Roman Law Wk 2 LH

After the roman monarchy ended - how did the powers in the roman republic develop?

After the monarchy ended, the king’s imperium was transferred to two consuls

• Two consuls were elected each year

• Each consul held the full imperium (imperium remained one and indivisible)

• Either consul could block or undo the actions of the other (intercessio)

  • This acted as a check against abuse of power

  • Forced consuls to consult and agree on decisions

• Consuls served for one-year terms

• After leaving office, consuls could be put on trial for misconduct while in office

• The consulship was restricted to patricians (elite social class)

What is the “Imperium”

It is supreme power

- Religious power - Executive power (includes military) - Legal power (could enact edicts)

What were the early Rome sources of law?

#1: Edicts (ordinances / executive orders)

• Binding power ended when imperium ends or was adopted by next consul

• Details/Laws in Practice

#2: Statute (lex) Legislation

• decided by comitia (assembly of Roman citizens)

• Affected everyone

What was the conflict between the Patricians and the Plebians

• Patricians:

  • Rome’s ruling elite from ancient noble families

  • Led by the pater familias, who ruled the household

  • Controlled political offices and religious roles

• Plebeians:

  • The common people of Rome

  • From Latin plebs, meaning “the people”

  • Had little political power early on

• The Conflict:

  • Early Republic offices were only open to patricians

  • Patricians claimed only they knew religious rituals

  • They argued that plebeian leaders would anger the gods

  • This caused long-term struggle over political equality

Tribunis Plebis

Came after the first power struggle betwen Plebs and Patricians (where Plebians wanted to be able to be Consuls)

This tribune had no imperium - but did have a right of veto > This allowed them to prevent edicts and leges against the interest of plebs

What was the second main power issue between the interpretation of the law and plebians

Law was customary law, not written

This meant that Plebeians did not know the law

It could happen that in a case between a patrician and a plebeian the judge (who had to be a patrician) could just decide on behalf of the patrician - They did not need to give reasoning or explain the rules

The plebeians wanted a codification > Led to the 12 Tables

Explain the significance of the Law of the 12 Tables

This is the first codification of roman law - It began with about the rules on going to Court - Ultimately this did not help the plebeians have an understanding of the law

Due to INTERPRETATION Method not being known

Explain Gnaues Flavius

Gnaeus Flavius: Published INTERPRETATIO in 300 BC (revealed the secrets kept by the Patricians)

This is what made the rules for the interpretation of the 12 tables known to the Plebeians > End of priest influence in the application of Roman law > Roman law was secularized, separate from Roman religion > There could now be lawyers dedicated only to law

what was Praetura

Praetura = a political post and was assisted by legal experts (prev only Patricians but then allowed Plebians)

He was not to pass judgement himself as that was the job of the iudex privatus (private person), but no trial could take place without him

High magistrate for the administration of justice that had imperium and decided whether a case could be brought before a judge 

After the Roman Republic > How did the Law change (Source of law and Legis. Power)

Comitia (public assembly) fell into disuse as roman empire had grown too much
Through lex imperio → transfer sovereignty to the emperor (to propose legislation)

Emperor was responsible for applying imperial binding measures such as:

• Edicta: general legal norms

• Mandata: Instructions of administrative nature

• Decreta: decisions of administrative nature

Rescripta: written answers given by the emperor on request

+ Preator’s Edicts

What was the Praetor’s Edict (or Edictum Perpetuum):

a written compilation of praetors’ edicts and rested in force forever → only the emperor could change the texts

Written by Salvius Julianus (by the request of Hadrian, later emperor) 

Controlled the deeds of the praetor and they lost their legislative power through this Edict 

JURISTS became more important as they could now write interpretations of the praetorial edicts (which Rome would later acknowledge as a binding source of law)

How did Roman law became “constitutional” in the Empire

How it happened (briefly):

• Under the Republic, law came from assemblies, magistrates’ edicts, and the Senate.

