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Mos Maiorum, literally translated as the “custom of the fathers/ancestors,” is the core concept of Roman traditionalism[1]. The mos maiorum (pl. mores maiorum), was an unwritten code from which the Romans derived their societal norms. These customs were distinct from the laws that would be recorded in writing. Because positive law regulated few aspects in Roman daily life, traditional customs, by virtue of the auctoritas maiorum (“prestige or respect of the ancestors”), shaped most of Roman behavior.

Contents

Sources of the Mos Maiorum

The mos maiorum was the result of centuries of development before the Romans developed written records. Customs were created early in Rome’s history as they were needed to serve specific functions in the society. However, the significance of traditional practices and archaic rituals fell from the collective consciousness. The Lupercalia, for example, a festival celebrated in Rome every February 15[2], was misunderstood by the time of Augustus in the late 1st century BC. In some instances the relevancy of certain practices simply ebbed from society, such as the practice of confarreatio marriages[3]. These archaic marriages were all but abandoned because of the rigidity of the union. Despite the fading understanding or relevancy of some of these customs the importance of the mores maiorum in Roman was never in danger of suffering the same fate.

The Romans used the auctoritas maiorum to validate the developments occurred as their society progressed. Suetonius recounts an edict of the censors from 92 BCE, which states, “all new that is done contrary to the usage and the customs of our ancestors, seems not to be right.” [4] This statement reflects the fierce conservatism which was a hallmark of Roman Society. The mos maiorum as a collection of complex norms provided not only justification for tradition, but while retaining their fierce conservatism, it also provided a means to adjust when difficulties demanded such action. Whereas ius gave individuals their rights, they reflected the interests of the state and society. In a patriarchical society, dominated by an aristocracy, the mores were interpreted and adapted to serve the needs of the aristocracy. The patria postestas reflects this use of the mores. The potestas of the father allowed him complete control over his household, including slaves, his wife and his children[5]. Mores justified the place of the eldest male of the family and his power over life and death. Conversely, the mores also adjusted to kept the potestas of the father in check by limiting the father’s power to unjustly punish or even kill his family members, until he had properly consulted a consilium.[6]

Politics

Participation in public life in ancient Rome was a dominant part of most male citizens’ lives. Public life included politics, military, law and also priesthoods. In politics, the cursus honorum became the standard track of offices. The observance of this track was considered conventional; however, there were deviations from cursus. Lucius Appuleius Saturninus and Gaius Servilius Glaucia, in association with Gaius Marius and his legislations and elections, broke tradition by seeking consecutive tribuneships. Gaius Marius himself broke the accepted traditions of the Roman elite. Not only was Marius a highly successful novus homo, but he was also elected to an unprecedented seven consulships. These figures contrast sharply to the career of Cicero, who followed the cursus honorum strictly and maintained a great deal of support for the interests of the aristocracy and the ancestral values they guarded. Cicero achieved most of his fame from his oratory skills, acting as defender and prosecutor in the courts.

Law was closely tied to the cursus honorum and the magistracies that a citizen might hope to achieve. The upper class, having more knowledge of the law and of oration (as both were customary parts of their education), would fulfill the roles of prosecution, defender, and even judges. These roles were traditional duties for the upper class, who could shoulder the responsibility. Although a great deal of responsibilities lay in civilian life, as was common around the ancient world, Romans were also expected to serve in the military.

Military

The mos of the military had been that citizen soldiers were fielded for the sake of specific threats the interests of the entire state, but after Marius they are professional soldiers, allied to their general. The Roman army was originally drawn from the upper class, as they were the only members of society that could bear cost of armor and absence from work. The custom for Roman males was to join the army and obtain glory in service to the state, and when not need for a war or other conflict, to lay down arms and return to civic life. However, Gaius Marius reformed the military to include the capite censi and made the troops under his command loyal to him before the state.

Religious Tradition

Unlike modern western religion, the Romans did not segregate religious practices and service to the state. Instead, the Romans maintained the practice of their Indo-European ancestors of leaving priesthoods tied to the state. The Collegium Pontificum consisted of different cults that had an appointed priest, who could simultaneously hold a political and/or military position. In the private home Romans would also have regular worship to the Penates, which were the gods of the inner home[7]. The Lares are also common fixtures in Roman private religion, in addition to the Roman anthropomorphic figures. They are guardian spirits, who vary in the specificities of their roles, depending on their manifestations. As the lares Augusti, they were they guardian spirits of the emperor. Common epithets include lares compitales, who were the guardians of the crossroads and lares familiaris, who were the guardians of the household.

