THIS CHAPTER IS entitled “Sources of Roman Law” in contrast to the next chapter on “Sources for Roman Law.” The difference is that this chapter takes an ancient point of view. If you were an ancient Roman, where did the
laws you had to live by come from? As the previous chapter noted, the Romans did not have a Congress or state legislatures
or city councils to pass laws. Nor, for much of their history, did they have a king or other single dictator who could just
issue decrees. How then were laws made? The next chapter will take up a modern perspective. How can we find out today what
the law was then? Historians today must sort through often obscure, ambiguous, and contradictory evidence to answer almost
any question about the ancient world. Where in particular do we need to look to find out about Roman law?
Although Roman political institutions were different from those of the modern United States, the sources of law in both systems
can be put into the same three general categories: “statute” law (law enacted by a legislative body), administrative rules,
and judicial interpretation. This section will outline the Roman versions of these three types, noting changes in them tied
to the transformations of the Roman government. I will point out similarities to and differences from modern practice. The
next section will look at how the different sources interacted with each other.
Roman statute law during the Republic came from votes of the popular assemblies. The resulting laws were called generally
leges (sing.
lex); this is where our word “legal” comes from. (You may occasionally also see the term
plebis scita [sing.
plebis scitum], but the difference is only procedural; it does not affect the force of the law.) Unlike the American system, though more
like the British, there was no separate Constitution or other kind of special super-law. The rules of government could in
theory be changed by the same majority vote it would take to build public works, change tax rates, or increase the penalty
for some crime. Rome’s first written legal code was a collection of
leges called collectively the Twelve Tables, dating to about 450
BC. Many of these laws remained on the books, at least formally, through the whole history of Rome. Under the Empire, some laws
were still passed by the assemblies (though always with the approval of the emperor), but increasingly the emperor came to
rule by issuing orders. As in the Republic, these laws could take on somewhat different names depending on the precise way
in which they were created, but all just amounted to imperial decrees: “constitutions” ( just an imperial order, not to be
confused with a
modern Constitution), decrees of the Senate (
senatus consulta [sing.
consultum] – recall that the Senate of the Republic could
not make laws), and “responses” to individual appeals and petitions were all ways of enacting the emperor’s will (though the
details were presumably the work of professionals on his staff).
There had been rule by executive order even during the Republic. These decrees came not from bureaucratic agencies, as they
do today, but from the various elected magistrates, particularly provincial governors, the aediles, and (most important) the
praetors. These orders are called “edicts,” from their Latin name, which means something spoken out loud. Originally, these
presumably were spoken orders directed at some immediate audience (say, ordering a crowd to disperse or a man to hand over
a disputed piece of property). By recorded times, however, edicts had generally come to be written orders binding on the general
public. In principle, they were valid only for the magistrate’s year in office. Romans spoke of these edicts as “supplementing”
the statute law (say, by filling in gaps or simply by adding mechanisms of enforcement), but we will see in the final section
of this chapter that the relationship between the two was more complicated than that. Once emperors started issuing decrees
of lasting validity, the traditional type of edict became much less important (but see the following section on the edict
of the urban praetor).
Statute law was written to be general law, just as most laws are today, and many edicts had equally broad applications. But
it is impossible for the writers of legislation (now or then) to foresee exactly how their law might apply to every real-world
situation that might eventually arise. It is not even clear that lawmakers always do their best in this regard. Hence, someone
must decide how the general law is to apply in specific cases. In the United States, this is primarily the job of the courts.
While the Roman courts necessarily had some such role, the main work of interpretation was left to a group called “jurists.”
The nature of this profession will be discussed at length in
Chapter 5, but for now we can just think of them as somewhat similar to modern law professors. Roman courts had to apply the law in
specific cases, but they did not publish decisions, as American courts can, so it was hard for a decision in one case to affect
that in another. Jurists published their own interpretations of the laws (and of each other) both in general terms and in
specific cases. Over time, these decisions came to shape the law a great deal (the full extent will be discussed in the last
section. By contrast, Roman courts did not explain their rulings either orally or in writing.) During the Imperial period,
the emperors’ “responses” could offer authoritative interpretations of (and even amendments to) the law, but juristic activity
continued to be important until the early third century
AD. Even after juristic production slowed, the jurists’ body of written work continued to be influential (see
Chapter 3 on the
Digest).
One particular source of law among those just described was so important that it deserves its own section. Among the various
officials who could publish edicts was the city praetor of Rome, generally called the “urban praetor” after his Latin title.
Much of Roman private law came from his edict (which was itself a collection of many edicts on various topics). Some major
areas of law, such as contract and defamation, were governed almost entirely by this edict. When legal scholars speak simply
of “the Edict,” they are referring to the edict of the urban praetor. We noted earlier that an edict was technically valid
only so long as the magistrate issuing it was in office. This could have made for a very unstable legal situation, but in
practice each urban praetor tended to re-enact all (or nearly all) of his predecessor’s edict. When necessary, changes could
be made without cumbersome legislative action, but generally the tradition was quite conservative. (The same traditional practice
applied to the edicts of the other magistrates, at least in Rome, e.g.,
[4].)
