Lex
Lex ( f .; Plural leges , Latin for "law") is a term from the Roman Empire , which in the broader sense denotes any legal regulation, but in the narrower sense only those legal provisions that had gone through a certain path. The origin of the word are the verbs legere (to read or select) or ligare (to bind).
In the Middle Ages the term lex is used in connection with legal collections, in modern times in legal philosophy and in constitutional law .
Roman Empire
definition
The origin of the term lex is disputed; the oldest Roman process, the legis actio , initially did not presuppose a formal law, but represented a rite that provided for a formalized, ritually determined procedure to enforce one's own (legal) interests.
The late Roman authors, on the other hand, understand a lex to be a rule or a commandment of the sovereign power of a state, which, published in writing, is directed with rights or obligations to the nationals of this state.
Lex est commune praeceptum, virorum prudentium consultum, delictorum, quae sponte vel ignorantia contrahuntur, coercitio, communis rei publicae sponsio.
"A lex is a general rule adopted by prudent men whose violations, whether committed willfully or unknowingly, are punishable in the general public interest."
Quae scripto sancit quod vult, aut iubendo, aut vetando
"That in writing determines what is approved or rejected."
In Justinian's institutions (1 tit.2 s4) there is a definition that relates more directly to state power as the source of law:
Lex est quod Populus Romanus senatorio magistratu interrogante, veluti consule, constituebat.
" Lex is what the Roman people determined at the request of a senatorial magistrate , for example a consul."
However, as Aulus Gellius observes, this definition is not applicable to the laws on the imperium of Pompey or the return of Cicero, which only concern individuals, i.e. are actually called privilegia .
Procedure
1. In the legislation of the Roman Republic and the beginning of the imperial era, the lex was the law named after the applicant (usually one or both consuls or one of the tribunes ) passed by the people's assembly, which had passed through the five stages of the legislative process:
- 1. A magistrate (and not the people's assembly ) introduces a bill to the Senate ;
- 2. The draft is discussed in the Senate;
- 3. The bill is published ( promulgatio );
- 4. The published draft is discussed ( rogatio ) and voted on in the comitia , whereby the draft could only be accepted ( uti rogas - as requested) or rejected ( antiquo - it remains the same ), but could not be changed;
- 5. The adopted law is published ( publicatio ).
Since 287 BC Chr. ( Lex Hortensia ) the plebiscites were equated with the leges in terms of their effect and were subsequently incorrectly referred to as such. During the imperial era, the leges were gradually supplanted by the senate resolution ( senatus consultum ) and the imperial legislation ( constitutio , for example the constitutio Antoniniana ).
In terms of the mode of enforcement, there are two types of Roman leges , leges curiatae and leges centuriatae . Original leges were only the leges curiatae , which were decided by the people in the comitia curiata . After the establishment of the comitia centuriata , the Comitia Curiata gradually fell out of use, but retained in the formal transfer of the imperium , which was only possible through a Lex curiata de imperio , and in the ceremony of the adrogatio (see adoption in the Roman Empire ), which only was made in this Comitia , a shadow of the old constitution beyond the republic to under Augustus .
These leges were decided in the comitia centuriata , introduced ( rogabantur ) by magistrates of senatorial rank, who then gave the lex their name. Such a lex was also called populi scitum ( Festus , sv Scitum Pop.).
When the comitia tributa were placed on the same level as the centuriata , the word lex was also applied to plebiscites, so that lex became a general term, sometimes given special names such as lex plebivescitum , lex sive plebiscitum est .
