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Classical Studies 2301A/B Chapter Notes -Sestertius, Codex Theodosianus, Pater Familias

Classical Studies
Course Code
CS 2301A/B
Randall Pogorzelski

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Chapter 10: Background and Beginnings of Roman Law
10.01: Introduction
A. Public Law and Private Law
Public law = ius publicum
oCriminal law and administrative law
oDeals with interests of the entire community
Private law = ius privatum
oRules of property, succession, contracts and laws relating to family
oDeals with interests of separate persons
Roman private law still used in many legal systems in the world, it is the basis for all laws in Western
Europe (except England and Scandinavia)
B. Periods of Roman Law: Pre-Classical; Classical; and Post-Classical
Roman legal development is divided into three stages
1. Pre-Classical
Lasted from beginning stages to the 1st century BC
Pontiffs (priests) kept law as a secret because it was profitable for them
Later, laws were codified and published, priests lost their monopoly
2. Classical
Began in the 1st century BC and lasted through 3rd century AD
Roman juries developed legal forms that were abstract and universal (capable of
being applied at any time in any society)
3. Post-Classical
Beginning of 4th century AD through the 6th century AD
From the end of the Classical Period to the Justinian in the 6th century AD, the law was characterized
by bureaucratic administration
Few legal ideas developed, but this is the period when Romans organized, classified and wrote
down a great deal of their laws
10.02: Early Roman Legal History
A. Laws of the Kings
Earliest Romans used customs as the basis for law
Seven kings who ruled Rome from 753 – 509 BC (monarchy) enacted quite a bit of law dealing with
family and sacred law
Romulus, the first king, required that each plebeian had to select a patrician to serve as his patron.
Each patron was responsible for the legal affairs of his plebeian-client
Romulus also prohibited a wife from divorcing her husband, and also formulated the law that
decreed a son was considered to be freed from his father’s paternal power if his father sold him
three times
Numa, the second king, decreed that individuals were to mark the boundaries of their property; also
differentiated between murder and manslaughter
Servius Tullius, the sixth king, established that slaves automatically became Roman citizens; also set
up different trial procedures, depending on whether they were public or private
B. The Laws of the Twelve Tables
Traditional Background
oFirst half of the 5th century BC – “struggle of the orders”: a conflict between the patricians
(upper class) and plebeians (lower class)
oPlebeians believed that it was unfair for priests to keep laws secret and for judges to put
themselves above the law

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o462 BC – tribune of the Plebs named Gaius Terentilius Harsa proposed that a commission be
established to codify laws to bind the consuls
o451 BC – ten patricians, the decemvirs, were elected to write new laws for Rome
Decemvirs produced ten tablets of laws written on either bronze or wood
In the next year, another ten decemvirs were elected and they wrote two additional
tablets of laws (together, known as Laws of the Twelve Tables)
Content of the Laws of the Twelve Tables
oTwelve Tables were the basis of Roman laws
oWe do not possess original copies, tradition has it that originals were burned when the Gauls
sacked Rome in 390 BC
oTwelve Tables tend to be concerned with unusual circumstances rather than ordinary ones
oProcedural laws are prominent
oEstablish procedures to substitute for self-help or outright retaliation
oMany laws provide for public punishments for a wrongdoer or require that a wrongdoer
compensate his victim
oLaws establish guardians for persons incapable of taking care of themselves
oTwelve Tables grant a man the right to make a will to control the distribution of his things
upon death
oLaws fix predetermined payments as compensation for personal injuries
10.03: The Role of the Praetor and Aedile in the Development of Roman Law
Romans established the office of praetor in 367 BC
Praetors – second in magisterial rank, responsible for much of the operation of the judicial system
Aediles – in charge of streets and marketplace
Roman praetors did more for the development of Roman law than any other Roman officials
oResponsible for matters relating to justice
oWere not judges, but were officials who administered the legal system and instructed judges
concerning how to resolve certain questions of law
242 BC – Romans added a second praetor called the praetor peregrinus, dealt with foreigners and
foreign trade
Praetor urbanus (city praetor) took charge of matters concerning Roman citizens (more important of
the two) and the praetor peregrinus (foreign praetor) concerned himself with matters relating to
disputes between citizens and foreigners or strictly between foreigners
Each praetor served for only one year, promoted an edictum (edict) upon entering office which gave
general instructions about how to resolve cases
Praetors were not empowered to change laws, but because of their office, they could control a great
deal of legal interpretation
Legal historians refer to the laws that resulted from the praetors’ edicts as the ius honorarium
Final century of the Republic (140 – 40 BC) was the most active and significant period for
development of ius honorarium
Ius gentium – law of people/nations, used only between a Roman citizen (civis) and a foreigner
(peregrinus) or between two foreigners who were involved in a dispute on Roman soil
oRoman predecessor of International Law
Number of praetors soon increased for the provinces, created a number of notable legal institutions
oExceptio (exception) – method of protecting rights indirectly as a kind of defense to an action
oRestitutio (restitution) – law forced a party who had been unjustly enriched to return the
unjustly-obtained money
Party who had been coerced could be entitled to restitution
367 BC – office of aedile was created
oFour aediles kept the State archives, and supervised the streets, aqueducts, buildings,
bridges and the public marketplace

