Roman law is one of the most remarkable and enduring contributions to civiliza-
tion: many of the familiar norms which regulate our social and economic lives in
the Western world originated in ancient Rome, and the Roman legal institutions
comprise a vital part of the background of several contemporary legal systems. A
study of Roman legal history also provides valuable insights into the origins and
progress of law as a social and cultural phenomenon. Knowledge of ancient Roman
law therefore constitutes an essential component of a sound legal education as well
as the education of a student of history.
This book equips both lawyer and historian with a complete history of Roman
law, from its beginnings c. 500 BC through to its rediscovery in Europe, where it
was widely applied until the eighteenth century.
Combining a law specialist’s informed perspective of legal history with a socio-
political and cultural focus, it examines the sources of law, the ways in which these
laws were applied and enforced, and the ways the law was influenced and
progressed, with an exploration of civil and criminal procedures and special atten-
tion paid to legal science. The final chapter covers the history of Roman law in late
antiquity and appraises the move towards the codification of law that culminated in
the final statement of Roman law: the Corpus Iuris Civilis of Emperor Justinian.
Throughout the book, George Mousourakis highlights the relationship between
Roman law and Roman life by following the lines of the major historical develop-
ments.
Including bibliographic references and organized accessibly by historical era, this
book is an excellent introduction to the history of Roman law for students of both
law and ancient history.
George Mousourakis teaches legal history and comparative law at Niigata
University, Japan, and at the University of Auckland, New Zealand. He practised
law in Greece, obtained his MJur and PhD in the UK, and has taught law at
universities around the world. As well as his work on legal history and comparative
law, he has published extensively in the areas of criminal law and jurisprudence.
A LEGAL HISTORY OF ROME

A LEGAL HISTORY OF
ROME
George Mousourakis
First published 2007
by Routledge
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Simultaneously published in the USA and Canada
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©2007 G
eorge Mousourakis
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Library of Congress Cataloging in Publication Data
Mousourakis, George.
A legal history of Rome/George Mousourakis.
p. cm.
Includes bibliographical references and index.
1. Roman law–History. 2. Civil law–History. 3. Rome–History. I. Title.
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Preface ix
Abbreviations xi
Introduction 1
1 The monarchy and early Republic: the historical, social and
constitutional background 3
The origins of Rome 3
Early Roman society 4
Economic conditions 6
The political organization of the regal period 6
The coming of the Republic 8
The Roman expansion in Italy 9
The republican constitution 10
2 The monarchy and early Republic: the sources of law 19
Introduction 19
Customary law and the laws of the kings 22
The law of the Twelve Tables and the emergence of legislation 24
Interpretation and the origins of jurisprudence 27
3 The monarchy and early Republic: the administration of justice 31

Civil procedure 31
Criminal law and criminal justice 35
4 The late Republic: the historical, social and constitutional
background 39
Rome’s expansion in the Mediterranean world 39
v
CONTENTS
Internal developments during the late Republic 41
The crisis and fall of the Republic 43
5 The late Republic: the sources of law 49
Introduction 49
The edicts of the magistrates 52
Legislation 57
The jurisprudence of the late Republic 59
6 The late Republic: the administration of justice 65
Civil procedure: the formulary system 65
The course of the formulary procedure 70
Extraordinary praetorian remedies 74
Criminal justice 76
The development of a standing court system 77
7 The Principate: the historical, social and constitutional background 83
The reforms of Augustus 83
Organs of the imperial administration 85
The senate, the magistrates and the assemblies 87
The empire in the first and second centuries AD 89
The social classes 92
The army 94
The expansion of the Roman citizenship 95
The crisis of the third century and the end of the Principate 97
8 The Principate: the sources of law 100

Introduction 100
The decline of the comitial legislation 103
The magisterial law 104
Legislation by the senate 105
Imperial law-making 107
The jurisprudence of the Empire 110
The ius publice respondendi 111
The work of the jurists 112
The major jurists 114
Defining features of classical Roman jurisprudence 120
CONTENTS
vi
9 The Principate: the administration of justice 126
Introduction 126
Civil procedure 126
The formulary procedure 126
The cognitio extraordinaria 127
The administration of criminal law 129
The jurisdiction of the senate 131
Imperial jurisdiction 131
10 The Dominate: the historical, social and constitutional background 135
Introduction 135
The reforms of Diocletian 135
The empire of Constantine the Great 139
The emperor and his officials 142
The senate and the old magistrature 145
The social structure of the late Empire 146
The final years of the Roman Empire 151
The collapse of the Roman state in the West 153
The survival and transformation of the empire in the East 154

