B. LEGISLATION AND CUSTOM

1, The Role of Custom

§92 In a treatment of the mechanics of the evolution of a legal· system one expects to find a discussion of legal custom and customary law. And if this volume was primarily concerned with the study of Roman law of the archaic and pre^classical era, or of the Justinianian epoch, custom as a source of law would occupy a prominent position.

In the classical period, however, the role of custom is quite different. This is not the impression that one gains from the handling of the subject by several renowned English writers. Vinogradoff summarily disposes of the problem by regarding the customary law of Justinian’s time as a reflection of that of the classical era. ' Allen discusses custom without much regard for historical sequence, mingling statements respecting Cicero, Ulpian and Justinian in the development of his ideas.² Munroe Smith treats the subject historically but takes customary law from beginning to end as nothing more than case law.’There are European scholars, also, who would identify customary law with the ‘common law’ (ius) of Rome, for example, Arangio-Ruiz⁴ and Frezza.⁵

It is true that lex, when contrasted with all other spheres of the Roman law, occupies a minor role. But that does not mean that the remainder of the law, or even a substantia] part thereof, is customary law, at least in the view of the classical jurists. In the sections which follow (§§ 93-98) it is proposed to show that the jurists recognized customary practice, and even attributed the source of a limited number of legal norms to legal custom. But they did not consider customary practice a significant source of the law. The distinction between written law and unwritten law may well have had meaning and use to the rhetoricians, but not until the very end of the classical period was any attention paid by the jurists to theoretical considerations of custom and customary law.* The author first expressed these views in a paper read in 1937,’ and although in the last few years there has been some attempt on the part of some of the younger scholars to modify this approach, it still appears to represent the prevailing view.

a. Ius ex scripto — ius ex non scripto

§ 93 Aristotle, Rhetorica I.10.1368b

Law is either special or general. I mean by special law that which is written governing a particular community, by general all that unwritten (typatposl said to be recognized everywhere....

Aristotle, Rhetorica 1.13.1373b

By the two kinds of laws I mean special and general; special, that which the members of a community apply for themselves, which is either unwritten or written, general is that which is based upon nature.

Cicero, Part it tones oratoriae XXXVII. 130

But there are other divisions of law; those things which are written and those

4. Arangio-Ruiz, Harter# 241: ‘Greece is the country of the written law, Rome the country of customary law. In Greece the statute was the source of law par excellence; when the Romans spoke of the law they thought of the customary law, for statutory legislation was rare* (translation of the author).

5. Frezza, Sforia 362: ‘The Roman legal system, during the long period in which it remained in force, is to be seen as a system in which the norms of customary law prevailed over the norms of statutes’ (translation of the author).

6. The treatment of the concept of customary law is reserved to chap. XIII: Theoretical Considerations in the Classical Law,

7. Schiller, ‘Custom in Classical Roman Law', L. Rev. 24 (1938) 268-82 [ = American Experience 41-55].

which without writing are upheld by the law of nations (ius gentium) or the customs of our ancestors (mos maiorum)....

Cicero, Topica V.28

A partitive (definition) exists when that matter which is concerned is separated into its component parts, as if one said: the ius civile is that which is found in statutes, resolutions of the Senate, judgments, authority of the learned in the law, edicts of magistrates, custom, equity....

Auctor, Rhetorica ad C. Herennium 11.13.19

Accordingly (law [ius] J consists of these elements: nature, statute, custom, judgment, good faith, pact.

Quintiuanus, Institutio oratorio XII.3.6

For all law that is certain arises either from writing orfrom custom; if uncertain, the principle of aequitas is to be considered.

Ulpiamjs, Libro I institutionum (D. 1.1.6.1)

For this law of ours exists either by writing or without writing, as the Greeks say: ‘of laws, some are written, some are unwritten¹.

The quotation is in Greek.

