JURISTIC WRITING

1. Types of Juristic Works

136The chief topic of interest in juristic writing has been and will continue to be the analysis of the different types of juristic works, specifically the patterns or arrangements which the jurists employed in their writings. The following sections are devoted to the discussion of seven types into which the books of the classical jurists may be differentiated. Further treatment of these is to be found in all works on Roman legal history and the appropriate entries in the encyclopedias, but particularly to be recommended are: Karlowa, Rechtsgeschichte I 666-72; Voigt, Rechtsgeschichte II 262-76; Jors, r.v. Digesta, RE 5 (1905)484-88; Krüger, Geschichte 141-49; Kotz- Dobri, s.v. Institutiones, RE 9 (1916) 1566-71; Kaser, Rechtsgeschichte 182-85; Frezza, Storia 475-92; and most extensive of all, Schulz, History 90-96, 156-257 (German edition, Geschichte 106-13, 186-331.

a. Case Books

137One of the earliest and most persistent groups of juristic works were the Responsa or collections of actual opinions rendered by the jurists in answer to requests by the parties, the magistrate or judge-juror (iudex) in the course of a trial (supra, § 101 i.f.). Normally these collections were limited to the

§ 137 responsa of the author-jurist himself» but occasionally the opinions of other jurists were included. As they appear in the extracts in the Digest of Justin­ian the responsa are quite brief with summary statement of the factual situa­tion and frequent omission of the reason for the opinion. The names of the parties are replaced by fictitious names such as Gaius, Sempronius, etc. (analogues of John Doe, Richard Roe). The query frequently can only be reconstructed from the answer -generally introduced by the terms respondi (I answer) or respondit (he responds) - and in some cases the responsum form has entirely disappeared, being replaced by a simple casuistic sentence.

Schulz denies that any sub-groups in this category can now be ascer­tained.¹ It is not possible, he believes, to distinguish between ‘problems’- Schulz entitles the group ‘problematic literature’, works devoted to the most difficult and perplexing questions of law-raised by the writer and those proposed by others. Even if put by others the original form may have been modified, the term respondere is not decisive, and the question may have arisen in oral disputation. There has been considerable alteration -omission as well as addition - in works of this type in post-classical times and by Justinianian modification, so that not only are responsa texts among the most difficult to analyze but also ones whose original form is hard to dis­cover.¹ Samter long since raised the possibility that post-Hadrianic collec­tions of Responsa not only provided opinions given by Jurists in the formulary process but also included decisions rendered by them when they acted as judges or advisors in courts with cognitio procedure (investigatory process).^{[915] [916] [917] [918] [919]} In spite of censorious criticism of this work there seems to be sufficient evidence to support Samtcr’s hypothesis on this point?

b.

138An important class of juristic works were the commentaries, the exposi­tion of a given text with the words of the text used as headings for discussion, thus termed lemmatic commentary, Schulz points out that generally the commentary was separate from the text being commented upon, though it is possible for the two to have been combined.¹ One sub-group comprises the commentaries on statutes and senatus consulta, some of which may be portions of larger works. Of far greater scope were the commentaries on the civil law and upon the edict of the praetor. In the latter sub-group the discussion concentrated first upon the interpretation of the legal norm itself, i.c,, the individual clauses of the edict, and then was extended to particular legal controversies, presenting the views of other jurists, on the application of the rule under discussion. Besides, there were commentaries on the edict of the ediles and on the provincial edict. The earliest independ­ent work on the ius civile was that of Q. Mucius Scaevola; about a century later there appeared Massurius Sabinus’ three books on the ius civile. The importance of these two works is evidenced by the fact that all subsequent treatises upon the civil law took the form of commentaries ad Mucium or ad Sabinum, sometimes ex Mucio or ex Sabino,^{[920] [921] [922] because they followed the arrangement of materials which had been observed by these early authors (see §144, infra). The commentaries of the late classical jurists, according to Seidl, show a distinct leaning towards the deductive method of reasoning? The commentaries on the civil law and the edict are the most extensive treatises of the Roman jurists: for example, Pomponius on the civil law in 35 books, Ulpian on the civil law in 51 books if not more; Pomponius on the edict in about 150 books, Ulpian on the edict in 83 books.}

