The ‘development’ of Roman law throughout the Roman political phases.

By Tatenda Madamombe.1

Abstract

“Roman law was in force (for) approximately twelve hundred years and it is, therefore,
obvious, that during this period Roman law developed. Law is one of the products of a
society and no society remains stagnant, but change and progress will always and
everywhere take place, causing the legal system to adapt.”2 This entails that Roman law
developed since the primitive stages of Rome up until the post-classical era. A
discussion of how Roman law developed is hence inevitable. So as to understand the
background of our legal system. This article is only limited to the development which
took place during Rome’s political life. The development of Roman law was accelerated
by various factors emerging during respective phases. The Roman society was
changing, so as the law. The law was changing so as to adapt to the then societal
status.

Factors which led to the development of Roman law can be broadly categorized into
political, social, economic, religious factors etc. The developments in the political, social
or economic organization of Rome influenced the development of the law during the
respective periods. Various other factors were also at play. Roman law during the regal
period was in its archaic stages hence archaic law, it then developed into being
classical law during the classical period and it culminated with Justinian legislation in the
sixth century.

This article is divided into five parts. The first part explores the four political phases of
Rome. Roman law developed in each of these phases with more changes in the legal
system being witnessed during the period of the Republic. The other four parts of the

1
Student, Faculty of Law, Midlands State University, Gweru, Zimbabwe.
2
Ph. J. Thomas Introduction to Roman Law (1986) 1.
article explore the various factors which led to the development of law during the four
Roman political phases in their respective order.

1. The State of Rome.

It is imperative to have an appreciation of various political phases under which Rome

went through. This will help in the understanding of the evolution of the law of the state
of Rome as more commonly, the law developed during all phases.

Rome is believed by legends to have been founded in 753 B.C. by Romulus, its first
king3 and Roman history is commonly treated in three great divisions which formed
different Roman governments namely the Monarchy, the Republic and the Empire.4 The
Empire period stretched from 27BC to AD 284 and was divided into two phases namely
the Principate and the Dominate.5 These two political phases (the Principate and the
Dominate) became known as the imperial government.6 The first phase was known as
the Monarchical era, Rome was under the rule of kings.7 This was changed following
the expulsion of the last Etruscan king by way of a revolt of the aristocracy in 510 BC8
and the subsequent establishment of the Republic in 509 BC.9 The Republic was put
under the rule of two consuls who equally exercised power in office. Following the fall of
the Republic, a Principate government came into force in 27 BC with the emperor being
head of government. This system continued into the Dominate era of 284 AD10 and the
period became the last phase. This article will discuss the development of Roman law
from the Monarchical to the Dominate era.

2. The period of the Monarchy.

The history of this era has been largely distorted due to lack of a definite source,
scholars largely relied on archaeological and legendary evidence. Notwithstanding that

3
H. J. Wolff Roman Law: An Historical Introduction (1951) 7
4
H. F. Jolowicz and B.Nicholas Historical Introduction to the Study of Roman Law (1972) 1, 3rd ed.
5
B. Nicholas An Introduction to Roman Law (1962) 10.
6
Wolff (n 3 above) 45.
7
Wolff (n3 above) 8.
8
P. Du Plessis and A. Borkowski Textbook on Roman Law 4th ed. (2010)
9
Du Plessis and Borkowski (n8 above)
10
E. Olga A Short History of Roman Law (2003) 110
position, there has been an attempt to trace the shape of the legal system during the
Monarchy.

It is imperative to first understand the meaning of the term “development” for one to
appreciate the scope of the term. The Oxford Student’s Dictionary, defines development
as, “the process of becoming bigger, stronger, better etc…” This simple definition shows
that development is said to have taken place where something has been made into
becoming bigger, stronger, better etc. This implies that for us to talk of development,
there must be something which is available and that thing is then made into becoming
bigger, strong or better by various emerging factors. If the situation remains the same,
that is, has not been made into becoming better or stronger, there is no development to
talk about. In the same vein, we can only talk of ‘development of Roman law’ if there
emerged factors rendering the existing Roman principles of law into becoming better or
stronger than they were before. Accordingly, the enquiry would be to say, does this
factor have the effect of making the existing principles of Roman law into becoming
better? If the answer is in the affirmative, development is then said to have taken place.

NB. The idea is not only to point out all the changes brought about in the legal system
of Rome but to also show the effect of the changes concerned. The question asked is,
was the law made into becoming better or stronger by the changes concerned? Thus, it
should be noted that some changes noticed led to Roman law developing in no way and
for purposes of this article, these will be ignored.