Among the rhetorical writers custom is often included among the sources of law, given equal place with statute, senatus consulta, edicts of the magistrates, etc.* The consideration of custom and lex on the same plane is the natural result of the rhetorical distinction between ius ex scripto(law based on writing) and ius ex non scriptoflaw not based on writing), which flow from the νόμος έγγραφος and νόμος άγραφος of Aristotle and other Greek philosophers. To the Greeks άγραφος νόμος was used in two senses: (I) to signify natural law, contrasted with the positive law of a particular stale, or (2) that part of the part of the positive law which had not been written down.¹ According to Pernice, the Roman rhetors adopted the Greek terminology, but inasmuch as they already used the term ius gentium to designate the law common to all peoples, and thus having the character of natural law, they limited the meaning of ius ex non scripto to the customary law of a particular people, i.e., the unwritten law of the Romans? ^[568] ^{^[569] ^[570]}

Though the idea of ius ex non scripto was familiar to Roman philosophical and rhetorical writings, it seems to have remained a learned theoretical generalization as far as the jurists were concerned, and of no practical importance.* Perozzi goes so far as to say that the distinction between ius ex scripto and ius ex non scripto - or ius scriptum and ius non scriptum -in the writings of the classical jurists is everywhere interpolated? According to some scholars the phrase in D.

1.1.6.1 is actually a paraphrase, added when the Institutes of Ulpian were revised in post-classical times? Lauria concedes that the pagan jurists and Christian writers may call attention to the antithesis the rhetors stressed, but they came to no conclusions and derived no juridical consequences from the dichotomy? But now the pendulum may have swung back to the view that the contrast ius ex scripto-ius ex non scripto may have been recognized by the late classical jurists, even though the statement as we have it dates from post-classical times?

b. Mores maiorum and ius

§ 94 Ulpianus, Libra XXVI ad Sabinum (D. 1.6.8 pr.)

... Since the right of potestas {power of the father) was received by custom {mores), one cannot cease to have children under his potestas except in those cases where they have been freed.

Pomponius, Libro Vad Sabinum (D. 23.2.8)

A freedman cannot marry his freed mother or sister because this rule has been introduced by custom {mores), not by statutes.

Perozzi, Istituzioni I 201 n.3, considers the passage genuine, whereas Beseler, SZ 45 (1925) 442, takes [because - statutes] as an interpolation.

Ulpianus, Libro I ad Sabinum (D. 27.10.1 pr.)

By a law of the XII Tables a prodigal is restrained from the administration of his own property, which, indeed, in the beginning was introduced by custom {mores).

Cf. also, D. 29.2.8 pr., infra, j 96.

Ulpianus, Libro XIIad edictum (D. 4.6.26.2)

... This clause (of the edict) relates to those who, by the custom of ourances-

4. Pemice, SZ 20 (1899) 127, 162-64.

5. Perozzi, isiiiuzioni I 42 n.2.

6. Lombardi, SDH! 18 (1952) 21, 51; cf. von Lubtow, Fb/Jt 497.

7. Lauria, Ius 214-17.

8. Guarino, Storia 377; Ka&er, R6m. Privatreeht I 196 n.24, a changed point of view from that expressed in the first edition, Rdm Privatrecht I (1955) 174, and II 35 f.

tors (mos maiorum). cannot be summoned to court without offense, such as the consul, the praetor and any others who have sovereign power (imperium} or authority (potestas).

Another instance of mos maiorum is D. 48.9.9 pr. (Modest. 12 pand.): penalty for parricide.

The traditional view seems to be that the Roman law of the earliest times, like other primitive legal systems, was customary law. The Twelve Tables is considered to be a codification of the customary law (cf. chap. V, § 52). And, after the compilation of the Twelve Tables, the customary law which had not been included remained valid.¹ There is frequent reference among the jurists to law established by custom (mores) and the phrase ‘the custom of our ancestors’ (mores [or mos] maiorum) is a commonplace both in legal and rhetorical literature. Some time ago Kaser took issue with the generally accepted doctrine? From an examination of all the occurrences of mos and mores maiorum he concluded that, to the Romans of the classical epoch, certain fundamental institutions so characterized stemmed from a primal Roman natural law - not a universal law of nature - a legal system which existed from the earliest times. The source of the legal norms was of no concern; it sufficed that the rules and the institutions had always been established among the ‘customs of our ancestors’.

De Francisci, among others, undertook to reply to Kaser’s view? The references to rules ‘instituted’ by the customs of our ancestors, he maintained, referred to the heritage from that earliest period in which the totality of the Roman religious and legal system was founded on mores. These juridical norms, prior to the Twelve Tables, constituted the primary elements of the legal order of the gens; these were parallel to the law (ius) derived from the authoritative decisions of the head of all the clans. Nevertheless, Kaser has persisted in his view that the dichotomy ius/mores is of late date and of little significance? In a course of lectures recently delivered at the University of Turin, Gallo undertakes to show otherwise? Norms taken by the jurists from ancient custom stand on the same plane as those derived from statute.