c. Notes and Epitomes

139The comment of jurists upon the works of their predecessors took various forms. The later jurist might re-edit the older work and add annotations with supplemental material or remarks of critical nature. The new author might re-edit the older work, calling attention to divergent opinion and expressing his own view respecting the controversy.¹ In the Digest the annotations are recorded in a number of ways: postscript to the passage annotated, so-and- so on (apud) the earlier jurist, the earlier jurist from (ex)thc note of so-and-so, books to (ad) so-and-so.^{[923] [924]}

Schulz would distinguish three types of Notae (Notes);^J (1) annotations derived from lemmatic commentaries and appended to texts; (2) extracts from other texts worked up into annotations of a given text, quite likely by a post-classical editor; (3) marginal glosses made by readers which a later editor included in his new edition, hence not authentic in substance or in form. For this reason Schulz states that Wotae must always be read with a specially critical eye/^{[925] [926] [927] [928] [929] [930] Sciascia devoted an extended article to the nature of Notae, pointing out that notes were generally incorporated into new editions of earlier works, with an indication of such annotation in the title? So, for example, the jurists Tryphoninus and Paul both used, and cite from, an edition of the Digesta of Julian which had been annotated by the jurist Marcellus? There exists considerable difference of opinion among modern scholars respecting the classical origin of many Notae. A number would attribute many of these works to post-classical editors. ’ On the other hand, Archi argues that an annotation was made to a passage in Scaevola’s Digesta to call attention to an imperial decision which confirmed the jurist’s view?}

The commenting epitome, an epitome of an older work to which the epitomist has added remarks of his own, is another type of writing of the classical jurist. Since only fragments are preserved it is difficult to distin­guish these from a lemmatic commentary; in both cases passages in the original constituted the lemma which was commented upon? A particularly polemical character is displayed in Paul’s Epitome of Labeo’s Pithana;^{[931] [932]} another well-known Epitome was that by lavolenus Priscus of Labeo’s Posteriores. Epitomes were frequently entitled Libri ex (Books from)so-and- so, but occasionally Libri ad (Books to) so-and-so, and thus easily confused with editions of Notae.¹¹ To the type Epitome may be added the few works which comprise extracts from the writings of various jurists, termed Lectiones (Readings), Pandectae (Digests), and including the luris epitomae (Law Epitome) of the late late classical jurist Hermogenianus?¹

d. Digests

140There are relatively few works bearing the title Digesta, but these are fairly extensive.¹ Mommsen advanced the views that the term designated 'collected works’ of a jurist or jurists in systematic order (see infra, § 144); that the contents were largely responsa and quaestioncs; and that the Digesta of Scaevola was a post-classical collection.¹ Pemice and Krtiger pointed out, however, that it was not completeness but selection of the best and arrangement in a given order (derigere) that marked the character of these works.’ The systematic arrangement incorporates the civil law, the praetorian law, criminal law and procedure and other portions of the public law.⁴ Guarino emphasized the reduction of earlier writings to a system, responsa in the cases of Alfenus and Scaevola; enriched by extracts from other works, as in the cases of Celsus or Marcellus; and various types of replies in the standard work of Julian in 90 books? The Digesta are indeed extensive collections, arranged in a particular order, but in contrast to commentaries lean most heavily on the discussion of case law and combine treatment of the ius civile and the ius honorarium?

e. Teaching Handbooks and Practice Manuals

141A number of handbooks of rather elementary nature were designed for teaching purposes. Best known, of course, is the Institutiones of Gaius (see supra, § § 18, 125), lecture notes covering the private law and procedure and incorporating so much of the ius honorarium as was most per tinent to the civil law. Various views have been expressed concerning the origin of the arrangement of topics in the Institutiones (see 1144, infra), but all agree that Gaius’ ordering of the materials was followed in the introduction to legal study in post-classical and Justinianian times. According to Schulz, the Institutes of Gaius seems to have been a work not fully completed by the

12. Cf. Schulz, History 221 ff.

1. See De Marini Avonzo, j.v. Digesta, HNDI5 (1960) 538.

2. Mommsen, Schrifien 11 90-96; accord, Karlowa, Rechtsgeschidut I 669-70. On the relation between the Digesta and Rcsposa of Scaevola, see Sam ter, SZ 27(1906) 151-210; Schulz, Symbolae Lenel 143-244.

