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
Passing to legislation on private matters, we find that any fundamental
change in the legal relations of citizens to one another must be effected
by the people. The law of the Twelve Tables is itself a _lex centuriata_,
and we need only think of laws, such as those on usury, or the _lex
Voconia_ on inheritance, as types of a multitude of others. In the matter
of civil procedure also a fundamental change, such as that permitting
the use of the _formula_ in place of the _legis actio_ in cases falling
under the _jus civile_, required legislation.[1185] Yet we feel that it
is only a question of degree whether such changes are effected by the
people or by the authority of individuals. In matters of substantive law
immense changes were brought about by the interpreting authority of the
praetor;[1186] while in procedure also much was left to the discretion
of pontiffs, magistrates, and jurists. The same principle of division of
authority applies to police regulations. Wide as were the coercive powers
of the magistrates, sweeping infringements on individual liberty, such as
those created by the sumptuary laws, were the work of the people.
We may pause here to examine the form of a _lex_, and especially that
portion of it which secured its validity—its sanction. A complete
law contained three parts: (1) its preamble (_praescriptio_), which
described the formal circumstances of its enactment;[1187] (2) the text,
in which a minute and exhaustive formalism was rigorously preserved;
(3) the sanction, which contained the pains and penalties pronounced
against those who violated the provisions of the enactment. A _poena_,
however, was not of itself sufficient to constitute a perfect law. A _lex
perfecta_ was one which declared an act invalid and imposed a penalty
for disobedience. The imposition of a penalty without the declaration of
invalidity constituted a _lex minus quam perfecta_.[1188] A law without
a sanction was _imperfecta_.[1189] The method of repeal most frequently
practised at Rome was rather that of supersession than of the declaration
of the nullity of the former enactment. Hence the sanction of laws often
gives impunity to those who by obedience incur the pains and penalties
pronounced by some previous measure.[1190] Repeal might be either
complete or partial, and a series of technical terms was evolved to
express this difference.[1191]
The attempt of certain laws to secure finality by prohibiting repeal
was necessarily futile, as opposed to the whole theory of parliamentary
sovereignty.[1192] It is possible, however, that the _leges sacratae_
of the early Republic, such as that which made the tribune sacrosanct,
were regarded as unalterable. The _execratio_, which was their sanction,
may have been regarded as a fundamental religious obligation, and have
been held, as such, to be one of those sacred rights which, as we have
seen,[1193] no law professed to infringe.
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