De Institutionibus

[Horatius Piscinus]

EX DOMOM. Moravius Horatianus Piscinus consul iterum Sodalibus SPD

Edictum Consularis de Institutionibus

Prooemium

The foundation of civil law in Western civilization is that body of law referred to as Roman law. Certain principles, precepts, and definitions which are common to the legal systems of Western societies, based in Roman law, we take as the basis of the legal system within the Societas Via Romana, as it shall apply within our own unique society.

We read from the Institutiones Iustiniani, I.1:
?Justice is the set and constant purpose which gives to every man his due. Jurisprudence is the knowledge of things divine and human, the science of the just and the unjust.... The precepts of the law are these: to live honestly, to injure no one, and to give every man his due...?

In the study of law there may be said to be three branches: international law governing the relations between nations; public law related to the welfare of the state and its operation, as well as the relationship of a private individual to the state; and private law governing relationships between private individuals. The purpose of the Edictum Consularis de Institutionibus is to establish into the public law of the Societas Via Romana certain definitions and precepts to be followed in both our public and private law.


Definitiones

Our law is partly written, partly unwritten. The written law consists of the Regula Fundamentalis and decreta, plebiscita, senatusconsulta, edicta of the magistrates, arbitia of the consules and/or praetores, and responsa and rescripta of the iurisconsulti. The Regula Fundamentalis is the constitution of the Societas Via Romana. A decretum is an enactment of the Comitia Generalis, which is made on the motion of a magistratus, as for instance a consul. A senatusconsultus is an advisory letter of the Senate on any matter, or an ordinance of the Senate on certain matters for which the Regula Fundamentalis provides. Edicta of magistrates are those regulations issued by the magistrates governing the manner in which they shall perform the duties of their own offices; a magistratus may not issue an edictum governing the duties of another office. The exception to this is that a consul or praetor may rule on a point of law that would then govern magistrates of equal or lesser rank. The iurisconsulti are those individuals recognized and so named by the Senate under the Regula Fundamentalis (VI.7) as learned in the laws of the Societas Via Romana. A responsum is legal advice provided by an iurisconsultus to a judge. A rescriptum is a reply by an iurisconsultus to a question on legislation or to petitions by litigants. The unwritten law is those common notions of justice held in Western civilization and within the Societas Via Romana.

In addition to the written law are what are called notae. Provided under the Regula Fundamentalis, a Censor or a Magister Morum may issue a nota in a specific instance, which is an order that has the force of law but which cannot be taken as a precedent for setting law. In contrast, a consul or a praetor, or any other judge as may be provided by legislature of the Comitia alone, may issue an arbitrium (judicial decision) in a specific case, together with an order that is also named a nota. The collection of arbitria and judicial notae shall form the case law that is the basis of the ius civile, set as precedents for future judicial decisions.

Auctoritas is granted to consules, pratores, and aediles under the Regula Fundamentalis. Auctoritas is the authority to pass judgement within the narrow confines of the responsibilities required of a magistratus. The source of this authority lies with the membership of Societas Via Romana. All auctoritas in the societas originates and is held by the members at all times, who then grant these specific magistrates, by election, only the use of auctoritas on a temporary basis for the term of their offices. A magisterial exercise of auctoritas is always subject to review by the members assembled in the Comita. It is through auctoritas that edicta, arbitia, judicial notae, responsa and rescripta have the same weight of law as a decretum of the Comitia Generalis. Any edicta may be overturned by the passage of decreta of the Comitia, and the arbitia and judicial notae are subject to review by the Comitia when assembled in response to a member exercising his or her right of provocatio. In contrast, all edicta, arbitia, and notae must conform to the law as set by the decreta of the Comitia. Responsa and rescripta of the iurisconsulti are opinions interpreting the law, but may not exceed the letter and intent of the law. The Senate as a body, and not any individual senator, may also be said to have auctoritas, originating from the membership. The Regula Fundamentalis gives the Senate auctoritas to issue senatusconsulta in certain matters, such as the authority to set a budget, impose dues, fees, or other financial requirements on the members, and recognize and regulate the collegia and provinciae. Under the Regula Fundamentalis the Comitia Generalis must approve such senatusconsulta in order that they take effect. The auctoritas of the Senate may be passed on to magistrati extraodinarii as provided by the Regula Fundamentalis. In an exceptional case, the Senate may also grant special auctoritas to the consules by a senatusconsulum ultimum for no more than 90 days and under certain limitations as provided in the Regula Fundamentalis. The decision to issue a senatusconsultum ultimum and any actions taken by the consules and/or Senate under its authority are subject to review by the Comitia Generalis following the period that it is in effect. All auctoritas rests with the total membership and is expressed through their collective judgement in the Comitia Generalis.


Considerationes

Judicial institutions as may be established either by praetores under the Regula Fundamentalis or by decreta Comitiorum have authority over three considerations:

Usus is the right of each individual member to have access to and to use the sites and facilities of Societas Via Romana. The usus of an individual member may not be impaired, curtailed, transferred or revoked without judicial procedures or legislative acts. Essentially usus is covered in the Regula Fundamentalis under the rights of members to participate in the Societas Via Romana.

