The Law of the Twelve Tables and the Rise of Legislation

A pivotal event occurs in the history of a legal system when laws are enacted in writing: a new source of law emerges, in addition to unwritten customary law, with far-reaching consequences.

The Babylonians acquired the Hammurabi Code in the eighteenth century bc, the Hebrews the Pentateuch Code in the eight century bc, and the Romans the Law of the Twelve Tables in the fifth century bc.

The Law of the Twelve Tables emerged from the struggle between the patricians and plebeians: it is the earliest document of Roman law and the first important piece of legislation. The Roman historical tradition, enveloped by ambiguity, records the events leading to its enactment: in 462 bc, Terentius Harsa (a tribune of the plebeians) demanded that the rules of customary law be recorded and made publicly available to halt its arbitrary application by the patrician magistrates who controlled the administration of justice. After several years of strife, the patricians conceded and a three-member commission was dispatched to Greece to study the laws of the famous Athenian lawgiver Solon and those of other Greek city-states. In 451 bc, a board of ten citizens (all of them patricians) was appointed to draft a written code of laws (decemviri legibus scribundis). They were invested with supreme political power (imperium) for the period in which they were to perform this task, meanwhile the powers of the regular magistrates were suspended. In 450 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. In 449 bc, two further tablets of laws supplemented the existing ten and once the assembly approved the work it was published under the name ‘Law of the Twelve Tables' (lex duodecim tabularum)?

commentators have questioned the historicity of the second decemvirate, proposing that the work of the original commission was probably completed by the consuls of the following year.

Moreover, historians now accept that it is unlikely that a delegation was sent to Greece but some think that if such a mission had existed it may have visited only the Greek cities in Southern Italy. The preserved fragments of the Law of the Twelve Tables reveal very little that can be traced directly to a Greek influence, although certain parallels with the laws of other early societies are observed.^{^[8]}^{^[9]} 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—to find a system of ius that would be equally valid for all citizens. In pursuance of this goal, certain disputed or controversial points must have been settled and some innovations made.

The Law of the Twelve Tables is a highly casuistic, case-oriented piece of legislation that reflected the life of a fairly primitive agricultural community and fitted well into the system of unwritten customary law existing at the time. Its provisions are couched in the form of terse commands and prohibitions with 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.

With regard to the nature of the particular rules themselves, the bulk of the preserved provisions pertain to matters of private law, such as family relations, succession and wills, property, contracts and torts. Some provisions deal with matters of criminal law and sacral law, while only two provisions relate to constitutional law. Special attention is given to the law of procedure, as it would have been requisite for the average member of the community to know the correct procedure for initiating an action to enforce his rights granted by the law. No doubt, this had much to do with the fact that initiating legal suits at this time was surrounded by hosts of technicalities and forms.

The Law of the Twelve Tables contained ordinances on civil, criminal and constitutional law. Table I of the Law prescribed the way a defendant could be summoned by the plaintiff to court and Table II stipulated the rules governing court procedure. However, it is highly unlikely that the compilers went so far as to specify the forms of action, i.e. the actual words and gestures, which had to be employed in any given case.^{^[10]} The harsh law of debt, a result at once of freedom of contract and the very severe view that ancient societies took of the defaulting debtor, was maintained. Thus, Table III recognized the right of a creditor to put an insolvent debtor to death or sell him into slavery. But now, probably for the first time, all the stages of the process of execution were made known, the rights of creditors were defined and the avenues of escape open to debtors were clearly described. The power of the head of the family (patria potestas) over his family members was given legislative recognition under Table IV. Table V contained rules pertaining to matters of succession and guardianship. One provision stipulated that if a person died intestate or if his will was deemed invalid, his property should pass to his nearest agnates (agnail, sui heredes) or, in the absence of agnates, to the members of his clan (gentiles).

