The Law of the Twelve Tables and the Growth of Statutory Law

As previously noted, archaic Roman law initially consisted of a body of unwritten customary norms, the nucleus of which had its origins in the period when the gentile organization of society was still effective.

These norms were characterized by a high degree of uncertainty and, when a legal question arose, it fell to the college of the pontiffs to give an authoritative answer thereto. As the members of this college, like all state magistrates, were at this time exclusively patricians, it is reasonable to suppose that the plebeians frequently accused them of showing class bias in their determinations. It is thus unsurprising that one of the plebeians’ chief demands during the struggle of the orders was that the customary law in force be written down and made public so that it could no longer be applied arbitrarily by the pontiffs and other magistrates charged with the administration of justice. After several years of strife, it was agreed that a written code of laws applicable to all citizens should be compiled. The idea of codification was probably borrowed from the Greeks, who had established colonies in Southern Italy and Sicily and with whom the Romans had from an early period come into contact.

According to the traditional account, before embarking on the work of codification, the senate dispatched a three-member commission to Greece to study the laws of the famous Athenian lawgiver Solon, and those of other Greek city-states.^{^{New Roman",serif;color:black'>[66]}}On the return of this commission it was decided that the constitution should be virtually suspended and that the reins of government should be placed in the hands of an annually appointed board of ten magistrates (all of them patricians). In addition to their regular governmental functions, these magistrates were to be assigned the special task of drafting a written code of laws (decemviri legibus scribundis).^{^[67]} In 451 bc the decemvirs produced a series of laws inscribed on ten tablets (tabulae).

These laws were considered unsatisfactory, which prompted the election of a second commission of ten men (now incorporating some plebeians) to complete the work.^{^[68]} In 450 bc two further tablets of laws supplemented the existing ten and, after it was ratified by the centuriate assembly (comitia centuriata), the work was published under the name lex duodecim tabularum. According to Roman tradition, the second decemviral board refused to resign after completing their legislative work and endeavoured to retain their office by ruling as tyrants. Eventually, however, they were deposed following a popular revolt and the constitutional order of the Republic was restored.

The traditional account of the events leading to the enactment of the Law of the Twelve Tables, embellished with myths and legends, contains several inconsistencies and anachronisms. In modern times, the queries over the origin and nature of the decemviral legislation have generated much controversy. Some scholars have challenged the historicity of the second decemvirate and argued that the work of the original commission was probably completed by the consuls of the following year. Moreover, historians contend that the dispatch of a commission to Greece is highly unlikely and, even if such a mission existed, it may have visited only Greek cities in Southern Italy. The preserved fragments of the Law of the Twelve Tables reveal scant material that could be directly traced to a Greek influence, although certain parallels with the laws of other early societies can be observed.^{^[69]} A Greek influence on the code, slight though it may have been, was the inevitable result of the prolonged influence of the Greek civilization, through its outposts in Southern Italy and Sicily, on Rome from the days of her infancy. But, in spite of the fact that a few of its ideas may have been borrowed from Greek sources, the Law of the Twelve Tables was basically a compilation of rules of indigenous Roman customary law, designed not to reform but to render the existing law more certain and more clearly known to the populace.

Only the most important of these rules were included, while the general framework of the customary law was taken for granted. At the same time, an important objective of the compilers was to eliminate, as far as possible, the divergence in legal systems within the state and to make a common law for Roman society considered as a whole. In pursuance of this goal, certain disputed or controversial points must have been settled and some innovations made.

With regard to the nature of the particular rules themselves, the vast majority were concerned with matters of private law, in other words, with the rights and duties of individuals amongst themselves (not with the relationship between the individual citizen and the state). Special attention was given to matters of procedure in court actions and enforcement, as in this area the unskilled parties to a dispute, usually plebeians, could be misled by those conversant with the law. This was especially because the bringing of legal suits at this time was surrounded by a host of forms and technicalities. One can detect in these procedural rules the origins of the Roman state: they were in many ways a form of regulated self-help.^{^[70]} There were also rules prescribing the monetary penalties required to be paid for wrongs done, and rules concerning family, property and succession rights. The treatment of private wrongs shows that the law had reached a phase of transition between a primitive state of permitted self-redress and the state at which the appropriate remedy had to be sought by legal process. It was provided, for example, that if a person was caught stealing by night, he might be lawfully slain on the spot^{^[71]}; but a man whose limb had been fractured might only revenge himself by inflicting the like injury on his assailant provided that no agreement had been reached for rendering compensation, in which case the remedy would be to take legal action against the wrongdoer if the promised ransom was not paid.^{^[72]} With respect to other offences the law itself fixed the amount of compensation that could be demanded for the wrong done, and the victim was restricted to claiming that redress, thus being placed in the position of creditor rather than an avenger.

