JURISTIC ACTIVITY IN GENERAL

§ 100 Lay jurists became the successors to the pontiffs as the ‘knowledgeable ones’ in the law in the 3rd century B.C.¹ The laicization of the juristic activity, according to Frezza,¹ was the final step in the struggle of the plebeians to gain equal status with the patricians, and marked the total severance of legal institutions from the ancient bonds of religion.

Cicero, De officiis II. 19.65

Moreover, these efforts which are given not as charity but as services, these are conferred not only on the stale as a whole, but also upon individual citizens. To assist him in the law, to aid him with counsel, and to be available with this type of knowledge for as many as possible tends greatly towards increasing one’s in-

4. Schulz, History (trans, by de Zulueta, 1946; republished, with additions, 1953); Schulz, Geschichte (German original, 1961); Schulz, Storia (Italian trans,, ed- by Nocera, 1968),

5. Eg., Karlowa, Rechtsgeschichte 1 87-92; Krüger, Geschichte || 15, 18-27, 30; Kipp,

Geschichte 16-22; Kubier, Geschichte Ц 16, 32; Jolowicz, /л/гоЛеГюи 89 ft,384 ft; as well as monographs, such as Jors, Rechtswissenschaft, and Kreller, Problem,

6. The historiography of Roman juristic science from its early beginnings to 1956 is portrayed by Bretone, ‘La giurisprudenza romana ndla Jctteratura storico-giuridica', Atti Napoli 67 (1957) 1-33 [of reprint].

7. Orestano, j.v. Diritto romano, NND15 (19®) 1024, 1041 L; Kaser, Rechtsgeschichte 307 ff.; Iglesias, Derecho rom. 54 n.36,94 n.l 1.

1. Jors, Rechtswissenschaft 78 f.

2. Frezza, Storla 368 f.

fluence and esteem. Thus, among the many remarkable ideas of our ancestors was the high distinction which they accorded the knowledge and the interpretation of the ius civile. And even to this present unsettled period the leaders (prindpes J kept this in their own possession so that the prestige of this learning has departed with the distinction and positions of dignity, and this is the more deplorable in that it has happened while he (Servius Sulpicius Rufus} was alive, who in the knowledge (of law} would easily have surpassed all earlier (Jurists), and in esteem was their equal.

This type of effort is appreciated by many and is calculated to bind men to us by our services.

Cf. Kunkel, Herkunfi 38 f.

Cicero, Deoratore 111.33.133-34

Often, indeed, I have heard from my father and my father-in-law that our men who wished to excel in the renown of knowledge were wont to embrace all things which, indeed, our state then had learned. They called to mind Sextus Aelius : Manius Manillas, even, we have seen walking across the forum for it was a sign that one who did this gave the abundance of his counsel to all his fellow-citizens. In the old days persons resorted to them, while they were walking about or sitting at home in an arm-chair, not only to consult them concerning the ius civile, hut even about getting a girl married, purchasing land, cultivating a farm, indeed, all office or business. (134) Such was the wisdom of Publius &assus, that elder (of ours), and of Tiberius Coruncanius, and of Scipio, that most sagacious man, great-grandfather of my son-in-law. all of whom were chief pontiffs, that they were approached concerning all divine and human affairs: they projferred their counsel and their sincerity in the Senate and before the people and in thecauses of their friends both at home and in foreign service.

The pontifical monopoly of legal activity was broken by the publication of the formulae to be employed in actions (supra, § 57) and the public profession of the law by Tiberius Coruncanius (supra, § 58) in the first half of the 3rd century B.C. During the next century and a half, however, the profession of jurist - held, according to Kunkel,^J by members of the leading families of the state (principes civitatis) - was carried on by men who held some type of priestly office. Wieacker⁴ has recently argued that the jurists of the 2nd century were not nearly so homogeneous a group of noblemen as Kunkel had indicated. In addition to a relatively small number of members of patrician families, there were scions of plebeian families which had come into prominence, and even individuals who reached the highest status by their own efforts.