11 The Dominate: the sources of law 157
Introduction 157
Imperial legislation 160
The jurists’ law 162
The law schools 163
Late imperial juridical literature 165
Trends in post-classical law 167
12 The Dominate: the administration of justice 170
The court system 170
Judicial protection of the lower classes 171
The civil procedure 173
Resolving private disputes through arbitration 175
Criminal law and procedure 176
The criminal justice process 176
CONTENTS
vii
13 The Dominate: the codification of Roman law 179
The first codifications 179
The Theodosian Code 180
The Germanic codes of Roman law 181
The codification of Justinian 183
The first Code 183
The Digest or Pandects 184
The Institutes 187
The second Code 188
The Novels 189
The Corpus Iuris Civilis 190
Conclusion 190
Epilogue 192
Notes 196

Select bibliography 262
Index 269
CONTENTS
viii
From the vantage point of history, Roman law is one of Rome’s most remarkable
and enduring contributions to civilization. In no other field of human endeavour
have the Romans a greater claim to lasting fame than in the creation of a sophisti-
cated legal system that constantly adapted itself to an ever-changing and developing
society. The Western world derived from Roman law most of the basic norms and
institutions concerning the organization and regulation of socio-economic life that
are essential for guaranteeing the ideal that we refer to as the ‘rule of law’. As
Roman law constitutes an important part of the intellectual background of contem-
porary law, the study of its history is a valuable component of a sound legal
education. Without the knowledge derived from such study it is impossible to fully
understand the evolution and functioning of contemporary legal systems and insti-
tutions rooted in Roman law. From the perspective of the historian of civilization,
the study of Roman legal history can provide valuable insights into the origins and
progress of law as a social and cultural phenomenon.
The history of Roman law is divided into two periods. The first period spans
more than a thousand years, from the formation of the city-state of Rome to the
codification of Justinian in the sixth century AD. The second period, although
beginning in the sixth century, did not really become important until the eleventh
century, when Roman law was ‘rediscovered’ in the West and made the object, first
of academic study and then, in the course of time, of far-reaching reception in large
parts of Continental Europe. The present work focuses on the history of Roman
law in antiquity. It examines the nature and development of law-making and the
sources of law, the mechanisms whereby the diverse sources were effectuated, and
the way each legal source influenced the progress of the law. Special attention is
accorded to the development of Roman legal science, which emerged as the most
productive element in Roman legal life by the end of the first century BC. And since

the Romans tended to shape their legal rules in terms of procedural techniques,
rather than in terms of general and abstract norms, the book also explores the
evolution and main features of civil and criminal procedure, and elucidates the
implementation of legal judgments. The last chapter of the book covers the history
of Roman law in late antiquity and appraises the move towards the codification of
law that culminated in the final statement of Roman law: the Corpus Iuris Civilis of
ix
PREFACE
Emperor Justinian. In analysing institutional change in the legal system of ancient
Rome, the present work combines the perspectives of legal history with those of
social, political and cultural history, giving full weight to non-legal factors and
historical events that prompted or contributed to that change. Since Roman legal
history is too long to treat as a whole, it has been divided into a number of shorter
periods. For each period there is first a discussion of the political and socio-
economic situation at the time, then the sources of law and the administration of
justice during the period under consideration are examined in some detail. The end
of the book lists the bibliographical references for further reading, together with the
titles of the studies and research that formed the basis of this work.
The book has been written primarily for students whose course of studies
encompasses Roman law, legal history and comparative law. It is also designed to
provide an accessible source of reference for students and scholars of ancient history
and the classics. As long as it is remembered that the book is not devised as a thor-
ough elaboration of the complexities of substantive Roman law, and is therefore
likely to be used in conjunction with other, more detailed materials, it has a place in
rendering Roman legal history more accessible to readers in many diverse fields of
legal and historical learning.
The impetus for this book emanated from a series of lectures that I delivered in
undergraduate courses at the University of Auckland and the University of
Queensland from 1997 to 2006. I should like to thank my colleagues and students
for their encouragement and constructive criticism when the themes of this book

were discussed in class and seminar presentations. I am also greatly indebted to
Professor A. Bürge and Dr J. Platschek of the Leopold Wenger Institute at the
University of Munich, Professor C. Baldus of the University of Heidelberg,
Professor B. Sirks of the University of Frankfurt and Professor W. Sadurski of the
European University Institute, who all enabled me to spend several months in
Europe as a research scholar and to access the libraries and facilities of their Institu-
tions. My thanks also go to my colleagues and students at Niigata University for
their cooperation and support during the final stages of this project. I must also
tender my thanks to my research assistant, Miss L. Stroud, who read the final draft
and saved me from a number of errors and obscurities, and to my publishers for
their courteous assistance in the realization of this project.
PREFACE
x
Bruns, Fontes Fontes iuris romani antiqui, ed. C. G. Bruns, Tubingen 1909, repr.
Aalen 1969
C. Codex of Justinian
C. Th. Codex Theodosianus
D. Digest of Justinian
FIRA Fontes Iuris Romani Anteiustiniani, I–III, ed. S. Riccobono, J.
Baviera and V. Arangio-Ruiz, Florence 1940–43, 2nd edn, 1968
G. Institutes of Gaius
Girard, Textes Textes de droit romain, ed. P. F. Girard and F. Senn, 7th edn, Paris
1967
Inst. Institutes of Justinian
MGH Monumenta Germaniae Historica
Nov. Novels of Justinian
SZ Zeitschrift der Savigny Stiftung für Rechtsgeschichte
P. Oxy. The Oxyrhynchus Papyri, ed. B. P. Grenflell, A. S. Hunt, et al.,
London 1898
PS Pauli Sententiae

