The edicts of the magistrates

All the higher magistrates could issue edicts (ius edicendi) at any time of their magistracy to provide notice of their orders and intentions in the performance of their duties. A lex Cornelia de edictis of 67 bce strictly bound the magis­trates by their own edicts.

The praetorian edict was the main vehicle for the development of Roman law from about 130 bce (lex Aebutia) to its final consolidation around 130 ce. The urban praetor’s edict consisted of individual pronouncements, or edicts, establishing the circumstances under which the praetor would grant new remedies (actiones) and defining the “formulae,” or patterns or models, of these remedies. The praetorian edict was published in the Forum on tables of wood painted white. For this reason, the edict of the praetor was also called album (white color). Each praetor naturally tended to adopt his predecessor’s edict, incorporating only small changes with the help of jurists.

A new praetor would drop obsolete clauses and formulae, change existing clauses, and incorporate new ones from time to time. The earliest reference to a permanent addition to the edict was that made by Publius Rutilius Rufus around 118 bce to protect the purchaser of the property of a bankrupt debtor.

Gradually, the praetorian edict was improved with important innovations. By the end of the Republic, however, the edict became standardized, even though the praetor technically retained the authority to change it within his discretion. Such changes and additions were possible because of the interaction between praetors and jurists.

During the Principate, the praetorian edict waned in importance because of the increasing centralization of lawmaking power in the hands of the emperor. The praetor would incorporate changes only based on new resolutions of the Senate that were inspired by the emperor. By order of Emperor Hadrian, about 130 ce, the jurist Salvius Julianus, one of the greatest Roman jurists, was commissioned to prepare a revised and definitively fixed version of the praetorian (and the aedilitian) edict: the so-called edictum perpetuum. This conclusive version of the Edict was approved by a resolution of the Senate that established that from then on, modifications could be made only by the emperor (Constitutio Tanta 18). After Julianus’s consolidation of the edict, the publication of edicts by praetors became a mere formality. Only the emperor could exercise legal creativity.

Ius honorarium

The new law that the magistrates introduced through edicts to adapt civil law to new circumstances and needs of the political community was called honorary law (ius honorarium), so named because honores were the dignity and privi­leges inherent to the office of the magistrate. The most important part of the ius honorarium was by far the law made by the praetors, both the urban and the peregrine (praetorian law). The legal contribution of the aediles, though also relevant, was more limited and modest.

In the first book of his Institutes (D.1.1.8), the jurist Marcianus wrote that the ius honorarium itself was the “living voice” (viva vox) of the civil law.

Papinian (D.1.1.7.1) explained that the role of honorary law was to “support, supplement, and correct” the civil law. Sometimes, praetorian law supported an existing civil right by providing a new, more effective remedy. This was the case, for instance, with the praetorian remedy called actio Publiciana, which allowed the time needed to acquire ownership of something through posses­sion to be fictitiously asserted. Sometimes the praetor granted the actio Publiciana in favor of a civil owner who had lost possession, simply to avoid the difficulties of proving ownership in accordance with the formalistic stan­dards required by the civil remedy. In this case, praetorian law supported civil law by lightening the plaintiff’s evidentiary burden. Likewise, for the sake of legal expediency, a civil heir might request a provisory remedy from the praetor instead of requesting a remedy by civil law.

Often praetorian law did not simply support an existing civil right but supplemented it, that is, extended it to new circumstances. This was another effect of the actio Publiciana, which was often requested by noncivil owners (praetorian owners) who had paid the purchase price of an item but without fulfilling all civil formalistic requirements for acquiring it. In such cases, praetorian law could free the plaintiff of some of those requirements for acquiring property under civil law. Sometimes, however, the praetor ruled in favor of a plaintiff even against a defendant who had the civil law on his side. In these cases, the praetor, that is, praetorian law, was not just supporting or supplementing civil law but correcting it. This was also true of the actio Publiciana when it was used to protect a noncivil owner against a civil owner (not just against a noncivil owner, as in the aforementioned case).

In another example, praetorian law modified civil law when the praetor protected the inheritance rights of an emancipated son even against the civil law. Civil law based inheritance rights not on blood kinship but on domestic paternal power (patria potestas). According to civil law, only sons who were under their father’s paternal domestic power until his death could be his heirs. The civil rule, however, became obsolete in the later Republic when economic development called for a new status for emancipated young people. As a result, the praetor began to consider emancipated sons legit­imate civil heirs by granting them possession of the estate over civil heirs. The praetor protected the emancipated sons by an order (interdictum) he issued at their request.

