INFLUENCE OF GREEK THOUGHT UPON THE ROMAN JURISTS

I, Rhetorical interpretativ and Juristic Interpretation

| 189 The spread of Greek intellectual endeavors into city Rome about the middle of the 2nd century B.C. might well have given new impetus to the development of Roman law.

13. For further discussion of topoi-argumentation, sec infra, $ 190.

14. Norr, dt., 353 n.l; further discussion by Norr. DMsio 14-19,47 f.

15. Kaser. Studi tionatuti 11 523, 537 f.

16. Cf. also Mayer-Maly, Studi Grosso I 179, 198 and n.77; rev. of Schmiedel, Consuetudo, in Gnomon 4 (1969) 383, 388. Flume, Gewohnheitsrecht und romisches Recht (Dusseldorf 1975).

1. On the impact of Greek scientific thought generally, see Kühler, Atti Cong. Roma 1 79-98, Coing, SZ 69 (1952) 24-59; Perez Lenero. 'Influencia de la filosofia griega en el derecho romano’, Homenaje Perez Serrano I (1959) 128-60 (not seen, digested in lura 11 (I960) 503]; Wieacker, 'Ober das Verhältnis der romischen Fachjurisprudenz zur griechisch hellenistischen Theorie', Iura 20 (1969) 448-77. On the influence of Stoic logic, see Miquel, SZ 87 (1970) 85-122.

§ 189 direct impact of Greek philosophical ideas upon Roman juristic thought,^{[1337] [1338]} but there seems to be reason to believe that the ‘arts* of dialectic, grammar and rhetoric may have affected the methods utilized by the jurists in the development of the Roman law. Reference has been made earlier to the role of dialectic in the fashioning of regulae and definitiones by the Roman jur­ists, particularly in the last century of the republic (supra, § 105).

Aristoteles, Rhetorics I 13.11-13.1374a

FFe have said that there are two kinds ofjust and unjust actions - for some are written, while others are unwritten - and we have discussed those about which the laws have something to say; of those that are unwritten, there are two kinds. (12) First, there is the kind that arises from an excess of virtue or vice,... the other contains what is omitted in the written law of a people. (13) This is what we call equity (epieikis),for it is just, and equity is justice that goes beyond the written law....

Aristoteles, Ethica Nicomachea V.10.3 + 6,1137b What causes the difficulty is that the equitable is just, but not that which is in ac­cord with written law, being in fact, a correction of justice. (6) The equitable, then, is just and better than one form ofjustice, but not better than absolutejus­tice, but better than the error arising from a universal statement. This is, in fact, the nature of the equitable: a correction of the law where it is defective by reason of its universality.

Cicero. De officiis 1.10.33 Injustice often arises also by a certain chicanery, indeed, by an over-subtle, even fraudulent, interpretation of the law. From which arose that now trite proverb, ‘the more law, the less justice¹ (summum ius summa iniuria)....

Cicero, Pro X Caecina oratio XXIV.67 Scaevola lost his case.. for no one accepted his arguments, because it appeared he was using the words (verba) to assail the spirit (aequitas) of the law.

The possible influence of rhetoric and rhetorical agrumentation upon juristic methods has been a focus of attention of Romanists for almost half a

century- In 1926, under the title of the catch-phrase in Cicero, Stroux ad­vanced the thesis that the Aristotelian doctrine of epieikes, the equitable, penetrated into Roman thought, leading to the development of a theory of interpretatio (argumentation) among the Roman rhetors which subsequent­ly strongly influenced the interpretatio (legal interpretation) of the jurists.^[1339] The idea gained strong support from Riccobono,^{[1340] [1341] [1342] [1343] [1344] and equally strong ad­verse criticism from Beseler ‘ and Albertario? Most scholars took aposition somewhere between the extremes, and a substantial amount of discussion of the thesis appeared during the next two decades.· In the first edition of this volume is to be found an extensive selection of primary source materials, with comment, to illustrate the scheme of rhetorical interpretatio, largely quotations from Circero’s De inventione, together with a collection oflegal texts showing possible borrowings from the rhetors? A full discussion of the topic, with evaluation of the secondary literature, appeared in 1941.[1345] [1346] Brief digests of the articles devoted to the subject since that time have been given by Martini,“ and extensive bibliographies in two recent monographs[1347] in­dicate that, by and large, Stroux’s thesis is not supported by the evidence.}

Cicero, De inventione 1.8.10, 12.17; 11.40.116, 42.121, 49.144, 50.145,51. 153.