UE Tituli ex corpore Ulpiani in FIRA II, 261–301
XII T. Twelve Tables
xi
ABBREVIATIONS

The history of Roman law in antiquity spans a period of more than a thousand
years. Initially, the law of a small rural community, then that of a powerful city-
state, Roman law became in the course of time the law of a multinational empire
that embraced the entire Mediterranean world. During its long history, Roman law
progressed through a remarkable process of evolution. It advanced through different
stages of development and underwent important transformations, both in substance
and in form, as it adjusted to changes in society, especially those changes derived
from Rome’s expansion in the ancient world. During this long process the interac-
tion between custom, enacted law and case law entailed the formation of a highly
sophisticated system that evolved from layers of different elements. But the great
bulk of Roman law, especially private law, was the product of jurisprudence, not
legislation. This unenacted law was not a confusing mass of shifting customs, but
an enduring tradition developed and transmitted by specialists, initially the
members of the priestly college of the pontiffs and, in later times, the secular jurists.
In the final phases of this process, when law-making was increasingly centralized,
this law, together with statutory law, was compiled and then codified. The codifica-
tion of the law both completed the development of Roman law and formed the
means by which Roman law was subsequently disseminated to the modern world.
Roman history is traditionally divided into three major periods that correspond
to Rome’s three successive systems of political organization: (i) the Monarchy, from
the founding of Rome in the eighth century BC to 509 BC; (ii) the Republic, from
509 BC to 27 BC; and (iii) the Empire, from 27 BC to AD 565. The republican era is
subdivided into two phases: the early Republic, from 509 BC to 287 BC, and the late
Republic, from 287 BC to 27 BC. The imperial era is likewise subdivided into two
parts: the early Empire or Principate, from 27 BC to AD 284, and the late Empire or

Dominate, from AD 284 to AD 565. According to one approach, Roman legal
history follows these divisions as the various legal institutions adapted to the type of
government in power. But Roman legal history may also be divided into periods by
reference to the modes of law-making and the character and orientation of the legal
institutions that prevailed in different epochs. In this respect, the following phases
are distinguished: (i) the archaic period, from the formation of the city-state of
Rome to the middle of the third century BC; (ii) the pre-classical period, from the
1
INTRODUCTION
middle of the third century BC to the early first century AD; (iii) the classical period,
from the early first century AD to the middle of the third century AD; and (iv) the
post-classical period, from the middle of the third century AD to the sixth century
AD. The archaic period covers the Monarchy and the early Republic; the pre-clas-
sical period largely coincides with the later part of the Republic; the classical period
covers most of the first part of the imperial era, known as the Principate; and the
post-classical period embraces the final years of the Principate and the late Empire
or Dominate, including the age of Justinian (AD 527–65).
Although the above divisions facilitate the study of Roman law, one must recall
that Roman law evolved gradually and therefore no distinct lines separate the
different stages of its development. The sources of law were, in varying degrees of
strength from period to period, all present and in force at the same time, and in
diverse ways qualified the influence of each other.
INTRODUCTION
2
The origins of Rome
Archaeological evidence indicates that the territory of Rome was not permanently
inhabited until around 1000 BC. The first people who settled around the Tiber
valley and the area that became Rome were the Latins and the Sabines, two of the
Indo-European peoples referred to collectively as Italians. These groups drifted
down from the North across the Alps into the Italian peninsula at the end of the

second millennium BC. The people of Latium, as this area was later called, were
divided into several independent groups organized in separate communities, but all
considered themselves members of the same broader family with largely common
interests.
1
The Latin culture and conditions of life displayed very little change until
the late seventh century BC. In this period the people of Latium encountered the
Etruscans, who occupied the neighbouring territory of Tuscany, and later the
Greeks and the Carthaginians.
Unlike the Latins, the Etruscans were a city-dwelling people. Their fortified
cities, situated on hilltops and other easy-to-defend positions, formed strong polit-
ical and commercial centres. Each city was politically independent and, until the
sixth or early fifth century BC, was governed by a king chosen from among a few
noble families. Although in later years the kings were replaced by annually elected
magistrates, the Etruscans’ social and political organization remained predomi-
nantly aristocratic in character. Economic life was based on agriculture,
cattle-rearing, industry and commerce. The Etruscans were also a powerful mari-
time people and through sea-trade they established contacts with other
Mediterranean peoples, such as the Greeks and the Phoenicians. The Greek influ-
ence on their culture is reflected in their art and architecture, and is evidenced by
the thousands of tomb inscriptions they left behind. These inscriptions indicate that
the Etruscans adopted a Greek alphabet (probably from the Greek city of Cumae in
Campania) before the end of the seventh century BC.
Towards the end of the seventh century BC, the Etruscans initiated their territo-
rial expansion in Italy by conquering neighbouring Latium. The occupation of
Latium launched the urbanization of the rural communities settled in the area
3
1
THE MONARCHY AND EARLY
REPUBLIC: THE HISTORICAL,

