This Casebook introduces the area of Roman law governing the most personal and urgent problems that free Romans normally confronted: the marital relationship, the power of fathers over their children, and the devolution of property within the family.
This area of law is interesting even today because, although many parts of it seem at least generally familiar, Roman family law was organized and developed on lines that are radically, and at times almost breathtakingly, different from any modern legal system.
On one level, then, students are invited to think about a set of legal rules that are unlike anything they have ever seen before but that nonetheless are distinctly “legal” in a way that any modern lawyer can understand; but on another level students are also encouraged to think about how these rules are likely to have affected the actual lives of Romans.A casebook relies on direct use of primary sources in order to convey a clear understanding of what legal sources are like and how lawyers work. For Roman law, the primary sources are above all the writings of the early imperial jurists. Almost all their writings date to what is commonly called the classical period of Roman law, from approximately 31 B.C. to A.D. 235. Justinian's Digest, promulgated at Constantinople in A.D. 533, collects more than nine thousand lightly edited excerpts (totaling over eight hundred thousand words) that derive mainly from classical juristic writings. The excerpts vary in length from a few words to several pages. Modern knowledge of classical Roman law rests chiefly on the Digest and a few other sources: most prominent among them being the Institutes of Gaius, an elementary textbook written about A.D. 160, which is the sole work of the classical jurists that has survived to us more or less intact; and also the Institutes of Justinian, an elementary textbook loosely based on Gaius.
Roman family law was also the subject of considerable legislation, which is frequently referred to and interpreted by the jurists.
The most important of this legislation takes the form of laws (leges) passed by the Roman legislative assemblies especially during the early Empire; and decrees of the Senate (senatusconsulta, abbreviated SC) passed by the Roman Senate, usually after they had been moved by the emperor or his agent. A large amount of imperial lawmaking also takes the form of rescripts, answers to questions of law addressed by officials or private citizens to the emperor. These rescripts, which become increasingly numerous starting in the second century A.D., are somewhat haphazardly collected, but many can be found in the Codex of Justinian, promulgated at Constantinople in A.D. 534.For the most part, however, the 235 Cases in this book derive from the writings of preclassical and classical jurists. The Roman jurists were not judges in our sense, nor were they like modern lawyers or law professors. They were, instead, a tiny elite of legal professionals who were charged with conserving and developing the law, especially the private law that Romans used in lawsuits between themselves. Although the Cases often describe fact situations at least loosely drawn from real life, they are, with very few exceptions, not judicial opinions on real legal cases. Rather, the jurists write about hypothetical but realistic situations as part of their effort to discuss and develop law. The jurists' writings were originally intended, in the main, for reading by their fellow jurists or other skilled legal scholars, not by laypersons. However, the legal rules that the jurists created through their writings were then applied directly to actual cases that arose in Roman courts, in order to settle questions of law.
During the classical period of Roman law, private lawsuits in the city of Rome were normally brought in the court of the urban praetor, a magistrate of the Roman state. So that potential plaintiffs could know which lawsuits he was willing to grant, the praetor, at the start of his year in office, issued an Edict listing all the causes of action that he recognized as available.
The praetor used his Edict both to implement existing law and to create new actions. By the classical period, the contents of this Edict were usually carried over mechanically from praetor to praetor, although changes remained possible until the Edict was given its final form in the early second century A.D.Actual trials took place in two stages. A plaintiff first came before the praetor and asked him to grant a lawsuit. If the plaintiff stated an acceptable cause of action, the praetor granted a trial and assigned the case for decision by a “judge” (iudex), who was normally a layperson lacking any deep familiarity with law. The praetor and the two parties to the lawsuit also prepared a special formula; this formula (which gives its name to Roman “formulary procedure”) appointed the iudex, instructed him on the general nature of the dispute, and ordered him to decide it. During the second stage of the trial, the iudex listened to arguments from advocates for both sides and then decided the outcome of the case in accordance with the formula. Normally, this verdict could not be appealed or reviewed.
When important questions of law arose either before the praetor or during the actual trial before the iudex, they were usually settled through reference to the opinions of jurists. Thus, the Roman jurists, although they were not formally a part of the judicial system, played a pivotal role in determining law within Roman courts.