INTRODUCTION
From the close of the Second Punic War Roman legal science entered on a new phase which should be called ‘the Hellenistic period of Roman jurisprudence’. In no period known to us was Roman legal science entirely exempt from Greek influence, but it was only in the last two centuries of the Republic that it came to terms with the specific intellectual movement which we call ‘Hellenism’.1 There was no sudden revolution; the change took place with true Roman caution and deliberation.
But gone were the days when honest Sextus Aelius could shrug his shoulders in humorous contempt of the new learning. The last two centuries of the Republic are the period in which Roman legal science, and indeed Roman civilization as a whole, was faced with the necessity of determining its relations with Hellenism. We shall obtain no comprehensive view of this process if, like the so-called ‘school of elegant Jurisprudence’, we are content to inquire in what particulars this or that juristic doctrine was derived from Greek philosophy and rhetoric. What we have to establish, in its totality and complexity, is the attitude of Roman jurisprudence towards Hellenism. In this matter what Roman jurisprudence took over from Hellenism was quite as important as what it rejected or modified. The Hellenistic wave arrived in Rome at a happy moment. On the one hand, Roman legal science was sufficiently developed not to be overwhelmed by Greek influences; on the other hand, it was still young and far from being petrified, capable of being and prepared to be stimulated and moulded by Greek thought/ Roman legal science contained in itself great potentialities (δυνάμεις), but to release them and bring them into activity (ενεργεια) there was needed’ See Note D, p..
2 Caesar in Sallust, Cat.
51. 37: ‘neque maioribus nostris superbia obstabat, quo minus aliena instituta, si modo proba erant, imitarentur... quod ubique apud socios aut hostes idoneum videbatur, cum summo studio domi exequebantur: imitari quam invidere bonis malebant.’ Polyb. 6. 25: Άγαβο'ι γάρ, « καί rives inpoi, μίταλαβίΐν ΐθη καί ζηλώσαι τδ βίλτιον και 'Ρωμαίοι.the solvent energy of Greek forms. The immensely important result was nothing less than that Roman legal science developed into a professional science of the Hellenistic type, within the framework of Hellenistic science. This new science was not a commixtio of Greek and Roman elements but an organic unity. The formative discipline of Greece enabled the natural and national energy of the Roman science to reveal itself: doctrinavimpromovitinsitam.1 The establishment of the Principate by Augustus marks the end of Hellenism2 and equally of this period when in legal science a reaction,3 observable in other fields also, especially in the plastic arts, set in, paving the way to classical jurisprudence.
1 Horace, Carm. 4. 4. 33.
2 So Wilamowitz, Lc.; Reden u. Vorträge, 2 (4 ed. 1926), 153 ff. Dissent by Otto, I.c. 95. But Otto agrees that a reaction set in under Augustus, so that the dispute is really terminological. Naturally Greek influence continued under the Empire. Thus, die science of Roman law constituted in the Hellenistic period went on.
3 Schulz, 125.
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