Use LEFT and RIGHT arrow keys to navigate between flashcards;
Use UP and DOWN arrow keys to flip the card;
H to show hint;
A reads text to speech;
43 Cards in this Set
- Front
- Back
|
During the Republic how would leges be made ? was there debate ? how did they vote |
During the Republic statute laws were passed via an enactment of a comita giving its assent to the proposal of the convening magistrate. The comitita would get no in put in terms of debate and would not be allowed to make any amendments to the statute, they voted in blocs. |
|
|
What were the 5 different types of leges during the Republic ? Why did the category of lex imperfecta exist ? |
Legs which affected the Roman people were the leges rogatae. Leges datae only affeted their colonies . Lex perfecta both forbade an act and invalidated it, if it were performed. One minus quam perfecta did not invalidate the prohibited act but placed a penalty upon the doer or doers. The lexfuria testamentaria is an example of this. a lex imperfecta forbade an act but neither invalidated nor penalised for it. The reason for these existing it probably due to the the Roman formalistic view of a legal transaction. Once a transaction had been completed in a certain form only another appropriate form could get rid of it. |
|
|
Who were plebicities originally binding upon ? What gave them generally legislative effect ? After this what did they become ? Did they pass leges? |
Plebicities were originally only binding upon plebeians and were passed through the conicillium plebis, they acquired general legislative effect under the lex hortensia 287 b.c. After this they came the primary way of reforming private law legislation. They did not actually pass leges although their enactments were commonly known as this. |
|
|
What were sentusconsulta ? When were they were way of legislating? When did they begin to have legislative force? What gave them this force ? What legislative power did senate having during the Republic ? |
Sentus consulta or decrees of the senate became the popular way to legislate during the principate It is not exactly known when it was accepted that the decrees of the senate began to have legislative force but Gaius says they do by the middle of the second century A.D. it was the emperor in the senate which gave them so much power. During the Republic their resolutions did not have the force of law but their assent was required for a magistrate to put a proposal to one of the comitia. |
|
|
When did the constitutions of the emperor's become recognised as law ? and when did they become the exclusive source of law ? What do Gaius and Ulpain say about the pronoucements of the emperor and their effect? According to Gaius where does the emperor get his authority from ? Where is it more likely the Emperor got this authority from ? |
Constitutions of the emperors Became recognised as law from the first half of the 2nd century A.D and the exclusive source of law from about A.D 250 Both Gaius and Ulpain say that the emperor’s pronouncements of the emperor had the force of lex. Gaius says he gets his imperium or right to do this through statute but it was more likely due to the political situation at the time. The emperor had control of the army most of the time and so could be very persuasive if he wanted to be. By this time he would have consolidated his power so didn’t need to make enactments through the senate any more. |
|
|
The emperor had various ways of making constitutions What were edicta ? What is probably the most famous edicta ? What were mandata ? What were decreta ? What did his words count as ? |
Edicta were fairly similar to modern statutes. Emperor like the magistrates had magisterial power and could therefore make edicts setting out the policy he wished to follow. His edict had force everywhere. Most famous was the constitutuio antoniana (A.D 212) He also had other powers he could issue mandata which were administrative instructions to officials he could make decreta which were judicial decisions of the emperor who exercised jurisdiction either as a trial judge or on appeal. Emperor’s words counted a form of precedent. Generally applied existing law but he he could make new law if he wished |
|
|
What were rescripta ? What does Justinian say the sources of law were under him ? - what is actually the case ? |
Resripta were written answers to questions or petitions A judge or litigant could put them and they would get an answer. They would get no judgement but if the facts were as they said they were they would get a applicable ruling. Justinian says in the quote that there were other sources of law but by his time the constituions of the emperor had been for a long time the only source of law. |
|
|
How could the praetor through his edict create new rights ? When would he issue his edict and what did it contain |
Praetor could add new remedies, through this new rights were effectively created as in order to make a claim in roman law you had to have a form of action. Issued his edict at the start of his year in officeedict contained pattern formula for each of the remedies promised and also for those which already existed to enforce the traditional ius civile. |
|
|
Was the praetor able to edit his edict thorough out the day ? What lex occurred in this area and when ? What was the other praetor other than the urban praetor ? what did he do Why do we know little about him ? Who apart from the praetors could make edicts ? |
