As the terminology of science and philosophy comes mostly from the Greek, betraying their source, so the language of the law comes mostly from the Latin. Law in general was ius, justice or right; lex meant a specific law.II Jurisprudence—wisdom in the law—was defined in the Digest of Justinian (A.D. 533) as both a science and an art: the “science of the just and the unjust,” and the “art [i.e., administration] of the good and the equitable.”2 lus included unwritten law, or custom, as well as written law. The latter was composed of ius civile—the “law of [Roman] citizens”—and ius gentium—“the law of the nations.” Civil law was “public law” when it related to the state or the official worship, and “private law” when it dealt with the legal interrelations of the citizens.
Roman law as a whole flowed from five sources. 1. Under the Republic the ultimate source of law was the will of the citizens, expressed as leges in the Curial and Centurial Assemblies, and as plebiscita (“decided by the plebs”) in the Tribal Assembly. The Senate acknowledged leges only when they had been proposed to the assemblies with the proper formalities and by a magistrate of Senatorial rank. When Senate and assembly agreed in passing a measure, it was proclaimed in the name of Senatus Populusque Romanus.
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The Senate itself, in theory, had no lawmaking power under the Republic; its senatusconsulta were, formally, recommendations to the magistrates; gradually they became directives, then imperatives, until in the later Republic and under the Empire they took on the force of laws. Altogether the laws passed by the assemblies or the Senate were so few in the course of six centuries as to astonish one accustomed to the legislative flux of modern states.
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The need for minor or more specific laws was met by the edicta of the municipal officials. Each new urban praetor (our “chief city magistrate”) issued an edictum praetorium, announced by a herald in the Forum and inscribed upon a wall, and stating the legal principles on which the praetor proposed to act and judge during his year’s term. Similar edicts could be put forth by circuit judges (praetores peregrini) and provincial praetors. Through their power of imperium, or rule, the praetors were allowed not only to interpret existing laws, but to make new ones. In this way Roman law combined the stability of its basic legislation with the flexibility of praetorian judgments. When a law or clause was carried down from one praetorian edict to the next for many years, it became a definite part of the ius honorarium; by the time of Cicero this “law of the offices” had displaced the Twelve Tables as the main text of legal instruction in Rome. Nevertheless, a praetor often reversed the decisions, and sometimes contradicted the principles, of a predecessor, so that uncertainties of law and arbitrariness of judgment were added to the abuses natural in every judicial system operated by men. It was to end this uncertainty that Hadrian instructed Julianus to unify all preceding ius honorarium in a Perpetual Edict alterable only by the emperor.
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The constitutiones principum, or statutes of the princes, became themselves in the second century a varied source of law. They took four forms. (a) The prince issued edicta by virtue of his imperium as an official of the city; these were valid for the whole Empire, but apparently lapsed after his death. (b) His decreta as a judge, like those of other magistrates, had the force of law. (c) Imperial rescripta were his answers to inquiries. Usually they were epistulae—letters—or subscriptiones, brief replies “written under” a question or petition. The wise and pithy letters in which Trajan answered the requests of governmental appointees for instruction were incorporated into the laws of the Empire and kept their validity long after his death, (d) The mandata of the emperors were their directives to officials; in the course of time these came to constitute a detailed code of administrative law.
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Under certain circumstances law could be created by the responsa prudentium. It must have been a pleasant sight when learned jurists sat in chairs in the open Forum (or, in later decades, in their homes), and gave legal opinions to all who asked, taking their chances on some indirect remuneration. Often their advice was solicited by lawyers or municipal judges. Like the great rabbis of the Jews they reconciled contradictions, drew subtle distinctions, interpreted and adjusted the ancient law to the needs of life or the exigencies of politics. Their written replies, by unwritten custom, had an authority only less than the law’s. Augustus gave such opinions full legal force on two conditions; that the jurist should have received from the Emperor the ius respondendi, or right of giving legal opinions; and that the reply should be sent under seal to the judge trying the case in point. By the time of Justinian these responsa had become a vast school and literature of law, the fountain and foundation of his culminating Digest and Code.