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122-588: Roman law and tradition ( mos majorum ) established the power of the pater familias within the community of his own extended familia . In Roman family law, the term "Patria potestas" (Latin: “power of a father”) refers to this concept. He held legal privilege over the property of the familia , and varying levels of authority over his dependents: these included his wife and children , certain other relatives through blood or adoption, clients , freedmen and slaves. The same mos majorum moderated his authority and determined his responsibilities to his own familia and to

244-449: A census . As part of the census, the emperor had the power to grant citizenship to any individual, and to assign individuals to a new social class (the three imperial classes were the senators , the equestrians , and the plebeians ), which, therefore, gave the emperor unchallenged control over senate membership. The emperor also had the power to interpret laws and to set precedents, which he did by issuing either an edicta , decreta , or

366-402: A rescripta . Edicta usually addressed matters associated with the army, treasury, or food supply. The decreta were judicial decisions. The rescripta were issued in response to important questions asked by private citizens. Under the republic, the aerarium Saturni held the state treasury, but only the senate had control over this treasury. While the imperial senate retained control over

488-432: A Roman citizen ( status civitatis ) unlike foreigners, or he could have been free ( status libertatis ) unlike slaves, or he could have had a certain position in a Roman family ( status familiae ) either as the head of the family ( pater familias ), or some lower member alieni iuris (one who lives under someone else's law). The history of Roman Law can be divided into three systems of procedure: that of legis actiones ,

610-401: A Roman male citizen. The parties could agree on a judge, or they could appoint one from a list, called album iudicum . They went down the list until they found a judge agreeable to both parties, or if none could be found they had to take the last one on the list. No one had a legal obligation to judge a case. The judge had great latitude in the way he conducted the litigation. He considered all

732-400: A capital offense to harm, to attempt to harm, or to obstruct the emperor, and in time, this power provided the basis for laws that made it a capital offense, publishable by death, to even speak ill of the emperor. His sacrosanctity also gave him the authority to order the use of capital punishment against any individual. Under the republic, Plebeian Tribunes held these same powers, but what made

854-405: A complete and coherent system of all applicable rules or give legal solutions for all possible cases. Rather, the tables contained specific provisions designed to change the then-existing customary law . Although the provisions pertain to all areas of law, the largest part is dedicated to private law and civil procedure . Among the most consequential laws passed during the early Republic were

976-677: A higher office, which was usually either the Plebeian Tribunate or the Aedileship. After this, they had to wait for another year before they could seek election to a higher office, which was typically the Praetorship. Members of Patrician (aristocratic) families could seek election to the Praetorship after serving as Quaestor, and they did not have to serve as Plebeian Tribune or Aedile before this. However, since one had to be at least thirty years old before they could run for

1098-452: A microcosm of the Roman state. In Roman law, the potestas of the pater familias was official but distinct from that of magistrates. Only a Roman citizen held the status of pater familias , and there could be only one holder of that office within a household. He was responsible for its well-being, reputation and legal and moral propriety. The entire familia was expected to adhere to

1220-552: A second decemvirate ever took place. The decemvirate of 451 BC is believed to have included the most controversial points of customary law, and to have assumed the leading functions in Rome. Furthermore, questions concerning Greek influence on early Roman Law are still much discussed. Many scholars consider it unlikely that the patricians sent an official delegation to Greece, as the Latin historians believed. Instead, those scholars suggest,

1342-432: A single mother. Mandé society , while more often organized along patrilineal lines , exhibited some matrilineal lines and generally reserved powerful positions of political and household authority for women. In Igbo society , women were “most celebrated” for their roles as mothers and wives, but also participated in independent market activity and in communal defense. As a sizable proportion of enslaved people transported to

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1464-502: A slave three times, he was no longer subject to patria potestas . The pater familias had the power to approve or reject marriages of his sons and daughters; however, an edict of Emperor Augustus provided that the pater familias could not withhold that permission lightly. The filii familias (children of the family) could include the biological and adopted children of the pater familias and his siblings. Because of their extended rights (their longa manus , literally "long hand"),

1586-461: A woman legally remained part of her birth family, under the hand of their pater familias . Women emancipated from the potestas of a pater familias were independent by law ( sui iuris ) but had a male guardian appointed to them. A woman sui iuris had the right to take legal action on her own behalf but not to administer legal matters for others. The laws of the Twelve Tables required

1708-420: Is a legal action by which the plaintiff demands that the defendant return a thing that belongs to the plaintiff. It may only be used when plaintiff owns the thing, and the defendant is somehow impeding the plaintiff's possession of the thing. The plaintiff could also institute an actio furti (a personal action) to punish the defendant. If the thing could not be recovered, the plaintiff could claim damages from

1830-577: Is believed that Roman law is rooted in the Etruscan religion , emphasizing ritual. The first legal text is the Law of the Twelve Tables , dating from the mid-fifth century BC. The plebeian tribune, C. Terentilius Arsa, proposed that the law should be written in order to prevent magistrates from applying the law arbitrarily. After eight years of political struggle, the plebeian social class convinced

1952-461: Is said to have published around the year 300 BC the formularies containing the words which had to be spoken in court to begin a legal action. Before the time of Flavius, these formularies are said to have been secret and known only to the priests. Their publication made it possible for non-priests to explore the meaning of these legal texts. Whether or not this story is credible, jurists were active and legal treatises were written in larger numbers before

