Rafał Wojciechowski
European Legal History
Most important slides
Egypt
Around 3100 BC the pharaoh Menes united Lower and Upper Egypt and began the process of constructing a unitary state.
The status of the Egyptian ruled evolved: the king was first regarded as a god, then the son of a god, and then as an intermediary between the gods and the people.
The monarch was a despot, holding legislative, executive, judicial and military authority all at once.
Submission to this authority was considered fulfilling the will of the gods, and rebellion was punished by the most severe temporal penalties as well as condemnation in the afterlife.
Egypt 2
The will of the ruler was carried out by state administration. It was headed by the Vizier, the pharaoh’s deputy.
The chancellor and chief treasurer were under his authority.
Local administration was based on a division into nomes, ruled by nomarchs. Their function was taken from local rules of previous times.
They concentrated administrative, judicial and fiscal authority, and oversaw local economic management.
Nomarchs oversaw lower-ranking bureaucrats, who primarily managed public works.
Public administration workers were paid in kind.
Mesopotamia
Kings ruled the states in the land between the rivers. In the third millenium BC they were generally considered incarnations of the main gods. In the second millenium they were only seen as the earthly representatives of the gods.
The kings were primarily aided by civil servants known as nubands, who were responsible for managing the royal court, day-to-day affairs of state and for exercising power over the military.
Mesopotamia 2
A centralized administration in Mesopotamia came about during the Babilon era of the 18th century BC.
Hammurabi divided the state into provinces with governors (issaku) at their head, then into districts with satraps (pahatu). The smallest unit was the commune, headed by the warden (rabianu).
Local civil servants joined administrative, police and judicial functions.
The king directly appointed civil servants on all levels.
The Jewish state
In the Jewish state the king was never regarded as a godly being, but rather only as anointed.
The king oversaw the executive power. Lawmaking power belonged to the assembly, which limited the monarch’s despotism.
Central administration rested in the hands of clan leaders.
The Jewish state 2
The Jewish state was divided into 12 districts, a reference to the tradition of the 12 Israeli tribes.
The head of a district was known as the judge.
Every district was required one month out of the year to deliver supplies to the palace needed for maintaining the royal court.
After the death of Salomon, around 930 BC the Jewish state disintegrated into the Kingdom of Judah (two tribes in Jerusalem) and the Kingdom fo Israel (10 tribes occupying Samaria).
Greece
Around 1200 BC, Greece was occupied by the Dorians.
They led to the fall of the Mycenaean culture.
This new situation did not lead to a unified Greek stat.
However, small state-like bodies developed called poleis (Latin singular polis).
Polis consisted of both a city and its surrounding area.
Usually the territory of a polis amounted to several hundred km2 and anywhere from a few thousand to tens of thousands of residents.
Athens (2,500 km2) and Sparta (8,400 km2) were exceptions.
Athens
At the beginning a king was the head of the state. His power was quickly restricted. As early as archaic times the kings were elected, first for 10 years, then for only one year.
Royalty in its early form disappeared from Athens in the mid-7th century BC.
One of the archons then received the title of king (archont basileus) in order to carry out religious functions.
Only aristocrats were eligible to assume this prestigious function.
Athens 2
The most important civil servants in Athens were archons.
They were instituted in order to limit the power of the king.
The first one appinted was the archon polemarch to lead the army, then the archon eponymous responsible for internal state affairs. They were initially appointed for life, then for a period of 10 years, and from 683 BC for one year.
Around the mid-7th century, six new civil servants were appointed, the thesmothete. They were considered archons.
There were a total of 9 archons, and their leader was the archon eponymous.
Athens 3
The Areopagus was the Athenian council of elders. Tit was composed of previous archons who had compelted their year of service.
The Areopagus was led by the archon basileus.
The Areopagus’s powers included adjudicating the most serious crimes, oversight of administration and the appointment of new archons.
The development of Athenian democracy in the mid-5th century BC led to the Areopagus losing most of its administrative powers.
Athens 4
During the oligarchic governments in Athens, some administrative advisory powers exercised by the Areopagus were taken over by the Council (boule), composed of around 400 members selected by territorial units.
During the Athenian democracy, the primary administrative authority was the Council of 500.
Every full citizen 30 years of older could become a member. The Council’s term of office lasted for one year and it was possible to be selected for membership a maximum of two times.