Patrons and Clients

Another major facet of Roman tradition is the patronus and cliens (patron and client) relationship. This is the relationship that commonly occurred between plebeians and patricians, where in return for the protection of the patronus, the cliens offered services until the debt was returned or longer. Later in Roman history, after Augustus’ rise to princeps, more of the population falls into the clienthood of the imperator until eventually all do.

The Changing Roles of the Mores

Along with the change in patron-client relations, the place of the mos maiorum changes under the principate. Before Augustus, the place of the mores had been related, but separate from that of laws and regulations; however, a shift toward legalizing the romanticized ideals of the ancestral traditions occurs. Under Augustus and his moral reforms, the place of the mores maiorum becomes subject to the will of the emperor, though they survived until the reign of Justinian.

Cornerstones of the Mores Maiorum

All aspects of life, including both the public and private arenas, were immeasurably influenced by the mores that had been established over centuries. Some of the components deserve special attention because of their importance in the greater picture of the mores maiorum.

Fides

The Latin word fides has multiple meanings; however, these meanings are all based around similar principles: truth, faith, honesty, and trustworthiness. It can be seen in use with other words to create terms such as bonae fidei (“in good faith”) or fidem habere (“to be credible”, or more literally “to have trustworthiness”). In Roman law, fides was extremely important. As in all ancient cultures, verbal contracts were very common in Roman daily life, and so good faith allows business transactions to be made with greater confidence. If this good faith were betrayed, then a legal case could be made for the offended person[8].

As the Roman goddess, Fides represented a cult that was very old in the city of Rome. She was the goddess of good faith and presided over verbal contracts[9]. She was depicted as an old woman and was considered older than Jupiter [10]. Her temple is dated from around 254 BCE[11] and was located on the Capitoline Hill in Rome, near the Temple of Jupiter. According to Livy [12], the legendary second king of Rome, Numa Pompilius, founded her cult. Livy goes into details of the worship of Fides in his history of Rome. Her rituals were performed by the flamines maiores, who were the priests of the ancestors. These priests brought the shrine of Fides in a covered carriage drawn by a pair of horses to the place of celebration. Since Fides was considered to dwell in the right hand of a man, she was represented during the Roman Empire on coins with a pair of covered hands, to symbolize the credibility of the emperor and the legions[13]. The covering of the hands reflected the worship of Fides, where the man performing the sacrifice would cover his hands to the fingers to religiously preserve Fides[14].

Pietas

Pietas is not the equivalent of the modern derivative “piety.” Pietas was the Roman attitude of dutiful respect towards the gods, fatherland, parents and other kinsmen. The term incorporated a sense of moral duty, not merely the observance of rituals (this is covered by the term cultus). Thus, pietas required the maintenance of relationships with those listed above in a moral and dutiful manner[15]. According to Cicero, “pietas is justice towards the gods,” [16] and as such demanded more of the observer than mere sacrifice and correct ritual performance, but also the inner devotion and righteousness of the individual. Pietas could be displayed in numerous ways. For example, Julius Caesar displayed pietas during his life by beginning in 52 BCE and dedicating in 48 BCE, after the battle of Pharsalus, a temple to Venus Genetrix. The temple was dedicated to Venus as the mother of Aeneas and thus the ancestor of the Julii (the gens of Julius Caesar). Augustus, after the death of Marcus Antonius and with Marcus Aemilius Lepidus out of the way[17] (these two men are Augustus’ co-triumvirs in the Second Triumvirate), built a Temple of Caesar in order to honor his adoptive father. Some Romans, because of their role as pious individuals, adopted the cognomen Pius. The emperor Antoninus Pius received this addition to his name because of his role in convincing the senate to deify his adoptive father, the emperor Hadrian, and for the pietas he showed toward his elderly biological father in public.

Such was the importance of pietas that according to Livy.