Up to the time of Hadrian the creative activity of the ^[571] ^{^[572] ^[573] ^[574] ^[575] jurists was a combination of interpretatio (see infra, chap. VIII, 132-34) and reception from the ancients (ius moribus receptum). Only with imperial control over the jurists from Hadrian on, says Gallo, was ‘reception’ eliminated. The role of the ‘customs of our ancestors’ is again a matter of dispute among scholars, but it would appear, at the moment, that the view expressed by Kaser is favored? c. Mos and consuetude
§ 95 Servius, Commentarius in Vergili Aeneidem VI1.601
Varro considers 'mas' to mean the common consent of all those living together, which long-continued results in custom (consuetudo).
Lex antonia de termessjbus II. 18-22 (c. 70 B.C.)
Those statutes and that law and that custom (leges... ius... consuetudo) which existed between Roman citizens and the people of Greater Termessus, bt Pisidia, in the consulship of Lucius Marcius and Sextus lulius (91 B.C), the same statutes and the same law and the same custom shall exist between Roman citizens and the people of Greater Termessus, in Pisidia,
Cicero, De inventione 11.22.67
Law by custom (consuetudine ius) is considered to be that which antiquity has sanctioned by the will of all. without statute. Among these, indeed, there are some laws which themselves are quite fixed by reason of antiquity.... Some types of law have now been established by fixed custom; of this type are pact, equalityjudgment.
Ulpianus, Libro I ad edictum aedilium curulium (D. 21.1.31.20)
Since the stipulation for double (damages) is usual, it has accordingly been decided that, where the seller of a slave will not promise double, an action ex empto (on sale) lies; for whatever is usual and customary (moris et consuetudinis) must be covered by actions bonae fidei (of good faith).
The Anal clause [for whatever - bonae fidei] is considered interpolated by Niedermeyer, Byz. Weugriech. Jahrb. 2(1921) 94, but contra, Honord, Studies De Zulueta 132,139-40.
The terms mos and consuetudo were employed in a number of meanings by both legal and lay writers. Both terms most frequently have the con-
6. The view of Brynteson, RIDA 12 (1965) 203-23, that the Romans developed 'new law*, that is, ‘specific customs made legal by decisions' out of the consciousness of the mos maiorum of the community, is not very helpful; it does not take account of any of the questions raised, in the studies of scholars such as Stdnwenter, Kaser or other contributors to this topic.
notation of ‘actual usage’, generally, as we shall see, of a particular region (mos regionis, provinciae, etc.). The coordination leges moresque, or even the three-fold sequence, as in the Termessan inscription, may well connote ‘the total social system’, a combination of statute or law and custom, as Kaser suggests,' and not a reference to statutory and customary law. The new Oxford Latin Dictionary defines consuetudo in the Termessan inscription as ‘a habitual practice, custom, usage, habit’, while the term in the Ciceronian and Ulpian passages is subsumed under ‘the general practice of society, custom, convention; custom as a source of law*.^[576] ^{^[577] ^[578] Kaser, after a review of all the instances of mos, and of consuetudo in the sense of custom or usage¹ came to the conclusion that ‘no classical jurist and no constitution from the classical and, as it appears, from the early post-classical period, connects with this expression any other concept than that of settled equable usage recognized by the ancestors’.^[579] Some of these practices - relatively few, it appears - were accorded recognition by the jurists as legal custom, in other words, as a source of legal norms.}
2. Recognition of Legal Custom
a. In General
§ 96 Paulus, Libro r/arfP/aurium (D. 23.2.39.1)
If anyone should take as a wife one whom he is forbidden by custom (mores j to marry, he is said to have committed incest.
Ulpianus, Libro VI ad Sabinum (D. 28.6.2 pr.)
It was established by custom (mores) that anyone could execute a will for his minor children.
Ulpianus, Libro XXXII ad Sabinum (D. 24,1.1)
It has been established amongst us by custom (mores) that gifts between husband and wife are not valid.
Ulpianus, Libro VII ad Sabinum (D. 29.2.8. pr.)
By the custom of our state (mos nostrae dvitatis) neither a male nor a female ward can become bound without the authority of the guardian.
AUCTOR, Rhetoric® ad C Herennium II. 13.19... The law by custom (ius consuetudine) is that which, without statute, is by usage as if it were statutory; for example, that sum which you have deposited with a banker you may rightly seek from his partner.
