What it was
Roman law is less a code than an accumulation: the Twelve Tables of the mid-fifth century BCE, statutes passed by the assemblies, the praetor's annual edict, senatorial resolutions, imperial rulings, and above all the written opinions of professional jurists.
Its characteristic method was casuistic. A jurist was asked what the law was in a particular set of facts and answered on those facts, which is why the surviving texts read as a very long series of problems rather than as principles.
How it worked
A private case ran in two stages. Before the praetor, the parties agreed a formula — a written statement of the issue and of what the judge was to do if it was proved. The trial itself then went before a lay judge who decided the facts against that formula.
The praetor could not repeal a statute, but by granting or withholding a formula he decided which claims could be heard at all. That is how the rigid old civil law was progressively supplemented without ever being repealed.
Powers and limits
The law was real and constraining in matters of property, contract, inheritance and status, and Romans litigated constantly. It was also unequal: penalties differed by status, and from the second century CE the distinction between honestiores and humiliores was explicit in sentencing.
It applied in the first instance only to citizens. The ius gentium — the rules held to be common to all peoples — developed to handle dealings with non-citizens, and became a major source of the doctrine later generalised.
How it changed
The jurists' golden age is the late Republic and the first two centuries CE. Their independence declined as imperial rulings became the dominant source.
In 528-534 CE Justinian's commission compiled the Digest from the jurists, together with the Code of imperial constitutions and the Institutes for teaching. That compilation is how nearly all classical Roman law survives, and its rediscovery in eleventh-century Italy is the root of the European civil-law tradition.
What the evidence supports
Almost all classical juristic writing survives only through Justinian's Digest.
The compilers excerpted and edited; the originals are lost apart from Gaius's Institutes and papyrus fragments. Reconstructing what a jurist actually wrote is a recognised discipline in itself.
Penalties were differentiated by social status.
The honestiores/humiliores distinction is attested in juristic texts and imperial rescripts from the second century CE onward.
The original content of the Twelve Tables is partly reconstructed.
The text does not survive. What we have is quotations by later authors, arranged into tables by modern editors, and some provisions are disputed.
Terms
- ius civile
- The law applying to Roman citizens as such.
- ius gentium
- Rules held common to all peoples, used in dealings involving non-citizens.
- formula
- The written statement of the issue that framed a private trial.
- responsum
- A jurist's written opinion on a question put to him.
Open questions
How much of the Digest is classical and how much is Justinian's editing?
The compilers state that they altered texts to remove contradictions and obsolete matter, so some interpolation is certain. Early twentieth-century scholarship found interpolations almost everywhere; the reaction since has been to restore confidence in the transmitted text except where there is positive reason to doubt. That editing occurred is documented; its extent in any given passage is argued, and confident claims in either direction should be treated with care.
Primary sources
Gaius, Institutes 1-4
The only classical legal textbook to survive substantially outside the Digest.
Justinian's commission, Digest 1.1-1.2
The compilers' own account of the sources of law and of the jurists' role.
Cicero, On the Laws 1-3
A late-Republican philosophical treatment of law by a working advocate.
Covered elsewhere
- Military discipline and its penalties is treated in the warfare encyclopedia: Military discipline. Punishments, decorations and the military oath are covered there.
How to read the evidence labels
- Evidence level: Documented
- Supported by a named primary text or by excavated material evidence.
- Evidence level: Probable
- Supported by strong inference that most specialists accept.
- Evidence level: Disputed
- Substantial specialist disagreement exists; competing readings are stated.
- Evidence level: Literary
- Belongs to poetic or mythological construction rather than to history.
- Evidence level: Mythological
- Belongs to shared religious or mythic tradition rather than to any single text.
- Evidence level: Unknown
- The available evidence is insufficient to decide.
These labels describe the status of the evidence, not our confidence in a conclusion. A claim marked Literary is not a claim we doubt; it is a claim about what kind of thing a poem is.