The sources of Roman Law discussed below are those which comprised the ius scriptum in Justinian's time.
- Leges
Those laws resulting from the deliberations of the Roman people in their assemblies on the proposals of magistrates were known as leges. Leges Regiae (enactments of the Kings) were laws supposedly enacted by the early Kings of Rome. The foundation of Roman Law was considered by the Romans to be the lex embodied in the XII Tables.
- Plebiscita
An enactment of the Concilium Plebis was known as a plebiscitum. Plebiscita in their original form were binding only on the plebeians, but Lex Hortensia (287 B.C.) extended their application so that they had full statutory.
- Edicta Magistratuum (Edicts of the Magistrates)
Rules published by those magistrates who possessed ius edicendi (the power of issuing edicts), e.g. the Praetors and Curule Aediles, were known as Edicts. From this important source flowed the vital stream of ius honorarium which swept away much of the rigidity of early Roman Law and introduced more flexible rules and forms of procedure.
- Senatusconsulta (Resolutions of the Senate)
Under the Republic a senatusconsultum was a direction to a magistrate. It took legal effect only when it became part of a magistrate's edict. Under the Empire, resolutions of the Senate lost their importance; the Senate acted merely to confirm proposals of the Emperors. By the end of the third century A.D. senatusconsulta had given way to Constitutiones Principum.
- Responsa Prudentium (Replies of the Jurists)
+ In early Rome the knowledge and interpretation of the law was the monopoly of the College of Pontiffs. The publication by Gnaeus Flavius in 304 B.C. of the formulae of legis actiones and the calendar of court-days ended this monopoly. In 254 B.C. the first plebeian Pontifex Maximus, Tiberius Coruncanius, made a public declaration of his willingness to give information on matters of the law to those who applied for it. The work of Sextus Aelius Paetus also helped to bring the function of interpreting the law into the hands of laymen.
+ There arose a group of professional jurists (jurisprudentes) who concerned themselves with considering and interpreting the XII Tables and the Edicts of the Praetors. Their importance grew and in time the engaged in drafting of documents (scribere), giving advice on procedure (cavere), giving advice in actions to advocates on behalf of litigants (agere) and giving opinions on legal matters generally (respondere).
Note: A jurist did not represent a litigant in court; this was the task of an advocate.
+ Under Augustus ius respondi (the right of replying to questions of law) was granted to distinguished jurists. Their opinions, sealed (signata) and given with the authority of Augustus, were binding on a judge. Under Hadrian, where responsa conflicted, a judge could prefer the one he considered most suitable.
+ Ius Respondendi died out by the end of the third century A.D. The collected writings of eminent jurists of the past came to be treated as authoritative statements of the law. In A.D. 426, the Valentinian Law of Citations attempted to del with problems arising from the mass of responsa.
The Law stated that:
. the writings of the Great jurists (Papinian, Gaius, Paul, Modestinus, Ulpian) were confirmed, and
. where there was a conflict of jurist's opinions, the judge must follow the majority opinion; where opinions were equal, Papinian's opinion was to prevail; where opinions were equal and Papinian had expressed no opinion, the judge was free to adopt any opinion.
+ Responsa contributed in large measure to the development of Roman Law. Important examples were: the recognition of fideicommissa as having legal effect, the recognition of the principles of innominate contracts, and the recognition of codicilli as being legally binding.
Note: Two important and rival schools of jurists grew up in the early Empire: the Sabinians (named aftter Massurius Sabinus, who had received the ius respondendi from Tiberius) led by Ateius Capito, an eminent jurist of Augustus's period, and the Proculians (named after Proculus) led by Antistius Labeo. Their doctrinal differences are not known precisely. It has been suggested that the Sabinians favoured the doctrines of ius gentium, while the Proculians preferred the ius civile.
- Constitutiones Principum (Imperial Constitutions)
In the later stages of the Empire unrestricted legislative power passed into the hands of the Emperors. They legislated in four important modes which were known collectively as constitutiones:
+ Edicta
By issuing proclamations in the capacity of chief magistrate.
+ Mandata
By issuing binding instructions to subordinate officials e.g. governors of provinces.
+ Decreta
By judicial decisions given, for example, on appeal.
+ Rescripta
By giving written answers to those who had consulted the Emperor on a point of law. The queries of an inferior magistrate were answered by epistolae, the queries of private citizens were answered by subscriptiones.
+ Orationes
By submission, in the earlier Empire, of a bill to the Senate.
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Source:
Roman Law, L. B. Curzon, pages 17 - 20.
