Sources of law in the archaic period

Many of the characteristic institutions of Rome (such as the Senate and the comi- Ua centuriata) had emerged during the Monarchy and had survived the expulsion of the Kings in 510 BC, so had early Roman law.

2.1.1 Custom

Custom was lus non scriptum—law that was 'not written down'. It consisted of those practices so firmly established as to have acquired obligatory force. The recognition of custom, however, was hardly an exact science. Roman jurists were later to debate whether custom could be properly termed 'law', or whether it was only indirectly binding, i.e. needing formal recognition through juristic interpretation or some other agency.

But there is no doubt that Roman law was almost entirely customary in origin. Many of the most important and long-lasting customs in the realm of civil law were concerned with the family—its creation, structure, and operation. For exam­ple, custom regulated the formation of marriage, the rights and duties of family members, and the position of the paterfamilias (the head of the household). And some of the basic notions and procedures in Roman property law originated in custom, e.g. the formal mode of conveyance, mancipatio (see 7.1.1). Later, when law became subject to authoritative interpretation by the pontiffs and jurists, and tended to be written down, custom virtually ceased to be a formal source of law: ‘Custom was important in early times before the Twelve Tables and was recognized in the codification of Justinian, but in between, it scarcely existed, thanks to the role of the jurists’ (Watson, Spirit of Roman Law, 60). Nevertheless, custom con­tinued to influence the law, albeit as an indirect source, particularly in the later Eastern Empire (see 2.4.3.2).

2.1.2 Royal decrees

The decrees of the Kings (leges regiae) had direct binding force as law, but doubt exists about the manner and extent of this form of primitive legislation. It seems that decrees were made periodically throughout the regal period, sometimes in sub­stantial numbers, as in the reigns of Romulus and Servius Tullius. However, they were probably no more than a gloss on the main, custom-based body of the law. How were these decrees made? Let Pomponius, a jurist and legal historian of the second century AD, be our guide:

Pomponius, Manual, sole book:... The fact is that at the outset of our civitas, the citizen body decided to conduct its affairs without fixed statute law or determinate legal rights; everything was governed by the kings under their own hand. When the civitas subsequently grew to a reasonable size, then Romulus himself, according to the tradition, divided the citizen body into thirty parts, and called them curiae on the ground that he improved his curatorship of the commonwealth through the advice of these parts. And accordingly, he himself enacted for the people a number of statutes passed by advice of the curiae... his successor kings leg­islated likewise. All these statutes have survived written down in the book by Sextus Papirius, who was a contemporary of Superbus... (D.1.2.2.1-2.)

(Civitas: State.)

Pomponius, writing some 900 years after the reign of Romulus, is hardly a reliable guide, but is the best that we have. His account has been doubted. The Papirian com­pilation was possibly drawn up by another Papirius (Gaius), the first Chief Pontiff. It may even have been a much later compilation. On the possibility of the actual exist­ence of the leges regiae, see Watson, A., 'Roman Private Law and the Leges Regiae' (1972) 62 JRS, 100-5, where the author argues, contrary to mainstream scholarly opinion, that the idea of legislation existing in the time of the Kings is not implau­sible, even though it cannot be proven; see also Watson, Twelve Tables, 3-8.

The reputed royal decrees had a predominantly religious character, the appease­ment of the gods being clearly discernible as the motivating factor behind many of the commands (see Tellegen-Couperus, Short History, s. 3.2). For example, no funeral rites were to be performed for a man struck by lightning—it was presumed that Jupiter, the chief god, had killed him. The decrees were mainly prescriptive or condemnatory. The prescriptive laws prescribed 'correct' behaviour. For example, Numa is alleged to have decreed that no one should sprinkle wine on a funeral pyre. The condemnatory laws, on the other hand, laid down severe penalties for various wrongs. These penalties sometimes consisted of self-help or private redress against the wrongdoer, e.g. retaliation (talio) was allowed in some circumstances as satisfaction for certain types of personal injury. The most serious wrongs were punished by more public forms of sanction, including ritual execution. One such offence, parricidium (killing one's ascendants), was regarded as a heinous crime and was punished in a horrific manner:

Modestinus, Encyclopaedia, book 12·. According to the custom of our ancestors, the punish­ment instituted for parricide was as follows: A parricide is flogged with blood-colored rods, then sewn up in a sack with a dog, a dunghill cock, a viper, and a monkey; then the sack is thrown into the depths of the sea. (D.48.9.9pr.)

Whom should we 'credit' with the invention of this imaginative form of execution? It is not clear whether 'our ancestors' refers to Rome's earliest days or some later period.

For a very good account of the leges regiae, see Cornell, T., The Beginnings of Rome: Italy and Rome from the Bronze Age to the Punic Wars (c. 1000-264 B.C.) (1995).

2.2