Religio and Cultus

Religio was not “religion” in the modern sense of the word. Religio is related to Latin verb religare (“to bind”). In the Roman mind religio represented a tie between the gods and mortals. This bond is more in the respect of awe and obligation (out of superstition), and is related to the religious practices and customs of the Romans[21]. Roman men and women were expected to be aware of these ties and to honor the gods through religious observances in an attempt to maintain a pax deorum (“peace of the gods”). In accordance with the noun, the adjective religiosus meant an exaggeration of religious practice to the point of superstition. The Romans regarded religio as a necessary part of life, so as to keep order and normalcy in the community or to a greater extent, the world. The motivation behind these observances is not morally based as modern Judeo-Christian values are, but instead are based around appeasement of the gods and expectancy of rewards. To guarantee a victory a general would promise a temple to a deity, or in hopes of alleviating hardship, community members would make sacrifices. Livy implies this necessity in his description of the capture of the goddess Juno (in statue form) from Veii [22]. Livy notes that it was against the religio of the Etruscans to touch the statue unless a member of the hereditary priesthood. The Roman soldiers in turn are cleaned, robed and then ask the goddess if she would come to Rome. This was not tied to pietas and its inherent morality, but instead it was the related to the concept of cultus.

Cultus was the obligated observance and correct performance of rituals to the gods. Romans religious practices were oriented towards the correct performance of rituals not the ethics and morals of person. The gods were pleased by the attention to their rites and thus Romans hoped to gain favor by performing sacrifices and other ritual formulae in the correct manner[23].

Disciplina

In Latin, the word disciplina is related to education, training, discipline and self-control. This military nature of the Roman society explains a great deal the importance of this characteristic, and perhaps because of their military inclination, also shows itself in daily life of the Romans. In his Philippicae against Marcus Antonius, Cicero maligns the character of Marcus Antonius, portraying the triumvir as man without self-control[24], showing the importance of the characteristic by emphasizing Marcus Antonius’ lack of discipline[25].

Disciplina as a goddess was used as propaganda tool, especially under the empire. In inscriptions she is referred to as the discipline of the emperor in relation to his role over the legions. This is why inscriptions and dedications are known from locations such as England and North Africa. Under the emperor Hadrian, these dedications are made and coins are minted to help secure the minds of border legions[26].

Gravitas and Constantia

Gravitas, not to be confused with the modern word gravity, represented the value of dignified, self-control[27]. In the face of adversity, a “good” Roman was to display an unperturbed façade. Roman myth and history reinforced this value by recounting tales of figures such as Gaius Mucius Scaevola [28]. At the founding of the Republic, the Etruscan king Lars Porsenna was laying siege to the city of Rome, and with city in dire straits, Scaevola attempted to assassinate Porsenna. However, Scaevola failed and was caught. When the king threatened torture if Scaevola did not answer his questions about Rome, Scaevola placed his right hand in a fire and held it there with great gravitas, telling the king that there were more in Rome just like himself. The gravitas that Scaevola displayed not only earned him the name Scaevola (“left-handed”), but also helped convince Porsenna of the Romans’ resiliency.

While gravitas was dignified self-control, constantia was steadiness or perseverance. This value coupled with gravitas played no small role in the history and success of the Roman people. Constantia allowed the Romans to hold fast in times of great turmoil and devastating defeat, such as the campaign of Hannibal Barca [29].

Virtus

Virtus is derived from the Latin word vir (“man”) and encompasses what constituted the ideal of the true Roman male[30]. Multiple aspects are covered by this term. The poet Gaius Lucilius discusses virtus in some of his work, saying that it is virtus for a man to know what is good, evil, useless, shameful, or dishonorable[31].

Dignitas and Auctoritas

Dignitas and auctoritas were the end result of displaying the values of the ideal Roman and the service of the state in the forms of priesthoods, military positions, and magistracies. Dignitas was reputation for worth, honor and esteem. Thus, a Roman who displayed their gravitas, constantia, fides, pietas and other values becoming a Roman would possess dignitas among their peers. Similarly, through this path, a Roman could earn auctoritas (“prestige and respect”) [32].

See a more complete list of Roman virtues.

History

"Mos maiorum est institum patrium, id est memoria veterum pertinens maxime ad religiones caerimoniasque antiquorum" Festus p. 146

"'Mos maiorum' is customary institutions of the 'patres' (forefathers), ie the memory of the ancient concerning mostly the rites and cerimonies of the ancient people".

Protohistory: from X century B.C. to the founding of Rome

According to Gaius 's and Sextus Pomponius 's works[33] the mores are customs of the local tribes that united and then founded Rome.[34]

During this first stage there existed the mores only and they identified with Roman Law. They made up the code of behaviour for members of the community: such patterns were the heritage of the customs of the pagi from a distant past. Scholars think that before the regal period these patterns were grounded in the usages of the familiae and since the eighth century also of the gentes. They concerned ways to deal with natural phenomena and facts of life according to the judgements and decisions of the sacerdotes. These mores were over the course of time collected by the sacerdotes that handed them down in oral form. Some authors though think they were also recorded in secret sacerdotal archives.