After edict had been published he could make new remedies during his year but the lex corniela of 67 B.C forbade praetors for going away from their edict unless it was an emergency. Also there was the peregrine praetor but we don’t know much about him. He made the edict which applied to foreigners v foreigners and also citizens v foreigners. We don’t actually know much about this magistrate the universal grant of citizenship A.D 212 must have made him irrelevant Governors could also make edicts and the curule aediles had control of the edict for the market place they made some important changes to the contract of sale. |
|
|
What role did jurists play as a source of law ? Who did they advise- what was the result of this advice ? What did they do with custom ? Over time what happened to the jurists what did they do in this role |
They advised everyone what the law was and interpreted it. this was called respondere and was the jurists most important function according to Thomas. They also advised the magistrates when they were making their edicts. It is safe to assume that a lot of the edicts actually came from jurists They wrote down custom which eventually became part of the ius civile in some cases. Over time they increasingly stopped being independent and started working for the emperor. They would write the constitutions and also make judgments. |
|
|
What type of law did the praetors have the power to create ? When was the praetor's edict issued and what did it contain ?- an example of what it might contain |
Magistrates such as the Urban and peregrine praetor had the power to create ius honorarium or as it is known in English magisterial law. This law stood side by side with ius civile law and often supplemented it. The edict of a praetor was issued at the start of his year in office and within it contained the the circumstances in which the praetor would exercise his power to grant new remedies. For example he could declare that certain conduct by a plaintiff would constitute a defence for his defendant. |
|
|
When did the building of the edict seem to end ? Why did this occur ? What reforms did Hadrian make in regard to the edict- when did these occur ? |
The building of the edict also seems to have largely stopped by the end of the Republic. As Rome turned into principate it would be it would have been out of sync with the political situation for magistrate to have in effect legislative power. Hadrian eventually employed Julian to produce the edict in its final form and this finished between 125 and 130 A.D |
|
|
Why was the praetor able to have such a dramatic influence on the Roman legal system ? How did claims have to be made under the Roman legal system and what did this mean for the praetor ? What was the effect of the praetor creating new actions ? |
The reason why the praetor was able to have such a dramatic impact on roman law was due to roman lawyers thinking in terms of remedies rather than rights, of forms of different legal action rather than causes of the action. Within the Roman formulary system a claim could only be made if it was expressed in a recognised form and this was what made the praetor so powerful as he could new forms of action. The effect of the praetor creating these new actions in practice was that he was in effect creating new rights. It might appear like there was only a new remedy but in fact in substance there was new law. |
|
|
What did the structure of the formula system mean for the praetor when it came it introducing actions ? Were any formula included in the civile iuris ? What did this mean for the power of the praetor - what was he able to do |
The structure of the fomularly system also meant that he could comfortably accommodate for any new action he might wish to create. Furthermore no formulae were included in the civile iuris and therefore the particular formula to be used in each cased needed his authority to make it effective , he could therefore assent to the use of fromula even if such formula had no basis in civil law. He could also refuse to grant a formula even if the right was based on civil law. |
|
|
What did the peregrine praetor do ? What did his edict concern ? - why was this special edict required ? |
He too like the Urban Praetor issued an edict and many of the feature which we find the Urban Praetors edict may have in fact come from the Peregrine praetor. His edict concerned dealings which involved foreigners, with the purpose of the office being to develop a substantive law which could be utilised in dealings between foreigners and between foreigns and citizens. This was required since much of the ius civile only applied to civ’s. |
|
|
What has been suggested about the edict of the peregrine praetor ? Do we know much about the peregrine praetor ? What is the reason for this according to Thomas ? |
It has been suggested that as he did not work within the framework of traditional law he might have been able to build faster and more freely than the Urban Praetor. However what we know of the peregrine praetor and his edict is largely conjecture as none of the Peregrine praetor’s edict survived unlike that of the urban praetor as much of this edict is preserved in the Digest. For Thomas the most likely reason for this is because of the universal grant of citizenship in A.D 212 the office ceased to have practical relevance. |
|
|
As the quote from Gaius states, pronouncements of the emperor had the force of lex. Gaius is not the only primary source which states this, with the famous jurist Ulpain saying much the same. - is the legal basis behind this strong or not ? Why is this view reasonable ? |
Thomas tells us that the legal basis behind the emperor’s pronouncements having so much legal power is unclear. While Gaius does state that he received his imperium or authority from statute, Thomas tells us that the that it is more likely that the emperor received the power to create law as a result of the political reality at the time. The view of Thomas seems highly reasonable given that the emperor had control of the army and could therefore be very persuasive when it came to enacting his will. |