1It did not take long for the emperors to remove even this small amount of discretion from the urban praetors. By about AD 130, the form of the Edict was declared fixed (though the emperors themselves retained the power to order changes). At the
same time, there was no particular attempt to replace the Edict with imperial laws in other forms. Hence, the urban praetor’s
edict remained central to Roman law for centuries after individual praetors had ceased to have any power over the legal system.
The content of the Edict mostly took the form of a list of “actions” the praetor would grant to plaintiffs. That is, it was
not framed in terms of general legal rights or principles. Rather, it specified the remedies that would be available in many
particular situations. A more detailed discussion of these actions will be found in
Chapter 11, but a few words may be in order here. In some cases, the Edict just specified the circumstances in which the praetor would
grant a trial (in modern terms, various “causes of action”). In other cases, he specified the “formulae” that could actually
be used in those circumstances – directions to judges on how to decide various kinds of cases. There were also standard orders
the praetor might issue himself. These included simple commands, for example, requiring a builder to give insurance against
damage to neighboring property, prerequisites to being allowed to initiate a suit, or a conditional command called an “interdict”
(e.g., to restore possession of an item [if] taken by force; see also
Chapter 13 on the law of property). He could also decree a
restitutio in integrum, a decree that nullified some pre-existing transaction.
In the American system, decrees (say, the rules of federal agencies) and precedent/interpretation are generally meant to be
subordinate to statute law. Romans sometimes speak as if they imagined a similar hierarchy; one lawyer said that the edicts
were meant to “assist, supplement, and correct” the core of the statute law, what they sometimes called the
ius civile, lumping together all statute law, regardless of source. But actual practice
looks much more complicated than that. Let us consider first the relationship between statute law and edicts, then the even
more complicated issue of the “interpretation” of both.
In some instances, it seems that edictal law exists only to implement statute law. So, for instance, the edict specifies the
action to use in suing a thief. Theft was already recognized as an offense in statute law, but your property rights meant
nothing in the Roman system if there was no specific action to defend them. (In fact, the Romans tended not even to talk about
“rights” in the modern sense, just actions.) In other cases, the edict expanded the scope of already-existing statute law.
For instance, legislation of the mid fifth century
BC allowed suits to recover for bodily injury; the Edict eventually extended this protection to mere insult. In still others,
the rules of the edict practically changed the statute law. (Technically, the old rules were not abolished. The praetor simply
announced that he would make a new system available). The praetor effectively changed the rules of inheritance by simply granting
the right to sue for part of the estate to new classes of relatives (see
Chapter 15). He could perhaps have been overruled in this by the passage of a new statute, but we have no examples of that happening.
And finally, there were areas in which the praetor simply created the law out of whole cloth. The most notable of these was
the creation of the binding consensual contract (
Chapter 12).
Both statute law and edicts were subject to interpretation by the jurists, and interpretation could have much the same range
of effects on both that edicts could have on statute law.
Interpretation was often framed as “definition” of specific words in the underlying law, but jurists sometimes allowed themselves
enormous freedom within that rhetorical framework. Before discussing the more adventurous cases, let me mention two circumstances
in which interpretation would be required by any lights. First, Roman laws (of whatever sort) did not generally come with
built-in definitions; contrast modern statutes, which are full of them. So a law protected the owner of “herd animals” (
pecudes) from “wrongful killing” of those animals. In Rome’s early days, the term “herd animals” was largely clear (though there
was controversy over pigs), but the jurists had to be called in eventually to settle whether elephants were covered. Second,
in any system interpreters may need to be called in to clean up after legal documents were poorly written. For instance, lawyers
wondered what do to with a promise “that a product was of good quality.” If it turned out to be defective, the promise would
be for an “impossibility,” like a car that will take you to the moon, and so invalid. (It would be better, they thought, to
use a promise to pay a penalty if it wasn’t;
[4] seems to do both).
In cases such as these, as I noted, the need for interpretation is fairly clear. But often it was used to make bigger changes
than were necessary to solve particular problems, and sometimes the purported definition or interpretation seems completely
unmotivated. So, for instance, the Edict gives an action to enforce contractual sale without spelling out most of the rules
that govern buying and selling. Instead of being added in some form, they were brought in as part of the “definition”
of sale. The rule, for instance, that sale must involve a cash price (i.e., trades do not count) might make sense as a definition,
but the idea that certain warranties are also part of the meaning of the term “sale” seems very forced. Even stranger, perhaps,
are cases such as the rule on how to free children from their parents’ control. There was a clear statutory rule that sons
could be freed by being sold off three times (how they would come back after the first two times is not relevant here). The
interpreters could have decided that “son” stood for “son or daughter” and left well enough alone, or they could have said
that daughters were not included at all, since they weren’t literally mentioned. Either would clearly be “interpretation”
in the usual modern sense. Instead, they asserted that “three times” was a special case for male children and that the unwritten
“normal” rule for everyone else (i.e., only daughters) involved being sold only once. This kind of “interpretation” is used
to generate an entirely novel rule.