Every matter which contains in itself any controversy to be resolved by speech and disptutation contains either a question offact or of name or ofclass or of ac­tion. The question from which a cause arises we call constitutio {issue)— And one type of these constitutiones (either offact, of definition, general or transla­tive) is necessarily present in every case.... (12.17) When the issue in the case has been determined it is proper to consider whether the case be simple or com­plex.... In the second place it must be considered whether the controversy depends upon reasoning or upon writing.... (40.116) A controversy turns upon writing when some doubt arises from the nature of the writing. Such doubt arises by reason of ambiguity, from the letter or the intention, from contra­dictory laws, from consequential inference, from definition. A controversy arises from ambiguity when that which the writer intended is obscure because the writing may mean two or more things.... (42.121) A controversy arises with respect to the writing or the intention when one party stresses the very words which were written and the other directs all his arguments to that which he alleges the writer meant.... (49.144) A controversy arises from contra­dictory laws when two or more laws appear to be at variance with one another.... (50.148) A controversy arises from consequential inference (ratiodnatio) when, from something written elsewhere, one arrives at that which has never (before) been written.... (51.153) There is definition when some word is set forth in the writing whose exact meaning is inquired into.

In each of these five types of issue Cicero sets forth in great detail the arguments which may be employed by the orator to support his side of the case.

Cicero’s exposition, in his youthful handbook on rhetoric, of what else­where are termed status legales (legal issues) is but one of many discussions of the classification of stock arguments which the orator might employ when the question at issue in a case dealt with the interpretation of a statute or a private instrument.¹³ That this status legalis exposition of the rhetors was no mere theory, but was actually employed in court argument, is forcibly dem­onstrated by reference to the speeches of Q. Mucius Scaevola and L. Licinius Crassus, in the oft-quoted causa Curiana.

Cicero, Brutus LIL 194 - LIIL198

Who amongst the people who heard Q. Scaevola plead for M. Coponius in that case which 1 have mentioned, would have looked for or thought it possible to find anything more correct or more elegant or more complete? (195) When he attempted to prove that, since M. Curias had been appointed heir ‘if his ward should have died before he reachedpuberty, he could not be heir if the (expected) ward was never bom; what did he leave unsaid of the literal meaning of wills? what of the undent formulae? how carefully did he show the will would have been written, if he was to be heir even though a (posthumous) son had not been bom! (196) How insidious it would be to the people if the writing should be disregarded and the intention to be sought in mere opinion, and the writings of simple men be perverted by the interpretation of orators! (197) How often did he urge the authority of his father, who always had defended strict inter­pretation (illud ius)! How strong the necessity of preserving the ius civile....

13. For brief discussion of the Roman rhetorical systems, sec Himmclschcin, Symbolae Lenel 373, 385-91.

(53.197) Bui indeed, when Crassus, on the other side, began with the story of a spoiled youth who found an oar-lock while walking along the shore and conceived the idea of building a boat to it; wften he applied this to Scaevola who, from the 'oar-lock' of an argument, represented that a centumviral (court) decision upon the inheritance was warranted (in his favor).

Cf. Cic. de orat. 1.39.180, 1.57.242-44.

The Curian case involved the interpretation of the words of a testament. Shortly before his death, a testator, childless but counting on the birth of a posthumous son, named his posthumous child as heir, and in the e^entthe child died before reaching puberty (the age at which capacity to inherit was possible) named Μ. Curius as heir(substitutiopupillaris). No child was born, so that after the death of the testator, Μ. Coponius, the next of kin, sought to recover the inheritance from Μ. Curius, who had gained possession there­of. Q. Scaevola, the jurist, argued for Coponius that since no child had been born, the conditional entry of Curius was not fulfilled, and since no further heir was named, the will was invalid and his client succeeded by reason of in­testacy. Crassus, a leading orator,^{[1348] [1349] represented Curius, and argued that the intention of the testator was that Curius should be heir if the child was not. By clever argumentation, the centumviral court decided in favor of Cur­ius.}

Stroux saw in the causa Curiana only clear evidence of the extensive use of the status legalis known as verba-voluntas (or scriptum-sententia), the words versus the intention, Scaevola arguing for the strict interpretation of the words of the will, and Crassus defending the more liberal view that the intention of the testator was to prevail, but that it further demonstrated the contrast between the rhetors’ theory of interpretation and that of the old ius civile jurists, so ably represented by Scaevola.¹¹ Beselerand Levy early pointed out that the victory of intention did not mean its ultimate predomi­nance in this question from that time on, for the law was not finally settled until an imperial enactment by Marcus Aurelius and Verus.¹* The impact of the rhetorical opposition verba -voluntas upon the jurists from such cases as the causa Curiana is thoroughly discounted in a discussion by Wieacker.¹’ In the first place, it is not correct to say that it was the actual ‘intention’ of the testator that Curius should succeed if he had no son; he never had such an idea.

