Roman legend has it that the city was ruled by kings from its founding (in perhaps 753
BC) until a coup which removed not only the last king but the kingship altogether (in 509
BC). Modern scholarship finds these dates (especially the one for the founding) highly suspect, and questions how and even whether
the individual events happened. Most historians today do not believe stories that attribute any particular act to any of the
legendary kings. Nearly the only agreed-on truth about this period is that Rome was ruled by a series of kings in the early
days. Fortunately, for our purposes, we do not need to resolve any of the more specific historical questions. I just want
to give a general idea of what kind of government was putting laws into place. Still, even saying there was a “king” (Latin
rex) is potentially misleading. These kings were not hereditary rulers. In fact, some of them seem not to have been born Romans
at all. Instead, they were elected, sometimes by the populace, sometimes by a Senate, when the previous king died. Once in
office, they seem to have acted as lawgivers (as well as generals, priests, judges, city planners), but their power was not
unlimited in the manner of some later European monarchs. It has been suggested (though not proven) that the kings were
meant to be relatively weak, serving more as arbiters between the other leading men than as real heads of government. The later
Roman government featured a “Senate,” which appears to go back to this earliest period. It seems to have been an advisory
body for the
king, rather than a legislature of the sort now suggested by the name.
Whether the topic is law, government, or nearly anything else, we are very poorly informed about Rome of the monarchical period.
Our surviving written sources mostly come from about 500 years and more after the fact; this is nearly twice the time between
the present day and the founding of the United States of America. We have a number of fragments of laws attributed to “kings,”
and even to particular ones of them. Some of these may actually be genuine. A couple, for instance, contain a penalty clause
meaning something like “let him be dedicated to the gods.” The same wording happens to appear in an otherwise hard-to-read
law that survives from a rare inscription of the period on stone. Still, it is nearly impossible at this distance to tell
which fragments are genuine, which are later inventions inspired by some bit of real historical information, and which are
just pure fantasy.
In the standard Roman story, the kings were thrown out suddenly, and replaced by a pair of officials known as consuls. In
theory, the consuls held most of the powers of the king, but in practice they were greatly limited because of the sharing
of power between two men, because they had to get elected, and because they served only a year in office. (Reelection was
quite rare.) They were chosen by the “people” (that is, the adult male
citizens). These same people got to vote on all legislation of lasting effect. The consuls’ powers rested mainly on the ability
to issue temporary edicts and to propose legislation. Over the first three centuries or so of the Republic, the details of
this government evolved quite a bit, but the basic structure remained largely unchanged. Other elected officials (collectively
called “magistrates”) were created: praetors, aediles, quaestors, and tribunes. (As with the consuls, so with the lower offices;
more than one person at a time held each post.) In principle, there was a hierarchy of these magistrates, in the order just
listed, but the different offices also had specialized functions, so they largely did not interfere with each other. For instance,
the various “praetors” could serve as generals and/or provincial governors, but came increasingly to be in charge of the judicial
system. “Aediles” supervised the markets and much of the urban infrastructure. “Quaestors” served bureaucratic functions,
often as the assistant to a particular higher magistrate. “Tribunes of the people” were ombudsmen who protected individual
rights and, most importantly for present purposes, were the main proposers of legislation. (The tribunes seem to have originated
as popular organizers and always remained a little outside the hierarchy of the other offices.)
That legislation continued to be approved and the various magistrates to be elected by the people. In principle, every adult
male citizen still got to vote on every question. But depending on what was being voted on, there were different systems of
voting that made different people’s votes count for more or less. In the earliest days of the Republic, there was some struggle
over whether any citizen or just members of certain elite clans (“patricians”) could hold office, but the broader view (also
including “plebeians”) won out by a little after 300
BC.
The Senate continued to exist during this period. By the end of the Republic, membership in the Senate was a more or less
automatic benefit of being elected to one of the magistracies, and seats were held for life. While the formalization of these
rules came fairly late, the general practice seems to have been customary as far back as we can see. Technically, the Senate
remained a largely advisory body, now assisting the consuls rather than the king. Only the people, not the Senate, could pass
laws. The Senate exercised power in two ways. Less importantly, laws were occasionally passed specifically authorizing the
Senate to fulfill certain functions, such as choosing provincial governors. This was rare, and most of the instances are from
quite late in the Republic. More importantly, political figures spent most of their careers in the Senate and very little
in the magistracies. Hence, the magistrates tended to do as they were “advised” by the Senate. In particular, it became conventional
(though never strictly required) to get legislation approved by the Senate before presenting it to the people for formal passage.
An important point about the Roman government that is probably not clear from the discussion so far has to do with its size.
Two things make it almost unbelievably small from a modern point of view. First, we are accustomed today to government with
many levels: not just cities and nations, but a variety of levels in between, such as counties, states, provinces,
and ad hoc collections of any of these. Roman government was much flatter. Originally, Rome was a typical Mediterranean city-state.
