The Plebiscites in Roman Law

By: Anavitarte, E. J.*

Plebiscites were all those legal acts, which as a whole, the plebs uttered in their assemblies, or assemblies of the plebs (concilia plebis) to regulate their own law, at first, they only ruled over plebeians. Hence its name.

HSD

As Rome was expanding territorially, and the number of plebeians increased, so did it the political power of plebs, so much, that in 287 BC the lex Hortensia was issued, granted universal legal binding to plebiscites (erga omnes).

For this reason, entering the classical period, the distinction between a plebiscite and other statutory law source, disappeared, and all normative sources were generically called lex. Later, in the Roman postclassic law and in the Byzantine law, they would be only a way of studying the Roman legal past, assuming they─legally─were the same.

Definition of Plebiscite

Plebiscites were laws that only common people voted for, and whose effects were binding on them. These special laws demonstrate the high degree of legal sophistication that the Romans had to allow the same common people to participate in civil life.

Plebiscite: Everything that the plebs ordered and arranged for themselves.
[1]

The word comes from the Latin, plebiscite, which is itself a derivative of the Latin word plebes, meaning commoner. Classical Roman sources such as Gaius already give us a fairly specific definition of the legal figure in Roman times.

plebiscitum est, quod plebs iubet atque constituit
(plebiscite is what the plebs order and dispose of)
Gaius ^[2]
(Author's translation*)

[1]: Plebiscite | Glossary of Roman Law.

[2]: Gaius | Institutions: Tit. 1, Sect. 3.

Characteristics of the Plebiscites

The plebiscites were characterized by representing the will of the Roman plebs, hence after the promulgation of the Lex Hortensia (287 BC) that abolished the patrician-plebeian conflict, they lost meaning and were equated to any electoral law.

Made by the commoners
Limited binding force

These were (a) made exclusively by the plebeians, and even the patricians were not allowed to attend the sessions of the plebeian assemblies. Thus, they were one of the first manifestations of power of the legally organized masses of which there is historical knowledge.

And on the other hand, since only the commoners participated in its elaboration (b) they could only regulate situations that were typical of the commoners, such as marriage or loans; having a limited binding force.

Process of the Plebiscites

In general, the term plebiscite is used to refer to any act issued by the concilia plebis, such as the election of the tribune of the plebis, or their inviolability; but in particular, this term represents only acts that transcend the assembly, such as civil law regulations for commoners (lex Falcidia, lex Cincia).

In either case, plebiscites were to be voted by the plebs gathered in tribes, either in the same concilium plebis, or in the comitium tributa. Each of these tribes had a voting unit, first, plebs voted within each tribe, and then deposited the result of the vote from their tribe as a single one in the assembly.

On this, it is worth noting that in case of the comitia tributa, all tribes voted, so the vote of commoners was concentrated only in the four urban tribes that represented them.

The Tribune of Plebs

All the acts emanating from this assembly had to be made at the proposal of the tribune of the plebiscites, who could propose plebiscites, and veto─in the case of the tax committee─the decisions of any other magistrate, including the consuls; faculty named: intercessio.

Depending on the time, these decisions must have had the express authorization of the Roman Senate, called auctoritas patrum. Thus, between the years 449 BC, until 339 BC, in force of the lex Valeria-Horatia on plebiscites, required the consent after issued, to enter into force.

Timeline Periods of the Plebiscite in Roman Law — Periods of the Plebiscite in Roman Law

Between the years 340 BC, until 286 BC, in force of the lex Publilia Philonis, required consent before voting, but would apply to all citizens.

And finally in the year 287 BC, with the lex Hortensia, were comparable to any law, and did not require any special consent of the Senate. It is worth clarifying that at this point, the concilia plebis had already been merged with the comitia tributa, so the commoners had little weight in the total vote count to issue the plebiscite.

Historical Development of the Plebiscite

Although plebiscites were the legislative source that most implied the will of Roman masses, their legal force and the matters they could regulate varied throughout the history of Rome, and went from being simple agreements between the plebs to becoming true laws of all the Roman people.

Assembly of plebs
Lex Valeria-Horatia
Lex Publilia Philonis
Lex Hortensia

Thus, the history of Roman plebiscites (a) is born with its creation in the first assemblies of the plebs (concilia plebis), created after the first plebeian secessions of 5th century BC, but they still lacked a formal and recognized power; they would acquire this power fifty years later with (b) the Lex Valeria-Horatia.

After this, one hundred years later, towards the end of the 4th century BC (c) the Lex Publilia Philonis would be promulgated, which granted them power over the entire Roman people─and not only over plebeians. Then, another hundred years later plebiscites became true laws, with (d) the Lex Hortensia.

The Assembly of Plebs

In Latin concilia plebis, it was the name given to the assemblies organized by the plebs in 494 BC for reasons of the first secession of the commoners, and that it was constituted in a regular assembly with powers to elect magistrates (the tribunes of the commoners) and to issue binding legal acts for the commoners themselves, as if the commoners were a Roman tribe.

The Valeria-Horatia Law of Plebiscites

From the Latin Lex Valeria Horatia for plebiscitis, it was one of the three laws favorable to the Roman people promulgated by the consuls Lucio Valerio Potito and Marco Horacio Barbato during the middle of the 5th century BC (the year 449 BC is suggested), in which it is established that plebiscites have formal legal binding, although they require the approval of the Senate to be perfected, which was called auctoritas patrum.

The Publilia Philonis Law of the Auctoritas Patrum

In Latin Lex Publilia Philonis de patrum auctoritate, it was a measure adopted by the dictator Quinto Publilio Philo in 339 BC that obliged the patricians to submit to the authority of the plebiscites, and the consent of the Senate for the promulgation of the acts to be voted by the elections, including the plebiscites, became mandatory.

The Hortensia Law of Plebiscites

In Latin Lex Hortensia of plebiscitis was promulgated in the year 287 BC by the Roman dictator Quinto Hortensio, establishing that all plebiscites would be mandatory for the Romans without the need for authorization from the Senate. This de facto turned the plebiscites into laws. An example of them was the Aquilia Law, which was promulgated by means of a plebiscite.

After this, the majority of Roman private law would be regulated by plebiscites.

Roman Law

This post is an official translation from the original work made by the author, we hope you liked it. If you have any question in which we can help you, or a subject that you want we research over and post it on our website, please write to us and we will respond as soon as possible.

When you are using this content for your articles, essays and bibliographies, remember to cite it as follows:

Anavitarte, E. J. (2016, October). The Plebiscites in Roman Law. Academia Lab. https://academia-lab.com/2016/10/19/plebiscites-in-the-roman-law/