How did criminal law work in the Roman Empire?

How did criminal law work in the Roman Empire?

I have old memory from when I was in little school: During the Roman empire, criminal law was very "flexible". You could kill nearly anyone in the Empire, as long as you were able to pay a fee to the community afterwards. As I remember, the higher the social position of the target, the higher the fee was.

Well, my memory might be wrong and indeed is very vague. It might be right with regard to the law but actually concerns another society and/or other times. Would someone knowledgeable give me some hint or contradict my point please?


Roman Law worked just like law today (minus the fact that their punishment would be unusual today). For criminal proceedings, a jury of citizens, made up of senators and "high standing" people in the community would be selected as the jury. the accused had the right to bring in witnesses, and other defenses, Etc. A Roman citizen could only get a death sentence for one crime though, Treason. The other punishments were slavery, beatings, fines, and retaliation. What you mentioned is not legal under Roman law, though there is corruption in any system, so for senators they probably could get away with that for minor citizens. But under the Roman system, a slave owner could kill his slaves. Even slaves had protection though; You could be fined and beaten for killing another man's slave.

Edit: Roman citizens themselves could not be tried by a magistrate because only a full court could try a Roman citizen for any crime that could warrant capital punishment or the heavier fines; Roman citizens also had the right to be shipped back to Rome to get a trial and even those guilty of treason could not be crucified to death- they were beheaded instead. For the charge of Patricide, the person killing their father could not be a Roman citizen, at least not in relationship to their father. Because under Roman law, essentially all members of the family were legally almost slaves of the father (they could not own or buy property with the father's consent, or get married, or leave the household, and the father had the right to kill them for any punishment, imprison them, and sell them as slaves to anyone else, as well as banishing them from the country.). So it is hard for most people to conceptualize but the Father or Husband was the only one in the Family that could hold citizenship, usually, (once Roman citizenhood was expanded past Rome, the local provinces and tradition affected who officially had Roman citizenship or rights) and so he was responsible to make sure his family did not break the law, but he was the only one who had full protection legally. This made it easier for the people they viewed as the most trouble to be tried before a magistrate and be executed, such as women and foreigners.

sources:

California State University

Roman punishment

Rights of Roman Citizenship


The earlier laws on murder are unclear. Although it is known that some certain types of murder were defined in the original twelve tables, it is not certain what they were. The Lex Cornelia de Sicariis Veneficis of Sulla in 82 BC is the first certain Roman law of murder which provides that anyone who kills dolus malus (i.e., as part of an evil design) shall be executed.

In practice, Roman magistrates had wide latitude to decide punishments, including execution.


Roman litigation

The history of Roman Law can be divided into three systems of procedure: that of legis actiones, 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 the classical period (c. AD 200), and that of cognitio extra ordinem was in use in post-classical times.


Police Work in Roman Times

R.W. Davies describes how the legions and their auxiliaries were employed by Roman Governors to maintain law and order in their provinces.

Throughout the greatest days of the Roman Empire, the famous Pax Romana was preserved with the help of an efficient police force. In the cities, small forces of gendarmes, often recruited from slaves, acted under the direction of civilian magistrates. But elsewhere it was the army itself that kept the peace and military units were stationed at such strategic points as river-crossings and road-centres. This is well illustrated by Strabo’s account of how the Egyptian army was distributed:

‘There are also three legions of soldiers, one of which is stationed in the city and the other two in the countryside. Apart from these, there are nine Roman infantry battalions, three of which are in the city, three on the borders of Ethiopia in Syene as a guard for those regions, and three throughout the rest of the countryside. In the same way three cavalry regiments are stationed at key points.’

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A watery and crowded grave

One of the most pervasive misconceptions about Roman criminal justice concerns the penalty for parricide. Anyone who killed his father, mother, or another relative was subjected to the “punishment of the sack” (poena cullei in Latin). This allegedly involved the criminal being sewn into a leather sack together with four animals – a snake, a monkey, a rooster, and a dog – then being thrown into a river. But was such a punishment ever actually carried out?

The epitome of Livy’s History from the Foundation of the City records that in 101 B.C.:

Publicius Malleolus, who had killed his mother, was the first to be sewn into a sack and thrown into the sea.

In practice, the penalty for parricide often just involved feeding the offender to wild beasts. Creative Commons, CC BY-SA

There is no mention here of any animals in the sack, nor do they appear in contemporary evidence for legal procedure in the late Roman Republic. In 80 B.C., Cicero defended a young man called Sextus Roscius on a charge of parricide, but the murderous menagerie is conspicuously absent from his defence speech.

The animals are attested in a passage from the writings of the jurist Modestinus, who lived in the mid-third century A.D. This excerpt survives because it was later quoted in the Digest compiled at the behest of the emperor Justinian in the sixth century A.D.:

The penalty of parricide, as prescribed by our ancestors, is that the culprit shall be beaten with rods stained with his blood, and then shall be sewed up in a sack with a dog, a rooster, a snake, and a monkey, and the bag cast into the depth of the sea, that is to say, if the sea is near at hand otherwise, he shall be thrown to wild beasts, according to the constitution of the Deified Hadrian.