Athens 5
The Council of 500 met every day except for holidays and during ill-omen days. It was divided into 10 tribes with 50 members each.
An Athenian year consisted of 10 months, so every division had to perform its function for one month.
The months were selected randomly.
Members of the the Council were referred to as prytans, and their term of office was called a prytanie. A president was selected at random every day, who was in office for the entire with a portion of the prytanies.
He was entrusted with keys to the treasury and the archive.
Athens 5
Many other civil servants were appointed, generally by random selection. It is estimated that in democratic Athens the number of state offices was around 800. Officeholders were entitiled to a salary and many privileges. They wore a wreath of myrtle when performing their office.
In the 5th century BC, the old archons were replaced in offices by strategists. There were 10 strategists.
They were selected by a vote during a general assembly. They led the army, which was why they were neither appointed by drawing lots nor limited to a term of office. Pericles held this office in the years 443-429 BC.
Sparta
The Spartan state was ruled by two kings. Initially elected, over time they became hereditary. Their power was progressively limited.
The most important civil servants were ephors. Beginning in the 5th century BC, rulers had to swear an oath by which they obliged themselves to respect the law.
There were five ephors, and they most likely represented the five settlements that made up Sparta. From the 6th century BC they were elected by citizens for a one-year term.
They were entrusted with administration, foreign policy and judicial authority.
They had the right to convene the assembly (apella).
Sparta 2
Two ephors accompanied a king during military campaigns and observed his behaviour, but they did not have the right to issue orders.
After returning, they filed a report in which they could bring charges against the king.
The court was composed of the second king, the ephors and members of the council of elders. Punishment consisted of death, banishment, dethroning or a fine.
Sparta 3
The council of elders in Sparta was called the Gerousia.
According to tradition, it was first convened in the 8th century BC by the king Lycurgus, the legendary lawgiver of Sparta.
It was composed of 2 kings and 28 gerons who were appointed for life by the assembly (apella).
The Gerousia’s powers included ruling on the most important matters of state, judicial powers in the most important criminal matters, preparing draft resolutions for the assembly and rescinding resolutions of the assembly that were detrimental to the state’s interests.
The Roman Kingdom
It is traditionally accepted that Rome was founded by Romulus in April of 753 BC.
The beginnings of the Roman state (civitas) was the settlement of the Palatine Hill, whose first residents were the Latini.
Around the 6th century BC they united neighbouring villiages, creating the Septimonium, i.e. The city on seven hills.
According to tradition, Rome was first ruled by seven succesive kings, beginning with Romulus and lasting through Tarquinius Superbus, who was banished in 509 BC.
The Roman Kingdom 2
The first and the last kings were certainly elected. Some of the others may have been hereditary. The king was selected by the Curiate Assembly.
The king exercised supreme executive, judicial, military and religious authority.
Legislative authority was limited by the powers of the Curiate Assembly.
Civil servants were appointed and dismissed by the king.
The Senate was a council of elders with advisory powers. Initially there were 100 of them, and at the end of the Kingdom they numbered 300.
In the event of an interregnum, the Senate appointed successive interreges until a new king was chosen.
The Roman republic
The republic was founded in 509 BC.
The aristocracy that was introduced was then later transformed over two centuries of battles between the plebians and the patricians into oligarchy.
The expansion of Rome to cover all of Italia began in the 5th century BC and lasted until the beginning of the Punician Wars in 264 BC, when Rome began its expanssion into other areas of the Mediterrenian Sea basin.
At the end of the 2nd century BC, the Roman republic was engulfed by internal conflict that slowly turned into a civil war in the 1st century BC.
This led to the transformation of the republic into an empire around the year 27 BC.
The Roman republic 2
The magistratus designated both the civil servant and the office itself. Magistrates were divided into higher (maiores) and lower (minores). Magistrates were selected at popular assemblies called comitia.
Higher officers were consuls, praetors and censors.
Lower officers were aediles, questors and others given specific tasks.
All officers were entitled to potestas, the right to issue edicts and assess penalties for not adhering to them.
The Roman republic 3
Civil servants also wielded the imperium, the right to command army, exercise judicial power and to summon popular assemblies.
