A LEGAL HISTORY OF ROME Roman law is one of the most remarkable and enduring contributions to civiliza- tion: many of the familiar norms which regulate our social and economic lives in the Western world originated in ancient Rome, and the Roman legal institutions comprise a vital part of the background of several contemporary legal systems. A study of Roman legal history also provides valuable insights into the origins and progress of law as a social and cultural phenomenon. Knowledge of ancient Roman law therefore constitutes an essential component of a sound legal education as well as the education of a student of history. This book equips both lawyer and historian with a complete history of Roman law, from its beginnings c. 500 BC through to its rediscovery in Europe, where it was widely applied until the eighteenth century. Combining a law specialist’s informed perspective of legal history with a socio- political and cultural focus, it examines the sources of law, the ways in which these laws were applied and enforced, and the ways the law was influenced and progressed, with an exploration of civil and criminal procedures and special atten- tion paid to legal science. The final chapter covers the history of Roman law in late antiquity and appraises the move towards the codification of law that culminated in the final statement of Roman law: the Corpus Iuris Civilis of Emperor Justinian. Throughout the book, George Mousourakis highlights the relationship between Roman law and Roman life by following the lines of the major historical develop- ments. Including bibliographic references and organized accessibly by historical era, this book is an excellent introduction to the history of Roman law for students of both law and ancient history. George Mousourakis teaches legal history and comparative law at Niigata University, Japan, and at the University of Auckland, New Zealand. He practised law in Greece, obtained his MJur and PhD in the UK, and has taught law at universities around the world. As well as his work on legal history and comparative law, he has published extensively in the areas of criminal law and jurisprudence. A LEGAL HISTORY OF ROME George Mousourakis First published 2007 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN Simultaneously published in the USA and Canada by Routledge 270 Madison Ave, New York, NY 10016 Routledge is an imprint of the Taylor & Francis Group, an informa business This edition published in the Taylor & Francis e-Library, 2007. “To purchase your own copy of this or any of Taylor & Francis or Routledge’s collection of thousands of eBooks please go to www.eBookstore.tandf.co.uk.” ©2007 George Mousourakis All rights reserved. No part of this book may be reprinted or reproduced or utilized in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging in Publication Data Mousourakis, George. A legal history of Rome/George Mousourakis. p. cm. Includes bibliographical references and index. 1. Roman law–History. 2. Civil law–History. 3. Rome–History. I. Title. KJA147.M685 2007 340.5'409–dc22 2006100344 ISBN 0-203-08934-0 Master e-book ISBN ISBN10: 0–415–40893–8 (hbk) ISBN10: 0–415–40894–6 (pbk) ISBN10: 0–203–08934–0 (ebk) ISBN13: 978–0–415–40893–6 (hbk) ISBN13: 978–0–415–40894–3 (pbk) ISBN13: 978–0–203–08934–7 (ebk) CONTENTS Preface ix Abbreviations xi Introduction 1 1 The monarchy and early Republic: the historical, social and constitutional background 3 The origins of Rome 3 Early Roman society 4 Economic conditions 6 The political organization of the regal period 6 The coming of the Republic 8 The Roman expansion in Italy 9 The republican constitution 10 2 The monarchy and early Republic: the sources of law 19 Introduction 19 Customary law and the laws of the kings 22 The law of the Twelve Tables and the emergence of legislation 24 Interpretation and the origins of jurisprudence 27 3 The monarchy and early Republic: the administration of justice 31 Civil procedure 31 Criminal law and criminal justice 35 4 The late Republic: the historical, social and constitutional background 39 Rome’s expansion in the Mediterranean world 39 v CONTENTS Internal developments during the late Republic 41 The crisis and fall of the Republic 43 5 The late Republic: the sources of law 49 Introduction 49 The edicts of the magistrates 52 Legislation 57 The jurisprudence of the late Republic 59 6 The late Republic: the administration of justice 65 Civil procedure: the formulary system 65 The course of the formulary procedure 70 Extraordinary praetorian remedies 74 Criminal justice 76 The development of a standing court system 77 7 The Principate: the historical, social and constitutional background 83 The reforms of Augustus 83 Organs of the imperial