The snake and the monkey feature in the satirical poems of Juvenal (writing during the age of Hadrian), who suggested that the emperor Nero deserved to be “sacked” with multiple animals for murdering his mother Agrippina. But the dog and the rooster do not appear until the third century A.D., when Modestinus was writing.


Roman law

Between 753 b.c. and a.d. 1453, the legal principles, procedures, and institutions of Roman law dominated Western, and parts of Eastern, civilization. The legal systems of western Europe, with the exception of Great Britain, are based on Roman law and are called civil-law systems. Even the common-law tradition found in the English-speaking world has been influenced by it. In the United States, the Common Law has been paramount, but Roman law has influenced the law of the state of Louisiana, a former French territory that adopted a French civil-law code.

Roman law began as an attempt to codify a set of legal principles for all citizens. In 450 b.c. the Twelve Tables were erected in the Roman Forum. Set forth in tablets of wood or bronze, the law was put on public display, where it could be invoked by persons seeking remedies for their problems. Though the texts of the tablets have not survived, historians believe they dealt with legal procedures, torts , and Family Law issues.

From 753 to 31 b.c. , the Roman republic developed the jus civile, or Civil Law. This law was based on both custom and legislation and applied only to Roman citizens. By the third century b.c. , the Romans developed the jus gentium, rules of International Law that were applied to interactions between Romans and foreigners. Over time the jus gentium became a massive compendium of law produced by magistrates and governors.

Romans divided the law into jus scriptum, written law, and jus non scriptum, unwritten law. The unwritten law was based on custom and usage, while the written law came from legislation and many types of written sources, including edicts and proclamations issued by magistrates, resolutions of the Roman Senate, laws issued by the emperor, and legal disquisitions of prominent lawyers. Roman law concerned itself with every type of legal issue, including contracts, inheritance of property, family law, business organizations, and criminal acts.

Roman law steadily accumulated during the course of the empire, and over time it became contradictory and confusing. In the early sixth century a.d. , the Byzantine emperor Justinian I, appointed a commission to examine the body of law and determine what should be kept and what should be discarded. From this effort came the Corpus Juris Civilis, a Codification of Roman law that became the chief lawbook of what remained of the Roman Empire.

The decline of the Roman Empire also led to the diminution of interest in Roman law in western Europe. The Corpus was unknown to western scholars for centuries. During the twelfth century, however, Roman law studies revived in western Europe. In the late eleventh century, a manuscript containing part of the Corpus was discovered in Pisa, Italy. The remainder of the compilation was soon recovered, and schools where Roman law could be studied were established in Bologna, Italy, and then elsewhere in Europe. By the twelfth century, commentaries on the Corpus Juris Civilis appeared, and in time men trained in Roman law found posts in secular and ecclesiastical bureaucracies throughout Europe.

As a result, the legal systems of the Catholic Church and of almost every country in Europe were influenced by Roman law. Around the year 1140, the scholar Gratian prepared the Concordance of Discordant Canons, or Decretum. The Decretum was the largest and best-organized compendium of canon (church) law up to that time. Gratian used the Corpus Juris Civilis as his model, and later canonists studying the Decretum used the same methods that Roman lawyers applied to the Corpus Juris Civilis. Many scholars became masters of both Roman and Canon Law.

Among the nations of western Europe, England, which had already established a viable common-law tradition and a system of royal courts by the time that Roman law became accessible, felt the impact of the revival of Roman law the least. Nevertheless, English Law drew upon Roman admiralty law , and the crimes of forgery and libel were based on Roman models. English ecclesiastical courts applied canon law, which was based on Roman law, and the universities of Oxford and Cambridge taught canon and Roman law. Scholars have noted the similarities between the Roman and English actions of Trespass, and the equitable method of Injunction may have been derived from canon law. Much of western European Commercial Law, which contained Roman law, became part of English law without much change.

The legal systems of most continental European nations owe their basic structures and categories to Roman law. Scholars point to several reasons for this "reception" of Roman law. In some areas such as southern France where remnants of Roman law had survived the collapse of the Roman Empire, the Corpus Juris Civilis helped to explain the institutions that were already in existence. More important in ensuring the reception of Roman law were the political principles that it contained. Law that had been produced in a centralized state under a sovereign emperor could be used to buttress the arguments of the European rulers as they struggled to assert their sovereignty over the feudal nobility.

At the same time that many of these rulers were consolidating their power, they were also expanding royal administration. This created new positions in government that often were filled by men with training in Roman law. Such men compiled collections of unwritten customs, drafted statutes, and presided over the courts, all of which provided opportunities for the penetration of Roman law.