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oThey gradually influenced laws relating to the sale of goods
10.04: Legal Interpretation: Advocates, Jurists, and Emperors
A. Background
Early in Roman’s history, only pontiffs had access to archives necessary to conduct a lawsuit
Only patricians were allowed to serve as pontiffs until 300 BC
253 BC – first plebeian pontifex maximus was elected
312 BC – pontiffs lost grip on legal interpretation
B. Advocates and Jurists
Jurists of the first century BC had three functions:
1. Ad respondendum answering legal questions and giving legal advice
Private function of a lawyer – most important task, explaining to a praetor, aedile,
judge or layperson what a particular law meant
2. Ad agendum – preparing a case for court
Attorney for consulting, literally to “drive/perform”
3. Ad cavendum – drafting documents
Process of drafting written formulae for lawsuits or business transactions, as one
needed to use proper legal language in order to create valid documents
Roman advocates were those who were more likely to conduct the business of court cases (ad
agendum) whereas juriconsults (jurists) were more likely academics who rendered opinions (ad
Advocates were not allowed to accept payment for their services, jurists did not receive for their
advice either but rather performed their services as contribution to society
Early Roman jurisconsults (Pre-Classical period) developed essential principles of Roman law during
second and first centuries BC
Number of early attempts to impose semblance of order on Roman law
oIus Flavianum (312 BC) – collection of formulae for lawsuits
oIus Aelianum – another collection of forumale issued by Sextus Aelius Paetus (consul, 198
He also published the first attempt at a systematic treatement of Roman law: a major
legal work called the Tripertitia
In the Tripertitia, Paetus presented:
oText of each provision of the Twelve Tables
oInterpretations by pontiffs and jurisconsults of these provisions
oWritten formulae appropriate for lawsuits applicable to each provision
Around 150 BC, Manius Manilius published forms for sales transactions
Consul Quintus Mucius Scaevola (95 BC) – divided civil law into genera (classes)
oWrote first legal treatise that attempted to impose structure on Roman law (18-book
oOrganized the text into sections based on related legal principles
Consul Servius Sulpicius Rufus (51 BC) wrote first commentary on the praetorian edict
Emperor Augustus (27 BC – 14 AD) granted certain jurists a right called the ius respondendi (ius
respondendi ex auctoritate principis – the right of responding based on the authority of the emperor)
oEntitled jurist on whom it was bestowed to give his opinion on legal questions
Jurist Marcus Antistius Labeo (died about 10 AD) – first great jurist of the Classical period
oWrote over 400 works, although very little survived
Also in the Classical period, Gaius wrote the Institutes or Institutiones (composed about 161 AD)
oServed as a short and direct introduction to law for students
In 426 AD, Theodosius II (Eastern Empire) and Valentinian III (Western Empire) enacted the “Law of
Citations” – regulated the use of citations in the court of the classical jurists and Gaius
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