Wieacker also adduces evidence that the jurists of the

3. Kunkd, 41-49.

4. Wieacker, Festgabr von Ltibtow 184 ff.

2nd century B.C. were active in the political manoeuvres of the time? During the last century B.C. men of the equestrian rank, holding no priestly office come to the fore in the profession of jurist.* Whether of senatorial or equestrian rank, the activities pursued by these men learned in the law, or jurisconsults as they may be designated,⁷ were the same, encompassed in the catchphrase: cavere, agerc, respondere.

1. Cavere, Agere, Respondere

§ 101 Cicero, Deoruiore 1.48.212

However, if it be asked which one truly is to be termed a jurisconsult, /{Antonias} would say one who is learned in the lawsand in that custom which private persons employ in the state, and who is expert in responding (ad respondendum). in providing pleas (ad agendum}, and in prescribing forms (ad cavendum); and I would name Sextus Aeiius, Manias Manilius, Publius Mudus in this class.

Cicero, Pro Murena oratio IX. 19, IX.22

This Servius has followed with us the urban profession of giving legal answers (respondendi), of writing documents (scribendi), and of giving advice on forms (cavendi), a profession full of anxiety and chagrin. He studied the ius civile, he stayed up long at night, he labored, he helped many persons, he suffered with patience the stupidity of some, he endured arrogance and difficulties. He lived according to the will of others, not of his own. Great praise and welcome to mankind for a man to labor in that science that it may be advantageous to many.... (22) But let us return to a comparison of pursuits and professions. How can you doubt that distinction in military affairs brings much more dignity to a canvass for the consulship than prominence in the ius civile? You (Servius) keep watch at night so that yvw may respond (respondere} to your consultants; he (Murena} that he may arrive early at that which he aims with his army. You are aroused by the crowing of the cock, he by the sounds of the trumpet.

You frame (instituere) an action, he draws up his army in line of battle. You advise (cavere) lest your consultants be subject to attack, he lest cities and camps be taken.

Cicero, De oratore II.6.24

And so I (Crassus) said no more than I thought when 1 declared,' Scaevola, if no will is correctly made unless you shall have drafted it, all we citizens will come to you with our tablets and you alone will write the wills of all of us; but what

5. Wieacker, op. at., 202 ff.

6. Kunkel, op. at., 50-53.

7. During the classical epoch the terms iurisperiti and iurisconsulti were used interchangeably, Massei, 4(? 133 (1946) 48-64,

then’, I said, when will you conduct public affairs, when those of your friends, when your own? When, in a word, will you do nothing?’and I added to that, 'For that man is not free who is not sometimes doing nothing.'

Scaevola, Libro ill responsorum (D. 31.88.17) 'Lucius Titius, I wrote this, my will, without the (help of any) jurist.

CL testamentum P. Dasumi Tusci (Bruns, Fontes No. 117 = FIRA I No. 48] 123-24.

Through the centuries scholars have advanced diverse views respecting the nature of the activities of the jurists included by Cicero within the categories of cavere, agere and respondere.' Aid in drafting documents, advice in procedural matters, and response to questions of law probably reflect the majority view as to the meaning of the three terms? To some, there is little distinction between cavere and agere, and both are included within the concept of cautelary jurisprudence? To many, agere is limited to the aid provided the party in the selection of the formulae to be utilized in litigation.⁴ On the other hand, Wlassak emphasized that agere was the decisive role of the jurists in fashioning procedural formulae for the use of the judicial magistrate, a constant rejuvenation of the Jaw of actions until the date of the compilation of the praetor’s edict.^s Schulz, and other scholars, have preferred to describe the particular activities of the jurists without ascribing them specifically to one or the other of the spheres which Cicero named?

All this is discussed in a new study by Cancelli? With ahostof references to Cicero and other ancient writers - as well as early modern lexica - he would argue that cavere means ‘to watch out for, to take precautions, to advise’, the generic term for juristic activity.

