Roman Law

  • The Legal system of Ancient Rome was divided into Written Law (jus scriptum) based on the Twelve Tables and other documents and legislation, and the Unwritten Law (jus non scriptum) based on ancient custom.
  • Between 27 BCE-250 CE the Roman Legal System developed into its greatest level of refinement, and is known as the ‘Classical Period of Roman Law’. The Roman legal system has had a strong influence on modern legal systems.

1. The Roman Legal System

  • Roman Civil Law
  • Roman Criminal Law
    • Sulla (138-78 BCE) introduced a system of standing jury courts.
    • Criminal Charges fell into five categories:
      • Crimes for personal gain, violent crimes, sexual crimes, crimes against the State and crimes that disrupted law and order.
  • Roman Punishments
    • Punishment varied from ordinary Fines to more serious Punishments such as Exile, Slavery or Death.
  • Roman Trials
    • Under the Republic, Trials took place before the Assemblies and later, there were Trials by specialised Juries.
    • Under the Empire, Trials were conducted by professional Magistrates who passed judgements.
  • Right of Appeal
    • ‘Provocatio’ was the Right of Appeal. Under the ‘Lex Valeria de Provocatione’ (300 BCE), the Magistrate was obliged to allow an Appeal to be requested. Whereas before, the request to Appeal against a judgement existed, but was not mandatory.

2. The Twelve Tables

    • The Twelve tables were the Civil Laws of Rome and formed the basis of the Constitution of the Roman Republic.
    • However, the Constitution was largely unwritten and so had no Codes. Therefore, new Acts and Edicts were formulated on the basis of Precedent, i.e. the previous judgements of the courts.

3. Constitution of the Roman Republic

  • The Constitution of the Republic was based on the Twelve Tables
    • Jurisprudence was mostly unwritten and governed by customs and precedent known as Mos Maiorum or the ‘custom of the ancestors’.
  • The Constitution under the Republic (509-27 BCE)
  • The Constitution under the Empire (27 BCE-476 CE)
    • Augustus did not change the Constitution of the Republic, which was designed so that no one man could become too powerful.
    • However, by combining all the chief Offices of State into one Person, himself, he changed the Roman Republic back into a Monarchy in all but name.

4. Mos Maiorum

    • Mos Maiorum meant ‘Ancestral Tradition’ to the Romans.
    • Roman Social Tradition was unwritten, but preserved instead through Social Custom.
    • It was the Duty of every Paterfamilias to uphold Roman Social Customs. Social Censure by fellow Romans would follow if the Paterfamilias did not conform, and this acted as a sufficient discipline.
    • The Duties of Mos Mairum were:
    • Fides (Trust), Pietas (Respect), Religio (Worship), Disciplina (Discipline), Gravitas (Self control), Constantia (Perseverance), Virtus (Honour), Dignitas (Honour) and Auctoritas (Authority).

5. Imperium

    • The basis for Roman Government was the concept of Imperium, which was conferred by the Roman Law, ‘Lex Curiata de Imperio’, and gave the legal Right to Command, both military and civil.
    • Unauthorised exercise of Imperium was a capital offence.
    • Imperium was implemented by an Imperator, a commander such as the Consul, Proconsul, Prefect, Promagistrate or the Emperor.

6. Public Law and Private Law

  • Ius Publicum
    • Public Law protected the interests of the State and concerned the Constitution of the Roman Republic and Mos Maiorum and its relationship to the Roman citizen.
  • Ius Privatum
    • Private Law protected the interests of the Private Individual and concerned the relationship between two private citizens in civil law, such as in a Contract.

7. Private Property and the Contract

  • Law of Contract
    • The ‘Stipulatio’ was the basis of the Contract in Roman Law.
    • The ‘Rei Vindicatio’ was the legal action by the plaintiff to force the defendant to return his possessions.
  • Gaius (130-180 CE)
    • In c. 160 CE, the Roman Jurist Gaius developed the concept of private law based on persons (personae), things (res) and legal actions (actiones).
  • Tort
    • The Lex Aquilia (286 BCE) laid down the basis for the Law of Tort, still in use today.

8. The Classes of Roman Law

    • Ius Publicum (public law)
    • Ius Privatum (private law)
    • Ius Civile (citizen law)
    • Ius Scriptum (written law)
    • Ius non Scriptum (unwritten law)
    • Ius Commune (ordinary law)
    • Ius Singulare (exceptional laws for groups of individuals outside of ordinary law)

9. The Classical Period of Roman Law (27 BCE-250 CE)

    • Between 27 BCE-250 CE the Roman Legal System developed into its greatest level of refinement, and is known as the ‘Classical Period of Roman Law’.
    • Since the Constitution was largely unwritten and had no Codes, new Acts and Edicts were formulated on the basis of Precedent, i.e.: the previous judgements of the courts.
    • In 129 CE the Perpetual Edict or Standard Edict was issued by Salvius Julianus, which laid out the basis for Praetors to use when issuing any Edict. It replaced the Praetor’s Edict which had been issued each year by the incoming Praetor. From then onwards, the law could not be revised without permission from the Emperor.
    • Roman Law also established the difference between ownership and possession, and the difference between contract and tort.
    • In c. 160 CE, the Roman Jurist Gaius developed the triple concept of private law, based on persons (personae), things (res) and legal actions (actiones).

