The Twelve Tables

The Twelve Tables (lex duodecim tabularum), the earliest Roman collection or set of fundamental rules of customary law, constituted the foundational text of the entire Roman legal system, a model, symbol, and paradigm of statutory law.

Written with a lapidary simplicity and compressed archaic Latin style, at many points obscure, the provisions of the Twelve Tables consisted of brief commands and prohibitions in the fields of legal proceedings, private law (family law, the law of inheritance, property, contracts, torts), sacral law, and criminal law. The code was composed by a commission of ten men from 451 to 450 bce, hence the name leges decemvirales - “laws of the ten men.” The Centuriate Assembly ratified the code in 449 bce, and it was engraved on twelve tables and attached to the rostra (a platform for speakers) before the curia in the Forum of Rome. It is probable that the final two tables were added later (Livy, Ab urbe condita 3.34).

The publication of the Twelve Tables constituted a new stage in the conflict between patricians and plebeians that marked the early Roman Republic. The Twelve Tables fixed the customary law that for a long time the patricians had interpreted and administered in their own interest. The code did not regulate public institutions, public offices, or the state religion, but only the individual rights and duties of Roman citizens, to protect them against abusive practices of the patricians in their legal relations with the plebeians and in their administration of justice.

It is said that the original tables were destroyed during the devastating sacking and burning of Rome by the Gallic Celts in 390 bce. It is possible, however, that some copies survived the great fire, since Cicero (106-43 bce), centuries later, pointed out that during his school days, students had to learn to recite the Twelve Tables by heart (De legibus 2.59). No ancient copies have survived to our day. However, Roman writers - such as Cicero, Livy, Aulus Gellius, Festus, and Pomponius - provided good information about their contents, including a number of direct quotations. Some jurists, such as Labeo and Gaius, wrote commentaries on the Twelve Tables. Some fragments of the tables have been preserved in Justinian’s Codification and have been instrumental to the partial reconstruction of the structure and content of the Twelve Tables. Often, the legal meaning of the fragments is uncertain, ambiguous, and controversial. The reconstruction of the Twelve Tables remains a work in progress, far from being complete. After the codification of the Twelve Tables, the Romans did not codify law again until the Theodosian Code (438 ce).

In some sense, the Twelve Tables played a similar role in Roman law to the Magna Carta in English law, or Las Partidas in Spanish law. Although none of the provisions of the Twelve Tables were directly applied in the classical period, they were integral to the inspiration of new legal ideas and concepts, as well as the construction of the legal system.

Leges and plebiscita

Lex and plebiscitum were the statutes of the Republican period. Lex was the enactment of the popular assemblies (comitia centuriata or tributd) on the proposal of a magistrate who convened and presided over the assembly. The magistrate submitted bills to the popular assemblies only after receiving the approval of the senators (auctoritas patrum).

Statutes were recognized under the name of the magistrate or tribune who submitted the bill to the popular assembly (e.g., lex Julia, lex Falcidia). When two magistrates submitted the bill (e.g., the two consuls), the names of both were mentioned (e.g., the consuls Caninius Callus and Fufidius Geminus sponsored the lex Fufia Caninia on manumissions in 2 ce). We know about eight hundred leges and plebiscita, but we have only a few of them in the original inscription in bronze or stone.

Depending on the nature of the sanction (Ep. Ulp. 1.2), statutes establishing prohibitions could be “perfect” (lex perfecta), “less than perfect” (lex minus quam perfecta), or “imperfect” (lex imperfecta). A perfect or complete statute that forbids an act invalidates the forbidden act if it is done. A less-than-perfect statute does not invalidate the forbidden act but imposes a penalty against the person doing it. Finally, an imperfect or incomplete statute that forbids an act neither invalidates the forbidden act nor imposes a penalty for doing it, but the statute allows the magistrate to grant some remedies to protect the injured person. Originally, Roman statutes were imperfect or less than perfect. Only beginning in the later Republic were perfect statutes passed as a more effec­tive way of implementing the purpose of the statutes and the intentions of the lawgivers. The oldest lex perfecta was probably the misogynistic lex Voconia (169 bce), which limited the inheritance rights of women.

The lex Cincia (204 bce) on donations provides a good example of an imper­fect statute. The plebiscite prohibited donations exceeding a certain amount; however, a donation surpassing that maximum was not invalid. On the other hand, if a donor promised a donation exceeding the limit, and the promisee sued the donor to collect the promised sum above the limit, the praetor could protect the donor with the exceptio legis Cinciae, which reverted to the limit imposed by the statute. The famous senatus consultum Macedonianum under Emperor Vespasian was another example of an imperfect statute. It prohibited loans to sons under paternal power. If a lender loaned an amount to a son under parental power, the transaction was not void, but the son could be protected against the claim of the lender by an exceptio senatus consulti Macedoniani.

An example of a less-than-perfect statute was the lex Furia testamentaria (about 180 bce), the earliest statute setting limits for legacies. It fixed the maximum amount for legacies at one thousand asses, except for legacies to the testator’s closest relatives. If a person received a legacy for more money than the statute allowed, he had to pay fourfold the value of the surplus, but the legacy was considered valid. Finally, an example of lex perfecta was the lex Falcidia (40 bce), which allowed the testator to dispose of three-quarters of his estate through legacies, but prohibited him from depriving his heir of the remaining fourth. The part of the legacy exceeding three-quarters was con­sidered void. Something similar can be said of the lex Aelia Sentia (4 ce), which laid down conditions for the validity of manumissions; any manumission made in violation of its rules was void from the start.