Legal Science
We saw in chapter 4 that during the archaic period knowledge of the law and the rules governing legal procedure was confined to the college of the pontiffs, whose members were drawn exclusively from the patrician class.
After the introduction of the Law of the Twelve Tables (c. 450 BC) and the establishment of the system of legis actiones the authoritative interpretation of statutory law and the conduct of the actions at law remained within the province of the pontiffs, who continued in their role of giving opinions to magistrates and litigants on questions of law.[598] According to Roman tradition, the pontiffs' monopoly of legal knowledge was ended in c. 304 BC when Gnaeus Flavius, secretary {scriba) to Appius Claudius,[599] published a manuscript containing the legal formulae and ritual words that were employed when litigation took place. This publication, which became known as ius civile Flavianum, was shortly afterwards followed by the publication of the calendar of days {dies fasti and dies nefasti) on which it was permitted or forbidden, according to religious practice, to bring an action at law.[600] In 300 BC, under the lex Ogulnia de auguribus, the plebeians were admitted to the college of the pontiffs and in 253 BC the first plebeian pontifex maximus, Tiberius Coruncanius, began to discuss cases and to give legal advice in public {publice profiteri) in such a way that the knowledge he imparted became common to all.[601] Finally, in about 200 BC, Sextus Aelius Paetus Catus, consul in 198 BC, published his tripertita, a work in three parts, containing the text of the Law of the Twelve Tables, a commentary on it and a list of the legal forms employed in the legis actio procedure.[602] The ius Aelianum, as this work became known, and the earlier ius Flavianum, played an important part in the process of secularisation of the law and the subsequent development of Roman legal science.[603]By the early first century BC secular jurists, the jurisprudentes (those possessing the knowledge of the law) or iurisconsulti (those who were consulted on matters relating to law) had supplanted the pontiffs, the original interpreters of the law.
With few exceptions these jurists were members of Rome's wealthy upper classes and were actively involved in politics. Like the pontiffs, they received no remuneration for their work as they considered it their duty to impart instruction in law and to assist the citizens who came to them with their legal problems. Although legal science did not become a profession through which one could earn a living, it provided an outlet for wealthy and educated citizens who sought to distinguish themselves in social and political life. Because of the respect and honour which they gained through their activities, jurists, especially some of those who did not enjoy inherited power and prestige as members of noble Roman families, were able to increase their influence among their fellow citizens and, by widening the circle of their friends and dependants, to win their way to public office.[604] But from the late first century BC, as interest in politics began to decline in the settled political conditions of the early Empire, jurists tended to withdraw from political life and dedicate themselves exclusively to the practice and study of the law. It is important to note, at this point, that the contributions of the jurists are not evenly distributed over the whole field of law; private law and civil procedure dominate very clearly, whereas many areas of public law never became the object of the same intensive analysis and constructive development.[605] [606]The activities of the jurists of the late republican period were, in general, similar to those of the pontiffs. They consisted in giving advice on questions of law to private citizens, magistrates and judges (responderey. providing assistance to litigants on matters of legal procedure and preparing the forms necessary for filing a suit {ageref and drafting legal documents, such as contracts and wills, aimed at safeguarding a person's interests in legal transactions by protecting him against certain eventualities (cavere)?' As magistrates and judges were not necessarily expert lawyers, they relied upon the opinions (responsa) of jurists when carrying out their tasks relating to the administration of justice.
Thus it was customary for the praetor to construct his edictum perpetuum with the help of jurists who, either as individual advisers or as members of his consilium, advised him on matters relating to the structure of his edict and the forms of action or remedies that should be granted under certain circumstances. Indeed, much of the ius praetorium, or ius honorarium, was the work of the jurists who provided guidance to the magistrates in charge of the administration of justice. Similarly, judges often relied upon the advice of jurists in dealing with difficult legal and procedural issues and, as the settling of disputes was an extremely technical process, the role of the jurists in litigation became increasingly important. It is important to note, however, that the jurists very rarely argued cases in the courts of law - this was left to advocates (pratores). Although trained in law, advocates often relied on the help of jurists in difficult cases to ensure that their clients' claims were properly stated according to the prescribed formulae. Moreover, an advocate would normally seek a jurist's advice when he intended to request the granting of a new form of action from a magistrate (at the in iure stage of the proceedings), and when he pleaded the case before the judge (apud iudicem).The jurists were also entrusted with the task of educating those who wished to enter the practice of law. Legal education in Rome had a largely practical orientation; there was no theoretical or academic legal training and there were no educational institutions in which law was formally taught.[607] Upon completion of his basic education, a young man would join the household of a jurist as an apprentice and would live with him and his family for several years. He would follow his master about his daily business, observing him giving legal advice, drafting legal documents and assisting clients in legal proceedings.[608] Moreover, students were often invited to discuss difficult points of law and to formulate arguments for or against the solutions put forward by the jurists (disputatio fori).