Legal norms which, in the classical epoch, were traced back to customary usage are relatively few in number. In the field of private law Pernice noted three;¹ (1) the prohibition of marriage between closely related persons, (2) the possibility of pupillary substitution in inheritance, and (3) the invalidity of gifts between spouses. The origin of the last principle is uncertain. It is first mentioned in the Augustan age, and some scholars attribute it to his legislation; others trace it back to the old rule that marriage shall not lead to any transfer of property.¹ Brie added another’(4) the necessity of approval by the tutor for the obligations of his ward, while Steinwenter noted:^[580] ^{^[581] ^[582] ^[583] ^[584] (5) the liability in solidum of a plurality of bankers. There may be one or two other principles dating from the pre-classical epoch, but the total is remarkably small.}
In the field of public law and administration there are considerably more rules which were ascribed to customary practice. Some instances are given in the following passages?
Paulus, Libro XVII ad edictum (D. 5.1.12.2)
... Some persons are unable to became Judge-jurors (iudices) by reason of statute, some by nature, some by custom (moresJ... By custom, women and slaves, not because they lack judgment, but because it has been established that they cannot discharge civil functions.
Iulianus, Libro I digestorum (D. 2.1.5)
By the custom of our ancestors (mos maiorum) It has been brought about that only iÄai person can delegate his jurisdiction who possesses it in his own right, not one who has it as the gift of another.
So also, D. 1.21.1 (Pap. 1 quacst.)
Macer, Libro Ipublicorum iudiciorum (D. 47.15.3 pr., 2) One trial for collusion is public, the other was founded on custom (mores)------------------------------------------------------------------------------------------
(2) But if the crime of collusion is brought against an attorney, this is not a public trial Nor does it matter whether he is alleged to have engaged in collusion in a public or private trial.
In some instances the reference to the 'custom of our ancestors’ merely shows the antiquity of the rule, but in some cases there may have been a binding principle in archaic times, still valid in the classical epoch.* On the other hand, as Schulz points out,’ a long-established rule can be attacked in juristic discussion and displaced by adifferent and contradictory principle. When it is recalled that the Roman constitution was not written, it is apparent that many of the procedures involved, e.g., the magistrate’s reliance on the advice given by the Senate, might well be termed ‘customary’.* The significant point, however, is that the jurists only very exceptionally attributed the origin of norms of the private or public law to the recognition of legal custom.
The apparent absence of legal rules of customary law, as far as the jurists were concerned, merely means that when legal custom was raised to the status of legal norm it is to be found within one of the other well-known spheres of the law; such indeed is the case.’ According to Ehrlich,¹⁰ the ius civile, the law introduced by the responses of the jurists (see infra, chap. VIII, § 132) was nothing more than customary law, and is to be contrasted with the ius sacrum, the religious customary law, and the ius publicum, primarily statute law. In somewhat similar fashion Biondi speaks of the ius civile as a law essentially customary." Recently, the role of custom has been well expounded by an English scholar.¹¹ Generally speaking, the prevailing view is that a considerable portion of the ius civile is actually customary usage which has been introduced into the legal sphere by the jurists.^{I J} It may be pointed out, in passing, that institutions described as stemming from the 'customs of our ancestors’ are elsewhere included by the jurists within the ius civile."
There is perhaps even more of customary flavor in that sphere of law known as the ius gentium, particularly that portion which found its ex-
6. Kaser, SZ 59 (1939) 52, 84 if.
7. Schulz, Principles 16.
8. Schtinbauer, SZ 47 (1927) 264, 288-89.
9. Summarized earlier, Schiller, Virginia L. Rev. 24 (1938) 268, 276-77 American Experience 41, 49-50].
10. Ehrlich, Die Tatsachen des GewohnheitsredUs (1906) 55-56; cf. also Ehrlich, Principles 436.
11. Biondi, Prospective 32-33.
12. Thomas, TR 31 (1963)39,42-48.
13. Stetowenter, s.v. Mores, RE 16 (1935) 292; Collinct, Reateil G&iy I 23 f.; briefly, Mrs-Kunkel-Wenger, Rdm. Redit 2.
14. Cf. D. 41.2.1.4 with D. 24.1.1, supra.