2074-477: Is traditionally the part of the law that changes least. For example, Constantine started putting restrictions on the ancient Roman concept of patria potestas , the power held by the male head of a family over his descendants, by acknowledging that persons in potestate , the descendants, could have proprietary rights. He was apparently making concessions to the much stricter concept of paternal authority under Greek-Hellenistic law. The Codex Theodosianus (438 AD)

2196-594: The Lex Canuleia (445 BC), which allowed marriage ( conubium ) between patricians and plebeians ; the Leges Liciinae Sextiae (367 BC), which restricted the amount of public land ( ager publicus ) that any citizen could occupy, and stipulated that one of the two annual consuls must be plebeian; the Lex Ogulnia (300 BC), which permitted plebeians to hold certain priestly offices; and

2318-582: The Lex Hortensia (287 BC), which stated that the determinations of plebeian assemblies (plebiscita) would henceforth be binding on the entire populus Romanus , both patricians and plebeians. Another important statute from the Republican era is the Lex Aquilia of 286 BC, which may be regarded as the root of modern tort law . Rome's most important contribution to European legal culture

2440-656: The Battle of Actium and Mark Antony 's suicide, what was left of the Roman constitution died along with the Republic. The first Roman emperor , Augustus , attempted to manufacture the appearance of a constitution that still governed the Empire, by utilising that constitution's institutions to lend legitimacy to the Principate , e.g., reusing prior grants of greater imperium to substantiate Augustus' greater imperium over

2562-623: The French civil code came into force. In the course of the 19th century, many European states either adopted the French model or drafted their own codes. In Germany, the political situation made the creation of a national code of laws impossible. From the 17th century, Roman law in Germany had been heavily influenced by domestic (customary) law, and it was called usus modernus Pandectarum . In some parts of Germany, Roman law continued to be applied until

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2684-503: The Plebeian Tribunes under the old republic) gave the emperor authority over Rome's civil government, while the proconsular powers (similar to those of military governors, or Proconsuls , under the old republic) gave him authority over the Roman army. While these distinctions were clearly defined during the early empire, eventually they were lost, and the emperor's powers became less constitutional and more monarchical. Under

2806-417: The Principate in 27 BC. In the period between about 201 to 27 BC, more flexible laws develop to match the needs of the time. In addition to the old and formal ius civile a new juridical class is created: the ius honorarium , which can be defined as "The law introduced by the magistrates who had the right to promulgate edicts in order to support, supplement or correct the existing law." With this new law

2928-405: The aerarium Saturni , this control declined over time. The emperor Augustus established two new treasuries, which future emperors would always control, called the fiscus Caesaris and the aerarium militare . The fiscus Caesaris replaced the aerarium Saturni , and thus became the principal treasury in Rome. The aerarium militare was of minor importance, and its only significant function

3050-552: The ecclesiastical courts and, less directly, through the development of the equity system. In addition, some concepts from Roman law made their way into the common law. Especially in the early 19th century, English lawyers and judges were willing to borrow rules and ideas from continental jurists and directly from Roman law. The practical application of Roman law, and the era of the European Ius Commune , came to an end when national codifications were made. In 1804,

3172-524: The familia under its pater . The domestic responsibilities of the pater familias included his priestly duties ( sacra familiae ) to his "household gods" (the Lares and Penates ) and the ancestral gods of his own gens . The latter were represented by the di parentes as ancestral shades of the departed, and by the genius cult. Genius has been interpreted as the essential, heritable spirit (or divine essence, or soul) and generative power that suffused

3294-455: The familia , which were decisions by committee ( consilium ). The family consilia probably involved the most senior members of his own household, especially his wife, and, if necessary, his peers and seniors within his extended clan ( gens ). Augustus 's legislation on the morality of marriage co-opted the traditional potestas of the pater familias . Augustus was not only Rome's princeps but also its father ( pater patriae ). As such, he

3416-467: The formulary system , and cognitio extra ordinem . The periods in which these systems were in use overlapped one another and did not have definitive breaks, but it can be stated that the legis actio system prevailed from the time of the XII Tables (c. 450 BC) until about the end of the 2nd century BC, that the formulary procedure was primarily used from the last century of the Republic until the end of

3538-458: The gens and each of its members. As the singular, lawful head of a family derived from a gens , the pater familias embodied and expressed its genius through his pious fulfillment of ancestral obligations. The pater familias was therefore owed a reciprocal duty of genius cult by his entire familia . He in his turn conferred genius and the duty of sacra familiae to his children—whether by blood or by adoption. Roman religious law defined

3660-470: The imperial provinces and the prorogation of different magistracies to justify Augustus' receipt of tribunician power. The belief in a surviving constitution lasted well into the life of the Roman Empire . Stipulatio was the basic form of contract in Roman law. It was made in the format of question and answer. The precise nature of the contract was disputed, as can be seen below. Rei vindicatio

3782-414: The pater familias to ensure that "obviously deformed" infants were put to death . The survival of congenitally disabled adults, conspicuously evidenced among the elite by the partially-lame Emperor Claudius , demonstrates that personal choice was exercised in the matter. The pater familias had the power to sell his children into slavery ; Roman law provided, however, that if a child had been sold as