10. Timeline of Roman Jurisprudence

  • 449 BCE
  • 449-201 BCE
    • The Main Statutes were passed protecting the Plebians in Law. As the Roman Republic progressed it produced a Body of Men, the Magistrates and Praetors, who studied and refined the Roman Laws into a science.
  • 200 BCE
    • ‘Lex Valeria de Provocatione’ (300 BCE)
      • ‘Provocatio’ was the Right of Appeal. Under the ‘Lex Valeria de Provocatione’, the Magistrate was obliged to allow an Appeal to be requested. Whereas before, the request to Appeal against a judgement had existed, but it was not mandatory.
  • 201-27 BCE
    • Ius Honorarium (date unknown)
      • This Law permitted the Magistrates and Praetors to pass Edicts making adjustments to the existing Law.
      • This led to the creation of ‘Praetoric Law’ as separate from Civil Law. The Praetors were constantly working on the Edicts of their predecessors to produce new Laws.
  • 129 CE
    • Perpetual Edict (c. 129 CE)
      • The ‘Edictum Perpetuum’ under Hadrian. was a final revision of the Praetor’s Edict which could no longer be modified each year by the incoming Praetor. Only the Emperor could make any changes.
  • 138-161 CE
    • Antoninus Pius (138-161 CE)
      • He introduced into law the concept that prisoners were ‘Innocent until proven Guilty’ before the Trial.
  • c. 160 CE
    • The Roman Jurist Gaius
      • He developed the triple concept of private law, based on persons (personae), things (res) and legal actions (actiones).
  • 429 CE
    • Codex Theodosianus (439 CE)
      • This consisted of 16 Books containing c. 2,500 Constitutions (Principles) of Roman Law passed by the Christian Emperors since 312 CE.
  • 529-534 CE
    • Digest of Justinian or ‘Corpus Juris Civilis’
      • Praetoric Law and Civil Law were finally united in the ‘Corpus Juris Civilis’ which was issued between 529-534  CE under Justinian I. All known Roman Laws were grouped into four sections.

11. Famous Roman Jurists

  • Under the Roman Republic:
    • Quintus Mucius Scaevola (died 82 BCE),
    • Marcus Tullius Cicero (106-43 BCE)
    • Servius Sulpicius Rufus (106-43 BCE).
  • Under the Roman Empire:
    • Gaius (c. 130-180 CE)
    • Salvius Julianus (110-170 CE)
    • Papinian (c.142-212 CE)
    • Ulpian (c. 170-c. 223 CE)
    • Julius Paulus Prudentissimus (2nd-3rd century CE)
    • Herrenius Modestinus (c. 250 CE)

12. Litigation

  • ‘Legis Actio’ System (c.450 – c.100 BCE)
    • This was the earliest type of legal civil procedure and was performed formally with the repetition of exact formulas and actions, similar to those performed in Religious ceremonies.
  • ‘Formulary’ System (c.100 BCE-200 CE)
    • Under the early Republic, the ‘Formulary’ system was used where the Judge was simply a private Roman citizen that both sides could choose together.
    • The judge would often consult a jurist before passing judgement, but he was under no obligation to do produce a judgement.
  • ‘Quaestio perpetua’ (149 BCE-200 CE)
    • These were permanently standing jury courts, open to any citizen to bring a case, created by the Lex Calpurnia de Repetundis in 149 BCE.
    • They replaced trials before an Assembly that had to be convened especially by a Magistrate.
    • Originally comprised of Senators, but after the Lex Aurelia of 70 BCE, the jury was equally divided between Senators, Equites (Knights) and the Tribuni Aerarii.
    • They were eventually replaced by the courts of the ‘Cognito extra ordinem’.
  • ‘Cognitio extra ordinem’ System (c. 200 CE onwards)
    • Later the procedure was changed to the ‘Cognitio extra ordinem’ system.
    • Here the case was conducted before a Magistrate who was obligated to produce a judgement. This could then be appealed before a higher Magistrate.

