Analysis Of The Factors Influencing The Development Of Roman Law
Roman law provides the foundation for numerous legal systems throughout the world and thus, an understanding of Roman law's basic philosophical influences and legal orientation is essential. You are still allowed to cite what the Roman jurists said in a particular case of law in order to further show the spirit of the Law behind the legislation. Our civil code is one of the purest when compared to old Roman law and though different parts of Europe have strayed away from what old Roman law said, we are still embracing the great wealth and intelligence which the Romans had. In this assignment, we will not be discussing just one set of rules pertaining to one roman generation but the various forms of influences such as the Senate and the assemblies which have contributed to form what we call, Roman Law.
We will find that the assemblies of Rome would have had the authority to legislate however it was public law which used to legislate most of the time, rarely in private law (unless legislation is needed to make sure there is no disorder in society). A court official known as Praetor is the person in charge of the justice system in Roman law. He had the authority to help a citizen who would come up to him for help due to an injustice that had occurred to him and the praetor would have the right to give him a solution to his dispute which used to result in indirectly creating a law.
We can basically summon up the following stages of development in Roman law, firstly, The assemblies of Rome as lawmaking bodies, Secondly, The magistrates (Consuls, Praetor, Curule Aediles) therefore, those who had the power of Magister and could issue Edicts, The Imperial Decrees, The Senate, The jurists, Custom and the inadequate
During this assignment, we will be focusing on two very important bodies in the development of Roman Law. The Senate and the assemblies. The assemblies of Rome who passed laws were the Comitia Curiata, Comitia Centuriata and Comitia Tributa. There was also the Concilia Plebis, but this assembly didn't have the power to enact laws . These were considered to be those constitutional legal bodies which produced Lex and Plebiscitum. The , on the other hand, played the central role in the day to day functionality of the constitution. It basically was a board made up of the most experienced politicians which had the authority to make foreign and military policies together with domestic policies.
The people of that time exercised their power in assemblies (comitia). These were held compulsory on previously announced dates and also whenever the governing officer felt that it was the right time to call one into action. These assemblies were essential because due to them, people were allowed to vote in the election of the annual magistrates, in decisions concerning war and peace and in the making of laws. Every male adult citizen had the right to take part in these assemblies. These assemblies were allowed to vote on proposals made by the officers, without the benefit of debate or the possibility of amendment. The voting would happen not individually but as an assembly as a whole. Therefore the citizens needed to convince the other members in the assembly to vote their way and gain the majority on the same vote within the assembly. The term ‘comitia” applied to different types of assembly. These came together for different reasons. These being, judicial, legislative and electoral .
In the Republican era the lex was used for the conclusion of treaties, the ordering of matters under consultation and administrative law and for the control of local areas and provinces, for this, state legislation was crucial. Examples are the procedural laws like the leges establishing the quaestions, the lex Aebutia the Leges agranea, laws relating to expenses and interest. Rules of this kind could, on account of their reformatory and very positive nature, only be enacted by Senate legislation, civil and criminal law.
The Curiate Assembly (comitia curiata) was the principal assembly during the first two decades of the Roman republic. During the first few decades, the people were divided into thirty units called 'curiae'. The Curiate Assembly passed laws, elected the only elected magistrates at the time, they could declare wars and they also tried judicial cases . Consuls were always of a higher authority than the assembly. The nature of these curiae was ethnic and hence they were organized on the basis of the early Roman family or one can say that they were organized on the basic structure of the thirty original Patrician clans. Under this organization, the assembly as supposedly designed to mirror the Roman army during the time of the Roman kingdom. Soldiers in the army were classified depending on the property they owned. And hence soldiers with more property had more influence than soldiers with less property. The 193 Centuries the assembly under the Servian organization were classified into three categories of different grades. The highest grade being the officer class, the second grade being the enlisted class and the third being the unarmed adjuncts. Praetors were not allowed to undertake judicial business “without confirmation in the imperium” , a magistrate as a promagistrate could not govern the province at his own expense and he could not be legible for a triumph after a military victory. These rules would have restricted magistrates from taking part in serious public business before confirmation, however, these rules were widely ignored and legislation often included provisions stating that the lack of a curiate law, they “be magistrates in as legal a sense as those who are elected accordingly to the strictest form of law” By 212 BC, the lack of such a law granting imperium to the proprietor of Spain, Lucius Marcius. This was was no issue for the Senate. In fact, he avoided declaring the election illegal.
The first proposal for a board to start writing down the laws was made by the Tribune Terentilius arsa in the year 463BC.This suggestion was very much opposed by the Senate and only after 10 years was the board of 10 members appointed; decemviri delegibus seribendis . During the first year that the decemviri were appointed, they made a compilation of laws which were passed by the comitia and written down on ten tables and also posted in the forum. These compiled new laws but were forced to resign during the year 395BC due to their conduct. This conduct was sanctioned by the Comitia Centuriata and inscribed on two tables. These two tables, when added with the preceding ten created the law of the twelve tables . This is an example of an old agricultural society. Here the government has barely emerged from the stage of controlled self-help in which the law has not yet been disentangled from religion, during the time when the sinister exercise of magic is a thing to protect yourself from. Le formula in uno stile miabile per brevita rigori e precision. In other words, it not only gave the state unity but also gained the peace between the Patricians and Plebians. The reason why there was so much inequality between the patricians and the Plebians was because of all the uncertainty when it came to the law, hence, the attempt was to have a law equal to all. The twelve tables had different chatagories, these being the proceedings premilinary to trial, 2nd being the trial, then we have the Execution, the patria potestas, inheritance and tutelage, ownership and possession, real property laws, torts, public law and the sacred law.