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3904-527: The patres familias also had a series of extra duties: duties towards the filii and the slaves, but some of the duties were recognized not by the original ius civile but only by the ius gentium , specially directed to foreigners, or by the ius honorarium , the law of the Magistratus , especially the Praetor , which would emerge only in a latter period of Roman law. Adult filii remained under

4026-471: The patricians to send a delegation to Athens to copy the Laws of Solon ; they also dispatched delegations to other Greek cities for a like reason. In 451 BC, according to the traditional story (as Livy tells it), ten Roman citizens were chosen to record the laws, known as the decemviri legibus scribundis . While they were performing this task, they were given supreme political power ( imperium ), whereas

4148-423: The 2nd century BC. Among the famous jurists of the republican period are Quintus Mucius Scaevola , who wrote a voluminous treatise on all aspects of the law, which was very influential in later times, and Servius Sulpicius Rufus , a friend of Marcus Tullius Cicero . Thus, Rome had developed a very sophisticated legal system and a refined legal culture when the Roman republic was replaced by the monarchical system of

4270-537: The Early Republic, a wife was "handed over" from the legal control of her father to the legal control of (the father of) her husband in the form of marriage cum manu (Latin cum manu means "with hand"). If the man divorced his wife, he or his father had to give the dowry and the wife back to the pater familias of the wife's former family. By the Late Republic, manus marriage had become rare, and

4392-506: The German civil code ( Bürgerliches Gesetzbuch , BGB) went into effect in 1900. Colonial expansion spread the civil law system. Today, Roman law is no longer applied in legal practice, even though the legal systems of some countries like South Africa and San Marino are still based on the old jus commune . However, even where the legal practice is based on a code, many rules deriving from Roman law apply: no code completely broke with

4514-596: The Germanic kings, however, the influence of early Eastern Roman codes on some of these is quite discernible. In many early Germanic states, Roman citizens continued to be governed by Roman laws for quite some time, even while members of the various Germanic tribes were governed by their own respective codes. The Codex Justinianus and the Institutes of Justinian were known in Western Europe, and along with

4636-831: The Isaurian issued a new code, the Ecloga , in the early 8th century. In the 9th century, the emperors Basil I and Leo VI the Wise commissioned a combined translation of the Code and the Digest, parts of Justinian's codes, into Greek, which became known as the Basilica . Roman law as preserved in the codes of Justinian and in the Basilica remained the basis of legal practice in Greece and in

4758-569: The Middle Ages. Roman law regulated the legal protection of property and the equality of legal subjects and their wills, and it prescribed the possibility that the legal subjects could dispose their property through testament. By the middle of the 16th century, the rediscovered Roman law dominated the legal practice of many European countries. A legal system, in which Roman law was mixed with elements of canon law and of Germanic custom, especially feudal law , had emerged. This legal system, which

4880-462: The New World in the trans-Atlantic trade originated from Akan, Mandé, and Igbo societies, some historians have noted a connection between the matrilineal elements of these West African cultures and the centrality of women and mothers in enslaved peoples’ family units. These alternative modes of structuring household and family life among enslaved people threatened some planters’ intentions to serve as

5002-518: The Praetorship became obvious when the emperor Hadrian issued a decree (the edictum perpetuum ), which robbed the Praetors of their authority to issue edicts and transferred most of their judicial powers to either the Consuls or to district court judges. Under the empire, the Plebeian Tribunes remained sacrosanct, and, in theory at least, retained the power to summon, or to veto, the senate and

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5124-464: The Praetorship, Patricians ultimately had no true advantage over Plebeians. After an individual served as Praetor, they had to wait for another two years before they could seek election to the Consulship, and so, while it was not specifically mandated, candidates for the Consulship usually had to be at least thirty-three years old. After a magistrate's term in office expired, they could run again for

5246-535: The Quaestors lost their authority over state funds, but retained their authority over official documents. Julius Caesar had increased the number of Aediles to six, and while Augustus retained this number, he also transferred control of the grain supply from the Aediles to a board of commissioners. It wasn't until after they lost the power to maintain order in the city, however, that they truly became powerless, and

5368-739: The Roman Empire The executive magistrates of the Roman Empire were elected individuals of the ancient Roman Empire . During the transition from monarchy to republic , the constitutional balance of power shifted from the executive (the Roman King ) to the Roman Senate . During the transition from republic to empire, the constitutional balance of power shifted back to the executive (the Roman Emperor ). Theoretically,

5490-460: The Roman civil law ( ius civile Quiritium ) that applied only to Roman citizens, and was bonded to religion; undeveloped, with attributes of strict formalism, symbolism, and conservatism, e.g. the ritual practice of mancipatio (a form of sale). The jurist Sextus Pomponius said, "At the beginning of our city, the people began their first activities without any fixed law, and without any fixed rights: all things were ruled despotically, by kings". It

5612-482: The Roman context, various slavery regimes in world history have adopted the concept of pater familias to structure the legal, cultural, and social relationships between slaveowners and enslaved people. The law code of fifteenth-century Valencian society , for example, adopted the classical Roman conception of familia to recognize servant laborers and enslaved persons as members of the domestic household, roughly equal in status to family members given their subjecthood to

5734-594: The Roman household model of pater familias to the level of broader society. The patriarchal mode of slavery that Southern U.S. and Caribbean slaveowners attempted to establish often clashed with the familial structures enslaved people themselves constructed. Some of these family structures had roots in West African societies . The Akan society of the Gold Coast, for example, was largely matrilineal and composed of individual “clans or lineages,” descended from

