3. JURISTIC INTERPRETATION

All law requires interpretation. The need is most obvious where, as in a statute or Edict or a modern Code, the law is embodied in specific words, but it is none the less present where it is not.

Interpretatio prudentium. The Roman jurists have no exact parallel in the modern world. In the formative years of the later Republic they were men from the leading families who undertook the interpretation of the law as part of their contribution to public life. They were not professional men in our sense: they received no remuneration and the law was only one facet of their public career; they were statesmen who were learned in the law. In the closing years of the Republic and thereafter there was some widening of the class from which they came and a few, even of the most eminent, seem to have taken no other part in public life than as jurists, but their essential character and cast of mind remained the same. They were men of affairs, interested in practical rather than theoretical questions, and yet not im­mersed like the modern professional lawyer in the details of daily practice. To English eyes they have some of the charac­teristics of both the academic and the practising lawyer. For on the one hand they built up a great legal literature and also undertook what legal teaching there was, and on the other hand they influenced the practice of the law at every point.

The jurist as we have described him was a product of Republican political and social life, and he could not remain wholly unaffected as the forms of Republican government were cast aside and the new bureaucratic structure of the Empire emerged. He retained his eminence in public life, but was now more and more commonly to be found among the highest officials in the Emperor’s service. Of this new type of imperial jurist, who begins to appear towards the end of the first century a.d., Javolenus¹ provides an example. As well as passing in the old way through the Republican magistracies to the consulship, he held command successively of two legions, was the leading judicial official in Britain, and became subsequently Governor of Upper Germany, Syria, and finally Africa. Thereafter he remained in Rome as a member of the Emperor’s Council under Trajan. At the same time, following in the old tradition of the jurists, he wrote, advised, and taught. One of his pupils, even more distinguished than he, both in the law and in public life, was Julian, who has already been mentioned.² Born in what is now Tunisia, he held a great variety of official positions: he served on the official staff of Hadrian (and was, it is recorded, given double the usual salary because of his learning), was in

¹      L.

²                                                                                   Salvius lulianus; see above, p. 22.

charge of the state treasury and of the military treasury, was Praetor and Consul (148), and subsequently governor of Lower Germany, Nearer Spain, and Africa. He was a member of the Imperial Council in the reigns of Hadrian, Antoninus Pius, and Marcus Aurelius and Lucius Verus.

The great jurists of the early third century a.d., to whom we owe most of the surviving legal literature, were even closer to the centre of imperial authority. Papinian,¹ often considered the greatest of the Roman jurists, is first heard of as head of the department of the imperial chancery which dealt with petitions by individuals, and from a.d. 203 until a.d. 212, when he was put to death by Caracalla, he held the most powerful appoint­ment in the Empire, that of Prefect of the Praetorian Guard.^{[8] [9]} The careers of Paul and Ulpian^[10] were similar. Both held the Prefectship of the Praetorian Guard under Alexander Severus (222-35), Ulpian being murdered by his own troops in 223.

Not long after this the long line of jurists ends. For half a century the very existence of the Empire is at stake, and when from this period the Dominate emerges, there is no room for individual interpretatio, even by jurists as identified with the Emperor’s service as were Papinian, Ulpian, and Paul.

We have mentioned only a handful of the greatest names. There were of course others, but the number is not large. In the two and a half centuries between the advent of the Principate and the disappearance of the last of the jurists we hear of only some seventy, and for nearly half of these there is little that survives but a name. Indeed the circle of jurists of the type we have been describing must always have been small. In their writings they continually refer to each other’s opinions, and it is unlikely that many have escaped this network of mutual citation. On the other hand, so small a number engaged for the most part so fully in public life can have supplied only a small part of the legal advice which was needed in so large a city as imperial Rome. There must have been many lesser lawyers, the attorneys and notaries of the ancient world, who did not aspire to the authori­tative and creative position of a jurist, but earned a living in the daily practice of law both in Rome and in the provinces. We are thus faced with the question whether there was any formal distinction between the jurist as we have described him and these lesser practitioners.

