The history of a people's law is as long as that of the people itself, for law of a sort exists in every stage of human society. In the case of Rome, the history of the law is even longer than that of the people, for even after the fall of the empire, Roman law never quite died out, and from the eleventh century A.D. onwards, through the renewed study of Justinian's compilations, it was revived as an active force, and deeply influenced the development of the law throughout Europe. But even if we go no further than the death of Justinian, the stretch of time with which we are concerned is enormous, some thirteen hundred years, counting from the traditional date of the foundation of the city.
If it is difficult to divide general history into periods without introducing a false idea that a people develops by starts rather than continuously, it is still more difficult with legal history, for there are seldom any violent breaks. In general, changes come gradually, and it is only after a long time has elapsed that we can see how great the development has been. Nevertheless, for the sake of clarity, some attempt at a division into periods must be made.
- The period of conjecture
This includes the period of the monarchy and that of the early republic, at any rate down to the drawing up of the famous code known as the "Twelve Tables" which, according to tradition, took place in the years 451-450 B.C. For the law of these early times we have no direct evidence. The statements of historians, where they incidentally mention legal matters, are not to be relied on in detail any more than their other statements, and we have no actual legal texts or inscriptions. This does not, however, mean that we have no foundation for conjectures. It is possible, by careful sifting, to get a good deal of reliable information from the traditions preserved by the historians; we can sometimes deduce an earlier state of affairs from a close inspection of the institutions of a later age, and comparison with other systems of primitive law is often available to fill gaps in our information, or to explain facts which would be unintelligible by themselves.
- From the XII Tables to the end of the republic
It is impossible to find any obvious break in this long stretch of some four hundred years. Of the XII Tables themselves, although they have not survived, we have a considerable number of what are generally believed to be authentic fragments, in quotations from them made by later authors, but our information generally for the earlier centuries of the republic is meagre, and statements for these centuries too are largely conjectural. We know of some laws passed, of the existence of certain legal institutions, and the names of some great lawyers, but of the few professedly legal works written, none has survived, and there are only very few inscriptions. Only as to the constitutional law, owing to the references which the historians necessarily make to it, is our information fairly good.
For the last century and a half of the republic, matters are already different. A few quotations from legal writers of the time survive in Justinian's Digest; we have Cicero's works, and in all of these, not only in the speeches delivered in court, there are numerous references to legal matters, and altogether in court, there are numerous references to legal matters, and altogether we have a good deal of literature from which, though it is not legal, information on legal matters can be deduced. We have, too, the text of a few laws in inscriptions.
But if our sources of information for the republic are still comparatively few, the importance of this period must not be overlooked. It was the period in which the foundations were laid, and it saw the beginning of that legal literature which was to bring Roman law later to so high a pitch of development.
- The first century of the empire
The change from republic to empire did not make any immediate difference to private law, except in so far as, bringing peace after about a century of turmoild, the new order was favourable to legal development. It is also perhaps true to say that now, opportunities for political distinction being necessarily few, the law remained the chief avenue for men who aspired to a public career. Legal literature increased in volume and importance during this period, and a number of quotations survive in the Digest.
- The classical period
It is the second century and first half of the third century of the empire that Roman law reached its fullest development in the hands of great lawyers who were as a rule both practitioners and writers. The period may be divided into an earlier classical period covered by the reigns of Hadrian and the Antonine emperors, and a later classical period under the Severi. Not that there is a break in the continuity of the development, but the work of the earlier age was of a more creative character, while that of the later represents rather the working out of existing principles over the whole field of law. In the Digest there are quotations from all the authors of the classical age, but those taken from two writers of the later period alone comprise about half the work.
- The post-classical period down to the reign of Justinian
With the era of confusion that succeeded the death of Alexander Severus (A.D. 235) there came a rather sudden decline in the value of the legal work done. This in itself is comprehensible enough, but even the restoration of order by Diocletian did not revive legal literature. There were no writers of distinction, and such literature as there was consisted merely of collections and epitomes of previous works. But it must not be imagined that law stood still; the great social and political changes of the sinking empire, and the influx of Greek ideas, due in part to the establishment of the Eastern empire with its capital at Constantinople, found their expression in imperial legislation and, less obviously, in custom and practice.
- The reign of Justinian forms a period by itself, because of the work, which may be roughly described as codification, undertaken by that emperor
Already in the preceding generation there had been something of a revival in legal matters, and Justinian made use of it for the purpose of reducing to order the mass of existing authorities. He was also himself a legislator who enacted a number of statutes, some of which were of great importance. But Justinian's great claim to fame is not his original legislation, nor indeed was the intellectual revival of sufficient strength to enable much original work to be done. The importance of his work lies in the fact that in his "Digest" and in his "Code" he collected a great mass of excerpts from classical authors, and of imperial enactments, and that he gave to Roman law what was, in a sense, its final form.
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Source:
Historical introduction to the study of Roman law, H. F. Jolowicz, pages 4 - 6.