Ulpianus, Libra IV ad ediaum (D. 1.3.30)

Far a fraud on a statute is committed when something is done which it was intended should not be done, but was not actually forbidden. Fraud on a statute differs from transgression of a statute, just as speech differs from intention ( prjrov anb Siatvoiat).

Ulpianus, Libra III ad edictum (D. 50.16.6.1) The expression ‘according to the laws’ is to be taken to mean both according to the spirit of the laws as well as according to the words.

Brasiello, Studi Bonfante II 555 n.49, suggests this passage is in part inter­polated.

Paulus, Libro I ad Neratium (D. 32.25.1) When there is no ambiguity in the words, the question of intention ought not to be admitted.

Celsus, Libro XIX digestorum (D. 33.10.7.2)

Servius admits that the intention of the person who made the legacy ought to be considered, with respect to the category he was wont to refer those things fbe­queathed). If, however, one is accustomed to designate as household goods those things respecting which there is no question but that they should be in another class, as for example, silver service or cloaks and togas, it should not for that reason be thought that those things bequeathed are also included within house­hold goods. For the names ought not to be taken from the opinions of individuals, but from common usage. Tubero says this is not clear to him; for, he says,

16. Bcseler. SZ 47 (1927) 59 L; Levy, SZ 48 (1928) 675; cf. also Schulz, History 79 f; Gandolfi. Studi 288-94; Kaser, Rdm. Privairecht I 690 n. 51.

17. Wieacker, ‘The causa Curiana and contemporary Roman Jurisprudence’, ir. Jur. 2 (1967) 151-64, Cf, also the Italian version, Wieacker, Antologia 109-34.

18. Cf. also Gandolfi, loc. at., supra.

19. Wieacker, op. dr., 159-61.

of what value are names except to show the intent of the speaker? Indeed, I do not think that anyone would say something he did not intend especially if he used the name by which it was wont to be called; for we make use of the help of words. Besides, no one should be presumed to have said what he has not turned over in his mind. But, even though the judgment and authority of Tubero greatly move me, nevertheless I do not dissent from Servius, that one is considered not to have said anything because he did not use the proper name for it. Foreven though the intention of the speaker is preferable and weightier than his words, still no one is held to have said anything without speech; unless, perchance, those who cannot talk we consider have spoken by their gestures and certain sounds, that is, by inarticulate expression.

For conjectured interpolations, see Index Interp. II288, and add Himmel- schcm, SymbolaeLenel399. Riccobono,MelangesComilU359,considers the clause ‘For even though the intention - without speech’ is genuine.

Ulpianus, Libro XI ad legem luliam et Papiam (D. 37.14.17 pr.)

Set forth, supra, § 104,

Papinianus, Libro II responsorym (D. 50.16.219)

It has been held that, in agreements, the intention of the contracting parties is to be looked at rather than the words. Therefore, when municipal magistrates lease municipal property on the condition that it shall devolve to the heir of the person who leases it, the right of the heirs can also be transferred to legatees.

For interpolations see Index Interp. Ill 589. Levy, SZ 48 (1928) 674, and Balogh, Studi Bonfante IV 669 n.175, consider the passage genuine.

Stroux laid even more weight upon passages in the juristic writings which, he maintained, reflected the rhetorical status legales.¹⁶ The rhetorical sys­tem, he argued, penetrated into the jurists’ method of interpretation and provided, for the remainder of the classical era, a sounder and more rational method of construing legislative enactments and interpreting legal trans­actions than the earlier strict interpretation (see supra, § 133). The passages set forth above illustrate, according to Stroux, the utilization of the rhetori­cal status of verba-voluntas (scriptum-sententia) by the jurists.¹¹ Examples of other status legales which Stroux believed to have found among the jur­ists arc given in the earlier edition of this work?¹

The thesis of Stroux has continued to occupy the attention of students of

20. Stroux, Stanmam tar 33-46.

21. See also Hinunclschein, Symbolae Lenel 398-409.

22. Schiller, Texts and Commentary 295-301. Cf. also, Hinunclschein, Symbolae Lenel 409-22.

Roman law. Within the last two decades, relatively strong support has been tendered by Coing and Santa Cruz. The former tied rhetoric to dialectic and grammar as the factors which largely influenced the late republican jurists in evolving what may be termed a‘grammatical-logical’ method of interpre­tation.²¹ In a more recent work, however, Coing admits it is now disputed what significance the teachings of ancient rhetoric had upon the Roman law.²⁴ Santa Cruz laid stress upon the fact that the jurists underwent rhetori­cal eduction in their youth as a partial explanation of the incursion of the rhetorical theories of status into the jurists* interpretation of laws.¹⁵ Kaser, on the other hand, argued that the contact between rhetoric and jurispru­dence lasted but a short time, for the means used and the ends sought by orators and jurists were quite distinct. The trial lawyer, the orator, did not depend upon intuitive knowledge of the law, which was a mainstay of the handling of the law by the legal expert, the jurist.