Ius respondendi. We have seen that one of the functions of the jurists was to give opinions on questions of law submitted to them. How far were such opinions {responsa) authoritative? How far were they binding on a iudex'? This is one of the unsolved problems of Roman law. Certainly in the Republic the matter was unregulated: a iudex was free to make his own assessment of the weight to be given to a responsum, though in doing so he would no doubt take account of the reputation of the jurist who gave it. In a passage preserved in the Digest,¹ however, Pom­ponius, a jurist of the reign of Hadrian, tells us that Augus­tus, in order to give greater authority to the law, conferred on some jurists the privilege of giving responsa with the Emperor’s authority, and that this practice was continued by his successors.

conflict of juristic opinion. Hadrian, apparently, had little sym­pathy with such scruples: Gaius refers to a rescript of his which de­clared that ifjuristic opinion was unanimousit had the forceof lex, but that otherwise the iudex was free to choose. This must have been cold comfort to the inquirer, since the most difficult questions in law are precisely those over which learned opinion is likelyto differ.

We are ignorant not only of the legal effect of the ius respondendi, but also of the names of the jurists who enjoyed the privilege, and how long its grant continued. One might expect it to be the mark of a particular jurist’s authority, and yet it is never mentioned as such in all the surviving literature, and we are directly informed of its grant to only one jurist, Sabinus.¹ Nor can we certainly say that it continued to be granted after the reign of Hadrian.

The Sabinian and Proculian schools. In the Republic there was no formal legal education. A young man learned his law by, as we should say, ‘reading in chambers’. He attached himself to a jurist and, by accompanying him in his daily practice and by discussing with him the problems which emerged, he worked himself into a practical knowledge of the law. This practical oral tradition remained a feature of the Roman law, but in the Empire there emerge two ‘schools’ to which most if not all of the leading jurists of.the first two centuries of the Empire seem to have belonged. They were founded, we are told, by two leading jurists of the reign of Augustus, Capito and Labeo, but took their names from two subsequent heads, Massurius Sabinus, already mentioned, and Proculus. They seem to have been more than merely schools of thought, but of their organization and functions we know nothing. We learn of a large number of points of law on which the two schools differed, and many of the other disputes of which we hear are probably also attributable to this conflict between the schools, but, in spite of many attempts, no convincing doctrinal basis for these differences of opinion has been found. We are driven to the conclusion that the doctrines of each school must have been an accumulation of the opinions

* Massurius Sabinus (see immediately below).

of successive heads of the school on different problems, preserved by tradition and adhered to out of loyalty and conservatism. The schools seem to have died out in the course of the second century, for there is no sign that the great jurists of the third century belonged to either.

Forms of legal literature. In the perspective of history the most important function of the jurists was to write, and their litera­ture was vast and varied. We owe almost all that survives to the Digest,¹ and that, large as it is, contains only a fraction even of what still survived in Justinian’s day. This literature took many forms and had many names, but it can be very broadly classified under four headings: the expository textbook, introductory or more advanced, the commentary, the problematic work, and the monograph. Only of the textbook do we possess a virtually complete example, the Institutes of Gaius.² The rest are preserved only in fragments, though often very substantial fragments, in the Digest and in a few small intervening compilations. The largest category in point of surviving bulk is that of the com­mentary. In addition to commentaries on the Edict, which contribute more than a third of the Digest, there were com­mentaries on individual leges and senastusconsulta and, more especially, commentaries on the works of earlier jurists. Pom­ponius, Paul, and Ulpian, for example, all wrote works ad Sabinum—commentaries on Sabinus’ textbook on the ius civile— and works of other jurists were treated similarly. Even in such commentaries dogmatic exposition is freely interspersed with illustrations and problems, but the casuistic approach of the Roman jurist is best seen in the problematic literature, which makes up some third of the Digest. In works of this category we find loosely strung together an immense number of problems, sometimes with a citation and discussion of the opinions of other jurists, sometimes simply with the writer’s own conclusion. It is this problematic literature which gives Roman law its extra­ordinary richness of detail. It provides the case law of the Roman system. But whereas the development of the Common law has largely depended on the appearance of problems in the actual practice of the courts, the Roman lawyer elaborated his system with the aid often of hypothetical problems. For though some

¹      See below, pp. 34 f. and 40 ff.                               ² See below, p. 35. style='font-size:14.0pt'>of the problems discussed arose in actual practice and were submitted to the jurist for his responsum, others arose in discussion with pupils, and others again were simply the product of the writer’s own speculations. Some of these problems appear far­fetched, but we should remember that it is often the extreme and improbable case which reveals the limits of a principle.