3. H Pemice, Miscellanea I 1-88; P Kruger, SZ 7.2 (1886) 94-106.

4. Jors, Digesta, RE 5 (1905) 484-88.

5. Guarino, SaMus Julianas 58-61.

6. Kaser, Rechtsgeschichte 183.

author;' in addition, there have been alterations in post-classical times, though probably not to the extent indicated by some of the critics? Fuhrmann treats of Gaius' Institutes as the typical handbook for introduction to law. in line with the elementary works in the other disciplines of Greco-Roman antiquity? Another elementary work, the Res Cottidianae (Everyday Matters), is ascribed to Gaius, but the authorship and date, as well as the make-up of this work, are disputed by modem scholars (see supra, § 125). There existed further introductory teaching books, Institutiones by Floren­tinus, Callistratus. Paul and Ulpian, the last two most likely post-classical works, for it is difficult to contemplate that jurists of their reputation wrote such elementary school-books, and, if so, that these did not replace Gaius' work? Mention should be made at this point of Pomponius’ Enchiridion (see supra, § 43), an introductory work on legal history, as far as the extracts we possess indicate.

Recent renewed interest in regulae and definitiones (see supra, §105) has drawn attention to manuals by a number of jurists entitled Regulae, Defini­tiones and Differentiae. These are short works comprising abstract state­ments of rules, or maxims. But the purpose, or purposes, to be served by these works is far from settled? The Sententiae and Manualia of Paul, if written by the jurist and not entirely post-classical, are summary digests of the law. The former enjoyed wide use in post-classical times (see supra, § 19), the latter, according to Stein, was a prompt book useful (manualis) to legal practitioners? Another work, in theformofasummarydigest,theOpiniones attributed to Ulpian, is generally considered a post-classical anthology? but has now been declared by Santalucia to bean authentic work of Ulpian, a manual of instruction for provincial governors (see supra, § 130)?

f. Monographs on Offices

§ 142 There is a particular type of juristic work of relatively short length -1 to 10 books - which became prominent in the time of the Antonines and Severi,

1. Schulz, History 160 f.

2. On Gaius' Institutes, generally, see Honorf Gaius, passim (sec Index); Flume, SZ 79 (1962) 1-27; articles in Gaio nel suo tempo (1966). The latest edition of Gaius by Meylan. in Girard, Texies I 17 ff., contains further reff.

