This chapter addresses the origin and developmentof Roman legal sources - that is, the methods and procedures for establishing new legally binding rules, standards, and norms.
The source of a legal norm gives it ultimate validity. Legal sources can be classified in many different ways. In this chapter the classification will be based on the distinction between power (potestas) and authority (auctoritas) because this is probably the most comprehensive way to understand the legal implications of Rome’s transformation from the Republic to the Principate and then to the later Empire.
During the Republic, the legal sources produced by individuals or institutions vested with power (popular assemblies and magistrates) were basically the statutes (leges and plebiscita) and the edicts of the magistrates. On the other hand, the legal sources produced by individuals or institutions vested with moral authority (auctoritas) were the legal opinions (responsa) of the jurists and the resolutions of the Senate (senatus consulta). The Principate brought a major alteration in the system of legal sources when the authority of the jurists and senators was subordinated to the power of the emperor. The emperor granted legislative power to the Senate. As result, senatorial resolutions became, in practice, legislation, that is, a source of coercive power instead of a source of moral authority. On the other hand, the responsa of the jurists were submitted to imperial influence, opening the door to imperial rescripts, elaborated by the imperial chancellery under the direct control of the emperor.
During the later Empire, all sources of law ended up being mere expressions of the imperial power (imperial constitutions). The authority of jurists and senators ceased to be a constitutional limit on imperial power. Moral authority and imperial power were entirely identified in the person of the emperor, whose will had the force of a statute.
More on the topic This chapter addresses the origin and developmentof Roman legal sources - that is, the methods and procedures for establishing new legally binding rules, standards, and norms.:
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- This introductory chapter addresses broad topics and general ideas that overarch the entire Roman legal tradition.
- Chapter 1 Sources and methods
- It is difficult to provide a comprehensive and finite list of the sources of Roman law, since the Roman jurists never defined the term 'source of law' and different sources were emphasized at certain periods in the history of the Roman legal system to reflect their prominence as instruments of legal reform.
- After having treated, in the first two chapters, the problems of mandatory norms — rules and principles — and of power-conferring rules, purely constitutive rules and definitions, we will now set out to examine permissive sentences.
- Chapter I Mandatory Norms: Principles and Rules
- The rules of intestate succession came into operation when a person failed to create a valid will or when the will he composed was later declared legally invalid.
- First exclusion: Power-conferring rules are not deontic or regulative norms
- Sources of Roman Legal History
- This chapter addresses the Roman law of ownership and the rights that modified it, including, for instance, the rights of predial servitude and usufruct.
- § 10 All the extant sources which in one way or another deal with legal situations are the materials which may be utilized in the study of the Roman law.
- Besides these internal distinctions, principles must also be distinguished, so to speak, externally, from other standards of behaviour that can be part of a legal system.