In sum, he states? cautelary jurisprudence is twofold: literary, that is, writing books or drafting instruments and formulae, and practical, that is, responding to business queries or questions on procedural affairs, with answers to private persons, judges or magistrates (respondere), or giving advice about suing (agere) or aid in

1. Cancelli. Studi Volterra V (1971) 611, 612-25, quotes the definitions given by some thirty Romanists from Bach (1807) to Kaser (1967).

2. Schiller, Columbia L Rev 58 (1958) 1226 [ = American Experience 148]. Cf, also Kruger, Geschichte 53-55; Kipp, Getchichte 104; Weiss, GfwtdzUge 51 f; Dulckeit-Schwara, Rechtsgeschichte 157.

3. Jors, Reditswixsensdutft 83; Kunkel, Introduction 97.

4. Arangio-Ruiz, Storia 124.

5. Wlassak, Prozessformel 99. accord Pringsheim, Abhandlungen 1 98.

6. Schulz, History 95 f.; Kunkel, Introduction 97 f.; Kaser, Rechtsgeschidue 162 f.

7. Cancelli, ‘Per una revisione del “cavere” dei giurcconsulti rcpubblicani’. Studi Volterra V 611-45.

8. Cancelli, op. at,, 644 f.

court (cavcre in iure), in his responding and in his procedural help and in writing down an instrument, the jurist is exercising his own special faculty of cavere.

Whether the views of Cancelli will gain support remains to be seen, but at least attention has been directed to the actual content of cautelary jurisprudence rather than to what may be a superficial classification of tasks. Specific instances of matters in which jurists engaged may serve as illustrations. The jurist Aquilius Gallus invented the stipulatio Aquiliana, a device to bring about a novation of existing obligations by oral stipulation and then a discharge of the new obligation by oral release, acceptilatio.’ Again, Daube has called attention to a number of instances in the Digest in which republican jurists were constrained to explain how the slightest deviation in the formulation of a legal instrument would affect the result of the transaction which had been contemplated.^[602] ^{^[603] ^[604] Norr adduces from an opinion of the republican jurist Ofilius.}