3. Fuhrmann. Pas jrjwemarwAe Lehrbudi. Ein Beitrag air Geschidtte der Wissenschaften in derAntike(l9GH) 104-21.

4. Schuh, History 171 f.; cf. Kaser. RecRtsgeschichte 183 f.

5. Cf. Stein. Regulae 74 ff.; Schmidlin, Re&tsregebt 120 IT; Ndrr, SZ 89 (1972) 18. 73 ff.

6. Stein, RIDA 7(1960)479-88.

7. Schuh, History 182; accord, Nicholas, in Jolowicz-Nicholas, Introduction 455.

8. Santalucia, I 'libri opinionum' di Ulpiano 21-63; but cf. review by Wieacker, Labeo 19 (1973) 196-207.

the Libri de officio (Books on Office) of particular magistrates and officials of the state. Some scholars have characterized these as short treatises on constitutional or administrative law/ others as professional manuals for the office holders,² and still others as works devoted to the procedure to be observed in the hearings before the individual magistrates? In an extensive study Dell’Oro has surveyed the historical development of this type of writ­ing in the republic and Principate, and then portrayed the characteristics and discussed the contents of the works in each category of office: magistra­cies (consul, tutelary praetor, quaestor), provincial governors (proconsul, praeses, curator rei publicae), praefects (praefectus praetorio, urbi, vigilum), and lesser posts.⁴ The typical systematic monographs on ‘office’ date from the time of Hadrian. Dell’Oro concluded that the common feature of these works, if there is one, is the extended treatment of legal institutions which do not find adequate discussion in the traditional types of juristic works, bringing together non-related subject matter often pertaining to dis­tinct branches of the law? The point of reference is the magistrate or official entrusted with the eventual authority over the institution, permitting the jurists to treat of the substance as well as the procedure of the subject. In a way, the writings on the officium (office) of the various magistrates and officials are short counterparts of the commentaries on the honos (office) of the praetor.

g. Miscellaneous Monographs

$ 143 The remainder of the literary works of the jurists cannot be classed within any of the separate types above. Studies on single leges, senatus consulta and of particular legal institutions and larger fields within the province of public law (e.g., military law) are fairly common, particularly in the last century of the classical era.¹ Many of these may well be single books Qibri singulares), extracts from works of larger scope,² some post-classical re­working of classical material. When Schulz emphasizes, after listing some eighty items, that ‘classical jurisprudence produced hardly any mono­graphs’, his explanation that these books are either very short or deal with matters not treated within the larger works, does not deprive them of mono- ^{[933] [934] [935] [936] [937] graphic nature, i.e., works on single topics? What is true is that, unlike today’s monographic literature, the jurists did not deal with legal history, law reform, legal philosophy, or with the legal system, but placed the em­phasis on case law and the practical solution of legal problems.}

2. Legal Systems

§ 144 In the last century of the republic the style of juristic writing changed from empirical treatment of a subject to a systematic arrangement of legal materials. The names of Q. Mucius Scaevola and Servius Sulpicius Rufus figure prominently in this respect. Some scholars have attributed the new development to the impact of Greek philosophical thought in Rome, par­ticularly in the application of the art of dialectic? Today, scholars are prone to trace the arrangement of legal materials in a given order to a period prior to the influx of Greek thought and culture in Rome. However, the first systematic presentation of the civil law of which we have knowledge is that of Q. Mucius Scaevola, Libri iuriscivilis (Books on the civil law) in 18 books. Schulz declares the work was a product of the dialectical method, ‘the first dialectical system of law in the grand manner’? Biondi was of the opinion that the systematization was rudimentary; there was a distribution of mater­ials, but not on a logical basis? while Arangio-Ruiz traces the origin of the so-called Mucian-Sabinus system to the casuistry in the handling of testa­ments by generations of jurists preceding Q. Mucius? Mucius constructed the arrangement of his work by an association of ideas beginning with testa­ments, and historically followed the development of institutions thereafter. Massurius Sabinus framed his brief treatise on the civil law - Schulz insists it was a teaching manual rather than a commentary¹ - on the model laid down by Mucius, and from that time on the commentaries on the civil law followed the same arrangement, with minor deviations. Scherillo has devoted an extensive study to what he calls the ‘civilistic system’, tabulating the arrangement of materials in the leading works in this field, attempting an explanation of the variations in treatment, and setting forth the filiation of the works of the various jurists? The outline of the sequence of topics in

3. Schulz, History 257.

1. Sec particularly, the articles by La Pira. Siudi Virgin 159-82; BIDR 42 (1934) 336-55; SDH I I (1935) 319-48; BIDR 44 (1936/37) 131-59.