2.1 The legal developments during the Monarchy.

“The law under the monarchy and the early republic is usually referred to as archaic law
because it was still in an early stage of development.”11 (Emphasis is mine) During this
Monarchical era, people had their conduct regulated by a series of norms called mores
maiorum.12 These norms were believed to have been inherited from the Roman
ancestors.13 They (the social norms) were also believed to have two categories of origin
namely, human and divine origin. During the early years of the Monarchy, which period

11
Olga (n10 above) 17.
12
Olga (n10 above) 17.
13
Olga (n10 above) 17.
maybe referred to as the early Roman law period, there was no a clear distinction
between the norms of a divine origin and those with a human one.14 Development of the
law was hence experienced when a distinction was made between human law (ius) and
divine law (fas).

It has been established that ius Quiritium was the law which was applicable during the
Monarchy and that there has been no considerable developments in the law observed
during the period of the Monarchy. However, few social, political and economic factors
were responsible for the minor developments which took place during this period.

One notable development of the law witnessed during the time of the Monarchy was the
making of a distinction between human law and divine law. This was observed towards
the end of the Monarchy.15 However, the Romans did not made a clear distinction
between the human law and divine law as there was still a bit of interaction between the
human law and divine law for some years.16 What is however important is that there has
been development to the existing ius Quiritium in the sense that a distinction was made,
though not absolute, between the norms of a human origin and those of a divine origin.
One question which may arise is therefore that, what factors were therefore responsible
for such a development? As already said, the factors can be broadly categorized into
social, political and economic factors. They all contributed towards the development of
the law witnessed towards the end of the Monarchical era that is of the making of a
distinction between human and divine law.

The society of Rome consisted two elements namely, familia and the gens with the
pater familias being the head of a familia.17 The pater familias was the only person
within a familia who had rights in private law.18 This means that he was the only one
who was entitled to property ownership. Those under his potestas and manus could
acquire rights under private law once they became sui iuris. This led to the need for a
distinction between human law and divine law. The society of Rome was also divided

14
Olga (n10 above) 17.
15
“…at the end of the monarchy, the Romans began to distinguish between human and divine norms…”
Olga (n1o above) 17.
16
Jolowicz and Nicholas (n4 above) 30.
17
A. Watson Rome of the XII Tables (1975) 47.
18
Olga (n10 above) 6.
into the Plebeian and Patrician groups. The Patricians were believed to be the
descendants of the early nobility.19 The Patricians were therefore generally the rich land
and slave owners. The growth in their numbers (as they were property owners together
with the pater familias of the familias) led to the need for a distinction between human
and divine law. Human law was need specifically to govern the relations or conduct
between man and man especially in areas of property law. Generally, the Patricians
were the rich slave owners, land owners and cattle and could influence legislation. It is
most probable that by the end of the Monarchy, though still few, Rome had a
considerable number of the rich Patricians who influenced legislation in a way that
would render protection to their property hence a need for a distinction between human
and divine law.

The population during the primitive stages of Rome, especially the early years of the
Monarchy, was relatively low such that Rome would only cover a fairly small area.20 By
the end of the Monarchy, the population had increased such that it became difficulty
with a notable growth in wrongs done to another to determine whether the wrongs so
done were a violation of human law or divine law. What was needed was some sort of a
distinction between human law and divine law to cure the problem that had arisen
where specific human laws were now needed. It must be recalled that the distinction
made during this period, that is the end of the Monarchy was not a comprehensive
distinction since the interaction between human and divine law continued to exist into
the Republican era.

The main economic activities of Rome during the period of the Monarchy were
agriculture and cattle-rearing.21 The growth in the farming activities which was
stimulated by the two of the last three kings of the Monarchy pushed towards the
distinction between human and divine law. The lifestyle of the Etruscans as revealed by
the Etruscan kings Tarquinius Priscus and Tarquinius Superbus became largely based
on agricultural activities. The abovementioned kings were known for enhancing the
economic life of the Romans through building large temples and installing a drainage

19
E. Ferenczy From the Patrician State to the Patricio-Plebeian State (1976) 15.
20
Olga (n10 above) 9.
21
“Agriculture and cattle-rearing were the main means of livelihood.” Olga (n10 above) 9.
system notably known as the Cloaca Maxima.22 Such economic developments
witnessed during the last years of the Monarchy led to the need for a distinction
between human law and divine law as many individuals began to own various pieces of
land hence need for a separate body of law to regulate inter-human conduct.

Due to numerous efforts in building up the economy of Rome done by the Etruscan last
kings of the Monarchy, and the geographical location of the city, Rome developed into a
central trading port. Agricultural yields, cattle products, slaves and many others were
brought before the market for trade. The growth in slave trade mainly led to the need for
a distinction between human and divine law. There was now need to provide a separate
set of rules of procedure involved in the trading of slaves for example the formula and
words said on emancipation. There is thus no doubt the economic activities were also at
play in the minor development of the law during the Monarchy.

