Early Roman Law

(1) General Nature of Early Roman Law

Unless it has a comprehensive legal code imposed on it from the beginning,^[167] the first law of a community is simply the customary rules of that community, interpreted and enforced by those recognised by the community as having the authority to do so.

Early Roman law was no exception. It was rigid and formal, dominated by the need to comply with strict procedural forms, and was strongly status-based. As we shall see in Chapter 7, a person's rights and obligations depended to a large degree on his or her family relationships. This was carried to the extent that a person whose father or paternal grandfather was still alive could not nor­mally own property and had limited personal liberty. Even where a person could hold rights, the creation and transfer of those rights was subject to onerous and formal procedures. For centuries, the main form of contract involved a formal question and answer, using specific, required words, and failure to comply would render the contract void. Compliance with form was all, and the law did not look behind the formalities to see whether there was genuine agreement.^[168] Similarly, the transfer of ownership of the most important kinds of property required the performance of ceremonial acts in front of witnesses. The validity of the trans­fer was judged according to whether there had been strict compliance with the requirements of that ceremony of transfer rather than whether there had been genuine consent to the transfer.^[169]

(2) The Leges Regiae

Later Roman historians attributed extensive legal reforms to the kings enacting leges regiae (‘royal laws'), although there is debate as to how much of this is genu­ine.^[170] It is not even certain how much later historians' accounts correctly represent Roman law during the Monarchy.^[171] It is, of course, perfectly possible that the rules attributed to a particular king could have been genuine law without in fact having been introduced by that king.

(3) The Twelve Tables

We begin to get a bit more of a glimpse of Roman law once we move into the early Republic, in the form of the Twelve Tables^[172] (or, at least, those fragments of it that come down to us), an early legal code traditionally dated to the mid-fifth century BC.

The story of the Twelve Tables is part of the longer story of the Struggle of the Orders, which we saw in Chapter 1.^[173] It will be remembered that early Roman society was divided into two parts: the patricians, who were politically dominant despite being a small minority, and the majority plebeians, who were excluded from political power. One of the plebeians’ demands was for the publication of the law, knowledge of which was monopolised by patricians. In response to this, a commission of ten men was appointed to put together a codification of the law, taking inspiration from Greek codifications, which was published in 451 BC in ten ‘tables’ or tablets, to be displayed in the Forum in Rome for all to see. These were joined by a further two tables in the following year, to bring the total to twelve. Later Romans saw the Twelve Tables as the foundation of their law, and the first century BC orator and politician Cicero speaks of schoolboys being required to learn it by heart.^[174]

It is difficult to speak with any certainty about the contents of the Twelve Tables.^[175] None of it has survived directly, in its original form, so our whole knowl­edge is derived from fragments preserved in the writings of later authors. Of the actual words of the original, we have ‘appallingly little, mostly in the form of a mutilated phrase or of some words’.^[176] We also cannot be sure of exactly how the subject matter was distributed among the Twelve Tables. Within these limitations, however, the Twelve Tables can be reconstructed to some extent.^[177] Tables I—III, for example, seem to have been mostly concerned with the conduct of litigation.

From this, it is clear that the Twelve Tables were not a law code in the mod­ern sense of the term. In the modern world, a law code is a comprehensive, systematic account of the whole of the law or of a part of it. The Twelve Tables did not have that character. Instead, they contained ‘a series of specific solutions to narrow sets of circumstances; lacking are abstract norms, general principles or definitions’.^[179] For example, one of these ‘specific solutions to narrow sets of circumstances’ is found in Table X.8, which prohibits the adding of gold to a funeral pyre; however, it is provided that there is no breach of this prohibition if the deceased happens to have gold fillings in his teeth. Again, Table V6 lays down a rule for who is entitled to be appointed as a person’s guardian, but tells us nothing about the guardian’s role or powers. The Twelve Tables were therefore not a complete statement of the law, and much was left unsaid. Equally, although the Twelve Tables contained various provisions about the conduct of litigation, they did not detail the legis actiones, the forms of actions detailed in Chapter 2,^[180] without which it was not possible even to begin the litigation. A co-existing cus­tomary law, continuing in force, is assumed. This, indeed, is only to be expected at this period. In early law, statutes tended to be seen as declaratory of the exist­ing law, rather than being intended to change the law. In this they are similar to modern court decisions: even though a decision of the court may, in substance, change the law, the theory is maintained that the court is simply declaring what the law already was.^[181] In reality, the Twelve Tables have the appearance less of a major reforming statute than of a collection of decisions on individual points of law, together with elaborations on them.^[182]

Certainly, the Twelve Tables did not have enough information to allow the plebeians to do without expert legal assistance:

The law was bound to be revealed to them by the precedents that they themselves experienced; only its subtleties could be hidden from them, and these would rely on a level of sophistication or a mass of detailed exceptions of which there is no trace in the published text.

There is then, to say the least, reason to doubt the story that the Twelve Tables were intended to benefit the plebeians, and the specific provisions of the Twelve Tables do little to contradict this. The only direct mention of the plebeians and the patricians was a prohibition on inter-marriage between members of the two Orders^[184] (later repealed), and there is little or no sign elsewhere of any provisions clearly intended to favour the plebeians.

C.