Sources of law Flashcards
(47 cards)
What are the sources of Roman law?
Leges Edicts of the magistrates Senatusconsulta Principum plata Responsa
What are leges?
Leges were enacted by the popular assembly. They were often associated with plebiscites (ordinances of the plebs)
They were constitutional in nature and dealt with matters relating to public order
The only legislative power that the people had was to refuse the proposals of the Emperor/ magistrates
The Emperor could convoke the assemblies and submit proposals to them. The Emperor also controlled the magistracies as he personally recommended the presiding magistrates. Thus, it is clear that the Emperor had ultimate legislative power.
The popular assemblies never had the right to initiate legislation- voted on legislation submitted to them by the presiding magistrate
What is the definition of a source of law?
The origin or how the law was created
What was the difference between Gaius and Justinian’s classification of the sources of law?
Gaius believed that imperial enactments were important sources of law in the 2nd century.
Justinian added custom as a source of law. Otherwise, it remained the same. There were local and regional variations to custom
What were the sources of law in the archaic period? (monarchy)
It was a mixture of custom and royal decree. Custom is law which acquired authority through long observance. It was unwritten law
Why did custom decline in importance?
It declined in importance particularly after the publication of the XII tables/ as the law was written down by the jurists
The Twelve Tables had to be enacted due to popular discontent- law was administered and controlled by the plebeians
What were royal decrees?
Laws of the kings acquired direct and binding legal force
What were the most important sources of law during the Republic?
Legislation
Edicts of the magistrates
Interpretation of those learned in law
What is the significance of the Twelve Tables?
The Twelve Tables was Rome’s first code of law. It was enacted by the comitia centuriata. It was probably based on the existing customary laws in Rome.
What was the importance of the assemblies?
Comitia centuriata- elected the higher ranking magistrates
Comitia tributa
Concilium plebis- responsible for the plebiscites which came to acquire as much authority as statutes after the lex Hortensia. Became the most prominent assembly before the end of the Republic.
Voted on proposals sent from the magistrates. However, it was inherently corrupt as they voted in groups. Moreover,r in the comitia centuriata the higher ranking centuries voted first and this tended to influence subsequent voters
What was the role of the lex Hortensia?
The plebiscites have to be followed by the patricians as well as the plebeians
What was the role of the senate?
The senate did not have legislative power and it was more of an advisory council. The magistrates had to send their proposals to the senate before it could be put in front of the assembly.
It had the power to veto legislation
What is the role of the edicts of the magistrates?
High-ranking magistrates had the power to issue edicts. This came to supplement the ius civile be the ius honorarium (the law of the magistrates)
What was the role of the urban praetor?
An urban praetor was created as the consuls were too busy dealing with wars. The urban praetor exercised legal jurisdiction within the city. The urban praetor was responsible for conducting the administration of justice
Why was a peregrine praetor created?
A single praetor became insufficient with the influx of foreigners in Rome/ expansion/ the constitutio antoniana. The peregrine praetor exercised jurisdiction among the foreigners
How was the praetor responsible for creating a more flexible formulary system?
Initially, the praetor did not have much opportunity to influence the law because he was strictly bound to follow the ius civile. Influx of foreigners who could not participate in the legis actiones confined to civilians. The peregrine praetor created a new system- the formulary system. Eventually it was absorbed into the ius civile. The formulary system was much more flexible and gave the praetor discretion when dealing with particular disputes
Edicts issued by the praetor
Enabled the evolution of the ius honorarium as the praetor could allow new remedies or defences. The edict also normally consisted of measures adopted by the previous praetor.
What was the ius honorarium?
the law developed in edicts issued by the praetors during the Republic and early Empire, aiding, supplementing or amending existing rules or procedures of the ius civile. It was finalized in the 2nd century A.D. in the Edictum Perpetuum.
How did the praetor’s role develop? How did the praetor become a substantial source of law in the late republic?
early years the urban praetor had little room for manouuvere- limited to aiding civil law because of formalism of legis actiones. The praetors became more radical, particularly after the lex Aebutia which formally reconised the applicability of the formularly system to disputes between citizens. By the late republic the praetors had become the leading reformers within the Roman legal system- remedies included robberies, fraud and duress and more effective protection of property interests.
The fact that the praetors were able to ‘correct’ the civil law in such important matters demonstrates the extent of their indirect law-making powers in the late republic.
What was interpretatio?
Pontiffs had a monopoly on the law
The interpreters were the college of priests and one was appointed each year to preside over the citizens. In early law there was a clear link between religion and law as the pontiffs were the interpreters of law. Their advice on the meaning and applicability of the law constituted interpretatio.
Their ability to do this was facilitated by the lack of information about litigation procedures in the Twelve Tables- allowed the pontiffs to exercise influence over civil disputes. Eventually, they were replaced by the jurists who were learned in law and gave legal opinions (response) in public. They were men from aristocratic families and gave responsa perhaps to gain respect as they wanted to go into politics
What work was done by the jurists of the late republic?
To give advice- they were approached by the praetors, magistrates etc on advice on how to discharge their functions. Advice was not legally binding but helped to elucidate the law
Teaching
Jurists wrote commentaries on the XII tables- established a tradition of legal writing.
Why was juristic writing significant?
Juristic literature converted Roman law into a science- body of laws that was analysed in writing
What were the sources of law during the Empire?
The Empire was split into the Principate and the Dominate. During the Principate was when Roman law achieved its highest level of development because of the work of the jurists. However, there was a decline of Roman law during the Dominate it was imperial decrees and interpretatio that became more prominent
The Dominate was a period of decline as imperial decree essentially became the sole source of law. Imperial decree was the most important legislation
Principate
At first, Augustus preserved many elements of the Republican constitution- assemblies, senate