5856-405: The Roman tradition. Rather, the provisions of the Roman law were fitted into a more coherent system and expressed in the national language. For this reason, knowledge of the Roman law is indispensable to understand the legal systems of today. Thus, Roman law is often still a mandatory subject for law students in civil law jurisdictions . In this context, the annual International Roman Law Moot Court

5978-556: The Romans acquired Greek legislations from the Greek cities of Magna Graecia , the main portal between the Roman and Greek worlds. The original text of the Twelve Tables has not been preserved. The tablets were probably destroyed when Rome was conquered and burned by the Gauls in 387 BC. The fragments which did survive show that it was not a law code in the modern sense. It did not provide

6100-478: The Senate controlled the treasury; and the consuls had the highest juridical power. By the middle of the 3rd century, the conditions for the flourishing of a refined legal culture had become less favourable. The general political and economic situation deteriorated as the emperors assumed more direct control of all aspects of political life. The political system of the Principate , which had retained some features of

6222-419: The ability to absolve the enslaved of any wrongdoing, trying them by jury, or sentencing them to capital punishments. While some Roman patres familias permitted enslaved individuals in their households to establish quasi-marital unions (known as contubernia ) as a means of forming communal bonds among the enslaved, these unions were only recognized within the household and carried no legal bearing outside of

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6344-443: The absolute authority of the pater familias weakened, and rights that theoretically existed were no longer enforced or insisted upon. The power over life and death was abolished, the right of punishment was moderated and the sale of children was restricted to cases of extreme necessity. Under Emperor Hadrian , a father who killed his son was stripped of both his citizenship and all its attendant rights, had his property confiscated and

6466-649: The ancient Roman legal texts, and to teach others what they learned from their studies. The center of these studies was Bologna . The law school there gradually developed into Europe's first university. The students who were taught Roman law in Bologna (and later in many other places) found that many rules of Roman law were better suited to regulate complex economic transactions than were the customary rules, which were applicable throughout Europe. For this reason, Roman law, or at least some provisions borrowed from it, began to be re-introduced into legal practice, centuries after

6588-475: The assemblies. The emperor, who held tribunician powers, dominated the College of Tribunes, and while technically any member of the college could veto any other member, no Tribune dared to oppose the emperor. The Tribune's power over the assemblies meant almost nothing, since the assemblies themselves had no real power, and thus the only real influence that a Tribune had come in the form of the occasional veto over

6710-548: The authority of the pater familias . As a consequence of this, patres familias maintained honor and status within their communities by fulfilling both the material and spiritual needs of all members of the household, including enslaved persons. This included providing for the food, clothing, shelter, education, and baptism of enslaved persons. When they reneged on these obligations, the law code considered them to forfeit their right to ownership of their enslaved, leading in some cases to disputes between paternal heads of household over

6832-446: The authority of their pater and could not themselves acquire the rights of a pater familias while he lived. Legally, any property acquired by individual family members (sons, daughters or slaves) was acquired for the family estate: the pater familias held sole rights to its disposal and sole responsibility for the consequences, including personal forfeiture of rights and property through debt. Those who lived in their own households at

6954-504: The broader community. He had a duty to father and raise healthy children as future citizens of Rome, to maintain the moral propriety and well-being of his household, to honour his clan and ancestral gods and to dutifully participate—and if possible, serve—in Rome's political, religious and social life. In effect, the pater familias was expected to be a good citizen. In theory at least, he held powers of life and death over every member of his extended familia through ancient right. In practice,

7076-427: The bureaucratization, this procedure disappeared, and was substituted by the so-called "extra ordinem" procedure, also known as cognitory. The whole case was reviewed before a magistrate, in a single phase. The magistrate had obligation to judge and to issue a decision, and the decision could be appealed to a higher magistrate. German legal theorist Rudolf von Jhering famously remarked that ancient Rome had conquered

7198-419: The classical period (c. AD 200), and that of cognitio extra ordinem was in use in post-classical times. Again, these dates are meant as a tool to help understand the types of procedure in use, not as a rigid boundary where one system stopped and another began. During the republic and until the bureaucratization of Roman judicial procedure, the judge was usually a private person ( iudex privatus ). He had to be

7320-464: The concept to rationalize planter rule, claiming themselves sovereigns of their households who provided for all constituent members, and demanding their loyalty and labor in return. Drawing on the Roman precedent in this way, these planters claimed that their enslaved laborers were their “dependents,” who ultimately benefitted from the paternalistic ordering of the household. Southern newspapers and print media repeatedly promoted this idea in order to square

7442-454: The core principles and laws of the Twelve Tables , which the pater familias had a duty to exemplify, enjoin and, if necessary, enforce, so within the familia Republican law and tradition ( mos majorum ) allowed him powers of life and death ( vitae necisque potestas ). He was also obliged to observe the constraints imposed by Roman custom and law on all potestas . His decisions should be obtained through counsel, consultation and consent within

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7564-844: The courts of the Eastern Orthodox Church even after the fall of the Byzantine Empire and the conquest by the Turks, and, along with the Syro-Roman law book , also formed the basis for much of the Fetha Negest , which remained in force in Ethiopia until 1931. In the west, Justinian's political authority never went any farther than certain portions of the Italian and Hispanic peninsulas. In Law codes issued by