quoted by Ulpian, an unsuccessful attempt to create a new type of imitative legal transaction.¹¹ Inthe aid which the jurist provided in procedural matters there are further instances. On the proposal of Aquilius Gallus, either as jurist or as praetor, an action of fraud (a° de dolo) was devised where no other action was available for fraudulent activity.^[605] ^{^[606] The praesumptio Muciana, a rebuttable presumption that property acquired by the wife during matrimony had been acquired from her husband, was named for the jurist Q. Mucius Scaevola, though Schulz says that the jurist ‘was only concerned to report the practice of the courts’.^,J These instances of the jurists’ creativity in the law by means of cautelary jurisprudence were largely the work of the early republican jurists. By the end of the republic this activity was left to lesser men,^[607] while the development of the law by the jurists during the Principate depended largely upon the giving of responsa directly to private parties engaged in litigation or to their attorneys, to magistrates, or to judges in the course of a trial.
Cicero, Pro Murena oratio IV.9.
For if you (Servius Sulpiaus. a jurist) think it necessary to respond even to the opponents ofyour friends when they are consulting you upon a legal question,.,.
For a definition of responsa, see also Isid. Etymol. 5.14.
Valerius maximus, Facta et dicta memorabilium VIII. 12.1
Q. Scaevola (the jurist), that most illustrious and infallible explainer of laws, whenever he was consulted on the law relating to confiscation, would send his consultants to Furius and Cascellius (jurists) because they were specialists in this field of knowledge.
Quintilianus, Institutio oratorio XII.3.7
Those laws which are written or established by the custom ofthe state present no difficulty, since they call for knowledge, not reasoning. But those matters which are explained in the response of the jurists are /bunded either upon the interpretation of words or on the distinction between right and wrong.
Cicero, Topica XII.51
‘This is not for us: to Cicero", our Gallus (jurist) used to say when someone brought to him a case that involved a question of fact.
For aid in questions of law, See D. 22.6.9.3, infra, § 103.
Cicero, Topica X.44
Within the same topic of similarity comes the citing of precedents, as Crassus in the Curian case used many precedents ofmen who, having been named as heirs in the event of a son being born within ten months (after the death of the testator) and who died before gaining majority, had taken the inheritance. Such citation cf precedents was effective, and you jurists make frequent use of this in responding.
Cicero, De oratore 1.45.198
And many (jurists) who. when they had gained distinction for themselves on the strength of their ability, brought it about that, in responding on the law. they prevailed rather more by their reputation (auctoritas) than by their very talents.
Suetonius, De vita Caesarum IV.34.2
Also, with respect to consulting (jurists) on the law, as though he (Caligula) would abolish all use of their knowledge. he often swore. By Hercules, he would see to it that they could not respond to anything beyond him (his will).
Ulpianus, Libro XI ad edictum (D. 4.4.3.1)
If one makes a contract with a minor and the contract takes effect at some time after the minor reaches majority, do we look at the beginning of the transaction or at the end? The rule is. and it has been so established, that if one after reaching full age confirms that which he did while a minor, there is no case for restitutio in integrum. Accordingly, not inelegantly, Celsus in Book XI of Epistulaeand Book II Digesta discusses this, with respect to a situation as to which he was consulted by Flavius Respectus. the praetor. A person under twenty-five years, let us say aged t wenty-four, had commencedproceedings in an action on guardianship against the heir of his guardian; and what happened then was that the action against the heir was dismissed, as it was shown that the plaintiff had, before the trial was finished, already reached the full majority of twenty-five years, whereupon a restitutio in integrum was asked for. Upon this Celsus gave his opinion to Respectus that the former minor ought not, as a matter of course, get restitutio in integrum, for it ought only begivenifit were shown that the defendant had cleverly contrived to get himself discharged from the action at a time when the plaintiff had reachedfull age; ‘and it was not", he said, ‘only on the last day oft he trial that the minor was deceived, but the whole affair was such that he should be discharged from the action after the plaintiff reached majority. *
Imperator Alexander Augustus sabinae (C. S.37.4)(222 A.D.) According to the responsum of Domitius Ulpianus, praefect of the grain supply, jurisconsult, my friend, a woman who stipulated that she be able, when she died, to leave the half ofher dowry to whom she wished, is considered to have stipulated the return of the half of the dowry to herself when she died.
