The Law of the Twelve Tables

We saw in chapter 2 that one of plebeians' principal demands during the struggle of the orders was that the customary law in force should be written down and made public so that it could no longer be applied arbitrarily by

The Archaic Period of Roman Law 119 the patrician magistrates who controlled the administration of justice.^{^[380]} In 452 BC the two sides agreed to suspend the constitution and a commission of ten patricians (decemviri legibus scribundis) was appointed to govern the state and to draft a code of laws.^{^[381]} The decemvirs were invested with supreme power (imperium) for one year and the powers of the consuls and the tribunes were suspended.

In 450 BC the decemvirs produced a collection of laws inscribed on ten tablets, but their work was deemed unsatisfactory. According to Roman tradition, in the same year a second commission of ten men was set up, made up of members of both classes, to complete the codification.^{^[382]} In 449 BC two further tablets of laws were added to the existing ten and, after the work was ratified by the people's assembly, it was published under the name lex duodecim tabularum and the tablets on which the laws were inscribed were set up in the Forum.^{^[383]} The sources tell us that the second commission refused to give up power after completing their work, but they were forced to do so following a popular uprising. Some modem scholars have questioned the historicity of the second decemvirate, adopting the view that the work of the original commission was probably completed by the consuls of the following year.^{^[384]}

According to Livy, before the work of codification began, a three- member delegation was sent to Greece to study the legislation of Solon in Athens and the laws of other states.^{^[385]} We are also told that the Greek philosopher Hermodorus the Ephesian, then in exile at Rome, contributed significantly to the Decemvirs' work.^{^[386]} The second century AD jurist Gaius, in his commentary on the Law of the Twelve Tables, draws attention to certain provisions which he considers to be of Greek origin.^{^[387]}Although rules similar to those included in the Twelve Tables can be found

in the laws of Greek cities,^{^[388]} most modem scholars believe that it is unlikely that the law of Athens has had a direct impact on the decemviral legislation.^{^[389]} The influence of Athenian law has been questioned on the grounds that at that time of the codification the Romans had little contact with states outside Italy.^{^[390]} Although it is unlikely that the Decemvirs drew upon Athenian law, the surviving fragments of the Law of the Twelve Tables do reflect a Greek influence.

The source of this influence was probably the Greek cities of Southern Italy and Sicily with which the Romans had established contacts from an early period.^{^[391]} But, whatever the extent of the Greek influence, the bulk of the rules contained in the Twelve Tables were derived from the existing body of customary norms. As the surviving fragments show, only the most important of these norms were included, whilst the general framework of the customary law was taken for granted.

The original tablets are said to have perished during the sack of Rome by the Gauls in c. 390 BC, but copies of the Law of the Twelve Tables had been made and its text was widely known to later Romans, as testified by Cicero's statement that in his time school-children had to learn it by heart.^{^[392]}As we do not possess the complete text of the Twelve Tables, modem reconstructions are based on quotations and indirect references included in the works of later writers. Although the sources differ as to the presentation of the relevant materials, few scholars doubt that when they quote from the code they draw upon the original fifth century document. These fragments, combined with information derived from other sources, give us a reasonably reliable picture of the state of Roman law at the earliest phase of its history.^{^[393]}

The Law of the Twelve Tables did not amount to a 'code', in the modem sense of the word, for it was not intended to be an allencompassing statement of the law then in force and many of the areas covered were not dealt with in a systematic and comprehensive way. Moreover, the purpose of its drafters was not so much to reform the law as to fix and make intelligible those controversial rules concerning the rights of citizens and the procedures through which these rights were protected and enforced. Their chief concern was to make the law applicable to all citizens and to remove the arbitrariness in its administration by laying down the circumstances under which rights should be held to have arisen or been lost and specifying the penalties to be imposed when violations of norms occurred.

Notwithstanding the fact that important areas of the law, such as those concerned with the structure of the political system and the constitution of the courts, remained under the exclusive control of the patrician nobility, the decemviral legislation had the effect of bringing a variety of norms onto an even platform and placing them before the eyes of the people as one integral body of laws. Citizens could now access publicly available knowledge as to what their rights and duties were and the administration of justice was now based upon a publicly verifiable set of rules and procedures.