SOCIAL AND CONSTITUTIONAL
BACKGROUND
around the river Tiber that later evolved as the city of Rome. By the middle of the
sixth century BC, the Etruscans had gained control over a large territory extending
from the Adriatic coast in the east to the Alps in the north, and from the Arno river
to the bay of Naples on Italy’s western coast. But the Etruscan domination of Italy
was brief, largely due to the rigidity of their aristocratic system of government that
thwarted the peaceful assimilation of subject populations, and the lack of an effec-
tive political alliance between the Etruscan city-states to secure their territorial
gains. In the late sixth century BC, the Etruscan power dwindled rapidly following a
series of military setbacks and armed revolts of subject populations. Despite the
decline of Etruscan power, the Etruscan culture prevailed in productive and influen-
tial form for several centuries.
From as early as the eighth century BC, Greek colonies were established on the
shores of southern Italy and Sicily. The colonists retained their contemporary
culture and systems of government, but each colony was an independent city-state
owing no political allegiance to its mother city in mainland Greece. The presence of
the Greek element in Italy stimulated the cultural and political development of
other Italian communities. It was largely through the Greek cities that the Etruscans
and, later, the Romans, came into contact with the more advanced civilizations of
the eastern Mediterranean.
According to Roman tradition, Rome was founded in 753 BC by Romulus, a
descendant of the Homeric hero Aeneas. Archaeological evidence confirms the pres-
ence of several settlements from the ninth to the seventh century BC in the area
where Rome was established. These settlements were probably transformed into a
city under Etruscan influence in the seventh century BC. The strategic importance
of the site compelled the Etruscans to drain the marshy land between the hills and
build temples, reservoirs and a city wall. Under an Etruscan ruling elite, the various
groups in the area were unified into a single community and organized according
to the Etruscan system of political organization. Despite the Etruscans’ role in

the formation of Rome and the influence of their civilization on early Roman cul-
ture, the Romans and their social institutions remained predominantly Latin in
character.
Early Roman society
Similar to other Indo-European communities, the early Roman society was strongly
patriarchal and conservative in nature. This pattern remained a distinctive feature of
the Romans during most of their history. Obedience to authority, perseverance and
keeping faith in unsettled times when it seemed propitious to do so were the ideals
that characterized the early Romans’ outlook on life.
The cornerstone of Roman society was the household (familia), a closely knit
unit distinguished by its social and economic cohesion. The head of the family
(pater familias) had absolute control (patria potestas) over all persons, irrespective of
their age, and all property in his household.
2
He also performed the sacred rites of
the household and, as a judge, inflicted punishments for breaches of the customary
THE MONARCHY AND EARLY REPUBLIC
4
norms governing family life. Within the family he was the only person who
possessed any rights in private law.
Families claiming descent from a common ancestor formed a broader social
group, the gens or clan. The gentes played a central role in the earliest period of
Roman history as they performed most of the social, religious and economic func-
tions that were only later gradually assumed by the state. Each gens was
distinguished by its own name (nomen gentilicium), celebrated its own religious rites
(sacra gentilicia), held meetings and passed resolutions that were binding on all its
members. The gentes did not play a direct role in Roman politics during the
Republic, but the ruling families of Rome relied upon clan solidarity as a key
element for advancing their social and political influence.
3

The clans assumed the role of patrons for a motley class of people, the clients
(clientes), whose members had a position of complete personal dependence on the
clans to which they had attached themselves. The individual or clan members that
accorded these people protection were termed, in relation to their clients, patronus
or patroni respectively.
4
Notwithstanding their inferior status, the clients were free
persons in the eyes of the law. A client and patron relationship was hereditary on
both sides and based on reciprocity of socially prescribed duties and obligations.
Thus, a patron was expected to protect his client’s life and bodily and moral
integrity, monitor his financial interests, advise him on legal and other matters and
act as his representative in the courts of law (in which a client could not appear
alone). In return, a client was expected to support his patron on all occasions and
advance his interests by every material or moral resource in his power. Any breach
of the trust enshrined within the client–patron relationship entailed was strongly
condemned by custom and public opinion as contrary to established social and reli-
gious norms. The client system was an extremely important element of Roman
society that played a diverse and essential role throughout Roman history.
5
Another distinctive feature of early Roman society was the division of the popu-
lation into two classes: the aristocrats or patricians, who increasingly asserted
economic, social and political predominance, and a heterogeneous group of
commoners or plebeians.
6
The early patrician aristocracy formed a closed order in
society with clearly defined privileges based on birth and the ownership of landed
property. The members of this class enjoyed all the rights of the Roman
citizenship – only they were Roman citizens in a full sense (cives optimo iuris) – and
monopolized all political power by controlling the senate, the popular assembly and
the various state and religious offices. The plebeian class constituted the great