Roman law did not displace local customs. Instead, its influence was subtle and selective. A compiler of unwritten German customs might arrange the collection according to Roman principles of organization. A royal judge confronted with an issue on which customs of different regions in the kingdom disagreed might turn to Roman law, the only law in many cases that was common to the entire kingdom. Similarly, Roman law could be used when local customs offered no solutions. For example, the Roman law of contracts was particularly influential because European customary law had developed in an agrarian economy and was often inadequate for an economy in which commerce played an increasingly larger role.

After 1600 the reception of Roman law slowed in most countries but did not entirely disappear. In nineteenth-century Europe, the Corpus Juris Civilis provided inspiration for several codifications of law, notably the French Code Napoléon of 1804, the Austrian code of 1811, the German code of 1889, and the Swiss codes of 1889 and 1907. Through these codes, elements of Roman law spread beyond Europe. The Code Napoléon served as a model for codes in Louisiana, Qu󩯬, Canada, and most of the countries of Latin America. German law influenced Hungarian, Brazilian, Japanese, and Greek law, and Turkey borrowed from Swiss law. In addition, the law of both Scotland and the Republic of South Africa derives from Roman law.

Commentators, while noting the differences between common law and civil law, which is based on Roman law, also point out that these differences can be overemphasized. Common-law countries, like the United States, enact statutes and even comprehensive codes, such as the Uniform Commercial Code, while civil-law countries have laws that have been developed by the courts and not enacted through legislation. Roman law itself contained these conflicting impulses of codification and judicial interpretation.

Further readings

Appel, Peter A. 2002. "Intervention in Roman Law: A Case Study in the Hazards of Legal Scholarship." Georgia Journal of International and Comparative Law 31 (fall).

Astorino, Samuel J. 2002. "Roman Law in American Law: Twentieth Century Cases of the Supreme Court." Duquesne Law Review 40 (summer).


Poena cullei: The bizarre ancient Roman punishment reserved for parricide

Ancient Romans had a penchant for doling out punishments in rather theatrical fashion, with one pertinent example relating to the noxii, the criminals who were mainly accused of robbery, murder and rape. At times, the noxii were simply used as living props who were unarmored (or sometimes dressed in ‘show’ armor), and then declared as opponents against the adept postulati, veteran gladiators armed with maces. Consequently, these experienced gladiators made a gory demonstration of slowly dispatching the straggling criminals by spilling their blood on the sands of the arena. But this nigh sadistic ‘fusion’ of theatricality and carnage was even taken to bizarre levels on few occasions – as could be comprehended from poena cullei, a death penalty reserved for criminals who had committed the act of patricide (killing ones father) or parricide (which refers to killing of parents or close kin).

Poena cullei, roughly translating to ‘penalty of the sack’ in Latin, entailed the guilty party to be sewn up in a leather sack or bag, along with other live animals, and then thrown into the river. Now historically, the first punishments reserved for crimes like parricidium (the blanket Latin term that covered the murdering a parent or close relative), documented from circa 100 BC, probably only involved the criminal to be shoved into a sack, while his feet were weighed down by wooden clogs, and then thrown into the water. However by the early phase of the Roman Empire, the practice of including live animals into the grotesque scope was initiated. One of the famous examples hark back to the time of Emperor Hadrian (circa 2nd century AD), when the accused was tied up in a sack with an assortment of animals, including a rooster, a dog, a monkey and a viper.

Plain weird or deeply symbolic?

Now such ancient practices naturally bring up the question – why were the Romans bent on devising strange punishments? Well a part of the answer has to do with the act of parricidium and how it was perceived in the contemporary Roman world. To that end, the Romans considered the act of spilling the blood of someone of who gave life to be gravely deplorable, so much so that it was associated with the very derailment of social order. On the point, they viewed parricidium as a form of social corruption that could even taint the blood of wild animals who feasted upon the executed corpse of such a criminal. This intense notion was perfectly captured by one of the speeches made by Marcus Tullius Cicero, often considered as one of the greatest Roman orators and prose stylists of his time, who was also a philosopher, politician, lawyer and political theorist. The entire speech was ironically prepared to defend his client Sextus Roscius accused of parricide, circa 80 BC, and one of its passages is quoted here –

They [previous Roman generations] therefore stipulated that parricides should be sewn up in a sack while still alive and thrown into a river. What remarkable wisdom they showed, gentlemen! Do they not seem to have cut the parricide off and separated him from the whole realm of nature, depriving him at a stroke of sky, sun, water and earth – and thus ensuring that he who had killed the man who gave him life should himself be denied the elements from which, it is said, all life derives? They did not want his body to be exposed to wild animals, in case the animals should turn more savage after coming into contact with such a monstrosity. Nor did they want to throw him naked into a river, for fear that his body, carried down to the sea, might pollute that very element by which all other defilements are thought to be purified. In short, there is nothing so cheap, or so commonly available that they allowed parricides to share in it. For what is so free as air to the living, earth to the dead, the sea to those tossed by the waves, or the land to those cast to the shores? Yet these men live, while they can, without being able to draw breath from the open air they die without earth touching their bones they are tossed by the waves without ever being cleansed and in the end they are cast ashore without being granted, even on the rocks, a resting-place in death.