Regal period

No source has recorded anything precise on the mores during the most ancient period or on how they evolved and if they changed over time. Only Pomponius tells This work inspired the following kings who created new leges and probably new mores too.

Tradition has that other works were written down, as Servius Tullius 's Commentarius Servii Tullii and the Libri Sibyllini, said to have been sold by an old woman to king Tarquinius Superbus, that contained some religious rituals but were mainly concerned with divination.[38]

However all the legislative works of the regal period were lost in the fire of Rome caused by the Gauls of king Brennus in 390 or 387 B.C.[39]

It is a certain fact that traditional practices and archaic rituals were rooted in the collective usages.

In later times some religious rituals were disused, such as the Ambarvalia, til Augustus revived them. The marriage practice known as confarreatio[40] too was disused because of the rigidity of the union that it required.

Nonetheless the importance of the mos maiorum never dwindled.

Since the beginning of the Republic to the IV century C.E.

According to Pomponius the first work concerning the mores of the republican age (always indirectly as it does so through the leges regiae) is traditionally Sextus Papirius's Jus Papirianum (some think it was Gaius Papirius the pontifex Maximus in 509 B.C.). It was a collection of all the leges regiae.

The first fifty years years of the Republic were characterised by rule through the mores only.

Livy and Dionysius of Halicarnassus tell us that since 462 B.C., the plebeian realizing that the pontiffs interpreted the mores in their own favour or in that of the patricians, began requesting a written work that summarized the essence of the mores so as to put an end to the monopoly of the pontiffs on these oral regulations handed down by and known only to the sacerdotes.

Thus it was agreed that a group of decemviri would be set up to write down the main consuetudinary laws. It took one to three years according to different sources to carry out the task. Around year 450 B.C. the result was published in the form of the law of the XII Tables. In essence it was a collection of maximae of the mores then in use.

However since the work was difficult to interpret the pontiffs were entrusted the right to interpret them.

Therefore the mores were as ever before in the hands of the pontiffs who revealed them in the areas that the XII Tables did not cover.

This situation changed only with Tiberius Coruncanius, the first plebeian to become pontifex maximus in 254 B.C., who revealed the rituals and how decisions were reached on the basis of the XII Tables. This was the start of lay jurisprudence.

Useful sources could also be the Jus usucapionis (by Appius Claudius Caecus) and the Jus Flavianum (by Cnaeus Flavius). The first one concerns legis actiones taken from the pontificial archives; the second was a remake of the first with no changes. Unfortunately these works are lost.

The first jurist or true scholar of law was Sextus Aelius, who was made consul in 198 B.C.

He wrote a work in which he analysed the XII Tables, the pontificial interpretation and the legis actiones, called tripertita. This work too is lost. Surely it must have been of great help to understand the conexions between mores and XII Tables and between mores and legis actiones.

Mores should still be much in use during the I century B.C.: jurist Gaius Suetonius Tranquillus tells us of an edict of censura of 92 B.C. that sets mores as regulations to which all usages must conform, other they would be considered injust. It talks of novelties and perhaps refers to laws too to some extent.

With the advent of the imperial regime the mores might be decided by emperors through the various constitutional laws that delimited their authority.

The last information we have about mores date to II century and are due to jurist Julianus who says that mores should be followed only if they are not in disagreement with existing laws.

Something in the religious sphere must have survived as the sacrifices held by the senate on the altar of Victory as a propitiary good auspice in wars. They were discontinued in 382 C.E. for imperial decision. The rites officiated by the rex sacrorum must have gone on til his disposal as an institutional figure in 390 C.E.

Sources of the mores

At the very beginning there were no sources other than the behaviour of the patres, who were the authority within their family. They enacted cults too. Moreover there were the sacerdotes. In these parental groups the oldest members of families were the sacerdotes.

It is probable that in these very early times they were already collecting the cults followed at the time.

Later the system of the gentes appeared and before the regal period the function of memorizing and orally transmitting the rituals was demanded to a separate sacerdotal class. They were at the same time the source of the mores and of their interpretation.