majority of Rome’s population and was mainly composed of small farmers,
labourers, artisans and tradesmen. Although its members were Roman citizens, they
did not initially enjoy the public rights (iura publica) of the Roman citizenship,
such as the right to hold public office (ius honorum), whether political, military or
religious.
7
Of the private rights (iura privata), the plebeians enjoyed the right of
acquiring, holding and transferring property (ius commercii). But it appears that
they did not possess the right to contract a regular Roman marriage (ius connubii)
and thus intermarriages between plebeians and patricians were forbidden.
8
HISTORICAL, SOCIAL, CONSTITUTIONAL BACKGROUND
5
During the early republican era, the plebeian class continued to grow, while the
old patrician aristocracy rapidly declined in numbers. Although the gap between
the rich and the poor generally expanded, several plebeian families acquired consid-
erable wealth and, from a position of strength, began to challenge the patricians’
monopoly of political power. For nearly two centuries after the establishment of the
Republic, Rome’s internal history was marked by the struggle between the two
classes. During this contest (designated ‘the struggle of the orders’), the plebeians
gradually removed all obstacles to their political emancipation and secured equality
with the patricians regarding civil rights. However, the plebeians’ success only
erased a specific political division and, overall, did not affect the more fundamental
division between the rich and the poor. After the struggle of the orders, the
meaning of the term ‘plebs’ gradually changed. During the last century of the
republican era this term did not denote a politically distinct social group, but
simply the whole mass of lowly and poverty-stricken citizens in contradistinction
with Rome’s new nobility of wealth and office.
9
Economic conditions

In early Roman history, economic life mostly revolved around cattle-rearing and
agriculture. Indeed, for many centuries the cultivation of land was viewed as one of
the most important activities for a Roman citizen. It seems more likely that,
initially, the pasture-land remained largely undivided while the arable land gradu-
ally became open to private ownership. However, there is little agreement among
historians over the scope of the institution of private property or the process of its
introduction into early Roman society.
10
Under the influence of the Etruscans, the
Romans later developed an interest in commerce and industry that was precipitated
by the transformation of their settlements into a city-state. Payment for the various
products was initially made in kind (probably in timber, salt, cattle and such like),
as coinage was not introduced in Rome until the later fourth century BC. Instead of
coins, the early Romans often used in their transactions pieces or ingots of bronze
(aes), whose value was determined according to their weight.
11
After the introduc-
tion of a written alphabet in the fifth century BC, the Romans began to record their
customary rules relating to property and to draft legal documents for certain
economic transactions, testaments and wills.
The political organization of the regal period
According to Roman historical tradition, a succession of seven kings had governed
Rome in the first two and a half centuries after the city’s establishment.
12
The office
of king (rex) was not hereditary but elective; moreover, although technically the
king was supreme warlord, priest and judge, his authority was limited by the clan
organization and the characteristic Roman habit of eliciting advice before action. As
the chief priest of the state, the king acted as an intermediary between the commu-
nity and its gods, and exercised general supervision over all matters relating to

THE MONARCHY AND EARLY REPUBLIC
6
public worship.
13
In times of war, as commander-in-chief of the army, he called the
people to arms and led them in the battlefield. Moreover, as the supreme judge of
the community, the king had jurisdiction over all matters in both public and private
law.
14
In executing these tasks the king would usually seek cooperation from the
heads of the leading families. The royal power appears to have significantly
expanded in the late seventh and sixth centuries BC with the introduction, under
Etruscan influence, of the principle of imperium or supreme command.
The Roman kings turned for advice to a council of clan elders or senate, which
probably represented the collective opinion of the patrician class.
15
The members of
the senate (patres, senatores) were appointed by the king from among the heads of
the patrician families. Besides functioning as the king’s advisory body (regium
consilium), the senate was also entrusted with the task of governing the state during
the period between the death of a king and the election of another (interregnum)
through a succession of senators acting as temporary kings (interreges). Moreover,
the king would often, for convenience, delegate the management of state affairs to
the senate, but the senate was bound to act within its limited authority granted by
the king. As the scope of the senate’s authority was not prescribed officially, the
extent of a king’s power greatly affected the degree of influence this body exercised.
Since the state’s success ultimately depended on the cooperation of the citizenry,
the king and his council found it expedient to inform the people of important deci-
sions and therefore occasionally convoked a gathering called the curiate assembly
(comitia curiata).

