Law and Society

Roman Law and Legal Theory

Roman law is a complex body of substantive laws, legal doctrine, and theory about law and society that began in the Roman Republic and has evolved continuously since. The general view of law in the ancient Mediterranean world was that it was the “will of the gods.” It was, therefore, not something that mortals could create. It had to be something they found. Different societies used different theories of how this was to be done.

Rome was always a class-based society with two main classes. Patricians were a military aristocracy whose members held large estates that they farmed with unfree labor, slaves, and plebes. Plebes were not uniform, but their main interests were those of small-scale peasant farmers.

Republican legal theory was social constructionist with a presumption of individual freedom and rationality. A “republic” isRes Publica (a public thing). There were several key ideas. Officers were elected for fixed 1-year terms. At first, the chief officer was the praetor, who was chief magistrate and general of the army. His power to command was his imperium. Candidates for magisterial office described the laws they would enforce, so the vote was for both. The principle that connected the idea of law as the will of the gods to this system of election was vox Populi vox Dei (the voice of the people is the voice of the gods).

The popular voice was safeguarded by checks and balances. Soon after the republic was initiated, the office of consul was added above the praetor. The consul was always a divided office, that is, one office occupied by two people. To do anything, the two had to agree. Still later, the office of tribune was added in response to the demand of the plebes. The tribune was elected solely by the plebes and could block any action of a praetor or consul that was adverse to plebian interests.

Magistrates were balanced by the senate, consisting of men who had been through the elected offices and had not done anything to merit censure. Although the magistrates could initiate wars, only the senate could receive ambassadors and make peace.

Finally, the law authorities were separated from the law enforcers. The key text and symbol of the process was the XII Tables, attributed to a committee of 10 men representing patricians and plebes on display in the Forum Romanum. It was not a code but rather a set of key legal problems and solutions that implied what the basic legal principles were without stating them. For the rest of the law, a legal archive was maintained in the college of the Pontiffs, headed by the pontifex maximus.

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