Ill CHARACTER AND TENDENCIES OF CLASSICAL JURISPRUDENCE

2. This aristocratic atmosphere gave little scope for scientific individuality. The old republican esprit de corps was kept alive by the sturdy professional tradition of the small select band of leading jurists. The individual had no desire to step outside the tradition or at least to deviate seriously from it. If we cannot among the classical jurists discover personalities of pronounced scientific originality, it is because none such existed.^[200] With this the tone of the classical discussions is in harmony. The battle of the law is p.eya$ dyd>v, not an epi$. The atmosphere is one of strict and composed objectivity which, even at the cost of a certain monotony, eschews all verbal adornment. There is no attempt to be persuasive, no contentiousness, no advocacy. Legal witticisms, and strong and malicious criticisms such as even Aristotle at times indulged in, are excluded. It strikes us into surprise when Celsus occasionally describes another jurist’s opinion as ridiculous.⁴ In their dealings with one another these great gentlemen did not stoop to polemics fit only for rhetoricians.

(ii)

If one makes a serious study of the central works of classical jurisprudence, if one is not content merely to read the Institutes of Gaius or individual fragments in the Digest, but examines consecutively the remains of Cervidius Scaevola’s Digesta or Responsa, Papinian’s Responsa or Quaestiones, or Ulpian’s Libri ad Edictum, one is penetrated by a feeling of their overwhelming and inexhaustible wealth of problems and ideas. If one then reflects that the literature we possess is but a small selection, made it is true by such experts as Tribonian and his colleagues, well may one exclaim: ώ βάθος πλούτου êàë σοφίας êàë γνώσΐως του δικαίου.¹ Abundance is indeed a distinctive mark of the classical period, for it was then that the picture sketched in bare outline by the republican jurists was filled in down to the last detail.

(iii)

But there is another side to the picture. Classical jurisprudence, for all its innumerable contributions to the detail of private law, was not productive on a great scale.⁴ ‘Nihil est simul inventum et perfectum’, as Cicero truly says.® The jurists of the Principate perfected the work of the great originators of the Republic.

¹ S. Paul, Ad Rom. xi. 33; cf. Rudorff, RG i. 364.

² Cf. S. Paul, Ad Galat. iv. 4.

³ Jager, Aristoteles, 359 ff., 362 (Engl. ed. 336 ff., 338).

♦ De Zulueta, CAH ix (1932), 842; Joers, 1-7. ³ Cic. Brut. ²8. 71.

1. The Edict, that masterpiece of republican jurisprudence,¹

became stabilized. It seems to have been little altered in the course of the first century,² and under Hadrian it was stereotyped.³ By order of that Emperor the famous jurist Julian settled the final form of the praetorian and aedilician Edicts, rewording here and there, altering the order of topics, but making only small changes of substance. His ‘little book’ was laid before the Senate, which proceeded to direct⁴ that future praetors and aediles should issue their Edicts in the form settled by Julian. Only within the frame­work of these Edicts did the magistrates retain discretionary powers: they could still allow analogous actiones and exceptiones, and this they continued to do throughout the classical period.³ At the same time a uniform jurisdictional Edict for the provinces (Edictum provinciate) was composed, which the governor of every province was bound to adopt.⁶ We have here a codification, but in a style proper to the Principate: formally the Edict remained, as before, the official programme which the magistrate advertised at the beginning of his term of office.⁷ It was not turned into lex, but remained ius honorarium. It was also in keeping with the Principate that the direction to the magistrates emanated from the Senate. But the outcome was that the lex annua, as the republicans proudly termed their masterpiece,⁸ had become stereo­typed as an Edictum perpetuum.⁹ Thus ended a great chapter in the history of Roman jurisprudence. ·

2. On the other hand, new paths of legal progress were now thrown open. Instead of by lex rogata, at which the jurists had

¹ Above, p.

* The point deserves further consideration. Examples of changes in the Edict under the Principate: D. (4. 6) 26. 7; (29. 2) 99; (42. 8) n; (44. 4) 4. 33. Cf. Weiss, Z 1 (1930), 249 ff.

³ On what follows see Weiss,Si. z. d. rom. Rechtsquellen (1914), 112,135 ff.; Wieacker, St. z. hadrianischen Justizpolitik (l.c. above, p. 112, n. 4), 72 ff.; Ebrard, Z xl (1919), 121.

⁴ Const. Tanta-˳Üøêåã, s. 18. On the date of this SC. see Girard, Melanges, i.