In 1965 two dissertations were presented which treated of the methods employed in the interpretation of laws by the classical jurists, by Wesel and Vonglis.¹² Necessarily, both take postions vis-a-vis Stroux. Wesel pointed out that the only status legalis which gained favor with the jurists was scrip- tum-scntcntia (verba-voluntas). This, he contends was not a question of strict interpretation versus intention, but a restriction or even withdrawal of the scriptum in favor of the sententia; this is quite different from the rhetors’ scriptum et sententia, in which one party relies on the words, the other on the presumed intention.¹* Vonglis admits to a greater recognition of rhetorical ideas by the jurists than Wesel, but nowhere nearly as extensive as Stroux. He recognizes the rhetorical idea that the purpose of the legislation is to be sought in the words of the law, which is reflected in the refusal of jurists to restrict interpretation which is not expressly formulated in the text (D. 40.9. 12.1), and secondly, the refusal of the jurists to engage in extensive interpre­tation when there is no indication that such is contemplated in the text (D. 6.2.8).²* Further, Vonglis argues that the jurists, as weU as the rhetors make

23. Coing, Studi Arangio~Ruiz 1 365-89.

24. Coing, Juristische Methodenlehre (1972) II.

25. Santa Cruz, SZ 75 (1958) 91-115; cf. also, AHDE 27/28 (1957/58) 343-98.

26. Kaser, Methode 67 f.

27. Wesd, Zur Methode der Interpretation von Gesetzen im romischen Reda (Diss. Saar­

brücken 1965), published under the title, Rhetorische Statuslehre und Gesetzesauslegung der romischen Juristen [- Ann. Saraviensls_t 29] (1967), bibliog., 15-21. Vonglis, Sententia legis. Recherches sur 1'interpretation de kt loi dans la jurisprudence dassique Paris 1965), bibliog.,

213-17. Attention is called to a review, in English, of the two works by Stein, SDHI34 (1968) 446-51.

28. Wesel, Statuslehre 28-41.

29. Vonglis, Sententia legis 31-61.

use of the status of ratiocinatio, extension by analogy, even though the jurists employ a vocabulary reminiscent of the status scriptum - sentential⁰ The two dissertations demonstrate that the jurists moved far beyond the limits that Stroux had placed on the liberal interpretation of late republican and imperial times.

The most recent comments have not brought agreement on the problem. Wieackcr said, in 1967, ‘Stroux* notion of a steady influence of rhetoric on the mental discipline of the Roman jurist proves to be a phantom’.’¹ Bretone, in a review of Wesel’s book, concludes that the relation between the rhetorical theory of interpretation and Roman jurisprudence is less tenuous than Wescl appears to believe; Bretone calls for further study of single epochs, distinguishing individuals and cultural directions, to avoid taking both jurisprudence and rhetoric as abstract categories of fixed meaning?¹ Finally, in an address on the methods of Roman jurisprudence, Bund remarks that the extent of the development of the law by interpreta­tion on the part of the jurists had to be sought out and discovered by the jurists themselves; this could not be learned from the rhetors. But we might expect influence of rhetoric on the manner of argumentation.” Recently, Wieacker has reiterated his view that the rhetorical theory of interpretation had no meaning for the professional jurist?⁴

2. Problem Thinking anil Deductive Reasoning

§ 190 Paulus, Libra LIV ad ediaum (D. 41.2.1.2-16)

Moreover, we acquire possession in person. (3} A madman [uW a ward without his tutor's authority] cannot begin to possess since < he > [ rftey] is in contact with the thing through his body, for it is as if someone put something in the hand ofa sleeping person. But a ward with the authority of his guardian can begin to pos­sess. Indeed, Ofilius and Nerva filius say that a ward can begin to possess even without the authority of his guardian; for that possession is a matter of fact, not of law. opinion may be accepted where they are of an age which is capable

of understanding.] (4) If a husband gives possession to his wife by way of gift, most (jurists) think she can possess since a factual matter cannot be invali­dated by the civil law. [indeed, what does it avail to say that the woman does