Iniuria may be defined in accordance with the Institutiones Iustiniani as (1) acts contrary to law, or those constituting an injustice or iniquity posed by a magisterial decision, whether under the law or not. (2) Iniuria may also be considered when a member may pretend false claims about another member, writing, composing, or publishing libelous or defamatory prose or verse against another member, or by maliciously contriving that another does any of these things, or by any other numerous acts, when an intent is held to be present that would impair the personal reputation of credit of the individual or impair their rights to interact within the community. In order for a judgement to be made against a member on a charge of iniuria against another member, these two considerations must be met that the claims were substantially false and the intent was to impair the member?s rights to interact within the community. (3) Inuria is also stipulated in such cases as are outlined in the Regula III.2.c.

Obligatio may be considered under two situations, obligatio ex maleficio and obligationes ex contractu. An obligatio ex maleficio is where an inuria arises by a magistrate failing to perform his assigned duties, or in performing his assigned duties in a disparate manner that benefits some members to the detriment of others. Obligatio ex contractu is when two or more parties come to an agreement stipulating that anything shall be given by one party to another, or done by one party for another. An obligatio ex contractu must therefore have two parts, a conditio in which is stated under what conditions or in what situations the parties agree that an obligation would arise where the contract must be met, and then the stipulatio stating what must be given or act performed in order that the contract is met. By tradition, an obligatio ex contractu had a solemn form in which one party would ask, and the other respond in the affirmative, to the three questions: Spondes? (Do you agree?), Promittis? (Do you promise?), and Fide promittis? (Do you promise in good faith?), followed by the stipulatio of Dabis? (Will you give?) or Facies? (Will you do?). The solemnity of the traditional form, amounting to an oath, is not required when the contract is made by written instrument such as a letter of agreement. An obligatio ex contractu may only be considered under the judicial authority of the Societas Via Romana when both parties are members and the conditio and stipulatio both take place within the Societas Via Romana.

The considerations of usus and obligatio come together inside the Societas Via Romana in the matter of property rights. The web sites, email lists, chat rooms and other facilities of the Societas, and any materials they contain, which are produced by a magistrate in the performance of his or her official duties, or by a group of members acting collectively for the benefit of the Societas, are held to be the property of the Societas Via Romana and for the use of all its members. Also held to be the property of the Societas are any data files held by a magistrate for the performance of his or her official duties, and any communications made to or by a magistrate in their official capacity. Therefore the communications made by an individual member to an SVR email list, and any private communications of a member to a magistrate in their official capacity are held to be the public property of the Societas and may not be taken for the private use by a magistrate. On the other hand, when an individual member produces material for the use of the Societas on one of its web sites as a contribution under their unique nomen, that material remains the property of its originator. Each individual member shall retain editorial control over materials that they have contributed to the Societas Via Romana sites under their nomen. Only the individual member originating the material may make or approve editorial changes and alterations, and may request that materials they have previously provided be removed from SVR sites. The retarius designated by SVR to manage a particular site shall retain authority to accept or reject any original material and any revised versions of materials provided as a contribution. A retarius may not refuse to remove material at the request of its originator. Likewise a group of members producing materials for SVR sites as a contribution, on which each of their unique nomines appears, may retain control of the material provided that it has been stipulated when they provide it for the use of SVR sites. To have such collective materials removed from an SVR site each and every current member of SVR that was part of the originating group must make the request to the retarius. An individual member of the originating group may instead request that their particular nomen be removed from the material at the site, and the retarius may not refuse such a request. Providing material to SVR for use on its sites, whether by an individual or a group, amounts to an obligatio ex contractu with these above conditions implied, whether stated or not.


Edictum:

Henceforth the definitions given above shall be adopted in each and every adjudication that are to be placed before the consules for consideration, or that might come before the consules for review. Only matters that fall within the above considerationes or that violate published laws of the societas may be adjudicated in the judicial proceedings of the consules of the Societas Via Romana.

Qod bonum, felix, fausumque sit.

[Horatius Piscinus]

EX DOMO M. MORAVIUS HORATIANUS BIS CONSUL SODALIBUS SPD

The edictum consularis De Institutionibus is hereby placed before the Comitia Generalis for its consideration. Is it the desire and will of the membership to adopt this edictum into the law of our Societas as a decretum of this body?

[Quintus Aurelius Orcus]

Salve Piscine
I have no problem with De Institutionibus and De vacatuite. Maybe we should vote for it, to see that all members accept it.
Maybe we should put the two up for vote. Vale
Romulus

[Horatius Piscinus]

Salvete Romule et omnes

Ite. That is precisely what I am doing. The question should appear on the ballot at the cista.

There was an ancient formulary for proposing any decretum to the Comitia. See Livy 22.10: VELITIS IUBEATISNE HAEC SIC FIERI? I have modelled my own proposal to the Comitia on that formulary, in order to make this a formal proposal before the Comitia that the temporary edicta I made as consul now be adopted by the Comitia Generalis as decreta so that they will become a higher form of law among the rules and regulations of our Societas. If passed, then any future edicta made by our magistrates will have to conform to the decreta. Magisterial edicta must conform to both the Regula Fundamentalis and to decreta of the Comitia, while the edicta or actions of any magistrate can never supercede the Regula or decreta.

Valete optime