The ritual side of affairs –

As can be comprehended from such an elaborate idea behind the punishment of poena cullei, the Romans perceived the sin of parricide with symbolic elements. Consequently, the nature of punishment also took a ritualistic route. To that end, according to 19th-century historian Theodor Mommsen’s interpretations (based on compilations of several sources), the person was first whipped with virgis sanguinis (a vague term which could have meant ‘red-colored rods’) and then his head was covered in a wolf-skin bag. Wooden clogs were then placed on his legs and the guilty was shoved inside the namesake cullei (possibly a sack made of ox-leather), along with other live critters. The sack was then sealed and the criminal was finally transported on a cart driven by black oxen to the nearest stream or even the sea.

Now in allusion to the practicality of such an outlandish scope, many later historians have talked about how the ‘ritual’ was probably not followed to the letter of the whimsical law. In that regard, the captors might have just opted for a simple leather bag instead of a wolf-skin or used a common wine sack instead of special ox-leather sacks. There are also confusions regarding the term virgis sanguinis, with hypotheses ranging from the person being whipped until he bled to the use of red-painted shrubs that were believed to purify his soul (instead of bleeding him). Furthermore, there may have been cases where the poena cullei was initiated only when the said person confessed his crime or was caught in the act (as opposed to meticulous legal proceedings).

The occurrence of poena cullei –

It should be noted that much like fustuarium (which required a rebellious soldier to be stoned or clubbed to death by his comrades), the punishment of poena cullei was reserved only for rare occasions. Roman historian Suetonius talked about how powerful emperors (like Augustus) even hesitated to authorize such dreadful penalties. Interestingly enough, by the time of Emperor Hadrian, circa 2nd century AD, the punishment was possibly made optional, and the other unenviable outcome for the guilty related to being thrown into the arena with beasts.

And while the punishment gradually fell into oblivion by 3rd century AD, later emperors like Constantine and Justinian sort of revived the dread of poena cullei, in a bid to bolster their Roman legacy when it came to legal institutions. For example, one of the texts from Corpus Juris Civilis, a massive collection of laws issued by Emperor Justinian, circa 530 AD onward, mentions –

A novel penalty has been devised for a most odious crime by another statute, called the lex Pompeia on parricide, which provides that any person who by secret machination or open act shall hasten the death of his parent, or child, or other relation whose murder amounts in law to parricide, or who shall be an instigator or accomplice of such crime, although a stranger, shall suffer the penalty of parricide. This is not execution by the sword or by fire, or any ordinary form of punishment, but the criminal is sewn up in a sack with a dog, a cock, a viper, and an ape, and in this dismal prison is thrown into the sea or a river, according to the nature of the locality, in order that even before death he may begin to be deprived of the enjoyment of the elements, the air being denied him while alive, and interment in the earth when dead. Those who kill persons related to them by kinship or affinity, but whose murder is not parricide, will suffer the penalties of the lex Cornelia on assassination.

However, over time the punishment of poena cullei was relegated and finally abolished by late 9th century AD. But parricide was still perceived as a severely deplorable sin in the later Eastern Roman Empire (Byzantine Empire), so much so that the ‘penalty of the sack’ was replaced by cruel immolation – as mentioned in Synopsis Basilicorum, a shortened version of the Byzantine law code Basilika, issued in 892 AD under the orders of Emperor Leo VI the Wise. But some forms of the punishment may have persisted in Europe (possibly in parts of Germany) till the late medieval period.

Emperor Justinian depicted in the middle, from a mosaic in the Basilica of San Vitale, Ravenna. Credit: Wikimedia Commons

Book References: Pollution and Religion in Ancient Rome (By Jack J. Lennon) / Crime and Punishment in Ancient Rome (By Richard A. Bauman)


Adoption in the Roman Empire

What do Augustus, Tiberius, and Marcus Aurelius,
three of the greatest Roman emperors,
have in common?

Augustus (Gaius Julius Caesar Octavianus), Tiberius Julius Caesar, and Marcus Aurelius

The motivation to adopt was very different in Roman times than today. While contemporary adoption is aimed at placing a child in a loving family, Roman adoption aimed at providing a suitable male heir to become the new pater familias when the family patriarch died. If a man had no sons, adoption was a common solution among the noble orders of senators and equestrians. How common it was among the lower classes is harder to determine. Women were seldom adopted, regardless of class.

Families with surplus sons were often willing to have one or more sons adopted to make desirable family connections and to improve their sons’ opportunities. The adopted son was usually an older son who had survived childhood and displayed desirable traits as an adult. Since a minimum net worth was required to remain in the noble orders (1,000,000 sesterces for senators and 400,000 sesterces for equestrians), a noble family of moderate means might not be rich enough upon the death of the father to provide all the sons with enough to stay above the minimum. Adoption into another noble family simultaneously solved the problems of no heir for one and too many heirs for the other.