30. Vonglis, op. tit., 143-63.

31. Wieacker, lr Jur. 2 (1967) 151, 164. In the Italian version: ‘un suggestive fantasma', Antotogia 134.

32. Bretone, Lobro 15(1969) 298, 310,

33. Bund, Studi t'oiferra 1 571, 578 f.

34. Wieacker, lura 20 (1969) 448, 469-75.

no! possess since the husband has lost possession as soon as he has decided not to possess?} (5) Also, we acquire possession through a slave or a son who is in his pot estas and in the case ofthings which they hold as peculium, even without know­ing it, as Sabinus and Cassius and lulianus have held, because they are considered to hold by our will, seeing that we have allowed them to have peculium. Hence, on a title relating to peculium, both an infant and a madman can acquire posses­sion and can gain ownership through usucapio, and so can the < estate > [Ë«>] if a slave in the inheritance buys. (6) Fe will also acquire possession through one whom we possess in good faith even though he be the slave of another, or a free man. If we possess the man in badfaith I do not think possession can be acquired by us through him, but neither will he acquire it for his (true) owner or for him­self. since he is possessed by another. (7) Through a slave owned in common we acquire as if through our own (slave), each co-owner (acquiring) the whole [ ifthe slave intends that he acquires for îòå], as in the acquisition of ownership. (8) We can possess through a slave in whom we have a usufruct, as we are wont to acquire through a slave’s labor. It does not matter that we are not in possession of the slave himself for we are not (in possession) of a son. (9) But the person through whom we wish to possess ought to be such who has the capacity of possession. (10) And therefore, if you have sent a mad slave to possess you are not considered to have taken possession. (11) But ifyou have sent a person below puberty to get possession, you will begin to possess, as a ward[at least with the authority of the lulor] acquires possession. < It is queried whether possession can be acquired through a woman whom we have in manu (marriage). > (12) For there is no doubt that you can obtain possesion through a female slave. (13) A ward can acquire possession through a slave whether above or below the age of puberty if the ward has [with the authority of the ÃØîã] ordered the slave to go intopossession. (14) Nerva filius says we cannot possess through a slave who is in flight (a runaway), in spite of its being decided that as long as he is not possessed by a third person he is possessed by us, and even if he be gained (in ownership) by usucapio mean­while. But this decision is based upon practical grounds, that the usucapio can be completed so long as no one has obtained possession of him. However, it is the opinion of Cassius and of lulianus that possession is acquired through such a slave, as through those (slaves) whom we have in a province. (15) lulianus says we cannot acquire possession through a slave actually given in pledge - in that he is held to be possessed by the debtor for one purpose only, namely, for usucapio - nor can the creditor, although he possesses him, because he (creditor) can acquire through him neither by stipulation or in any other manner. (16) The veteres (early jurists) held that we could not acquire through a hereditary slave something part of the same inheritance. Hence, it was discussed whether this rule ought to be ex­tended, for example, if several slaves have been bequeathed, whether through one the others could be possessed (for the legatee). The same (question) is dis­cussed ifthey have been bought or donated together. But the better opinion is that in these cases 7 am through one acquire possession of the rest.

Paulus, Libro LIT ad edictum (D. 1.3.14 = D. 50.17.141 pr.)

What has obtained force contrary to the policy of the law (ratio iuris) is not to be extended to analogous cases (ad consequent ias).

Paulus, Libro LIV ad edictum (D. 41.2.1.17-22)

If a slave has been bequeathed to one named heir for a part, the heir by virtue of the share which he has by bequest, will (through the slave} acquire possession of land in the inheritance. (18) The same is to be said if I shall have ordered a slave (owned) in common (with the deceased) to accept the inheritance since I acquire by virtue of my share (in him). (19) Those things which we have said only hold if they (slaves) themselves intend to acquire possession for us. For if you order your slave to possess and he enters into possession with the intention to acquire not for you but rather for Titius (third person), possession has not been acquired for you ]. (20) Possession is acquired for us through an agent, guardian or cura­tor. But when they have obtained possession in their own name, not with the intention that they have merely lent their service, they cannot acquire (posses­sion ) for us ]. Otherwise, if we say that possession is not acquired through those who take it in our name, the result will be that neither he will possess to whom the thing has been delivered, since he has not the intention of a possessor, nor he who has delivered it. since he has given up possession. (21) If I have ordered the vendor to deliver the thing to my agent, when the thing is there present. Priscus says it is held to have been delivered to me, and the same is true if I have ordered my debtor pay to another. For it is not necessary to take physical posses­sion, but that it can be done by sight and intention is proved by those things which because of the extent of their weight cannot be moved, as columns, these are con­sidered to have been delivered if the parties shall have consented. In the presence of the thing. Wine is held to have been delivered when the keys ofthe wine cellar shall have been delivered to the buyer. (22) Municipal officials can possess noth­ing themselves since altogether they cannot consent. Accordingly, they do not possess the forum and the basilica and things similar to these, but they use them in common. But Nerva filius says they can acquire and possess through a slave what he shall have acquired respecting his peculium. Some, however, hold the contrary because they do not possess the slaves themselves.

Conjectured interpolations generally accepted. The words within pointed brackets at the end of § 11 were supplied by Lend. See further, Stein, Regulae 58 f., on D. 41.2.1.16 and D. 1.3.14.