That is, the city plus its immediately surrounding territory comprised the whole “nation,” so there was no difference between
local and national government. As Rome’s imperial territory grew, that original unified government was not much revised. It
remained both the city government of Rome and that of the empire as a whole. As Rome absorbed other communities, it tended
to swallow them whole, leaving their governments intact. This left a level of local government, but not as part of the Roman
apparatus. Most importantly for present purposes, much of Roman law did not apply to them; they were left to their own local
systems (see
Chapter 21). And there was even less government at middle levels. Most conquered land was divided up into provinces, each with a Roman
governor. The governor’s main task, however, was to look out for Rome’s interests (tax revenues, peace and stability), and
even in these matters the real work was often outsourced to contractors called
publicani. The governor’s office was not really a general central government for the province (see further in
Chapter 21). Moreover, Italy itself was not a province and did not even have a governor.
Roman government was also small because for the most part it lacked a permanent bureaucracy. A description of the American
federal government might start out with the president, Congress, and the Supreme Court, but beneath these leading figures
are something like two million employees (not even counting the military and the postal service), spread out over
the whole country and arranged in multiple levels of hierarchy. The Republican Roman government, by contrast, seems to have
had something like hundreds of employees in Rome and perhaps a few dozen in each of a number of provinces (again, not including
the military; there was no state postal service). Additionally, most of these workers were so closely tied to one or the other
of the elected magistrates that their power was probably even more limited than their small number would suggest. For instance,
the major magistrates were attended by “lictors,” a sort of honor guard armed (at least symbolically) with axes and rods.
It has been suggested that these men could have served some kind of police function, but that seems unlikely, since they were
only allowed to operate in the presence of the magistrate.
For those who lived through it, the transition from Republic to Empire must have been a complicated and uneven process, dating
from perhaps 49
BC (when Julius Caesar marched on Rome and seized power) to 31 (when his grand-nephew now known as Augustus emerged as the survivor
of a series of civil wars), or perhaps even later if one wants to wait for all the formal features of the new order to come
into being. Different players came, went, and changed sides over this period. And questions have been raised about how important
legal formalisms were to the creation of that new order. This modern skepticism is
justified by, among other things, the fact that the early emperors were hesitant to admit publicly that they were monarchs.
For present purposes, however, we can avoid most of these difficulties. Compared to the period covered by this book (much
less the whole scope of Roman history), the transition does not seem such a long one after all. And even if the emperor’s
power did not rest primarily on legalities, the effect of the new imperial system on the law is clearer.
Instead of creating a distinctive new government or even an office of “emperor,” Augustus and his immediate successors left
much of the Republican order in place, at least formally. One of the ways they changed its actual function was to hold many
of its offices by themselves simultaneously. The emperor also controlled (directly or indirectly) the choice of most of the
other officeholders. The assemblies were not immediately abolished, but they had ceased both legislative and electoral activities
by roughly the end of Augustus’ reign. The more subtle change was to transform most of the old offices into largely honorary
positions and to move the actual power to other locations in the government. One new locus of authority, at least in the first
century or two of the Empire, was the Senate. After hundreds of years as an advisory body, the Senate was given power to elect
magistrates, pass binding laws, and even act as a court (at least for its own members). Of course, this “power” was in large
part a formality. The emperors transferred these functions to the Senate presumably because a relatively small group of relatively
well-known men was easier to control than the assemblies. In addition to the Senate, power came into the
hands of a variety of new officials of various sorts, all answerable to the emperor. Some of the new positions were formally
part of the emperor’s household staff rather than of the government. For instance, since judicial appeals came to the emperor
personally (see
Chapter 4), his secretary in charge of petitions was a powerful person. Other new (or newly empowered) positions were recognized as
part of the state: deputies (
legati) who governed many of the provinces, a “prefect” in charge of the city of Rome, and a variety of other prefects, procurators,
and curators. These men owed their positions to the emperor personally, and could be counted on to do his bidding.
The later history of the Imperial government (that is, of the third and fourth centuries and later) largely continued the
same trends. Most of the Republican offices remained in place, although in purely honorific form, and the Senate also faded
back into formal powerlessness. The old courts eventually disappeared, as the assemblies had earlier (for more detail, see
Chapter 11). The fiction that the emperor was not a monarch faded, as did any distinction between his personal staff and the official
government. There was also a steady growth in the number of and types of officials, even though the Roman government remained
tiny by modern standards, perhaps reaching a few tens of thousands of civilian personnel.
From around 300, the eastern and western halves of the empire became increasingly separate; beginning in 395, the two always
had separate capitals and independent emperors. In fact, even after the last emperor in Rome was deposed (in 476),
there were self-described “Roman emperors” in Constantinople (modern Istanbul, Turkey) for almost another 1,000 years. This
period is often described as “Byzantine” (the capital city had a third name – Byzantium). Justinian, whose central importance
to Roman law we will see later, was one of those Byzantine emperors (ruled 527–565).
