Lecture 8 - Introduction to Roman Law

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Department
Classical Studies
Course Code
Classical Studies 2301A/B
Professor
Randall Pogorzelski

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LECTURE 8: INTRODUCTION TO ROMAN LAW • Athenian law may have been influential, but Roman law still serves as the basis of much modern European law. Nevertheless, the field of Roman law usually focuses on private law (or civil law) rather than public law (or criminal law) • Scholars of Roman law distinguish at least three periods: the pre-classical (up to the first century BCE), the classical (through the third century CE), and the post-classical (from the beginning of the fourth century CE). Another periodization divides the early republic (ending in the third century BCE), the late republic (ending in 31 BCE), the classical period (lasting until the crisis of the third century CE), and the later empire or postclassical period. o Periodization is important as Roman law developed over a long period of time, and this differs depending on the period of time you are looking at • The traditional date of the foundation of Rome was 753 BCE, and at first Rome was ruled by kings who were elected for life. The legendary first king was Romulus, and the second was Numa Pompilius, who was often credited with the creation of many Roman laws. • The Romans attributed to Romulus, their founder and first king, a system of patrons and clients. Each plebeian was required to find a patrician patron. Though it evolved to some extent, this system remained in place throughout Roman history. • The Romans in the regal period, like many Greek poleis of the time, dispensed justice largely by custom rather than law. Roman legend records that the kings formally legislated largely on family and religious matters. As a part of the close connection between religion and law, Roman priests had control of the written laws. • According to legend, it was in 509 BCE that the Romans overthrew the last king and instituted as the chief magistrates two annually elected praetors. • The praetors held imperium, or the power to command. Each praetor also held the power of intercessio, which allowed him to stop an action of the other praetor. th • In the early 5 century BCE, the plebs (or plebeians) seceded from Rome and formed their own government headed by annually elected tribunes. This began the so-called struggle of the orders. o Plebeians believed that they were not being treated right, so by electing the tribunes, they created great change in the Roman government • To get the plebs back, the Roman patricians allowed the plebeian assembly to pass binding laws, gave the tribunes the right of intercessio, and eventually made written laws public on the Twelve Tables in 450 BCE. o Twelve Tables – Romans wrote down their laws formally, posted in public, on twelve bronze tablets  Ultimate source of the written laws for the Romans • Just as Athenians saw their laws as beginning with Draco’s laws and Solon’s laws, Romans understood their laws to have begun with the Twelve Tables, from about 450 BCE. They were not superseded until Justinian’s codification of 528-34 CE. th • Implicit in the Twelve Tables and explicit by the end of the 4 century BCE was the right of provocatio, meaning that a citizen could appeal the summary judgment of a magistrate to an assembly of the Roman people. o Praetor has imperium, the power to command – but as a Roman citizen, you have the right to stop it until the assembly has voted on it (fundamental right of the Roman people) • In 367 BCE, the Romans created a third praetorship and renamed the original two praetors “consuls.” The praetor and the consuls now all held imperium, but the consuls held maius imperium, which meant that their imperium was greater and the praetor could not halt a consul’s actions. • While all Roman magistrates with imperium were also military commanders, they increasingly took on administrative duties in Rome. The praetor was largely responsible for the justice system, and he had initial hearings and appointed judges. • In 242 BCE, the Romans were dealing more with cases involving foreigners. They added a second praetorship and from then on, one praetor was the praetor urbanus (city praetor) and the other was the praetor peregrinus (foreign praetor). • After the Second Punic War (at the end of the 3 century BCE) a regular order of offices, called the cursus honorum was established. Magistrates with imperium had virtually unlimited authority when outside the city (militiae). When in Rome (domi), the authority of magistrates was somewhat limited by the rights of provocatio and intercessio. By the late republic, the cursus honorum looked like the image on the right. • Quaetors were financial officials, and aediles were in charge of archives and public works. • Although the praetors were not legislators, they each promulgated an edict upon taking office – the edict outlined how they planned to carry out the duties of the office, and where it involved law it was almost legislation. Legal scholars refer to ius honorarium to distinguish law based on the praetor’s edict from more formal legislation. • Tradition dictated that the praetor’s edicts changed very little over time, as each praetor took office, and eventually under the empire in the 2 century CE the edicts of the praetors and aediles became completely static and unchanging – the same every year by a decree of the emperor. • In addition to magistrates, there were many lawyers in Rome. At first, the only lawyers were the pontifices (singular: pontifex), who were priests. By the end of the 4 century BCE, law was no longer exclusively the province of the pontiffs and being a lawyer (along with serving in the army and holding political office) was one of the most honorable jobs in Rome. • Roman lawyers had three jobs: ad respondendum (giving legal advice, e.g. to the praetors), ad agendum (preparing cases for court, business of being