All magistrates, with the exception of dictator and censor, shared these characteristics:
• Elected by assembly
• Collegiality (at least two people)
• Fixed terms of office (usually one year)
• Honorary position with no salary
• Responsibility before the popular assembly
• Civil and criminal liability
Roman republic 4
Consuls held military and administrative powers, as well as some legislative and judicial ones. With time, the latter two were taken over by praetors.
Official documents were signed with the names of two consuls in Rome.
In the 1st century BC, they were assigned the governance of a province and given the title of proconsul after their yearly term of office expired.
Roman republic 5
The office of municipal praetor was created in 367 BC.
He exercised the power of iurisdictio, meaning he ruled on the law relevant for resolving a given court dispute. He then handed the case over to a judge, who examined the facts of the case and gave a verdict.
Roman republic 6
In 242 BC the office of praetor peregrinus was established. He wielded the power of iurisdictio in cases involving foreigners, as well as those between foreigners and Roman citizens.
At the beginning of his term the praetor issued an edict detailing the principles under which he would perform his duties of office.
After their term of office was compelted, they were given the title of propraetor and took a position in governing the provinces.
Roman republic 7
The office of censor was established in 443 BC. Two censors were selected by the assembly for a period of 5 years.
Their primary function was to maintain a record of citizens and to estimate their fortunes (census) for the purposes of raising armies and assessing taxes.
Censors also supervised morality in public and private life.
Those considered to be undignified could be punished with so called „censorial remarks” (nota censoria).
They reviewed the lists of senators (lustrum), and crossed off the names of the undignified.
Censors also exercised oversight of the public purse and public procurment.
Roman republic 8
The dictatorship was an extraordinary office.
The dictator was appointed by the consul based on a resolution of the senate. The first dictator was appointed in the 5th century BC.
His term of office lasted 6 months.
The last dictator in the classical republican sense was appointed in 202 BC.
There was no appeal against the dictator’s judgements to the popular assembly, unlike in the case of judgements from other public servants.
In the 1st century BC the office of the dictator took on a different nature and was the foundation of the power of such exceptional individuals as Sulla (82-79 BC) and Caesar (48-44 BC).
Roman republic 9
Tribunes of the Plebs, first 2, later 5, and finally 10 were selected annually at a plebian assembly or special assembly.
Their territorial jurisdiction covered only the City and a one-mile radius around it.
They were the embodiment of the majesty of the Roman people, therefore they were untuchable and their homes constitued a place of asylum.
Roman republic 9
The tribunes’ powers included:
Convening assemblies of the plebs, with time this came to include the senate, and the right to object to all legal acts that damaged the interests of the plebs.
Those laws could be enacted by the popular assembly, senate or by public officials.
Tribunes could impose a fine or imprison all those acting in a way that damaged the interests of the plebs.
Roman Empire
The Empire was founded by Octavian August, who won the civil war and brought peace.
In 28 BC he took the title of "first citizen" (princeps civium), which is the source of the word „principate” to describe the political structure of the Empire in the years 27 BC – 284 AD.
In the years 235-284, the Empire was engulfed by a long political crisis characterized by the presence of many usurpers.
Order was restored by 284 by Dioclecian, who is known as the creator of the political order known as the "dominate"; the Emperor was from then on referred to as "master and lord"
(dominus ac deus).
Roman Empire 2
During the principate the Emperor ’s power was based mainly on the regular recurring appointment of him to the office of consul or proconsul. This was the source of the imperium maius giving the princeps supreme military power, ovesight of senatorial provinces and the right to issue edicts.
In addition, the Emperor received the powers of the plebeian tribune, and since the tribunes previously were the embodiment of the majesty of the entire Roman people as well as untouchable, it was thus held the majesty of the people passed to the ruler.
Many Emperors also took the office or the powers of the censor, which allowed them to determine the composition of the senate.
Roman Empire 3
During the Empire the Senate had 600 members, taken from those who had held high public office and satisfied strict financial conditions. The Emperor was responsible for choosing its members.
The Senate’s powers included partial legislative power as well as the power to rule in the most important administrative and tax cases.
Also, the Senate rather than the old comitia was responsible for appointing office holders. The Emperor, however, controlled the list of candidates.
At the end of the 2nd century AD, Emperor Septimius Severus permanently transferred the majority of the Senate’s powers to the Emperor’s officers.