214ff.; P. Strack, Untersuchungen zur ram. ReichsprSgung des 2. Jdhrh. ii (1933), 123 and 127..

⁵ This was what the senaiusconsuUum ordained, as Const. shows. The

corresponding passage of the Latin version, Tanta, is so expressed by Tribonian as to make one believe that the Senate ordained that where the Edict as formulated was unsatisfactory the praetor was to appeal to the Emperor.

⁶ Lenel, Ed. 4; Buckland, RH xiii (1934), 81 ff.; Reinmuth, ‘ The Prefect of Egypt ’, 46 ff. (Klio, Beiheft xxxiv. 1935); Volterra, Dir. rom. e diritti orientali (1937), 297.

⁷ C. (8. 1) 1 (Alexander). Eger, Z xxxii (1911), 378 ff.; P. M. Meyer, Jur. Papyri, no. 27; Weiss, 123; Wilcken, Z xlii (1921), 135.

⁸ Above, p. 61.

⁹ On the origin of the term: Pringsheim, ‘Zur Bezeichnung des Hadrianischen Edikts als edictum perpetuum ’, Symb. Friburg., 1 ff. always looked askance, legislation could now be by senatuscon­sultum or constitutio principis, to which methods they were neces­sarily more favourable. At first the lawyers, or some of them, observed a certain reserve towards the Princeps and his associates, and the Emperors for their part kept the lawyers at a distance. But all this disappeared from the time of Nerva. The leading jurists were thenceforward the trusted agents of the Princeps and, from Hadrian onwards, members of his consilium. Hence we now meet with a number of senatusconsulta dealing with private law and betraying the hand of the jurist; imperial constitutions dealing with private law also become more frequent.

I2Q grant possession to the heredes named in a written record of the last will, if sealed by seven witnesses, but they could be ousted by the heres at civil law (bonorum possessio secundum tabulas, but sine re). It would have been a very short step to give the document full validity as a testament, but all that the classical jurists could bring themselves to allow was that the possession granted by the praetor should receive protection by exceptio (bonorumpossessio cum re), and even for this timid ‘refomf they needed an imperial con­stitution (Gaius, 2.120). The law of intestate succession as between mother and child needed reform, but that provided by the Sea. Tertullianum and Orfitianum was quite inadequate; the Tertul­lianum actually resuscitated the ius trium liberorum, which had been proved unsatisfactory by previous experience. Many another crying need for legal reform was left with no redress at all. It was time, surely, to substitute a contract in writing for the verbal contract (stipulatio), to modernize the forms of mancipatio and in iure cessio, to reconstruct the law of land-charges so as to give capital reasonable security, to introduce assignment of personal claims, agency, and contracts in favour of third parties, to abolish mulierum tutela, to raise the age of legal majority and so on. Looking deeper we may well ask whether it was not time, now that the Edict had been codified, to proceed to the fusion of ius civile and ius honorarium, a heavy task no doubt, but who would have been equal to it, if not Julian and Papinian ? It was shirked, but in the long run it had to be faced; it was left to be carried out by a later age, which had neither the leisure nor the capacity it demanded.

The great and unforgettable achievements of the classical jurists must not blind US—toAjlwjtcov yap ovv to ye dhtjOes emeiv¹— to the fact that for drastic legal reform they had neither the inclination nor the energy. Here, as elsewhere, we have to recognize symptoms of the intellectual fatigue characteristic of the age.² The sun of jurisprudence still shone, but with an autumn brilliance.

(iv)

The classical jurists continued to apply the dialectical method described above.³ Distinctions continued to be drawn,⁴ principles

¹ Plato, Phaedr. 247 c.

² Mommsen, Sehr. iv. 469; v. Wilamowitz-Mollendorff, EM. in die griech. Tragodie, 176.

³ Above, p. 62. On Pedius’ method see La Pira, Bull, xlv (1938), 293 ff.

♦ Common in Gaius’ Institutes, e.g. 2. 99,101,152; 3. 88, 89,182, 183; 4.45 f., 53a, 4497.1 _K and definitions to be formulated; as under the Republic, in the definitions etymology played at times a sorry part.¹ It is difficult, indeed impossible, to compute exactly the dialectical work of the classical jurists, because possibly much that is of republican and much certainly that is of post-classical origin is sailing under their colours.² But this at least is clear, that the advance made in our period was not so great as the achievement of the Republic would lead one to expect.³ After Labeo and Sabinus juristic interest in dialectic declined; there was a return to the national tendency to stick to concrete cases. In systematization no essential advance was realized. In their treatises on the ius civile (in the narrower sense) the classical writers were content to follow the scheme of Sabinus’ Juris civilis libri tres, which itself was merely an improved version of the Mucian scheme and, even so, was far from perfect.⁴ The same scheme was adopted, with some not particularly suc­cessful modifications, in Gaius’ Institutiones* For the rest, the jurists either followed the order of the Edict or what modems called the system of the Digesta,⁶ which is simply the edictal order with various insertions and appendices.