|
|
How did the emperor's legislative powers change over the course of time What were they at the time of Augustus What were they during the dominate ? |
As the Emperor’s increased their dominance over Roman society their legislative powers increased. At the time of Augustus, while he did have control over the Senate he did not claim to be able to legislate on his own , this had clearly changed by the Dominate when emperor’s such as Justinian were the only source of law. |
|
|
While the Roman's did not have a concept of precedent what did they have which was similar to precedent? what did the Emperor's words count as- did he always apply existing law ? |
While the Romans did not have a concept of precedent, the Emperor’s decisions in decreta functioned in a similar way. As the Emperor’s words and the force of law his ruling through decree counted a new law and they are freely quoted by jurists. While the Emperor would generally apply existing law, he was also free to create new law if required. |
|
|
What were rescripts- who was able to submit them Would a rescript include a judgement ? when was the practice of issuing rescripts common ? |
Rescripts or rescripta were written answers to questions or petitions made to the Emperor, with private individuals or public bodies being allowed to submit them. A rescript would not include a judgement since there was no investigation into the facts of the case, but an Imperial ruling would determine the decision of an iudex if the facts were laid out correctly. It seems like the practice of issuing rescripts became increasingly common from the reign of Hadrian onwards, with many of them being fairly basic legal decisions. |
|
|
What reform did Justinian make to rescripts ? In post classical times what reforms were there to the imperial constitutions ? |
Justinian made some reforms in regard to rescript, provided that even if there was no express intimation in a rescript that it was to be binding thereafter. In post classical times it also seems that there was legislation restricting the use of imperial constitutions beyond the case that they were intended for but in the classical period the only rule appears to be that some constitutions were personally and were not to be extended beyond that person. |
|
|
When did the Senate start to have legislative force ? What does Gaius say about this When do we think that the Senate began to have legislative force ? When is the earliest senatus consulta which beyond doubt has legislative force ? |
The assemblies had began since the reign of Augustus to meet less and less regularly and as this had occurred the senate started to become a legislative force. Gaius says it is disputed because they didn’t always have this force.When exactly this occurred is uncertain: the earliest senatus consultum which beyond doubt directly created law dates from the reign of Hadrian (A.D 117-138 although it may have occurred earlier) |
|
|
How did the Senate get legislative force ? Why did the Senate lose its legislative force over time ? When was the last one recorded ? What did sentusconsulta provide a bridge between ? |
It got this power through the emperor sitting in the senate. He or a magistrate would put a forward a proposal which would then be voted on although it would always be passed. Eventually the emperor began to manifest his political will in other ways and the sentusconsulta stopped being a form of legislation. The last recorded one was in the reign of Probus (A.D 276-282) Sentusconsulta formed the bridge between the democratic legislating in the republic and dictating in the dominate. It was democratic at least in theory. |
|
|
What legislative power did the senate have during the Republic ? What did its resolutions do - did they ever become law ? What was the senate's approval required for ? Who made legislation during this period ? |
During this period the senate had no form of legislative power. Its resolutions were merely advice to magistrates, which although it would very rarely be ignored had no legal effect until it had been embodied either in a resolution of the assembly or in a magisterial edict. It did have some legislative power although it could not be said these powers gave it the force of law. their approval was required for all prospective legislation. During this period it was the comitias which passed the legislation. |
|
|
What legislative force did the senate have by around 250 A.D How did have legislative force ? |
From around 250 A.D they had no legislative force and their power to legislate had completely transferred to the emperor. After this time it was only the Emperor who had the force of law. The emperor had now completely consolidated legislative power. |
|
|
How is natural law binding upon/ who can use it ? What is natural law known as by both Gaius and Justinian ? What types of law do the Romans apply according to Gaius ? |
The natural law binds all people and therefore not only Roman’s can use and benefit from legal devices which exist under the natural law. Natural law is known as the law of nations to both authors with the Latin being [ius gentium] Gaius in his institutes also refers to natural law making law that, while the Roman’s apply their own law they also apply natural law. |
|
|
Where do passages regarding natural law fit into the institutes of Gaius and Justinian ? What is an example of a way of contracting which existing under natural law What did this existing under natural law mean ? What is a method of conveyance which was considered part of natural law ? What did this being part of natural law mean ? |