The Twelve Tables included provisions dealing with matters of private, public and sacral law. Much emphasis was placed on matters of procedure, for it was in this area that unskilled parties to a dispute, usually members of the plebeian class, could be misled by those conversant with the law. Table I prescribed the way in which a defendant could be summoned by the plaintiff into court^{^[394]} and Table II laid down certain rules governing the procedure in court. Table III recognised the right of a creditor to put an insolvent debtor to death or to sell him into slavery (following the condemnation of the debtor by a court of law). The unlimited power of the head of the family (patria potestas) over his family members was given legislative recognition under Table IV. This included provisions confirming the customary right of a father to inflict corporeal punishment upon a son, to sell him into slavery or even to put him to death.^{^[395]} Table V contained rules dealing with matters of succession and guardianship. It provided, among other things, that if a person died intestate, or if his will was found to be invalid, his property should pass to his nearest agnates (agnati, sui heredes) or, in the absence of agnates, to the members of the clan (gentiles') to which he belonged. According to another provision, if a man was unable to manage his own affairs, his person and property should be under the power of his agnates or, in default of these, to his gentiles.

Table VI included provisions regulating the acquisition and transference of private property. It was stated, for example, that a person would acquire ownership upon two years of uninterrupted possession of landed property, or one year in the case of other property.^{^[396]}[397]The transference of property by mancipatio (a form of transaction involving an imaginary sale and delivery) or nexum (a bilateral transaction accomplished like the mancipatio) was also recognised together with an early form of contract known as stipulatio:⁵ Table VII dealt with matters relating to disputes between neighbouring owners and contained provisions prescribing the space to be left between buildings, the width of roads, the right of an owner to gather fruits which had fallen from his tree onto neighbouring property, and some matters relating to the law of land and buildings. Table VIII contained provisions concerning delicts and crimes, as well as the punishments which these entailed. It was stated, for example, that if a person was caught stealing by night, he might lawfully be killed on the spot. If a person was caught stealing by day, he could be killed only if he tried to defend himself with a lethal weapon; but if he did not resist, then the owner of the property could seize him and detain him in bonds. The above applied only if the thief was caught in the act (fur manifestus). If name=bookmark1150>he was caught later (fur nec manifestus) he was obliged to restore double the value of the property stolen. Moreover, it was recognised that a person who injured another was liable to retaliation (lex talionis). The effects of this rule were mitigated as in many cases the injured party could only seek compensation for the injury suffered.^{^[398]} In general, the penalties provided for were extremely harsh, although the number of offences punishable by death was limited.^{^[399]} Table IX included provisions relating to public law.

It made it unconstitutional for a magistrate to propose a law imposing penalties or disabilities upon a particular person only and declared that no one should be put to death except after a formal trial and sentence. It stated, moreover, that only the assembly of the centuries could pass laws affecting the political rights of citizens and that no citizen should be condemned on a capital charge (i.e. a charge involving loss of life, freedom or citizenship) without the right of appeal to the assembly. Table X dealt with sacral law and matters relating to the burial or cremation of the dead.^{^[400]} Finally Tables XI and XII contained certain provisions of general character, such as the prohibition of intermarriage between patricians and plebeians (Table XI) and rules relating to the liability of a master of a slave for offences committed by the latter (noxae deditio). The provisions of the Twelve Tables are expressed in the form of terse commands and prohibitions with something of a rhythmical cadence that must have facilitated their retention in the memory. But the wording is often abstruse and grammatically ambiguous, and the actual legal principles underlying the various provisions were left unstated as they were probably taken for granted.

The Law of the Twelve Tables marks the beginning of Roman law as we now know it. It is true that the law contained in it was suited to a relatively simple society and included many primitive elements. But the significance of the code lies not so much in its contents as in the fact that it opened up new possibilities. Considered from a political angle, it represents a move away from the arbitrary power held by the ruling patrician class towards the abstract impersonal power exercised by the state under the rule of law - it is with the Twelve Tables that we see the first recognition of the idea of equality before the law. With respect to law, the code represents not so much an attempt to reform the existing custom as a sign of a change in the way people understood the nature and purpose of law and the role of the lawmaker.

Formerly the law was regarded as a revelation made by gods to the ancestors, to sacred kings, to magistrate priests. The impact of the Twelve Tables was that the law came to be seen as being derived, in principle, from the will of the people and as being shaped by social forces. In other words, as the law was now made public, it became less of a religious mystery and was set on a secular basis. With the further recognition of the distinction between religious norms (fas) and human positive law (ius), the law began to lose its immutable quality and became conventional, human, and therefore subject to change.

The Law of the Twelve Tables furnished the basis for the development of Roman law and legal science in the centuries that followed.^{^[401]} This was made possible by the fact that the norms it contained were continuously being modified and extended through interpretation by trained jurists who adapted them to the conditions and needs of their times. Most of the Roman law of the Republic and the Empire was based on the extension and refinement of the provisions of the Law of Twelve Tables.^{^[402]}

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Source: Mousourakis George. The Historical and Institutional Context of Roman Law. Routledge,2003. — 480 p.. 2003

The Law of the Twelve Tables

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