Abstract formulations of principle occur chiefly in the ele­mentary works.⁷ Even in them the task of defining basic concepts is shirked.⁸ Questions of detail were what really interested the classical lawyers, and the method they applied to them remained at bottom casuistical. The responsa in the collections were fitted somehow into the system of the Digesta, but there was no attempt at rational concatenation by means of connecting abstract head­ings. Even in the more theoretical works, such as Julian’s and Marcellus’ Digesta, case law is dominant, and no attempt is made to translate the cases into abstract principles.’ It is true that in these works opinions on cases that had arisen in practice are not simply strung together as in the collections of responsa; in spite of the casuistical form we can see that problems are considered from the point of view of general theory, with the result that imagined cases play a considerable, perhaps even a predominant, part. But even so, a plain statement of the theoretical result of 82, 103, 120, 142 f., 156. On Labeo’s distinctions: Pemice, Labeo, i. 23 ff. There is a long distinction in the Bolognese style by Claudius Satuminus in D. (48.19) 16 pr.-8. Other examples: Ulp. D. (43.1) 1; Paul, D. (43.1) 2, &c.

¹ On Labeo: Pemice, Labeo, i. 25 ff. Ceci, op. cit. above, p. 67, n. 4, collects the etymological definitions. ² See Note U, p. 339.

³ As already correctly observed by Joers, i. 310, n. 3.

♦ Below, p. 156. ³ Below, p. 159. ⁶ Below, p. 226.

⁷ e.g. in the Institutes oi Gaius. ⁸ Above, p. 67; Schulz, 43 ff.

* Ibid. 56 f.

131 the cases, a formulation of the principle to be deduced from them, is avoided. When the jurist does attempt such a formulation, his heart is evidently not in the work. One has the impression that he is only completely in earnest when he gets back to his beloved cases. It must not be imagined that abstract principles have been cut out of the classical texts by Justinian’s compilers. Far from that, the men of the post-classical age cherished simplicity and 'brevity; abstract formulations were just what they were looking for,¹ and at times they inserted them in the classical texts? If they had found them already there, they would have been only too glad to adopt them. 'All abstract formulations in private law are dangerous; they generally prove fallacious’: this saying of lavo- lenus^{[201] [202] [203] [204] is more than a casual remark; it voices the intimate con­viction of the second-century jurists. It reveals an opposition to Q. Mucius in which one may well see a 'Roman’ reaction against the imported dialectic. Modem text-books and monographs fail to give any idea of this frame of mind in the classical jurists, for the very good reason that every modem work on Roman law does what tiie classical jurists purposely refrained from doing: it reduces their case law to abstract principles. It cannot do other­wise, unless it is simply to copy out the cases from the texts.}

Let us give a few illustrations. Observe the unhappy classical attempt (D. 21. 1) to throw the case law of vitium and morbus in the aedilician Edict into the form of an abstract principle ;♦ or Celsus’ attempt (D. 9. 2. 7. 6) to summarize an endless mass of case law (see Gaius 3. 219) under a general principle. Stating when the action under the I. Aquilia cap. 1 must be utilis, not directa he distinguishes between occidere (actio directa) and causam mortis praestare (actio utilis), as though occidere were not causam mortis praestare. Nor are the formulations of Julian (D. 9. 2. 51 pr.) and Gaius (3. 219) much better. We read in a modem writer:^{[205] [206] 'the texts frequently insist that the I. Aquilia applies only where the injury is in a certain sense (!) the direct result of the act’, but in truth the texts nowhere formulate the principle in this way; it is a modem deduction from the classical case law. Take again passages so difficult but interesting as D. (44.4) 7 and (39.5) 2.3 ;* both Julian and Ulpian confine themselves to deciding the case in hand; it was left to}

modem research to discover the underlying principle. Such examples could without difficulty be multiplied indefinitely.

(v)

Formalism continued to decline, but only slowly and reluctantly, without the republican doctrine¹ being rejected in principle.