In these provisions one might trace the origins of what was eventually to become a contractual obligation, a relatively advanced notion that was virtually unknown at the time of the Twelve Tables. The family law of the Twelve Tables revolves around the notion of patria potestas: the absolute power of the head of the family (paterfamilias') over his children and other family members.^{^[73]} With respect to the law relating to property, the Law of the Twelve Tables shows the rigidity and formalism that prevailed, but rights in both movables and immovables were clearly recognized.^{^[74]}During this early age a mere expression of intention was not enough to create liability or covey rights from one individual to another; some visible formality was necessary, by which the requisite intention was manifested to witnesses. Table V of the Law 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. The Law of the Twelve Tables contained also some provisions of a constitutional or religious character. For example, Table IX rendered 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 without the right of appeal (provocatio) to the assembly. Table X addressed sacral law and matters relating to the burial or cremation of the dead.^{^[75]} Finally Tables XI and XII contained certain provisions of general character, such as the prohibition of intermarriage between patricians and plebeians (Table XI)^{^[76]} and rules relating to the liability of a master of a slave for offences committed by the latter (noxae deditio).

The Law of the Twelve Tables is a highly casuistic, case-oriented (in contradistinction to generalizing, principle-oriented) piece of legislation reflecting the life of a fairly primitive agricultural community.

However, even though archaic in form and content, it contains elements indicative of a legal system that had advanced considerably beyond its original, primitive stage. Of particular importance for the subsequent development of the law were the rudiments of interorgan controls to prevent excesses in the administration of justice. But the significance of the Law of the Twelve Tables lays not so much in its contents as in the fact that it opened up new possibilities. Considered from a political angle, its main achievement was vindicating the monopoly of state authorities over all acts of judicial administration. As it produced a common body of law for the populace regarding the legal matters most important for daily life, private citizens and magistrates alike were made subject to the sovereignty of the law and members of the plebeian class were no longer exposed to the vagaries of customary rules administered by patrician officials. At the same time, the process towards the secularization of the law was accelerated: conduct patterns that were in the past shrouded in religious ritualism were rationalized by general rules of substantive and procedural law in a written form, and thus ascertainable by all people. As the law was now publicized, it began to lose the immutable quality of a religious mystery and evolved into a conventional, human form that was therefore subject to change.

Later generations of Romans felt the greatest veneration for the Law of the Twelve Tables, which was described as the ‘foundation of all public and private law’.^{^[77]} Indeed, for a thousand years, this enactment remained the only attempt by the Romans to comprehensively record their laws. This first attempt ushered in the history of Roman law as discernible today and for a thousand years it formed the basis of the whole legal system, despite changes in social, economic and political conditions. Legal development in the succeeding centuries was effected without directly repealing the provisions of the Law of the Twelve Tables, but mainly through their interpretation by trained jurists, who adapted them to the changed conditions of later eras.^{^[78]}

In the period following the enactment of the Law of the Twelve Tables, legislation by popular assembly evolved as a generally acknowledged source of law.

However, in contrast to the role of legislation in the Greek world, Roman legislation remained largely underdeveloped. Controversy still prevails as to the extent (or the exact time) it was deemed legally viable to modify the ancient ius civile. The Romans’ disinclination to apply legislation derived from their conservative attitude towards law and the deeply rooted conception of the merits of their ancient customs reinforced by the special position accorded to the Law of the Twelve Tables. It was not easy to frame statutes in a way that avoided infringement of these established norms, especially in the field of private law. Therefore, the necessary reforms were fashioned in an indirect manner by means of interpretation. Accordingly, statutes remained relatively rare and dealt only with certain special matters. Statutes were enacted, for instance, to incorporate in the constitution the gains forged by the plebeian movement and to create new magistracies. In matters of social concern, legislation was occasionally relied upon to instigate reforms or merely to appease the populace. Some legislation had a hybrid character displaying a political basis and also elements that affected the private relations of citizens— this embraced specific laws relating to civil procedure, marriage, debts and testamentary benefits.

Important statutes of this period in the field of public law encompass: the lex Valeria Horatia (449 bc), which recognized the inviolability of the plebeian tribunes; the lex Canuleia (445 bc),lang=EN-US> which removed the rule prohibiting intermarriages between patricians and plebeians; the leges Liciniae Sextiae (367 bc), which admitted plebeians to the office of consul and established the praetorship; the lex Publilia Philonis (339 bc), which removed the rule directing that the legislative enactments of the popular assemblies had to obtain senate approval after their passage; and the lex Hortensia de plebiscitis (287 bc) that rendered the resolutions of the plebeian assembly binding on all citizens. In the fourth century bc a number statutes were passed that established a limit on the interest rate charged on debts for borrowed money, such as the lex Duilia Menenia of 357 bc and the lex Genucia of 342 bc. Other statutes eased the debtors’ burden with respect to the securities they could be requested to provide against the risk of non-payment, as well as pertaining to the sanctions they incurred for non-payment. Thus the lex Poetelia Papiria of 326 bc forbade the private imprisonment of the debtor by the creditor, which entailed the former becoming a slave of the latter.