Cicero, Brutus XLI. 152-53. Set forth, supra, § 105.

In 1953 Viehweg published a brief monograph on the relation of ‘topic* to jurisprudence,¹ stressing the need for further attention to be paid to the art (techne) of problem-thinking (topica). Topical or problem thinking derives from the method of argumentation described by Aristotle in his Topica, and introduced to the Roman world by Cicero in a work with the same title. Topical thinking seeks to determine the ‘loci’ (topoi) centering about a problem, from which arguments may be drawn. The thinking pro­cess is both inductive and empirical. Viehweg contended that this method of thought was prevalent among the jurists, indeed, the major process which they employed. From the result reached in the single case (problem) the jurist sought the possible bases for its justification and then applied these premises to similar or dissimilar situations to reach the same or contrary determinations. Viehweg illustrated the prevalence of this way of thinking among the Roman jurists by analyzing a lengthy passage of Julian on the problem of usucapio (the acquisition of ownership by prescriptive posses­sion)? The jurist opens with the case of usucaption by a purchaser of the child of a slave woman who had been stolen. The purchaser was in good faith and met all the other requirements needed for gaining the ownership of the child, lulianus then proceeds to state that it is always true-which is generally held - that no one can alter the ground of his possession if he knows he is not possessing in good faith and intends to possess to make a gain. This somewhat abstract principle is followed by other cases in which the principle (topic) of good faith is involved. Subsequently, Julian introduces a new point of view, namely, a break in the possession. This again, is followed by instances illustrating this aspect of the problem. Schulz, earlier, had referred to a lengthy passage in Ulpian, on the problem of ‘killed’, to illustrate the case method (casuistic presentation) of the Roman jurists, another in­stance of topical thinking.⁹ And to open this section there are extracts from Paul on the persons capable of acquiring possession. Viehweg noted that the jurist put the problem, set forth context - which he did not attempt to justify - and proceeded to work within that context to reach his conclusions.^{[1350] [1351] [1352] [1353]}

Viehweg’s study was heralded by most scholars as a distinct contribution to the understanding of the development of the law by the jurists, and his view has continued to stimulate discussion in the decades since its appear­ance.^{[1354] [1355] [1356] But to an increasing extent the comment has become critical. Kaser has three reservations.* (1) It was not essential for jurisprudence that the individual discussions always trace back to general legal principles of such a kind (topoi). (2) The legal result which is reached by topical thinking can by no means dispense with deductive reasoning. (3) Systematic positions which are also reached in a casuistic fashioned legal system cannot be underesti­mated. Even more critical has been Horak, in a lengthy discussion, finding little of merit in Viehweg’s building up Aristotle’s method of argumentation into an ‘art of problem thinking* to be contrasted with conceptual, system­atic reasoning? Topical presentation, Horak believes, is a step backward in that it beclouds the attempt to distinguish between the legal decisions of the experts and the value judgments of legal policy. Wieacker agrees that Horak is correct in his view that Viehweg went too far in raising ’topic* to the status of a system - in contrast to that of deductive reasoning.· Further, he agrees that not all conclusions by induction are topical in character, and that the role of ‘topic’ is limited to the context of discovery. But Wieacker further warns that this does not exclude consideration of topical thinking for an analysis of the juristic process of argumentation or decision making. There is much to be said for the position that there is no clear division be­tween the context of discovery and that of justification in the Ro man jurists’ formation of the law.}

A recent extensive discussion, that by Bliihdom, goes so far as to say that Viehweg completely misunderstood the Topica of Aristotle? There is no attempt, in Aristotle, to 'develop an adequate theory of legal practice*, there is no 'art of problem-thinking’. On the contrary, Bliihdorn emphasizes, the Topica of Aristotle treats of no more than the method by which problemata (problems, double questions of contradictory import) are to be debated?' ’Neither the topoi nor the dialectic problems have the definition and func­tion in the Topica [of Aristotle] that Viehweg employs for building his theory.’¹¹ Waldstein has also raised serious criticism to the approach used by Viehweg. In three aspects, he says Viehweg is in error. (1) He misunder­stood the purpose of Aristotle’s Topica, which was merely a methodical introduction to argumentation. (2) He sought to distinguish a mathematical from a topical method of thinking, whereas logical method is implicit in both. (3) He failed to take account of the effect of the incomplete under-

6. Kaser, Methode 53.

7. Horak, Rationes 45-64.

8. Wieacker, review of Horak, Ration's, in SZ 88 (1970) 339, 341 f.

9. Bliihdorn, TR 38(1970) 269-314, particulady 303 ff.

10. Viehweg, Topik 2, 15.

11. Bliihdorn, op. di., 298 ff.

12. Bliihdorn, op. dt., 312; translation by the author.

standing of the sphere of Roman legal history.^u Whether Bliihdorn’s or Waldstein’s objections be justified or not, Viehweg’s views have penetrated so far into the discussion that problem-thinking would seem to be a major point of consideration for some time to come.¹⁴

I uLiANUs, Libro XXIX digestorum (D. 28.2.13.1)

There is a rule ( regula) of the ius civile by which it is established that an inherit­ance cannot be withdrawn; for which reason a slave ordered (in the testator’s will} to be made free and become his heir, although the master withdra ws the freedom in the same will, nevertheless has both his freedom and his inheritance.