In his list of Roman legal sources (Item 5), Cicero does not mention any plebiscites, which he undoubtedly subsumes under the leges . Many plebiscites are cited as leges , such as the lex Falcidia ( Gaius , ii.227) and the lex Aquilia (Cicero, pro Tullio , 8.11). On the tablets of Heraclea the words lege plebivescito appear to denote the same ordinance, and in the lex Rubria there is the phrase " ex lege Rubria sive id plebiscitum est " ( Savigny , magazine, etc. volume ix page 355).
shape
In terms of form, one can judge Roman legislation by the fragments that still exist. The Romans always seem to have clung to the old terms and use few superfluous words. Great care was taken with those clauses proposed to amend an existing lex , and great care was taken to avoid any overlap with an earlier lex when it was not intended to be changed. The leges were often divided into chapters ( capita ) (Cicero, ad Atticus iii.23). They were cut in bronze ( aes ) and exhibited in the aerarium ( Suetonius , De vita Caesarum 28; Plutarch , Cat. Min. 17). The latter presumably only took place for a certain time (Cicero ad Atticus xiv.12).
The name of the lex was usually derived from the gentile name of the magistrate who brought it in, like the lex Hortensia from the dictator Quintus Hortensius . Sometimes the lex got its name from the two consuls or other magistrates, like the lex Acilia Calpurnia , the lex Aelia or lex Aelia Sentia , the lex Papia or lex Papia Poppaea , where it was common to put the word et (“and”) between to leave out the two names, if there are exceptions to it. A lex also often referred to its content, such as the lex Cincia de donis et muneribus , lex Furia testamentaria , lex Iulia municipalis and many others. Leges , which refer to more general subjects, were often given collective names, such as leges agrariae , leges judiciariae, and others. Sometimes there was a reference to a chapter of a lex in the subtitle , in addition to indicating the content of the chapter, for example the lex Iulia de fundo dotali , which was a section of the lex Iulia de adulteriis . Sometimes a lex got its name from the main content of the first chapter, as for example in the lex Iulia de maritandis ordinibus . Sometimes a lex also summarized various regulations, which also belonged to extremely different topics; in these cases the lex satura was called ( lex Caecilia Didia , lex Iulia municipalis ).
The wording of a lex was determined by the person who contributed it, in many cases using the help of someone who knew the terminology. A lex was proposed to the comitia as a whole for approval or rejection, there was no discussion of individual provisions, changes were not possible, not even a discussion about them. The sanctio ( punitive provision) of a lex (Rhet. Ad Herenn. Ii.10; Papinian, Digesten 48 tit.19 s41) made a lex what the Romans called a perfecta . In a lex perfecta , actions that are contrary to the provisions of the lex are declared null and void. If a lex did not contain this sanctio , it was called imperfecta (compare Lex imperfecta ). A lex was called minus quam perfecta if the actions that were contrary to the provisions of the lex were not declared null and void, but were punished (Savigny, System, etc. Volume iv, page 549ff). The division of the leges into perfectae etc. is obviously only applicable to those leges which the Romans assigned to the domain of privatum ius .
application
1. In most cases, the leges served to resolve political issues, while private law problems were generally decided by the judicial authorities and specialist lawyers on the basis of existing legal principles and norms. Laws established constitutional (civil service careers ( cursus honorum ), awarding of office, granting of civil rights, transfer of special powers and commands), economic (so-called agricultural laws, trade restrictions for senators, etc.) and socio-political (relationship between patricians and plebeians , position of slaves and freedmen , Marriage laws) problems regulated.
2. Leges also include stipulations between authorities and private individuals or between private individuals with one another with the character of a contract (for example the estate and mining statutes : lex Hadriana , lex Manciana and lex metalli Vipascensis ).
The term is then used to express contract terms, obviously with reference to the binding force of all contracts. The work of Marcus Manilius ( consul 149 BC) on trade is cited by Cicero ( de Oratore i.58) as " Manilianas venalium vendendorum leges " (see Digest 18 tit.1 s40, where lex means sales conditions). Accordingly, one finds the expression leges censoriae to express the conditions under which the censors had public property built; and perhaps the term denoted certain permanent regulations for such questions to which the censors were authorized (Frag. de jure Fisci , p18; Digesten 50 tit.16 p203). In both cases the phrase lex censoria (in the singular) is used, and this lex , whether it is a law or not, also seems to be divided into chapters.