pression in the edict of the praetor, in that law of the praetorian office known as the ius honorarium (see infra, chap. IX). Grcenidge” and Costa“ long since emphasized the close connection between legal custom and the praetorian edict. When the law-making faculty of the praetor came to be recognized, the edict became the chief embodiment of established legal customs; only when the edict was compiled - i.e., given its final form - did custom, asserts Costa, assume an independent character as a source of law. ” The fullest picture of legal custom within the praetorian law and the ius gentium is perhaps that set forth by Pernice, at the turnoflhecentury.'*He calls attention to the emphasis upon relationship by blood in the praetor’s law, whereby primitive customary practices are converted into legal norms; to the action granted for the recovery of the dowry at the dissolution of the marriage; to the edict fixing the liability of shipmasters, innkeepers and stablemen. In similar fashion Pemice sees in the adaptation of certain contracts to the use of foreigners, such as the stipulation, the infiltration of legal custom into the ius gentium. Thus, as far as Roman law in city Rome was concerned, the jurists did not attribute the legal principles and institutions which they developed to customary law; the source of the creative achievements in the Roman law of the classical epoch was ascribed to the acknowledged spheres of the ius civile and the ius honorarium.
b. Mos (consuetudo) regionis (provinciae)
§ 97 Ulpianus, Libro Ide officio proconsulis (D. 1.3.33)
Long-standing custom (diuturna consuetudo) is wont to be observed in lieu of law (pro iure) [ondsiaiute] in those matters which are not derived from [written Zow].
The text of Ulpian as conjectured by von Liibtow, Volk 513.
Paulus, Libro I quaestionum (D. 1.3.37)
If there is a question as to the interpretation ofa statute, it is first to be inquired what rule of law the city state previously used in similar cases: for custom (consuetudo) is the best interpreter of statutes.
Ulpianus, Libro XXXV ad edictum (D. 26.7.7.10)
... He (the guardian) will be liable for interest for other reasons in accordance
15. Grcenidge, Procedure 91-93,
16. Costa, Storia delle fonli 42—43.
17. Costa. Cicerone I 36.
18. Pemice, SZ 20(1899) 127, 128-42.
with the usage of the province (mos provindae), either five percent or four percent, or for any lower rate if this is practiced in the province.
This portion of the text seems genuine.
Gaius, Libro X ad edictum provinciate (D. 21.2.6)
If a plot of land shall have been sold, security against evia ion is given on the basis of the usage of that region (consuetudo regionis) in which the transaction has been made.
Lenel, EP 568 n.l, conjectures [against eviction] is interpolated.
Callistratus, Libro IV de cognitionibus (D. 22.5.3.6)
... The divine Brothers rescripted: ‘ Whatever relates to the calling of witnesses is for the action of the judge to determine what the usage (consuetudo) shall have been in that province in which he judges...
Cf. also D. 50.2.11 (Callist. 1 cogn.)
Paulus, Libro lad edictum (D. 2.12.4)
The governors of provinces are wont to fix the time for harvest and for vintage in accordance with the usage of the particular locality (consuetudo loci).
I mperatorconstantinus Augustus ad proculum (c. 8.52.2) (319 A.D.)
The authority of custom (consuetudo) and long-continuing usage (usus) is not to be taken lightly, but it is not to prevail to the extent of overcoming either reason or statute.
The role of customary law in the provinces is quite distinct from that in city Rome during the classical period. Many believe that the majority of the passages at the close of D. 1.3 relate to provincial or regional custom (consuetudo provinciae, mos regionis, etc.), although the compilers intended them to refer to the law of the empire as a whole.¹ D. 1.3.32 was originally concerned with excuse from the liturgical duties required of provincials;¹ D. 1.3.33-34 are extracts from a work of Uipian on the provincial governor; D. 1.3.37 and D. 1.3.38 treat of the use of custom (? local) for the purpose of the interpretation of statutes.’