The political organization of the Monarchical era also led to the distinction between
human la and divine law.

The king was the head of the state during this period. He received advices from the
senate whose other duties were to support the king, choose the king and would assume
supreme power called interregnum from the death of the current king until the
appointment of a new king.23 The last three kings who became known for introducing a
new supreme command called imperium which gave them unfettered power over the
administration of justice, law-making, the army among other things. Such abuse of
power led to the overthrow of the Monarchical government giving way to the
government of the Republic, it is said. Given the background that all powers were now
vested in the hands of the king by the end of the Monarchy such that he could largely
influence legislation, it is most likely that the king saw the need to distinguish between
human law and divine law and also due to the fact that he was involved in the settling of
disputes of all kinds, he met difficulties in the applicable laws in respect of the disputes
concerned such that a distinction between human law and divine law became
unavoidable.

22
Olga (n10 above) 11.
23
Olga (n10 above) 11.
There was an assembly of the people in the political structure of the Monarchy called
comitia curiata.24 The primary duty of the assembly was to vote on the laws proposed by
the king. Accordingly, their contribution towards the development of the law during the
Monarchy was inescapable as they had a direct influence on legislation. Several laws
were passed towards the end of the Monarchy which laws became known as leges
regiae. These laws were collected at the end of the Monarchy by a pontifex maximus
called Sextus Papirius.25 It has been however argued that these laws were simply
pronouncements by the king on the position of the law.26 As the king had also an
intermediary role27, he was the one exclusively exposed to the norms with a divine
origin and human origin, it is most possible that he saw the need to make a distinction
between human and divine norms.

3. The Republican era.

Compared to all the political phases, several and probably major developments in the
law occurred during the period of the Republic. It is believed that this period
commenced in 509 BC when the absolute power of the king was transferred to two
high-ranking magistrates with the senate retaining its advisory function.28 During this
period, a few developments in the law happened during the Early Republic and a variety
of changes were then witnessed during late Republic where there were vast changes in
the organization of the state. These changes had a bearing on the law itself. Before
probing into a discussion of the various factors which made the law into becoming better
(development), it is important to first highlight the law which was later on developed.

3.1 Development of law during Early Republic.

As noted above, there were few improvements in the law during the early years of the
Republic. During this early period of the Roman Republic (for 150 years), law-making
powers was in the hands of the college of pontiffs consisting of about five Patricians.29

24
“Under the monarchy the usual form of assembly was the comitia curiata” Olga (n10 above) 11.
25
Olga (n10 above) 19.
26
Olga (n10 above) 19.
27
Olga (n10 above) 10.
28
Jolowicz and Nicholas (n4 above) 30.
29
“During that period the college consisted of about five patricians.” Jolowicz and Nicholas (n4 above) 30.
The pontiffs following the publication of the tables also, “continued in their role of giving
opinions (responsa) on the law”30 and this saw the law developing in many respects.
One major development which took place during the early Republican period was
recording of the law. This process saw the law being reduced down into writing. Before
then, the norms regulating human conduct within the boundaries of Rome were not
recorded anywhere hence by mere recording, development was noted. The purpose for
recording the laws into writing is something outside the purview of this article therefore
will be ignored. However, one purpose, interesting to mention is that, the recording of
the law saw the uplifting of a ban of intermarriages as it became clearly stipulated in the
tables that no intermarriage (between a Patrician and Plebeian) was to be legally
valid.31 The recording of the law was hard-pressed by the struggle between the orders
which started around 500 BC.32 The tensions were aggravated by an increment
observed during early Republic in the Plebeian population which saw some Plebeian
families becoming wealthier thus sought to have equal rights and privileges as the
Patricians.33 It is believed that it was a Plebeian tribune, C. Terentilius Arsa who
proposed that the law be written down in 462 BC.34 This buttresses the view that it was
the struggle between orders, driven by the increase in numbers of the poor Plebeians
which led to the development of the law through reducing the law down into writing.

By reducing the law into writing, the law continued to develop for a century after the law
of the XII Tables now through interpretation35 thus it is said, “legal developments during
this early period consisted very largely of interpretation of the text of the XII Tables.”36 In
other words, new laws began to be formulated through interpreting the tables. The law
hence developed in this way. During the early period of the Republic, the first phase of

30
P. Spiller A Manual of Roman Law (1985) 4.
31
“The purpose of codification was not, as one might think, to achieve complete equality in law for
patricians and plebeians; the first step in that direction was the lifting of the ban on marriage between the
two orders in 445 BC.” Olga (n10 above) 20.
32
Olga (n10 above) 7.
33
“In the early years of the republic the number of impoverished plebeians increased whereas some
plebeian families became wealthy and sought to have the same rights as the patricians. This gave rise to
considerable tensions.” Olga (n10 above) 7.
34
Olga (n10 above) 19.
35
“For a century after the Law of the XII Tables had been formulated new law was developed mainly by
interpreting this law, later laws and the legis actiones based upon them.” Olga (n10 above) 24.
36
Spiller (n30 above) 4.
the legis actiones procedures (civil litigations) were under the exclusive control of the
pontiffs such that they could influence development of law in many respects, through
either widening or limiting the scope of the procedure by interpretation.37 By so doing,
new laws began to be formulated hence development of the law.38 It can therefore be
safely concluded that the law developed during the early Republic through interpretation
of the XII Tables.

