PRINCIPLES OF ROMAN LAW 30-09-2021
Roman law can be considered as a foundation of civil law and in general of every law system.
The first relevant aspect of roman history is the periodization of roman history, which is also applied to the
history of roman law, from the foundation of Rome (8th century BC) to what we call the end of roman law
which is the Justinian code (6th century AD).
- Archaic period = from the foundation of Rome to the end of the monarchy (500 bc) and the
first years of the republic;
- Republican period = covers the middle – late republic from the 5th century BC to the 2nd
century BC;
- Classical age = ends more or less in the 2nd century AD;
- Late antiquity = till Justinian;
- Justinian age = end Ius quiritium
Types of law:
- ius civile: is the law of civitas of Rome, and it was available to roman citizens only
- ius gentium: used to define the ius used by all people (both roman citizens and
- foreigners)
- ius praetorium: the expression used to define the ius produced by the magistrates
What was the source of law? It changed in time, but there was a preservation of little tradition, because it
was considered a value to be promoted. The rules that they created were always part of roman law, in fact
it considered the abrogation of rules as something to be considered always in negative perspective. In
fact, it was a system that worked on the stratification of laws.
The first source of law was custom, the “mos”: rules became part of what was considered rules in a
customary application and the mos was untouchable (this was from the archaic age).
In the archaic age we have sources not directly directed by this age but from afterwards that tell us what
happened in the archaic age in some aspect.
Even if the main source in archaic age was mos, there was also the “fas” which defines the religious norms.
According to literary sources, there were laws enforced by the king (leges regie) because he was an
absolute ruler, but this was something exceptional because the characteristic of roman monarchy wouldn’t
allow that.
Things on the republic are changed: the sign of the passage to the enforcement of the 12 tables is
considered a sort of foundation of the constitution and it can be considered a victory for the plebes, law
became public. Law was something managed only from priest because there was a sort of sacrality of ius in
the roman world and it was considered something secret. Pontiff were considered the answers to all the
questions (for ex: how to manage our legal system). Ius was preserved by the pontifex and only patricians
could become pontifex. They had no duty to let the ius known to the other romans; the ius was totally
managed by one only class, and the other classes had no notion of ius. After the expulsion of the kings and
after a very delicate period, where the struggle between the two classes was very hard, it was
decided to nominate ten people, called the decemviri; they were given the task to right down and
enforce the content of the Twelve Tables.
The twelve tables were lex data (so a law given from an higher authority, like in an oligarchy), and they
didn’t include new rules.
,AFTER the life of republic was more established than from the beginning, so the main sources became the
law voted by the people, republic of Rome had many public assemblies and some of them included only
plebeians which decisions were considered valid for the plebeians only and the rules concerning them. In
any case while the laws given by an authority was considered a lex data, laws that were voted by public
assemblies were considered lex erogata. Only few liges erogate regarded private law. A more relevant
under a merely quantitative bounds were the edicts.
The roman magistrate is somebody holding his office because he was elected by a public assembly who
can hold office just for a little period (a year) and each different magistrates had different powers. The
praetor was iurisdictio, that was the power to pronounce the law between roman citizens After that, the
plebeians won a very important battle and obtained that they could access the consulate. The two main
magistrates who ruled Rome were called consuls. As the plebeians won this battle, the rule that they
obtained was that one consul would have always been a plebeian and the other one a patrician. The idea
was that with such division a third magistrate was needed to administrate justice and that was the praetor.
The praetor was given the iurisdictio and the ius edicendi, which is the right to enforce edits. Edicts were,
at the beginning, conceived exclusively as a sort of way to give administrative information about the
procedure and not as a modality of enforcing legislation. The praetor only published the list of the actions
that were recognized by the ius. After a while, the situation changed and in the last period of the republic
the praetor started thinking that creating new formulas for new cases could be something interesting if this
could be a way to protect citizens, creating “Equitas”, which implied a standard of proportional equality for
all people.
After the pretor left his office the edicts had no value anymore, it could have been possible that the new
pretor came and decided to give again the privileges created on the edicts from the old pretor (transferred
edicts/ edicto tralaticium).
In Imperial age things change. All magistrates were deprived from their power and in 2 nd century a.C.
(under Hadrian) a jurist called Julian codified the edicts which implied that the edict could not be modified
anymore, so it became an unchangeable source of law. Here senatus consulta started to consider private
law a relevant field.