When classical jurists, then, refer to custom they may well have reference ^[585] ^{^[586] ^[587] to local or provincial law (Volksrecht) in contrast to state law(Reichsrecht), a topic dealt with, infra, in chap. XII. A stimulating new approach to the nature of the local law of the province of Egypt seems to tie in directly with this notion of customary law in the provinces. In the proceedings of the Twelfth International Congress of Papyrology,⁴ Modrzejewski advanced the view that the law of the Egyptian people, when conquered by the Romans, was reduced to the status of customary law, an ensemble of juridical traditions of a subject people? Three groups of rules persisted in varying strengths: (I) the vestiges of the legislation of the Ptolemies. (2) the norms applicable in Alexandria and other city states within Egypt, and (3) the legal customs prevalent in the remainder of the country (χώρα). The local law of Egypt continued to be operative save insofar as it was replaced by 'provincial law’ of Roman origin, or by Roman law itself. The local law is the consuetudo (mos) provinciae (or regionis) of the Roman jurists. Modrzejewski concludes? 'In the first phase (1st and 2nd centuries) the local laws survive in the practice as foreign customs, outside the sphere of application of the Roman law.... The second phase... follows the generalization of Roman citizenship by Caracalla; after 212 A.D. local laws are included within the legal system of the empire as provincial customs.’ Whether the view of Modrzejewski is correct or not, and whether the same situation existed in other provinces - at least in other eastern provinces - it is too early to say, but the thesis does fully meet the views of the Roman jurists respecting local or provincial custom?}
c. Constant Decisions and Case Law
§ 98 Callistratus, Libro 1 quaestionum (D. 1.3.38)
In fact, our Emperor Severus rescripted that where doubts occur In statutes custom (consuetudo) or the authority of constant decisions to the same effect should have the force of statute.
Ulpianus, Libro IV de officio proconsulis (D. 1.3.34)
Wien anyone seems confident as to the custom of a city state or of a province.
4. Modrzejewski, 'La rtgle de droit dans 1’Egypte romaine', Proc. Xlith intern. Cong, of Papyr. 317-77.
5. In an earlier study on the rule of law in Ptolemaic Egypt, Essays Welles 125, 149-56, Modrzejewski pointed out that the Greek terms i*i.W and rttog, normally rendered ‘statute' and ‘custom’, serve to indicate whether or not the norm was a direct manifestation of legislative power. In the Roman period the two terms are used interchangeably to express ‘statute’ or ‘custom’.
6. Op. dt., n.4, supra, 367-68 (translation by the author).
7. Further on local custom, see Lauria, lus 224 f,; Schmicdel, Consuetudo, chap. 2; Crook, Law 28 f.
/ am of the opinion that the first matter to be explored is whether the custom has ever been confirmed in some contested decision.
On ‘contested decision’ (contradicto iudicio), see Kipp, Geschichte 22 n. J 8.
Ulpianus, Libro VIIIde omnibus tribunalibus (D. 50.13.1.10)
Regarding the fees ofattorneys, the judge ought to be concerned that he fix the sum in accord with the nature of the case and the skill of the attorney, according to court usage and practice (fori consuetudine et iudicii) where he was to be hearing (the case}, so that it did not exceed the amount of permitted fee; and this is set forth in a rescript of our emperor and his father....
IMPERATOR ALEXANDER AUGUSTUS apro evocato (C. 8.52.1) (224 A.D.)
The governor of a province, after proof of what has been repeatedly decided in the same type ofcontroversies in (that) community, having investigated the case. will decide. For preceding custom (consuetude praecedensJand the reason which led to the custom are to be considered, and the governor of the province shall see that nothing should be done contrary to long-standing usage.
The second sentence (For preceding custom-long-standing usage) is not found in a second version of the same rescript, C. 8.10.3.
IMPERATOR ANTONINUS AUGUSTOS AULUZANO (C. 4.19.2)
Seek possession which you allege belongs to you in accordance with court practice (more iudiciorum). It is not incumbent upon the possessor to show that these things belong to him since ownership remains with him ifyou fail in proof Further instances of court practice (mos iudiciorum) in C. 2.12.10 (227 A.D.); 4.50.3 (228 A.D.); 7.21.4.1 (228 A.D ); 2.3.14 (241 A.D.); 9.2.4 (241 A.D.); 5.62.15(243 A.D.).
Petition of Dionysia (P. Oxy. II 237.VII. 12-16) (186 A.D.)
For no law permits wives to be separatedfrom their husbands against their will; and if there is any such law it does not apply to daughters of a marriage by written contract and themselves married by written contract. In proof of my contention and in order to deprive Chaeremon (my father) of even this pretext, I have appended a small selection from a large number of decisions on this question given by praefects, procurators and chief justices, together with the opinions of lawyers, all proving that women who have attained maturity are mistresses of their persons, and can remain with their husbands or not as they choose.