The original dualism between praetorian law and civil law determined to varying degrees the development of Roman law until the codification of the edict, when the distinction between civil law and praetorian law became meaningless. The great period of the ius honorarium was the convulsive last century of the Roman Republic, in which social and eco­nomic changes challenged the legal system. The birth of the formulary process allowed the praetor to take the lead in developing the law, con­centrating legal power in the hands of the praetor. Political changes in the Principate reflected new ways, new systems, and new procedures for administering justice, and they ultimately replaced the formulary procedure with a new procedure (cognitio), displacing praetorian power by the power of the emperor.

Senatus consulta

During the Republic, the Senate had no legislative power. Its resolutions (senatus consulta, abbreviated SC or plural SCC) were based on the moral authority of the senators, and they did not go beyond an advisory function.

During the Principate, the emperor granted the Senate legislative power replacing the old forms of legislation of the popular assemblies, but this shift was gradual. This is probably why Gaius (1.4), in the second half of the second century CE, wrote that the legal force of the senatorial decrees was long disputed. The S.C. Silanianum (10 ce), for instance, condemned to torture, and eventually to death, all slaves living together when a master of slaves was assassinated by an unknown murderer (Tacitus, Annales 14, 42-45). We know that the SC Silanianum was put into effect by adding a new clause (or edict) in the Edict of the Praetor (Lenel, E. P. §364). Otherwise, it would never have obtained legal force.

What seems clear is that during the reign of Hadrian, after the consolida­tion of the edict, senatorial resolutions obtained direct legal force of their own. The S.C. Tertullianum under Hadrian (Inst. 3.3.2), which granted civil law rights of succession to a mother whose child had died intestate, was the first indisputable senatorial resolution with civil legal force.

Senatorial resolutions constituted a salient source of law during the first two centuries. In the field of private law, for instance, the S. C. Largianum (42 ce) established the order of succession for inheritances of the so-called Latini Juniani, who were the slaves manumitted in violation of the provision of the Lex Aelia Sentia (4 ce); the SC Velleianum (around 46 ce) forbade women to assume responsibility for other people; the aforementioned SC Macedonianum (47 ce) prohibited the giving of loans to sons still under paternal domestic power. The S.C. Neronianum and S.C. Trebelianum under Emperor Nero, S.C. Pegasianum under Vespasian, and S.C. Juventianum under Hadrian, all made important reforms in the regulation of bequests.

We know about more than two hundred senatorial resolutions of the Republic and the Principate. The original inscription in bronze of the famous S.C. de Bacchanalibus (186 ce), establishing some regulations against the so-called Bacchanalian conspiracy, has been preserved. It was discovered in 1640 at Tiriolo (southern Italy) and is kept in the Kunsthistorisches Museum in Vienna. The resolutions of the Senate were often named after one of the consuls of the year who proposed them (e.g., S.C. Orficianum, 178 ce), but they were also named after the emperor who proposed them (e.g., S.C. Claudianum) or after the occasion of the S.C. (e.g., S.C. Macedonianum).

Responsa prudentium

The foremost activity of Roman jurists was to provide legal opinions or legal answers (responsa) to questions asked not only by private individuals but also by magistrates and judges, who ordinarily were not experts in law. Responsa could be oral or written answers, and they could be given formally or with elegant informality. They could also be given prior to or during a trial. Cicero (De oratore 3.133), for instance, stated that Manius Manilius, one of the founders of civil law, used to walk across the Forum to give all citizens the possibility of consulting him orally upon any legal subject. Jurists were focused only on questions of law, not on questions of fact. “This is not for us; to Cicero” (nihil hoc ad ius, ad Ciceronem) used to be the response of the jurist Aquilius Gallus, Cicero’s friend, when someone brought to him a case that involved a question of fact; Cicero himself shared this view (Topica 12.51). Cicero was considered an orator, not a true jurist, since he had the ability to argue both for and against any proposition.

The jurists held no official position and received no remuneration for their services. Their work only gave them public recognition and celebrity. The legitimation of their opinions rested exclusively on their personal moral authority and reputation in the court of public opinion. (Originally, however, the responses of the pontifices, or high priests, in pontifical jurisprudence based on the earliest opinion were binding precedents.) Cicero (De oratore 1.45.198) complained about the new practice because some jurists, after gaining distinction and respect with their opinions, prevailed in new cases rather more by their moral authority than by their talents and arguments.

