Introductory

The Romans called their own law ius civile: the legal order of the Roman citizenry (cives Romani). Like other peoples in antiquity, the Romans observed the principle of personality of law, according to which the law of a state applied only to its citizens.^{^[52]} Thus the Roman ius civile was the law that applied exclusively to Roman citizens.^{^[53]} However, Roman law underwent an important expansion in the course of time.

With the gradual enlargement of the Roman city state and the increasing complexity of legal life, Roman jurisprudence adopted the idea of ius gentium: a body of legal institutions and principles common to all people subject to Roman rule regardless of their civitas. By the introduction of the ius gentium within the body of Roman law, the scope of the law was considerably enlarged. Nevertheless, technically the position remained that some legal institutions were open only to Roman citizens. Such institutions were classified as belonging to the ius civile, while other institutions were regarded as belonging to the ius gentium in the sense that they were applicable to citizens and non-citizens alike. After the extension of the Roman citizenship to all free inhabitants of the empire by the constitution of Emperor Caracalla in ad 212, this technical distinction in effect vanished: in principle every free man within the empire was now a citizen, subject to the same law.

The term ‘sources of law’ denotes the ways in which law is created or comes into being. The Roman jurists, notwithstanding their liking for classification, were never very subtle in their approach to this term and different sources were highlighted as they existed in different historical epochs to reflect their predominance as vehicles of legal development.

Reference may be made to a number of statements in which the sources of Roman law are listed, apparently without any specific order. In his Institutes, the second century ad jurist Gaius states that Roman law consists of statutes (leges), plebiscites (plebiscita), senatorial resolutions (senatus consulta), enactments of the emperors (constitutiones principum), edicts of the magistrates (edicta), and answers of those learned in the law (responsa prudentium)? Gaius’ treatment was adopted by the drafters of Justinian’s Institutes in the sixth century ad, with the exception that the latter make a preliminary distinction between written and unwritten law.^{^[54]}^{^[55]} In Justinian’s textbook the specific sources mentioned by Gaius are subsumed under the category of written law (ius scriptum), while unwritten law (ius non scriptum) or custom is discussed briefly a few paragraphs below.^{^[56]} The view that custom (also referred to as mos or consuetudo) was a source of law can also be found in the work of the first century bc orator and philosopher Cicero, who also included in his list of sources equity (aequitas) and decided cases.^{^[57]} It should be noted, however, that Cicero’s conception of custom differed from that of the drafters of Justinianlang=EN-US style='font-size:10.0pt;line-height:110%'>’s Institutes. Whilst for Cicero the term custom denoted ancestral tradition (mos maiorum) in the context of the Roman ius civile, the same term in the Institutes referred to regional and local variations on the law of the Roman Empire. The omission of custom from Gaius’ and other classical jurists’ accounts can probably be explained on the grounds that these authors did not view custom as a source of law distinct from jurisprudence, but regarded it as being connected with jurisprudence as “a special form of civil law that is founded without writing solely on the interpretation of the jurists.”^{^[58]}

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

Introductory

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