2.2.2.1 Law-Making in the Roman Assemblies

As elaborated in the previous chapter, the Roman popular assemblies existed in two forms: those including all citizens, who voted either according to wealth (comitia centuriata) or tribe (comitia tributa); and the assembly of the plebeians (concilium plebis), which excluded the patrician upper class from its membership. Statutes (leges) enacted by the comitia centuriata and the comitia tributa were binding on all citizens, whilst the resolutions of the plebeian assembly (plebiscita) were initially only binding on the plebeians.^{^[79]} Since the enactment of the lex Hortensia in 287 bc, at the latest, the plebiscita were considered as complete laws binding on the entire citizenry.^{^[80]} Thereafter, the concilium plebis, convened under the presidency of a tribunus plebis, became the most active legislative body and the great majority of the statutes that we can observe in the sources were, strictly speaking, plebiscita.

The Roman assemblies could only meet to discharge their functions when formally summoned by a magistrate empowered to convene and preside over a popular assembly (ius agendi cum populo).^{^[81]} When a magistrate submitted a proposal to an assembly he was said to ask or request (rogare) the people. Thus, his proposal was called rogatio legis and the resultant laws were identified as leges rogatae.^{^[82]} Custom and eventually law dictated that the full text of a proposed measure must be publicly posted 24 days before its formal submission to the assembly (promulgatio, promulgare rogationem). During this interval the citizens had the opportunity to discuss the bill and recommend changes, or even its withdrawal, to the magistrate in informal gatherings (contiones). It should be noted that legislative measures proposed by magistrates were normally debated in the senate before promulgation. This debate was much more important than any public discussions that might occur in contiones. Once the bill was presented to the assembly it could not be modified; the assembly could either accept (iubere rogationem) or reject the bill as a whole and in the precise form it was delivered by the magistrate.^{^[83]}

In all Roman assemblies voting was by group rather than by individual suffrage. For example, in the assembly of the centuries (comitia centuriata) decisions were reached by considering the number of centuries that voted in favour of or against a proposal; the vote of each century was determined by the majority of the individual voters it comprised.href="#_ftn84" name="_ftnref84" title="">^{^[84]} During the early republican age voting was done orally. The method of voting by ballot (per tabellas) was introduced in the later Republic by a series of laws referred to as leges tabellariae.^{^[85]} When an assembly was summoned to decide on a legislative proposal, each voter-member was given two wooden tablets (tabellae). The tablet representing a positive vote was inscribed with the letter V, which stood for the phrase uti rogas (‘as you propose’, ‘as you ask’)^{^[86]}; the other tablet bore the letter A, which stood for the word antiquo (‘I maintain things as they are’), and indicated a vote against the proposed measure. After the vote of each group (centuria or tribus) became known, it was reported to the presiding magistrate who made a formal announcement. When the votes of all the groups had thus been reported and counted the magistrate notified the final result to the assembly.

According to tradition, a law passed by the people could not come into force until it received the senate’s approval (patrum auctoritas)?⁶ This rule was reversed by the lex Publilia Philonis of 339 bc that stipulated that the patrum auctoritas must be issued before, not after, a legislative proposal was submitted to the people. Thereafter, laws usually had immediate effect following the formal announcement of the assembly’s decision endorsing the magistrate’s proposal. After their passing, laws were inscribed on tablets of wood, copper or stone and retained in the state treasury (aerarium populi romani) under the supervision of the quaestors.

A statute was composed of three parts: (1) the preamble (praescriptio legis) that embodied the name of the magistrate who had proposed it (and after whom it was named), the place and time of its enactment, and the name of the group (centuria or tribus) that had cast the first vote in the proceedings^{^[87]}^{^[88]}; (2) the text of the law (rogatio) that was usually divided into sections; and (3) the ratification of the law (sanctio). The sanctio specified the penalties that would be imposed if the law was violated, and stated the rules governing the relation between the new statute and earlier and future legislation.^{^[89]} A distinction was drawn between ‘perfect laws’ (leges perfectae), ‘imperfect laws’ or laws without any sanction at all (leges imperfectae) and ‘less than perfect laws’ (leges minus quam perfectae). Acts performed in violation of a perfect law were deemed null and void.^{^[90]} The infringement of an imperfect law, on the other hand, did not affect the validity of the relevant act.^{^[91]} Similarly, when a less than perfect law was violated the relevant act itself remained valid, but the transgressor was liable to punishment. Laws containing unrelated or superfluous provisions were designated leges saturae or per saturam and were forbidden under early law.^{^[92]}

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

The Law of the Twelve Tables and the Growth of Statutory Law

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