The foremost activity of the jurists from early times to the end of the classical epoch was that of providing responses (responsa) to private persons or their attorneys, to magistrate or to judge-juror on questions of law, prior to or during a trial.^[608] ^{^[609] ^[610] ^[611] The practice stemmed from similar activity on the part of the pontiffs, and actually there was no sharp break in the shift from pontificial to secular jurisprudence.¹* The responsa of the pontiffs, however, based on earlier opinions, were binding precedents whereas those framed by lay jurists were directed to the particular case with no binding force as precedent.'⁷ The effectiveness of the responsa of the jurists of the republic depended largely upon the reputation (auctoritas prudentium) which the individual jurist had acquired.” At the start, this reputation stemmed in large part from the participation of the jurist in public affairs, but in the 1st century B.C. the jurist acquired his position of repute (aucto- ritas) if his opinions on legal questions in the private law gained general acceptance. '* The responses of the jurists to the queries by prospective party litigants were given orally, in the late republic reduced to witnessed written documents to be presented in court.^M There was no obligation on the part of a party to consult a jurist, but if one were available, the defence of igno· rance of the law (ignorantia iuris) could not be advanced if the jurist had not been sought out.^[612] ^{^[613] ^[614]}}
The responsa of jurists to questions of law put by the attorneys of the parties are frequently mentioned in passages in the Digest,^[615] and the jurists were likewise available to magistrate and judge-juror for legal problems which arose during the course of the trial.^[616]’ At the beginning of the Princi- pate the juristic profession received imperial recongition^[617] and the practice of furnishing responsa continued to flourish. The answers began to be collected and published with ever more frequency, becoming one of the most important types of legal writing of the jurists,^[618] ^{^[619] Not until the end of the Principate did the contribution of responsa - along with the profession of jurist - cease to be a significant element in the evolution of the Roman law.¹⁴}
2. The Legal Profession
102 Although the jurists were without doubt the most significant element of the legal profession by reason of their contribution to the development of the Roman law, there are other segments of the profession to which attention should be called. The law-jobs which are noted in the classical era have been variously grouped by 19th century scholars.³ Recently, Kunkel has touched upon most of the legal tasks which were performed, primarily dealing with them from the relation of the jurisconsults to other members of the legal profession? In this volume texts have been selected to portray the diversity of activities and posts in which legal training might be involved.
Suetonius, De vita Caesarum VI. 32.2 (Nero)
Then, he (Nero) seized for the treasury the estates of those who had not bequeathed enough to the emperor, and did not leave unpunished those students of the law (studiosi iuris) who had written or dictated such wills.
Ulpianus, Libro X de officio proconsulis (D. 48.19.9.4-5)
Sometimes, the interdiction (by the governor) extends not to advocacy, but to the court. There is more involved in being interdicted from the court than from advocacy, in that the undertaking of every kind of judicial business is not permitted. Such interdiction is wont to be imposed upon students of the law (studiosi iuris) or attorneys (advocati) or notaries (tabelliones) or practitioners (pragmatici). (5) It is wont to forbid them to draft any kind of instrument at all or take testimony of witnesses.
Qutntiuanus, Institutio oratorio XII.3.3-4
What, perchance, if he (orator) has no expert in the law at hand?... (4) lam not unaware of our custom nor have I forgotten those who, as it were, sit by gun-chests and provide weapons for the pleaders; and I know that the Greeks habitually did likewise, whence the name of pragmatici was bestowed on such persons.
Juvenalis, Satirae VII. 122-23
If you (trial lawyer) have had four cases, you might get one gold piece for them all; but by agreement the solicitors (pragmatici) take their cut.
Paulus, Libro singular! de officio adsessorum (D. 1.22.1)
The whole office ofan assessor - in which the students oflaw are engaged in these activities - is exercised pretty much in these cases: judicial inquiries, motions, libels, (imperial) edicta, decreta and epistulae.
On this passage, Behrens, SZ 86 (1969) 192, 214 f.
Paulus, Libro III ad edictum (D. 2.2.2)
By this edict what has to be punished is wrongful act (dolus) by the person exercising jurisdiction. If the law has been laid down otherwise than it should have been, due to lack of knowledge on the part of the assessor, the consequences ought to fall not on the magistrate (praetor), but on the assessor himself
On this passage, Behrends, op. dr., 201 ff.
2. Kunkd, Herkunft 263-70, 318-65.
