Statements of the law

The Censors, first appointed in 443 B. C. , were appointed every four or five years and held office for not more than eighteen months. They had no direct concern with the law, but they exercised a general supervision over morals which might form an important supplement to the law. This supervision of morals derived from their main function, which was the taking of the census. This involved the allotting of each citizen to his appropriate group for political and military purposes and for taxation.

In carrying out this duty the Censors might place a mark (nota) against the name of any man of whose conduct, in public or in private life, they disapproved, and this would usually have the effect, inter alia, of virtually disenfranchising him. Their discretion was quite unrestricted: we hear of the affixing of the nota for abuse of paternal power, for luxurious living, for bad husbandry, for desertion in the army, or for improper conduct as a magistrate.

This power was even more important in the discharge by the Censors of their function of revising the list of members of the Senate, a function which was transferred to them from the Consuls probably in the fourth century B. C. In general there was in Rome no idea of the binding or even persuasive force of precedents, but the unique authority of the Emperor gave to his decisions the character of authentic statements of the law. Rescripta, on the other hand, were not judgments but written answers to questions or petitions. Such questions or petitions might be submitted either by officials or public bodies or by private individuals.

Many of them would have no bearing on the private law, but it was permissible for either a judge or a litigant to seek a decision on a point of law involved in a case. There was no judgment, since there was no investigation of the facts, but the imperial ruling would determine what the decision must be if the facts were as stated in the petition. (Jolowicz, 1972) This practice of submitting a preliminary issue of law to the Emperor became increasingly common from the reign of Hadrian onwards, and a great many rescripts from the time before Constantine are preserved, mainly in the Codex of Justinian.

They vary greatly in length and complexity, and also in the difficulty of the point of law involved. Indeed one is astonished at how elementary were the questions which were sometimes submitted to the imperial chancery. The power of higher magistrates to issue edicts has already been mentioned. From the edicts of those magistrates whose sphere included jurisdiction: and above all from that of the Urban Praetor, there derived the ius honorarium or magisterial law.

This stood side by side with, and either supplemented or qualified, the ius civile—i. e. the traditional common law as embodied in or modified by statute and the interpretatio of the jurists. It was the Urban Praetor’s edict which, more than any other single factor, transformed the Roman law from the rigid narrow set of rules which we see in the fragments of the Twelve Tables into the flexible and comprehensive system which was to serve the needs of Europe through many changing centuries.

And it achieved this work of transformation while leaving the ius civile ostensibly unaltered. It reconciled conservatism with the need for change. For the Praetor had no more than any other magistrate the power to make law: his power was only over the remedies, i. e. the means by which the law was enforced. But this power enabled him indirectly to alter the law. For an understanding of this central contradiction of the Roman law some further explanation of the functions of the Praetor is necessary.