Roman Empire 4
Some of the republican offices functioned during the period of the principate, through the 3rd century, but were replaced by the imperial officers.
Imperial officers performed their duties:
• On the basis of a nomination by the Emperor
• Monocratically
• Without a defined term of office
• For a specified salary
The highest imperial officers held the title of prefect, while lower officeres were procurators.
Roman Empire 5
The most important imperial prefects were:
praefectus praetorio leader of the praetorians and director of administration in Italia;
praefectus Urbi responsible for order and safety in the City, exercised jurisdiction in criminal cases;
praefectus annonae responsible for supplies;
praefectus vigilum responsible for fire safety and some criminal matters;
praefectus vehicularum responsible for the postal service.
Roman Empire 6
During the principlate, the city of Rome and Italia were treated in an excessively privileged manner.
The territories outside of Italia were divided into provinces, in the republican tradition.
The Emperors introduced a system of provinces under the Senate, in which armies were not stationed, and imperial provinces of strategic significance.
Power was exercised in the provinces by governers, who had authority over other officers. An exception was in the imperial provinces, where financial matters were handled by curators who answered directly to the Emperor.
Roman Empire 7
During the dominate, the legal position of Italia and other imperial lands was made uniform. Constantine the Great went further in making the imperial administration uniform during the 4th century.
The state was divided into four prefectures (Italia, Gaul, the Balkans, the East). They were ruled by praetorian prefects.
Prefectures were divided into dioceses. First there were 12, later 14.
They were headed by vicars.
Dioceses were divided into provinces, of which there first were 96, and later 120. They were administered by appointees known as president or rector (praeses, rector).
Rome and Constantinople had their own prefects.
Roman Empire 8
The late Roman state was characterized by the creation of military state officers.
They were called duces (sing. dux), and their authority encompassed the area of one or several provinces.
* * *
The Roman state finally split into its Western (until AD 476) and Eastern (until AD 1453) portions.
The last Emperor to use Latin on a broad scale in his legislation and administration was Justinian the Great (527-565). The Empire later took on a distinct Hellenic character.
Tribal kingdoms
The tribal states did not initially have the characteristics of a territorial state. They were associations of free people.
The highest authority in tribal states was the council.
All free men capable of handling weapons participated. With time, only the elders of the tribe took part.
This political order is known as war democracy.
Generally, the council gathered at regular intervals, usually in the spring and autumn.
It decided about the fundamental aspects of the comunity’s life: declaring war, concluding peace, seecting kings or leaders and appointing high officiels.
It also exercised supreme judicial power.
Tribal kingdoms 2
The authority of the prince or king came from the powers of the supreme military commander, selected from among the most capable and bravest warriors.
The selection was performed by the council, usually from among members of the tribal aristocracy. The selection usually came from the same clan. A totally free election happened when the royal clan died out.
The significance of the council was reduced, and the king’s powers increased. In the times of Charlemagne (768-814) the council was an opportunity to undertake a military review. After that king died, no more councils were convened.
Patrimonial monarchy
As the council’s significance decreased, the state began to be viewed as the property of the ruler himself (patrimonium), which is why we speak of the patriarchal monarchy.
The foundation of the king’s power was the bannus. This meant the right of the king to give orders and to punish those who disobeyed. The royal authority extended to the military, judicial, and administrative spheres, as well as the treasury.
The central focus of state administration was the royal court. The king traveled together with it around the entire state. This is why we may speak of several capital cities rather than one capital.
The councils were replaced by court assemblies. They were based on church synods. They could address all matters of state, but their role was purely advisory.
Patrimonial monarchy 2
The structure of royal offices was based on the most trusted people from the king’s circle.
The Frankish state’s most important officer was the majordomo (maior domus regis). He served as the king’s deputy and his chief advisor.
After many decades, majorodomos became heriditary.
In 751, majordomo Pepin dethrones the Merovingian dynasty and eliminated the office of majordomo.
Patrimonial monarchy 3
Other officers of the court included:
The cup-bearer, responsible for the king’s wine cellar
The marshal, responsible for the royal stables
The treasurer, who managed income and expenditures
The pantler, responsible for interior administration of the court
The referendary, in the times of the Merovingians he directed the king’s chancery.
