The Customary Origins of Roman Law

The early Romans called their own law ius Quiritium, which is a variation of the term Quirites used to address Roman citizens in the comitia.

In later times this law was referred to as ius civile, indicating that it was reserved for the Roman citizen body (cives Romani). Like other ancient peoples, the Romans observed the principle of the personality of the laws, according to which each person lived by the law of the community to which he belonged.^{^[4]}

The earliest source of Roman law was unwritten customary law, comprising norms (referred to as mores maiorum: the ways of our forefathers) that had grown from long-standing usages of the community, as well as from cases that had evolved from disputes brought before the clan patriarchs or the king for resolution. However, archaic Roman law was not marked by uniformity, since the two classes, the patricians and the plebeians, which made up the bulk of the population, appear to have been distinguished not only by the possession of different political privileges but also by the possession of different systems of customary law.^{^[5]} A further divergence of practice in the primitive society out of which the city-state of Rome gradually evolved derived from the considerable amount of autonomy in legal relations that existed in the clans (gentes) out of which the earliest Roman community was formed. Legal development was thus marked by a process of gradually increasing unification: first, the customs of the clans were merged in the customs of a state; then, an attempt was made to create a uniform system by making the law of the patricians approximate as closely as possible to that of the plebeians. It is uncertain when the smaller political units out of which Rome was formed became so thoroughly marshalled under the rule of a common government that the customs of the clans were made to conform to the rules set down and enforced by a single superior authority.

On the other hand, Roman tradition does supply a date for the period at which an attempt was made to secure a uniform system of law binding on both patricians and plebeians alike. This traditional date is comprised in the years 451-449 bc—the years which the Romans believed to have witnessed the creation of the Law of the Twelve Tables, the first systematic compilation of Roman law.

Similar to other primitive communities, much of the customary law of archaic Rome developed from a belief in the omnipresence of the gods and their constant interest and interference in human affairs. It is thus unsurprising that many of the norms and formalities employed in legal life reflected a strong religious influence. For instance, a litigant’s pleading in a civil suit took the form of a religious ritual, every word and cadence of which had to be learn from a priest. Furthermore, it was believed that grave wrongdoings could invoke the wrath of the gods and entail misfortune for the entire community. Such wrongdoings were deemed to render the offender impious and the ensuing punishment was expiatory in character: its purpose was to restore the state of harmony (amicitia) between the community and the gods (the most severe form of atonement was the sacrifice of the offender on the altar of the deity whom he had offended). Even in later historical times, when the process of secularization of Roman law had reached an advanced stage, Rome preserved many traces of these primitive religious beliefs and practices. They can be detected in, among other things, the respect for the auspices, the maintenance of the cumbrous forms of the old system of civil procedure (legis actio) and the custody of these forms by the priestly college of the pontiffs, who also served as interpreters of the law.

Notwithstanding the religious significance of early legal norms, the Romans themselves believed that from as early as the time of the kings a distinction began to be made between the functions of religious law (fas) and those of secular law (ius)—the body of man-made norms governing human relations.

Originally the term ius (plural: iura) denoted that which is due in human relations, the rightful power of a community member to act in a certain manner vis-a-vis his fellowcitizens. It referred to a course of conduct that the community would take for granted and, in that sense, approve (behaviour that did not conform to ius entailed an iniuria). At first, the exercise of ius had no connection with state organization— ius pertained to any instance of approved self-help. After the emergence of the state and the development of a formal justice system, ius referred to that which was capable of enforcement with the consent of those responsible for safeguarding the norms of the community. So closely were the ideas of right and satisfaction connected with one another in the minds of the Romans that they employed the same word ‘ius' for right and for court. This association of ideas testifies to the fact that, at a time when there was no science of jurisprudence, the only possible way of distinguishing between the different kinds of ius was by appealing to procedure— by pointing to the fact that different kinds of mechanism had been devised for addressing different kinds of claims. The question of the ultimate foundation of ius was not one that bothered the Romans to an appreciable degree at any period of their history. They were content to regard it as the product of custom assisted by interpretation. In later times, as the legal system grew in complexity, they supplemented it by acts of legislation. But, even when they did so, they were concerned not so much with the words of the statutory enactment as with the manner in which these words were interpreted. The Romans' dependence on authority and skilled interpretation was a distinctive feature of their approach to law throughout their history. In the earliest phase of Roman history this authority and power of interpretation appear to have been represented by the king and the college of the pontiffs. Only the king and the pontiffs could provide litigants with knowledge of the ritualistic forms that had to be employed in civil procedure.