Development during the early years of the Republic was also necessitated by the role
played by pontiffs in giving advices to the public concerning rule of law and, they also
played a critical role in the law-making process for about 150 years of the early
Republic.39 They were being consulted by the citizens and would give advice on the law
but, “in their advice, however, the pontiffs not only interpreted existing legal concepts,
they also introduced entirely new institutions while pretending to give interpretations.”40
This led to the development of Roman law. They got involved in giving responsum to
magistrates or parties hence development of the law.41

Following the law of the XII Tables, tensions between the orders increased such that the
law started to develop in some way. This was so because, since the law had been
written down, it was now easily accessible by the Plebeians. Given the fact that the
pontiffs were entitled to give advices on the rule of law as shown above and an increase
in number of the rich families from the Plebeians, the long-standing resentment since
500 BC was captivated by the table which uplifted the ban on intermarriage. This
immediately led to the formulation a new law called lex Canuleia hence development of
the law.

3.2 Development of law during the late Republic.

37
“As was stated earlier, the pontiffs had control over the first phase of the legis actio procedure and
could exert considerable influence on the development of the law. They could widen the scope of a legis
actio by interpreting it broadly or they could restrict its scope by interpreting it narrowly.” (Emphasis
added.) Olga (n10 above) 24.
38
“Another well-known example of lawmaking through interpretation by the pontiffs is the way in which the
emancipatio of sons was made possible.” Olga (n10 above) 24.
39
“During the first 150 years of the republic law-making was in the hands of the college of
pontifices…..the pontiffs have always been regarded as guardians of the law.” Olga (n10 above) 18.
40
Olga (n210above) 24.
41
F. Schulz History of Roman Legal Science (1946) 7. See also Jolowicz and Nicholas (n4 above) 88-9.
A perusal of various sources portrays the period of the late Republic as a period where
vast developments in the law were witnessed. It had been said that, “the late republic
saw a number of important changes in the law which can be summarised by the terms
secularisation, internationalisation and liberalisation.”42 The late Republic became the
period when Roman law was internationalized.43

The changes brought in the legal field were mainly imposed by the expansion of Roman
power which expansion wielded an effect on the social and economic structures of the
day such that the old legal system became inadequate, for it is said, “due to the
expansion of Roman power and the changes that this expansion brought about in the
socio-economic field the old legal system was no longer adequate.”44 The Romans now
concentrated more on expansion as the differences which used to exist amongst the
societal groups in Rome had been extinguished following the law passed in 367 BC
called the leges Liciniae Sextiae.45 This law brought an end to the long-standing
conflicts between the Plebeians and Patricians and also re-organized the state. Rome
was engaged in a series of wars during the late Republic. Rome managed to conquer
the following territories during the late Republic, Syria and Asia Minor (192-188 BC),
Egypt (30 BC), Celts (200-190 BC), several towns and cities in South of Italy (275 BC),
Latium (338 BC), Phoenicia (264-201 BC), Macedonia (200-168 BC) and several other
groups.46 This led to a growth in the population of Rome. The conquered territories did
not automatically attained Roman citizenship.47 They were supposed to formerly acquire
Roman citizenship so that they could be bound by the ius Civile which was only limited
to Roman citizens given the personality principle which was observed during these
periods. The personality principle would provide that a person is bound by the law
applicable in his/her respective territory. Since Rome had conquered many territories a
large influx of slaves and people with a foreign origin began to be experienced in Rome
such that to apply the personality principle, a lawless and disorderly environment would

42
Olga (n10 above) 48.
43
“A change that was remarkable for the times was the internationalisation of Roman law within the
frontiers of the Roman territory.” Olga (n10 above) 48.
44
The law applicable during the primitive stages of the state of Rome, later known as ius Civile during the
Republic became inadequate for such an enlarged territory.
45
Olga (n10 above) 30.
46
Olga (n10 above) 30.
47
Olga (n10 above) 8.
be created, separate legislation was put in place to cater for the foreigners within and
outside the borders of Rome. There is no doubt that this led to the formulation of the ius
Gentium which operated side by side with the ius Civile. The former became the
international law of the day and became used to regulate the conduct amongst
foreigners themselves and Roman citizens. The foreigners could not institute the old
legis actio procedure. There was hence need to develop the law and it was during the
late Republican times when the formulary procedure was formed and could be used by
foreigners in almost the same way as Roman citizens.48 By so doing, the law was
developing. This also saw a second praetor being appointed in 242 BC for purposes of
carrying out civil litigation between Roman citizens and foreigners and between
foreigners themselves.49 This second praetor came to be known as praetor peregrines
and the praetor urbanus became solely responsible for matters between Roman
citizens.50 The appointment of praetors to the development of law in many ways for
instance;