In the imperial age (under Domitian) senatus consulta started to have a role and a source of law. The
emperor found out that it was better to go on senatus and discuss problems with them. But the emperor
didn’t want to give them too much power, he was an absolute: the senate was nominated by the emperor
himself, so they only had to approve and enforce his decisions. One specific characteristic didn’t change
during the imperial age: the senatus consultus was elaborated in very general terms, so it didn’t give any
specific solutions especially for private law.
Senatus consulta so was the easiest way to enforce a rule, but they were not the only one: the figure of the
emperor was historically a stratification of many powers originally belonging to magistrates, so the
emperor was born as a somma of power. The rules enforced by him could be defined as being included in:
- Decreta: juridical decisions of the emperor without asking to anyone on a single case (at the
beginning it wasn’t a general law, then it became it)
- Rescripta: they were as decretal but given by the emperor under request, request that was includd
on a petition that people could do, in the back of that petition the solution were given by the
people themselves. (It could be applied on every similar case)
- Mandata: administrative orders that were given by the civil servant or the officials of the emperor
that were valid for him and all the people under him
- Edicta: while the praetor simply published, the emperor used this to published laws which were
generally irrelevant and became general valued. they had a general content, and they were
enforced because the ius edicendi was recognized to the emperor
,The emperor started to acquire a judicial power, in roman law magistrates and judges are two different
roles and can’t never coexist in the same person during the republic and the empire for a long period till
the last kind of procedure I roman law, called cognition extraordine. The emperor sort of occupied an
empty field and became a sort of last possibility, last judge to which you could ask solutions for your case.
All these imperial rules didn’t disappear, they simply melt into one single kind of rule when it was
considered not relevant whether the rule was enforced as an edict or mandatum.
IMPERIAL CONSTITUTION
The word constitutions appear at the end of 1 st century a.C. and it normally applied in fourth century a.C.
(with Constantine).
EFFICACY OF THE ROMAN JURIST’S OPINIONS
The first interpreters of roman law were the pontiffs. Now the law was interpreted in a general way by
anyone, this led to the emancipatio that was an institution created after the publication of 12 tables. Now
not religious interpreter of law started to appear (the laic jurisprudence), they developed a new technique
of interpretation for law that consist in three different activities:
- Respondere: to give advice
- Agere: it was connected to litigation, and it consisted in letting people know which kind of
procedure they had use
- Cavere: to inform people about precautions and technique that they would use in contracts
In the middle republic it was described a very important roman patrician that decided to public the judicial
calendar in which not all days could be use to accessing law and to ask question to the preator; that was a
second turning point in roman law history.
To all this activity they had legislative efficacy. In republic no, but just not in a formal point of view.
There was only a class of people who knows law, the higher one, the wealthy ones or the noble ones. This
latent oligarchy pervades all over the roman law, so this became a political career, or they knew intimately
important people like pretor.
The emperor chooses some jurists to give legal advice because of a formal imperial appointment (ius
respondendi ac autoritate principi). The opinions of the jurists were considered as law and could be
exposed during trials by the parties as relevant. This jurist published many works and created many words
in law.
- Insititutiones: textbooks, they usually deals with fundamental of law
- Responsa and questione: answers to usually on specific topic and specific questions
They used to edit and make comments on works of other jurists. Some became this important that a
specific genre derived from that: comments on (for example) sabinus.
Digesta: three trieaties on the whole law, a sort of more or less rational illustration of the law in many
other aspects.
Under Augustus this appointment was already created but it wasn’t a strict one, he simply gave a kind of
imperial imprinting, but it did not imply that the opinion of jurist were vehicolize by the emperor.
THE CODE OF THEODOSIUS II 7-10-2021
Before Justinian the idea of making a collection of imperial constitution was already fashionable, as far as
wee know all process started with some private law collections, as they were the basis of all process for the
, imperial constitution. Theodosian II decided to, during the 4 th century a.C., do as a project to do what
Justinian did before him, so do a collection of leges and of iura (iura= the name given to the fragments of
the old jurists). The jurist on which he could count on were not so qualified, in late antiquity there was a
sort of decadence in law studies. So, he sort of rethought about the project and decided to do a more
limited version of it, with a collection of only leges of Constantine, and such constitution referred only to
public law.
