebeian families
became wealthy and sought to have the same rights as the patricians. This gave
rise to considerable tensions.” Olga (n10 above) 7.
[34] Olga (n10 above) 19.
[35] “For a century after the Law of the
XII Tables had been formulated new law was developed mainly by interpreting
this law, later laws and the legis
actiones based upon them.” Olga (n10 above) 24.
[36] Spiller (n30 above) 4.
[37] “As was stated earlier, the pontiffs
had control over the first phase of the
legis actio procedure and could exert considerable influence on the
development of the law. They could widen the scope of a legis actio by interpreting it broadly
or they could restrict its scope by interpreting it narrowly.” (Emphasis added.)Olga (n10 above) 24.
[38] “Another well-known example of
lawmaking through interpretation by the pontiffs is the way in which the emancipatio of sons was made possible.”
Olga (n10 above) 24.
[39] “During the first 150 years of the
republic law-making was in the hands of the college of pontifices…..the pontiffs have always been regarded as guardians of
the law.” Olga (n10 above) 18.
[40] Olga (n210above) 24.
[41] F. Schulz History of Roman Legal Science (1946) 7. See also Jolowicz and
Nicholas (n4 above) 88-9.
[42] Olga (n10 above) 48.
[43] “A change that was remarkable for the
times was the internationalisation of Roman law within the frontiers of the
Roman territory.”Olga (n10 above) 48.
[44] The law applicable during the
primitive stages of the state of Rome, later known as ius Civile during the Republic became inadequate for such an
enlarged territory.
[45] Olga (n10 above) 30.
[46] Olga (n10 above) 30.
[47] Olga (n10 above) 8.
[48] Olga (n10 above) 48.
[49] “In the early days there was only one
praetor, but in 242 BC a second one was appointed for the purpose of
supervising the civil litigation between Roman citizens and foreigners and
between foreigners.” Olga (n10 above) 41
[50] M. Cary and H.H. Scullard A History of Rome (1975) 172. 3rd
ed.
[51] Olga (n10 above) 48.
[52] “Because these foreigners, who were referred
to as peregrini, had no access to the
old legis actio procedure….the new
procedure that developed from this was called the formulary system; it could be
used almost equally by Roman citizens and peregrini.”
Olga (n10 above) 48.
[53] Olga (n10 above) 49.
[54] Olga (n10 above) 49.
[55] Olga (n10 above) 49.
[56] Jolowicz and Nicholas (n4 above)
78ff.
[57] Olga (n10 above) 49.
[58] Olga (n10 above) 51.
[59] Olga (n10 above) 51.
[60] “low-ranking magistrates were
appointed, the tresviri capitales,
who judged cases, reported by citizens, involving violent crimes, arson, the
making and possession of poison, etc.” Olga (n10 above) 51.
[61] Olga (n10 above) 52, “in 149 BC the lex Calpurnia established the first
court for a particular type of offence, namely the quaestio de repetundis.” And, “Thereafter a few more quaestiones perpetuae were established”
[62] Olga (n10 above) 49, “It is striking
that whereas the new elements in penal law were based largely on legislation…”
[63] “Private law developed mainly within
the framework of the administration of justice and legal science.” Olga (n10
above) 49.
[64] Olga (n10 above) 22.
[65] “By accepting or rejecting a claim
concluded in a formula the judge
could make the praetor alter the formula
concerned and thus contribute to the development of private law.” Olga (n10
above) 57.
[66] “…but by serving as advocates they
hoped they would win support in the elections to the magistrature or would
enhance their reputation in some other way.” Olga (n10 above) 58.
[67] Olga (n10 above) 59.
[68] R. A. Baumann Lawyers in Roman Republican Politics. A Study of Roman Jurists in their
Political Setting (1983) 316.
[69] Spiller (n30 above) 14.
[70] Olga (n10 above) 49.
[71] Olga (n10 above) 42.
[72] Olga (n10 above) 39.
[73] Olga (n10 above) 39.
[74] Olga (n10 above) 38.
[75] Olga (n10 above) 39.
[76] Olga (n10 above) 50.
[77] Olga (n10 above) 127.