During the regal period the mores were written down or emanated as leges by the kings. Later the only source were once again the sacerotes who revealed them and their tradition.

The mores as custom and usage

The mores are regulatory precepts of the community, i.e. they are accepted by all the community since they are invested with auctoritas which stems from the fact that they were respected by the fathers (patres whence patricius) and partly as reaveled by the sacerdotes.

They are not just a usage invested with sacrality but they make up a draft of a constitution for the whole Roman society, who is obliged to follow them.

It was believed that in ancient times at least, respect for these precepts was a protection from occult evil forces in so much as it was in accord with the will of supernatural powers.

Thus modern scholars since the half of the XX century opinate that while the mores were a set of consuetudinary practices or rules they went beyond the limits of simple customs or communal habits as they were rooted in religious beliefs and religious ritualism. This slight difference is important in relation to Roman culture as expressed in both religion and law.

The mores did not create a set obligation in the legal sense but were already imprinted into the Roman institutional system thus they could impose the single subject to abide by them.

Legislation, regulation and sanctioning

Legislation and regulation

At first the mores were only precepts of conduct respected by everybody within the community. It could be speculated that since the X century B.C. the sacerdotes collected and transmitted these precepts orally, or perhaps also in written form while keeping them secret.

In this period the sacerdotes were the only people who possessed juridical lore. Their duty was to reveal these customs to people who enquired about them in a secret consultation or more precisely to interpret them in the way they deemed the most adequate to the case. Thus they advised the requiring party on the conduct he should follow to achieve his interest or to defend himself correctly from a right of somebody other's.

Since at that time a strong and rigid moralism was prevalent thus one should necessarily respect fixed ways of speaking and behaving to make a deal or simply to uphold a right of one' own.

These rules were in use both in the regal and for most of the republican period.

In the regal period interpretation was demanded to the rex and the pontiff, either together or separately.

The power of the king was at first the only law, as Sextus Pomponius writes:[41]

"With no equity at the beginning of our community the people decided to act with no certain law, with no certain right: everything was ruled by the kings with their power."

then he tells us of the laws that were emanated by the kings:[42]

"And thus he (Romulus) proposed to the people some leges curiatae (leges regiae): other were proposed by the follwing kings. All these laws are collected and contained in the Sextus Papirius's book, who lived at the same time of the proud arrogant son of Demaratus of Corinthus among the most notorious men."

Since both the king and the pontiff were surely allowed to reveal the interpreted mores being both proficient in the knowledge of them and since the pontiff too could take part in the emanation of laws, some scholars opinate that the leges regiae were in fact nothing else that mores rendered into a legislative act of the king at least to a certain extent.

Consequently the laws too should be considered an indirect system of emanation of mores. On the other hand the mores were ever in vigour.

After the expulsion of the king the only juridical lore fell back on the revealations and interpretations of the pontiffs about the mores.

This situation would very early cause suspicion and discontent among the plebs, who suspected the pontiffs of interpreting them on the basis of their own interests and of that of the patricians at the expense of the plebeians.

As it has been related above this discontent led to the compilation of the XII Tables. These were a compendium of the juridical practses of the time in the form of a collection of maximae and thence were made up of mores, perhaps through the medium of the leges regiae.

Nonetheless reading and interpretating the Tables was difficult, thus it was demanded to the pontiffs who still kept it secret. Therefore it is to be considered yet as an interpretation of mores.

This situation lasted til Tiberius Coruncanius (see above) who made the interpretations public and started a lay interpretation. By this act he first created a true school or study of law or Jus Civile.

It must be born in mind though that the XII Tables could not cover all the branches of juridical matters and the areas left outside their scope were yet regulated through the mores.

Over the course of time the revealations of the pontiffs on the mores started to lose their importance on one hand because they were increasingly supplanted by laws on the other because many of them had already become of public knowledge and the juridical tradition had become a major vehicle, moreover they were being usually applied within the practice of the judiciary system.

An instance is the pignoris capio about which Gaius informs us that it is a legis actio structured in some points according to the mores.

Besides if the judge is unable to reach a decision on a controversial case because perhaps that negotium (business) is regulated through mores or rules known only to the pontiffs he may request a pontiff to intervene as an arbiter.

With the advent of the Imperial Age the emperors themselves restricted the scope of the application of the mores by their constitutional laws. We have information on this fact by jurists.

