INTRODUCTORY NOTE
§ 181 The treatment of the sources and the techniques in the period of the classical Roman law cannot be concluded without some consideration of the extent to which the Roman jurists departed from their customary interest in the every-day practice of the law and turned their attention to theoretical considerations and abstract generalizations.
It must be stressed that such effort was quite limited, and what occurred was due largely to the so- called school jurists and the writers of the late classical epoch; indeed, many scholars hold that a great deal of the speculation about the law is to be attributed to post-classical and Justinianian interpolation.1 Nevertheless there exists some authentic classical juristic writing which is devoted to a study of the nature of law, its classification and even its ultimate purpose. Further, it is just these fragments of classical juristic writing that were seized upon by the compilers of the Justinianian Digest-often taken out of their context - to serve as an introduction to the substantive sphere of the law, as well as to provide a conclusion thereto? These same passages were later employed by medieval and early modern political theorists and legal philosophers in their contributions to the development of political and legal thought through the centuries. On a different level, modem scholarshave attempted to determine to what extent Greek thinking, particularly philosophy, grammar and rhetoric, has influenced Roman legal thinking and is reflected in the writing of the jurists.All this encompasses a very broad scope of discussion and, understandably, only a very few topics can be included herein. This chapter includes,
!. Perozzi. Istiluzioni 1 73 n.3, 91 n.2. 97 n.2, 100 n.3; Albertario, Rend. Lombardo 57 (1924) 169 IT.; Schulz, History 135, 137.
2. D. 1.1; De iustitia ct iure (On justice and law); D. 1.3: De legibus senatusque consultis et longa consuetudine (On statutes and resolutions of the Senate and long usage). D. 50.16: De verborum significatione (On the meaning of words); D. 50.17: De diversis regulis Juris antiqui (On diverse rules of the old law).
first, a treatment of some of the more prominent insights into the nature of law. specifically, the theoretical meaning of ius gentium, the varied connotations of aequitas and bonum et aequum, and the significance of ius naturale. A second topic is the concept of customary law. Two themes are then dealt with in the Geld of the possible influence of Greek thought, namely, the rhetorical theory of interpretation and the relative significance of topical (problem) versus axiomatic (logical) thinking in the development of the Roman law. There are many other topics which might be considered, but bibliographical references to some of the more important must suffice?
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