1. By the side of the highly formal testament there appeared the formless codicil, by that of manumission vindicta manu­mission inter amicos, by that of the formulary procedure the formless cognitio. But superannuated forms such as mancipatio and in iure cessio were clung to with a senile obstinacy that is truly amazing.

2. In interpretation formalism likewise underwent some attenu­ation. Except where interpretation was fixed by tradition,² statutes (lex, senatusconsultum, and constitution) were now interpreted somewhat more liberally, and the same is true of the interpretation of testaments, codicils, and contracts, though here too the advance was nothing prodigious. The intention of a decla­rant was in principle followed only in so far as it was the actual intention underlying his declaration. To his hypothetical inten­tion, to what he would have said or written had certain possibilities been present to his mind no attention was paid, however certain that might be. Thus the formula of a claim for money lent ran: 'si paret Nm.Nm.Ao.Ao. centum dare oportere, iudex Nm.Nm. Ao.Ao. centum condemna, si non paret, absolve.’ A iudex so instructed, having found that the defendant owed only 90, was held bound to dismiss the whole claim; he could not give judgment for 90 because the formula taken literally did not authorize him to do so—a piece of literalism adhered to throughout the classical period.³ The formalistic interpretation of testamentary clauses ordering a cretio* has already been mentioned; it was corrected only by a constitution of Marcus Aurelius.⁵ In the law of fidei­commissa it is the same story. Thus: a testator institutes A as heres, charging him with a fideicommissum in favour of F, and, in the event of A failing to become heres, substitutes  for him. A does fail, and  becomes heres. Is  bound by the fideicom­missum ? No, reply the classical jurists, for the testator has not so directed, though he certainly would have, had the point

¹ Above, p. 75.

* Thus the traditional interpretation of the l. Aquilia was not given up: above, P- 77­

³ Gaius, 4. 53a. On a similar rule in former English law see Blackstone, Com. iii, ch. 9, ii. i. ♦ Above, p. 78. * Epit. Ulp. 22. 34.

133 occurred to him. It required a constitution of Severus to break down this piece of literalism.¹ Since the classical writers nowhere enunciate general principles of interpretation, it is possible that they were not completely unanimous and that in some cases one jurist might be more liberal than others.² There are matters of detail which research has still to clear up: the materials are voluminous and have in many cases been tampered with by post-classical jurisprudence and the compilers of the Digest. For it was only in post-classical times that the phrase semper vestigia voluntatis sequimur was coined,³ and it contradicts many classical decisions, which consequently had to be altered. There exists neither a full investigation of these interpolations nor even a preliminary study of the interpretation of statutes.⁴ But it is safe to say that methods of interpretation continued to be highly formalistic; on the classical jurists, as on their predecessors, the rhetorical disputations on the topic verba-voluntas^s produced little, if any, effect.⁶ One illustration of the state of our texts must suffice.

D. (28. 5) 29: ‘Pomponius libro quinto ad Sabinum. [Hoc articulo "quisque" omnes significantur: et ideo] Labeo scribit, si ita scriptum sit: "Titius et Seius quanta quisque eorum ex parte heredem me habuerit scriptum, heres mihi esto”, nisi omnes habeant scriptum heredem testa­torem, neutrum heredem esse posse, quoniam ad omnium factum sermo refertur: [in quo puto testatoris mentem respiciendam, sed humanius est eum quidem, qui testatorem suum heredem scripserit, in tantam partem ei heredem fore, qui autem eum non scripserit, nec ad heredita­tem eius admitti.]’

Testator has instituted Titius and Seius his heredes to that fraction of his estate to which they themselves shall have instituted him (the testa­tor) as their own heres. Titius has instituted the testator to a half, Seius has not instituted him at all. Labeo gives the incredibly formalistic

¹ D. (31) 61. i; Amdts-Gliick xl. 269. * See Note V, p. 339.

’ C. (6. 27) 5. ib.

⁴ The title D. i. 3 De legibus, &c., affords no basis, because it is composed of fragments tom from their contexts. One must study the interpretation of the individual statutes.

⁵ Himmelschein, Symb. Frib. 398; Lanfranchi, Il dir. nei retori romani (1938), Ã36 ff. Above, p. 76.