Adoptions of men in their twenties and thirties to increase opportunities based on money or political connections were fairly common, and there was no social stigma involved for either family. It wasn’t even necessary for the person being adopted to be younger than the person doing the adopting.

Roman adoption laws
The following discussion concerns adoption of one Roman citizen by another. Under Roman law, a free non-citizen (peregrine) could not be adopted by a citizen. A slave could be freed to become a Roman citizen the freedman, who was now a Roman citizen, could then be adopted.

In the Roman system, the transfer of a son from one family to another fell into two different categories: 1) the man or boy being adopted was alieni iuris, that is, still under the control of a pater familias, the patriarch or head of a family, or 2) he had become the head of the family himself (sui iuris) by the death of the former patriarch.

In the first case, the son who is not his own master (alieni iuris) switched from the control of his own pater familias to the control of his adoptive pater familias. This process was called adoption. Since the one being adopted owned no property (it all belonged to the pater famlias), he brought no property with him. If he was older and had children, he left those behind in his original family.

In the second case, the man who was sui iuris could be a pater familias himself, even if he was still a child. When he was adopted, he brought all his property and any descendents with him into the new family. This process was called adrogation. Because his former family essentially ceased to exist when he became a member of the new family, public permission was required for adrogation.

Females were seldom adopted. The purpose of adoption of either type was to ensure continuity in the patriarchal authority (patria potestas) of a family. Since females had no patriarchal authority, they could neither adopt nor adrogate. Since they were under the control of a family patriarch, they were not sui iuris and could not be adrogated. They could be adopted, although this was uncommon.

Adoption as a way to make natural children legitimate
If a citizen had natural children by a woman other than his legally recognized wife, he could make the boys legitimate by adrogation. If they were already free, he could simply adrogate. If they were slave, he could free them, making them citizens, and then adrogate. If the boy was not a citizen, he could not be adrogated or adopted. Citizen or not, girls could not be adrogated so their father couldn’t make his natural daughters legitimate.

How Judah ben Hur could become the son of Quintus Arrius
In Lew Wallace’s novel, Ben Hur: A Tale of the Christ, Judah ben Hur is adopted by the Roman admiral, Quintus Arrius, after saving him from drowning. If Judah was a free man, Arrius could not adopt him since he was not a Roman citizen. If he was a slave, Arrius could buy him. Then he could free him, making Judah a citizen. Once Judah was a citizen, Arrius could adrogate him. Judah would then take the name of his new father, becoming Quintus Arrius.

Name changes when adopted or adrogated
The name of a male Roman citizen had three parts: praenomen (given name), nomen (clan or gens), and cognomen (family name). It was customary for an adopted male to replace his original clan and family names with those of his adoptive father. His original clan name was added after the cognomen with the –us ending changed to –anus. For example, if Gaius Cornelius Lentulus was adopted by Titus Livius Drusus, he would become Gaius Livius Drusus Cornelianus.

Famous Adopted Romans
One of the best known adoptees during the Republic was Publius Cornelius Scipio Aemilianus, commander of the Roman army in the Third Punic War, when Carthage was destroyed in 146 BC. His birth father was Lucius Aemilius Paullus, hence the fourth name Aemilianus. His adoptive grandfather was Publius Cornelius Scipio Africanus Maior, who defeated Hannibal at the battle of Zama in 202 BC to end the Second Punic War.

The most famous adoptees of the imperial period were adopted by emperors to provide a male heir, who then became the next emperor.

Augustus (Gaius Julius Caesar Octavianus)

Augustus Caesar was born Gaius Octavius Thurinus. He was the great-nephew of Gaius Julius Caesar. In his will, Julius Caesar adopted Octavius, making him Gaius Julius Caesar Octavianus. He was 18 at the time.

In turn, Augustus solved the problem of succession by adoption. When he married Livia Drusilla after her divorce from Tiberius Claudius Nero, her son, also named Tiberius Claudius Nero, became Octavian’s stepson. (This was in 38 BC, before Octavian was given the title Augustus in 27 BC.) Many years later, after Augustus’s grandsons had died, he formally adopted Tiberius to make him Tiberius Julius Caesar Claudianus, although the Claudianus is normally omitted. As his son and only male heir, Tiberius would become the next emperor (officially the next princeps civitatis (first citizen), but an emperor by any other name is still an emperor). The Julio-Claudian dynastic name reflects Tiberius’s adopted status.

During the first 200 years of the Empire, adoption became a common practice when the emperor had no suitable son to succeed him. An emperor approaching the end of his life adopted a man whom he expected would rule well. This pattern was initiated by Nerva and continued by Trajan, Hadrian, Antonius Pius, and Marcus Aurelius. It is not surprising that these men, who were selected based on merit instead of bloodline, are regarded as four of the best emperors.

Adkins, Lesley and Roy A. Adkins. Handbook to Life in Ancient Rome. New York: Oxford University Press, 1998.

Crook, J. A. Law and Life of Rome, 90 BC. ― A.D. 212. Ithaca, NY: Cornell University Press, 1967.

