Divisions of Roman Constitutional and Legal History

The history of Roman law in antiquity spans a period of more than eleven centuries. Initially the law of a small rural community, then that of a powerful city-state, Roman law became in the course of time the law of a multinational empire that embraced a large part of the civilized world.

Roman history is traditionally divided into three major periods that correspond to Romestyle='font-size: 10.0pt;line-height:110%'>’s three successive systems of political organization: (1) the Monarchy, from the founding of Rome in the eighth century bc to 509 bc; (2) the Republic, from 509 bc to 27 bc; and (3) the Empire, from 27 bc to ad 565.

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G. Mousourakis, Roman Law and the Origins of the Civil Law Tradition, DOI 10.1007/978-3-319-12268-7_1 legal history follows these divisions as the various legal institutions adapted to the type of government in power.

Roman legal history may also be divided into periods by reference to the modes of law-making and the character and orientation of the legal institutions that prevailed in different epochs. In this respect, the following phases are distin­guished: (1) the archaic period, from the formation of the city-state of Rome to the middle of the third century bc; (2) the pre-classical period, from the middle of the third century bc to the early first century ad; (3) the classical period, from the early first century ad to the middle of the third century ad; and (4) the post-classical period, from the middle of the third century ad to the sixth century ad. The archaic period covers the Monarchy and the early Republic; the pre-classical period largely coincides with the later part of the Republic; the classical period covers most of the first part of the imperial era, known as the Principate; and the post-classical period embraces the final years of the Principate and the late Empire or Dominate, including the age of Justinian (ad 527-565).^[1]

Although the above divisions facilitate the study of Roman law, one must recall that Roman law evolved gradually and therefore no distinct lines separate the different stages of its development.

During the early archaic period, Roman society was governed by a body of customary norms with a largely religious character. Their formulation and articu­lation was mainly determined by the priestly college of the pontiffs. Only the pontiffs were acquainted with the technical forms employed in the typical trans­actions of private law and were entitled to offer authoritative advice on questions of law. Resembling the law of other primitive societies, the Roman law of the archaic period was characterized by its extremely formalistic nature. A legal transaction or procedure could not produce its desired effects unless it was performed in accor­dance with strictly prescribed rituals. A momentous event of this period was the codification of the customary norms that governed the life of the Roman citizens by the Law of the Twelve Tables, enacted around 450 bc. This law embodied the first written record of the rules and procedures for the attainment of justice and it entailed a new source of law, in addition to the unwritten customary law. In the years after the enactment of the Law of the Twelve Tables, legal development was based largely on the interpretation of its text, a task carried out by the pontiffs and, in later times, by secular jurists. Moreover, later in this period the office of praetor was introduced (367 bc)—a new magistracy entrusted with the administration of the private law. In the course of time the praetor’s edict became one of the strongest formative forces in the development of Roman law, furnishing the basis for a distinct source of law known as ius praetorium or ius honorarium.

Roman law reached its full maturity in the classical period and this emanated mainly from the creative work of the jurists and their influence on the formulation and application of the law. From the early years of the Principate age the emperors customarily granted leading jurists the right to present opinions on questions of law (ius respondendi) and deliver them by the emperor’s authority. In the later half of the second century it was recognized that when there was accord between the opinions of the jurists who had been granted this right, these opinions operated as authoritative sources of law. Besides dealing with questions pertaining to the practical application of the law, the jurists were also engaged in teaching law and writing legal treatises. The main fabric of Roman law, as we know it today, was established upon the writings of the leading jurists from this period.

In the post-classical period the only effective source of law was imperial legislation, largely concerned with matters of public law and economic policy. Moreover, as jurisprudence had ceased to be a living source of law, earlier juristic works were regarded as a body of settled doctrine. At the same time, custom again played a part as a secondary source of law. During this period, as the body of imperial legislation grew, there emerged the need for the codification of the law. In addition, direction was required for the use of the classical juridical literature—a vast body of legal materials spanning hundreds of years of legal development. The process of codification commenced with the publication of two private collections of imperial law, which appeared at the end of the third century ad: the Codex Gregorianus (ad 291) and the Codex Hermogenianus (ad 295). These were followed by the Codex Theodosianus, an official codification of imperial laws published in ad 438. The process of codification ceased in the middle of the sixth century ad with the great codification of the Roman law, both juristic law and imperial enactments, by Emperor Justinian.

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