3. Also the regulations for provinces and cities (so-called lex data , given law ) drawn up by a senior official (later by the emperor) such as the lex Rupilia for Sicily , lex Pompeia for Bithynia , the city rights of Malaca ( lex Malacitana ), Salpensa ( lex Salpensana ), Urso ( lex Ursonensis ) and Tarent ( lex Tarentina ) are counted among the leges .
The end of the classic leges
In the late period of the republic the number of leges increased sharply ( Tacitus Annales iii.25-28), and Caesar is said to have considered a revision of the entire work. Under him and Augustus , many regulations were passed which are known by the common name leges Iuliae . It has often been falsely claimed that no leges or plebiscites were enacted after the time of Augustus . Although the vote was only a matter of form, this form was maintained, and if it were not, then the passage in Gaius (i.2ff), in which he speaks of leges and plebiscites as a valid form of legislation, would be incorrect. In addition, many laws are mentioned that were passed in the Roman Empire , such as the lex Visellia , a lex agraria under Caligula , and a lex Claudia on guardianship of women ( Gaius , i. 157, 171). However, this no longer occurs when the old forms of legislation were pushed aside, but they long outlived the elections to which only the passage in Tacitus ( Annales i.15) refers.
Sometimes in overviews a senatus consultum (Senate resolution) is referred to as a lex (14 tit.6 s9 § 4; s14), which does not represent a great improperity if we consider the time when senatus consulta were laws. But a real senatus consultum must not be confused with a real lex ; there is no reason to suppose that the lex Claudia of Gaius was a senatus consultum , and when he speaks of a senatus consultum from the time of Claudius , he calls it that (i.84, 91). Finally: There is no mention of a lex that was prescribed after the time of the Nerva ( Digest 47 tit.21 s3 § 1).
Although leges was still spoken of in the High Imperial Era and Late Antiquity , it came about in a different way. In the 3rd century , Herennius Modestinus expressly stated that a lex was no longer made by the people in his time, but by the emperors ( Digesten 48 tit.14 s1).
middle Ages
At the beginning of the 6th century law books were published under the name lex in the Visigoths - ( lex Romana Visigotorum ) and Burgundy rich ( lex Romana Burgundionum ), which were valid for the Roman population and represented excerpts from the older collections of laws. The name lex is also used in the later recording of Germanic popular rights ( lex Alamannorum , lex Baiuvariorum , Lex Frisionum , lex Ribuaria , lex Salica , lex Saxonum , etc.).
Modern times
In legal philosophy , among other things , lex is still used in Latin expressions and terms, for example:
- Lex causae - the applicable national law in international private law
- Lex commissoria - the sunset clause
- Lex fori - the law applicable at the place of jurisdiction
- Lex imperfecta - a law that is imperfect ("not perfect") because it threatens neither punishment nor ineffectiveness of the act in the event of an infringement
- Lex loci delicti - the law of the place where the criminal act took place or the result of the tort occurred
- Lex mercatoria - international trading habits
- Lex posterior derogat legi priori - the later enacted law takes precedence over the earlier one
- Lex rei sitae - the law applicable at the place of a thing
- Lex specialis derogat legi generali - the more specific rule takes precedence over the general one
- Lex superior derogat legi inferiori - the higher law (e.g. constitutional law) takes precedence over the lower law
In constitutional law , the lex is a law of measures issued for a specific occasion, often (but not officially) named after the person who benefits from it or whom it is intended to affect. General laws, for example, also bear the name of the person who introduced the draft. Laws that are tailored to the needs of individual persons or companies are often unofficially named after them (for example lex Naumann 1998 in Germany or lex Nokia 2009 in Finland). As a rule, such laws do not enjoy a high social reputation, which is why the use of lex + name often has negative connotations . However, it also happens that the laws are named after their author or the member of parliament who introduced them and then typically do not have a negative connotation, e.g. Lex Koller in Switzerland.
The main roman leges
(descending by age):
- Lex XII tabulorum ( Twelve Tables Law , Latin Leges duodecim tabularum ) from the years 450/449 BC BC, the codification of the orally handed down law by the Decemviri .
