Legislation

As previously noted, in the period following the enactment of the lex Hortensia (287 bc) the term lex in a broad sense denoted not only a statute voted in the comitia on the proposal of a higher magistrate but also a plebiscitum passed in the concilum plebis.

This period is rich in statutory enactments, but the leges that were passed encroached on the field of private law only with hesitation and within narrowly defined limits. As it was not easy to frame statutes in such a way as to avoid infringing long-established legal principles and customs (especially those embodied in the Law of the Twelve Tables), changes in this field were effected indirectly, primarily by means of praetorian action and juristic interpretation. Changes in the field of public law, on the other hand, were difficult to effect indirectly, since these were largely dictated by new situations or socio-political developments. It is thus unsurprising that the great majority of the statutes enacted during the later republican epoch fell in this field. Some statutes had a hybrid character, having a political basis but at the same time affecting the private relations of citizens. To this category belonged, for example, statutory enactments concerned with the distribution of land, release from debt, testamentary benefits and court procedure. As a whole, legislation was employed to deal with specific problems rather than to establish rules and principles governing social policy or constitutional arrangements in a comprehensive and permanent manner. Statutes were enacted, for example, to create new magistracies or to define the nature of public crimes and the procedures for dealing with them. In the field of private law statutes were relied on as a means of supplementing or limiting private rights, or instigating changes in civil procedure when juristic interpretation or magisterial action were deemed unable to produce the desired effect.

Among the statutes relating to private law of special importance were: the lex Aquilia (286 bc), which set general rules of liability for damage caused to another person’s property; the lex Atinia (second century bc), which excluded stolen property (res furtivae) from usucapio (the acquisition of ownership through possession of a thing for a prescribed period of time); the lex Laetoria de minoribus (passed early in the second century bc), which aspired to protect persons under 25 years of age from fraud; the lex Cincia de donis (204 bc), which prohibited gifts in excess of a certain (unknown) amount with the exception of those in favour of

over private causes.

Afterwards, when Appius Claudius had pronounced and fixed the form of these actions, Gnaeus Flavius, his secretary, the son of a freedman, stole the book and delivered it over to the people, and this service was so gratifying to the people that he was made tribune of the plebs, as well as senator and curule aedile. This book, which contains the actions, is called ius Flavianum, as that other, the ius civile Papirianum; nor did Gnaeus Flavius add anything of his own to the book. Since, with the expansion of the state, certain forms of action were lacking, not long afterwards Sextus Aelius compiled additional actions and gave the book to the people which is called the ius Aelianum.”

near relatives and certain privileged persons; the lex Voconia (c. 169 bc), which imposed limitations upon the testamentary capacity of women; and the lex Falcidia (40 bc), which specified the amount of legacies that could be bequeathed.

2.3.1.1 The Role of the Senate in the Legislative Process

As previously observed, during the later republican period the senate became the centre of government and the most important stabilizing factor in the republican constitution. In domestic administration it was consulted by the magistrates on all important matters of the state; in foreign policy it directed negotiations with foreign powers, concluded treaties and appointed commissioners to oversee the organization of conquered territories; in finance it determined the use of public revenues and authorized public works; and in military affairs it prescribed the sphere of operations of the military commanders and their supplies of men and funds.

Even though under the constitution the senate had no direct power to enact laws, it played an increasingly active role in the legislative process, largely by virtue of its influence over the magistrates.

As was previously noted, it was customary for the higher magistrates of the state to seek the senate’s opinion on legislative proposals before submitting them to the assembly. Although the magistrates had the liberty to ignore such opinion, so great was the senate’s power and prestige that they would normally defer to its authority and follow its lead. Ordinarily, the senate thoroughly discussed the drafts of legislative proposals and, if necessary, amended these drafts in accordance with the views of the senate’s majority. A finally approved draft would then be incorporated in a resolution (senatus consultum) advising the magistrate concerned to submit it to the assembly, whose subsequent action virtually amounted to nothing more than a formal ratification of the terms of the senatus consultum. In this way, it was possible for the senate to bring about what amounted to indirect legislation as a result of which changes in the law could be effected, even though a senatus consultum could not be put into effect until it was adopted by a magistrate and had technically become part of a statutory enactment. Furthermore, in circumstances of emergency the senate could encroach on the power of the assemblies by claiming the right of suspending the constitution and of overriding the law by issuing a special resolution (senatus consultum ultimuirif^{^[99]} that authorized the consuls to apply any extraordinary measures deemed necessary to avert the danger.

Besides playing a part in the formulation of legislative proposals, the senate exercised a lawmaking influence by advising the praetors and other jurisdictional magistrates to implement certain lines of policy. In such cases its recommendations would normally be incorporated in the edict (edictum perpetuum) issued by each magistrate at the commencement of his year of office. In this way, the senate contributed to the development of magisterial law (ius honorarium), i.e.

the law that derived its formal force from the authority of magistrates, as opposed to the ius civile construed as the law that derived its formal force from statute (lex) and juristic interpretation (interpretatio).

In the last century of the Republic, when the Roman state was embroiled in a political and administrative crisis and the influence of the assemblies declined, it sometimes happened that a legislative proposal sanctioned by the senate was not presented to the people, but immediately entered into force. Moreover the senate at times assumed the power to declare statutes null and void based on some alleged irregularity or violation of an established constitutional principle.^{^[100]} As the government transformed into the bureaucratic administration of a world empire during the early Principate era and the mode of creating law by vote of the people gradually withered away, the legislative function passed to the senate, whose enactments thus acquired the full force of laws.

2.3.2

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

Legislation

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