16
This assembly was composed of the thirty curiae, or wards, into
which the whole citizen body (populus Romanus) was divided.
17
Its functions prob-
ably had a largely religious nature and included the inauguration of the king and
the election of priests. The assembly also met to consider important matters
concerning the entire community, such as the declaration of war or the conclusion
of peace and the admission of a new clan. Strictly speaking, the curiate assembly
had no legislative power but its most important function was the formal sanc-
tioning of the laws proposed by the king. Moreover, a newly elected king acquired
his imperium, or supreme command, by a special law issued by this assembly – the
lex curiata de imperio. Although ostensibly the assembly had a passive political role
during the regal era, the idea that political authority rested ultimately with the
Roman people as a whole had great importance in the development of Roman
political theory.
According to Roman historians, the military and political organization of Rome
underwent an important change during the reign of King Servius Tullius (c. 578–
535 BC). The Roman army was enlarged and new battle tactics were introduced to
improve its effectiveness.
18
The reformed army was organized, further, into centuries
or groups of a hundred soldiers. In order to recruit and equip these units, the entire
citizen body was divided into five classes on the basis of wealth and each class
supplied a set number of centuries (a total of one hundred and ninety-three
centuries existed). The first class, comprising the wealthiest citizens, those who
could equip themselves with horses and heavy armour, provided most of the
centuries. On the basis of this division of citizens into classes and centuries, a new
HISTORICAL, SOCIAL, CONSTITUTIONAL BACKGROUND
7

political body was formed over time, the centuriate assembly (comitia centuriata),
which replaced the curiate assembly as the chief political body in the state.
According to Roman tradition, the kingship ended with the expulsion of the
Etruscan King Tarquinius Superbus (Tarquinius the Proud) in 509 BC, but the
circumstances surrounding its demise are uncertain. Apparently, the fall of the
Monarchy was devised by the patricians who, chafing under high-handed foreign
monarchs who did not respect their prestige (dignitas) or their advice, led a move-
ment that wrested control of the state from the king. The uprising was probably
inspired by similar movements in neighbouring cities and precipitated by the
general weakening of the Etruscan power in Italy.
The coming of the Republic
The ousting of the Etruscan dynasty launched a new phase in Roman history,
known as the Republic (from res publica or commonwealth). During the early years
of this period the patrician class appeared as the sole beneficiary of the political
revolution that entailed the establishment of the Republic. The patricians possessed
absolute control over the government of the state; they also monopolized the
priestly functions and, in an age when religion, custom and the as yet unwritten law
were indistinguishable, they interpreted custom and ‘found’ laws in their own
interest. On the other hand, the plebeians were denied access to state offices and
remained, both socially and economically, subordinate to the patricians.
However, the patricians’ monopoly of political power was soon challenged by the
plebeians who, defining themselves as an independent order, pressed for political
equality. Prominent plebeians resented their exclusion from office and membership
in the senate, the only means for attaining prestige. Poorer plebeians, constantly
threatened with bankruptcy by the military demands imposed on them by the state,
focused on improving living conditions and securing protection from the arbitrary
power of the patrician magistrates.
19
The patricians, whose power ultimately
depended on plebeian cooperation in fighting Rome’s wars, found themselves under

increasing pressure to make political concessions and gradually gave in, although
not without considerable resistance, to the plebeian demands. Territorial expansion
and improved debtor legislation alleviated the worst forms of economic distress and,
gradually, leading members of the plebeian class elected to the new offices in the
growing state were admitted to the senate. By the middle of the third century BC a
precarious equilibrium between the classes was established and a new nobility
composed of both patrician and wealthy plebeian families dominated the Roman
state. Landmarks in this process embrace the introduction of the tribuni plebis,
plebeian officials acting as spokesmen of the plebeian class and protecting its
members against arbitrary acts of patrician magistrates (c. 494 BC); the promulga-
tion of the Law of the Twelve Tables, the first written statement of Roman law
(c. 450 BC); the removal of the prohibition against intermarriage between patricians
and plebeians by the lex Canuleia (445 BC); the Sextio-Licinian Laws (leges Liciniae
Sextiae), which appear to have recognized the plebeians’ right to hold the consul-
THE MONARCHY AND EARLY REPUBLIC
8
ship, the highest office of the state, by providing that at least one of the two consuls
elected each year should be chosen from the plebeian class (367 BC);
20
and the intro-
duction of the Hortensian Law (lex Hortensia), which decreed that the enactments
of the plebeian assembly (plebiscita) had the full force of laws binding on all Roman
citizens, including patricians, whether or not these enactments were subsequently
approved by the senate (287 BC).
As noted before, the plebeians’ success in the struggle of the orders and the elim-
ination of the political division between the two classes did not entail the
eradication of social and economic inequalities. Instead, a new type of nobility
(nobilitas) emerged in the place of the old patrician aristocracy. The political rights
generated by the plebeians’ success in the struggle of the orders allowed wealthy
plebeian families access to the highest offices of the state that secured membership