In the lower echelon of the legal profession there were persons who had a smattering of legal knowledge together with skill in drafting documents, or experience in litigating the ordinary run of commercial suits. It will be recalled that in the course of the late republic and during the Principate the jurists ceased to give help in the preparation of legal instruments, and the practice fell into the hands of private notaries (tabelliones)? Though legal study was not a requisite, many of the notaries ‘made a living out of their modest legal lore by drafting legal documents’.^[620] ^{^[621] ^[622] ^[623] ^[624] ^[625] ^[626] Another occupation, more directly concerned with the law, was that of the poorly paid solicitors, termed pragmatici from the Greek, who aided the trial attorneys in the preparation of the case? There is some evidence that these practitioners handled the ordinary run of cases on their own?}
Among the participants in both of the above occupations are to be found students of the law (studiosi iuris), young men on their way to becoming full-fledged jurisconsults. Frequently the young student of a recognized jurist became the legal secretary (assessor) for the praetor or an imperial official.’ The assessor, as the legal expert assisting the praetor, was not a step in the career of public magistracy, but was an unpaid secretary, appointed by the praetor himself.· As the final passage of Paul shows, the assessor was liable to suit if a legal norm had been proposed by him-and accepted by the judicial magistrate-if the proposed norm was based on lack of legal knowledge (imprudentia).’ The assessor attached to a provincial official was charged with administrative as well as legal duties.^[627] ^{^[628] Finally, from the time of Antonius Pius on, students of the law, and consequently the assessores, were granted an action to recover the allowances for living expenses which customarily were awarded to them.¹¹ For the rest, reference is made to the study by Behrends to which attention has been called.^[629]}
Cicero, De oratore 1.55.236
For if you would say that one who is a jurisconsult is himselfan orator, and also one who is an orator is at the same time a jurisconsult, you would declare two
§ 102 excellent sciences to be equal to each other and sharers of the same dignity. Now, however, you admit that one can be a jurisconsult without that eloquence which we are looking for, and that there have been many such. You deny one can be an orator unless he has acquired that science (law). So to you a jurisconsult is nothing, indeed, but a cautionate and acute pettifogger, an adviser of act ions, a singer of formulae, a critic of syllables. But because often the orator employs the aid of the law in his cases. therefore you have joined that knowledge of law to eloquence, as a maidservant and lackey.
Cicero, Pro Murena oratio XIII.29
Wherefore not only is the glory of a military career to be preferred to your (Servius Sulpicius, jurist) formulae and act ions, but even the practice of speaking far and away surpasses your profession in (preferment of) office. Accordingly, it seems to me that many men, at the start, preferred this profession (of oratory ) but afterwards, when they could not master it. they have sunk above all to yours (jurisconsult).
Cicero, De oratore 1.37.168-69
Within the last few days while we (Crassus) were sitting on the bench ofour friend Q. Pompeius, urban praetor, did not one of the skilled advocates request, on behalf of a person from whom a debt was claimed, that the ancient and familiar affirmative defense be given, for that sum which had already accrued', not understanding that this clause had been introducedfor the benefit of the plaintiff.... (169) Can anything more unseemly be done or be suggested than that the one who has undertaken... to help out in the controversies and cases of his friends... so blunder in the most insignificant and trifling matters as to arouse the pity of some men and the laughter of others?
Quwhlianus, Institutio oratorio XII. 3.1
Knowledge of the civil law is required of such a man (orator) and of the customs and moral obligations of the state in which he takes part. For how will he be able to be an adviser in public or private councils if he be ignorant of so many matters by which the state is defined? In what way has he truthfully called himself a pleader of cases ifhe has to go to othersfor what is all-important in the trials, hardly dissimilar from those who read the writings of the poets?
Cf. also Quint Inst. 12.3.9-10.
Ulpianus, Libro VIII de omnibus tribunalibus (D. 50.13.1.10)
The judge ought to be directed, with respect to the fees of advocates, that he take into account the extent of the controversy and the ability of the advocate and the usage of the court and the judgment in which there had been suit, to fix the amount, yet not exceed the extent of the permitted fee. This is set forth in a rescript of our emperor (Caracalla) and his father (Septimius Severus).
