Roman Law: Edicts, Laws, and Constitutions
Item 9: The Praetor’s Edict and Legal Evolution
The praetor’s electoral program, outlining his proposed policies, transforms into the Edict upon election under the Ius Edicendi. This Edict, renewed annually, adapts to current needs. It acts as a binding norm for citizens, outlining the praetor’s intended actions and limiting his power. Two types of edicts exist:
- The Edictum Perpetuum, issued at the year’s start, comprises two parts: the Pars Tralaticia (compiled from previous edicts) and the Pars Nova (new provisions).
- The Edictum Repentinum addresses unexpected situations.
The Praetor’s Edict gained significance from 150 BC, influencing court decisions and supplementing the Ius Civile. The Ius Honorarium, derived from the praetor’s authority, developed alongside the Ius Civile. The Edict played a crucial role in legal evolution during the Republican era, but its influence waned as written law gained prominence.
1. The Perpetual Edict
Around the first century BC, a compilation of the Edict, known as the Edictum Perpetuum, was created. Magistrates incorporated its standards and concepts, granting further provisions like Stipulations, Restitutio in Integrum, Injunctions, and Missiones in Possessionem.
2. The Edict of Aediles Curules
Following the classical period, a systematic approach emerged. In the post-classical era, existing legal material was collected and compiled. A draft, outlining intended actions, became the Edict of Aediles Curules. This Edict was crucial as it updated market regulations. Magistrates adopted this legislation, investigating illegal activities such as slave trading.
Item 8: The Lex: Definition and Types
A Lex was a discussion of normative content, conducted by the people assembled in comitia, regarding a magistrate’s question and resolved in meetings. In Rome, all assembly deliberations held legal force. Typically written, a Lex had three parts:
- The Praescriptio: Stated the presiding magistrate’s name, proposer, and voting date.
- The Rogatio: Contained the law’s content.
- The Sanctio: Sometimes specified penalties for non-compliance, ensuring the Lex didn’t violate established customs (Mores Maiorum).
Different types of Leges existed:
- Lex Perfecta: Acts violating the law were null and void.
- Lex Minus Quam Perfecta: Acts violating the law were valid but incurred a fine.
- Lex Imperfecta: Acts violating the law were valid without sanction.
Other classifications included:
- Leges Rogatae: Standard laws passed by assemblies.
- Leges Dictae: Ordinances issued for sales or concessions.
- Leges Datae: Laws specific to municipalities, requiring a provincial magistrate.
Three key expressions relate to legal changes:
- Ab Rogatio: Repeal of a law.
- Ex Derogatio: Validation of a part of a law.
- Ob Rogatio: Implicit invalidation of a law by a later one.
2. Legal Importance of Plebiscites
Alongside Leges, Rome had Plebiscita, resolutions passed by plebeian assemblies upon proposals from plebeian magistrates. The Lex Hortensia (287 BC) equated Plebiscita with Leges, but differences remained. Plebiscita were named after the proposing magistrate. With the rise of the principate, the influence of Plebiscita diminished. Leges also declined, replaced by imperial constitutions. One of the last significant laws was the Lex Agraria of Nerva.
3. Imperial Constitutions: Classes
Imperial constitutions were direct orders from the Princeps. Unlike laws, they originated from the Princeps’ authority. Initially applied to specific cases, constitutions eventually extended to general pronouncements. Several types existed:
- Edicta: Based on proconsular power, these addressed private law matters and were publicly posted.
- Mandata: Administrative instructions, typically directed to provincial governors.
- Rescripta: The Princeps’ written opinions on legal disputes, issued as letters (Epistulae) or annotations (Subscriptiones) on submitted petitions.
- Decreta: Decisions made by the Princeps in cases brought before him. During the principate, the Princeps could adjudicate any case.
In addition to these, there were Senatus Consulta.
4. Senatus Consulta
Senatus Consulta were pronouncements issued by the Senate. In the Republican era, Senate opinions lacked direct legal force but held indirect influence through magistrates. During the principate, the Princeps enhanced the Senate’s authority as assemblies declined. By the second century AD, Senatus Consulta gained the force of law. They offered advantages over Leges, including streamlined procedures and opportunities for debate and refinement. Like Leges, Senatus Consulta had distinct parts: the Praescriptio (date and location of the meeting), the Relatio (summary of the reasons for the Senate’s opinion), and the Senatus Consultum (the actual resolution). Senate pronouncements often lacked clear titles.