Busts of Augustus, Tiberius, and Marcus Aurelius are at the Walters Art Museum, Baltimore, MD


The Supreme 'Courts' of the Roman Empire: Constantine’s Judicial Role for the Bishops

Constantine, the Roman Emperor from 312-337, was a law-giver who first put the Christian Church in the place of primacy in the organization of the state that it only lost as recently as the seventeenth century as such, he is very important to legal and social history in the Western experience. This thesis explores the degree to which the Emperor Constantine’s adoption and adaptation of the Christian religion’s bureaucratic structure affected the social and legal order of the Roman state bureaucracy in the fourth century: I do this by examining both the question of his legislation pertaining to making bishops judges and the legal nature of his relationship with the bishops which developed as they appealed their own decisions to his imperial court, specifically in both the Donatist and Arian crises. Constantine’s two pieces of legislation that most directly bear on this question come from 318 and 333: Codex Theodosianus (CTh) 1.27.1 and Sirmondian Constitution (Sirm.) 1, respectively. In the first, an edict, Constantine allows that any litigant may have their case transferred to a bishop’s court if they so choose, but he is careful to emphasize the right of the presiding judge to make this transfer official. In the second, a rescript, Constantine significantly expands the powers of the bishop’s as judges, and indicates that, among other things, just as with decision of the praetorian prefects, any decision of a bishop is not subject to appeal. In this way, the bishop’s court seemed to be positioned by Constantine as an appeal court of kinds, but in practice and according to the small amount of evidence we have on the subject, these courts, the episcopalis audentia, heard most legal matters as a working court of first instance, like that of any other local magistrate. The uniqueness of the court is evident not so much in their powers as judges, but in the fact that they began to hear matters between litigants applying Roman law to enforce their rights. The focus of my research is the seeming expansion of powers that Constantine gives to the bishops from the first to the second piece of legislation. The 333 rescript was actually a reply to the Prefect of Rome, Ablavius, who was questioning the use of the Edict of 318, and because of this, perhaps, we learn a great deal more about what Constantine wanted that earlier law to mean in 333, but whether he initially had this in mind is unknown since the first piece of legislation was very brief. I argue that he did not have this in mind, and that only after his relationship with the bishops grew in the intervening years, highlighted jointly by his blatant adoption of the Christian religion and subsequently assuming state responsibility for their protection and dispute settlement mechanism at the Council of Nicaea in 325, would such expansion of judicial authority make any reasonable sense. The emperor was in some ways compelled into a relationship with the Church because of the internecine conflicts within it which threatened the stability of his Empire, the two most important being the Donatist and Arian crises.


World history- module one

It controlled most of the Western European coast.

It controlled land bordering the Red Sea.

It controlled most of the land bordering the Mediterranean Sea.

It protected some individual rights.

It has no influence on modern laws.

Separation of church and state

The Western Empire had lost most of its political, religious, and economic power.

The conquests of Justinian had succeeded in making the Romans allies of the Byzantines.

The Eastern Empire had been influenced by the linguistic changes taking place in "barbarian" lands.

With the aid of God governing Our Empire, which was delivered to Us by His Celestial Majesty, We carry on war successfully. We adorn peace and maintain the Constitution of the State, and have such confidence in the protection of Almighty God that We do not depend upon Our arms, or upon Our soldiers, or upon those who conduct Our Wars, or upon Our own genius, but We solely, place Our reliance upon the providence of the Holy Trinity, from which are derived the elements of the entire world and their disposition throughout the globe.
—Public Domain

From this excerpt of the prologue of the Corpus Iuris Civilis, what departure from older Roman traditions is clear? (5 points)

The laws show that the empire has developed a bureaucracy that makes normal soldiering unnecessary.

The law now honors Christianity as a central part of the empire's existence.

The law explains that the Roman Empire is using war to spread Roman ideas.


Praise / Awards

"In Law and the Rural Economy , Kehoe brings to life the workings of the ancient economy and the Roman legal system. By analyzing interactions between the imperial government, landlords, and tenant farmers in provinces across the Empire, Kehoe opens insights into imperial economic policy. He handles a variety of challenging sources with mastery and wit, and his knowledge of scholarship is extensive and thorough, covering ancient history, textual problems in the sources, legal history and, perhaps most impressively, the modern fields of economic theory and 'law and economics.' Kehoe’s innovative and sophisticated methodology sets his work apart. The book will make an important contribution to our understanding of access to the law and the effectiveness of the legal system, important topics for scholars of law, ancient and modern."
—Cynthia J. Bannon, Associate Professor of Classical Studies, Indiana University

"Kehoe brings his deep expertise in Roman land tenure systems and his broad knowledge of the methodologies of New Institutional Economics to bear on questions of fundamental importance regarding the relationship of Roman law and society. Was governmental policy on agriculture designed to benefit large landowners or small farmers? What impact did it have on the rural economy? The fascinating answers Kehoe provides in this pathbreaking work should occasion a major reassessment of such problems by social and legal historians."
—Thomas McGinn, Associate Professor of Classical Studies at Vanderbilt University, and author of The Economy of Prostitution in the Roman World:  A Study of  Social History and the Brothel and Prostitution, Sexuality, and the Law in Ancient Rome