The trial lawyer in Rome of the republican era was the orator (rhetor or patronus), an activity carried on by the advocatus or causidicus (pleader) during the Principate.” The members of this profession were trained in rhetoric, and though they are to be included within the legal profession, are quite distinct from the jurists.^[630] ^{^[631] Cicero, during the republic, and the younger Pliny, in the Principate, are representative of the group,^[632] appearing in important criminal as well as civil cases. The orator or advocate may well have been exposed to law study, but his knowledge of the law itself was usually limited.^[633] ^{^[634] ^[635] ^[636] There were rhetors who argued in favor of legal education,” but normally the trial pleader turned to the jurist or the practitioner (pragmaticus) for his briefing on the law of the case. The orator-ifwe are to judge from Cicero and Quintilian - looked down upon the profession of jurist as inferior to his own, though there are instances where a jurist began his career as an orator. *· It may be noted that, in contrast to the jurist, the rhetor or advocate received a fee for the services he performed.”}}
In addition to the professional trial lawyer, attention should be called to two other categories of persons who might engage in advocacy, the general agent (procurator omnium return) and the substitute litigant (cognitor). Wealthy Romans frequently hired general agents to take care of all their business affairs,^[637] and it is quite natural that persons trained in the law should be included within this group.^[638] ^{^[639] The jurist Aufidius Chius held such a post.²¹ The emperor Macrinus had once been general agent of the praetorian praefecl Plautianus, having attracted the latter's attention while an advocate.^[640] The law early provided that a substitute (cognitor) could}
§ 102 pursue a claim before the judicial magistrate inplaceoftheactuaiclaimant,²⁴ and this gave rise to a rather shyster practice, if we can judge from literary references.” Perhaps this calling coincided with that of advocacy in late classical times.²*
At the highest level of the legal profession stood the jurisconsult. His professional functions have been dealt with (§.'01: agerc, cavere, respondere) and, later in this chapter, attention will be turned to his role as author of law books and teacher in legal education. The sources reveal, further, that the jurist might be named judge-juror (iudex) in a particular case.²¹ During the republic the jurist frequently served as praetor and/or consul in the course of a regular magisterial career.²¹ Then, with the development of the so-called procuratorian career during the Principate, we find the jurists occupying many official posts, and eventually, in the closing decades of the early empire, holding the highest office in the state below that of emperor, that of praetorian praefect.²*
Cicero, Topica XVII.65
For private actions involving important issues, indeed, seem to me to depend on the wisdom of the jurisconsults. For they frequently attend (trials) and are turned to in council (consilium) and furnish the weapons to advocates who choose them seeking their knowledge. In all suits, then.... they are bound to be ready (with their advice).
Plinius, Epistulae 1.22.6, VI. 15.3
In fact none of those who put on a pursuit of knowledge by their personal mien can readily be compared with such a man (as the jurist Arista). He does not attend gymnasia or arcades nor does he spend his own or others ’ leisure with long disputations, but is occupied with public life and business, helping many by his advice and more in council (consilium) (15.3) To be sure, Priscus (thejurist) is somewhat eccentric, but he takes part in public business, he is called into council (consilium) and responds publicly on the civil law.
On these passages, Kunkel, Herkunft 319 f.
The professional activity of the jurist is rather well characterized, in closing, by his rather regular attendance, both in the republic and in the
24. See generally. Kaser. Zivtlprozessrechl 153 ff.. with further bibliography.
25. Cic. pro Caec. 5.14; Hor. Sat. 2.5.38; Suet. 2.1.
26. Cf. Kunkel, fterkunft 330 f.
27. Reif. by Jdra. Rechtswissensduift 239 n.4.
28. For the magistracies held by particular jurists, see Kunkel, Herktuft, passim, and infra. $$ 109-31.
29. Further treatment of the relation of the jurists to the emperor, infra, §§ 107, 161-62.
Principate, at the court sessions of praetor and iudcx, and» later, at the judicial hearings before imperial officials and the emperor himself?⁰ The presence of a jurist throughout the course of a trial as a member of an advisory body (consilium) was largely the result of the fact that neither praetor nor iudex, nor, for the most part, the state officials of the Principate, were legally trained. The culmination of this aspect of the jurists’ activity was the establishment of the council of the emperor (consilium principis)?'
B.}

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Source: Schiller A.A.. Roman Law: Mechanisms of Development. Mouton Publishers,1978. — 606 p.. 1978

JURISTIC ACTIVITY IN GENERAL

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