12 Partes Iuris
THEO MAYER-MALY (SALZBURG)
It is obvious that Roman law differs from modern legal systems by its multi-layeredness. Beside the ius civile there was a ius honorarium; beside the ius quiri- tium—which was reserved for citizens—there was a ius gentium.[240] A tendency towards a legal unity, and thus a levelling of the differences between the legal layers, becomes apparent only in the third century AD.
The multi-layeredness of the Roman ius could perhaps offer a solution for the new problem which Charles Taylor[241] has pointed out: multiculturalism. In contrast to pluralism—the parallel existence of different evaluations within a legal community[242]—multiculturalism concerns the problem of the parallel existence of different cultures (for instance the German and the Turkish in Berlin) and the problem of coping with it. Legal adaptation seems not to be a realistic option. More promising, however, is release from the idea that in a State only one law can be valid—an idea, which is inescapable if one identifies State and law as Kelsen does.[243] There is no doubt about the multiculturality of the imperium romanum. Roman law’s many-layeredness contains lessons for the present day.
This many-layeredness of the law they dealt with was grasped by the Roman jurists who revealed its categories, on the one hand, by deductive exposition, as in Gaius’ and Ulpian’s Institutions, and, on the other, by occasional phrases which are more interesting and in their way provide more evidence.
First of all one must mention Neratius 5 membr. D. 22.6.2.[244] In this text the problem of ius finitum is not so interesting as the words “in omni parte”. The interest lies in Neratius’ effort to vindicate his statement on the effect of error iuris for each part of ius. This is understandable if we consider that the regula iuris reported by Paul in D.
22.6.9.pr was not followed by all jurists for all fields of law equally strictly. From D. 22.6.9.3 it becomes clear that Labeo was one of the jurists who wanted a stronger differentiation (however, less according to partes iuris than to the make-up of the case).Then we have to consider Gaius (G. 2.289):
“Sed quamvis in multis iuris partibus longe latior causa sit fideicommissorum quam eorum, quae derecto relincuntur, in quibusdam tantumdem valent, tamen tutor non aliter testamento dari potest quam derecto, veluti hoc modo: LIBERIS MEIS TITIUS TUTOR ESTO, vel ita: LIBERIS MEIS TITIUM TUTOREM DO; per fideicommissum vero dari non potest.”
[“Although in many areas of the law there is much greater scope for trusts than for direct bequests, in certain respects they have the same validity; but a guardian cannot be created by will except directly, for instance: ?Let Titius be guardian to my children’, or: ?I make Titius guardian to my children’. A guardian cannot be created through a trust.”]
As XII T. 5.3 shows, the testamentary appointment of a guardian belongs to the institutions established by the ancient Roman ius. The quotation from the XII Tables in Pomponius 5 ad Quintum Mucium (D. 50.16.120) quite clearly conveys the awareness of a link with an old order. Gaius accepts the far greater elasticity of the fideicommissum. However, he maintains that the appointment of testamentary tutors should be reserved exclusively to the form of a will.
An obvious crucial point is the conception of ius as a sum of different branches in Papinian. He is clearly over-represented in the texts on the partes iuris. (However, this results from some double citations, almost leges geminae.) First we must quote Papinian 33 quaest. (D. 50.17.80): “In toto iure generi per speciem derogatur et illud potissimum habetur, quod ad speciem derectum est.” [“In the whole of law, species takes precedence over genus, and it has been laid down that anything that relates to the particular is regarded as the most important.”]
If we consider this text in isolation it seems to be above all a manifestation of the priority of the lex specialis over the lex generalis.
It could also mean that among different legal arguments the more specific is always the stronger. The word derectum, however, should make us careful. Not only the priority of the more specific but also the standing of the judge led to the result that such a judgment overrode a general prescription. In book 33 of his quaestiones Papinian devotes himself to the problem of the Augustan marriage laws. These included penalties, and probably the following text from the second book of Papinian’s definitiones dealt with the same topic. This is Papinian 2 def. (D. 48.19.41):“Sanctio legum, quae novissime certam poenam irrogat his, qui praeceptis legis non obtemperaverint, ad eas species pertinere non videtur, quibus ipsa lege poena specialiter addita est. nec ambigitur in cetero omni iure speciem generi derogare, nec sane verisimile est delictum unum eadem lege variis aestimationibus coerceri.” [“The sanction of the statutes, which in most recent times imposes a fixed penalty on those who fail to comply with the provisions of a statute, is not seen as applying to those special cases to which a penalty is specifically attached by the statute itself. There is no doubt that in all other aspects of the law the particular derogates from the general, nor indeed is it likely that one single offence should be punished on different assessments under the same statute.”]
