LEGISLATION

In comparison with the ius honorarium and juristic development, legislation was not an important source of Roman private law. There were exceptions, of course. The lex Aquilia, for example, considered in Chapter 8, was a major reform of private law, and the foundation of Roman law, the Twelve Tables, was itself a statute.

The Twelve Tables

Tradition has it that the Twelve Tables were one of the concessions given to the plebeians in the Struggle of the Orders, in this case the demand being for the publication of the law. A commission of ten compiled a statement of the law on ten bronze tablets in 451 bc, a delegation having been sent to study the laws of Greek cities. This perhaps means the Greek cities of southern Italy rather than Greece itself. A further two tablets were added by another commission of ten in 450 bc.

The original tablets were lost during the Republic, and our knowledge of what they contained comes from fragments preserved in later writings. These fragments do, though, allow us to reconstruct enough of the Twelve Tablets’ contents to get a reasonable idea of their scope and style. They were not a law code in the modern sense, being neither comprehensive nor systematic. By no means does the whole law appear, issues of procedure predominating. Their subject matter included issues of private, public and religious law. It is unlikely that the Twelve Tables departed much from customary law, despite the story of a delegation to Greek cities. After all, the demand was for the law’s publication rather than its reform, and little direct Greek influence can be traced.

The Republican assemblies

In the Republic, formal legislation was the responsibility of the citizen assemblies, the comitia centuriata, comitia tributa and the concilium plebis. The last of these was made up of plebeians, and its legislation, known as plebiscita, was initially binding only on them.

In the Empire, consistent with Augustus’s reluctance to innovate openly, the assemblies remained in existence and continued to meet when summoned. However, their role was now merely to approve the proposals of the emperor, and by the end of the first century ad they had ceased to play an active role.

The Senate

Strictly, the Senate had no legislative power. Its resolutions (senatusconsulta) were merely advice to magistrates, with no binding authority of their own, though in practice they were likely to be followed. During the Empire, as the Senate was the emperor’s partner in government, its resolutions came to be seen as binding, though exactly when this happened is uncertain. Certainly, by the second century ad the process was complete. However, there was no doubt that the emperor was the dominant partner in the relationship, and by the end of the second century there was not even the appearance of initiative left.

The emperor

It was recognised early on that the emperor had the power to legislate. By time of Gaius, it was possible for him to say that there had never been any doubt of this. Thus, the pronouncements (constitutiones) of the emperor had binding force. The emperor himself was a magistrate, and so could issue edicts, in his case of universal application. Imperial legislation took various other forms, including decreta, judicial decisions in cases heard by the emperor, either at first instance or on appeal, and rescripta, written answers to questions or petitions. In practice, this would be the outlet of many who in an earlier age would have been jurists.