 |
|
Part II. WRITTEN AND UNWRITTEN LAW
The Romans divided their law into jus scriptum (written law) and jus non scriptum (unwritten law). By “unwritten law” they meant custom; by “written law” they meant not only the laws derived from legislation but, literally, laws based on any written source.
There were various types of written law, the first of which consisted of leges (singular lex), or enactments of one of the assemblies of the whole Roman people. Although the wealthier classes, or patricians, dominated these assemblies, the common people, or plebeians, had their own council in which they enacted resolutions called plebiscita. Only after the passage of the Lex Hortensia in 287 BC, however, did plebiscita become binding on all classes of citizens; thereafter, plebiscita were generally termed leges along with other enactments. In general, legislation was a source of law only during the republic. When Augustus Caesar established the empire in 31 BC, the assemblies did not at once cease to function, but their assent to any proposal became merely a formal ratification of the emperor’s wishes. The last known lex was passed during the reign of Nerva (AD 96–98).
The earliest and most important legislation, or body of leges, was the Twelve Tables, enacted in 451–450 BC during the struggle of the plebeians for political equality. It represented an effort to obtain a written and public code that patrician magistrates could not alter at will against plebeian litigants. Little is known of the actual content of the Twelve Tables; the text of the code has not survived, and only a few fragments are extant, collected from allusions and quotations in the works of authors such as Cicero. From the fragments it is apparent that numerous matters were treated, among them family law, delict (tort, or offense against the law), and legal procedure.
A second type of written law consisted of the edicta (edicts), or proclamations issued by a superior magistrate (praetor) on judicial matters. The office of praetor was created in 367 BC to take over the expanding legal work involving citizens; later, a separate praetor was created to deal with foreigners. Upon taking office, a praetor issued an edict that was, in effect, the program for his year in office. The curule aediles, who were the magistrates responsible for the care and supervision of the markets, also issued edicts. During the later stages of the republic, these praetorian and magisterial edicts became an instrument of legal reform, and leges ceased to be a major source of private law.
The Roman system of procedure gave the magistrate great powers for providing or refusing judicial remedies, as well as for determining the form that such remedies should take. The result of this magisterial system was the development of the jus honorarium, a new body of rules that existed alongside, and often superseded, the civil law. The edicta remained a source of law until about AD 131, when the emperor Hadrian commissioned their reorganization and consolidation and declared the resulting set of laws to be unalterable, except by the emperor himself.
A third type of written law was the senatus consulta, or resolutions of the Roman senate. Although these suggestions to various magistrates had no legislative force during the republic, they could be given force by the magistrates’ edicts. In the early empire, as the power of the assemblies declined and the position of the emperor increased, senatus consulta became resolutions that endorsed the proposals of the emperor. As the approval of the Senate became increasingly automatic, the emperor’s proposals became the true instrument of power. Consequently, emperors ceased referring proposals to the Senate and, not long after the early imperial period, ended the practice of legislating through the Senate.
A fourth type of written law consisted of the constitutiones principum, which were, in effect, expressions of the legislative power of the emperor. By the middle of the 2nd century AD, the emperor was, essentially, the sole creator of the law. The chief forms of imperial legislation were edicts or proclamations; instructions to subordinates, especially provincial governors; written answers to officials or others who consulted the emperor; and decisions of the emperor sitting as a judge.
The last type of written law was the responsa prudentium, or answers to legal questions given by learned lawyers to those who consulted them. Although law, written and unwritten, was originally a rather secretive monopoly of the college of pontiffs, or priests, a recognizable class of legal advisers, juris consulti or prudentes, had developed by the early 3rd century BC. These legal advisers were not professionals as such but men of rank who sought popularity and advancement in their public careers by giving free legal advice. They interpreted statutes and points of law, especially unwritten law, advised the praetor on the content of his edict, and assisted parties and judges in litigation. Augustus empowered certain jurists to give responsa with the emperor’s authority; this increased their prestige, but the practice lapsed as early as AD 200.
During the early empire, numerous commentaries were written by the great jurists on individual leges, on civil law, on the edict, and on law as a whole. In the 5th century a law was passed stipulating that only the works of certain jurists could be cited. Legal scholarship declined in the postclassical period.