1.Antiquity
1) Explain the difference between ius and fas? Which features of religion remained in Roman law
after the Archaic Period? (1)
mos majorum = basis of fas, and ius
Fas
- Fas is the oldest law, related to religious practices.
- Fas was a concept in a vertical system and described the relation between men and gods. The
religious aspect was of importance
- Supervised are pontificates (priests) they give response and provide rules to Romans, based on
fas
- System of fas, very difficult since the fas was secret, considered close to order of gods, pontifices
could not innovate the system - stick to rules of tradition
- Ius is public, fas is not.
Why is that ?
- Fas is secret and prevent people from interpreting rules to society because they are connected to
the gods
- Only those who are in direct connection to the supranatural order are allowed to state what the
rules are
- No lists, promulgation of remedies are public, for each case you must go to the pontifices to get
compensation
- Very much related to religious context. Very different way of the ius.
Ius
- Ius is public, fas is not
- Ius was a concept which was horizontal, meaning the order among men was important and the
religious aspect decreased
Why is the ius so important for later developments? If the fas was still in the 1st 2nd BC, what
would not have happened?
- Roman couldn’t create an Empire, it would be a problem for foreigners, they were not aware of
the roman tradition
- It would have hampered the expansion of the Roman Empire & international trade
Who’s making the law in the late republic > how different from Archaic Period?
- Legal scholars made law, legal science reflect on the law
- But this is only possible if the law is public
- Quality of Roman law and why we still refer to Roman law is because through the work of roman
jurists
- the law became sophisticated that it could be used for complex problems
The transition from the fas to the ius:
- 1. Spark was in the law of twelve tables: 1. Time public rules
,2) What were the circumstances under which the Twelve Tables came into existence? Are there other
examples of socio-economic conditions influencing the development of Roman law?(1)
2 changes were that the monarchy changed to a republic and a central institutional body in Rome
arose - the Senate.
The transition from the fas to the ius:
- 1. Spark was in the law of twelve tables: 1. Time public rules
What was the context in which the Law of the Twelve Tables came about? Why was it made?
- Segregation in the early republic 6th C BC (last time of the king): Plebeians (workers) -
Patricians (elites)
- plebeians (workers) were important in the republic, especially to patricians
- With introducing the twelve tables, the ‘workers’ had rights and were known because the laws
were public
- plebeians had no privileges as patricians, e.g. could not start a trial or go to the pontifecs because
they fell outside the scope of oldest roman law
- Plebeians rebelled and wanted access RL
- compromise (rules for patricians and plebeians)
- —> Law of Twelve Tables: guarantee for plebeians, enforce them against officials of patricians
- it can be considered as an agreement or compromise between both classes
socio-economic condition:
1. influx of foreigners
- In the late republic the Roman law developed on the basis that trade arose
- This stated the necessity to amend Roman law in the way that it became more secular, which
means it was not only for internal affairs also for International.
- the legisactio was developed and formed to formula trial
- two praetors were installed, in that case the peregrinus was important for foreign affairs, if a trial
involved a foreign person this praetor issued the edict
2. Legisactio —> procedure of formula
Important: official who is responsible for the formula procedure has the authority & powers to make
the system flexible
How is that, what can the official do?
- Praetor has the authority to grant remedies even if those are not part of the mos majorum
- = basis of fas, and ius
- Adjust the system = if there as a new legal problem which was not known in mos majorum nor
addressed by previous praetors, it was very easy to create a new remedy to allow for trial
- Roman law was constantly updating and changing, more efficient
- System of fas, very difficult since the fas was secret, considered close to order of gods, pontifices
could not innovate the system - stick to rules of tradition
→ Big change for Roman law
Reasons that relate to circumstances?
- Size of the Roman Empire
,- Big difference between first stages: archaic period (village), later conquest of territory, 1st and
2nd C BC already main parts of the coast, continued age of emperors 1st C AD large parts British
Isles, influence in which the roman state was administered and also on the law
Issue: the expansion of roman territory vastness was difficult to govern
- → centralisation
- emperors tried to cease power to make the empire more efficient
- = reason for transition for the emperors
Why was this strange? Again excluding others of power, dictator-like figures?