While Gaius Suetonius Tranquillus writes of an edict of a censor that stated:

"All the novelties done contrary to the usages and traditions of our ancestors must not be considered just"[43]

Julianus (II century C.E.) states that the mores were used only in areas not regulated by the laws. After the II century it appears that the mores had lost all their juridical relevance apart religious rites.

Sanctioning

There were consequences for breach of the mores. Moreover every decision about them was a valid legal precedent.

In the precivic and ancient period it was the community itself that guaranteed the observance of the rites. Thus if a juridical subject (i.e. pater fmilias) should request a tributum from somebody who had caused him some damage he was put in a condition to obtain it by the community itself. As an instance the culprit of a crime could not make resistance and opposition to the related punishment since the community itself physically did not allow him to act.

Since the mores were defined as the correct expression of the way of seeing life according to the ancient, it must be deemed possible that they were protected by a corresponding sanction. This is probable for those endowed with most auctoritas. Infamy, ignominy and even death penalty were applied to the trespasser.

If the mos concerned the enjoyment of a right of use or the transaction of a business, this was considered not valid if not in accord with it. This concerned also simple errors in wording and gestures: e.g. Gaius tells us that in the case of a subject who should say vites (grapes) instead of arbores (trees) as it wa srequired, this error brought about the voidness of the negotium.

When the mos concerned serious crimes as homicide and adultery, the culprit was mostly subjected to a punishment of a religious sort, such as being sacrificed to a deity, sacertas, the suplicium more maiorum or arbor infelix, or he was subject to the corporal vincle of the damaged party (or more accurately of he who had right onto the victim, i.e. the pater familias), then evolved into the oportere.

Evil practices as bringing misfortune on somebody through sorcery were heavily sanctioned against in the XII Tables, while before were not.[46]

The mores considered under different viewpoints

Written or unwritten work

The scholars are divided into three positions on this issue.

The first on the grounds of some sources (Pomponius and Gaius) argues that it is stated clearly that they were an unwritten regualation.

The second holds that this positon is only partly accurate as since the VIII cent. our sources mention a great number of written works on the mores as the libri pontificum, libri augurales, libri regii. They are mentiones by Cicero who was also an augur and had free access to the libri augurales. Plutarch and many authors too mention these books. This information points to the existence of a pontical archive that collected all the works all the precepts on the actions of the sacerdotes, divded into Libri and Commentarii.

The third current holds inductively that the sacerdotes wrote mnemonic texts on the mores, on which both the leges regiae and the XII Tables were based. We have such information from Roman and Greek historians. Historians record in their works passages from the ritual formulae containing the regulations of the mores, although these textuals quotations were revised to dispose of archaisms. The XII Tables are considered to be too complex a document to be written ex novo by the decemviri only on the basis of unwritten laws learnt by heart. In reality both the legeges regiae and some written memories (Commentarii) of the sacerdotes worked as a bridge between the mores and the writing of the Tables.

People who enjoyed the rights sanctioned by the mores

Very few people were entitled to enjoys rights on this basis especially in the earliest period. At that time they could only bepeople who were entitled to subjective juridical conditions, i.e. the patres familias: the patres could be married then as husbands they had the manus on their wife or could have a cliens being then the patronus, or as patres they had rights on the consociati of the family the alieni iuris. Other were people connected to the military: e.g. the celeres who should perform certain rites. Else the sacerdotes.

Still in ancient times those who were not entitled to enjoy rights were certainly those who could not be entitled to juridical positions, i.e. those who had not any of the three requisits: freedom, Roman citizenship, the potestas over persons alieni iuris, i.e. who had not the status of pater familias.

During the preclassic and classic period though this situation gradually changed: the patria potestas becomes less and less patrimonial, positions and interests to be put under tutela were distinguished and perhaps even children (filii familias) were entitled to enjoy some rights on the basis of the mores.

The mores as regulators of legis actiones, negotia (business) and rites

In the earliest times the mores were the only existing regulations thence they must have regulated the most ancient legis actiones, i.e. the legis actio sacramentum in rem, the manus iniectio, the pignoris capio and other we do not know of.

The legis actio sacramentum in rem implied the taking of the thing in iure before the judge, this act should have been not at all only symbolic but it is supposed that in the most archaic period a real physical conflict on the thing object of the dispute took place, that later became only symbolic and followed by an oath with satisdatio. It is obvious that all these aspects should be controlled by the mores and inherent to the institutional system of the time. On such grounds later the laws were created.