An idea of the possible scope and extent of the writings of a leading jurist can be gained from the list of the known works of Paul (who seems however to have been the most voluminous of all). The list runs to some eighty works (of many of which little or nothing but the title survives) in some two hundred and seventy-five ‘books’.¹ The most substantial are a commentary on the Edict in eighty books, two problematic works (Quaestiones and Responsa in twenty-six and twenty-three books respectively) and four commentaries on the works of earlier jurists in alto­gether forty-one books. The remainder consists of a short text­book, collections of imperial decisions, a dozen commentaries on individual leges and senatusconsulta, and more than fifty mono­graphs.

The ‘classical period.'’. The great formative period of Roman law fell in the last one hundred and fifty years b.c. Growth thereafter was less rapid, and was largely completed in the work of Julian, who both by his consolidation of the Edict and by his writings summed up the developments of the preceding centuries. The work of the great jurists who followed him was one of elabora­tion and exposition. Accordingly, the period from Julian to the middle of the third century or, more widely, the period of the Principate, is commonly called the classical period of Roman law. It is from the classical period in the narrower sense that more than nine-tenths of the surviving juristic literature comes, and it is about this period therefore that we might expect to be most fully informed. This expectation, however, is disap­pointed because the literature is, with one exception, of uncertain reliability. The exception is the Institutes of Gaius.

The Institutes of Gaius. Justinian’s purpose in compiling the Digest² was to select and preserve the best of the classical literature, but

¹ One ‘book’ would probably have occupied between thirty and fifty pages of a printed book such as this.                              ² See further below, pp. 40 ff. in order to ensure the unquestioned authority of his compilation once it was completed, he forbade any further recourse to the original texts. These have therefore almost entirely perished. Moreover he directed his compilers to alter the texts which they used so as to make them represent the law of his own time. What we have is therefore not only fragmentary, but does not necessarily represent what the author originally wrote. An exiguous literature survived in the Western parts of the Empire, but this consisted only of post-classical compilations, altered and simplified for a civilization in which legal science was in eclipse.¹

So it was that until 1816 no classical work was known to have survived in its original form. In that year the German scholar Niebuhr detected underneath a text of St. Jerome in the cathedral library at Verona an earlier juristic text² which proved to be that of the Institutes of Gaius, a student’s textbook which was known to have formed the basis of Justinian’s Institutes but which hitherto had been represented only by a few fragments in the Digest and elsewhere, and by an abridgement in the lex Romana VisigothorumJ Three sheets of the Veronese manuscript are missing and a number of passages remain illegible, but probably not more than a tenth is lost. And though it dates only from the fifth or sixth century it is widely held to give the text substantially as Gaius left it. This view was on the whole con­firmed by the discovery in Egypt in 1933 of some pages of a manuscript of the late fourth or early fifth century. For though the new manuscript yielded a passage which had been altogether omitted from the Veronese text and another which probably occurred on one of the missing sheets, it showed no significant differences where the two manuscripts coincided. The Institutes of Gaius are therefore of unique importance because they pro­vide the only evidence for the classical law which we can with reasonable certainty believe to be free from alteration either by post-classical editors or by Justinian’s compilers. In particular, they give us a great deal of information about the legis actiones and the formulary system which was omitted as obsolete from post-classical work and from Justinian’s compilation.

¹ See below, pp. 36 ff.

²As a measure of economy parchment was often re-used—sometimes more than once—by scraping or washing off an unwanted text and writing over it a new one. Such a manuscript is called a palimpsest.

³  See below, p. 36.

The personality of Gaius remains a mystery. His prestige was great in post-classical times; his Institutes were a prescribed textbook in the law schools of the Eastern Empire; and extracts from eighteen of his works appear in the Digest. And yet we know nothing of him except what emerges from his writings. He is never mentioned by any classical writer, in spite of the jurists’ liking for citing each other’s opinions. Even his full name is unknown (‘Gaius’ is only a first name). Internal evidence suggests that he completed the Institutes soon after the death of Antoninus Pius (a.d. 161) and that he was a Roman citizen. Since he refers to the leaders of the Sabinian school as ‘our teachers’ he had presumably studied at Rome, and he was presumably himself a teacher. It has been suggested that he was a provincial, but all that we can reliably infer is that he was not accepted as a member of the select group of leading jurists. We have seen that there must have been many lesser lawyers out­side this group; Gaius was probably one of these, rescued from oblivion by the simplicity and clarity of his exposition in the Institutes.

