Les institutions du droit romain

The institutions of the Roman Republic aren't all based during the establishment of the republican regime. It must wait 180 BC. The Republican regime was gradually formed from the early fifth century BC., according to events that punctuate the political struggle that have engaged the patricians and plebeians, the first people attempt to retain power and the second attempt to get more rights, and wars of conquest that bring Rome to dominate an increasingly vast territory. In this rather oligarchic regime, power remains divided between the people who gather in assembly, magistrates and the senate.

The Senate is a permanent assembly traditionally composed of a maximum of 300 members, who are all former judges. The authority of the Senate derives from the dignity and prestige which senators enjoy. Since the Senate is the only political institution to be eternal and continuous, compared to the consulate, which expires at the end of an annual term, he acquires the dignity of ancient traditions and is considered the guardian of ancestral customs.

The Senate is as much a religious as a political institution : the two are actually intertwined and inseparable in ancient Roman organization. It works by obeying various religious restrictions. He can only meet in a dedicated space (templum) as the Curia Hostilia and before each meeting, a sacrifice to the gods is done and the auspices are taken to determine if this is an auspicious day or not.

Several conditions are necessary for access to the Senate : to have exercised one of the magistrates of the "the honors' career", to have a fortune and have been chosen by the censors that complement every five years the Senate album.

Senators give their opinion on the legislation, with a veto on decisions of the elections, and direct the foreign policy and diplomacy. They also have a prominent role on the management of finances and public works and allocation of quotas. The Senate promulgates decrees called senatus consultum. Officially, it's "advice" given to judges, although in practice these decrees are often followed to the letter by the magistrates. If a decree is in conflict with a law enacted by a popular assembly, the law takes priority status and overrides the decree.

The Roman assemblies called comise, concern the Roman people as a whole, that is to say, all Roman citizens whether plebeian or patrician. The people will exercise its right to vote. They are based on different methods of grouping of Roman citizens : by curia, tribe or centurie. The people manifested through these three types of comise his will. They have loads of electoral, legislative and judicial: popular participation becomes indispensable for the election of magistrates, voting laws and judgments of major crimes.

The comises meet outside the city, on the Champ de Mars, the call of magistrate  a holder of civil power. The people can not take for himself the initiative to meet. The magistrate who ordered the comises to meet ensures first approval of the gods taking the auspices. All unfavorably interpreted sign causes the postponement to the next auspicious day. Candidates for election are nominated by the magistrate organizing the vote and who can refuse some applications. Candidates, dressed in a dress which has been bleached by chalk (hence the word "candidate" of candidus, white in Latin) circulate among voters and encourage them to vote in their favor.

Each part vote in descending order. The vote obligated people to be here because there don't have power to attorney and the vote will be secret from 139 BC., when the Lex Gabinia imposes vote using tablets bearing the candidate's name. The vote count is done immediately, so that the vote of the first comise is known of the other when they vote. The first vote is set for an omen for the rest of the poll and often affects one of the following. When the results of the vote are acquired, the host judge proclaims the name of elects, mandatory requirement for theirs nominations.

The magistrates are created gradually after the proclamation of the Roman Republic in 509 BC,. They are the executive branch of the state. Each Roman magistrate is invested with a more or less important part of the authority which determine a rank of power. Thus, each ordinary magistracy of Rome can be defined according to several criteria:

- The social background of candidates : the magistrates of the people are accessible to all citizens while the plebeian magistrates are accessible only plebeians.

- The power attached to them. All judges however have the law enforcement power.

- The right of auspices : there are magistrates who have the right to take the auspices everywhere and magistrates who can take the auspices only in Rome.

- The statutory protection : the sacrosanct magistrates offer at theirs holders religious caracters.

- The symbol of the curule chair : It's an honorary privilege.

Finally, and fundamentally, the magistrates of the Republic are all colleague, that is to say, that none of the judges elected to a judiciary exercises its power alone and has superior power of his colleagues, except the dictator during periods when Rome is directly threatened. In addition, each judge can reverse a decision taken by one of his colleagues through its power.

Les institutions de la République romaine ne sont pas toutes fondées dès l'établissement du régime républicain. Il faut attendre 180 av. J.-C. pour que soit définie par la loi une organisation partielle des magistratures, qui entérine la succession et la hiérarchisation de certaines d'entre elles. Le régime républicain s'est formé peu à peu à partir du début du Ve siècle av. J.-C., au gré des évènements qui ponctuent la lutte politique que se sont livrés les patriciens et les plébéiens, les premiers tentant de conserver leur pouvoir et les deuxièmes tentant de se faire reconnaître plus de droits, et des guerres de conquête qui amènent Rome à dominer un territoire toujours plus vaste. Cette évolution donne naissance à une forme de gouvernement originale et très organisée qu'on peut considérer comme plus oligarchique que les démocraties grecques mais comme plus démocratique qu'une véritable oligarchie. Dans ce régime, si l'équilibre politique a fortement évolué entre le début et la fin de la République, le pouvoir demeure partagé entre le peuple, qui se rassemble en assemblées, les magistrats et le Sénat.

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