LAW OF ACTIONS
The whole topic of the procedural law concerns the concept of actio (according to what the jurist CELSUS,
referring to obligations, the actio can be defined as the right to claim in a trial something that is due) Celsus
decided to define the action as a ius, so as a right. Usually consider that the law should be talked about
from a substantive point of view as a system of subjective right. The idea of the romans was completely
opposite to that, they talked about roman law in procedural law, they did say that they have an action, not
a right. So, the perspective in roman law is inverted respect of in modern law. Procedure in roman law
shows the relevance of such inversion also in the fact that action was typical, so one action at the beginning
the connection was really a very strict one, so one action for one right and after we have a system were
actiones are typical so in a limited number and what action is admitted in roman law system, there’s no
such thing as a general action. Roman aw had 3 different procedures which were admitted in roman law
system in different periods of time:
1) The procedure per legis actiones (the original one) from the 12 tables to the preclassical age and it
disappeared
2) The procedure per formulas: created in 3rd century b.C. but it became official in the preclassical
period.
3) In the 1st century a.C. under Augustus we have the cognition extra ordinem, so beyond the system
of a formulary action was a creation of the emperors mainly and it regards the imperial age and
gradually re0lacced the formulary system first in the provinces and then in Italy
In the roman law system till the cognitio extra ordinem the role of the magistrates and of the judge were
different and they could not coexist in the same person. So, magistrates, are elected by the public
assemblies while judges are private citizens.
EXECUTIVE PROCEDURE
In the legis action implies that there is a priori judgement in a litigation which had an assortation of a legal
situation. The main legis action are:
- per malus inetiones: the main case was where there was the prior judgement with malus iudicatus
(riascolta secondo audio) …. If he did not pay, he could be objecting the malus inectio, there was
also another kind of person which was condemned, the on who simply confessed that he was guilty
(confessus in iure). There was other two cases of malus inectio: in the first case we know that we
can talk about
- per malus iudicato so it was applied as there was a prior judgement, which there was not, and it
was applied in very specific cases, in other cases it was considered pure: the background idea was
that the malus was given even if there was not kind of prior judgement at all. So, in the first one the
situation was as there was prior judgement so there was a sort of similarities between the pro
iudicato and prior iudicato, in the second the situation was considered as no prior judgement. So it
might be that the choice of considering the two cases in two labour was more of a political choice
than dye to objective legal reasons.
For instance (ascolta audio).
Roman law can be considered as a foundation of civil law and in general of every law system.
The first relevant aspect of roman history is the periodization of roman history, which is also applied to the
history of roman law, from the foundation of Rome (8th century BC) to what we call the end of roman law
which is the Justinian code (6th century AD).
- Archaic period = from the foundation of Rome to the end of the monarchy (500 bc) and the
first years of the republic;
- Republican period = covers the middle – late republic from the 5th century BC to the 2nd
century BC;
- Classical age = ends more or less in the 2nd century AD;
- Late antiquity = till Justinian;
- Justinian age = end Ius quiritium
Types of law:
- ius civile: is the law of civitas of Rome, and it was available to roman citizens only
- ius gentium: used to define the ius used by all people (both roman citizens and
- foreigners)
- ius praetorium: the expression used to define the ius produced by the magistrates
What was the source of law? It changed in time, but there was a preservation of little tradition, because it
was considered a value to be promoted. The rules that they created were always part of roman law, in fact
it considered the abrogation of rules as something to be considered always in negative perspective. In
fact, it was a system that worked on the stratification of laws.
The first source of law was custom, the “mos”: rules became part of what was considered rules in a
customary application and the mos was untouchable (this was from the archaic age).
In the archaic age we have sources not directly directed by this age but from afterwards that tell us what
happened in the archaic age in some aspect.
Even if the main source in archaic age was mos, there was also the “fas” which defines the religious norms.
According to literary sources, there were laws enforced by the king (leges regie) because he was an
absolute ruler, but this was something exceptional because the characteristic of roman monarchy wouldn’t
allow that.
Things on the republic are changed: the sign of the passage to the enforcement of the 12 tables is
considered a sort of foundation of the constitution and it can be considered a victory for the plebes, law
became public. Law was something managed only from priest because there was a sort of sacrality of ius in
the roman world and it was considered something secret. Pontiff were considered the answers to all the
questions (for ex: how to manage our legal system). Ius was preserved by the pontifex and only patricians
could become pontifex. They had no duty to let the ius known to the other romans; the ius was totally
managed by one only class, and the other classes had no notion of ius. After the expulsion of the kings and
after a very delicate period, where the struggle between the two classes was very hard, it was
decided to nominate ten people, called the decemviri; they were given the task to right down and
enforce the content of the Twelve Tables.