7686-430: The current era are the period during which Roman law and Roman legal science reached its greatest degree of sophistication. The law of this period is often referred to as the "classical period of Roman law". The literary and practical achievements of the jurists of this period gave Roman law its unique shape. The jurists worked in different functions: They gave legal opinions at the request of private parties. They advised

7808-432: The defendant with the aid of the condictio furtiva (a personal action). With the aid of the actio legis Aquiliae (a personal action), the plaintiff could claim damages from the defendant. Rei vindicatio was derived from the ius civile , therefore was only available to Roman citizens. A person's abilities and duties within the Roman legal system depended on their legal status ( status ). The individual could have been

7930-403: The divorced and bereaved within certain time limits. The Lex Julia de adulteriis coercendis severely penalised adulterous wives and any husbands who tolerated such behaviour. The Lex Papia Poppaea extended and modified the laws in relation to intermarriage between social classes and inheritance. Compliance was rewarded and exceptional public duty brought exemption, but dictatorial compulsion

8052-407: The domestic household and working in direct service of the pater familias. Roman women sui iuris (“of their own power,” and not under the authority of any pater familias ) possessed the legal right to own enslaved people as instrumenta , though jurists decided on a case-by-case basis whether to extend the status of pater familias to them in their capacity as slaveowners. In general, however,

8174-613: The earlier code of Theodosius II , served as models for a few of the Germanic law codes; however, the Digest portion was largely ignored for several centuries until around 1070, when a manuscript of the Digest was rediscovered in Italy. This was done mainly through the works of glossars who wrote their comments between lines ( glossa interlinearis ), or in the form of marginal notes ( glossa marginalis ). From that time, scholars began to study

8296-433: The early classical period , Roman writers and jurists have interpreted ancient writers’ invocation of pater familias as the basis of the concept of “head of household”—over the alternative Latin word for slaveowner, dominus —as a purposeful choice, intended to mitigate the harsh connotations that the act of slaveholding conferred onto heads of households and expanding the applicability of the term to non-enslaved members of

8418-422: The early empire, the emperor commanded these Proconsular provinces, while the senate commanded the more stable Propraetorial provinces. It was by this that the emperor held command authority over most of the Roman army. The emperor's tribunician powers ( potestas tribunicia ) gave him power over Rome's civil apparatus, although perhaps the most useful facet of the tribunician power was the prestige associated with

8540-485: The eastern part of the Empire, most of the subtleties of classical law came to be disregarded and finally forgotten in the west. Classical law was replaced by so-called vulgar law . The Roman Republic's constitution or mos maiorum ("custom of the ancestors") was an unwritten set of guidelines and principles passed down mainly through precedent. Concepts that originated in the Roman constitution live on in constitutions to this day. Examples include checks and balances ,

8662-563: The emperor unique was that he possessed these powers for life, and thus he could never be held accountable for his actions, did not need to stand for reelection every year, and could not have his actions vetoed. The emperor also had the authority to carry out a range of duties that, under the republic, had been performed by the Roman Censors . Such duties included the authority to farm out tax collection, to grant public contracts, to regulate public morality ( Censorship ), and to conduct

8784-544: The empire, the citizens were divided into three classes, and for members of each class, a distinct career path was available (known as the cursus honorum ). The traditional magistracies were only available to citizens of the senatorial class. The magistracies that survived the fall of the republic were (by their order of rank in the cursus honorum ) the Consulship , Praetorship , Plebeian Tribunate , Aedileship , Quaestorship , and Military Tribunate . If an individual

8906-401: The end of the Roman empire. This process was actively supported by many kings and princes who employed university-trained jurists as counselors and court officials and sought to benefit from rules like the famous Princeps legibus solutus est ("The sovereign is not bound by the laws", a phrase initially coined by Ulpian , a Roman jurist). There are several reasons that Roman law was favored in

9028-488: The evidence and ruled in the way that seemed just. Because the judge was not a jurist or a legal technician, he often consulted a jurist about the technical aspects of the case, but he was not bound by the jurist's reply. At the end of the litigation, if things were not clear to him, he could refuse to give a judgment, by swearing that it wasn't clear. Also, there was a maximum time to issue a judgment, which depended on some technical issues (type of action, etc.). Later on, with

9150-482: The extreme form of this right was seldom exercised. It was eventually limited by law. In the Roman tradition, the term has appeared mostly in legal texts, and to a lesser extent, in literary texts. In both types of discourses, the term has been most commonly used to refer to the “estate owner,” a title considered conceptually separate from his familial relations. The Roman household was conceived of as an economic and juridical unit or estate: familia originally meant

9272-419: The formal acceptance of infant children, coming of age, marriages, deaths and burials. In rural estates, the entire familia would gather to offer sacrifice(s) to the gods for the protection and fertility of fields and livestock. All such festivals and offerings were presided over by the pater familias . The legal potestas of the pater familias over his wife depended on the form of marriage between them. In

9394-470: The group of the famuli (the servi , the slaves of a rural estate) living under the same roof. That meaning later expanded to indicate the familia as the basic Roman social unit , which might include the domus (house or home) but was legally distinct from it: a familia might own one or several homes. All members and properties of a familia were subject to the authority of a pater familias : his legal, social and religious position defined familia as

