Sources Notes

IUS NON SCRIPTUM – the custom question

• Twelve Tables are the first example of actual written law. With the exception of Royal Decrees (which did not quite resemble a lex), law was undeclared in the archaic period.

  • Watson says that royal legislation was not impossible, but was unlikely.

  • Logical conclusion is that it was determined by custom i.e. accepted practices of what ‘the done thing’ was.

  • The question is whether these practices could be considered legally binding.

• Justinian recognises the existence of ius non scriptum at I.2.3: “like the Greeks, our law is both written and unwritten”. Justinian sees the law as binding – I.2.9 – but it is possible that this understanding of its binding nature is a post-Classical one.

  • Justinian points out at D.1.3.32.1 that if statute is to be binding only because it was approved by the people, so too should custom be binding because it has been similarly approved but without the formal legislative process.

  • Bear in mind that Justinian lived in a time where there was a vast body of written law that was deemed excellent.

• Gaius makes no mention of unwritten law and its binding nature.

  • It may be argued that during the Classical period where Imperial power was rising, it would have been improper to suggest that it law could be merely customary.

  • MacCormack argues that custom was not a source of law, but that it provided a historical setting for the law to develop.

• There is debate over whether a custom could abrogate an opposing lex. Justinian seems to suggest it could in D.1.3.32.1, but later writings disagree. It is highly improbable that custom could take precedence over lex.

• The jurists – responsa prudentium (see below). Through the ius respondendi, the jurists had a lot of legal power, although not official.

  • Thomas argues that the jurists interpreted ‘the law’ in a manner entirely consistent with custom. The interpretation and its legitimisation through magistrates etc. turned custom into law.

IUS SCRIPTUM

• Note that while this list is extensive, legislation was of very little importance during the Republic. It makes sense that legislation increased during the Empire because of its bureaucratic nature.

• Leges

  • Enacted by one of the comitia (comitia centuriata, comitia curiata, comitia tributa) – called leges rogatae. Note that comitial legislation died out in the first century of the Empire.

  • There were also leges datae, which put in place legal systems for colonies etc.

  • Recently passed leges superseded older ones – doctrine of implied repeal.

  • At first leges were not new law, but existed merely to clarify the law and were intended to work in harmony with whatever law did exist.

  • There was a tripartite structure of leges which gave them each different forces.

  • NOTE: legislation such as this had little in Roman private law. Most legislation affected realms of public law such as dealing with constitutional matters or creating criminal courts etc. Private law was governed much more by edicts.

  • The Twelve Tables:

    • The first declaration of law. Roman equivalent of the magna carta. Huge deal – Cicero says children would recite them in school. The tale of their creation is a romantic one and may be something of a legend

    • Settled a political crisis in which the plebs were unhappy that the law not certain/transparent. By modern rule of law standards this would be entirely unacceptable. (The lower class being uncertain of the law was a persistent problem in Rome).

• Plebiscita

  • Resolutions made in the comsilium plebis. These were binding on all after the passing of the lex Hortensia in 287BC – previously, they were binding only on the plebs (lower class, as opposed to the higher class patricians).

• Magistratum edicta – THE PRAETOR’S EDICT

  • Issued by consuls, praetors and curule aediles detailing how they intended to exercise their power while in office. They detailed when a remedy would be given in a particular case. They formed the ius honorarium but tried hard not to offend the ius civile (Papinian says that it supports, supplements and corrects the ius civile).

  • The urban praetor’s edict was arguably the most important in the overall development of the law. He had vast power:

    • For almost three centuries his edict was the sole source of new law. The formulary system was the source of his power, because it was not rigid like the previous system of legis actiones. It allowed him to create new areas of law, because the simplicity of the formula could be easily adapted – this was not the case for legis actiones.

    • It was predicated on the belief inherent to the formulary system that each cause of action should have its own respective form of action. The praetor had control over the form of action, and so essentially controlled the available causes of action.

    • By his control of the procedure, the praetor could change the law by granting new remedies etc. The party did not have to claim a right at civil law, but merely convince the praetor to grant a remedy. In modern law we think in terms of rights – the mantra is ‘where there is a right, there is a remedy’. This was not so in Roman law – they thought in terms of remedies. While on the surface the praetor was merely granting a new remedy, he was in fact creating rights and making new law. The existence of a remedy was indicative of a right.

    • The actual substantive effect of the praetor’s edict will be discussed in the relevant areas of law, but this highlights the framework in which he worked.

  • Much passed from praetor to praetor, forming a ‘core’ to the edict.

  • The role changed as the imperialistic nature of the Empire became obvious – the praetor would be someone commended by the Emperor and likely to issue an agreeable edict.

  • Finally in around 135AD the edict was no more when Julian condensed the content and set it in stone as to what would be available. Sole power would lie in the Emperor, essentially. This shows the Emperor closing in and paved the way for the Dominate.

• Senatusconsulta

  • The...

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