As far as the manus iniectio is concerned we are not well informed on the procedural process. Though in essence it was used to obtain a sort of potestas on one's slave or on one's wife by saying certain words or performing certain gestures. It should have been similar to the case of the legis actio sacramentum in rem when the actor puts a straw on the head of the person he revendicates as his slave.

As for the pignoris capio according to Gaius it was still in use at his times and it had little changed since antiquity as it included many aspects regulated by the mores, although unfortunately he is not specific on the details of the procedure.

Other legal practices concerning contracts and obligations as the agere per sponsionem or the stipulatio must have been regulated by the mores since the jus Quiritium, which is strictly linked to them, is mentioned in the ritual.

This analysis lets us understand that the mores regulated the legis actiones as they recorded the relevant words and gestures of their procedures. Their meaning and value lied not only in the fact that they gave to the action the right and effectiveness necessary and sufficient to achieve a certain result as it was required by the juridical system of that time, but also because they could protect the actor from from the intervention of evil and negative occult influences.

Besides regulating some aspects of the legis actio themores regulated some of the oldest negotia as the mancipio and the transferring of the res mancipi through the rite of the weighing of raw bronze. In the course of time this institution evolved into a merely symbolic gesture as the cost of the res (goods) was paid in money.

The nuncupatio by which one could change the effects of the mancipatio seems to have been a mos before being reworked as one of the laws of the XII Tables.

A similar evolution as that of the nuncupatio seems to have affected the intitution of the usus, i.e. in the sense of usucapio of an asset.

Other instances are to be found in the field of religion: notably the marriage through the rite named confarreatio, the auguria (augural rites) and auspices, the Lupercalia, the rites of the Salii and many other.

The mores and their relationship with other kinds of jus

Jus Quiritium

The most ancient mores are strictly related to the jus Quiritium, i.e. the first Roman juridical system. We are informed about this jus by Gaius and Cicero among others, since it is named in some negotia that date back to the earliest times such as the mancipatio.

This legal system is centred mostly on family and dominical (patron and master's) power and goes back to the VII and VI century. Thence it does not concern the branch of obligations with the oportere that was developed later.

It is basically characterized by mores, leges regiae and foedera (international treaties).

Among others a mos subsumed in the XII Tables is that of the traditio that is very ancient. Here above the mancipatio and the usucapio have already been mentioned. Basically the XII Tables are maximae (sentences) from the mores.

Jus civile and mores

The jus civile is the result of the work of jurists on the XII Tables therefore an evolution of the content of the Tables. Even here though we can find analogies with mores, e.g. the relationship between patronus or the gens and the cliens, the obsequium of the cliens toward the patronus. Besides positive law we can find connexions in procedural law concerning trial, that were taken from the XII Tables and transformed into formulae with the jus civile: actio sacramentum in rem, agere per sponsionem, manus iniectio and other.

Jus gentium and mores

This subject requires a more complex approach since it involves and comprehends legal institutions of various people and Roman ones and assimilating them together. Elements of the mores that are preserved here are the traditito and sponsione stipulatio.

Jus honorarium and mores

There no direct connexion in the jus honorarium as this stems from the praetor 's jurisdictio. When ti later became stable though little by little it took over institutions of the jus civile by only changing some some oral formulae: e.g. by doing away with the formula ex jure Quiritium. This shows that it too took up again institutions regulated by mores.

Categories of mos

We know about the following categories:

mos maiorum the most ancient customs, those with the highest auctoritas.

mores regionis those valid within a specific region.

mores sacri also known as lex sacra, those concerning cults. We know the rite of the Septimontium that took place every year on December 11.It consisted in a procession of all the people dwelling on Roman or neigh hills that started from the Palatin and reached in turn each of the seven hills. It was meant to symbolize the religious similarity of all these populations and to wish(augurare) peace among the different groups.

The most ancient religious rites made use of black beans as a gift to the deities called Lares: this fact is testified by Pliny and has been confirmed by excavations.[47]

mores familiae or gentis those valid specifically within a certain family or gens. They could include religious matters, specific cults, peculiar dressing habits and other aspects.

mores iudicorum regulating the procedual (ritual) aspects of the process of debating legal cases and trials.

mores militum concerning the ethic, conduct and discipline of soldiers. Ie the figure of the citizen soldier,who is able to serve the Country in war as a soldier and in peace as a peasant.

Note

This article is in part a translation of the corresponding article of the Italian Wikipedia.

