Sources of Roman Law


Sources of Roman Law: recapitulation

Reading of Pomponius’ Enchiridion
The Creative Interpretation of Rituals: Mancipatio

Pomponius’ Enchiridion:

• pr.-2: the Time of the Kings. Ius Papirianum
• 3-6: lex, interpretatio, actiones
• 7: ius Flavianum, ius Aelianum
• 8: Plebiscita
• 9: Senatus consulta
• 10: Edictum
• 11: Imperial Constitutions
• 12: Recapitulation

Gai 1.2-3

Gai 1.2-3: The Civil Law of the Roman people consists
of statutes, plebiscites, Decrees of the Senate,
Constitutions of the Emperors, the Edicts of those who
have the right to promulgate them, and the opinions of
jurists. (3) A statute is what the people order and
establish. A plebiscite is what the plebs order and
establish. Moreover, the plebs is distinguished from the
people by the fact that the entire body of citizens
including the patricians, is designated by the appellation,
“the people”; but the other citizens, exclusive of the
patricians, are indicated by the term plebs; for which
reason the patricians formerly declared that they were
not bound by plebiscites, as they were enacted without
their sanction; but subsequently the Lex Hortensia was
passed, by which it was provided that plebiscites should
bind the entire people; and hence, in this way, they were
placed on the same footing as laws.

Gai 1.6-7
The magistrates of the Roman people have the power
of promulgating edicts, but the highest authority
attaches to the edicts of the two Praetors, the urban
and the foreign, whose jurisdiction is vested in the
Governors of the provinces; as well as to the edicts of
the curule Aediles, whose jurisdiction the Quaestors
administer in the provinces of the Roman people, for
Quaestors are not appointed in the provinces of the
Emperor and, therefore, the latter edict is not published
in these provinces. (7) The answers of jurists are the
decisions and opinions of those who are authorized to
define the law. If the opinions of all of them concur,
what they agree upon obtains the force of law; if,
however, they disagree, the judge has a right to follow
whichever opinion he may wish, and this is set forth in
a rescript of the Divine Hadrian.

Classical period:
• Interpretatio, edictum, senatusconsulta, constitutiones imperiales
• Why not leges?
• To which point edictum?
• Ius vetus (civile/honarium) / Ius novum (imperial)

Postclassical period:
• Constitutiones imperiales (leges)
• Why not interpretatio, senatusconsulta?
• Iura (classical jurisprudence) / leges (imperial will)

Archaic period:
• Mores, leges, interpretatio
• Ius / Lex
• Preclasical period:
• Leges, interpretatio.
Why not mores? Sth to add?
Edictum. which?
• praetor urbanus (ius honorarium) / praetor peregrinus (ius gentium)
• Ius civile / ius

Mancipatio
G. I.119 Mancipation… consists in the following process: in the
presence of not fewer than five witnesses, citizens of Rome
above the age of puberty, and another person of the same
condition, who holds a bronze balance in his hands and is
called the balance holder, the alienee holding a bronze ingot
in his hand, pronounces the following words: this man i claim
as belonging to me by right quirtary and be he (or, he is)
purchased to me by this ingot and this scale of bronze. He
then strikes the scale with the ingot, which he delivers to the
mancipator as by way of purchase money.

What does the ritual mean?
Gai 1.122: A piece of brass and a balance are employed for
the reason that in former times only brazen money was in
circulation, and this consisted of asses, double asses, half
asses, and quarter asses; nor was any gold or silver coin in
circulation, as we learn by the Law of the Twelve Tables. The
value of the purchasing power of these coins was not
estimated by their number, but by their weight; hence an as
consisted of a pound of bronze, a double as of two pounds
(whence it derived its name, which is still retained), while the
half-asses and quarter-asses were estimated by their
respective parts of a pound. Therefore, in former times, those
who paid out money to anyone did not count it but weighed it,
and the slaves who were permitted to disburse money were
called “weighers.”

Transformed rituals
• The archaic law of succession: the whole estate to the sui heredes.
• A testament was possible only when there were none sui
heredes: by means of conditional adoptio: testamentum calatis
comitiis
• The paterfamilias could not: a) disinherit any of his sui
heredes; b) bestow anything from the inheritance in any other
person.
• How can we devise a ritual effective for these goals?
• For ‘b’: Caius, fearing his imminent death, and having no
children, wants his estate to go to his two nephews, orphans
from a dead brother, not to his other brother.

Conquering testamentary freedom
Gai 2.102: Afterwards, another kind of will was introduced,
which was executed by bronze and balance. Where a man
who had not made a will at the Comitia Calata … was
apprehensive of sudden death, he usually transferred his
estate by sale to a friend, and requested him to distribute it to
whomever he desired to have it after his death. This kind of
testamentary disposition is styled a will by bronze and
balance, because it is effected by the ceremony of
mancipation.
• A ritual for ‘a’: disinheriting a son. Lucius has seven children,
two daughters and five sons. An important owner of land, he
wants to avoid the excessive division of the estate -and
consequent loss of political influence of his family- by
bestowing most of it to his elder son. How?

Emancipation
Gai 1.132: Again, children cease to be under parental
authority by means of mancipation. A son, however, by three
mancipations, and other children either of the male or female
sex by a single mancipation, are released from parental
authority; for the Law of the Twelve Tables only mentions three
mancipations with reference to a son, as follows: “If a father
sells his son three times, let him be free from the control of his
father.” …

The Edict and ius honorarium
Gai 4.36: Likewise, there is a pretended usucaption in
the action which is styled Publician. This action is
granted to a party who claims property which has been
delivered to him for some legal reason, and of which he
lost possession before obtaining a title to it by
usucaption; for because he cannot claim it as his under
quiritarian right, the fiction is employed that he has
acquired it by usucaption and hence, as it were, to have
become its owner, by quiritarian right; for instance, as
follows: “Let So-and-So be judge. If the slave whom
Aulus Agerius purchased and who was delivered to him
remained in his possession for a year, the said slave
would then have lawfully belonged to the said Aulus
Agerius by quiritarian right, etc.”

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