Roman Public LifeGreenidge, A. H. J. (Abel Hendy Jones)
History
Roman Public Life
Greenidge, A. H. J. (Abel Hendy Jones)
Constitutional history -- Rome; Rome -- Politics and government
an oath” (_solvere aut jurare cogam_); before the question of right is
decided, “I forbid force to be used” (_vim fieri veto_).
A consideration of judge-made law, the consequence it may be of
precedents drawn from already decided cases, and therefore merely the
recognition of practice which had already crept into use,[938] but
still expressed, as it is in this case, in a purely abstract form,
suggests many questions. First, as to its validity. The edict was law
that held good for a year (_lex annua_):[939] a limitation that would
have produced a most unsatisfactory uncertainty as to its validity for
future litigants and subsequent magistrates, had it not been for the
facts that it was actually continuous, and that it was received, only to
be slightly modified in accordance with legislative changes or with the
demands of convenience, by successive wielders of civil jurisdiction. To
use technical language, the edict was _perpetuum et tralaticium_.[940]
Secondly, we must consider the limitation on the magistrate and the
forces that bound him to observe his own promulgated law. At Rome the
veto operated successfully for this purpose[941] even before the passing
of the _lex Cornelia_ of 67 B.C., which obliged a magistrate to adhere to
the rulings of his own edict.[942] In the shaping of the edictal rules
the mere fact of publicity in a community so legally gifted as that of
the Romans must have sufficed to keep the magistrate within the bounds of
prudence; when he was conscious of little legal training, the assistance
of eminent jurisconsults must have frequently been called in.
The edict is the source of most of our modern Roman law; the titles of
Justinian’s _Digest_ are often commentaries on its rubrics excerpted from
the writings of the scientific jurists, and that it should become the
prototype of the world’s law was only natural when we consider the way in
which it was built up. It was not only the collective work of generations
of gifted men, who were fortunately not professing lawyers, but it was
the outcome of an adjustment of Roman law first with that of Italy and
then with that of the provinces. The beginnings of a recognition of a
“law of the civilised world” (_jus gentium_) must be older than the
institution of the _praetor peregrinus_, since for more than a century
the _praetor urbanus_ had been issuing edicts not merely for _cives_
but also for _peregrini_; but, when a separate comprehensive edict was
issued for _peregrini_, equity found a more systematic expression, and
its reaction on the comparatively rigid forms of the urban edicts was
necessarily great; but the power of this reaction was possibly even
surpassed by that of the provincial edict (_edictum provinciale_),
issued originally by the foreign praetors and then by the proconsuls and
propraetors in each of Rome’s dependencies.
Public-domain text, read in full here on John Shaqi.
Reviews
Reviews
No reviews yet
Be the first to share your thoughts on this work.
Elsewhere in the archive
Join the Discussion
Join the discussion
Sign in to leave a comment or review.
Sign InorCreate an account