The punishments for disobedience to the law had been aggravated. This was not valid in specific cases (species) where the law itself had laid down the punishment. The special application of the sanction contained in the law was to be predominant. With this statement Papinian came close to the problems of the concurrence of offences and the accumulation of offences. A sentence starts with the words “nec ambigitur”; this extends the view from the actual situation to the whole of the law. It might be that the generalizing part of D. 49.19.41 came into Papinian’s definitiones by a post-Papinian transfer from book 33 of the quaestiones.
In all law the special is claimed to override the general. At the same time the unity, if not of the legal order at least of the law, is invoked: it was not likely that the law would fix different penalties in different provisions for one and the same behaviour.The next couple of passages in Papinian concern problems of adoption and of patria potestas. In detail they vary, however, as far as the problem is concerned. An adrogation after an emancipation is the topic of Pap. 12 quaest. (D. 28.2.23pr):
“Filio, quem pater post emancipationem a se factam iterum adrogavit, exheredationem antea scriptam nocere dixi: nam in omni fere iure sic observari convenit, ut veri patris adoptivus filius numquam intellegatur, ne imagine naturae veritas adumbretur, videlicet quod non translatus, sed redditus videretur: nec multum puto referre, quod ad propositum attinet, quod loco nepotis filium exheredatum pater adrogavit.”
[“I said that a disinheritance previously made operated against a son whom his father adopted again by adrogation after he had emancipated him; for, throughout almost the whole law, it is settled that the rule to be observed is that a son is never to be regarded as an adoptive son of his true father lest the truth be obscured through an imitation of nature, that is to say, he should not be regarded as having been transferred, but as having returned; and, so far as the instant case is concerned, I do not think that it matters much that he adopted his disinherited son as a grandson.”]
The facts of the case were presumably the following: A father had emancipated his son, but had afterwards incorporated him again by adrogation into the household. On the occasion of the re-incorporation into the household the son was assigned the position of a grandson. The father had disinherited the son “antea”. Antea refers to the moment of the emancipation rather than that of the adrogation, since according to the ius civile a disinheritance between the moment of the emancipation and the moment of the adrogation would make no sense.
Papinian was asked whether the old disinheritance harmed the son albeit he had since been emancipated and then adopted again by adrogation. This question was not put lightly. The disinheritance had most probably been put in the following form: “Sempronius filius meus exheres esto”. After the adrogation, however, Sempronius had no longer the position of a son, but that of a grandson. Thus it was relevant for him to argue that the formula of disheritance in its old version no longer applied to him. Papinian, however, did not agree with this. His argument was not that it was always the same Sempronius who was concerned, but he used a maxim which he declared to be observed in the whole of law (in omni fere iure): The natural father could never be the adoptive father of his son. Thus the truth would be obscured by an imitation of nature, by an imago naturae.In the other of Papinian’s texts using the phrase in omni fere iure, the facts which gave rise to it are not clearly identifiable. It is Pap. 36 quaest. (D. 1.7.13):
“In omni fere iure finita patris adoptivi potestate nullum ex pristino retinetur vestigium: denique et patria dignitas quaesita per adoptionem finita ea deponitur.”
[“Throughout almost the whole law, on the termination of the power of an adoptive father no trace of the past is left. Hence paternal rank acquired by adoption is given up on the cessation of the adoptive relationship.”]
It is said that the patria potestas of an adoptive father leaves hardly any traces in the whole of law after the end of the adoption. Papinian does not rule out any exceptions; however, he does not name them. It is striking how clearly he distinguishes between the whole of ius (totum ius, cf. D. 50.17.80) and nearly the whole of ius (omne fere ius). When he speaks about the equal treatment of sexes[245] he withdraws even more sharply from the standard type of law. We read in Pap. 31 quaest. (D. 1.5.9): “In multis iuris nostri articulis deterior est condicio feminarum quam masculorum.” [“There are many sections in our law in which the condition of females is inferior to that of males.”]
As Julian dig.