Both Gaius and Justinian locate their passages regarding natural law at the start of their institutes suggesting it was particular important to both of them. An example of a contract which existing under natural law which existed under natural law would be stipulatio. This therefore means that no matter what someone’s state is they could be bound to an agreement via stipulatio. Traditio is an example of a method of conveyance which formed part of the natural law. It did not involve a formal ceremony like the civil modes of transfer instead only requiring a physical transfer. traditio as part of the natural law or law common to all nations could not be used things which were known as Roman things which could only be transferred through the civil law. |
|
|
Justinian states natural law was that which was common to all animals, this was not the only type of law, what was the other type of law? who did this apply to ? What are the sources of this other type of law ? Who is it applicable to? |
a law which is peculiar to a community and Justinian tells us this is called the civil law.Civil law was the law which only applied to Roman Citizens and not those foreigners who might have had contact with the Roman legal system. the Civil law included the body of rules, principles and institutes including that from the Edict (ius honorarium which was only applicable to Roman citizens. |
|
|
What things for much of Roman law could only have their ownership transferred through the civil law ? What methods of transfer had to be used ? As only certain people could use these methods what did this mean ? Who could use the actions created by the praetor ? what would often occur ? |
Various things in Roman law for much of its life could only have their ownership transferred through the cvil law. Res mancipi were things which were deemed important and could only be transferred through mancipatio and iure in cessio. As only Roman citizens could use these modes of transfer therefore only Roman citizens in effect could own them. All the actions originally created by the praetor as they were part of the civil law were also not applicable to peregrines, however often the praetor would grant a kind of fictitious citizenship to allow peregrines to benefit from these actions. |
|
|
Apart from civil law and natural law, what was a third type of law which developed long side these two Who could use this kind What did it have ? |
Over time there also developed a third kind of law This was likely developed by the peregrine Praetor and could be used by foreigners whose numbers in Roman society were becoming increasingly large. It had many similar devices to Roman law but with many of the formal elements stripped from it. |
|
|
What things could not be owned due to natural law ? What does Gaius say about responsa from jurists which are unanimous on a point of law ? What does Justinian say about this issue ? |
River banks, sea shores, the sea where he mentions that when if there is a unanimous view of the jurists on a point of law it has the force of statute. Justinian mentions that “the unanimous decisions” of jurists high standing should be binding upon a judge making a decision. |
|
|
What does Gaius say a judge should do if there is no agreement amongst the jurists ? Why does Justinian not same the same thing? What had also been published by the time of Justinian ? what did this mean ? |
Gaius states that the judge should follow the decision he thinks best if there is no agreement. Justinian does not mention this scenario. This is due to the fact that he was writing in the past tense and by his time there was only one source of law, the constitutions of the emperor. In addition to this by the time of Justinian many of the jurists views had been included in the Digest. The opinions in this had largely been interpolated so as to be compatible with each other. |
|
|
Which was the emperor which made responsa binding on a judge if they were in agreement ? What was the impact of this constitution ? What had been the rule of about responsa during the Republic ? were the judges trained in the law- what impact did this have on the influence of responsa ? |
Gaius wrote his institutes after the time of Hadrian, the emperor who both Buckland, McNair and Nicholas state made responsa binding if all were in agreement. It is unclear what actual impact this constitution of Hadrian would have. For those areas of the law where responsa might be sought it is highly unlikely that the jurists would have a unaminous opinion. Previous to this during the time of the Republic, responsa was not binding upon a iudex. Despite this, as iudex were not trained in the law it is therefore likely that they would use responsa as the basis for their anyway rulings. |
|
|
What honour did Augustus introduce during his time as emperor ?- what did it unquestionably do ? What would be known through the granting of the title |
Augustus during his time as emperor introduced an honour for jurists which would have significantly increased the persuasiveness of their views. He created the title of ius respondendi giving his authority to certain jurists Through this title it would be known who was en favour with the emperor and so it is likely that their responsa would be seen to have particular authority. |
|
|
What does Thomas think the effect of the ius respondendi was ? What about Jolowicz and Nicholas ? What was likely its effects ? |