The twelve tables were lex data (so a law given from an higher authority, like in an oligarchy), and they
didn’t include new rules.
,AFTER the life of republic was more established than from the beginning, so the main sources became the
law voted by the people, republic of Rome had many public assemblies and some of them included only
plebeians which decisions were considered valid for the plebeians only and the rules concerning them. In
any case while the laws given by an authority was considered a lex data, laws that were voted by public
assemblies were considered lex erogata. Only few liges erogate regarded private law. A more relevant
under a merely quantitative bounds were the edicts.
The roman magistrate is somebody holding his office because he was elected by a public assembly who
can hold office just for a little period (a year) and each different magistrates had different powers. The
praetor was iurisdictio, that was the power to pronounce the law between roman citizens After that, the
plebeians won a very important battle and obtained that they could access the consulate. The two main
magistrates who ruled Rome were called consuls. As the plebeians won this battle, the rule that they
obtained was that one consul would have always been a plebeian and the other one a patrician. The idea
was that with such division a third magistrate was needed to administrate justice and that was the praetor.
The praetor was given the iurisdictio and the ius edicendi, which is the right to enforce edits. Edicts were,
at the beginning, conceived exclusively as a sort of way to give administrative information about the
procedure and not as a modality of enforcing legislation. The praetor only published the list of the actions
that were recognized by the ius. After a while, the situation changed and in the last period of the republic
the praetor started thinking that creating new formulas for new cases could be something interesting if this
could be a way to protect citizens, creating “Equitas”, which implied a standard of proportional equality for
all people.
After the pretor left his office the edicts had no value anymore, it could have been possible that the new
pretor came and decided to give again the privileges created on the edicts from the old pretor (transferred
edicts/ edicto tralaticium).
In Imperial age things change. All magistrates were deprived from their power and in 2 nd century a.C.
(under Hadrian) a jurist called Julian codified the edicts which implied that the edict could not be modified
anymore, so it became an unchangeable source of law. Here senatus consulta started to consider private
law a relevant field.
In the imperial age (under Domitian) senatus consulta started to have a role and a source of law. The
emperor found out that it was better to go on senatus and discuss problems with them. But the emperor
didn’t want to give them too much power, he was an absolute: the senate was nominated by the emperor
himself, so they only had to approve and enforce his decisions. One specific characteristic didn’t change
during the imperial age: the senatus consultus was elaborated in very general terms, so it didn’t give any
specific solutions especially for private law.
Senatus consulta so was the easiest way to enforce a rule, but they were not the only one: the figure of the
emperor was historically a stratification of many powers originally belonging to magistrates, so the
emperor was born as a somma of power. The rules enforced by him could be defined as being included in:
- Decreta: juridical decisions of the emperor without asking to anyone on a single case (at the
beginning it wasn’t a general law, then it became it)
- Rescripta: they were as decretal but given by the emperor under request, request that was includd
on a petition that people could do, in the back of that petition the solution were given by the
people themselves. (It could be applied on every similar case)
- Mandata: administrative orders that were given by the civil servant or the officials of the emperor
that were valid for him and all the people under him
- Edicta: while the praetor simply published, the emperor used this to published laws which were
generally irrelevant and became general valued. they had a general content, and they were
enforced because the ius edicendi was recognized to the emperor
,The emperor started to acquire a judicial power, in roman law magistrates and judges are two different
roles and can’t never coexist in the same person during the republic and the empire for a long period till
the last kind of procedure I roman law, called cognition extraordine. The emperor sort of occupied an
empty field and became a sort of last possibility, last judge to which you could ask solutions for your case.
All these imperial rules didn’t disappear, they simply melt into one single kind of rule when it was
considered not relevant whether the rule was enforced as an edict or mandatum.
IMPERIAL CONSTITUTION
The word constitutions appear at the end of 1 st century a.C. and it normally applied in fourth century a.C.
(with Constantine).
EFFICACY OF THE ROMAN JURIST’S OPINIONS
The first interpreters of roman law were the pontiffs. Now the law was interpreted in a general way by
anyone, this led to the emancipatio that was an institution created after the publication of 12 tables. Now
not religious interpreter of law started to appear (the laic jurisprudence), they developed a new technique
of interpretation for law that consist in three different activities:
- Respondere: to give advice
- Agere: it was connected to litigation, and it consisted in letting people know which kind of
procedure they had use
- Cavere: to inform people about precautions and technique that they would use in contracts
In the middle republic it was described a very important roman patrician that decided to public the judicial
calendar in which not all days could be use to accessing law and to ask question to the preator; that was a
second turning point in roman law history.