"A ground-breaking study using the principles of New Institutional Economics to analyze the impact of legal policy in balancing the interests of Roman tenant-farmers and landowners in the 2-4 centuries C.E. Kehoe’s book will be essential reading for historians of the Roman Empire, demonstrating how the government overcame challenges and contradictions as it sought to regulate this enormous sector of the economy."
—Susan D. Martin, Professor of Classics, University of Tennessee

"The author must be praised for having written the first monograph which studies a large sector of the Roman economy from an institutionalist perspective. Using the analytical tool-box developed by this school of thought, the author offers many penetrating analyses of the nature, aims, and effects of legal intervention in the rural economy."
—Luuk De Ligt, The Journal of Roman Studies


Roman Law

Roman laws covered all facets of daily life. They were concerned with crime and punishment, land and property ownership, commerce, the maritime and agricultural industries, citizenship, sexuality and prostitution, slavery and manumission, politics, liability and damage to property, and preservation of the peace. We can study these laws today thanks to ancient legal texts, literature, papyri, wax tablets and inscriptions.

Roman Law was established through a variety of means, for example, via statutes, magisterial decisions, emperor's edicts, senatorial decrees, assembly votes, plebiscites and the deliberations of expert legal counsel and so became multi-faceted and flexible enough to deal with the changing circumstances of the Roman world, from republican to imperial politics, local to national trade, and state to inter-state politics.

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Historical Sources

One of the most important sources on Roman law is the Corpus Iuris Civilis, compiled under the auspices of Justinian I and covering, as its name suggests, civil law. One of its four books, the massive Digest, covers all aspects of public and private law. The Digest was produced in 533 CE under the supervision of Tribonian and is an overview of some 2000 separate legal volumes. These original sources were written by noted jurists or legal experts such as Gaius, Ulpian and Paul and they make the Digest one of the richest texts surviving from antiquity, as within there is a treasure trove of incidental historical information used to illustrate the various points of law, ranging from life expectancy to tax figures.

Other collections of laws include the Codex Gregorianus (issued c. 292 CE) and the Codex Hermogenianus (issued 295 CE), both named after prominent jurists in the reign of Diocletian and collectively including over 2,500 texts. There is also the Theodosian Code, a collection of over 2,700 laws compiled in the 430s CE and added to in subsequent years and, finally, the Codex Iustinianus (528-534 CE) which summarised and extended the older codexes.

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Then, there are also specific types of legal documents which have survived from antiquity such as negotia documents which disclose business transactions of all kinds from rents and lease agreements to contracts outlining the transfer of property. Inscriptions too, can reveal laws and their implications, as placed on public monuments they publicised new laws or gave thanks for court victories to those who had aided the party involved.

Sources of Law

Roman law was cumulative in nature, i.e. a new law could be added to the legal corpus or supersede a previous law. Statutes (leges), plebiscites, senatorial decrees (decreta), decided cases (res iudicatae), custom, edicts (senatusconsulta) from the Emperor, magistrates or other higher officials such as praetors and aediles could all be sources of Roman law.

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In tradition, the first source of Roman law was the Twelve Tables, which survives only as citations in later sources. Following an initiative to collect in one place the civil laws (ius civile) of the early Republic and end the exclusive domination of matters of law by the priestly and patrician class, laws governing relationships between citizens were codified and separated from sacred law (ius sacrum). This document was actually a collection of sentences concerning the rights of citizens only as all other parties came under the legal jurisdiction of the male head of the family (pater familias), who had considerable freedom in his treatment of those in his care, both free and unfree.

The Twelve Tables became of limited use when legal issues arose which they did not cover, for example, as commercial activity spread it became necessary to provide legal coverage of transactions and business deals between citizens and non-citizens and have laws which considered the behaviour and intent of the parties involved. These relationships became the focus of contracts and provisions such as a stipulatio and, from c. 242 BCE, disputes were presided over by a special magistrate (praetor peregrinus) specifically concerned with legal disputes involving foreigners and relations between Rome and foreign states, i.e. international law (ius gentium).

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In the Republic the emphasis was more on the adaptation of existing laws by magistrates (ius honorarium) rather than the creation of whole new legislation. This was done particularly in the annual Praetor's Edict (codified from 131 CE) when the types of permissible cases, defence and exceptions were outlined and an assessment made of the previous year's legal policy, making any needed legal alterations accordingly. In this way it was the application of laws which could be adapted whilst the law itself remained unchanged and so a series of case formulae accumulated to give greater legal coverage for the ever-changing situation of Roman society. For example, an increase in the value of a fine could be made in order to keep pace with inflation but the legal principle of a fine for a particular offence remained unchanged. So too, other officials such as governors and military courts could 'interpret' the law and apply it on a case by case basis according to the particular individual circumstance.