Thomas tells us that we do not know what the effect of the change was, although given Augustus’s other actions it is unlikely that they were binding . Jolowicz and Nicholas agree with this view as in order for Augustus to grant certain jurists legally binding responsa legislation would be required and Augustus did not assume the power of a legislator. It is more likely that the responsa of a patterned jurist would instead have defacto authority due to the jurist issuing it having the favour of the emperor. |
|
|
Who is the jurist we know was granted the honour- what does this perhaps suggest ? What view does Kunkel present and the ius respondendi ? Nicholas tells us what happened increasingly over time to the jurists and what did this mean for the ius respondendi ? |
Sabinus is the only jurist we know of who received the honour suggesting that perhaps it was not something granted to every great jurist. While this is the case Kunkel presents the view that while it is true that Pomponius does say that Sabinus was the first person to receive the honour, what he actually meant was that he was the first holder who was a eques. Nicholas also mentions that increasingly jurists worked directly for the emperor and so perhaps the title was no longer needed indicating why it fell into disuse. |
|
|
During the time of Augustus how powerful was the office of the emperor in comparison to say Hadrian ? What role does Thomas think the Ius respondendi may have had in Augustus policy ? Does this view make sense |
This is in contrast to the time of Augustus, where the office of the emperor was still consolidating his power. Thomas thinks that the ius respondendi’s creation may have been part of Augustus policy to control the senate as it was only conferred on senatorial jurists. This view of the purpose of the ius respondeni would make sense given that as the Emperor’s tightened their grip on the senate it fell into disuse. |
|
|
When Gaius mentions the law of persons what does he mean ? Who would be the different classes of person in Roman law |
When Gaius mentions the law related to persons, one interpretation presented by Thomas is that he is referring to the different “classes” of people who would have been effected by Roman law. These people would have been those who held office such as, the Praetor or the wider population of the Roman world. Politicians, plebeians and patriarchs could expect different legal treatment for some of the Republic era. |
|
|
Who would plebiscita originally only be binding upon ? - how did this change ? Did all laws apply to everyone ? were specific laws restrictive ? |
Plebiscita, were originally only binding on the plebeians for example, but this changed in 287 B.C due to the lex hortensia. In addition to this there was different classification of laws, those which were applied generally were known as ius commune, while ius singulare rules only applied to a particular person or class. Ius singulare could act as restrictive measures but, could also benefit a class of person. Thomas gives the example of soldiers who did not need to go through the standard legal process of writing a will and thus benefited from their class. |
|
|
When Gaius reforms to the law of actions what is he referring to ? When was the praetor active in Roman law ? How did they exercise this power |
In regard to the law of actions, it is likely that Gaius was referring to legal processes of the Roman world, as is mentioned by Thomas. The Praetors, who from around around the second century B.C until 130 A.D had a great deal of power in this area, although this power started to decline after the reign of Augustus. They could create new forms of action and by doing this create new causes of action. This was possible due to the structure of formula which could be manipulated so to allow new actions to join the edict |
|
|
What did proceedings for an action in Roman law depend upon ? what happened in the 2 stage system ? How did this change in the later years ? |
Proceedings for an action varied depending on the period of Roman civilisation with it being a single stage for later periods after Gaius’s death and a two stage system for the years before this. Within the two stage system, a praetor would make sure an action was written in a formula contained in his edict and an iudex would carry out the trial. In the later years formula was replaced by a system of pleadings, with this being the only system in use by the Dominate. |
|
|
What is the law of things when Gaius refers to it ? What were the two types of rights someone might have in Roman law ? What were these different types of rights tied to ? |
The law of things according to Thomas is likely to be referring to rights and duties of a person. Within Roman law there were two kinds of action which gave people certain rights or duties. One type was, in personam where one party had a claim against another due to a breach of contract or general wrongful act. If a party broke a contract they had failed in their duty to uphold it and therefore claimant had a right to redress. The other type of action was in rem in which a claimant believed they were entitled to something and therefore their right was titled to a specific object not a right tied to a person. |
|
|
What is one theory as to why Gaius divided his institutes into things, persons and actions ? On this interpretation what is the law of persons ? what is the law of things ? What is the law of actions |
every legal situation can be considered from three points of view: the persons involved, the subject matters in issue and the remedies available. on this interpretations the law of persons is a catalogue of classes of persons capable of being affected by Roman law and how they enter and leave their categories; the law of things is a list of rights and duties that such persons may have, their creation and extinction and the law of actions tells of the various legal processes and where they apply. |