⁴ The considerable literature on this question is widely scattered and in many cases needs revising. Here are some samples: Suman. Favor testamenti e voluntas testantium (1916); Donatuti, ‘Dal regime dei verba al regime della voluntas’, Bull, xxxiv (Ã925), 185ff.; Riccobono, Mil. Cornil, ii. 348ff.; Dulckeit, ‘Erblasser­wille u. Erwerbswille bei Antretung der Erbsch.’, Beitr. z. Willensproblem im klass. rbm. Erbrecht (1934); Grosso, SuZfa falsa demonstratio, St. Bonfante, ii. 185 ff.; Albertario, St. v (1937), 112 ff.; Maschi, St. sull’ interpretazione dei legati (1938). Many valuable remarks are scattered about in Beseler’s various works.

decision that in such case Titius too will not be her es, and Pomponius approves. The words in quo... respiciendam are a timid attempt made by some post-classical lawyer to admit the doctrine of intention to consideration. The compilers were more uncompromising, for it is from them, of course, that the words sed humanius... admitti come. The opening sentence, hoc articulo... admitti is post-classical ‘regular’ jurisprudence. The interpolations are certain.¹ The whole of the immense casuistical material requires to be similarly probed. From assured cases criteria must be extracted by which to determine how far classical formalism was carried.

(vi)

With but few exceptions, unimportant for our purposes, the limitations of legal science as conceived by the republican jurists’ remained.

i. Legal history remained a closed book.³ The non-historical attitude of the lawyers is well described by Gellius (16. io).⁴ He is sitting with others in the forum, and a line of Ennius is read which contains the word proletarii. Its meaning is discussed, and Gellius appeals to a learned friend (ius civile caUentem, familiärem meurn) who is present. The friend declines to answer, on the ground that he is a lawyer, not a philologist (iuris, non rei grammaticae peritum), to which Gellius replies that that is precisely why he must know the meaning of a word which occurs in the Twelve Tables. The lawyer retorts with some heat that this might be true if he were a student of primitive Italian laws, but as a practis­ing lawyer he was not called on to cumber himself with the antiquated lumber of the Twelve Tables, which had long been abandoned in practice.

Interest in legal history is shown only by two academic jurists, Pomponius and Gaius.³ Pomponius’ Enchiridion contained a section dealing with the history of the sources, the magistrates, and the jurists (as far as Julian). What survives is unfortunately only a miserable post-classical abridgement.⁶ The work was not imitated by others, and not even its list of jurists was brought up to date. Gaius, in the preface to his commentary on the Twelve Tables,⁷ declares that one ought not to touch the law ‘with un­washed hands’,⁸ i.e. without studying its history. In his Institutes also he betrays an interest in history, but only fitfully. And yet this obstinate aversion to history was a source of serious embar- ¹ Beseler, Z xlv (1925), 471 ff.; H. Krüger, Z xix (1898), 35. ³ Above, p. 69.

³ Above, p. 70. ⁴ Schulz, 10a. ³ Above, p. 107. ⁶ Below, p. 168.

⁷ D. (1. 2) 1; Schulz, 105, and below, p. 187.

• ‘ Illotis, ut ita dixerim, manibus ’; below, p. 187.

135 rassment to the classical writers. Their works, accumulating from generation to generation, could only have been methodically studied and preserved by their being arranged historically and expounded from the historical point of view. But the classical writers saw this mass of literature as a flat surface, without perspective or background;¹ so regarded, it soon became un­manageable, and there was nothing for it but to allow the older iiterature to sink into oblivion. No system can be discovered in the classical citations of older authors; there is none in those of Ulpian’s Ad edictum. No doubt in this matter the compilers have worked even greater havoc than usual,* but the classical authors never attained to the historical point of view, from which alone it would have been possible to arrange and utilize the older literature methodically. National tradition proved too strong, the inspiration of Greek historiography too weak.³ 'The catastrophe of oblivion’, which in the post-classical period overtook pre- Hadrianic jurisprudence, was inevitable.⁴

2. Legal philosophy also continued⁵ to lie outside the purview of the lawyers. For purposes of orientation the classical jurists, like the republican, occasionally availed themselves of Greek general philosophy, though here we must make considerable allowance for post-classical insertions. But Greek legal philosophy in the strict sense was taken no more seriously by them than by their predecessors. No doubt a section on the sources of law formed part of the introductions of classical elementary works, and here we find observations of a philosophical nature on justice and law, positive and natural law, jurisprudence, and so on. But some of these observations can be shown to have been added in the post-classical period,⁶ and so far as they are classical, they are mere reminiscences of what the writer had been taught in his youth in the schools of rhetoric and philosophy; they show no signs of personal reflection. In short, Roman legal science was a professional science, which stuck to its last and left philosophy to the philosophers.