in the nobility.
21
In the course of time, the Roman government was monopolized by
a few patrician and plebeian families who provided almost all the high magistrates
and members of the senate. Thus, the fundamentally aristocratic character of the
Roman state did not change. What changed was the constitution of the aristocracy
in power: the old patrician aristocracy was replaced by a new and exclusive patricio-
plebeian nobility based on wealth and office-holding.
The Roman expansion in Italy
Rome’s social and political development during the early republican period was
directly related to her steady expansion throughout Italy. By the end of the fifth
century BC, Rome with the cooperation of the Latin League had suppressed the
threat posed by the marauding mountain tribes and conquered a large part of
Etruria. But in 390 BC Rome suffered a serious setback, when invading Celtic tribes
from Gaul defeated the Romans and their Latin allies and captured the city. The
invaders were finally bought off with gold and withdrew, but the Gallic occupation
survived in the Romans’ memory as a great tragic event of their early history. In the
years that followed, Rome consolidated her earlier conquests and continued her
territorial expansion. In 338 BC the Romans defeated the Latins, who attempted to
break free from Roman domination, and dissolved their alliance. In 295 BC, after a
long struggle, they subdued the powerful Samnite tribes of Central Italy. Like the
Latins and the Etruscans, the Samnites were gradually incorporated into the Roman
state through their admission to the Roman citizen body. The rapidly growing
power of Rome provoked conflict with Tarentum, the most powerful Greek city of
Southern Italy. In 280 BC the Tarentines and their allies summoned the aid of King
Pyrrhus of Epirus. Although Pyrrhus won several victories over the Romans, he was
eventually expelled from Italy in 275 BC and Tarentum was forced to surrender in
272 BC. Like the other Greek cities of Southern Italy, Tarentum became a Roman
ally and agreed to supply Rome with naval forces in return for military protection.
By 264 BC the Romans had achieved political control over the Italian peninsula that

was secured through the creation of a dependable and remarkably flexible system of
federation.
22
HISTORICAL, SOCIAL, CONSTITUTIONAL BACKGROUND
9
The republican constitution
The republican system of government was based on three interrelated elements: the
magistrature (magistratus), the assemblies of the Roman people (comitia) and the
senate (senatus). The latter element appears to have predominated as, in practice,
the approval of the senate was a necessary condition for the efficient functioning of
both the magistrature and the assemblies.
The senate
During the Republic, the senate (senatus) played a pivotal, stabilizing role in Roman
political life. This derived from the prestige and influence of its members and the
relative stability of its constitution. Its resolutions (senatus consulta) were not legally
binding but they possessed special authority in the eyes of the Romans. They were
perceived as a reflection of the accumulated experience and wisdom of the ruling
aristocracy, whose members were engaged as political, religious and military officers
of the state. Moreover, since the magistrates’ term in office was limited in time, the
senate, as a permanent body, exercised a strong influence on them and, despite
internal conflicts, it was capable of pursuing long-term policies with continuity and
consistency.
At the beginning of the republican period the senate was composed of three
hundred members, chosen exclusively from the patrician class. Leading plebeians
were admitted to it after the passing of the leges Liciniae Sextiae in 367 BC. The
senators were selected first by the consuls and, from 443 BC, by the censors
(censores). Initially, the criteria for the selection of senators were not stipulated by
law but mainly derived from custom. However, the discretionary power of the
censors in preparing the senators’ list was limited after the passing of the lex Ovinia
de senatus lectione in the late fourth century BC. This statute probably confirmed

existing practice in directing the censors to select new senators from among the
most prominent citizens. In reality this meant that the senators were chosen from
among those who had occupied the highest offices of the state. Although the senate
did not function as a legislative body, resolutions passed by the assemblies of the
people could not acquire the full force of laws without their subsequent ratification
by the senate (patrum auctoritas). The lex Publilia Philonis of 339 BC provided that
the senate’s approval had to be issued in advance (i.e. before a proposal was put to
the vote of the people). Furthermore, the lex Maenia (early third century BC) stipu-
lated that candidates for the highest offices of the state had to be approved by the
senate before their formal election by the assembly. Although these enactments
entailed many cases where the granting of the senate’s approval was a mere
formality, the senate exercised a strong influence on legislation, for neither the
magistrates nor the assemblies could easily disregard its opinion when discharging
their functions. Moreover, the senate had complete control over foreign policy. It
received envoys of other states, conducted negotiations with foreign powers,
appointed ambassadors (legati) from its own ranks, concluded treaties and alliances
and intervened in disputes between cities in alliance with Rome. The senate appears
THE MONARCHY AND EARLY REPUBLIC
10
to have had the ultimate responsibility of declaring war and concluding peace,
although in principle this power belonged to the people. Within the senate’s
province also fell various duties relating to the administration of public finances,
such as establishing the budget assigned to each magistrate, managing public lands
(ager publicus) and imposing a special taxation (tributum) to cover war expenses.
The senate, assisted by the pontiffs and other priestly colleges, also exercised super-
vision over the state’s religious affairs and addressed matters relating to public
morals. In times of crisis, it could declare a state of emergency by passing a special
resolution (senatus consultum ultimum) that authorized the consuls to apply any
extraordinary measures deemed necessary to avert the danger.
The magistrature

