The laws of the kings

During the early archaic period, when Rome was ruled by kings, it is unlikely that there was anything that could be called legislation (as the term is understood today) for the law was customary and not formally enacted.

Limited legislative functions were exercised by the assembly of the curiae but, in all probability, its role was limited to approving measures put before it by the king and to authorising departures from established customary norms in particular cases. The power of the king to create law, as well as his position as supreme judge, were closely connected with his role as head of Roman religion. In exercising his judicial functions, the king could introduce new norms which he then applied to the case brought before him for solution.^{^[364]}[365] As his decisions were taken to establish precedents, they provided the basis for the development of many of the norms of customary law observed in the administration of justice. However, the king's power to introduce new law was limited by custom and he was expected to consult the senate and seek the approval of the people when dealing with matters of great importance for the state.

Later writers, including the jurist Pomponius, make mention of a series of laws enacted under the kings, referred to as leges regiae? According to these writers the laws of the kings were collected and written down by Sextus Papirius, a pontifex maximus, in the closing years of the regal era.^{^[366]} Some modem commentators have noted that these authors' descriptions are probably based on observations on the law of their own times and therefore are not very reliable. Others have asserted that the leges regiae cannot be called 'laws', in a strict sense, as they were mainly

The Archaic Period of Roman Law 117 concerned with matters of a largely religious nature.^{^[367]} Nevertheless, the surviving fragments of the leges regiae attest to the close connection between fas and ius that marks the character of archaic law and reflect a system that differed considerably from later Roman law. In this respect they appear to convey a tolerably accurate picture of the nature of the law in the regal era.^{^[368]}

The laws of the kings were primarily concerned with religious and family matters and with the punishment of violations of sacral law (ius sacrum).

Some important rules pertaining to the powers and duties of the head of the family (pater familias) are attributed to Romulus, Rome's first king, himself.^{^[369]} This king is said to have ordained, among other things, that a pater familias could not kill any of his children under the age of three,^{^[370]}nor could he sell his wife as a slave.^{^[371]} The rule prohibiting a wife from divorcing her husband^{^[372]}[373] and the rule providing that a triple sale of a son by his father rendered the son free from paternal control (patriapotestas)ⁿ are attributed to the same king. Romulus is said to have introduced, moreover, many of the norms governing the client-patron relationship and prescribing the duties and obligations it entailed.^{^[374]} According to a law of king Numa Pompilius, a pater familias could not sell a son to slavery after he had given him his permission to marry.^{^[375]} Numa is said also to have enacted a law against the crime of murder as distinct from negligent homicide, and to have introduced a rule requiring every citizen to clearly demarcate the bounds of his land.^{^[376]} To the same king was ascribed a law which stated that if a pregnant woman died she should not be buried before an attempt was made to save the foetus's life.^{^[377]} Other important norms, such as the one which provided that liberated slaves became Roman citizens, as well as the distinction between public prosecutions and private suits are said to have

originated in the period of the kings. However, many of these early rules seem to have fallen into disuse by the time the Law of the Twelve Tables was introduced, in the middle of the fifth century BC.^{^[378]}

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

The laws of the kings

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