• After the Republic collapsed, emperors kept these institutions in name, but took their powers.

• The emperor’s decisions—called imperial constitutions (constitutiones principis)—became law.

What counted as “constitutional” law:

• Edicts → general rules for the whole empire

• Rescripts → written answers to legal questions

• Decrees → court judgments by the emperor

• Mandates → instructions to officials

Why this felt like a constitution:

• All major law now flowed from one source

• The emperor combined legislative, executive, and judicial authority

• His will had the force of supreme law

What was the Ius Public Respondendi?

The right to publicly respond (RESPONSA) —> The closest thing to an official allowing of jurists to comment/give advise

Legal status based on the Emperor’s authority: the responsa were binding upon the judge

here were now 2 sources of law: emperor’s constitutions (leges, no longer refers to the laws from public assembly) and jurist’s writings (ius)

What is Lex Citandi (Law of Citations), 426 AD

An imperial law issued under Emperor Valentinian III that set rules for which jurists’ legal writings judges were allowed to rely on.

What it did:

• Gave binding authority to five classical jurists: Papinian, Ulpian, Paulus, Gaius, and Modestinus

• If these jurists disagreed, judges followed the majority view

• If tied, Papinian’s opinion prevailed

• If Papinian was silent, the judge could decide

Why it mattered:
It simplified and stabilized Roman law at a time of confusion by limiting authoritative legal sources, helping preserve classical legal thought and influencing later codifications, including Justinian’s Corpus Juris Civilis.

NOT CODIFIED as not issued by gov authority

What is the difference between The Codex Theodosianus, 438 AD and Lex citandi - Law of Citations, 426 AD

The Lex Citandi controlled who could be cited as legal authority, while the Codex Theodosianus collected what the law actually was.

Codex Theodosianus (438 AD)

• A systematic collection of imperial laws issued since Constantine (312 AD onward)

• Contained binding legislation, not scholarly opinions

• Regulated the content of law itself

What is the Structure of the Codex Justinianus?

Divided into 12 Books (because of the 12 Tables)
Constitutions within were arranged chronologically by dates, therefore lex posterior rule applied

Consisted of 4 parts:

• Digest: Juristic writings. → 533 AD → a constitution on its own 

• Institutes: Legal education material. (for law students but also as a form of legislation — became the basic structure of private law) → 533 AD 

• Codex: Statutes and imperial decrees.  → (534) AD→ exclusive to imperial walls (only those constitutions in this comp as authoritative)

• Novels: New laws issued after the Codex → 534

What was the End of Jurists law?

The Digest in the Codex Justinanus —> In the digest you can find the writings of all the jurists that the committee had selected and found — from that point on the only source of law you can use is the digest (for jurists law)

What do we learn from Montesquieu

The judge should only cite the law not interpret it

It had to do with the power that judges had had in France at the time - Montesquieu based his thinking a lot on other writings - Roman system -> particularly Polybios whose writing also influenced the Declaration

What do we learn from Polybios

Power in Rome was divided among three authorities

- Consuls -> highest power

- Senate -> rich families, they had the money so they had to approve of decisions

- Comitia -> assemblies of roman citizens, voted on laws

Polybios concluded that the secret of success of Rome (defeating Greece) was the system of checks and balances and that it was a very mixed system

What happens in the Marbury v Madison Case?

• Context: Jefferson’s administration refused to deliver judicial appointments made by Adams. Marbury petitioned the Supreme Court for a writ of mandamus. 

• Legal Issue: Whether a law granting the court power to issue the writ was valid under the Constitution.

• Outcome: The court established its authority to review and invalidate unconstitutional laws, reinforcing the Constitution’s supremacy. 

What happens in the Popov v. Hayashi (Baseball Ownership): 

• Facts: A valuable baseball landed in Popov’s glove but was lost in a crowd scuffle, after which Hayashi picked it up. 

• Outcome: The court applied the Roman concept of natural equity, ruling for joint ownership. The ball was auctioned, and profits were split