History of Roman Law

Introduction to Historical Foundations of South African Law - Lesson 4: History of Roman Law

Learning Outcomes

  • Understand the periods of the Principate and the Dominate.
  • Material: Historical Foundation of South African Private law, Chapter 2

Principate (27 BC - 284 AD)

  • The Failure of the Republican Constitutional Structures
    • The constitutional structure failed as Rome became the world’s first superpower in history.
    • The last century of the Republic was characterized by civil wars and the emergence of dictatorship.
    • There was the emergence of the first Roman emperor, Augustus.
  • Characteristics of the Principate
    • The Principate was not much different from the Republic.
    • The emperor pretended to have saved the Republic but actually concentrated powers in himself and claimed to be a mere leader of the senate.
    • The first two centuries of the Principate were characterized by peace, prosperity, and stability.
    • Commerce, trade, industry, agriculture, and art prospered during this period.
  • Constitutional Structures of the Principate
    • Executive Branch
      • Power was eventually transferred into the hands of the emperor.
      • His system of government eventually replaced the Republican magistrates.
      • Popular elections were abolished.
      • The voting of the magistrates was done in the senate.
    • Legislature
      • The senate replaced the popular assembly as the legislature.
      • The senate was used as a tool by the emperor, and he eventually bypassed the senate and legislated directly.

Dominate (284 AD)

*Constitutional weakness of the principate: one of the weaknesses of the constitutional model of the principate was the absence of proper regulation of the succession of the emperor.

  • The empire was divided into the Western Empire with Rome as its capital and the Eastern Empire with Constantinople as the capital.
  • Disintegration of the West: the fall of the Western Empire.
  • The reign of Justinian from 527-565 AD was the most important period in the history of the Eastern Empire.
  • Relevance of Constitutional Model
    • The mode of governance had a direct influence on the formal sources of law.
    • In the monarchy, the king was the main source of law, and in the empire, the emperor was the principal formal source of law.
    • In the republic, the primary source of law in theory was the people, which, as a result of class struggle and other peculiarities, resulted in three competing legislatures:
      • Popular assembly
      • Plebeian assembly
      • The senate

Socio-Economic Development

  • Law is determined by social and economic considerations, and hence it is important for us to discuss the relevance of this with regards to the history of Roman law.
  • Rome was a financial and commercial center of the world.
  • Rome had one million inhabitants during the Principate.
  • The economy of the main territory of the empire was characterized by the short-distance exchange of staples and manufactured goods.
  • The majority of Roman citizens were poor and lived at a subsistence level.
  • People in the ancient world were not mobile and remained in the same community as their forefathers.

Social Structure

  • The patricians were to serve as priests and magistrates, lawyers, and judges.
  • The plebeians were to till the land, herd livestock, and work for wages as craftsmen, tradesmen, and laborers.
  • During the period of the monarchy, the heads of the wealthy families served as the king’s advisors and were considered the ‘fathers’ of the state or patricians.
  • The other families were called plebeians.
  • The patrician families formed Rome’s aristocracy, and after the expulsion of the monarchy, the patricians controlled the state and legislation limited the social and political ambitions of the plebs.
  • The main source of wealth for the aristocrats was land ownership and the sale of agricultural products.
  • The aristocratic families seldom worked the land themselves but left the farming to slaves, hired free men, or sharecroppers.
  • The men of these wealthy families busied themselves with unpaid public office.
  • They served as magistrates, military officers, priests, senators, diplomats, judges, and jurists.
  • In the later republic, another social group emerged, being equestrians, who were wealthy men involved in the world of business and commerce.
  • In the early third century AD, Roman citizenship was extended to all free inhabitants of the empire.