- Lex Valeria Horatia (after the consuls Lucius Valerius Poplicola Potitus and Marcus Horatius Barbatus ): several laws from 449 BC. Chr., Regulate constitutional questions ( political immunity of the tribunes, storage of the senate resolutions ( senatus consulta ) in the Ceres temple, binding force of the plebiscites )
- Lex curiata de imperio ("Curiate law over the empire"): law from the early republic that regulated the transfer of the authority of the senior officials through the comitia curiata .
- Lex Canuleia de conubio patrum et plebis ("on the marriage between patricians and plebeians "): 445 BC. Chr .; the law recognized these marriages as legitimate.
- Leges Liciniae Sextiae : several from the tribunes Gaius Licinius Stolo and Lucius Sextius Lateranus in 367 BC. BC applied for laws, of which, in addition to an agricultural law, contained the most important decisive provisions for the development of the Roman state constitution: at the head of the state two consuls, one of whom was a plebeian, among them a praetor responsible for jurisdiction, and two aediles curules .
- Lex Poetelia Papiria de nexis ( on debt bondage , after the consul Gaius Poetelius Libo Visolus and Lucius Papirius Cursor ): eliminated 326 BC. Voluntary debt slavery by regulating the liability for debts (for example by working off, no longer by loss of freedom).
- Lex Aquilia de damno ("about harm, penance"): 3rd century BC Chr., Regulated the penalties for theft and damage to things ( slaves included).
- Lex Ogulnia : 300 BC BC, increased the number of pontifices and augurs to eight and nine respectively; the plebeians were given access to these priests' colleges.
- Lex Hortensia de plebiscitis ("on the plebiscites") of the dictator Quintus Hortensius : 287 BC. Chr .; Through this law the decisions of the plebs (plebiscites) were given the force of law.
- Lex Flaminia de agro Gallico et Piceno viritim dividundo (“on the per capita distribution of the Gallic and Picenian fields ”): 232 BC. BC, distribution of land in northern Italy to Roman citizens
- Lex Claudia de modo navium ("on the size of ships"): 218 BC. The law forbade members of the senatorial class from owning ships with a capacity of more than 330 amphorae. Larger trading companies were thus forbidden to the senators, whose economic basis remained the property, while trade was concentrated in the equestrian class.
- Lex Cincia de donationibus ("about donations"): the plebiscite of 204 BC. Chr. Set a maximum value for gifts, except to relatives.
- Lex Furia testamentaria ("Testament Law"): between 204 and 169 BC Chr .; prohibits the acceptance of wills of more than 1000 As .
- Lex Villia annalis (“Annual Law”): 180 BC. BC, regulated the senatorial course honorum .
- Lex Voconia : 169 BC Adopted, supplemented the inheritance law provisions of the Lex Furia .
- Lex Calpurnia de repetundis (compare Lex Acilia from 123/2 BC): 149 BC Chr.
- Lex Rupilia : Statute of the Province of Sicily (131 BC)
- Lex Acilia de repetundis pecuniis ("on funds to be reclaimed "): at the request of the tribune Manius Acilius Glabrio 123/122 v. Law passed against extortion by Roman officials
-
Leges Semproniae : by Gaius Gracchus 123 BC. Applied as a tribune of the people:
- Lex agraria ("Farm Law"): continuation of the Farm Law of Tiberius Gracchus from the year 133 BC. Chr.
- Lex frumentaria ("Grain Law"): cheap sale of grain to the urban plebs
- Lex iudiciaria ("Jury Law"): pushed back the influence of the senators in favor of the knights in the courts of justice.
- Lex militaris ("Defense Law"): Recruitment not under the age of 17, the state pays the costs for the equipment.
- Lex de provincia Asia ("via the province of Asia"): Introduction of the Roman tax lease system in this province
- Lex de provinciis consularibus ("via the consular provinces"): determines before the election which province will be given to the future consuls for administration.
- Lex de provocatione ("on appeal"): regulates questions of appeal against judicial decisions.
