ABSTRACT
The formation of the Roman tribes and the curiae from the joining together of several clans (gentes) in the early archaic period was the first step towards the establishment of a broader political community governed by a common body of norms. Initially, the various gentes retained their independence but agreed to place themselves under the command of a common head, the king, who acted as their supreme priest, judge and commander-in-chief in times of war. In the course of time, as the sense of unity among the population grew stronger, the customs of the different gentes, which at first may have varied, underwent a gradual change and assimilation and a common body of norms emerged, referred to as mores maiorum ('the ways of our ancestors'), regulating the whole community and prescribing the rights of its members. These norms had grown from customs and usages in the community, as weB as from cases which had evolved from disputes and which had been brought before the king or the pontiffs for solution. To some of these norms the Romans attributed a divine origin (jas) while others were regarded as being of human creation (ius), but no clear distinction between the two categories of norms was drawn until the later years of the regal period. I Knowledge of the customary law was handed down as tradition in the noble families and was preserved by the coBege of the pontiffs, who acted as custodians and interpreters of both the sacral and the secular law. With the strengthening of concept of the state, the role of the gentes gradually declined and the state took upon itself the task of maintaining domestic peace, acting as a guarantor and enforcer of the norms regulating community life. At the same time, as Roman society continued to grow both in numbers and complexity, the role of custom as the principal source of social regulation began to diminish, for the existing customary norms, often vague and limited in scope, could no longer provide the certainty which a more complex system of social and legal relations required. But the rise of the state and the emergence of legislation by which it was accompanied did not
On the concepts of ius and/as see also chapter 1. 2
eliminate the role of custom. Many of the laws which the state, through its organs, enacted and enforced were based on or sanctioned existing customary norms, and custom continued to play an important part in the interpretation and application of the law.
