Legislation

We saw in chapter 3 that during the republican period there were three legislative assemblies in Rome: the comitia centuriata, the comitia tributa and the concilium plebis.

the passing of the lex Hortensia the concilium plebis gained in importance and tended to become the legislative assembly par excellence, whilst the comitia centuriata remained the senior elective assembly. As a result, the plebiscita gradually replaced the leges centuriatae as the main form of legislation and the term lex was often used to denote aplebiscitum.'

A law could be proposed only by a magistrate who had the right to summon the assembly (ius agendi cum populo), such as a consul or a praetor. The magistrate's legislative proposal or bill was termed rogatio legis and the relevant laws were called leges rogatae. The leges rogatae were distinguished from the leges datae, i.e. the laws which were introduced by magistrates on special occasions after obtaining the permission of the senate. In the category of leges datae belonged, for example, the various leges coloniae and leges provinciae by which new colonies and provinces were founded. According to established constitutional custom, a bill had to be published at least three weeks before it was formally submitted to the assembly so that its contents could be known in advance (promulgatio, promulgare rogationem)} During this period the citizens, in informal meetings (condones), could discuss the bill and recommend changes, or even its withdrawal, to the magistrate who proposed it.

¹           See on this A. Watson, Law Making in the Roman Republic, Oxford 1974, ch. 1; H. F. Jolowicz and B. Nicholas, Historical Introduction to the Study of Roman Law, 3rd edn, Cambridge 1972, 86-87. On the law-making process consider also A. A. Schiller, Roman Law: Mechanisms of Development, New York 1978, 221 ff; O. F. Robinson, The Sources of Roman Law, London 1997, 29 ff; O. Tellegen-Couperus, A Short History of Roman Law, London and New York 1993, 19 ff, 49-50; W. Kunkel/M. Schermaier, Römische Rechtsgeschichte, Cologne 2001, 45 ff; F. Wieacker, Römische Rechtsgeschichte, Munich 1988, 400 ff; A. Guarino, Storia del diritto romano, Naples 1996, 289 ff; Μ. Talamanca (ed.), Lineamenti di storia del diritto romano, Milan 1989, 226 ff.

²           See A. A. Schiller, ibid, 235 ff.

³           The period between the formal enactment of a law and its coming into force was termed vacatio legis.

as required for its subsequent implementation.

A law was made up of three parts: (a) the preamble (praescriptio legis), which included the name of the magistrate who proposed it (and after whom it was named), the place and time of its enactment, and the name of the century (centuria) or tribe (tribus) which cast the first vote in the proceedings;^[581] [582] (b) the main text of the law (rogatio), usually divided into sections; and (c) the ratification of the law (sanctio)? The sanctio specified the penalties that were to be imposed if the law was violated and stated the rules governing the relation between the new statute and earlier and future legislation.^[583] A distinction was drawn between 'perfect laws' (leges perfectae), 'imperfect laws' or laws without any sanction at all (leges imperfectae) and 'less than perfect laws' (leges minus quam perfectae). A law was called perfect when infringement of any of its provisions resulted in the nullification of any legal act that took place under it.^[584] The infringement of an imperfect law, by contrast, did not affect the validity of the relevant legal acts.^[585] The violation of a less than perfect law did not render the relevant legal act invalid, but the transgressor was liable to punishment. Moreover, laws containing unrelated or superfluous provisions were referred to as leges saturae, or per saturam, and were forbidden under early law.

As was noted in chapter 4, most of the legislation of the republican period was concerned with matters of public law and only a few statutes were passed directly relating to private law. Of the latter statutes probably the most important were the lex Atinia (240 BC), which excluded stolen things (res furtivae) from usucapio (i.e. the acquisition of ownership through possession of a thing for a certain period of time); the lex Aquilia (286 BC), which set general rules of liability for damage caused to another person's property; the lex Laetoria de minoribus (second century BC), aimed at protecting persons under twenty-five years of age from fraud; the lex Voconia (169 BC), which imposed limitations upon the testamentary capacity of women; and the lex Falcidia (40 BC), specifying the amount of legacies which could be bequeathed.