Ulpianus, Libro XLIV ad Sabinum (D. 34.2.27.3)

One to whom a gold or silver piece has been bequeathed, if it be broken or bat­tered, it is not included therein. For Servius thought that a gold or silver piece was considered to be one we could suitably use; broken and battered silver could not be included in such a definition, but belonged (to the class) of un worked (silver).

Although recent discussion of Greek influence has largely centered upon the extent to which the Roman jurists relied upon the approach to legal thought which Vichweg has characterized as problem-thinking, there is also the possibility that the jurists had recourse to another Aristoteliammethod of reasoning, namely axiomatic thinking. The norms and concepts of a sys­tem are derived by logical deduction from a series of axioms and principles which are neither capable of nor require further explanation in that they are self-evident truths. Present-day continental law is an example of such a closed system of legal norms, logically deduced from general propositions in the Codes.¹⁵ Roman jurists, on the other hand, did not evolve such a legal system, even though deductive reasoning played a substantial role in the interpretative development of the law. Bretone charges that the effort of the jurists is no less scientific because of the failure to erect a legal ‘system ’. “ The jurists operated with logical devices distinct from those of moderns, and with different methods; this does not deprive their work of primary interest.

Earlier in this volume attention has been called to the role which regula (rule) played in the evolution of the Roman law (supra, § 105). According to Stein, once a proposition was recognized as a regula, consequences might

13. WaMstcin, Festgabe Herdlitczka 241-48.

14. Cf. Otte, ‘Zwanzig Jahrc Topik-Diskusrion: Ertrag und Aufgabcn', Hechlslhearu 1 (1970) 183-97.

15. Cf. Kaser, Methode 51 if.

16. Bretone. Labeo 1 (1955) 74-78.

be derived from it.” Such a regula is set forth in the Julian extract, above (D. 28.2.13 J). Where a testator attempted to revoke a gift of freedom in a testament in which he ordered his slave to be free and be his heir, the pur­ported revocation is of no effect. Martini would distinguish definitio from regula, with a considerable number of passages in the Digest in which the definition serves an ‘interpretative function’, as in D. 34.2.27.3, above.'·In other words, the definition is a principle from which consequences can be deduced.

In studying the methods of reasoning employed by the individual jurists, Seidl noted that in the reported decisions of Labeo, deductive reasoning was used in two classes of cases, and only two.¹’The first use was in the inter­pretation of a word or phrase in a testament; the second class was in cases where a clause of the edict of the praetor was in question. In the first instance, Labeo was following in the path of republican jurists. On the other hand, he appears to have been the first to employ logical deduction in the determination of the construction of the clauses of the edict. Seidl saw no evidence of axiomatic thinking anywhere else. In a subsequent study of Julian’s methods of reasoning - though these were difficult to determine in that usually no grounds for decision are given -Seidl found that the same characteristics as those of Labeo are to be observed. Julian follows the old tradition of deductively interpreting the phrases of a will in accord with verba, and not subjective intention, and he deduces the law which was evolved in the praetor’s court (ius honorarium) from the principles set forth in the edict.²⁰ Von LQbtow is perhaps even more positive in his position that deductive reasoning, in the sense of a systematic science, was almost entirely foreign to the Roman jurists?¹

The dependence of the Roman jurists upon the theoretical methods of argumentation or types of reasoning borrowed from Greek and Hellenistic sources and set forth in the handbooks of the Roman grammarians and rhetoricians seems, in the conclusions of modern scholars, not to have been crucial in the development of the law by the Roman jurists. Legal doctrine for the jurists was fashioned from case law. Whether this evolution was intui­tive, as Kaser claims?² or reasoned evaluation of conflicting interests, as Seidl maintains?¹ the sources are replete with all the types of reasoning for

17. Stein, Regular 95.

18. Cf. Martini, Defintzioni 83-86,95 f,, and passim.

19. Seidl, Studi Volterra 163-68.

20. Seidl, Festgabe wn Lubtow 215, 218-19.

21. von LQbtow, Festschrift Wenger I 224, 230 ff., and briefly, Volk 568 f.