The threefold division of Roman history just described is fairly standard in political, social, and military contexts. Within
it, the center of gravity has tended (rightly or wrongly) to be placed in the late Republic and early Empire. Students of
the law, however, have tended toward a fourfold division and a somewhat later focus. The periods they choose have a double
definition. On the one hand, they reflect changes in political authority – who is allowed to interpret the law – as power
moves from priests to the so-called jurists (who were sort of like law professors; see
Chapter 5) to the emperors. On the other hand, each period seems to have a different characteristic feel in terms of the law itself.
How fast and how far does it change? How consistent and systematic is it?
This fourfold scheme begins with an archaic period, dating from the earliest days of Roman law to an ill-defined date somewhere
in the third or second century
BC This is followed by a late Republican “formative” or “pre-classical” phase lasting until the end of the (political) Republic
and
perhaps a little beyond. This period is distinguished from the archaic particularly by the rise of the “profession” of the
jurist. Republican jurists did show an increasing degree of specialization and autonomy. Most of the important institutions
of later Roman law had been developed by the end of this period, but not necessarily systematized. A “classical” period then
ensued, lasting until roughly
AD 235. In terms of the legal profession, this period was marked by the growing absorption of legal expertise into the state.
This process began immediately with the empire, but worked out subtly at first. In substance, this was a period of consolidation
and working out of detail. We see a series of writers producing ever larger and more comprehensive works on the law until
the process comes to a fairly sudden halt with the fall of the so-called Severan dynasty of emperors. It is probably no coincidence
that the end of this productive period coincides with the beginning of several decades of relative political instability.
What remains afterward is lumped together as “post-classical,” though this is hardly a unified category. In general, we can
perhaps say that this is a period in which the jurists outside the government have lost most of their importance. Instead,
the important legal texts are enactments and codifications in the names of various emperors (though presumably the actual
authors are still legal professionals). The continuing existence of texts from earlier periods created a conservative if uneven
force as well. In substance, then, the law of the post-classical period does not take a particular direction of its own.
Ordinarily, in the ancient Mediterranean world, the basic political entity was the city and its surrounding territory. You
were a citizen of, if anything, a city, like Rome or Athens, and typically this meant the city of your parents. There was
relatively little geographical mobility, and citizenship did not normally take account of immigration. The growth of Rome
into a large empire (in the sense of a conquering power) almost necessarily complicated this picture. Moreover, the Romans
introduced some additional twists of their own.
In the days of the monarchy and early Republic, Rome was one of a number of communities in the west central Italian region
of Latium that shared various features of religion, law, and language. (This is why people called “Romans” spoke a language
called “Latin.”) The residents of the various Latin cities retained formally independent citizenships, but the lines did blur
somewhat. Latins could engage in marriages and commercial dealings in a way normally restricted to persons who shared the
same citizenship. It was even possible to gain full rights in another Latin community (including voting rights) simply by
moving there. As Rome grew stronger, the links among the other Latin communities were broken down, but each one remained individually
tied to Rome (minus the right to move there). This made Latin status a kind of halfway version of Roman citizenship. At the
same time, Rome was slowly conquering a number of other states throughout Italy. After their various military victories, the
Romans organized their
conquests in several different ways. In some places they seized at least part of the territory of the defeated state, declared
it “Roman,” and often eventually distributed it to their own people. In others, they left at least part of the defeated state
in place, but placed it under treaty obligation to assist Rome in her future wars. And finally, they established entire new
communities (“colonies”). Some of these were populated by Roman citizens, but many were declared to be “Latin.” At this point,
being Latin was no longer a linguistic (or ethnic or geographical) category, but a political one. That is, Rome took the package
of legal rights and obligations that had previously distinguished the “real” Latins and started giving them out to others
(even people who had been born Roman) as a matter of policy. Early in the first century
BC many of the subordinate allies staged an uprising against the (by then greatly expanded) “Romans,” while the Latins and certain
other allies remained loyal. The Romans won a military victory, but in the process all communities on the Italian peninsula
were decreed to be Roman.
During the time of the Republic, however, this spread of citizenship stayed almost entirely within the bounds of Italy. There
were rare grants of citizenship to loyal foreigners (as a personal reward), and a select few colonies were established outside
of Italy. This changed dramatically under the empire. First, colonies could no longer be established in the all-Roman Italy
(which had come to include most of modern Italy by the mid first century
BC). Thus subsequent placement of colonies (largely to settle retired veterans, rather than as the direct result of conquest)
expanded the citizen-owned territory of
Rome. More importantly, beginning in the mid first century
AD, various Roman emperors decreed citizenship for different groups of provincials. In many cases, this was done a city at a
time; in others, the status of an entire province was changed at once. At least in some parts of the empire, there was an
intermediate stage during which the once-foreign community was made to be Latin (a term that had now lost all connection to
its local origins). The move toward a single citizenship was not uniform, but it went only in one direction. Finally, in
AD 212, virtually all free inhabitants of the empire were made citizens by the emperor Caracalla.