2. Schulz, History 94.

3. Biondi, Scritti Ferrini. Pavia 201, 245 f.

4. Arangio-Ruiz, Ann. Istanbul 3 (1953) 136-44.

5. Schulz, History 156 ff.

6. Scherillo, 41 sistema civilistico', Studt Arango-Ruiz IV 445-67.

Mucius' ius civile is presented by Schulz. ’ For the more elaborate so-called Sabinian system, there is the outline given by Lenel,* summarized by Schulz.’ The sequence of provisions of the edict of the praetor was finally fixed by the compilation of the edict on the part of Julian in the time of the emperor Hadrian (see infra, § 151), but this was but a slight alteration from the arrangement of titles during the previous centuries. The knowledge of this sequence derives from the commentaries on the edict of the high and late classical jurists. Lend, in his reconstruction of the edict from the juristic writings, pointed out that we may distinguish between the Julian-Ulpian and the Gaius-Paul versions. ·· The sequence is based entirely on procedural factors. The complete arrangement is provided by the titles in Lenel’s reconstruction.¹¹ The main subdivisions are: Part I on the procedure of a formulary action from the beginning of the trial up to joinder of issue (litis contestation Part II is divided into two sub-groups, remedies not provided in Part I; Part III deals with execution of judgment; Part IV is a kind of supplement, a collection of interdicts, affirmative defenses (exceptiones) and praetorian stipulations. The edict of the ediles was commented upon as an appendix to the treatment of the edict of the praetor.

From the time of Celsus and Julian the works entitled Digesta as well as the case books follow a particular arrangement, which has been termed the digest system. This consisted of a first portion in theorderoftheedict coupled with further material which, according to some scholars, treated of criminal law and procedure plus matters of public law, arranged under the discussion of various leges,¹¹ and to other scholars followed the conventional order of the ius civile.¹³ Lenel presents in tabular form the statutes, senatus consulta and imperial enactments which form the subject matter of discussion in the concluding portion of juristic works which employ the digest system.¹⁴ De Marini Avonzo has pointed out that although the later writers followed a traditional order of statutes, senatus consulta and imperial enactments in the second portion of Digesta, it is erroneous to term this asystem, for there never was any attempt at systematization.¹¹ The sequence was not chosen for dogmatic clarification, was presented always in the form of responsa or

7. Schulz, History 95.

8. Lend, Palingenesis II 1257-60.

9. Schulz, History 157 f,

10. Lend. Edictum H ff

11. The (able of (hese titles in Schulz, History 149 f.

12. So Kruger, Geschichte 147 f; Jors, j.*. Digesta, RE 5 (1903) 484, 487 f.

13. Kipp, Geschichte 112; H. Kruger, SZ 37 (1916) 311-16.

14. Lenel, Palingenesis II 1255.

15. De Marini Avonzo, s.v. Digesta, NND! 5(I960) 638 f.

quaestiones with no effort to proceed from the concrete case to the general plane of abstract principles.

The Institutes system may well have been the most developed system among the types of juristic writing. Affolter traced the famous division of the law by Gaius¹* back to early concepts in Roman religious customs.” Gaius, Affolter held, based his Institutes on a work by Q. Mucius Scaevola.¹¹ To Schulz there was no doubt butthat Gaius derived the arrangement of the Institutes from Mucius’ work on the ius civile.'* Such departures as Gaius made from Mucius' scheme 'are not always happy’; inheritance is moved from first place and put between property and obligations, the three subjects combined within the heading of res.¹⁰

There have been other views, also, of the origin and nature of the division and sequence of materials in the Institutiones. Biondi was of the opinion that the threefold division of topics in the Institutes by Gaius was nothing more than a teaching device, a notice of transition from one subject to another.¹¹ Kreller, in response to Schulz’s view, did not think that Gaius took Mucius* ius civile as the model for the order of the Institutes.¹¹ The latter was not a deductive logical system, but like the Twelve Tables was an arrange­ment dealing first with private transactions and then followed by penal provisions.¹¹ Gaius, or the originator of the Institutes system, took res as the central concept of his scheme, between persona and actio, namely, the *who’ and ‘how* of the right of the citizen over the possessions of life. The crucial contribution of the system, however, is the distinction between res corpo­rales (corporeal things) and res incorporates (subjective rights). Just where the author of the Institutes derived this novel idea, Kreller is unwilling to pin down, though he does call attention to Stroux’s reference to the Stoics and the Latin grammarians.²*