Notes

  1. ^ "Mos Maiorum," Brill Online
  2. ^ ""Lupercalia,"O.C.D. pg 892
  3. ^ "Manus," Berger. pg 577
  4. ^ Suetonius, De Claris Rhetoribus, i.
  5. ^ "Mores," Brill Online
  6. ^ Seneca, 'De Clemetia, i.15.6-6, i.16.1
  7. ^ "Penates," O.C.D. pg 1135
  8. ^ “Bona fides,” Berger. pg 374
  9. ^ Adkins. pg 78
  10. ^ Adkins. pg 78
  11. ^ Ziolkowski, “Temples”
  12. ^ Ab Urbe Condita. i. 21
  13. ^ “Fides,” O.C.D. pg 595
  14. ^ Ab Urbe Condita. i. 21
  15. ^ Adkins. p. 180
  16. ^ De Natura Deorum. 1.116
  17. ^ Stambaugh. pg 50
  18. ^ Ab Urbe Condita. xxxx. 34
  19. ^ “Pietas,” O.C.D. p. 1182
  20. ^ Adkins. p.180
  21. ^ Adkins. pg 190
  22. ^ Ab Urbe Condita. v. 23
  23. ^ Adkins. pg 55
  24. ^ Phillipicae. II
  25. ^ see Plutarch’s Antony, for further characterization of Antonius.
  26. ^ Adkins. p. 63
  27. ^ Ward. p. 58
  28. ^ Ab Urbe Condita. ii. 12
  29. ^ Ab Urbe Condita. xxii. 58. See also Ogilvie’s Commentary on Livy 1-5.
  30. ^ Ward. p. 57
  31. ^ Ward. p. 57
  32. ^ Ward. p. 58
  33. ^ Gaius 1, 1; Sextus Pomponius De Origine Juris fragm. I, 1
  34. ^ "Roma arcaica e le recenti scoperte archeologiche. Aspetti della vita quotidiana nella Roma arcaica: dalle origini all'eta' monarchica" In "Roma arcaica e le recenti scoperte aecheologiche: giornate di studio in onore di U. Coli, Firenze 29-30 maggio 1979" Milano: Giuffre', 1980 VIII
  35. ^ Sextus Pomponius De Origine Juris fragm. I, 5
  36. ^ Dion. Hal. Ant. Rom. II, 24, 1
  37. ^ Leges regiae e paricidas pp.18-19
  38. ^ Liv. I, 31, 8; L. Piso ap. Plin.28, 4, 14;G. Franciosi ibidem pp. XVII-XVIII; Liv. I, 60, 4,
  39. ^ G. Pugliese Istituzioni di diritto romano Giappichelli, Turin
  40. ^ Manus Berger p. 577
  41. ^ Sextus Pomponius Enchiridion par. 1, line 3: "Inique initio civitatis nostrae popolus sine lege certa, sine iure certo primum agere instituit : omniaque manu a regibus gubernabantur."
  42. ^ Sextus Pomponius Enchiridion par. 2, line 10:"Et ita leges quasdam et ipse curiatas a d populum tulit: tulerunt et sequentes reges. Quae omnes conscriptae exstant in libro Sexti Papiri,qui fuit illis temporibus, quibus superbus Demarati Corinthii filius ex principalibus viris."
  43. ^ Suet. De Claris Rhetoribus I
  44. ^ Liv. I, 26
  45. ^ see leges regiae,Numa
  46. ^ Tabula VIII "Qui malum carmen incantassit.."
  47. ^ the sacral meaning of beans is testified in similar religious practices among many people around the world: a similar rite is still alive in Japan on February 4

References

Adkins, L. and Adkins, R. Dictionary of Roman Religion. New York: Oxford University Press, 2000.

Berger, Adolph. Encyclopedic Dictionary of Roman Law. Philadelphia: The American Philosophical Society, 1991.

Brill’s New Pauly. Antiquity volumes edited by: Huber Cancik and Helmuth Schneider. Brill, 2008 Brill Online.

Oxford Classical Dictionary. 3rd Revised Ed. New York: Oxford University Press, 2003.

Stambaugh, John E. The Ancient Roman City. Baltimore: The John’s Hopkins University Press, 1988.

Ward, A., Heichelheim, F., Yeo, C. A History of the Roman People. 4th Ed. New Jersey: Prentice Hall, 2003.

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2010,02,23

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