Praetors contributed to the development of the law in the sense that, they had ius
edicendi therefore could introduce new legal remedies available to parties when
supervision of civil litigation had passed from the hands of pontiffs to the praetor in 367
BC.51 It is also said that, “…in the late republic the praetor set about creating a new way
of civil litigation, the formulary procedure, and began drawing up new legal norms.”
Development was noted mainly because the old procedure existed before the late
Republic, the legis actio could not be instituted by foreigners52 of which due to a number
of reasons, the number of foreigners had increased by late Republic, and hence there
was need for a procedure to accommodate both foreigners and Roman citizens. The
private law of Rome also developed due to the contribution of the praetor who was
responsible for developing a new complex of private law which came to be known as

48
Olga (n10 above) 48.
49
“In the early days there was only one praetor, but in 242 BC a second one was appointed for the
purpose of supervising the civil litigation between Roman citizens and foreigners and between
foreigners.” Olga (n10 above) 41
50
M. Cary and H.H. Scullard A History of Rome (1975) 172. 3rd ed.
51
Olga (n10 above) 48.
52
“Because these foreigners, who were referred to as peregrini, had no access to the old legis actio
procedure….the new procedure that developed from this was called the formulary system; it could be
used almost equally by Roman citizens and peregrini.” Olga (n10 above) 48.
the ius praetorium or ius honorarium.53 This law was formulated since, “in those days
Rome, with its port of Ostia, began to become a very important centre of trade. These
changes led to the development of a new complex of Roman private law which came to
be known as ius praetorium or ius honorarium.”54 To signify a development in the law,
this newly formed law was first used side by side with the ius Civile and was later on
merged to the latter.55

Population growth also contributed to several developments which took place in the
Roman legal system during the end of the Republic. This is so for it is said that, “it was
not until 287 BC when, due to territorial expansion, there were more plebeians than
patricians, that the plebiscites were declared binding for all the people by virtue of the
lex Hortensia.” This shows an apparent development which took place during the late
Republic due to territorial expansion. Before then, plebiscites were regarded binding on
the Plebeians alone. Another most probable reason which led to the passing of the lex
Hortensia is that, the distinction between these orders (Patrician and Plebeian) had
since been wiped away in 367 BC following the passing of the leges Liciniae Sextiae. It
is also argued that following the leges Liciniae Sextiae, the society was now divided into
three new orders namely, the equites, senatorial aristocracy and the middle and lower
classes.56 This furthered development of Roman law in the sense that since the
plebiscites had also acquired the status of a law (lex) hence binding on every citizen,
several laws began to be made. This was however only until the first century BC, “when
the Roman republic was caught up in an administrative crisis and the assembly had lost
a good deal of its influence.”

Several developments in the criminal law were also noted in the late Republic thus it is
said, “it was not until the last century of the republic that penal law began to develop:
the number of punishable offences and the number of courts were increased.”57 During
the Early Republic, “a large group of offences was regarded as being harmful to the
individual citizen but not to the state; the perpetrators were therefore not prosecuted by

53
Olga (n10 above) 49.
54
Olga (n10 above) 49.
55
Olga (n10 above) 49.
56
Jolowicz and Nicholas (n4 above) 78ff.
57
Olga (n10 above) 49.
the state.”58 Conversely, “about 100 BC, when Rome had grown into a large town with
all the associated problems, this system was no longer adequate.”59 The developments
in criminal law during the late Republic were therefore caused by population increment
in Rome. The following measures were taken hence development; all low-ranking
magistrates were clothed with criminal jurisdiction60 and permanents courts were
established to deal with specific offences.61 Legislative measures were also taken
during this period in furtherance of the development of penal law.62 All these measures
contributed towards the development of Roman penal law hence development of law.