According to another provision, if a man was unable to manage his own affairs their person and property should be placed under the power of his agnates or, in default of these, to his gentiles. Table VI included provisions regulating the acquisition and transference of property. It was stated, for example, that a person would acquire ownership of landed property upon 2 years of uninterrupted possession, or 1 year in the case of other property (this mode of acquiring property was termed usucapio). The transference of property by mancipatio (a formal transaction involving an imaginary sale and delivery) or nexum (a bilateral transaction accomplished like the mancipatio) was also recognized together with an early form of verbal contract known as stipulatio. The latter was based on a spoken question (spondere?—do you promise on your oath?) followed immediately by a spoken answer (spondeo—I promise on my oath). The contract was strictly interpreted on the basis of the pronounced words. Table VII dealt with matters relating to disputes between neighbouring owners and contained provisions prescribing the distance between buildings, the width of roads, and the right of an owner to gather fruits that had fallen from his tree onto neighbouring property. Table VIII contained provisions concerning delicts and crimes, and prescribed the punishments that these entailed. The criminal law of the Twelve Tables reflects a more primitive stage of thought than its civil law provisions (this is unsurprising given that throughout Roman history the criminal law lags far behind the civil law). The Tables recognised the principles of self-help and retaliation, although not without certain limitations. Thus, a person who injured another was exposed to retaliation (lex talionis), but the effects of this rule were mitigated by the fact that in many cases the injured party could only seek compensation for the injury suffered. Moreover, the conception of capital punishment as a form of expiation for offences incurring the wrath of a deity remained dominant, even though the number of offences punishable by death was rather limited.

Table IX included provisions relating to constitutional law. It 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 (i.e. a charge involving loss of life, freedom or citizenship) 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. Finally, Tables XI and XII embodied general provisions (such as the prohibition of intermarriage between patricians and plebeians, Table XI) and rules relating to the liability of a slave's master for offences committed by the former (noxae deditio).

Even though archaic in form and content, the Law of the Twelve Tables 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.

For a thousand years, the Law of the Twelve Tables remained the only attempt ever made by the Romans at a comprehensive recording of their laws. This first attempt ushered in the history of Roman law as we know it and for a thousand years the Romans regarded the Twelve Tables as the basis of their whole legal system despite changed social, economic and political conditions.^{^[11]} The perpetuation of the currency and validity of the Law of the Twelve Tables was facilitated by the fact that the norms it contained were continuously modified and extended through interpretation by trained jurists, thus it was adaptable to the changed conditions of later times.

The original text of the Law of the Twelve Tables has not been preserved (the tables on which the Law was written were probably destroyed during the sack of Rome by the Gauls in 387 bc). Our knowledge of its contents is based on various historical and juridical sources (the oldest source dates from the period of the late Republic). However, the contents were not recorded in their entirety by the relevant authors like Cicero, Aulus Gellius and Gaius. They only reproduced fragments that were relevant to them, modernizing the text in language and consciously or subconsciously adapting it to the conditions of their own times. The precise quantity of missing text is unknown as is the arrangement of the original provisions of the Law. Thus, the reconstructions by contemporary Romanist scholars that draw on the extant literary sources are largely hypothetical.^{^[12]}

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 comparison to the role of legislation in the Greek world, Roman legislation remained rather underdeveloped. The Romans' reluctance to use legislation as a means of changing their ancient ius civile 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. As it was not easy to frame statutes in a way that avoided infringement of established norms (especially in the field of private law), the necessary reforms were fashioned in an indirect manner by means of interpretation. Accordingly, the number of statutes that affected the development of private and procedural law was relatively small. The great majority of the statutes enacted during the Republic were concerned with matters relating to the organization of the Roman state. Some statutes 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.

Roman legislation was comprised of two kinds: leges and plebiscita. The former were enacted by one of the comitia on the proposal of a consul or praetor and were binding on all citizens; the latter were passed by the assembly of the plebeians (concilium plebis) on the proposal of a tribune and were initially only binding on the plebeians.^{^[13]} Under the Valerio-Horatian and Publilian laws (449 and 339 bc) the plebeian assembly gained the right of considering and initiating proposals that affected the interests of the whole community. This right was probably acquired and exercised following the creation of increasing facilities for bringing resolutions of the plebs as petitions to the assemblies of the people to be confirmed or rejected by the latter. As the plebs came gradually to constitute the majority of voters in the assemblies of the people, these petitions must as time went on have been almost invariably confirmed. The distinction between plebiscita and leges must have been growing more and more formal and unreal when the lex Hortensia (287 bc) enacted that henceforth plebiscita should have the full force of leges.^{^[14]} From this time onwards there was no real difference between the populus and the plebs in matters of legislation (although fundamental changes in the constitution probably required ratification by the comitia centuriata). As a result of these developments the concilium plebis, convened under the presidency of a tribunus plebis, emerged as the most active legislative body. This is evidenced by the fact that the great majority of the leges that we can observe in records were, strictly speaking, plebiscita.

Important statutes of the early republican 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), which removed the rule prohibiting intermarriages between patricians and plebeians; the lex Aemilia (434 bc), which limited the duration of the censorship to 18 months; 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; the lex Ogulnia de auguribus (c. 326 bc) that granted the plebeians access to the college of the pontiffs; 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, many 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.

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

The Law of the Twelve Tables and the Rise of Legislation

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