Patrimonial monarchy 4
The Franks’ srate was divided into couties (comitatus) headed by earls (comes).
At first, he was one of the king’s warlords. The king could relieve him of his duties at any time. From the 7th century only an owner of land in the county could become an earl. The earl’s deputy was the vice earl.
A county was divided into smaller districts. In the west they were called vicariates, while in the east they were known as centenes.
Vicars and centines were public officials assisting the earl.
They were initialyl selected by the local assembly. With time, this choice was taken in conjunction with the earl.
Feudal fragmentation
In 843, the heirs to Charlemagne divided the state among themselves in the Treaty of Verdun.
The part that went to Charles the Bald, i.e. France, was quickly divided into smaller pieces leading to the weakening of authorities and increasing feudalization.
In 987 the French throne was occupied by Hugh Capet. He began the reign of the House of Capet (later the Capetian dynasty) on the French throne, yet initially his sucessors were designated and then selected while the king lived.
It was only Philip August, who reigned from 1180-1223, who ended this practice, adn his son Henry VIII received the throne hereditarily, which was from then on expressed by the phrase "The king is dead, long live the king".
Philip August conclusively led the country out of feudal fragmentation.
Feudal fragmentation 2
The French rulers of that era occupied two roles: king (rex) and prince (dux) of the Franks. The first title gave them power in respect of the entire state, and the second within the borders of their own domain.
The sacral coronation gave the kings of France their particular position. They were independent of both the Caesar and the Pope.
The king was the highest feudal lord, the suzerain.
Formally, he was over all those in the feudal hierarchy. Actual authority extended to the crown’s direct vasssals, under the formula "my vassal’s vassel is not my vasssel".
Feudal fragmentation 3
At that time every feudal lord had the right to conduct war.
This led to chaos and the disappearance of the population.
This was opposed by the Church, which introduced the institutions of the Lord’s Peace (Pax Dei) and the Lord’s Truce (Treuga Dei). The first gave legal protection to those not involved in conducting war, such as farmers and priests. The second forbade fighting on special days such as Easter, Christmas, and finally every day of the week except for the time from Monday evening to Wednesday morning.
Violation of these rules could be sanctioned with excommunication and a trial before the tribunal of peace.
Feudal fragmentation 4
With time the kings themselves began to limit private wars. In 1258, Louis IX introduced a total ban on private wars.
In spite of the ban, these wars did not end in France until the 15th century.
The feudal hierarchy never questioned the king’s right to conduct France’s foreign policy.
The royal lawyers’ activities led to the principle that in relation to the Pope and the Empire, "the king is Caesar within his own kingdom".
The concept of the French’s church’s dependence on secular authority was developed.
At the beginning of the 14th century, this led to a conflict between King Philip IV and Pope Boniface VIII.
The papacy, losing the conflict, fell into what was called the "Avignon Captivity".
Estate monarchy
France was an estate monarcy in the period 1302-1484 The king’s power took on a public-law dimension. This
was done in France with the participation of educated lawyers, called legists.
They used Roman law as their guide, from which they took fundamental concepts of the state and of royal power.
They provided a foundation for the legal basis of royal authority, leading to the king being acknowledged as:
The highest feudal lord
The source of all justice
The sole holder of soverign authority in the state
Estate monarchy 2
The Royal Council in France was taken from the royal curia of the 13th century. It was a collegial body.
Its composition was fixed in the 16th century. It was composed of peers, grand vassals of France, leading clerics and royal advisors.
Its powers included:
Conducting foreign policy
General state administration
Financial matters
Cassation hearings
The power to bring every administrative or judicial matter before the monarchial court
Estate monarchy 3
In 1497, at the very beginning of the absolute monarchy, the judicial powers of the Royal Council were transfered to the Grand Council.
The Royal Council’s activity in respect of taxation was complemented by the Accounting Chamber.
Its powers included:
Oversight of provincial servants’ accounts
Finanical oversight of the royal administration
Registration of royal ordinances concerning taxation
Issuing ordinances
Judicial matters of taxation
Estate monarchy 4
In most estate-based states, the structyre of central administration remained essentially unchanged from the preceding period.
Its functions were, however, changed.
Court and state offices were made seperate.
Court dignitaries began to slowly lose real significance.
Their offices became honorary.
State administration and day-to-day matters were managed by specialized offices developed from existing organs.