After the Comitia Centuriata (riforma serviana) came the Comitia (Plebis) tributa. Here we are speaking around the time of 471 BC when the Concilium Plebis was established. This body was voted on and organized by tribes, and it consisted of only plebeians. It could only be summoned and presided over by the plebian magistrates ie. The tribunes. The Concilium Plebis was originally a small and informal advisory assembly or Concilium, but after the Lex Hortendia ( 287 BC ) its resolutions, or plebiscite, had the force of law and were binding upon all Roman citizens. The assembly then became the Comitia Plebis Tributa. Its simpler procedures and the availability of tribunes made this comitia an important legislative body of the middle and later periods of republican Rome . On the other hand, its judicial functions were basically limited to fines for noncapital offences. The Comitia Populi Tributa was later founded around 357 BC in imitation of the Comitia Plebis Tributa. It differed from the former in that it was an assembly of the whole Roman people, patricians and plebians who were organized by tribe. This comitia Plebis Tributa elected the minor magistrates (curule aediles, quaestors, and military tribunes), held minor trials, and eventually became a regular organ for laws passed by the people.
Even though the emperor Augustus' provision for local councillors encouraged people to vote for Roman comitia and be active citizens in their own towns, the comitia began to decrease in importance and the various elective, legislative and judicial functions gradually lapsed under the principate. The last piece of recorded legislation by this comitia is an agrarian law enacted in AD98 by Emperor Nerva. There was also comitia in municipia and coloniae for the passage of local legislation and election of magistrates, but this comitia also decayed under the empire.
The Senate is another important body when talking about Roman law. The Senate at the time consisted of people whom the king consulted with before taking a decision. These people were usually ex-magistrates who occupied the highest authority. These were Devemvirs, Military Tribunes with Consular Power and Dictators . The word senate actually means ‘old man' hence it is presumed that the Senate members were originally elderly men. The king was not bound to them by any obligation hence there was never a fixed date or time with regards to their meetings. Under the republic, the influence of the Senate increased. At some early but uncertain period, Plebeians were admitted. The Senate's function as Mommsen said was, 'an indefinite word, evading strict definition' In the 4th century BC, the power of choosing senators became the duty of the censors. The Senate was the last of the three pillars which the republican constitution rested. There were three social (and in a manner political) ranks amongst the Roman citizens. One could find the Senatorial Order (ordo senatorius), the Equestrian Order (ordo equestris), and the People (populus, in the narrower sense). The Roman aristocracy was made up of the Senatorial order and the Equestrian order. With the abolition of the monarchy in Rome in 509BC, the Senate became the advisory council of the consuls hence the Senate was a very important political organ in Rome because it remained permanent whilst the officials of the state were up for election each year (the two highest magistrates).
In this period the principle powers were; Auctoritas (is the power to agree and uphold the decisions of the assembly) and Consilium (Advice directed to the magistracy). The Senate gave the sanction of its Auctioritas to the decisions of the people, as were the Consilium of the magistrates, who were themselves ‘in auctoritates senatus”, Anyone who spoke in the Senate gave consilium. A senior senator who spoke early in the debate spoke with auctoritas and, if things went properly, made the side on which he spoke the winning side.
In the last two centuries of the Roman republic, a great change took place. The Senate became a ‘self-perpetuating, automatically formed body, independent of any annual magistrates, and a well-known factor in the Roman constitution, with immense powers'. In 81BC Sulla increased the number of quaestors to 20 and passed the law that all former quaestors should pass at once into the Senate. The Senate had grown in power by this time. Through the observance of certain unwritten rules, the relation between the Senate and the magistrates was regulated. The Senate actually became the chief governing body in Rome and gave people advice on home related issues, foreign policy, on legislation, and on financial and religious questions. It now had the right to assign duties to the magistrates, to determine the two provinces to be entrusted to the consuls, to make a magistrate’s period in office longer, and to appoint senatorial commissions to help magistrates to organize conquered territory. Its previous influence with regards to foreign policy resulted into a definite claim to conduct all deals with a foreign power, although the formal declaration of war and ratification of treaties were referred to the other people. In 218BC the control of finance was in the hands of the Senate.
The ever-widening influence and power of the Senate was challenged by tribunes from the time of Tiberius Gracchus onward and more particularly from military leaders like Marius onwards, who saw their administrative powers to be ineffectual next those of the Senate. Republic collapsed under these repeated attacks on the Senate and as a result of the civil war the number of senators diminished greatly. The Senate later on after Julius Ceasar received judicial function and for the first time became a court of law. It was able to carry out cases and was able to try cases of extortion in the senatorial provinces. The Senate took the place of the legislative bills adopted by the assemblies in ordinary matters although they did not at first require full recognition as laws. On the other hand, the Senate lost all power related to foreign policy. Around 300AD the Senate had the authority to retain the power to try treason cases and to elect certain magistrates, these would be always overlooked on by the emperor however by this time it had lost most of its power.
As one can see throughout this essay we explored the Senate and the various assemblies of Rome which have evolved and developed throughout the years. We can now find many versions of them around the world. One can see how although many years have passed, people still study and speak about them in awe as an appreciation for all their contribution towards the legal system we have nowadays. A legal system which brings along peace and harmony in our societies.