Justice. Jurisprudence. D. (1. 1) 10 (Inst. 1. 1 pr. 1. 3): ‘Ulpianus libro primo regularum: lustitia est constans et perpetua voluntas ius suum cuique tribuendi. s. 1. luris praecepta sunt haec: honeste vivere,

¹ Schulz, 101 ff. » Below, p. 200.

’ v. Wilamowitz-Mollendorff, Hellenist. Geschichtsschreibung (Reden u. Vortrdge, ed. 4,1926), ii. 216 ff.; Ed. Schwartz, Ges. Schr. i (1938), 47 ff., 67 ff. Greek essays in literary history: below, p. 169.

⁴ Seckel, Das ram. Recht u. seine Wissensch. (Berliner Rektoratsrede, 1920), n. * Above, p. 69. ⁶ Above, p. 84, and Schulz, 129 ff. alterum non laedere, suum cuique tribuere, s. 2. luris prudentia est divinarum atque humanarum rerum notitia, iusti atque iniusti scientia.’

That suum cuique tribuere is of the essence of justice is often stressed in Greek philosophy. Thus Cicero {De inv. 2. 53. 160) writes: Tustitia est habitus animi... suam cuique tribuens dignitatem’, and in Stobaeus {Eclog. 2. 59- 4) we read:... Suauoawqv 8c AnurTqp.'qv d.TTOvenrfTUcr{V rrjs agios cKaarat.¹ The Stoa is responsible for the three illogically com­bined^{[207] [208] praecepta iuris. We have already mentioned suum cuique tri­buere. On honeste vivere Cicero writes {De fin. 2.11.34):'... Stoicis con­sentire naturae, quod esse volunt “e virtute", id est “honeste vivere” ’, and again (ibid. 3. 8. 29): 'ex quo intellegitur idem illud solum bonum esse quod honestum sit idque esse beate vivere: “honeste” id est "cum virtute vivere”.’ And on 'alterum non laedere’ he has (ibid. 3. 21. 70): 'alienum esse a iustitia... detrahere quid de aliquo quod sibi adsumat.’ The definition of jurisprudence likewise comes from the Greek store­house;[209] [210] it is quite valueless, particularly so as a characterization of Roman jurisprudence: if we had nothing else to go by, we should have to believe that the jurists wrote works in the style of Plato’s Laws.}

Law {ius). D. (1. 1) 1 pr.: 'Ulpianus libro primo institutionum: luri operam daturum prius nosse oportet, unde nomen "iuris” descendat. Est autem a "iustitia” appellatum, nam ut eleganter Celsus definit: ius est ars boni et aequi.’ For all that Ulpian qualifies it as elegant, an empty rhetorical phrase. Yet it is the only definition of ius in our books.

Statute {lex). The definitions of lex and plebiscitum given by Gaius (1.2) are clear and to the point. Marcian at the beginning of his Institu­tiones* appears as reproducing in Greek, from Demosthenes and Chry­sippus, pompous flourishes about vApos, a term by no means synonymous with lex. This may be authentic, but it is hard to credit Papinian with the clumsy translation of Demosthenes’ empty rhetoric into Latin.^[211]

Natural law {ius naturae). In Greek philosophy there is mention of a vAfios which applies to men and other animals alike: for example, the union of male and female, the rearing of the young, and so forth.^[212]

137 Though rejected by the Stoa,¹ this idea is found at the beginning of Ulpian’s Institutiones,¹ where it is probably a post-classical insertion.³ Of some interest to the sociologist, it is of no value to the jurist.

Both the term and concept of ius gentium had penetrated into Roman rhetoric as early as the Republic.⁴ Its first appearance in classical legal literature (meaning unchanged) occurs in the second half of the second century. By it was understood to (^υσβι) δίκαιον κοινόν, i.e. the ius com­mune gentium. The classical writers used it to denote those legal institu­tions which, so far as they knew, were, to be found among all peoples ; Jjke the republican orators, they contrasted it with ius civile.⁵ But even m classical times it was never used to denote that part of Roman law to which peregrini were admitted.⁶ It was only in international law that it had a practical meaning ; in private law it remained purely scholastic. It is thus no accident that we first meet with the term⁷ in two academic jtwists, Pomponius® and Gaius.⁵

‘Natural law’ does, however, play a considerable part in classical jurisprudence, but in the sense of Roman natural law, in other words the law resulting from the nature of things within the framework of the Roman legal system, for example from the nature of ownership, con­tract, and so on. But the term natura (including cognate terms) was sparingly used by the classical writers ; naiuralis ratio, natura contractus, and the like are frequently insertions of the post-classical age, when national limitations were first overstepped. In any case, ius naturale in this sense has nothing to do with legal philosophy, but is a thoroughly professional construction of lawyers ; we need therefore spend no more words on it at this point.’

