INTRODUCTION

Jurisconsultorum genera distinguere aetatibus.

(i)

The history of Roman legal science, not of Roman-lawr-is-our subject, but, since one cannot treat ofTegalscience in complete abstraction from law, its sole external manifestation, we shall have recourse to Roman law for the purpose of illustration.

(ü)

We shall use the term ‘legal science’ in a wider meaning than the ordinary. Commonly it is confined to systematic thinking about actual law (legal dogmatics), to the exclusion, in particular, of the law-making processes. So at any rate it has been understood in previous accounts of Roman legal science, but the resulting defects of these accounts have proved that so narrow a conception of legal science is valueless to the historian. Our conception of ‘legal science' (or ‘jurisprudence’—we regard the terms as synonymous) em­braces every vocational occupation with the law, its making, appli­cation, exposition, and transmission. The term ‘vocation’ must not be restricted to activities directed to earning a livelihood or to some other economic purpose. In its origin, which is Christian,² it had no such connotation, and the concept of vocational occupa­tion not directed, or not necessarily directed, to economic ends is indispensable for a correct sociological analysis of the ancient world. Its essential implication is that of permanent dedication to, in contrast with occasional dilettante indulgence in, some definite sphere of activity. Such continuous occupation with a definite subject produces a specialized intimacy with it exceeding mere general acquaintance. The specialized knowledge thus produced, together with the activities directed to obtaining it, we call ‘science’.

Thus for us ‘legal science’, or ‘jurisprudence’, embraces every

¹ Cic.

² See ‘Profession’ and ‘Vocation’ in the O.E.D. Cf. Holl, ‘Die Gesch. des Wortes “Beruf” ’, SB Berlin, 1924, p. xxix; Ges. Aufsätze z. Kirchengesch. iii (1928), 189 ff., and thereon N. Paulus, Hist. fahrb. d. Giirresgesellsch. xlv. 308 ff; F. K. Mann, ‘Der Begriff des Berufes und die Rechtswissenschaft ’, Arch.f. Rechts· u. Wirtschafts­philosophie, xvi (1923), 355 ff.

4497.1 _B form of vocational activity in the sphere of law, and 'jurist’ covers all who dedicate themselves to such activities. For ex­ample, the classical iudex was not a jurist, or only per accidens: in Roman eyes professional knowledge of law was no part of his qualifications; he was the representative of common sense. On the other hand, the members of the imperial chancery who drafted Diocletian’s numerous rescripts were 'jurists’, though they neither held academic chairs nor wrote books, but preserved strict bureau­cratic anonymity. The rescripts, which represent their literary work, belong to ‘jurisprudence’ by as good a title as the responsa of the praefectus praetorio Papinian.

(iii)

Roman legal science is the science of Roman law within the framework of the Roman Empire. The idea of a Roman Empire embracing the whole Mediterranean world, eastern and western, remained a living reality¹ till the age of Justinian (a.d. 527-65). It survived the division of the Empire in a.d. 395, and even Theodoric’s Ostrogothic Empire was still part of the Roman? By destroying the Ostrogothic and Vandal Empire Justinian reunited the eastern and western territories of the Roman Empire, and this reunion, though it did not endure for long, was important as being the occasion of his legislation being introduced into Italy and con­sequently determining the character of European juristic civiliza­tion for centuries. The Empire came to an end when, after Jus­tinian’s death, the Lombards severed the greater part of Italy from it, but even then the idea of the imperium Romanum did not vanish: for long ages it sought realization, but in vain.

(iv)

The study of the history of Roman legal science begins with Humanism. But humanistic jurisprudence was fully occupied

> Gelzer, HZ cxxxv (1927), 173 ft. Albertoni, Per una esposizione del diritto bizantino (1927), 10. On periodization in general: E. Troeltsch, ‘Der Historismus u. seine Probleme ’, Ges. Schr. iii (1922), 700 ff., 730 ff.