Many modern historians adopt the view that the fall of the Monarchy entailed the
transfer of the king’s power to two supreme magistrates who acted as heads of state,
while the senate sustained its function as a mainly advisory body.
23
A more recent
theory claims that the government of the infant Republic was most likely controlled
by the senate, from whose ranks one or more functionaries were appointed when
necessary for addressing urgent state matters.
24
The institution of the magistracy
(magistratus) appears to have acquired a more definite form after the introduction of
the leges Liciniae Sextiae in 367 BC.
The most important offices of the state during the Republic were the consulship
(consulatus), praetorship (praetura), censorship (censura), aedileship (aedilitas),
quaestorhip (quaestura) and dictatorship (dictatura). These offices were augmented
by the tribunate (tribunatus), although the tribunes were not formally regarded as
magistrates. The category of higher magistrates (magistratus maiores) comprised the
consuls, praetors and censors, while the aediles and the quaestors were regarded as
lower magistrates (magistratus minores). Magistrates elected at regular intervals for a
fixed term were termed ordinarii, whereas those appointed only under special
circumstances and for specific purposes were called extraordinarii. The former cate-
gory embraced the consuls, praetors, censors, curule aediles, quaestors and tribunes.
Extraordinary magistrates were the dictator and the interrex.
25
In principle, any free-
born Roman citizen could be a candidate for public office. No special knowledge or
ability was formally required and, until the passing of the lex Villia Annalis in 180
BC, no specific law prescribed a minimum age of eligibility for magistrates. It was
recognized as a general norm, however, that a person could not be appointed to the
highest offices of the state without first progressing through the lower ones – a

process referred to as cursus honorum.
26
The magistrates’ main duties encompassed the implementation of the decrees
issued by the people and the senate, and the administration of the laws. The term
potestas denoted the executive power possessed by every magistrate as soon as he was
elected to office. By virtue of this power, a magistrate could execute the various
duties and responsibilities of his office. In exercise of his potestas, he could issue
executive orders (ius edicendi) and employ any coercive or punitive measures
HISTORICAL, SOCIAL, CONSTITUTIONAL BACKGROUND
11
considered necessary for the enforcement of his orders (ius coercendi, coercitio
minor). Besides the potestas attached to all state officials, the highest magistracies
(the consulship, praetorship and dictatorship) were accompanied by a special power
known as imperium.
27
Only magistrates with imperium could assume command of
an army, convene and preside over the assemblies of the people (ius agendi cum
populo), summon and preside over the senate (ius agendi cum senatu), and celebrate
triumphs after victory in battle (ius triumphandi). Moreover, only these magistrates
had the full power of iurisdictio, i.e. the power of prescribing the legal principles for
determining legal disputes,
28
and could impose severe penalties for violations of
their orders, including capital punishments (ius coercendi, coercitio maior).
The Roman magistrates’ tenure of office was limited to one year, with the excep-
tion of the censors who were appointed for eighteen months, and the dictators
whose term in office did not exceed six months. The principle of annuality served as
an important constitutional safeguard against the danger of abuse of power, which a
long term in office could entail.
29

Besides annuality, another important principle
governing the institution of the magistrature was collegiality (collegium): the same
magistracy was held by at least two persons,
30
each with equal potestas and, regarding
the higher magistrates, equal imperium. The principle of collegiality was designed as
a barrier against abuses of power by state officials. Thus, a magistrate could not
enforce a decision or order without the consent or acquiescence of his colleague. A
magistrate could prevent the execution of a decision of his colleague either in
advance (prohibitio) or after its publication (intercessio, ius intercessionis).
The highest executive office of the state was held by two annually elected offi-
cials initially called praetores or iudices and, probably after the enactment of the leges
Liciniae Sextiae (367 BC), praetores consules or simply consules. The consuls were
elected by the assembly of the centuries (comitia centuriata), which was convened
for that purpose by one of the highest magistrates. Originally, the consuls’ powers
were very broad but in later years, especially after the leges Liciniae Sextiae and the
introduction of the praetorship and other offices, some of their duties were trans-
ferred to other magistrates. As bearers of imperium domi, the consuls were in charge
of the government at home and exercised control over all other state officials.
31
They
convened the senate and the assemblies, presided over them as chairmen and intro-
duced matters for senate discussion and legislative proposals for assembly voting. In
addition to ensuring that the decisions of the assemblies and the senate were prop-
erly executed, they had responsibility for maintaining law and order in the city and
could impose penalties for civil disobedience. Moreover, as bearers of imperium
militiae, they acted as commanders-in-chief of the army, with the authority to
recruit troops, appoint officers and distribute the spoils of war. Before the introduc-
tion of the praetorship in 367 BC, they governed the administration of justice in
relation to both civil and criminal matters.

In crises that threatened the security of the state, each consul had the right to
appoint (with the senate’s approval) a special magistrate, the dictator, in whose
hands all state power was concentrated. During his term in office the dictator could
introduce any measures he deemed necessary without obtaining the consent of any
THE MONARCHY AND EARLY REPUBLIC
12