The post-classical period. We have seen that the day of the inde­pendent jurist ended in the upheavals of the middle of the third century. Something of the old quality could still be found in the rescripts issued from Diocletian’s chancery, but the decline had already set in. It was hastened by the growth of what is called the ‘vulgar law’.

By the constitutio Antoniniana (c. a.d. 212) the peregrine popula­tion of the Empire was accorded Roman citizenship and was therefore required to conduct its affairs according to a system of law of which it knew little or nothing. In the result, the law which was in fact applied in the provinces was a mixture of debased Roman law and local practice, varying from area to area but far removed from the refinement and elaboration of the classical law. Something of this vulgar law can be seen in the codes promulgated for their Roman subjects by the Germanic rulers in the West after the downfall of the Western Empire. Of these the most important is the lex Romana Visigothorum, promul­gated in 506 by Alaric II, King of the Visigoths (and sometimes therefore called the Breviary of Alaric). It consists of some imperial constitutions, an abridgement of Gaius’ Institutes, a selection from a post-classical and much edited anthology of the writings of Paul (the Sententiae ox Opinions), and one responsum of Papinian, all, except the abridgement of Gaius, accompanied by a commentary or paraphrase. The result is but a thin, distorted echo of the Roman law.

The metropolitan lawyers of the East, trained in the law schools of Beirut and Constantinople, maintained a greater continuity with the classical law, but even they were unable to manipulate the vast mass of juristic literature.^[11] Doubts arose as to the authenticity and authority of different works, and these doubts eventually called forth the famous Law of Citations of a.d. 426. This singled out as authoritative the writings of Papinian, Paul, Ulpian, Modestinus, and Gaius. Where there was a conflict, the majority opinion was to be followed; if numbers were equal, Papinian’s view was to prevail; only if numbers were equal and Papinian silent was the judge to decide for himself. Such a rule, if deplorably mechanical, is at least clear, but, as it is preserved, the constitution also allows quota­tion from any author referred to by the five principal authorities, provided that such quotation is confirmed by a comparison of manuscripts (presumably because copies of their works were scarce and of uncertain authenticity). And these secondary authorities were to be included in the calculation of majority opinion. The jurists were, as we have seen, much given to citation, and this system, if it was ever applied, must have produced entirely haphazard results, depending on the chance of how many relevant quotations could be tracked down.

The probability, however, is that the ordinary lawyer had recourse to only a very limited literature of anthologies and abridgements of classical works. A few such compilations have survived, almost all, however, from the West. The Sententiae of Paul have already been mentioned. The Fragmenta Vaticana (so called because they were found in the Vatican Library in 1821) provide the best example. These are fragments of a large fourth­century anthology drawn from the works of Papinian, Paul, and Ulpian, and from imperial constitutions.

The typical post-classical literary forms are thus the abridge­ment and the anonymous anthology. Such initiative as there was found expression in the imperial constitutions, and the ever-increasing bulk of these presented two difficulties. The first was that of reconciling the conflicts which inevitably occurred, particularly when so many constitutions were rescripts directed to individuals and concerned with particular cases. From the time of Constantine onwards there is a series of attempts to prevent the use of rescripts as precedents and to confine legisla­tive validity to ‘general’ constitutions, but in a system in which the Emperor was the sole and absolute authority it was inevitable that his will, however expressed, should be regarded as law.

The second difficulty was that of obtaining access to so diffuse a mass of material. Surprising as it may seem, there had been in classical times no system of permanently accessible publication, it being presumably the function of the jurists to keep profes­sional opinion informed. But now that such jurists had disap­peared other means were necessary. The first attempt to meet the need was the publication, probably under Diocletian, of two private collections, the Codex Gregorianus and the Codex Hermo- genianus. Neither survives, but constitutions are quoted from them in later collections, and the compilers of Justinian’s Codex drew on them. It was not however until 438 that, under the auspices of Theodosius II, an official compilation was made, the Codex Theodosianus. This was indeed more than a compilation, since the commission entrusted with the work was directed to make alterations and amendments in the interests of clarity and consistency. It was superseded in the East by Justinian’s Codex but it continued to be used in the West and a substantial part has been recovered from various manuscripts and from other sources, especially the lex Romana Visigothorum.