Administration of justice also played a fundamental role to the development of Roman

private law.63 It was during this time of the Republic when there was an increase in the
number of courts as shown above. This led to the increase in the number of officers of
the court namely, judges, magistrates, advocates etc. The judge was responsible for the
second phase of the newly formed formulary procedure64 which could now be instituted
by foreigners unlike the old legis actio. The judge could instruct the praetor to alter the
formula in question hence leading to development of private law.65 Advocates also
played a crucial role in the development of Roman law. They emerged during the late
Republic as it was the time when the prestigious order became the senatorial
aristocracy and for one to be appointed to the senate, he should have served as in the
high-ranking magisterial office. Advocates worked in courts mainly to gain and
reputation such that they may be elected as magistrates66 and “in this way the

58
Olga (n10 above) 51.
59
Olga (n10 above) 51.
60
“low-ranking magistrates were appointed, the tresviri capitales, who judged cases, reported by citizens,
involving violent crimes, arson, the making and possession of poison, etc.” Olga (n10 above) 51.
61
Olga (n10 above) 52, “in 149 BC the lex Calpurnia established the first court for a particular type of
offence, namely the quaestio de repetundis.” And, “Thereafter a few more quaestiones perpetuae were
established”
62
Olga (n10 above) 49, “It is striking that whereas the new elements in penal law were based largely on
legislation…”
63
“Private law developed mainly within the framework of the administration of justice and legal science.”
Olga (n10 above) 49.
64
Olga (n10 above) 22.
65
“By accepting or rejecting a claim concluded in a formula the judge could make the praetor alter the
formula concerned and thus contribute to the development of private law.” Olga (n10 above) 57.
66
“…but by serving as advocates they hoped they would win support in the elections to the magistrature
or would enhance their reputation in some other way.” Olga (n10 above) 58.
advocates through their speeches and the judges through their verdicts made an
important contribution to the development of Roman law.”67

The jurists who had a special knowledge of Roman law contributed to development of
Roman legal science.68 They, “directly contributed to the development of the law in two
fields: giving opinions on the law (responsa) and the writing of legal works.”69 Jurists
had a respondere role that is giving opinions on a legal problem and, “by giving
responsa and engaging in several other practices the jurists helped to develop private
law; they also began to record the responsa they had given in writing, arrange them in a
certain order and publish them.”70

The curule aediles also emerged during the Republic with a role of supervising the
market. They had the right to issue edictas on the law of sale and, “by issuing edicts on
the law of sale the aediles contributed considerably to the development of Roman
private law.”71

It was during this period when the power of the senate was increased leading to some
developments in the law. Before 339 BC, the decision made by the assembly on
matters of law was not valid until approved by the senate. A law which was passed in
339 BC, the lex Publilia Philonis changed this old position and provided that the
proposed laws were supposed to be ratified by the senate before going before the
assembly.72 Another law was also passed, lex Maenia also, “stipulated that proposals
regarding the election of magistrates also had to receive the prior agreement of the
senate.”73 These developments saw the senate wielding exclusive powers over
legislation to be passed. Senators were now chosen by the two censors from amongst
those who would have previously served as magistrates following a law passed in 312
BC, the lex Ovinia.74 This law came after the leges Liciniae Sextiae of 367 BC which put

67
Olga (n10 above) 59.
68
R. A. Baumann Lawyers in Roman Republican Politics. A Study of Roman Jurists in their Political
Setting (1983) 316.
69
Spiller (n30 above) 14.
70
Olga (n10 above) 49.
71
Olga (n10 above) 42.
72
Olga (n10 above) 39.
73
Olga (n10 above) 39.
74
Olga (n10 above) 38.
an end to the conflicts between the Patricians and Plebeians enabling members from
the Plebeian families to serve as magistrates. The increased power of the senate did
not apply to plebscites being laws coming from the assembly of the Plebeians75, the
concilium plebis. More laws began to flow from the senate towards the end of the
Republic as it is said that, “in the first century BC,…it sometimes happened that a
proposed law which had been approved by the senate was no longer put to the
assembly but came into force immediately. The senators could pass senatorial decrees
which by the late Republic, were regarded as a source of law, just as the leges and
plebscites.76 This shows that the rate at which laws were now being made had relatively
increased due to the increase in senatorial power hence development of law.

4. The Principate.

The Principate period came after the Republican era. Several political changes were
noted with probably the most important one the introduction of emperors. These political
changes became the major driver of the changes in the legal field.

The period became known as the Golden Age of Roman law.77 Roman law was now at
a developed stage thus, “nowadays the law of this period is normally referred to as
classical law.” (Emphasis is mine). Pure Roman law was still applicable during this era.
It was not until the end of the Republic when Roman citizenship was extended over the
whole of Italy.78 This means that Roman law was also now applied in Italy. The position
was changed, “…when Roman citizenship had been granted via the constitutio
Antoniniana to all free inhabitants of the empire at the beginning of the third century, all
these people could now participate in Roman law.”79 This does not mean that local laws
were not in force80 most probably because of the personality principle which was being
observed. Roman law thus became applied together with other laws applicable in
conquered territories.