administration 85 The senate, the magistrates and the assemblies 87 The empire in the first and second centuries AD 89 The social classes 92 The army 94 The expansion of the Roman citizenship 95 The crisis of the third century and the end of the Principate 97 8 The Principate: the sources of law 100 Introduction 100 The decline of the comitial legislation 103 The magisterial law 104 Legislation by the senate 105 Imperial law-making 107 The jurisprudence of the Empire 110 The ius publice respondendi 111 The work of the jurists 112 The major jurists 114 Defining features of classical Roman jurisprudence 120 vi CONTENTS 9 The Principate: the administration of justice 126 Introduction 126 Civil procedure 126 The formulary procedure 126 The cognitio extraordinaria 127 The administration of criminal law 129 The jurisdiction of the senate 131 Imperial jurisdiction 131 10 The Dominate: the historical, social and constitutional background 135 Introduction 135 The reforms of Diocletian 135 The empire of Constantine the Great 139 The emperor and his officials 142 The senate and the old magistrature 145 The social structure of the late Empire 146 The final years of the Roman Empire 151 The collapse of the Roman state in the West 153 The survival and transformation of the empire in the East 154 11 The Dominate: the sources of law 157 Introduction 157 Imperial legislation 160 The jurists’ law 162 The law schools 163 Late imperial juridical literature 165 Trends in post-classical law 167 12 The Dominate: the administration of justice 170 The court system 170 Judicial protection of the lower classes 171 The civil procedure 173 Resolving private disputes through arbitration 175 Criminal law and procedure 176 The criminal justice process 176 vii CONTENTS 13 The Dominate: the codification of Roman law 179 The first codifications 179 The Theodosian Code 180 The Germanic codes of Roman law 181 The codification of Justinian 183 The first Code 183 The Digest or Pandects 184 The Institutes 187 The second Code 188 The Novels 189 The Corpus Iuris Civilis 190 Conclusion 190 Epilogue 192 Notes 196 Select bibliography 262 Index 269 viii PREFACE From the vantage point of history, Roman law is one of Rome’s most remarkable and enduring contributions to civilization. In no other field of human endeavour have the Romans a greater claim to lasting fame than in the creation of a sophisti- cated legal system that constantly adapted itself to an ever-changing and developing society. The Western world derived from Roman law most of the basic norms and institutions concerning the organization and regulation of socio-economic life that are essential for guaranteeing the ideal that we refer to as the ‘rule of law’. As Roman law constitutes an important part of the intellectual background of contem- porary law, the study of its history is a valuable component of a sound legal education. Without the knowledge derived from such study it is impossible to fully understand the evolution and functioning of contemporary legal systems and insti- tutions rooted in Roman law. From the perspective of the historian of civilization, the study of Roman legal history can provide valuable insights into the origins and progress of law as a social and cultural phenomenon. The history of Roman law is divided into two periods. The first period spans more than a thousand years, from the formation of the city-state of Rome to the codification of Justinian in the sixth century AD. The second period, although beginning in the sixth century, did not really become important until the eleventh century, when Roman law was ‘rediscovered’ in the West and made the object, first of academic study and then, in the course of time, of far-reaching reception in large parts of Continental Europe. The present work focuses on the history of Roman law in antiquity. It examines the nature and development of law-making and the sources of law, the mechanisms whereby the diverse sources were effectuated, and the way each legal source influenced the progress of the law. Special attention is accorded to the development of Roman legal science, which emerged as the most productive element in Roman legal life by the end of the first century BC. And since the Romans tended to shape their legal rules in terms of procedural techniques, rather than in terms of general and abstract norms, the book also explores the evolution and main features of civil and criminal procedure, and elucidates the implementation of legal judgments. The last chapter of the book covers the history of Roman law in late antiquity and appraises the move towards the codification of law that culminated in the final statement of Roman law: the Corpus Iuris Civilis of ix PREFACE Emperor Justinian.