² Mommsen, Schr. vi. 362 ff., 378. with the editing of the texts and the reconstruction of Roman law. Apart from the examination of bio-bibliographical questions,¹ research into the nature and development of Roman jurisprudence was simply non-existent. This was natural enough at the begin­ning, but there was no advance till so late as Gibbon and Savigny, under whose impulse a fresh start was made.² Jhering’s master­piece, his Geist des romischen Rechts,³ represents the highest point reached in this matter by nineteenth-century Romanists, but un­fortunately it was never completed. Nor was it followed up. The Romanists of the closing decades of the last century (Alibrandi, Pernice, Lend, Eisele, Ferrini, Gradenwitz), basing themselves on Mommsen’s works, especially thè editions of the sources made or inspired by him, sought chiefly to disentangle the classical law from the law of Justinian ; the Romanists of the twentieth cen­tury have followed their example. Indirectly these labours have added much to our knowledge of classical legal science, but the main interest has continued to be Roman law, not Roman legal science. Joers’s Romische Rechtswissenschaft zur Zeit der Republik was carried no farther than its first volume, and that did not reach even the period of Quintus Mucius.⁴

¹ Cf.

² Gibbon, Decline and Fall of the Roman Empire, chapter 44 (ed. Bury, iv. 441). This chapter was edited in German by Hugo : Eduard Gibbons hist. Übersicht des rom. Rechts, 1789. Savigny, Vom Beruf unsrer Zeitf. Gesetzgebung u. RW. (ed. 3, 1840), s. 4 ; Puchta, Cursus d. Instit. (ed. x, 1841), the sections on Roman jurisprudence.

³ Editions: see E. Landsberg, Gesch. d. deutschen RW. iii. 2, Notenband, 336;

appreciation : Textband, 792 ff..

* For more recent surveys of Roman jurisprudence see the text-books. Cf. especially the sections dealing with the subject in Krüger, Gesch. d. Quellen u. Lit. des. r. R. (ed. 2, 1912)—antiquated, but still indispensable; Bruns-Lenel, Gesch. d. Quellen des RR ; Bonfante, Storia delle fonti del. dir. ram. (1909) ; Kübler, Gesch.; Kunkel, ss. 13-21 ; Buckland, Manual; Textbook; Class. Rom. Law in Cam­bridge Ancient History, xi (1936), ch. xxi ; De Zulueta, ‘ The Development of Law under the Republic ’, Cambridge Ancient History, ix (1932), ch. xxi ; “Die Science of Law ’, in The Legacy of Rome (ed. by C. Bailey, 1923) ; Jolowicz, Introd. ; De Francisci, Storia ; Arangio-Ruiz, Storia ; Monier, Man. ; Hermesdorff, Schets der uitwendigegeschiedenes van het Romeinsche recht (1936), is inaccessible.

(v)

The task before us is clear. We must resolutely set aside purely biographical questions; we must concentrate on the history of the lawyer’s art to the exclusion of the history of its individual ex­ponents. The field of biography has already been harvested. The crop could not, from the nature of the case, be heavy; the per­sonalities of the Roman jurists are hidden from us for good and all. The biographies of the individual jurists, with their fragmentary personal details and bare catalogues of works, must be left in the background and the first place must be given to their mistress, Roman legal science herself. Our main concern is with the sociological structure of that science, its tendencies and methods. It must, however, be admitted that, as soon as one seriously attacks this subject, one is forced to recognize that only a very modest contribution to it is possible at the present time, because indispensable preparatory studies are either totally lacking or incomplete. For that matter, no work exists which presents the history of science in antiquity as a whole, and it is only in that setting that Roman legal science can be completely understood. But the desired preparatory studies will not be forthcoming, unless a preliminary survey of the subject as a whole, bare outline though it be, is attempted. ‘Aggrediar non tam perficiendi spe quam experiendi voluntate.’¹

1 Cic. Orator, i. 2.