Concept and
system of law
Selected meanings of the term "Roman law"
1) the law of Rome – from the beginings of the City to the death of Justinian in AD 565.
2) Romanistic elements in the later history of law
3) ius commune – the common law of Europe from the 12th to the 18th century
4) usus modernus pandectarum and pandectism of the 18th-19th century 5) Academic study of Roman law
6) The romanist tradition, broadly understood
Periodisation of forms of the Roman state
• Kingdom 753 – 509 BC
• Republic 509 – 27 BC
• Principate 27 BC – AD 284
(including the "crisis of the 3rd century" AD 235-284)
• Dominate AD 284 - 476 (W) / 565 (E)
Periodisation of the history of sources of Roman law
• Archaic law – the kingdom and early republic through the Punic wars (753 – 265 BC).
• Pre-classical law – the republic during its development and decline (through 27 BC).
• Classical law – from the principate to the end of the Severan dynasty (through 235 BC).
• Post-classical law – the Dominate (from the crisis of the 3rd century to AD 565).
[including Justynian law – reign of Justynian AD 527 – 565]
The concept of law
Ius – Fas
Human law – divine law
D. 1,1,1
Ulpian qouting Celsius from the 2nd century:
(…) ius est ars boni et aequi .
Law is the art of [applying the principles of]
the good and the just.
• Dura lex, sed lex (ad D. 40,9,12,1) – The law is harsh, but it is the law.
• Summum ius, summa iniuria (Cic.off. 1,33) – Supreme justice, supreme injustice.
• Male nostro iure uti non debemus (Gai 1,53) – We ought not to abuse our legal rights.
• Non omne quod licet honestum est
(D. 50,17,144 pr) – Not everything that is permitted is honest.
• Hominum causa omne ius constitutum sit (D. 1,5,2) – All law should be made for the sake of men.
Divisions of law
• 1/ ius publicum – ius privatum
• Public law – private law
• 2/ ius civile – ius gentium – ius naturale
• Citizen law – law of nations – natural law
• 3/ ius civile – ius honorarium
• Law enacted by citizens at assemblies – law created by civil servants
Divisions of law
• 4/ ius commune – ius singulare
• Common law – particular law
• 5/ ius vetus – ius novum
• Old law – new law, rule:
• Lex posterior derogat legi priori
• New law derogates old law
• 6/ ius strictum – ius aequum
• Strict law – law of equity
• E.g. Loan contract – articles of association
Systematization – selected issues
• The Institutes of Gaius personae – res – actiones persons – things - actions
(repeated in the Institutes of Justynian)
• Renaissance systematization
The entirety of Roman law divided into substantive and procedural law (Donellus 16th century), and history of sources as a seperate area of research
Pandectic systematization
• General part, including personal law
• Family law
• Property law
• Law of obligations
• Inheritance law
[Various orders of the individual parts of this systematization have been applied]
History of sources
of Roman law
Customary law
mos maiorum consuetudo
Developed out of the continuity and stability of a given social behavior.
The Romans felt customary law was the silent expression of the will of the people.
They contrasted it with statutory law, which is an
overt expression of that will.
The Law of the 12 Tables
462 BC the plebeians demand that the law be written down
452 BC decemviri legibus scribundi 451 BC first ten Tables
450 BC two addtionary Tables
Laws of the popular assemblies
Voting was initially done openly by voice; from the 2nd century BC voting was done in
secret by sedret ballot.
Each voter received two ballots:
UR – uti rogas A – antiquo
They were then discussed during informal assemblies (contiones).
After the contio the civil servant convened the
assembly to pass the bill.
Laws of the popular assemblies II
Plebeians also gathered in special assemblies called concilia plebis.
These assemblies, led by tribunes, voted on resolutions known as plebiscites
(plebiscita).
Initially they only applied to plebeians.
From lex Hortensia de plebiscitiis in 286 BC they applied to all citizens.
From that time, many important laws were
passed as plebiscites.
Laws of the popular assemblies III
An act passed by the plebs requried approval of the Senate to enter into force (auctoritas patrum).
In 339 BC the Senate gave its auctoritas to all future acts of popular assemblies.
In the 1st century BC the popular assemblies were convened very irregularly.
They ceased entirely during the principate.