a courtroom lawyer), and ad cavendum (drafting documents, discuss law and what might happen with potential clients). By the middle of the 2 century CE, jurists had much more prestige than advocates, and beginning with Augustus, some possessed the so-called ius respondendi ex auctoritate principis (the right of responding from the authority of the emperor – this right meant that jurists were speaking for the legal opinion of the emperor) • The first great jurist of the Classical period of Roman law was Marcus Antistius Labeo. He didn’t just teach law – he also wrote books on law. We have little of his work, but he was regarded as the original source of the “Proculian School” named after the first century CE jurist Proculus. • Another important jurist of the first century CE was Masurius Sabinus (misspelled in Versteeg as “Sabinius”). His most celebrated work was a book on ius civile (civil law), treated separately from ius honorarium and public law. He took a practical approach in contrast to the principled approach of Labeo, and his student, Gaius Cassius Longinus, helped him found the schola Cassiana, later known as the Sabinian School. • In the second century CE, Hadrian made the opinions of jurists with the ius respondendi binding, and he reorganized the imperial bureaucracy with a well-paid career structure for so-called equestrians (rather than freedmen). This encouraged wealthy Romans to study law, and increased the demand for schools and teachers. nd • One of the most important Roman law teachers of the 2 century was Gaius (a proponent of the Sabinian school). In 1861 in Verona, scholars discovered a palimpsest of his Institutes, which were his lecture notes from 160 – 161 CE. • Other important jurists included Aemilius Papinianus (active from 194 and died in 212), Domitius Ulpianus (active from 202 and died in 223), Iulius Paulus (active throughout the first half of the 3 century), and Herennius Modestinus (active throughout the first half of the 3 century). • The emperor Theodosius II (born in 401, reigned from 408 until his death in 450) reformed Roman law. He formalized law school and appointed two official professors of law. He also, along with the Western emperor Valentinian III, in 426 enacted the “Law of Citations,” which made the written opinions of Papinianus, Ulpianus, Paulus, Modestinus, and Gaius binding on magistrates. Theodosius also appointed a commission to compile a complete and official law code, and promulgated the Codex Theodosianus in 439 in the East and soon after in the West. o This was in effort to codify Roman law, to make Roman law entirely written so that the only thing that mattered in Roman law was what was written in the code by the jurists • In 528, the emperor Justinian ordered a more complete job, and commissioned Tribonianus to oversee what would become the Corpus Iuris Civilis. This consisted of four parts: the Codex Iustiniani (legislative orders of the emperors), the Novellae (additions and adjustments to the Codex), the Institutiones (effectively a second edition of Gaius’ Institutiones, a beginning tsttbook), and the Digest (about 2000 fragments or quotations of 39 different jurists from as far back as the 1 century BCE, about half from Ulpian and Paul). • While jurists provide us with some of our most important sources for Roman law, we can also think about what the Romans regarded as the sources of Roman law. This requires some understanding of the Roman constitution, by which scholars don’t mean an individual document, but the makeup of the state. • SPQR stands for Senatus Populusque Romani, or the Senate and the Roman People. The senate was an advisory council of elders, made up of former magistrates and reviewed by the censors. Although the senate did not technically have any binding authority, it issued statements called senatus consulta (singular senatus consultum) that advised Roman magistrates, and the magistrates nearly always followed the traditional authority of the senate. o So the senate, as opposed to the people, is one of the major governing bodies of the city, and ultimately the empire of Rome o But, the senate, as one of the major bodies of the government in Rome, was strictly speaking through the republic period, only advisory (however, rare occasion when magistrates disagreed with senate) • In addition to dividing the people into patricians and plebeians, the Romans organized the people into three kinds of assembly: the centuriate assembly (comitia centuriata), the tribal assembly (comitia tributa), and the plebeian assembly (concilium plebis) • Things to note about the centuriate assembly: o It is based on the assembly for recruiting armies o It is organized by wealth (how much property you own), and the wealthy centuries are much smaller and vote first o There are 193 centuries, and each one gets one vote in the assembly o It elects consuls, praetors, and censors, votes on declarations of war, and hears citizens’ appeals in capital cases o Assemblies are for voting only. Debating and public discussion happens in meetings known as contiones (singular: contio) – public meetings that take place in the forum that everyone can attend • Things to note about the tribal assembly: o It is organized by the location of residence o There are 31 rural and 4 urban tribes (total of 35 tribes as of 241 BCE) and they vote in an order determined by lot, in random order o It elects curule aediles and quaestors, votes on leges – law (singular: lex), and judges trials • Things to note about the plebeian assembly: o It is organized by tribe o It is made up of plebeians only and presided over by tribunes of the plebs (10 tribunes) o It elects tribunes of the plebs and plebeian aediles, votes on plebiscites and judges trials o Although the plebeian assembly did not vote on leges, they did vote on plebiscita, which after the lex Hortensia of 287 BCE were binding on the whole of Rome • Senators were forbidden to engage in busi
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