- Lex de viis muniendis ("on the expansion of the roads"): Promotion of public road construction
- Lex agraria ("Field Law"): 111 BC Chr.
- Lex Appuleia agraria (" Field Law ") of Lucius Appuleius Saturninus , 100 BC Chr .: regulated the field supply of the veterans.
- Lex Appuleia de piratis persequendis ("about the persecution of pirates", also from Saturninus ): 100 BC. Chr.
- Lex Tarentina : City law of Taranto (1st century BC)
- Lex Iulia de civitate (“on the citizenship” of the consul Lucius Iulius Caesar ): 90 BC. Chr .; Law that gave all Latins and allies of the Romans Roman citizenship
- Lex Plautia Papiria of the tribunes Marcus Plautius Silvanus and Gaius Papirius Carbo 89 BC Chr .: grantedRoman citizenshipto all allies south of the Po .
- Lex Pompeia de Transpadanis (“about the Transpadans”) of the consul Gnaeus Pompeius Strabo : 89 BC. Chr .; the residents north of the Po were given Latin citizenship.
-
Leges Corneliae , from 82 to 79 BC From Sulla :
- Lex iudiciaria (“Judicial Act”): new regulations for the judiciary
- Lex de magistratibus ("about the officials"): established a certain sequence of senatorial offices.
- Lex de praetoribus ("about the praetors"): Increase of the praetor positions to eight
- Lex de repetundis (compare Lex Acilia )
- Lex de tribunis plebis ("on the tribunes"): limited the influence of the tribunes.
- Lex de XX quaestoribus ("about the 20 Quaestors"): increased the number of Quaestors to 20.
- Lex Gabinia de piratis persequendis (compare Lex Appuleia ): Law that 67 BC Chr. Pompey transferred the war against the pirates to 3 years
- Lex Roscia theatralis : 67 BC Chr .; regulates the distribution of seats in the theaters and the census of the Ordo Equesters, named after tribunes Lucius Roscius Otho.
- Lex Manilia by Gaius Manilius : 66 BC BC, transmission of warfare against Mithridates VI. of Pontus and Tigranes II of Armenia to Pompey
- Lex Papia , 65 BC BC, of Gaius Papius on the expulsion of the peregrini (non-citizens)
- Lex Pompeia : Statute of the Province of Bithynia , 63 BC Chr.
- Leges Iuliae issued or initiated by Gaius Iulius Caesar :
- Lex agraria ("Field Law"): 59 BC Two agricultural laws were enacted, one of which provided for the division of the Campanian domains.
- Lex de repetundis (compare Lex Acilia ): 59 BC. Chr .; Law that was one of the most important foundations of provincial administration in the Roman Empire
- Lex Vatinia de imperio Caesaris ("on Caesar's command"): laid out in 59 BC. BC established the provinces that should be subordinate to Caesar for five
- Lex Licinia Pompeia of the consuls Marcus Licinius Crassus and Pompeius : Extension of the Gallic governorship of Caesar by 5 years 55 BC. Chr.
- Lex municipalis ("Munizipiengesetz"): 45 v. BC, regulated the jurisdiction in the country towns of the Roman Empire.
- Lex de adulteriis coërcendis ("on the prevention of adultery"): 18 BC. Chr .; contains penal provisions for fornication and adultery.
- Lex iudiciorum publicorum et privatorum (“on public and private courts”): several laws regulating procedural, criminal and private law
- Lex de maritandis ordinibus (“on the marriage obligation of the estates”): probably 18 BC. Chr .; contains marriage bans and orders as well as sanctions against unmarried persons.
Web links
- The Roman Law Library (Yves Lassard, Alexandr Koptev).
- Information on all popular rights in the Bibliotheca legum regni Francorum manuscripta , manuscript database on secular law in the Franconian Empire ( Karl Ubl , University of Cologne ).
Individual evidence
- ↑ Detlef Liebs: Roman law. 5th edition, 1999, p. 28.
- ↑ Not there yet , Welt online from December 12, 1998
- ↑ Finnish companies are allowed to check employee emails , Welt online from March 4, 2009.