The last act passed in this way comes from the
end of the 1st century AD, during the reign
of Nerva.
Senate
The first Roman Senate from the era of Romulus had 100 senators.
During the early Republic, the Senate was composed of 300 senators.
Sulla expanded the Senate to 600 members.
Caesar made it 900.
Augustus limited the number of senators to 600.
The Senate was made up of former high-ranking civil servants; it could be convened by a consul or a praetor, and in the late Republic by a
plebeian tribune also.
Resolutions of the Senate
The magistrate presiding over the Senate presented the matter that was to be discussed (relatio).
Next, he asked the most outstanding senators for their opinions.
Less-important senators were not asked formally for their opinions.
Voting was done by the senators going to one of two sides.
At the end of a Senats session, the presiding
magistrate and a selected senator wrote down
the Senate’s resolution.
Resolutions of the Senate II
During the Republic, the Senate was primarily an advisory body.
It held authority in matters of financial oversight and foreign policy.
It gave up its powers to confirm acts in the 4th century BC.
During the principate, lawyers gave resolutions of the Senate the status of legislation.
The jurist Gaius, from the 2nd century AD, had no doubt as to the status of these resolutions.
During the Severan dynasty (at the turn of the 2nd
and 3rd centuries) the Senate only considered
imperial legislation (orationes principum).
Praetor
In 367 BC, the praetor was appointed as an officer of jurisdiction.
In 242 BC, a praetor for foreigners was appointed (praetor peregrinus), after which the first one was given the title of municipal praetor (praetor urbanus).
The praetors also deputized for the consuls in the City when the latter went to war.
The praetor’s term of office was for one year.
Each new praetor published his edict in which he set out the principles he would follow in his
office.
Beginning with lex Cornelia in 67 AD, praetors
were bound by their own edicts.
Edicts of other Republican offices
Jurisdiction over marketplaces belonged to Aediles.
He also issued his own separate edict.
Provincial governers issued edicts similarly to the praetorian edict.
The quaestors were the provincial equivalents of the Aediles.
Law created by office holders was called ius
honorarium from honos, meaning dignity,
office.
Study of law during the Republc
Iuris prudentia – knowledge of the law, legal expertise.
From the most ancient times to the 3rd
century BC, knowledge of legal formulae, the judicial calendar and interpretation of the law were the domain of the pontifices.
This period is referred to as the era of the
pontiffs’ jurisprudence or the esoteric age.
Study of law during the Republic cont.
Around 300 BC the pontiffs’ monopoly was
broken by Gnaeus Flavius, who published the judicial calendar and collections of formulae for actions in civil procedure (ius Flavianum).
A short time later the first plebeian pontifex maximus (highest pontiff), Tiberius
Coruncianus, began public teaching of the law.
The secularization of the law had begun.
Study of law during the Republic III
The first Roman jurists were from the richest classes of society.
They gave advice for free.
They received social recognition and stood out among their class, which made their public careers easier.
They were called iuris prudentes or iuris
periti.
Study of law during the Republic IV
Cicero named three types of activity by jurists:
Respondere – giving legal advice
Cavere – helping in preparing legal acts and preparing procedural formulae
Agere – help during lawsuits, generally
consisting in instructing parties and
speakers
Study of law during the Republic V
Jurists sometimes lost cases against orators.
As representatives of the higher classes, there was no financial incentive to participate
frequently in trials.
This is why they generally sent parties in
lawsuits to professional orators, who were
better able to present the judge with the
facts of the case.
Jurists become the creators of law!
(iuris auctores, iuris conditores)
Jurisprudence incorporated into the imperial administration.
In the 2nd century emperor Hadrian made the
consilium principis, a permanent advisory body
of legislation and justice; its members were
paid a salary.
Ius publice respondendi
• Privileged lawyers gave legal advice in the form of a sealed letter (responsum sigillatum) which bound the judge in respect of a specific case; with time, it came to be used in analogical cases.
• With time, the opinions of jurists written in
their books also came to be given legal
power!
During the reign of the Antonines, they became civil servants
The Severians incorporated them into the structure of imperial
administration.
The most outstanding jurists (Papinian,
Paulus and Ulpian) were prefects of
the praetorians; as commanders of the
imperial guard, they were also the
highest judges in the state.
Imperial constitutions