13. The Roman Law Courts

  • Centumviral Court
    • The Centumvirii were a group of one hundred judices who were not Magistrates, but who offered to apply the Ius Commune (ordinary law).
    • This court was a civil law court for hearing disputes of Wills and Debts.
    • It was eventually located in the Basilica Julia from the c.50 CE onwards.
  • The Roman Senate House
    • From the Early Empire onwards, Criminal Trials of Senators could take place in front of the Roman Senate.
  • The Roman Forum
    • Trials could be held anywhere, including outdoors in the Forum, inside Private houses or in Temples.
  • The Basilica
    • Trials could be held in the Basilica Julia
    • Trials in the Provinces could be also held in a Basilica located in the Forum.

14. Roman Citizenship

    • Under Roman Law, certain Rights were conferred on the citizen depending on the type of Roman Citizenship that was held.
    • These Rights controlled the citizen’s status regarding the Law, Elections and how he was governed.

15. Collections of Roman Laws

  • Roman Edicts List
    • This is a list of the more famous Edicts issued between 445 BCE to 393 CE.
  • Perpetual Edict (c. 129 CE)
    • The Perpetual Edict (Edictum Perpetuum) replaced the annual Praetor’s Edict which had been issued each year by the incoming Praetor. No further changes were permitted without the Emperor’s permission.
    • It was done in c.129 CE, under Hadrian (117-138 CE), and designed to be used as the Standard for Civil Jurisprudence. It included the Twelve Tables and all previous Edicts and Decrees of the Roman Senate.
  • Codex Theodosianus (439 CE)
    • This consisted of 16 Books containing c. 2,500 Constitutions (Principles) of Roman Law passed by the Christian Emperors since 312 CE.
    • It was enforced by Theodosius II in 439 CE.
  • Digest of Justinian (529-534 CE)
    • Although this was published under the Byzantine Empire after the Western Roman Empire had ended, it forms a very useful compendium of Roman Laws for historians to study.

16. Roman Prisons

  • Roman Prisons
    • These were not a form of punishment like today’s prisons, but for individuals awaiting Trial, which sometimes took years.
  • Mamertine Prison
    • The Mamertine Prison, also known as the Tullianum, was located adjacent to the Roman Law Courts in the Forum Romanum in Rome. Prisoners of high standing were held here temporarily prior to their Trial.
  • Gemonian Stairs
    • After execution in Rome, usually by strangulation, the Body was bound and then thrown down the Gemonian Stairs and left to rot in full view of the Forum Romanum, for a long period.

17. Roman Punishments

  • List of punishments:
    • Fines (Damnum)
      • These were applied for misappropriation of property, misuse of funds or adultery.
    • ‘Capital’ crimes
      • This did not lead to execution but meant the individual was deprived of his estate and his citizenship, and forced to live beyond Roman territory, under the threat of execution if he stayed.
    • Exile (Exilium):
      • This was usually for convicted members of the upper class.
      • ‘Relegatio’ was a temporary banishment, whereas ‘Deportatio’ meant deportation to a specific island.
    • Slavery
      • Individuals were sold into Slavery, usually for indebtedness known as ‘Nexum’.
      • The Slave (Servitus) was the Property of his Master. In Roman Law, the Slave had no legal status as a person, no persona, no name or Cognomen, no personality, no past and no Goods. They did not own their own body.
    • ‘Homo Sacer’ (Meaning a sacred or accursed man)
      • This was a Person who had been banned under Roman Law as cursed and could be killed by anybody, but not in a religious sacrifice.
    • Death
      • This could be by Beheading, Strangling, Throwing over a cliff, Drowning or Burying alive.
      • Crucifixion was a punishment performed by the Roman State against Pirates, rebel Slaves and Enemies of the State. It was finally abolished by Constantine I in 337 CE. Crucifixion was carried out along the Roman Roads leading into the city.

18. Roman Military Law

  • Imperium
    • Imperium meant Absolute Power and gave the Roman Commander the power of life and death over his officers and legionaries.
  • Imperator
    • The ‘Imperator’ in Latin was the Title awarded to the man who had the Power to Command through Imperium.
    • The Roman Emperor was the Chief Imperator of the Roman Military.
  • Sacramentum Militare
    • Unlike the Roman Civil Law, there was no body of laws regulating the military, instead the Roman soldiers were obligated by their Oath of Allegiance, which acted as a Contract, that if broken, invoked harsh punishments.
    • The Roman Legionary swore an oath known as the Sacramentum Militare.
    • In the Sacramentum, the soldier swore to fulfil his Duty and if he failed, to accept Punishment, including the Death Penalty.
  • Court Martial
    • A Court Martial would allocate Punishments, and would divide cases into either ‘military crimes’ or ‘unmanly acts’.
  • Punishments
    • Punishments varied from just being forced to retake the Oath or pay a ‘Pecunaria multa’ (a Fine), to Flogging or the Death Penalty ‘Fustuarium’ (being beaten to death).

 

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