- Emperor took more power, history of the king was always a reminder of romans to not cluster
power together, make sure there’s no power concentration, prevention!!
- Relapse to one central figure!
2 periods of Imperial Era were rather different. Distinction between first and second period! Why?
1st period (1st C BC - 3rd AD)
- emperor is the first within the senate, more power than the others, still part of the senate
- idea that the emperor is the most important one of his colleagues
- Institutions continue to function, officially dispersal of power
- No power concentration
2nd period (end of 3rd C AD)
- More a ruler, king
- Present themselves as kings
- shut down institutions of the republic
- Present themselves as the image of source of law
- → every decision by emperor
3) Reflect on the scope of the remedies that were granted by the praetor. Do you think the praetor was
making law? How would you define ‘law’ in Rome?(1)
- huge difference: shift from rigid list of remedies to a flexible approach of remedies issued
through the edict by the praetor
- Were published in a form of a public element was a great change and reflects a democratic and
new understanding of the law
- praetor was making law in the way that he had authority to issue an actio in formula and a certain
judgement could be obtained, meaning this was authoritative for other procedures
- Law in Rome switched from being flexible to rigid and the other way around
- law in the Archaic Rome cannot be clearly understood as law, since only one group of the
Romans could access the law
- Later on this was elaborated in a way that the society was able to understand and hear the law
Legislation?! Why not and why is it different in Roman law?
To what extend did romans considered law not exclusively legislation or not legislation at all?
- Law was debatable, discussed about
- Few references to laws
, - law of twelve tables was already 600 y old, not considered anymore
- Legislation was not important or considered by jurists.
Qualify remedies / edict of praetors. Is this legislation?
- Edicts: no legislation, because it also depends on the praetors
- Hybrid form : link to the Imperium, legal power to issue measures
- At the same time very case-based.
When someone talks about Roman law: it is not about general rules and principles, more specific
details of solutions, which are very much linked to procedure
- Idea of Roman Law is not to make theories about rules from which derives solutions
- It is about specific court cases
- Even in the Digest : case-based
4) How did territoriality influence the development of Roman law? How was the dilemma in applying law to
non-citizens in the Roman Empire resolved?(1)
- split of the Roman Empire was important and had consequences regarding the law
- Especially the split in East and West of the Roman Empire was remarkable concerning language
- In the East, Greek was the language and in the rest it was Latin
- Latin decreased after time and e.g. the Novellae was written in Greek.
- Applying the law to non-citizen in the Roman Empire was resolved through the installation of praetors,
particularly the peregrinus was responsible for foreign affairs
- In connection with the ius gentium (=law common to all people) it was possible to regulate the foreign
influx and the trade in the Empire.
- Praetor makes system more flexible
- Legisactio too complex for foreigners - formula
- Distinction between non-citizen and citizen: Urbanus (court cases for citizen) & peregrini (cases for/ with
foreigner)
- Citizenship was very restricted in Roman Times, not possible to consider born in city of Rome, no general
rule, derived from the parents and mos majorum, concept of citizen solely brought up (C of AD)
5) Describe the tension between control and reasoning in the development of Roman law? (imperium v
auctoritas, imperial law, codifications) (1)
Imperium
- control was seen in form of imperium: the king at the time, solely had the authority to issue law and
deliver interpretations of the existing law + to amend law
Auctoritas
- form of auctoritas, in which jurists and scholars gave written interpretations of the law could not exercise
their work and would not be able to give opinions
- There was no power involved.
→ both systems could not work well together
this approach shifted throughout time, legislation in form of codifications were introduced and the tension
was lower.
One of the threats is the tension between imperium and auctoritas:
What would you describe as advantage and disadvantage of both?
Imperium
+: centralised, specific and does not allow for exceptions, unity of commanders, no risk of
misinterpretation