[78] A.N. Sherwin-White The Roman Citizenship (1973) 221 ff, 2nd
ed.
[79] Olga (n10 above) 126.
[80] Olga (n10 above) 126.
[81] Olga (n10 above) 83.
[82] “The Roman empire attained its
maximum size in the Principate…” Olga (n10 above) 66.
[83] Cary and Scullard (n50 above) 331ff.
[84] “As a result Roman law began to
influence local laws and in the long run local laws also influenced Roman law”
Olga (n10 above) 126.
[85] Olga (n10 above) 73.
[86] “Whereas under the republic the
senate basically had been responsible for lawmaking, power now shifted to the
emperor and law too came into his sphere of influence.” Olga (n10 above) 83.
[87] Jolowicz and Nicholas (n10 above)
353-420.
[88] Olga (n10 above) 83.
[89] Spiller (n30 above) 19, “the judicial
decisions which he pronounced after the court hearing were known as decreta. These decreta were regarded as binding statements of law for all future
cases.”
[90] “…the leges-plebiscites by the end of
the first century and the senatorial decrees by the beginning of the third
century.” Spiller (n30 above) 19.
[91] Spiller(n30 above) 18, “Besides
indirectly controlling legislation, the emperor directly created new legal
rules in a number of ways.”
[92] J. F. Gardner Women in Roman Law and Society (1986) 14.
[93] “In the third century emperors no
longer submitted their proposals for approval by the senate and in this way the
senatorial decrees disappeared formally as a source of law.” Olga (n2 above)
86.
[94] Olga (n10 above) 87.
[95] Spiller (n30 above) 19, “the emperor
was a magistrate and so he had the right to issue edicts…the edicta dealt with such divergent issues
as private law, criminal law, the constitution of the courts and the bestowal
of citizenship.”
[96] “…the magistrates could only issue
edicts within their own sphere of power; the imperial edicts referred to
everything that had to do with the state.” Spiller (n30 above) 19.
[97] Spiller (n30 above) 19, “Rescripta became particularly important in
the development of the law in the second century…”
[98] Olga (n10 above) 86.
[99] “In the principate the rescripts
important for the development of law had been published because the jurists
mentioned them in their collections of responsa.”
Olga (n10 above) 136. The mere fact that they were mentioned by jurists when
they gave advices on the law shows that the law was developing.
[100] Olga (n10 above) 87. Mandates were
instructions issued by the emperor to his officials.
[101] Spiller (n30 above) 19.
[102] Olga (n10 above) 84.
[103] Olga (n10 above) 98.
[104] “…because he had an exceptionally
good knowledge of the law he was the leader of the earlier school of Capito.”
Olga (n10 above) 102.
[105] “Legal science was still in the hands
of the jurists. Their activities now concentrated on the giving of opinions.”
Olga (n10 above) 83.
[106] Not all jurists had ius respondendi, the right was now
sanctioned by a privilege granted by the emperor. Olga (n10 above) 96.
[107] Olga (n10 above) 84.
[108]
“In the principate justice continued to be administered via the formula
procedure in the case of disputes coming under private law (and in certain
cases by means of legis actiones) and
by means of the quaestiones in the
case of criminal offences.” Olga (n10 above) 83.
[110] Olga (n10 above) 91.
[111] Olga (n10 above) 93.
[112] Olga (n10 above) 94.
[113] Olga (n10 above) 140.
[114] “Legislation, which in the principate
had been characterized by pluriformity, now stemmed exclusively from the
emperor.” Olga (n10 above) 124.
[115] Olga (n10 above) 134.
[116] “The purpose of these schools was to
train people for functions in the civil service.” Olga (n10 above) 133.
[117] Olga (n10 above) 130.
[118]
Olga (n10 above) 130.
[119] Olga (n10 above) 129.
[120] “…bishops were granted judicial
powers.” Olga (n10 above) 124.
[121] Olga (n10 above) 124.
[122] “Under the dominate the normal
administration of justice was largely in the hands of the imperial officials.”
Olga (n10 above) 128.
[123] Olga (n10 above) 132.
[124] Olga (n10 above) 119.
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