In Imperial times the Emperor took an active role in legal matters, especially in response to private petitions (libelli), but he typically acted on the advice of those best qualified to judge legal matters, namely, the jurists (see below). Perhaps the most famous example of an emperor creating a new law was Caracalla's edict of 212 CE which granted Roman citizenship to all free inhabitants of the empire. The emperor also acted as a judge when there were conflicts between Roman law and the local law of the provinces, which was generally kept intact and, at least theoretically, the problem was eliminated with Caracalla's edict. In practice local laws survived as customs and were generally not overruled unless they offended Roman sensitivities, for example those concerning incest and polygamy.

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From the reign of Hadrian the emperor's judgements and pronouncements were collected into the constitutions of the emperor or constitutiones princips. In addition, the Senate could also issue regulatory provisions (senatus consulta), for example, regarding public games or the inheritance rights of women. Statute law established by the people via public assemblies (comitia), although rare, might also contribute to the legal corpus but was generally limited to ceremonial matters such as deciding on the posthumous honours to be given to the children of emperors who died prematurely.

During the reign of Constantine I the imperial pronouncements often came via the emperor's quaestor and the language used within these became increasingly less technical, an argument often cited as the beginning of the 'vulgarisation' of Roman law. However, in fact law schools actually flourished and legal experts were still on hand both for the quaestor and the public to deliberate on the finer points of law left ambiguous by this new, less technical approach to the wording of legislation.

An important element of Roman law was the jurists (iurisprudentes), legal experts who subjected written laws, rules and institutions to intellectual scrutiny and discussion in order to extract from them the fundamental legal principles they contained and then applied and tested those principles on hypothetical specific cases in order to then apply them to new legislation. The jurists were an elite body as there were probably fewer than 20 at any one time and their qualification for the role was their extensive knowledge of the law and its history. In imperial times they were incorporated within the general bureaucracy which served the emperor. Jurists also had something of a monopoly on legal knowledge as the opportunity to study law as part of the usual educational curriculum was not possible before the mid-2nd century CE. Jurists also wrote legal treatises, one of the most influential was On the Civil Law (De Iure Civili) by Q. Mucius Scaevola in the 1st century BCE.

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Whilst jurists often came from the upper echelons of society and they were, perhaps inevitably, concerned with matters of most relevance to that elite, they were also concerned with two basic social principles in their deliberations: fairness (aequitas) and practicality (utilitas). Also, because of their intellectual monopoly, jurists had much more independence from politics and religion than was usually the case in ancient societies. From the 3rd century CE, though, the jurist system was replaced by a more direct intervention by those who governed, especially by the emperor himself. Gradually the number of legal experts proliferated and jurists came to resemble more closely modern lawyers, to be consulted by anyone who needed legal advice. Unlike modern lawyers, though, and at least in principle, they offered their services for free.

Practicalities

In practice litigation was very often avoided by the counter parties swearing an oath or insiurandum but, failing to reach a settlement of this kind, legal proceedings would follow by the plaintiff summoning the defendant to court (civil cases: iudicia publica or for cases in criminal law: quaestiones). The first stage of most legal cases was when the parties involved went before a magistrate who determined the legal issue at hand and either rejected the case as a matter for legal intervention (denegatio actiomis) or nominated an official (iudex datus) to hear and judge the case. When both parties agreed to the magistrate's assessment, the case was heard before the iudex, who made a decision on behalf of the state. Defendant and plaintiff had to represent themselves at the hearing as their was no system of legal representation. If the defendant lost a civil case, there was a condemnatio and they would have to pay a sum of money (litis aestimatio), typically decided by the iudex, which might cover the original value of goods or damages incurred to the claimant.

Penalties for crimes were designed as deterrents rather than corrective measures and could include fines (multae), prison, castigation, confiscation of property, loss of citizenship, exile, forced labour or the death penalty (poena capitis). Penalties might also differ depending on the status of the defendant and if they were male, female, or a slave. Perhaps unsurprisingly, males of higher social status usually received more lenient penalties. The severity of the penalty could also depend on such factors as premeditation, provocation, frequency, and the influence of alcohol.

In many cases, especially civil ones, if a defendant died before proceedings were completed then their heir could be required to stand in the original defendant's place. In the republic there was no real means of appeal in Roman law but in the imperial period dissatisfied parties could appeal to the emperor or high official and the original decision could be quashed or reversed. However, any appeals lacking good grounds could incur a penalty.

Conclusion

Perhaps one of the greatest benefits of Roman law was that, as the empire grew and populations grew more diverse, the law and its protection of citizens acted as a binding force on communities and fostered an expectation that a citizen's rights (and in time even a non-citizen's rights) would be upheld and a system was in place whereby wrongs could be redressed. In addition, the Romans have handed down to us not only many legal terms still-used today in the field of law but also their passion and expertise for precise and exact legal terminology in order to avoid ambiguity or even misinterpretation of the law, once again, an approach that all modern legal documents attempt to emulate.