Customary Law and the Leges Regiae

The earliest source of Roman law was unwritten customary law, comprising norms (referred to as mores maiorum: the ways of our forefathers) that had grown from long-standing usages of the community, as well as from cases that had evolved from disputes brought before the clan patriarchs or the king for resolution.

However, archaic Roman law was not marked by uniformity, since the two classes, the patricians and the plebeians, which made up the bulk of the population, appear to have been distinguished not only by the possession of different political privileges but also by the possession of different systems of customary law.^{^[59]} A further divergence of practice in the primitive society out of which the city-state of Rome gradually evolved derived from the considerable amount of autonomy in legal relations that existed in the clans (gentes) out of which the earliest Roman community was formed. One might perhaps say that the earliest phase of Roman history is marked by a fundamental dualism: the civitas (in the sense of state or political community) on the one hand and the gentes on the other. Rome evolved politically as a unitary state when the gentile organization declined and the sense of unity among the population intensified. Thus, the initially diverse customs of the different gentes underwent a process of assimilation that engendered a common body of customary norms for governing the whole community. Furthermore, as the Roman state evolved, an attempt was made to create a uniform system by making the law of the patricians approximate as closely as possible to that of the plebeians.

Although the Romans themselves never analysed the concept of customary law and the classical jurists did not regard custom as a distinct source of law, there is no doubt that Roman law was almost entirely customary in its origin.

Rome owed to custom an essential part of her family organization, such as the norms prescribing the rights and duties of family members and the position of the head of the family (paterfamilias); the rules regulating the formation of marriage; the earliest forms of property ownership and transfer; and a great deal of the formalities employed in legal procedure. Many of the relevant customary norms went back to the remote past of the Roman people, while others emerged later, during the formative years of the Roman city-state. The rules and procedures created in this way were characterized by extreme formalism, indeed ritualism: the casting of all juridical acts into an unchangeable form where successful completion depends upon strict adherence to a set ritual engaging certain words or gestures. This kind of formalism has a socio- psychological explanation: public opinion and, subsequently, public authority, refused to recognize rights or allow their enforcement, unless the act that created them had been performed with such publicity and formality as may draw the attention of society and leave no possibility of doubt as to its existence. In this respect it appeared fitting that the material signs (words or gestures) that accompanied the relevant act should be so precise that no doubt could arise with respect to its nature and object. It should be noted, further, that for a long time law (ius)^{^[60]} was hardly distinguished from religion, being entirely a matter of ritual, and that the pontiffs (pontifices), the priests who were the first regulators of customary law, maintained in it this ritual and symbolic character.^{^[61]}

In the course of time, as Roman society continued to grow both in numbers and complexity, the role of custom as the principal source of law gradually diminished, for the customary norms, often vague and limited in scope, could not provide the certainty that a more intricate system of social and economic relations required. Thus, with the rise of the Roman city-state, the need emerged for the development of all-embracing legislation, i.e.

the organization of law by public authority. While sanctioning the majority of customary norms already in existence, the state reserved to itself the right of making law in the future, and this opened the way to the ascendancy of written law (ius scriptum), initially in the form of statute. In later times, when law became subject to authoritative interpretation by the jurists, custom ceased to be regarded as a formal source of law having been incorporated into a variety of other sources, such as statutory law, the edicts of the magistrates and the responses of the jurists. However, customary norms continued to indirectly affect both the content and scope of laws. For instance, many transactions of private law became enforceable by actions with respect to which the judge was instructed to take into consideration matters relating to good faith (bona fides), a legal concept relating to the enforcement by legal means of what was generally viewed as social or moral obligations. Furthermore, it must be noted that the Romans did recognize local custom (mos regionis), especially in connection with customary usages prevailing in the provinces. In the post-classical period, well-established local customs were acknowledged as a supplementary source of law and exercised a considerable influence on both legislation and the administration of justice.

In the archaic period, legislation in the modern sense and as the Romans understood it in their politically mature eras, was practically unknown. The law was mainly construed as a sacred custom and thus not subject to change by direct legislative means. The classical jurist Pomponius describes the state of the law during this period as featuring a series of laws, referred to as ‘laws of the kings’ (leges regiae), which supposedly emanated from some of the early kings. According to Roman tradition, these laws were collected and recorded at the end of the regal era by Sextus Papirius, a pontifex maximus.^{^[62]} The ius civile Papirianum, as this collection was known, if it ever existed, is lost to us, but a number of rules ostensibly promulgated by kings have been preserved in the works of later Greek and Roman authors.

The leges regiae were probably little more than a gloss on the prevailing customary law that assumed the form of declarations composed by the kings and publicly announced during an assembly. The surviving fragments of these laws, as far as they are authentic, attest to the close connection between law and religion that marks the character of archaic law. For the most part, the kings’ laws were prescriptive or condemnatory in character. Examples of prescriptive laws, i.e. laws prescribing ‘correct’ behaviour, include a law of Romulus, Rome’s first king, prohibiting a wife from divorcing her husband^{^[63]}; and a law of King Numa according to which a pater familias could not sell a son to slavery after he had given him permission to marry.^{^[64]} Condemnatory laws, on the other hand, laid down penalties for various forms of wrongdoing. These penalties sometimes consisted of private redress against the wrongdoer; e.g. retaliation (talio) was allowed in some circumstances as satisfaction for certain forms of personal injury. However, offences of a particularly serious nature, such as certain religious crimes, entailed more public forms of punishment, including ritual execution. Such punishments were primarily expiatory in character: they were aimed at eliminating the state of collective impurity created by the commission of the offence.^{^[65]}

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Source: Mousourakis G.. Roman Law and the Origins of the Civil Law Tradition. Springer,2015. — 339 p.. 2015

Customary Law and the Leges Regiae

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