D. 1.3.12[246] shows, the expression articuli is ambivalent. It can concern the objects of a regulation as well as the modes of regulation. The discrimination of women is accepted by Papinian not for the whole of the ius, nor for nearly the whole of the ius, but for many parts of it.Compared with the amount of the text-material handed down to us, and also absolutely, reference to the partes iuris occurs far more rarely in Ulpian. We have to quote two texts. One belongs to the Edict on the actio Publiciana;[247] it is 16 ad ed. (D. 6.2.1.2). This text has to be read in context:
“pr: Ait praetor: ?Si quis id quod traditur ex iusta causa non a domino et nondum usucaptum petet, iudicium dabo’.
s.1: Merito praetor ait ?nondum usucaptum’: nam si usucaptum est, habet civilem actionem nec desiderat honorariam.
s.2: Sed cur traditionis dumtaxat et usucapionis fecit mentionem, cum satis multae sunt iuris partes, quibus dominium quis nancisceretur? ut puta legatum,
Vel mortis causa donationes factae: nam amissa possessione competit Publiciana, quia ad exemplum legatorum capiuntur. (D. 6.2.2, Paul 19 ad ed.)
Sunt et aliae pleraeque. (D. 6.2.3pr, Ulpian 16 ad ed.)”
[“The praetor says: ?If a man claims something which has been delivered to him for good cause by a non owner and has not yet been usucapted, I will grant him an action’. The praetor rightly says ?not yet been usucapted, for if it had been usucapted the claimant has a civil action and does not need a praetorian one.
But why did he mention only delivery and usucapion, when there are many legal grounds for acquiring ownership? Legacy for example:
Or gifts made in contemplation of death; if the donee loses possession the Publician action is available, since such gifts are treated as analogous to legacies.
There are several other grounds.”]
The text of D. 6.2.1.1 provides a certain difficulty for the widespread opinion9 that quiritary owners preferred the actio Publiciana because the burden of proof was on them in the case of a rei vindicatio. The view that an actio Publiciana might be raised by an owner can, however, plausibly be defended, by not taking the words “non desiderat” as excluding the actio Publiciana, and by considering the tendency towards simplification which characterizes a commentary—even Ulpian’s.
The commentator is surprised that the edict mentions only traditio and usucapio, because there are many partes iuris where one acquires ownership. As an example Ulpian mentions legacy, the inserted fragment from Paul refers to donatio mortis causa, while dowry, judicial award, payment and noxae deditio occur in the chain D. 6.2.3.1-6.2.7. The late classics strive for a complete recording of the iustae causae (of traditio and usucapio). This turns their attention necessarily towards the remarkable number of partes iuris. The Edict on the actio Publiciana was devoted to certain precisely-limited fundamental elements of the rule: the delivery ex iusta causa, and prescription not yet completed. Let us here disregard the question whether only original acquisition or also acquisition from the non-owner was already considered, or whether rather the plain delivery of a res mancipi by its owner was the starting point. The essential point is that the extension of the range of application of an action made clear the existence of more partes iuris.
When dealing with the fictio legis Corneliae connected with the ius postliminii, Ulpian realized the division of ius into partes. He writes in 35 ad Sab. (D. 49.15.18): “In omnibus partibus iuris is, qui reversus non est ab hostibus, quasi tunc decessisse videtur, cum captus est.” [“In every branch of the law, a person who fails to return from enemy hands is regarded as having died at the moment when he was captured.”]
9 Mayer-Maly, Romisches Privatrecht (1991) 41.
The presumption of death in the lex Cornelia covered nearly all fields of law. Return with postliminium meant the recovery of almost all that had formerly been held but, as the fere in Papinian D. 1.7.13 indicated, the return alone did not suffice to restore possession and matrimony.
In the formulation of the principle of utility[248] by Modestinus—which we know from Collatio 10.2.2—various transactions are called partes iuris. After mentioning loan and deposit, it is said that in the contracts of fiducia and dowry utilitas exists on both sides.
Hermogenian (D. 41.1.61pr) assumes in book 6 of his epitomae iuris that an inheritance is treated as an owner in many parts of law (in multis partibus iuris). In this way the conception of the hereditas iacens as a legal person is anticipated to a large extent.
The texts which speak of partes iuris as well those in which the whole of the law is mentioned show that the Roman jurists were fully aware of the multi- layerednedess of their legal order. Their attempts to categorize resulted, as Dieter Norr has shown,[249] to a great degree in partitiones. But one has to conclude that the person who speaks about partes iuris also grasps the “logical unity of the legal order” whose essence Kelsen[250] has excellently elucidated, even if one does not accept the identification of State and law.