Introductory

As we have already seen, in the later republican period there emerged in Rome a group of jurists who practised in private law without being members of the pontifical college.

The main focus of their activities was the giving of opinions (responsa) on questions of law to magistrates, judges and parties at law. They were also engaged in drafting legal documents, such as contracts and wills, and in guiding litigants on matters of procedure. Of particular importance was their contribution to the development of the ius honorarium through the assistance which they gave to the praetors in drafting their edicts, and to judges in interpreting and applying the praetorian formulae. In formulating their responsa the jurists were guided by their knowledge of legal decisions and juristic opinions of the past. From this knowledge they would generalise and then apply the generalisation to the particular case. This process was probably often unconscious, but in the last century of the Republic we find certain jurists writing systematic treatises on various aspects of the law embodying such generalisations or abstractions. In this way the jurists enlarged the scope of Roman law in a significant fashion and created a systematic rendering of the rules and principles employed in the application of the law.^{^[950]}

By the close of the Republic the independent development of the ius honorarium had come to an end, as it was felt that the praetor should not change the edict but abide by the remedies and procedures that had evolved in the past. From that time, the further elaboration of the ius honorarium lay in the hands of the jurists. And since the jurists in their interpretations never treated the ius honorarium in isolation from the ius civile, a gradual amalgamation of the two bodies of law began to take place.

Thus, in time the old distinction between ius civile and ius honorarium disappeared and the whole body of legal materials incorporated in the juristic literature of the imperial period, whether derived from the ius civile or the ius honorarium, came to be regarded as a single body of law, referred to as 'ius' or the jurists' law.

The ius publice respondendi

In the closing years of the Republic the number of jurists practising in Rome greatly increased and, as in principle the opinions they gave all carried the same weight, it was difficult to tell with certainty which opinions should be relied upon. As a result, the practice of law was thrown into a state of confusion, which was exacerbated further by the large number of complex and often controversial statutes passed during this period. In response to this problem and in order to establish a certain indirect control over the jurists Augustus issued an ordinance by which he conferred upon the most distinguished jurists the right to publicly give responsa in the name of the emperor, i.e. the right of speaking with imperial authority {ius publice respondendi ex auctoritate principis)?⁹Initially the ius publice respondendi was granted only to jurists belonging to the senatorial class, but from the time of Tiberius jurists belonging to the ^{^[951]}

The Classical Period of Roman Law 291 equestrian class were also given this privilege.^{^[952]} In this way the important role of consultant on legal matters was confined to a relatively small circle of specially qualified experts of high social standing.^{^[953]} Jurists without this imperial licence were allowed to continue giving legal advice and judges were not in principle bound by the opinions of the jurists upon whom the ius respondendi had been conferred. In practice, however, it was very difficult for a judge to ignore the advice of a jurist whose responsa were backed by the authority of the emperor.^{^[954]} In the early second century AD Emperor Hadrian issued a rescriptum by which he conferred upon the opinions of the jurists enjoying the ius respondendi the full force of law, as long as these opinions were in harmony with each other.

If there was not unanimity among the jurists, the judge was free to choose the opinion that best suited the case at hand.^{^[955]} The emperor intended to make it clear beyond doubt that, where the authorised jurists agreed, their unanimous opinion had to be followed as binding. At the same time, however, Hadrian abandoned the practice of granting the ius respondendi to individual jurists. From that time opinions were given in the form of imperial rescripts, issued under the emperor's own direct authority. By the close of the second century AD the imperial edicts had become the chief source of legislation, corresponding to the leges and the edicts of the praetors of the republican period, while the responsa prudentium had been superseded by the rescripts of the emperors on legal and judicial matters.

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Source: Mousourakis George. The Historical and Institutional Context of Roman Law. Routledge,2003. — 480 p.. 2003

Introductory

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