22. Kaser, Methode 72 ff.

23. Seidl. Festgabe von Lubtow 215. 218 ff.

decision-making which modem legal thinkers are accustomed to employ.^[1357] The genius of the Roman classical jurists infashioninga legal system directed to meeting the changing needs of the times, free from dependence upon foreign (Greek or Hellenistic) ways of thinking, justifies the attention of all who would appreciate one of the great contributions of western culture, Roman law; students of Anglo-American law are particularly fortunate in having the opportunity of comparing the techniques and the mechanisms of development of two world legal systems.

A NOTE OF EXPLANATION

$ 191

The reader may have expected further chapters to treat of the sources of the law and the methods of legal development in the period of the Dominate (Absolute Empire), up to and including the reign of Justinian. Most text­books and legal histories do, indeed, deal with this period (284-565 A.D.), though often in more concise fashion than with the period of the classical law (200 B.C.-25O A.D.). Actually, the term ‘Roman law* has been applied to legal systems through virtually all the centuries from the foundation of city Rome to the close of the 19th century. As long as the writings of the Roman jurists of the classical epoch formed at least part of the content of any legal system, that of the Absolute Empire of the East or the West, during Justinian’s rule and of his successors of the Byzantine Empire, in the Roman- Germanic kingdoms, in the city-states and the nations to whom the Glossa­tors, the Commentators and even the Humanists provided legal doctrine, and in the countries of early modern times up to the enactment of their codes, the law might justifiably be said to be ‘Roman’. These successor legal systems depended to a greater or lesser degree upon the ancient juristic writ­ings, but no one of them actually bore any resemblance, either in the tech­niques or the mechanisms employed in the development of the law, to the Roman law of classical times.

During the post-classical and Justinianian period the state became su­preme, the sole organ of law-making as well as of administration. The jurists disappeared and the fragments of the older juristic writing which were gathered together by post-classical lawyers and law teachers constituted statements of principles, doctrine in French legal parlance. These epitomes and digests existed alongside and subordinate to the enactments of the emperors, known as leges? The compilation of these juristic texts was over­shadowed by private and official codification of the enactments of the em­perors. Competing with the state law was popular legal tradition, the ‘vulgar*

1. Among many, the introduction to the law of this period by Gaudemet, La formation du droit s&ulier et du droit de I gglise aux LV* et P siMes (1957), is excellent.

§ 191 law.* During this period, also, a new state process completely replaced the formulary procedure of the praetor’s court, and legal institutions of the Hellenistic East strongly permeated the substance of the classical law? All in all, the law of the post-classical era was an entirely new legal system, com­pletely foreign to the classical law in its evolution, and offering little of value to the student of legal systems on a par with his own.

The codification effort of Justinian has preserved for us a good portion of the writings of the classical jurists, in the Digest, as well as some of the enact­ments of the age of the Antonines and the Severi, in the Code of Justinian. The utilization of these portions of the Justinianian Corpus has been dealt with above, in chapter II.⁴ The Code does, indeed, present a valuable record of the social and economic, as well as legal, conditions during the 4th and Sth centuries of our era, but this reveals the workings of a semi-feudal so­ciety, as strange to the classical period as to our own. The Digest and the Codex were proclaimed by the emperor Justinian to be the law of the Em­pire, but in the opinion of the writer, this was far from true. It may be that these compilations played some role in practice in Byzantium and surround­ing territory during Justinian’s rule, but the evidence of early 6th century Egypt shows that the imperial court did not exercise jurisdiction in the field of private law in that province,* and that no legislation of the central bu­reaucracy was applied in Egypt in that area of thelaw.⁴The Roman lawofthe Digest and the Code, even in its interpolated form, was law-on-the-books, not law-in-action. The subsequent novel legislation of Justinian, the Novel- iae Leges, was on the other hand directed to the reform and supplementation of the current law, and in great part altered the legal doctrine which had been the heritage of the classical law.

It is for these reasons that a study of the methods and techniques of the Roman jurists and the means of development of the Roman law, in the true sense of that term, should not include a survey of the post-classical and Justinianian eras.

2. For basic treatment of the vulgar law, see the articles by Levy, Schriften I 161-320, and the two volumes: Levy, Wew Roman Vulgar Law. The Law of Property (1951), and WestrOmisches Vulgarrecht. Das Obligationenreeht (1956).

3. CL Jolowicz-Nicholas, Introduction chap. 28.

4. Particularly 14-15, supra.

5. Schiller, ’The Courts are No More', Studi Vdlterra I 469-502.

6. Schiller, ‘The fate of imperial legislation in late Byzantine Egypt’, Legal Thought in the United States of America Under Contemporary Pressures (1970) 41-60.