Unwritten law. Customary law. The Greek distinction between ius scriptum and non scriptum¹⁰ is found in some classical isagogic works, but once more as the result of post-classical insertion." It was entirely worthless in classical Roman law, which did not admit customary law." Gaius, it is true, begins his Institutes with the words ‘omnes populi qui legibus et moribus reguntur’, but this is a mere echo of the Greek cliche νόμοι; καί Ιθεσι,¹³ and means so little to Gaius that in the disquisition on the sources that follows mores are not mentioned again.

^I v. Arnim, Fragm. Stoic, vet. iii. 89. ¹ D. (r.1) r. 3.

³ The literature is given by Maschi; his criticism of the critical views is hardly successful.

⁴ Above, p. 73. » Gaius, 1.1.

⁶ See ibid. 4.37 ; Bnms-Lenel, 331 ; above, p. 73.

⁷ Literature above, p. 73.

⁸ D. (1.1) 2.

’ The evidence and literature are to be found in Maschi’s study cited above, p. 136, n. 6. ¹⁰ Above, p. 73.

^II Voc. v. 271. 37 f. See the Index Interp. on the passages; especially Pernice, Z xx (1899), 162 ff. ; Perozzi, 1st. i. 42.

¹³ Literature given above, p. 24.

¹³ Above, p. 74. The term lex is used here in an un-Roman way. See Peterlongo, op. cit. (above, p. 136, n. 5).

(vii)

1. The science of sacral law enjoyed a brief second spring under Augustus and Tiberius in consequence of Augustus’ attempt to revive the old religion.¹ We know of works on the subject by Labeo,³ Capito,³ and Sabinus,⁴ but they were the last. Though the ius sacrum remained in force for another 300 years, and though such leading lawyers as lavolenus Priscus, Salvius lulianus, and Abumius Valens were pontiffs⁵ and Pactumeius Clemens a member of the college of Fetiales,⁶ further development of the ius sacrum had become impossible, so that there was no work for the jurists. The religion which speaks from the pages of M. Aurelius, and which was doubtless that of our leading men, was too far removed from the religion expressed by the ius sacrum. One might piously observe the ancient rites and forms, but one could not breathe life into them.

2. In the sphere of ius publicum, on the other hand, the stirrings of a new life are discernible, though modem scholars have been blinded to the fact by their one-sided absorption in private law.

(à) We are not here referring to constitutional law. Capito’s work⁷ was certainly nothing but an exposition of republican con­stitutional law, an epilogue, not a prologue, destined soon to interest none but historians and antiquaries.⁸ The new constitu­tional law of the Principate belonged to the arcana imperii and was not to be exposed to scientific discussion and analysis. More­over, throughout the first and second centuries, and even under the Seven, it was in constant flux.

(á) But from the second half of the second century we have to

¹ Wissowa, s. 15.

² De iure pontificio, in at least fifteen libri: Bremer, ii. 1. 74 ff.; Seckel-Kabler, i. 55. Cf. Pemice, Labeo, i. 40 ff.; Joers, PW i. 2550.

³ De iure pontificio, in at least six libri. It is uncertain whether Capito also wrote De iure sacrificiorum and De iure augurali: Bremer, ii. 1. 268 ff.; Seckel- Kabler, i. 64. Cf. Joers, PPP ii. 1908.

⁴ Memorialium libri (at least n): Bremer, ii. 1. 367 ff.; Seckel-Kabler, i. 75. Fastorum libri: Bremer, ii. 1. 363 ff.; Seckel-Kabler, i. 74. The date of Cincius’ liber de fastis is uncertain: Wissowa, PW iii. 2555, no. 3: Bremer, i. 252; Seckel- Kabler, i. 24; Schanz-Hosius 1, 175. Probably Augustus’ times.