The responsa were the meeting point between the legal science and the legal practice of ordinary life, and they contributed deeply to the development of Roman society. At the end of the Principate, the responsa ceased to be instrumental for the development of Roman law. We know many responsa because they were frequently mentioned in the Digest of Justinian (e.g. Scaevola, D. 3.5.34; Paul, D. 42.1.41pr, or Proculus, D. 50.16.125).

Ius respondendi

Augustus granted some distinguished jurists the privilege to provide opinions (responsa) on legal questions, not only on the strength of their private reputation and authority but by the public authority of the emperor (Pomponius, D. 1.2.2.49). Through the ius respondendi, Augustus created a circle of prominent jurists who supported the politics of the Principate and were able to have a powerful impact on the legal order. After being granted the privilege, jurists were divided between recognized and nonrecognized. Nonrecognized jurists could continue giving responsa in

Sources of Roman law 55 accordance with the republican pattern, but not based on the highest authority, that of the emperor.

The ius respondendi was in strict accordance with the character of Augustus. On the one hand, the measure supported and promoted a republican practice, the responsa of the jurists; on the other hand, it contributed to improving imperial control over lawyers. Emperor Tiberius was the first who granted the privilege to a jurist of the equestrian class, the famous jurist Masurius Sabinus (Pomponius, D.1.2.2.48). It is possible, therefore, that Augustus originally accepted only senators for the privilege. Under the emperors, the equestrian order constituted an aristocratic order second only to the senatorial order.

The jurists with ius respondendi did not receive an official position, nor were their opinions binding on judges and magistrates. There was no sanction for judges or magistrates who ignored the legal opinion of the authorized jurists. It was reasonable, however, for judges and magistrates to accept legal opinions that enjoyed imperial support and recommendation.

Many salient lawyers (Labeo, among others), in opposition to the new character of the Principate, never asked for the ius respondendi, especially under Emperors Claudius and Caligula, who disliked lawyers. Emperor Hadrian, probably to promote the equestrian order, is said to have strongly recommended not granting the privilege to senators who were not really experts in the legal science. He also ruled that when the opinions of jurists with the privilege were all in agreement, they bound the judges. After Emperor Hadrian, the practice of granting the imperial privilege gradually declined.

Rescripta Principum

Rescripts were written answers prepared at the imperial chancellery and given by the emperor upon a written petition from a citizen (sometimes commu­nities or officials) confronted with a problem. From a legal point of view, rescripts formed a single category regardless of the petitioner. Originally, the emperor himself was involved in the legal decision-making process of the rescript. For instance, on the occasion of a rescript of Marcus Aurelius and Luius Verus, Ulpian (D. 37.14.17pr.) referred to a discussion of the emperors with the lawyers of their council. Later, in the third century, the emperor delegated the elaboration of rescripts to his secretary of petitions.

Rescripts were issued on the physical petition itself in the form of a sub­script: the imperial decision and signature were written in under the petition addressed to the emperor. The citizen could ask for specific protection, a pri­vilege, or a benefit, and the emperor would write his answer beneath the request. The various contents of a petition are called preces. The rescripts were publicly displayed, and the petitioner received a copy only by request. After the publication of the rescripts, judges were bound by the imperial decisions they contained, thus establishing a binding precedent for the future. The rescripts did not deal with matters of fact, but only with matters of law.

Therefore, the judge had to ascertain the facts before applying the rescript to support his judgment.

From Hadrian to Diocletian, rescripts were the most important source of law. They contributed enormously to the development of Roman law, but they also contributed to the decline of Roman jurisprudence. The legal profession had been one of the most honorable professions because of its independence and freedom. Now, however, the legal profession was under the control of the imperial administration and bureaucracy.

Most of the rescripts we know survived in Justinian’s Code and come from collections of rescripts made by jurists during the reign of Diocletian, specifi­cally the Codex Gregorianus and the Codex Hermogenianus. Over twenty-five hundred private rescripts were given in the name of the emperor during the third century. A chronological list of these rescripts from 193 to 305 ce was carefully compiled by Tony Honore (Emperors and Lawyers, 2nd ed., 1994).