The king, moreover, must have given the ruling in law that determined what form of action should be employed. However, even at this early period, the final settlement of a suit was probably entrusted to a private judge (iudex), although the latter's judgment must have been conditioned by the form of action which the king and the pontiffs had considered appropriate to the case in hand. The transition from Monarchy to Republic made little difference in the manner in which the law was disclosed to litigants, except in so far as this transition may have enhanced the role of the pontiffs. The limitations of the office of consul (annuality, collegiality) must have prevented its holders, who were supposed to declare the ius, from exercising the authority that had been once wielded by the king. In any event, the patrician aristocracy, out of whose ranks the consuls and pontiffs came, was able to maintain and even strengthen its monopoly of knowledge of the norms and forms of the law.

style='text-indent:18.0pt'>It is unknown when legal rules began to be formally enacted and stipulated in writing. According to the jurist Pomponius and other authors, a function of the people's assembly (comitia curiata) during the monarchy was to vote on the laws proposed by the king. It must be recalled that in the archaic period, legislation in the modern sense and as the Romans understood it in their politically mature eras, was practically unknown. The law was mainly construed as a sacred custom and thus not subject to change by direct legislative means. The role of the comitia curiata, like that of the assembly of a gens, was in all likelihood a passive one, limited to approving (or disapproving) proposals of an extraordinary nature submitted by the king. Pomponius describes the state of the law during this period as featuring a series of laws, referred to as leges regiae, which supposedly emanated from some of the early kings. According to Roman tradition, these laws were collected and recorded at the end of the regal era by Sextus Papirius, a pontifex maximus.^{^[6]} The ius Papirianum, as this collection was known, is lost to us, but a number of rules ostensibly promulgated by kings have been preserved in the works of later Greek and Roman historians.

Some modern commentators remark that these authors' accounts of the so-called ‘laws of the kings' were probably based on observations on their own contemporary law and therefore are not very reliable. However, these laws, in the form in which they have come down to us, contain good indications of their authenticity. Some of the relevant norms are quite prehistoric and could never have been valid at any period during the republican era; others pertain to purely religious observances, which may belong to any age, but may be as early as Rome itself. The laws of the kings contain a diversity of norms dealing with social, moral and religious matters, many of which may have been promulgated by the pontiffs over a long period of time. Although it is unlikely that all of these norms go back to the epoch of the kings, many of them must do so, for they reflect an extremely primitive stage of cultural development. In general, the surviving fragments of the leges regiae attest to the dominance of religious law (fas) during the earliest period of Rome's history.^{^[7]}

A characteristic feature of early Roman law was its extreme formalism, indeed ritualism, manifesting the religious origin and character of many legal rules and institutions. In this context, formalism denotes not only the need for compliance with the forms or rules of procedure characteristic of any legal system. It also emphasizes form in every part of the legal system; the casting of all legal acts into an unchangeable form where successful completion depends upon strict adherence to a set ritual engaging certain words or gestures. Archaic Roman law is perceived as formalistic because legal acts, that is, acts that effected or intended to effect changes in the legal relations of individuals, were accomplished with a complicated array of forms. Further, an individual electing to assert a claim at law against another had to mould the claim within the scope of a particular limited cause of action expressed by means of a strictly prescribed formula—the slightest mistake would entail loss of his case.

Interpretation might stretch the meaning of certain words, but the words themselves were immutable: only claims adapted in concordance with the words were possible. This form of procedure offered no opportunity for modifying the issue based on the objections issued by the defendant, who could only admit or deny the plaintiff's claim. This system displays an important feature of Roman legal thinking: its normativity. For the Romans, the law consisted of rules similar in manner to their religion. The rules of law, consisting of fact-decision relationships, could not be argued for—similarly, a minister of religion was unable to present a rational justification for his prophesies. In each case the link between the facts (the judicial proof, the flying bird) and the decision (an interpretation of the law or a statement concerning divine law—fas and nefas) remained an inexplicable norm. This perspective emphasizes the irrational aspect of archaic decision-making.

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Source: Mousourakis G.. Fundamentals of Roman Private Law. Springer, 2012.— 366 p.. 2012

The Customary Origins of Roman Law

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