4.1 Development of the law.

75
Olga (n10 above) 39.
76
Olga (n10 above) 50.
77
Olga (n10 above) 127.
78
A.N. Sherwin-White The Roman Citizenship (1973) 221 ff, 2nd ed.
79
Olga (n10 above) 126.
80
Olga (n10 above) 126.
“The beginning of the principate was marked by sweeping changes in the law”81 The
population had increased and it reached its maximum point during the Principate.82 The
empire now covered also large parts of central and Western Europe.83 This population
growth saw several developments in the law. A remarkable development was the
extension of Roman citizenship to all the free inhabitants within the empire such that
they could also participate in Roman law. Local laws however retained their force of law
with a result of the fusion of Roman law with local laws hence development.84

During this period, “real power was now in the hands of the emperor.”85 Accordingly,
supervision of legislation was transferred from the senate to the emperor.86
Development was however, gradual in the early years of this era since the emperor by
virtue of his imperial powers could influence the content of the laws which were still
being made by the comitia and senate during the first years of the Principate.87 However,
“in the long run the emperors themselves began enacting laws”88 for instance through
passing decrees (decreta)89 and thus, “ultimately, the republican methods of legislation
fell into disuse.”90 It was now emperors who were vested with legislative powers91 with
the example of Emperor Claudius who passed the lex Claudia.92 This shows that
emperors were no longer indirectly influencing law-making since, “…they themselves
also created new law.”93 This was development in the sense that magisterial edicts of
the Republican era were only binding whilst the magistrate concerned was still in office,

81
Olga (n10 above) 83.
82
“The Roman empire attained its maximum size in the Principate…” Olga (n10 above) 66.
83
Cary and Scullard (n50 above) 331ff.
84
“As a result Roman law began to influence local laws and in the long run local laws also influenced
Roman law” Olga (n10 above) 126.
85
Olga (n10 above) 73.
86
“Whereas under the republic the senate basically had been responsible for lawmaking, power now
shifted to the emperor and law too came into his sphere of influence.” Olga (n10 above) 83.
87
Jolowicz and Nicholas (n10 above) 353-420.
88
Olga (n10 above) 83.
89
Spiller (n30 above) 19, “the judicial decisions which he pronounced after the court hearing were known
as decreta. These decreta were regarded as binding statements of law for all future cases.”
90
“…the leges-plebiscites by the end of the first century and the senatorial decrees by the beginning of
the third century.” Spiller (n30 above) 19.
91
Spiller (n30 above) 18, “Besides indirectly controlling legislation, the emperor directly created new legal
rules in a number of ways.”
92
J. F. Gardner Women in Roman Law and Society (1986) 14.
93
“In the third century emperors no longer submitted their proposals for approval by the senate and in this
way the senatorial decrees disappeared formally as a source of law.” Olga (n2 above) 86.
imperial edicts had an unlimited validity94 that is they were binding even after when the
emperor concerned had left office. Moreover, emperors could issue binding edicts in
any field95 yet, magistrates were only allowed to issue edicts on issues falling within his
field96, for instance, aediles could issue edicts concerning the market. The emperors
also created new law through giving advices on legal problems concerning the law. His
advices were written, the rescripta97 and were binding98 and in the Principate, the
rescripts were important for the development of the law.99 The emperor was also
responsible for the development of the law because it was during this era when the
emperor issued mandates to his officials and, “because mandates could be relied upon
by other citizens as well, they began to be regarded as a form of legislation”100 and
these instructions or mandates became, “important in developing certain branches of
law.”101

The work of classical jurists also led to legal developments during this era for it is said
that, “the jurists of the principate did much to develop and elaborate Roman law.”102 Law
schools were established in the first century103 and it was the jurists who were leaders of
the schools for they had exceptionally good knowledge of the law.104 The jurists did not
cease giving responsa during the Principate.105 This time, since the opinions had an

94
Olga (n10 above) 87.
95
Spiller (n30 above) 19, “the emperor was a magistrate and so he had the right to issue edicts…the
edicta dealt with such divergent issues as private law, criminal law, the constitution of the courts and the
bestowal of citizenship.”
96
“…the magistrates could only issue edicts within their own sphere of power; the imperial edicts referred
to everything that had to do with the state.” Spiller (n30 above) 19.
97
Spiller (n30 above) 19, “Rescripta became particularly important in the development of the law in the
second century…”
98
Olga (n10 above) 86.
99
“In the principate the rescripts important for the development of law had been published because the
jurists mentioned them in their collections of responsa.” Olga (n10 above) 136. The mere fact that they
were mentioned by jurists when they gave advices on the law shows that the law was developing.
100
Olga (n10 above) 87. Mandates were instructions issued by the emperor to his officials.
101
Spiller (n30 above) 19.
102
Olga (n10 above) 84.
103
Olga (n10 above) 98.
104
“…because he had an exceptionally good knowledge of the law he was the leader of the earlier school
of Capito.” Olga (n10 above) 102.
105
“Legal science was still in the hands of the jurists. Their activities now concentrated on the giving of
opinions.” Olga (n10 above) 83.
imperial backup, they became binding even on judges.106 It appears that the powers of
classical jurists were increased during this time by virtue of the privilege granted by the
emperors to issue binding responses. Their responses were collected and the also
started publishing introductory textbooks.107