To all this activity they had legislative efficacy. In republic no, but just not in a formal point of view.
There was only a class of people who knows law, the higher one, the wealthy ones or the noble ones. This
latent oligarchy pervades all over the roman law, so this became a political career, or they knew intimately
important people like pretor.
The emperor chooses some jurists to give legal advice because of a formal imperial appointment (ius
respondendi ac autoritate principi). The opinions of the jurists were considered as law and could be
exposed during trials by the parties as relevant. This jurist published many works and created many words
in law.
- Insititutiones: textbooks, they usually deals with fundamental of law
- Responsa and questione: answers to usually on specific topic and specific questions
They used to edit and make comments on works of other jurists. Some became this important that a
specific genre derived from that: comments on (for example) sabinus.
Digesta: three trieaties on the whole law, a sort of more or less rational illustration of the law in many
other aspects.
Under Augustus this appointment was already created but it wasn’t a strict one, he simply gave a kind of
imperial imprinting, but it did not imply that the opinion of jurist were vehicolize by the emperor.
THE CODE OF THEODOSIUS II 7-10-2021
Before Justinian the idea of making a collection of imperial constitution was already fashionable, as far as
wee know all process started with some private law collections, as they were the basis of all process for the
, imperial constitution. Theodosian II decided to, during the 4 th century a.C., do as a project to do what
Justinian did before him, so do a collection of leges and of iura (iura= the name given to the fragments of
the old jurists). The jurist on which he could count on were not so qualified, in late antiquity there was a
sort of decadence in law studies. So, he sort of rethought about the project and decided to do a more
limited version of it, with a collection of only leges of Constantine, and such constitution referred only to
public law.
LAW OF ACTIONS
The whole topic of the procedural law concerns the concept of actio (according to what the jurist CELSUS,
referring to obligations, the actio can be defined as the right to claim in a trial something that is due) Celsus
decided to define the action as a ius, so as a right. Usually consider that the law should be talked about
from a substantive point of view as a system of subjective right. The idea of the romans was completely
opposite to that, they talked about roman law in procedural law, they did say that they have an action, not
a right. So, the perspective in roman law is inverted respect of in modern law. Procedure in roman law
shows the relevance of such inversion also in the fact that action was typical, so one action at the beginning
the connection was really a very strict one, so one action for one right and after we have a system were
actiones are typical so in a limited number and what action is admitted in roman law system, there’s no
such thing as a general action. Roman aw had 3 different procedures which were admitted in roman law
system in different periods of time:
1) The procedure per legis actiones (the original one) from the 12 tables to the preclassical age and it
disappeared
2) The procedure per formulas: created in 3rd century b.C. but it became official in the preclassical
period.
3) In the 1st century a.C. under Augustus we have the cognition extra ordinem, so beyond the system
of a formulary action was a creation of the emperors mainly and it regards the imperial age and
gradually re0lacced the formulary system first in the provinces and then in Italy
In the roman law system till the cognitio extra ordinem the role of the magistrates and of the judge were
different and they could not coexist in the same person. So, magistrates, are elected by the public
assemblies while judges are private citizens.
EXECUTIVE PROCEDURE
In the legis action implies that there is a priori judgement in a litigation which had an assortation of a legal
situation. The main legis action are:
- per malus inetiones: the main case was where there was the prior judgement with malus iudicatus
(riascolta secondo audio) …. If he did not pay, he could be objecting the malus inectio, there was
also another kind of person which was condemned, the on who simply confessed that he was guilty
(confessus in iure). There was other two cases of malus inectio: in the first case we know that we
can talk about
- per malus iudicato so it was applied as there was a prior judgement, which there was not, and it
was applied in very specific cases, in other cases it was considered pure: the background idea was
that the malus was given even if there was not kind of prior judgement at all. So, in the first one the
situation was as there was prior judgement so there was a sort of similarities between the pro
iudicato and prior iudicato, in the second the situation was considered as no prior judgement. So it
might be that the choice of considering the two cases in two labour was more of a political choice
than dye to objective legal reasons.
For instance (ascolta audio).
