Edict.

[Gaius Octavius]

If a senatorial 'Edict' was not 'law making', then what was it?

Edited February 15, 2007 by Gaius Octavius

[Publius Nonius Severus]

Gaius-

 

Just to clarify, the senate did not issue edicts. Edicts were issued by indvidual magistrates (usually praetors). In the broadest sense, they were laws (in that they were binding - at least during the magistrates term of office). It was a form of direct legislation that did not require vote by an assembly. A lot of the edicts usually just made into law what was normal practice anyway. Many of the edicts that we know of had to do with contracts and other legal matters. The closest modern equivalents would be I'd say are legal precedent and maybe executive order (in the U.S.). Again, more like regulations than laws.

 

The senate issued senatusconsula (plural for senatusconsultum). William Smith, building on Walter, gives a great summary definition:

 

"...The Senatusconsulta were an important source of law for matters which concerned administration, the maintenance of Religion, the suspension or repeal of laws in the case of urgent public necessity, the rights of the Aerarium (treasury) and the Publicani (tax collectors), the treatment of the Italians and the Provincials."

 

So basically, the Senate could make decisions and determinations on administrative, religious, and financial matters, as well as foreign affairs. Many were considered laws by direct legislation where it was too difficult (and/or unneccesary) for the people to assemble and vote. An expedient way of keeping the state functioning.

 

So, I would consider both senatusconsulta and edicta "law making". Sure, they weren't voted upon by the people and their appropriate assemblies but their were still binding.

[Gaius Octavius]

I did use the wrong word and should have used both appropriately.

 

How did, or could, these effect laws theoretically initiated and 'passed' by the people?

[Publius Nonius Severus]

That depends on the type of "law". Some of them would have never been acted upon by the people. By types of laws, I mean bills, proposals, or measures not statutes or enacted other regulatory guidance. Here is a quick breakdown of the major forms:

 

Lex (law) - Proposed by a Magistrate (called a rogatio) and voted upon in the Comita Centuriata, binding on all people.

 

Plebiscitum (Plebiscite) - Proposed by a Tribune of the People and voted upon in the Comitia Tributata, binding on all people.

 

Senatus Consultum (Senatorial Decree) - Decress by the senate regarding administrative, religious, finanancial, or foreign affairs. Binding as applicable to the appropritate matter or area.

 

Edictum (Edict) - Edicts by a magistrate (usually a praetor) usually pertaining to contractual, court, and other legal affairs. Binding on all during that magistrate's term of office unless adopted by his successor or passsed as a lex or plebiscitum.

 

Leges and Plebiscita were often debated upon in the senate first but were not enacted until proposed as a rogatio , presented to the people (contio), and voted upon in the appropriate assembly. I do not think debate in the senate was a pre-requisite though.

 

As I mentioned above, Senatus Consulta and Edicta, as they are, were not passed by the people (but they were still bound by them). I believe if an edictum or senatus consultum were wide-ranging enough it could be proposed to the people and made a lex or um (by the way, the terms lex and plebiscitum eventually were both called lex(leges), so a distinction is not always made in the ancient sources).

 

As far as one why one form of law was chosen over another, that depended upon a variety of circumstances. If a matter fell into the purvey of the senate or a magistrate, then a SC or edict was made. If not, but if there were an issue that the elite wanted passed, they would most likely go through the comitia centuriata since voting was weighted in favor of the higher classes. If a Tribune wanted to pass a law, he proposed a plebiscitum through the comitia tributata which if it was in the interest of the masses would get passed.

[Gaius Octavius]

Assume:

 

A 'lex' or 'plebiscitum' were properly passed with respect to financial contracts wherein the minimum age of the contractors was mandated.

 

Could an edictum or consultum effectively amend it?

Edited February 15, 2007 by Gaius Octavius

[Publius Nonius Severus]

Assume:

 

A 'lex' or 'plebiscitum' were properly passed with respect to financial contracts wherein the minimum age of the contractors was mandated.

 

Could an edictum or consultum effectively amend it?

 

I do not believe so. From a quick review of what various Roman jurists have to say about edicta, it would appear that edicta were used to fill in the gaps or voids of Roman law instead of amending it. Moreover, they appear to usually formalize what was already customary.

 

So, in the example you give, I would say an edictum could not be used to ammend a lex. As far as I know, the only way to repeal or ammend a lex is with another lex.

 

Again, following your example, the only case I could see where an edictum and a lex might interact is say that a lex said that "minors may not engage in financial contracts" or "there shall be a minimum age to which one may form a financial contract". Assuming, minor or the minimum age wasn't defined eleswhere in another lex, then a praetorial edictum could affix the age of a minor or the minimum age based on already established custom. Then, the next year if the next praetor didn't like that number, he could issue a new one, etc.

[Gaius Octavius]

Publius, thanks for your answers and work.

[Ursus]

Just to add to PNS's excellent summary, it should be noted that to a conservative and pious society like the Romans, the weight of tradition coupled with the moral authority or the Senate and the magistrates was often its own law.

 

E.G. The Senate, controlled usually by the finest families in Rome, had become accustomed to dealing with matters of finance and foreign policy. The moral weight of this august body and the sheer tradition of their power meant their decrees in these areas, while not techincally laws, were rarely ignored. A magistrate armed with the senatus consultatum ultimatum had the full authority of tradition and morality to do what was necessary to defend the State.

 

When one went outside the moral authority of the Senate and/or bypassed tradition - as the Gracchi did - there was usually trouble.

[M. Porcius Cato]

Ursus is quite right that the Senate was an august body, revered by all pious Romans. Underscoring this fact was that the Senate only met in templa, i.e., locations that had been officially inaugurated as sacred.

 

At the risk of taking us too far afield, however, it should be pointed out that the Senate's decision-making role in foreign policy was limited to defining provinces and allocating forces to them. Decisions on war and peace were not made by the Senate but by the people, who, having been summoned by a magistrate, were addressed in speeches at the Forum or the Capitol, and who voted for war or peace as the centuriate assembly in the Campus Martius. Indeed, even treaties had to be ratified by the people voting in a lawful assembly.