Studies in History and Jurisprudence, Vol. 2 by James Bryce

Author:James Bryce [Bryce, James]
Language: eng
Format: epub
Tags: Politikwissenschaft
Publisher: Jazzybee Verlag
Published: 2017-10-12T22:00:00+00:00

VI.: Direct Legislation at Rome.

A.: The Popular Assembly.

We have now compared the organs and the methods of legislation which existed in the Roman Republic and Empire with those of England, so far as relates to the action of the jurists, magistrates, and judges. Taking first the Roman jurisconsults and authors of legal treatises, it was suggested that their English analogues were rather to be found not so much in text-writers as in the judges, the result of whose labours is preserved in the vast storehouse of the Reports; while in considering the action of the Roman Magistrates, especially of the Praetor, in the creation of law, stress was laid on the advantages which the peculiar position of this great head of the whole judicial system presented for the gradual and harmonious development of legal rules, an advantage which the disconnexion of the Chancellor from the Common Law Courts did not permit in England. This led to an examination of the English method of developing and amending of the law by the decisions of the Courts, a method which, if it loses something in point of symmetry, has the advantage of providing an unrivalled abundance of materials for the determination of every question that can arise, and of subjecting each disputable point to the test of close and acute scrutiny.

We may now go on to examine another mode of creating law, that namely which proceeds immediately from the supreme power in the State, and which may, as contrasted with the indirect creation of law by jurists, or magistrates, be called Direct Legislation.

The organ of such direct legislation is the supreme authority in the State, whether such authority be a Person or a Body, whether such body be the council of an oligarchy or a popular assembly, and whether such popular assembly be primary or representative.

The method whereby Direct Legislation is enacted is the public proclamation (usually, and now invariably, but of course not necessarily) in writing by the Supreme Authority, of its will as intended to bind the citizens and guide their action. And the result is what we call Statute Law as opposed to Common Law. The distinction is a familiar one to both nations. The later Romans contrast Ius and Lex Ref. 123 : we contrast Common Law and Statute.

Let us first inquire what were, at different periods in the long annals of the Roman State, its various organs of direct legislation, and how each of them worked. It is of course only in outline that so large a subject can be treated.

The Roman State lasted 2,206 years—from the unauthenticated ‘founding of the city’ (for which I assume the traditional date of bc 753) down to the well authenticated capture of Constantinople by the Turks in ad 1453. Some would carry it down to 1806 and thus give it a life of 2,559 years, but the feudal Romano-Germanic Empire is such a totally different thing in substance from the Empire at Rome or at Constantinople, that although its sovereigns

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