9516-597: The household shared was their subjecthood to the authority, or potestas , of the pater familias . By the second century, A.D., the distinction between family members and enslaved persons residing in the same household had lessened, even as the patria potestas also weakened over time. Patres familias wielded complete and separate authority over members of their households, including their enslaved laborers. In cases of adjudicating legal transgressions committed by enslaved persons, patres familias exhibited equivalent jurisdiction as that of local civil magistrates , including

9638-495: The household. As a semantic term, pater familias thus connoted heads of household who were thought to combine the affective tenderness of a father with the stern coercion of a slaveowner in ordering their households. As Roman jurists began to articulate the legal conception of pater familias from the early classical period onwards, the minimum qualification for assuming the status of pater familias came to be understood as one’s capacity to own property. However, in Roman law, this

9760-433: The household. The children that resulted from these unions were themselves enslaved and considered the legal property of their mother’s owner. Roman legal sources often recognized enslaved people as part of the instrumenta (roughly translated as “equipment”) of the household to highlight the service they provided the pater familias . This definition included both enslaved people working in field settings and those living in

9882-609: The intrinsic brutality that defined the institution of slavery with the democratic ideals the nation was supposedly founded on, often developing this paternalistic ideology to irrational heights and ignoring the contradictions that it masked. This paternalistic ideology persisted after the legal abolition of slavery, as white employers and political leaders in the South attempted to maintain a hierarchical socioeconomic class status over formerly enslaved persons, as well as women and poor laborers, whom they viewed as “dependents,” thereby expanding

10004-410: The jurist Salvius Iulianus drafted a standard form of the praetor's edict, which was used by all praetors from that time onwards. This edict contained detailed descriptions of all cases, in which the praetor would allow a legal action and in which he would grant a defense. The standard edict thus functioned like a comprehensive law code, even though it did not formally have the force of law. It indicated

10126-848: The legal language in the East was Greek. Roman law also denoted the legal system applied in most of Western Europe until the end of the 18th century. In Germany , Roman law practice remained in place longer under the Holy Roman Empire (963–1806). Roman law thus served as a basis for legal practice throughout Western continental Europe, as well as in most former colonies of these European nations, including Latin America, and also in Ethiopia. English and Anglo-American common law were influenced also by Roman law, notably in their Latinate legal glossary (for example, stare decisis , culpa in contrahendo , pacta sunt servanda ). Eastern Europe

10248-478: The magistrates who were entrusted with the administration of justice, most importantly the praetors. They helped the praetors draft their edicts , in which they publicly announced at the beginning of their tenure, how they would handle their duties, and the formularies, according to which specific proceedings were conducted. Some jurists also held high judicial and administrative offices themselves. The jurists also produced all kinds of legal punishments. Around AD 130

10370-543: The most widely used legal system today, and the terms are sometimes used synonymously. The historical importance of Roman law is reflected by the continued use of Latin legal terminology in many legal systems influenced by it, including common law . After the dissolution of the Western Roman Empire , the Roman law remained in effect in the Eastern Roman Empire . From the 7th century onward,

10492-521: The number of Praetors to sixteen, but Caesar's successor, the emperor Augustus, reduced this number to twelve. The number of Praetors reached its maximum of eighteen under the emperor Claudius . The chief Praetor in Rome, the Urban Praetor ( praetor urbanus ), outranked all other Praetors, and for a brief time, they were given power over the treasury. Praetors also presided over the "permanent jury courts" ( quaestio perpetua ). The irrelevancy of

10614-495: The office. By virtue of his proconsular powers, the emperor held the same grade of military command authority as did the chief magistrates (the Roman Consuls and Proconsuls ) under the republic. Since republican Proconsuls had often held their authority for extended periods of time, the prolonged use of this power by the emperor did have precedent. However, the emperor was not subject to the constitutional restrictions that

10736-468: The office. The Plebeian Tribune had been the magistrate most responsible for the political enfranchisement of the Plebeian (commoner) class during the early republic. The emperor's tribunician powers also gave him the power to preside over, and thus to dominate, the assemblies and the senate. When an emperor was vested with the tribunician powers, his office and his person became sacrosanct. It became

10858-625: The old Consuls and Proconsuls had been subject to. For example, he was not required to observe collegiality , since he had no colleague, and he could not have his actions vetoed . Eventually, he was given powers that, under the republic, had been reserved for the Roman Senate and the Roman assemblies , including the right to declare war, to ratify treaties, and to negotiate with foreign leaders. The emperor's degree of Proconsular power gave him authority over all of Rome's military governors. Under

10980-450: The old formalism is being abandoned and new more flexible principles of ius gentium are used. The adaptation of law to new needs was given over to juridical practice, to magistrates , and especially to the praetors . A praetor was not a legislator and did not technically create new law when he issued his edicts ( magistratuum edicta ). In fact, the results of his rulings enjoyed legal protection ( actionem dare ) and were in effect often

11102-399: The other the task of managing civil administration in Rome. The Quaestors who were assigned to the provinces ( quaestores pro praetore ) managed funds given to the province by the senate or the emperor. The two Urban Quaestors ( quaestores urbani ) had authority over the treasury in Rome ( aerarium Saturni ), which functioned as a depository for both state funds and official documents. In 56 AD

11224-437: The power of the magistrates was restricted. In 450 BC, the decemviri produced the laws on ten tablets ( tabulae ), but these laws were regarded as unsatisfactory by the plebeians. A second decemvirate is said to have added two further tablets in 449 BC. The new Law of the Twelve Tables was approved by the people's assembly. Modern scholars tend to challenge the accuracy of Latin historians . They generally do not believe that

