The Pre-Scientific Stage
Examination of the extant sources of law before the end of the second century BC does not reveal a great deal. There is a certain amount of legislation, but little more than that.
These legislative sources are undoubtedly important, but they need to be put in the context of the nature of law and the legal process of the period.The first Roman legislation about which we have any real information is the XII Tables.1 This is attributed by Livy to the years 451-450 BC,2 and there is no strong reason to doubt this dating. No text of the XII Tables survives, but later writers, both lay and legal, refer to many of the provisions found in it; scholars from the sixteenth century onwards have consequently been able to reconstruct a plausible version of the original, though not its original language. As its name suggests, it would have been a substantial text; but with under 100 clauses (as reconstructed in the modern editions) it would probably have been only about one-third of the size of the so-called Code of Hammurabi promulgated over a millennium earlier in Babylon. The traditional account of the creation of the XII Tables, given by Pomponius and written around the middle of the second century AD, treats it as having been enacted in response to demands for greater certainty than could be provided by mere custom, and based on materials collected from Greece and other places.3 It is impossible to be sure of this, although similarities of form to Greek (and perhaps also Mesopotamian) texts together with a number of substantive parallels make it possible, if not probable, that there was some foreign influence at work.4 But one thing is clear: it would be a mistake to see the XII Tables as a code in the modern sense of being a complete statement of legal rules; its provisions are far too piecemeal to allow for any such conclusion.
Its importance lay in the fact that henceforth some rules would be in a fixed form and therefore resistant to the gradual shifts that are characteristic of customary law, and in the way in which many centuries later it could be seen as the foundational text of Roman law.From the early Republic there were two representative assemblies with legislative power, the comitia centuriata and the comitia tributa, with the former being by far the more important; a third assembly, the comitia curiata, was concerned only with formal business such as the election of magistrates and the ratification of wills. Although authority was vested in the comitia the real power lay with the magistrates and the Senate, since the role of the comitia was limited to approving or rejecting proposals put before it by a magistrate. After 287 BC - though some sources put it as early as 449 BC- enactments of the plebeian assembly, the concilium plebis, were also given fully binding force.5 The most important pieces of private law legislation of the Republic - perhaps all of them - were plebiscites.
We have references to an average of approximately one piece of legislation per year in the 350 years after the XII Tables,6 although the earliest epigraphically attested lex dates only from a few years before 110 BC.7 The vast majority of these are one-off determinations - to make war or peace, for example, or to allow a triumph or impose a fine - or are what we would regard as matters of constitutional importance or things which relate to the legal process. Very few deal with crimes, and only a tiny handful deal with private law - the legal relations between individuals.
Most substantive law at this time, therefore, would have been custom; or, more precisely, little distinction could have been drawn between legal and social rules. This is not surprising.
Legal process at this time was based on the so-called legis actiones, a highly ritualized set of oral formulae within which any legal claim had to be framed.8size=2 face=Arial> There were only five types of these, shaped by reference to the remedy sought by the plaintiff rather than by the basis of his or her claim, sometimes supported by an oath or wager, with the decision falling to a single judge or a group of judges. But these judges were laymen, and their decisions would rarely have been based on any externally identifiable legal rules. Moreover, there was nothing in the legis actio system to upset this: provided the appropriate forms were gone through, all depended on the judges’ sense of what was right and wrong. This is not to say that there was no room for legal expertise or innovation; but legal expertise was largely knowledge of the ritual forms and, aside from new acts of legislation, legal innovation could involve little more than the manipulation of the rules of the XII Tables. In all of this the College of Pontiffs was dominant, underscoring the lack of any specifically legal science at this time.9 The College of Pontiffswould similarly have been the body which had knowledge of other ritual forms, such as the proper way to transfer ownership in the most important items of property or the proper way to enter into a formal marriage. Individual pontiffs provided answers (responsa) to questions from individuals, initiating a practice which was to be of great importance in the following period of Roman law.
2.