As time went by, the jurists began to combine the teaching of law (docere) with writing (scribere) commentaries or treatises on different branches of the law. Furthermore, juristic opinions began to be collected into books and, gradually, a large body of legal literature came into existence.
The emergence of legal writing in Rome was largely the result of the influence of the Greek culture and science on the Roman higher classes to which most jurists belonged. As they became familiar with Greek philosophical thought, and the intellectual methods and tools which Greek science had created, the jurists began to develop a systematic approach to the study of law. Thus, in dealing with legal issues, they began to utilise the dialectic method developed by Greek philosophers and rhetoricians. This was a form of logical analysis that differentiated between the various juridical concepts and, at the same time, subsumed those concepts sharing similar characteristics under common headings. By employing this method the jurists sought to logically relate and categorise the various institutions of Roman law as parts of an all-embracing, logical scheme. At the same time, the jurists became aware of the logical syllogism and learned to construct legal concepts in a deductive manner. Moreover, familiarity with Greek philosophical ethics enabled the Roman jurists to become aware of the sociological function of law and, as a result, they began to lay more emphasis on arguments based on equity and other general guiding principles. Indeed, the greatest achievement of the jurists was their ability to look behind the accidental elements of a case and to define the essential legal problem it posed as a quaestio iuris. It is important to note here, however, that, notwithstanding the influence of Greek philosophy, the approach of the jurists remained essentially casuistic and practical. The jurists did not seek to construct systems of abstract theories nor did they regard arriving at flawless logical conclusions as an overriding consideration. What they were primarily concerned with was exercising mature judgement and practical wisdom in dealing with questions arising from individual cases, while taking into account the solutions offered by other jurists in similar cases in the past. It was this combination of practical aims with an interest in systematic analysis that ultimately gave Roman jurisprudence its most characteristic features: its pragmatism and flexibility as well as its clarity and intellectual superiority to the old, formalistic approach to the rules of the ius civile.Probably the most prominent jurist of the republican era was Quintus Mucius Scaevola, who served as pontifex maximus and consul in 95 BC. Scaevola is said to have been the first jurist who set out the institutions of the ius civile in a systematic way.[609] Unlike earlier jurists, he did not confine himself to the discussion of isolated cases or questions of law. Instead, by applying the dialectic method, he sought to identify and categorise the different kinds (genera) of legal relationships with which the various rules of law were concerned. Thus he was able to define, in clear outline, legal institutions such as guardianship, possession, legacy, sale, partnership etc. Scaevola's approach was an important step forward as, for the first time, by the side of collections of precedents and isolated legal rules, there appeared a scheme of law conceived as a logically connected whole. Scaevola's main works included a commentary on the ius civile in eighteen books (libri duodeviginti de iure civili), and a liber singularis, containing definitions and classifications of legal concepts. To him is also attributed the introduction of standard legal clauses and presumptions, such as the cautio Muciana (a promise given by a legatee that he would return the legacy if he acted against the condition which was attached to the legacy)[610] and the praesumptio Muciana (the presumption that everything a married woman possessed had been given to her by her husband, until the contrary was proved). Moreover, as governor of the province of Asia, Scaevola drew up a provincial edict (edictum provinciale) which was used as a model by other provincial governors.
Scaevola's work remained influential for a long time and commentaries were still being written on it as late as the second century AD.[611]Other distinguished jurists of the pre-classical period include Manius Manilius, consul in 149 BC, whose work venalium vendendorum leges ('conditions of sale for things capable of being sold'), consisting largely of model formulas relating to contracts of sale, is mentioned by Cicero and other writers;[612] [613] the two Catos, M. Porcius Cato Censorius, consul in 195 BC and censor in 184 BC, whose work de agricultura (On Agriculture) comprised forms and precedents for the drawing up of agrarian contracts, and his son, M. Porcius Cato Licinianus, author of a celebrated treatise on the ius civile (de iuris disciplina)?* M. Junius Brutus, praetor in 142 BC, who wrote a number of books on the ius civile?[614] [615] [616] Gaius Aquilius Gallus, praetor in 66 BC, who introduced the formulae connected with the action for fraud (actio doli)w and the stipulatio Aquiliana?' C. Trebatius Testa, a friend of Cicero's, whose work on the ius civile was highly regarded by the classical jurists;[617] P. Alfenus Varus, consul in 39 BC, who produced an extensive work (Digesta) in forty books;[618] Servius Sulpicius Rufus, consul in 51 BC, whose writings included an important commentary on the praetorian edict;[619] and P. Rutilius Rufus, consul in 105 BC, who devised the bankruptcy procedure described by Gaius (actio Rutiliana)?[620] Unfortunately, only a few scattered and fragmentary traces of the works of these jurists have been preserved through the writings of jurists of the classical period.[621]
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