In ancient Rome, institutional mechanisms emerged to determine whether the lower law was in conformity with the higher law. It turns out that some Roman procedural solutions resembled the modern doctrine of judicial review of the law.
During the republican period, the Senate effectively exercised its controlling powers for some time through the right to reject laws introduced by popular committees – the main legislative bodies in the final period of the republic – if they were inconsistent with Rome’s basic constitutional principles. The Senate has claimed the right to declare that the act is not binding due to formal deficiencies, voting by force and due to the inadequacy of the act.
The Senate also considered itself competent to suspend laws and demanded that draft proposals be presented to them before voting. All these claims of the Senate were not accepted by other state organs and gradually the attempts to execute them were dropped. As a rule, the Senate adopted laws developed by people’s assemblies, but in practice the projects presented in committees were previously accepted by the Senate and magistrates who managed the commissions organized for voting according to the wishes of the Senate.
The Senate could also annul any assembly decision for religious reasons. In some cases, the Senate had the power to decide whether the bill was in conflict with the so-called ius legum. This concept was rooted in both law and religion and meant the pursuit of limiting the legislative power of citizens so that it did not exceed the fundamental principles of the state. It was a kind of republican constitution that regulated the system.
One of the basic constitutional maxims of this kind was the privilegia ne irroganto principle. This rule created a basic mechanism of legislative control, preventing the adoption of laws that are sanctions for a specific individual, imposing burdens on only one citizen or a small group of them. The ancient Romans were therefore aware that the legislation should contain abstract standards directed at the public. In the event of a violation of ius legum, the Senate annulled the Act.
An example would be the case from 91 BCE, which was referred to by Cicero, where the Senate was to declare the bill invalid because it conflicted with Lex Caecilia Didia from 98 BCE, which was considered a component of ius legum. This Act banned the introduction of provisions unrelated to each other in a single bill.
Cicero was the first to use the Latin term constitutio in a sense close to ours today. Referring to the mixed form of government, he said that such a system had a great deal of equality, without which people could hardly remain free for a long time. In addition to the essential state facilities, the Romans also had a sense of constitutionalism. Plebs could pass a law binding the entire Roman population. Although this system was replaced by the emperor’s legislative omnipotence, which followed Augustus, the emperor still refused, citing “constitutional” arguments, to adopt extraordinary powers in the field of law and morality.
Attempts to constitutionalise the law in ancient Rome remained unsuccessful, mainly because of the dominance of republican ideology, according to which the people’s will was the supreme law. All these examples show that attempts were made during the republic to limit unlimited legislative power by referring to the unwritten constitution rei publicae. Such an unwritten constitution was based on ius legum and perceived, at least by some (Cicero), as a fundamental right, with the Senate as a judicial body guarding its observance.