Wieacker follows up the discussion of the origin of Gaius’ system, and, discounting influence from the grammarians, rather traces it back to the more recent tradition of the Greek philosophers and the logical teachings of the founder of the Stoa, Zenon.^3S There is some distinction between ^{[938] [939] [940] [941] [942] [943] [944] [945] [946] [947] [948] the arrangement of Gaius' Institutes and of similarly named introductory manuals of later jurists, but the emergence of Gaius as the text for post- classical legal study and its utilization as the basis for much of Justinian's Institutes led to the significant role this legal system has played in me­dieval and modern times.16}

This would conclude the discussion of theutilization of particular arrange­ments, or systems, in the legal writings of the jurists - for none are readily apparent in the monographic works-save that a new thesis has been recently presented which requires some comment. In 1963 Lauria published the first part of a study on which he had been engaged for some seven years, which advanced the thesis that there was but one traditional arrangement for the whole of the Roman law, whether this law be portrayed in the Twelve Tables or comment thereon, in the books of the ius civile or the commentaries on the edict of the praetor, in the comments of the leges of the republic and early empire, in the writing of the jurists generally, and- beyond the scope of this volume - in the codifications of post-classical and Justinianian times.¹¹ In the opening pages Lauria sets forth the generalities of his proposed study, inter alia, that the expositions in the various juristic works are incomplete in that they present only a portion of the total se­quence, in the case of monographs only a single topic; that some legal works which seem to abandon the scheme, such as institutiones or regulae, elabo­rate particular points within the scheme; that the ius romanum sequence of law of succession, norms of jurisdiction and court organization, the edict of the praetor, imperial enactments, and public law fields was affected by new development in the law; and that, instead of the generally accepted division into a ius civile and an edictal system, the two were parts of a single ius romanum system.¹* Lauria proposes to analyze each work which might lead to the elucidation of this scheme, and in this first volume treats (I) of the Twelve Tables, its reconstruction and the commentary of Gaius thereon, and (2) a beginning of the treatment of the books on the ius civile. Lauria argues that the provisions of the Twelve Tables follow the order of the edict.¹* He notes that in the books of the ius civile there are some juristic works which open with comment on the law of succession followed by comment on the edict and then on iura and leges,¹⁰ while others are limited ^{[949] [950] [951] [952] [953] to the comment on the praetor’s edict and supplemental comment on iura and leges.” The final lengthy chapter treats of the sequence of materials in Q. Mucius Scaevola’s three books on the ius civile, and Pomponius’ 39 books ad Q. Mucium. The latter is especially instructive in the exegetical analysis, demonstrating the traditional sequence in the law of succession (wills and the institution of the heres, legacies and intestate succession) in books 1-9 and part of book IO;11 comment on select titles of the edict in the accepted sequence, in books 10-39; and concluding with comment on the lex Aquilia in the last book, book 39. A table at the close of the volume illustrates the parallel sequence of treatment of materials (in the order of the ius romanum) in Pomponius’ Ad Q. Mucium, Gaius' Institutiones, Ulpian’s Ad Sabinum, and the Epitome Ulpiani (Ulpian’s Regulae).33 Wieacker, in the only exten­sive review of Lauria’s work which has come to my attention,” gives high praise to Lauria’s analysis of the Gaian commentary to and the reconstruc­tion of the sequence of the law of the Twelve Tables; welcomes the exten­sive additional evidence upon the sequence of topics in the books on the ius civile, particularly the tie between the Mucian work and that of Sabinus with the works of the later jurists;33 but is not convinced that the evidence supports Lauria’s view that the edictal system regularly follows the ius civile material, and is an integral part of a single system, but rather believes that such edictal material as is pertinent to the discussion is integrated into the treatment of the ius civile.3' The publication of the further volumes of Lauria’s work should provide the answer to the significant question: did the Romans possess two distinct legal systems, that of the ius civile and that of the edict of the praetor, or was there actually only one legal system (ius [954] [955] [956] [957] [958] [959] romanum), combining the ius civile - limited to the law of succession - with the edictal system and the other separate areas of the private and public law.}

F.