Introduction to Historical Foundations

of South African law Lesson 3: History

of Roman Law

1
 Learning outcome
• Republic

Material:
Historical Foundation of South African Private law
Chapter 2
 Republic- 509-27 BC

Expansion of Rome
• During this period the territory and population of Rome grew.

• This growth was primarily attained through war and conquest

• The agriculture based economy underwent transformation and became the

centre of international trade

Wednesday, 3
19 February
 Republic- 509-27 BC

Division of labour: more magistrates

• The expansion of Rome placed an increasing burden on the consuls with the
result that other magistrates with specific functions were elected.

• This division of labour meant that the executive functions were divided as
each magistrate was forced to specialise on a limited aspect of the executive.

• Other institutions, the popular assembly and the senate, obtained more
political significance.

Wednesday, 4
19 February
 Constitutional structure during the republic, the
executive, legislative and judiciary
• The Constitutional structure of the republic was characterised by
separation of powers.
• Originally, the king was the law-giver, the executor of the law and
the judge.
• As the king was removed ,these functions were placed in different
hands.
• During the 18th century, the theory of the separation of powers
was developed.

2024/02/21 5
 Constitutional structure during the republic, the
executive, legislative and judiciary
• The executive power of the erstwhile king passed into the hands
of two consuls.
• The government of the Roman republic was thus in the hands of
two elected officials, who exercised all the executive functions,
that is, commanding the army, the administration of justice and
the administration of the state.
• As the state expanded, more magistrates were created to perform
the increasing number of executive functions. Each magistrate
exercised his power in relation to his own specific function.

6
 Constitutional structure during the republic, the
executive, legislative and judiciary

• The magistrates were elected by the popular assembly.

• This assembly invested them with the power of the Roman
people, from which power the authority over the people and the
power to promulgate edicts and enforce these edicts, derived.

7
 Administration of Justice during the Republic

• Two praetors were elected to manage the administration of civil

litigation, in Rome.
• The extension of Roman influence and resulting trade
necessitated the establishment of a second praetor magistracy.
• This magistrate, the praetor peregrinus, was instructed to create
channels to enable litigation between foreigners, or between
Romans and foreigners in Rome.
• Aediles curules were responsible who supervised law and order
on public roads and markets

8
 Struggle between patricians and plebs during the
Republic
• During the first half of the republican period the struggle between
the different orders was an important factor.
• On the one side stood the wealthy and influential aristocrats from
whose ranks the senate was constituted, the magistrates elected,
the pontiffs came and who dominated the popular assembly.
• On the other side, stood the plebs, the proletariat with no political
and few social rights, who struggled for political equality.

9
 Assembly of the plebians (Republic)

• In 494 BC the plebians resorted to a secession from the city, by withdrawing

to the Aventine hill, and constituted their own assembly.
• This assembly elected the plebeian officials and voted on their proposals in
the same manner as the popular assembly.
• A constitutional conflict arose in respect of the application of the resolutions
of the plebeian assembly, since the patricians held that they were not bound
by the decisions of a body in which they were not represented.
• The plebeians held that the majority binds all.
• In 287 BC the Lex Hortensia gave resolutions of the plebeian assembly by
the same binding force as legislation from the popular assembly.

1 10
 Senate (Republic)
• This institution played an important role in the Roman state and was a creative force in
Roman law was the senate, a body which comprised of three hundred members, selected by
the censors.
• A senator had to be 31 years old and usually a former magistrate.
• The senate was convened by the magistrates.
• The functions of the senate were varied.
• The senate was a consultative body and its main function was to advise the magistrate.
• The senate had control of public finance, which placed magistrates whose activities entailed
expenses for the state in a dependant position.
• The senate has to ratify legislation and elections of the popular assembly for these to
become operative.
• This led to the practice that proposed bills and elections would be discussed in the senate
before introduction in the popular assembly.
• This senate conducted foreign affairs and had sacral functions.
• This resulted that the resolutions of the senate which were in theory only advice, gradually
acquired the force of law.

11
 Senate the true ruler (Republic)
• During the republican period the senate became the most
powerful body and held the real leadership of the state.
• The yearly change of magistrates made the permanent senate the
one stable body within the republic, while the popular assemblies
lost their influence as Rome extended.

12
 Judiciary (Republic)

• During the republic, the judiciary was totally independent from the
executive and legislature.
• The Roman judge was neither a professional or even a jurist.
• In civil litigation the judges were chosen by the parties from a list
of names.
• The judge received his appointment from the praetor and would in
practice ask advice from one or more jurists.
• Decisions were given verbally, hence no record existed and there
was no binding force of precedent.

13