Posted by: ken98 | August 25, 2011

Sources of Roman Civil Law and Common People Can’t Be Trusted

Day 711 – Ken here (Th)(8-25-2011)
(DEF II, v.4, Ch.44, pp.780-790)(pages read: 1840)

We're talking the basics of Roman Law today - the old S.P.Q.R. - Senatus PopulusQue Romanus - the Senate and People of Rome (the Que means "and")

We're talking the basics of Roman Law today - the old S.P.Q.R. - Senatus PopulusQue Romanus - the Senate and People of Rome (the Que means "and")

Not a good day health-wise, but not the best day content-wise either.

Today we continue Gibbon’s review of Roman Civil Law – a review I might mention that reveals (in all probability) more about the author (Gibbon) and the authors’s mentalite than the subject matter (Roman Civil Law).

A very dry day.

I have to say, this is even worse than the long chapters on Christianity (15,20,21, etc) we’ve struggled through before. I was kind of hoping for a cogent summary of Roman Law – but instead it feels more like a schoolboy’s (Latin Grammar School) essay answering the question “What do we learn about Roman Law through Latin literature?” – and not even an essay from one of the top students of the class – this is a middling sample from the center of the normal curve – LONG on opinions and vague generalizations and SHORT on interesting specifics, detailed analyses. But we ARE talking one chapter in a 3000 page book. Maybe I’m being too hard on him – so, enough with the Ken-caterwauling and onto someone REALLY interesting – Gibbon.

The Story
Roman Law Overview
  • History of Law is history of struggle for minorities in Roman society to have a voice and gain justice in the City

    Sources of Law – Decemvirs and the 12 Tables – Mos Maiorum – ways of the greater ones, the elders
  • 12 Tables – ancient basis of Roman Law – by oral history took place around 450 BCE
  • Remember, after kings overthrown, the Romans crated their own law – the 10 men (Decem-10 vir-men) committe set up the 12 Tables of laws – posted publicly at the capitol – no longer solely a matter of religion and priests but a civil (city) matter
  • 12 tables of laws written down publicly – old Republican Rome memorized the tables, considered “light” reading for youths – improved their morals
  • Gradually increased by new laws for next 450 years until 3000 brass plaques (Senate and People’s Laws) also depostited at the capitol
  • (KEN) – not understandable unless you read Fustel de Coulanges’ book The Ancient City

    Sources of Law – Laws of the People
  • Laws of the People are LAWS – The people had an assembly – Assembly by Centuries – by Tribes – organized to make the Patrician class (upper class) always have last say over Plebeian class (Common people) – they made laws in this assembly
  • At one time all votes were public, then votes were made secret – secret ballots
  • when votes were NOT secret, commoners would be cowed into voting according to their Patrician patrons/generals/leaders – secret ballots meant elections were less controlled by Patricians
  • GIbbon feels this is a VERY BAD THING – not-secret balloting and Commoners NOT being led by their betters

    Sources of Law – Decrees of the Senate
  • Decrees of the Senate ARE LAWS

    Sources of Law – Rules of the Praetor
  • The praetor was a magistrate – a Roman official – a judge – as he entered office he published a list of rules (Praetor’s Edict)he would enforce
  • Later, because the rules changed every time a new praetor was created, a Perpetual Rule was adopted – The Perpetual Edict

    Sources of Law – Constitutions of the Emperors
  • Later, under the emperors, they made laws directly – these are “constitutions”

    Sources of Law – Emperor’s Rescripts
  • A Rescript was a return letter, written by the emperor, in response to a question put by someone else (a governor of a province for example) (an example – Trajan’s famous rescript to Pliny on Christians)

    Ancient Roman Law Meant Actions Signified Thoughts – Gibbon Calls It Law By Pantomime
  • example – 2 challenge someone over a piece of land, you had to grasp your opponents hand in front of a judge and cast down a handful of earth (literally from the contested ground) – to show/start/pursue your civil suit in court
  • A relic of the religious foundation of law – law was a religious act in ancient Roman times, it was overseen by priests and so symbols such as earth and grasping the hand of your opponent were as important as blessing the eucharist correctly in a Catholic mass – the actions MEANT SOMETHING – spiritually


    No, not these common people - just your average everyday citizen kind of common people (CD Cover for Pulp Common People)

    No, not these common people - just your average everyday citizen kind of common people (CD Cover for Pulp Common People)


    Last Word…



    Quoteable Gibbon – Common People CANNOT BE TRUSTED


    Gibbon couldn’t state this clearly enough. Common or plebeian persons (to use the accurate term from Roman society, and the figurative adjective we use today to mean “common, vulgar, coarse”) sold their freedom for a song and brought about anarchy and despotism. Obviously. Gibbon was also, obviously, NOT of the plebeian sort, he considered himself a patrician and identified with the upper classes in Roman history – when it suited him.

    Secret Ballots Just Encourage Them

    Here, Gibbon darkly warns what happens when a nation indulges in secret ballots and no one is ashamed to vote their conscience rather than vote what the “best people, the better sorts” might have recommended in the voting department.

    Yet as long as the tribes successively passed over narrow bridges (28) and gave their voices aloud, the conduct of each citizen was exposed to the eyes and ears of his friends and countrymen. The insolvent debtor consulted the wishes of his creditor; the client would have blushed to oppose the views of his patron; the general was followed by his veterans, and the aspect of a grave magistrate was a living lesson to the multitude. A new method of secret ballot abolished the influence of fear and shame, of honor and interest, and the abuse of freedom accelerated the progress of anarchy and despotism.

    (DEF II, vol.4, Ch.44, p.784)

    Letting Them Make Laws Just Encourages Them

    Augustus (the first Roman Emperor, and the man who began to dismantle the whirling-out-of-control old Roman Republic which had been in continuous civil war for a century) – dissolved away the People’s Assembly, basically like deleting the House of Representatives from the Legislative Branch, made the Senate supreme, then took away most of the Senate’s independent legislative power – leaving the Senate a figurehead, but impotent. So maybe it wasn’t so bad that the Assembly simply WASN’T anymore. Gibbon of course sees it another way – it got the rabble out of the legislature and left it to the people who legislate best – the “better sort”, the Senators.

    The loss of executive power was alleviated by the gift of legislative authority; and Ulpian might assert, after the practice of two hundred years, that the decrees of the senate obtained the force and validity of laws. In the times of freedom, the resolves of the people had often been dictated by the passion or error of the moment: the Cornelian, Pompeian, and Julian laws were adapted by a single hand to the prevailing disorders; but the senate, under the reign of the Caesars, was composed of magistrates and lawyers, and in questions of private jurisprudence, the integrity of their judgment was seldom perverted by fear or interest.

    (DEF II, vol.4, Ch.44, p.785)


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