Roman Law Flashcards
According to Livius, when was Rome founded
On the 21st of April of 753 BC by bother Romulus and Remus (twins). They were exiles from Alba Longa and founded a refuge for refugees which would become Rome.
How did they decide which of the two brothers wil be king
They asked the gods:
- Remus is said to have received the first auspicium (bird watching): six vultures appeared to him
- For Romulus, however, double the number of vultures appeared(12) ; after killing Remus, Romulus was claimed the ruler and the city was called after him: Rome.
Define imperium
imperium is one and indivisible and it entails supreme power (religious,
executive, judicial and legal power; the latter gave the possibility to enact
edicts).
How was Montesquieu’s separation of powers integrated into Romulus’ reign
- The king had the competence to enact laws based on his imperium and these were
called edicta - The legislative body, the comitia, could take statutory decisions that were called
leges (lex) - The senate consisted of one hundred pater familias; their decision did not have the
power of law, instead, they served as advisors to the king (senatus consulta).
How many kings reigned Rome
752 BC - 509 BC -> 7 kings
From when to when was Rome a republic
509 BC - 27 BC
From when to when was Rome an empire
27 BC - 476 AD/ 1453 AD -> empire
How did the kingdom of Rome end
The murder of Tarquinius Superbus (509 BC)-> a new constitution was established
Why was the period of the republic recorded as the days of liberty (res publication: Libertas) ?
Imperium was not in the hand of the king but two consuls.
What was the nature of consuls
-both had full imperium
-Intercessio (intercession): the two consuls could take countermeasures against each other, but no extreme decisions were taken, rather a middle ground was reached
-were appointed for one year by the public assembly
- during their office they were immune to prosecutions, but after they could be prosecuted.
What were the sources of law in the roman republic
- Edicts (edicere: to ordain) = ordinances
- Statute (lex)= legislation)
What were edicts
-The imperium enabled the consuls to enact edicts, namely ordinances or executive orders.
-it was snot legislation because consuls were not legislators BUT the edicts had binding powers for as long a s the imperium of the consul lasted (a year)
What are statutes
-made by the assembly of the roman people=comitia ( all citizens together voted)
How was the legislative procedure of passing statutes
- Magistrate proposed a bill
- Senate was later consulted ( comitia and senate needed to agree)
- Magistrate would call for an assembly
- People would vote yes or no
-if yes, the adopted bill would become a statute (lex-leges) AND legislation would stay valid until its as revoked by the comitia (different from edicts) TRHUS leges were independent from imperium
What were the voting rights int he roman republic
- only makes voted
-Society was divided into classes based on how much property they had. The first class would vote first and subsequently, the second class - the former vote had the most weight with respect to the other lower classes. - There was no representation
Did edicts or statutes prevail?
Statutes, because edicts could be revoked by the comitia as a way to show that the dignity and might of the people was greater than those of the consul
What was teh first era of the roman republic characterised by
the battle between patricians (sons of the pater familias) and the plebeians (plebs: people). The patricians wanted their authority returned as they worked side by side with the King during the Roman kingdom. They were the only ones that could be consuls and they would also constitute the senate (Senex: old man).
How did the tribunus plebis emerge
After a severe collision between these two classes in 494 BC, the plebeians requested their own magistrate. The latter was known as the plebeian tribunals (tribuni plebis) -> although the magistrate had no imperium, they had the right to veto any measures taken by the consuls.
What did plebians demand in their second outburst and why
Asked for the laws to be codified in written law because roman law was primarily based on customary law and judges wouldn’t explain their reasoning.
What was lex XII Tabularum - ius civile
-in 451 BC The two consuls were replaced by a board of ten men (decemviri). They held the imperium and wrote the law on ten tables.
-in 450 BC a new board of the men was elected with a na edition of two more tables -> became known as the Twelve tables (lex duodecim tabularum) as they were written in twelve tables
-these were the first roman codifications and were never revoked
What was the problem of interpretation
Even though by 450 BC Rome had already written legislation, the interpretation (interpretation) of such rules remained in the hands of the patricians and unknown to the people since the patricians kept it a secret from the plebeians.
-ius civile/ law of the citizens of Rome developed form the interpretion of the twelve tables
-Alongside came the idea of the strictness of legal actions (legis actiones) because they derived from the laws or because they had been adjusted precisely to the wording of the laws.-> so the patricians had control over interpreting and applying them while plebians didn’t understand much
Who ended the situation of legal uncertainty in 300 BC
Gnaeus Flavius who revealed the secret of interpretation
When did plebians demand becoming magistrates and consuls
367 BC
Who was the praetor (ius praetorium)
-a high magistrate for the administration of justice that had imperium (power to enact edicts binding to all citizens)
-decided whether a case could be brought before a judge.
-Soon afterwards plebeians were also eligible to hold the praetura.
-praetor was assisted by legal experts
-He placed himself in a tribunal where the parties would appear before him. He was not to pass judgment himself as that was the job of the iudex privatus (a private person); nonetheless, no trial could take place without the praetor.
-the praetor decided how judges should be appointed by writing down the formula of ownership (rei vindicatio)
After the praetor appointed the judge, how was the trial before the praetor carried out through two stages:
- Legal, before the praetor (access admissibility – decides if the case should go to
the judge) - Factual, before the judge – the judge decides on the facts of the case; lawyers are
not needed, Romans would use orators that would give very convincing speeches
What happned in the long run, in order for actions to no longer be determined via the complicated path of the lax
-the edicts for the praetor were used
-teh issued edicts were then used by each of the successors of the praetor after one year
What is the difference between civil law and praetorian law
-civil law originated from the interpretation of the twelve tables
-praetorian law was based on the authoritarian power of the magistrate held by virtue of his imperium
What was the function of praetorian law
-to support, supplement and improve civil law (law of the twelve tables)
-According to reasonableness and equity (ex bono et aequo) the praetor could change civil law (praetorian law - living voice of civil law).
What is lex hortensia
Decisions made in the meetings of the plebs now had the force of law and were binding on patricians.
What makes the end of the roman republic and the birth of the Roman Empire
Death of Caesar in 44 BC
Who succeeded Caesar after his death?
Adopted son Octavius, later known as Augustus
How did Augustus hold power?
He awarded himself 3 statuses:
❖ the proconsul for life → possibility to enact legislation, hold imperium
❖ the power of the tribunicia potestas for life → veto power
❖ a place in the senate (he was seen as the princeps) → Senatus Consulta (senate
advice started to have a legal effect)