^s Above, p. 105. Also Groag, * Das Pontifikalkollegium unter Trajan ’, Wiener St. xl (1918), 9 ff. ⁶ Above, p. 106.

r Coniectaneorum libri (at least 9), of which the liber de officio senatorio may or may not have been merely a part: Bremer, ii. 1, 282 ff.; Seckel-Kabler, i. 62. Cf. Joers, PW ii. 1905. The works of Cincius on public law (de comitiis, de consulum potestate: Bremer, i. 253; Seckel-Kabler, i. 26) were of a similar character.

⁸ F. Leo, Die staaisrechU. Exkurse in Tacitus Annalen (Nachr. Gottingen Gesellsch., phil.-hist. KI., 1896), 191 ff. See Addenda.

139 record the birth of- a science of administrative law, the creation and elaboration of which is one of the great achievements of the Principate. It was the work of active emperors and the central bureaucracy. How far the bureaucrats were trained lawyers cannot, of course, be judged, but clearly the jurists, who from the reign of Hadrian were of the consiliwn principis, must have colla­borated. Administrative law has no literature comparable to that of private law. It is a remarkable fact that such men as lavolenus Priscus, endowed with decades of administrative experience,¹ seem never to have thought of publishing a connected account of the subject. But the explanation can be divined. Administrative law was based on multitudinous imperial ordinances and thus gave little scope for the kind of juristic rationalizing which since Mucius had come to be regarded as the only true jurisprudence. Merely to collect the imperial ordinances would seem to the jurists pure hack-work. Moreover, administrative law was not unitary, but consisted of individual enactments applicable to this or that locality; it was ‘particular’ law, for which the jurists had an incurable distaste. And lastly, the classical jurists were the legitimate descendants of the republican who, as we have seen, ostentatiously held public law at arm’s length. All the same, the progressive bureaucratization of the State brought a literature of administrative law into being in the second half of the second century. The bureaucracy demanded a cognoscible, uniform, and definite administrative law, and the jurists, who belonged to the bureaucracy, met the demand. Too little of their productions survives for their value to be assessed,² but Ulpian’s ten books De officio proconsulis must have been a respectable contribution. It was not merely an annotated collection of the numerous imperial constitutions, but an attempt to construct out of their locally varying regulations a common administrative law applicable to all senatorial provinces. Of this basic work, which certainly far surpassed Ulpian’s works on private law in originality, we possess, unfortunately, only fragments.³

¹ Cursus honorum: above, p. 104.

² Military law: Cincius, De re militari (at least 6 books), seems to have been highly

antiquarian: Bremer, i. 254; Seckel-Kubler, i. 28. On its date see above, p. 138, n. 4. The first work on the military law of the Empire was M. Aurelius Tarrutenius Patemus, De re mil. libri iv; next, under the Severi, Menander’s libri iv and Macer’s libri ii: Lenel, Pal. Financial law: not treated as a separate subject before Severus, when we have: De iurefisd, 4 books by Callistratus, 2 by Paul; De censibus, 2 books by Paul, 6 by Ulpian; De muneribus, liber sittgularis by Arcadius Charisius. More­over, a number of works on the duties of this or that office belong to this period: below, p. 242. ³ Below, p. 243.

(c) Jurisprudence now turned its attention to a department of law which republican jurisprudence had, so far as we can see, entirely neglected, namely that of criminal law and procedure.¹ Capito devoted only one book of his Coniectanea to it,² but from the time of Hadrian it excited a livelier interest.³ But it was too late for the development of a jurisprudence of criminal law which might rank with that of private law.⁴ At the end of the second century a pronounced decay of the quaestiones set in,⁵ and the criminal law and procedure lying outside the quaestiones was so undefined, arbitrary, and authoritarian,⁶ that any juristic con­struction of concepts and principles would have been devoid of practical significance.

’ On what follows: Mommsen, Strafr. 534; Ferrini, Dir. penale ram. cap. 1; Schulz, 31; Brasiello, * Sulle linee e i fattori dello sviluppo del dir. pen. rom.’, AG cxx (1938).

² Bremer, ii. 1. 283; Seckel-Kübler, i. 63.

³ In the various Digesta of the second century (below, pp. 226 ff.) moderate space was given to the iudicia publica: P. Krüger, Z vii. 2, 97 if.

⁴ Not even the terms ius poenale or ius criminale are known to the classics: Lauria, St. Bonfante, ii. 498; Brasiello, op. cit., offprint, p. 18, n. 4.

³ Mommsen, Strafr. 219 ff.

⁶ Levy, ‘ Gesetz u. Richter im kaiserl. Strafrecht I ’, Bull, xlv (1938), 57 ff.