Several improvements were also noted in both criminal and private law during this era
due to political changes and changes in the administration of justice. Though the
formulary procedure (in private law) and quaestiones (for criminal offences) were still
used in early Principate,108 a new form of procedure was formulated called cognitio
extraordinaria which, “was used by or on behalf of the emperor in connection with both
types of case.”109 Administration of justice was now in the hands of provincial governors
and officials applied the newly formed procedure in both private and criminal
offences.110 In criminal law, the old position that had a great probability of complaints
being lodged by people without a peculiar interest in the matter as any citizen was
allowed to bring a complain became obsolete since, “by the end of the principate all that
was left was a sort of complaint which could be put forward by the injured party.”111 City
prefects and governors were given criminal jurisdiction, this led to development in
criminal law as jurists who had a specialized knowledge of the law could also serve as
prefects.112

5. The Dominate era.

Roman law became fully developed during this era. It became the last phase in the
political history of Rome. The legal developments culminated with the Justinian law
which came during this period.

5.1 The legal developments during the Dominate.

106
Not all jurists had ius respondendi, the right was now sanctioned by a privilege granted by the emperor.
Olga (n10 above) 96.
107
Olga (n10 above) 84.
108
“In the principate justice continued to be administered via the formula procedure in the case of
disputes coming under private law (and in certain cases by means of legis actiones) and by means of the
quaestiones in the case of criminal offences.” Olga (n10 above) 83.
110
Olga (n10 above) 91.
111
Olga (n10 above) 93.
112
Olga (n10 above) 94.
Roman law continued to be applied however, “legislation in the dominate shows the
intrusion of non-Roman elements and of vulgar law into official Roman law.” This
caused uncertainty concerning the content of the law leading to Justinian codification.113
After the codification, the law which became applicable was the code, Corpus Iuris
Civilis.

A major development which took place during the Dominate was codification of the law.
In the political setup, the emperor now exercised exclusive legislative powers unlike the
Principate era.114 This is a probable reason which led to the major development
(codification) during this era. Another reason is of a social nature. During this era, the
empire had grown so big to such that every free inhabitant was allowed to participate in
Roman law leading to intrusion into the official Roman law by non-Roman elements. To
put an end to such a setting, there was need for a uniformly observed law hence
codification. It is true that before then, no law was codified. Given such a population
growth and scattered pieces of legislation, it became inevitable to encounter difficulties.

The establishment of more law-schools had an impact on the development of the law.
This is so for, “it was also at these schools that the foundation was laid for Justinian’s
codification of the law.”115 The main purpose for these schools was for training of people
to work in civil service.116 The schools also produced qualified advocates which in turn
led to the development of the law through speeches now of professional advocates.

Before the major development which occurred during the Republic, there were also
other important developments which had occurred. In the criminal side, “the range of
offences for which prosecution could be instituted was widened considerably.”117 Since
legislative powers were now exclusively in the hands of the emperor, both the old and

113
Olga (n10 above) 140.
114
“Legislation, which in the principate had been characterized by pluriformity, now stemmed exclusively
from the emperor.” Olga (n10 above) 124.
115
Olga (n10 above) 134.
116
“The purpose of these schools was to train people for functions in the civil service.” Olga (n10 above)
133.
117
Olga (n10 above) 130.
new offences were now based exclusively on imperial constitutions (leges
generates).”118

The rise of Christianity also led to development of the Roman law. Special procedure for
Christians became available119 whilst bishops assumed judicial powers.120 The most
probable reason for the latter position is that, Christianity as it was a state religion, it
dominated over the empire such that bishops became important. There was also a
legislative need to govern the state-church relations. More special courts were also
established for specific matters and persons.121

During this era, there were changes in the administration of justice.122 The cognitio
procedure was still observed and minor changes were note. It became common during
this period that parties were represented by professional advocates from the law
schools.123 The consilium which had been responsible advising the emperor during the
Principate was now outmoded by the consistorium, which, “functioned as a kind of
council of state and supreme court.”124

118
Olga (n10 above) 130.
119
Olga (n10 above) 129.
120
“…bishops were granted judicial powers.” Olga (n10 above) 124.
121
Olga (n10 above) 124.
122
“Under the dominate the normal administration of justice was largely in the hands of the imperial
officials.” Olga (n10 above) 128.
123
Olga (n10 above) 132.
124
Olga (n10 above) 119.
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