11346-442: The prestige, of the Consulship. In addition, the Consulship lost further prestige from the fact that Consuls usually resigned before their terms ended. Imperial Consuls could preside over the senate, could act as judges in certain criminal trials, and had control over public games and shows. In general, Consular authority did not extend beyond the civil administration of Italy or the senatorial provinces. Julius Caesar had increased

11468-558: The religious rites of familia as sacra privata (funded by the familia rather than the state) and "unofficial" (not a rite of state office or magistracy, though the state pontifices and censor might intervene if the observation of sacra privata was lax or improper). The responsibility for funding and executing sacra privata therefore fell to the head of the household and no other. As well as observance of common rites and festivals (including those marked by domestic rites), each family had its own unique internal religious calendar—marking

11590-526: The republic, Proconsuls (usually former Consuls) were made governors of the more challenging provinces, and as such, most of the Roman army was under the command of one of the Proconsuls. In contrast, the "Propraetors" (usually former Praetors ) were made governors of the more stable provinces. Under the republic, Praetors were the second highest ranking magistrates after the Consuls, which was why Propraetors were given provinces that were more stable. Under

11712-524: The republican constitution, began to transform itself into the absolute monarchy of the Dominate . The existence of legal science and of jurists who regarded law as a science, not as an instrument to achieve the political goals set by the absolute monarch, did not fit well into the new order of things. The literary production all but ended. Few jurists after the mid-3rd century are known by name. While legal science and legal education persisted to some extent in

11834-440: The requirements for a successful legal claim. The edict therefore became the basis for extensive legal commentaries by later classical jurists like Paulus and Ulpian . The new concepts and legal institutions developed by pre-classical and classical jurists are too numerous to mention here. Only a few examples are given here: The Roman Republic had three different branches: The assemblies passed laws and made declarations of war;

11956-408: The same office almost immediately. During the transition from republic to empire, no office lost more power or prestige than the Consulship , which was due, in part, to the fact that the substantive powers of republican Consuls were all transferred to the emperor. In addition, the fact that one had to be nominated by the emperor before they could run for any office weakened the independence, and thus

12078-453: The senate elected each new emperor, although in practice, it was the army which made the choice. The powers of an emperor, (his imperium ) existed, in theory at least, by virtue of his legal standing. The two most significant components to an emperor's imperium were the "tribunician powers" ( potestas tribunicia ) and the "proconsular powers" ( imperium proconsulare ). In theory at least, the tribunician powers (which were similar to those of

12200-426: The senate. The Tribunes did also have the power to impose fines, and citizens retained a theoretical right to appeal criminal and civil decisions to a Tribune. When Augustus became emperor, forty Quaestors were elected each year, but Augustus reduced this number to twenty. Augustus then divided the college of Quaestors into two divisions, and assigned one division the task of serving in the senatorial provinces, and

12322-575: The separation of powers , vetoes , filibusters , quorum requirements, term limits , impeachments , the powers of the purse , and regularly scheduled elections . Even some lesser used modern constitutional concepts, such as the block voting found in the electoral college of the United States , originate from ideas found in the Roman constitution. The constitution of the Roman Republic was not formal or even official. Its constitution

12444-486: The solely acknowledged pater familias of their households. Roman law Roman law is the legal system of ancient Rome , including the legal developments spanning over a thousand years of jurisprudence , from the Twelve Tables ( c.  449 BC ), to the Corpus Juris Civilis (AD 529) ordered by Eastern Roman emperor Justinian I . Roman law forms the basic framework for civil law ,

12566-448: The source of new legal rules. A praetor's successor was not bound by the edicts of his predecessor; however, he did take rules from edicts of his predecessor that had proved to be useful. In this way a constant content was created that proceeded from edict to edict ( edictum traslatitium ). Thus, over the course of time, parallel to the civil law and supplementing and correcting it, a new body of praetoric law emerged. In fact, praetoric law

12688-525: The status of pater familias could not be fully extended to women sui iuris because Roman law recognized the authority that pater familias wielded over members of the immediate family as strictly gendered, i.e., male. Nonetheless, historians and legal scholars have often overlooked this exception to the rule that allowed some women sui iuris (usually wealthy and of the upper socioeconomic stratum of society) to attain legal recognition as pater familias through their ownership of enslaved persons. Outside of

12810-544: The status of enslaved persons whom they each claimed to have “raised.” In the context of plantation slavery in the antebellum U.S. South , slaveowning planters developed a rhetorical defense of slavery as a benevolent, paternalistic institution based on the ancient Roman model of the pater familias . Some planters employed the concept as a legal protectionary measure, instructing renters to whom they “hired out” their enslaved laborers to “treat” them “as good pater familias ,” in an effort to stymie abusive practices. Others used

12932-807: The time Roman law was rediscovered. Therefore, the practical advantages of Roman law were less obvious to English practitioners than to continental lawyers. As a result, the English system of common law developed in parallel to Roman-based civil law, with its practitioners being trained at the Inns of Court in London rather than receiving degrees in Canon or Civil Law at the Universities of Oxford or Cambridge . Elements of Romano-canon law were present in England in

