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Sources of Roman law

This post is also available in: Polish (polski)

Gaius was one of the most prominent Roman jurists. He became famous mainly as the author of the Institution of Gaius. In his activity, Gaius was mainly involved in teaching Roman law.

Roman law was developed under different circumstances and under different organs.
comitia) the law was enacted by-laws. During the monarchy, this function was held by kings. They were the so-called royal laws (leges regiae)

The resolutions of the people’s assemblies, called leges, were binding on all Roman citizens. In order to pass a bill, a motion (rogatio) was issued, which had to be submitted 24 days before the vote. The bill was introduced by magistratus, who could be a consul, praetor or dictator. At that time, the magistracy could convene night meetings (contiones) at which the approval (suasiones) of the application was encouraged or it was recommended that it be rejected (dissuasiones). Voting took place at designated assemblies, after obtaining the auspices and reading the motion. In the initial period of its activity, people were voted orally and openly, but over time they began to cast votes using two slates and in secret. One of them was marked with the letters UR (uti rogas), the other with the letter A (antiquo).
leges rogatae or lex lata, so that after the announcement (renuntiatio) become a source of universally applicable law. The procedural requirements still had to be approved by the Senate (auctoritas patrum), which was changed in 339 BCE when the Senate gave approval in advance (ante initium suffragium)

The act consisted of three parts:

  • praescriptio – the part containing the applicant’s name and the date of the people’s assembly
  • rogatio – the part containing the content of the act
  • sanctio – the part containing sanctions in the event of breaking the law

The most important thing was, as is the case now, the last part of the act. And it was precisely because of it that the act could:

  • lex perfecta – impose a sanction of nullity for an act performed against its provisions
  • lex minus quam perfecta – an act performed contrary to its provisions is considered important, but its preparation was punishable by a criminal penalty
  • lex imperfecta – remove any sanctions

The law passed was usually called with the name of the applicant.

Resolutions of the plebeians (plebiscita) were passed at plebeian assemblies, under the chairmanship and at the request of plebeian tribunes. In the archaic period, they concerned only the plebeians themselves. Only from 287 BCE after the enactment of lex Hortensia plebeian resolutions were equated with leges and began to play a fundamental role in shaping Roman law.

The Senate adopted resolutions at meetings convened by the representative of the magistrate who chaired the meeting (senatum cogere). The meetings were held in the Curia.
A preliminary lecture was delivered by the rapporteur (verba facere). Then, individual senators were commented on. The chairman called for an opinion, and only those members of the senate who held the office were entitled. The order of speaking depended only on the chairman, however, as a rule, the first to speak in the debate was the first senator on the senatorial list (princeps senatus). After the deliberations, voting took place. They were carried out in such a way that each of the senators, upon the summons of the chairman, had to go to one side or the other side of the room, depending on whether he was for or against the motion. The chairman determined the result of the vote. It was done without counting, however, if there were any objections to the differences in the number of votes for each option, then he ordered the counting of votes.
Senate resolutions did not become legally binding until Augustus’ reign. From that time on, they began to gradually displace the previous resolutions of the commoners and laws, leading to the loss of importance of the congregation. However, over time, also the resolutions of the senate lost their legislative power in favour of the imperial authority.

The law could also be established by a praetor in the form of an edict. His influence on legislation was born in 367 BCE when he was assigned the function of administering justice (iurisdictio).
As praetors rarely had adequate legal knowledge, it happened that they used the advice of eminent lawyers. And so, next to the praetor, there was the so-called consilium, his personal staff of advisers. With the advice given by this advisory body, the praetor, however, was not bound. In some cases, however, their private opinion was binding on the official.
The praetors had the right to issue edicts (ius edicendi), which were initially announced orally and later in writing. At that time, they were announced on a whiteboard (album) in a public place. In the edict, the praetor presented the rules that he would follow during his term of office.
The Praetor’s Edict consisted of two parts:

  • normative – information about possible granting of process protection in specific situations (actiones, exceptiones, missiones or restituniones)
  • formal – all formulas used by the parties to the proceedings

Initially, the praetors were not bound by edicts issued earlier, but in 67 BCE the law was completely changed. The next praetor usually took over some fixed part of the edict (edictum tralaticium) to which he could add his own provisions (edicta nova).
The activities of the praetors were the most marked in the development of civil law. In this respect, they mainly dealt with explaining the provisions of this law, filling gaps and correcting incorrect provisions.
Apart from praetors, edicts were also entitled to issue curules and quaestors.

The last form of law-making was the emperor, who exercised his legislative function through imperial constitutions.

  • Edicts (edicta) – the legal force of edicts were limited either to a certain territory or to the entire country. The edict was issued by the emperor on the basis of his ius edicendi.
  • Mandates (mandata) – Written instructions for governors of the imperial and senate provinces and other imperial officials. Most often they contained provisions of an administrative nature.
  • Decrees (decreta) – settlements of disputes that were brought before the imperial court. Supported by the authority of the emperor, they took on the features of a binding interpretation.
  • Rescripts (rescripta) – The Emperor’s answer to an inquiry made by imperial officials, judges or private persons on legal matters.

From 235 CE mandates and decrees lost their importance mainly due to the formation of the dominate. Due to the factor shaping the emperor’s absolute power, the edicts gained the greatest importance.

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