13054-423: The time of the death of the pater succeeded to the status of pater familias over their respective households ( pater familias sui iuris ) even if they were only in their teens. Children "emancipated" by a pater familias were effectively disinherited. If a pater familias died intestate , his children were entitled to an equal share of his estate. If a will was left, children could contest the estate. Over time,

13176-457: The world three times: the first through its armies, the second through its religion, the third through its laws. He might have added: each time more thoroughly. When the centre of the Empire was moved to the Greek East in the 4th century, many legal concepts of Greek origin appeared in the official Roman legislation. The influence is visible even in the law of persons or of the family, which

13298-423: Was a codification of Constantian laws. Later emperors went even further, until Justinian finally decreed that a child in potestate became owner of everything it acquired, except when it acquired something from its father. The codes of Justinian, particularly the Corpus Juris Civilis (529–534) continued to be the basis of legal practice in the Empire throughout its so-called Byzantine history. Leo III

13420-517: Was also abolished during the transition from republic to empire. In 22 BC the emperor Augustus appointed P. Aemilius Lepidus and L. Munatius Plancus to the Censorship , and while they began a census that year, they never completed it, and shortly thereafter the office was abolished. The emperor Claudius attempted to revive the office by appointing himself and L. Vitellius Censor in 47 AD, but after Claudius, no further attempts were made to revive

13542-507: Was also influenced by the jurisprudence of the Corpus Juris Civilis , especially in countries such as medieval Romania ( Wallachia , Moldavia , and some other medieval provinces/historical regions) which created a new system, a mixture of Roman and local law. Also, Eastern European law was influenced by the " Farmer's Law " of the medieval Byzantine legal system . Before the Twelve Tables (754–449 BC), private law comprised

13664-598: Was common to all of continental Europe (and Scotland ) was known as Ius Commune . This Ius Commune and the legal systems based on it are usually referred to as civil law in English-speaking countries. Only England and the Nordic countries did not take part in the wholesale reception of Roman law. One reason for this is that the English legal system was more developed than its continental counterparts by

13786-405: Was considered a distinct dimension of the pater familias ’ authority from their capacity to hold dominion over enslaved persons. While both enslaved people and the estate itself were considered part of the familia unit over which pater familias held authority, they were recognized as distinct from family members (wives, children, and grandchildren). Despite these distinctions, what all members of

13908-439: Was deeply unpopular and quite impractical. The laws were later softened in theory and practise, but the imperial quaestio perpetua remained. Its public magistrates now legally over-rode the traditional rights of the family concilium and pater familias . The principate shows a clear trend towards the erosion of individual patria potestas and the increasing intrusion of the state into the juridical and executive independence of

14030-525: Was developed in order to better educate the students and to network with one another internationally. As steps towards a unification of the private law in the member states of the European Union are being taken, the old jus commune , which was the common basis of legal practice everywhere in Europe, but allowed for many local variants, is seen by many as a model. Executive Magistrates of

14152-464: Was largely unwritten, and was constantly evolving throughout the life of the Republic. Throughout the 1st century BC, the power and legitimacy of the Roman constitution was progressively eroding. Even Roman constitutionalists, such as the senator Cicero , lost a willingness to remain faithful to it towards the end of the Republic. When the Roman Republic ultimately fell in the years following

14274-450: Was not of the senatorial class, he could run for one of these offices if he was allowed to run by the emperor, or otherwise, he could be appointed to one of these offices by the emperor. Mark Antony abolished the offices of Roman Dictator and Magister equitum ("Master of the Horse") during his Consulship in 44 BC, shortly after the assassination of Julius Caesar . The office of Interrex

14396-510: Was not the enactment of well-drafted statutes, but the emergence of a class of professional jurists ( prudentes or jurisprudentes , sing. prudens ) and of a legal science. This was achieved in a gradual process of applying the scientific methods of Greek philosophy to the subject of law, a subject which the Greeks themselves never treated as a science. Traditionally, the origins of Roman legal science are connected to Gnaeus Flavius . Flavius

14518-410: Was permanently exiled. The original classical Roman definition of familia referred to “a body of slaves,” and did not refer to wives and children. The classical legal concept of pater familias as “head of household” derived from this early conception of familia and, thus, from the legal relationship between slaveowners and their enslaved laborers rather than that between fathers and children. Since

14640-421: Was responsible for the entire Roman familia . Rome's survival required that citizens produce children. That could not be left to individual conscience. The falling birth rate was considered a marker of degeneracy and self-indulgence, particularly among the elite, who were supposed to set an example. Lex Julia maritandis ordinibus compelled marriage upon men and women within specified age ranges and remarriage on

14762-426: Was so defined by the famous Roman jurist Papinian (142–212 AD): " Ius praetorium est quod praetores introduxerunt adiuvandi vel supplendi vel corrigendi iuris civilis gratia propter utilitatem publicam " ("praetoric law is that law introduced by praetors to supplement or correct civil law for public benefit"). Ultimately, civil law and praetoric law were fused in the Corpus Juris Civilis . The first 250 years of

14884-552: Was to hold funds that were to be used to pay soldiers. In addition, the emperor controlled the religious institutions , since, as emperor, he was always Pontifex Maximus and a member of each of the four major priesthoods. The first step in a political career was election to the Quaestorship, although candidates for the Quaestorship had to be at least twenty-four years old. After they served as Quaestor, they had to wait for at least one year before they could seek election to

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