Followed by reports of decisions of a praefect (128 A.D.), a procurator (133 A.D.), and a chief justice (87 A.D.), as well as by a lawyer in behalf of Dionysia herself.
Petition of Apollonarion (P. Oxy. VI 899.24-32) (200 A.D.)
Since the village scribes are imposing upon her the obligation of cultivating her father’s land in defiance of the regulations forbidding this, and it has been decided by praefects and procurators from time to time that women are not to be forced to undertake this duty, she offers that she is ready to read these judg~ merits so that she may be released from the cultivation, which pertains only to men. Parmenion (the judge) said: ’Let the judgments upon such cases be read. ’ There were read a decree of Tiberius Alexander in the second year of Galba (69 A.D.) forbidding women to be made cultivators, and a decision of Valerius Eudaemon to the same effect in the fifth year of Antoninus (142 A.D.), and another of Minidus Corellianus, procurator. in the tenth year of Antoninus Caesar, the lord (147 A.D·). Whereupon Parmenion said: Tn accordance with the judgments which have been read Tathun... has the right to be releasedfrom the cultivation... and other cultivators for the land ought to be appointed in her stead. ’
Other instances of citation of judgments as precedent: P. Cairo Preis. 1 (2nd cent.); BGU I 19 [= M. Chr. 85] (135 A.D.); SB 7601 (135 A.D ); BGU III 970 [ = M. Chr. 242] (177 A.D.); P. Lend. Inv. 2565 [ = SB 7696] (250 A.D ).
There are a few passages in the Digest where the authority of a series of decisions to the same effect in a particular locale is said to have the force of statute. Most scholars have considered this to be a phase of law founded on custom.¹ Brie declared that the rale applied only to decisions rendered in the rescripts of the emperors? Weiss stressed that there are only three references in the juristic writings which point directly to judicial decisions serving as precedents (D. 1.3.34; D. 1.3.38; C. 8.52.1), and the first and last of these definitely refer to provincial practice? He emphasized that it was the repetition of the holding that gave the rale its binding force. The constant practice provided the norm for the judge.
Most Roman law scholars on the continent have treated constant court decisions to the same effect as a form of customary usage, but to the English and the occasional American writer the question is posed whether this situa- ^[588] ^{^[589] ^[590] tion is not to be analogized to Anglo-American case law.^[591] The generally accepted view is that expressed by Buckland and McNair:^[592] ^{^[593] ^[594] ^[595] ^[596] in principle the Roman law had no case law, for the decision of one court did not establish a precedent binding if the same point arose again. However, a current of decisions in the same sense did influence judges; to these authors, however, this is no more than evidence of expert opinion respecting the law, much like the ‘jurisprudence’ in the courts of civil law countries today. Jolowicz is unwilling to go to such length,⁴ and declared: ‘Precedent, though unrecognized in the lawyers’ lists of sources... undoubtedly played some part in the development of the law.’ In a brilliant study on case law in Roman Egypt¹ he describes the practice of reporting cases in the official diaries of the magistrates who presided over judicial proceedings. Copies of judgments extracted from such diaries were frequently made for the purpose of using them as authorities for legal principles. A number of such collections have been preserved among the papyri? When pertinent, citation of cases from such collections was employed in the arguments of counsel to persuade the judge to accept the previous decisions as persuasive, if not binding, precedent in the case at hand. The colloquies in the Petition» of Dionysia and in the Petition of Apollonarion are two of the instances Jolowicz introduces? Jolowicz further argues that there is no reason to consider case law a form of custom.^[597] ^{^[598] The final portion of the article seeks to prove that the practice of citing cases for legal points is of Roman, not provincial, origin, but that possibly, with the growing use of jurists’ responsa in the early empire, less attention was paid to precedents in Rome. It had been a republican practice?¹ and was developed in the province of Egypt after annexation by Rome. The views of Jolowicz raise intriguing questions regarding both the role of case law as well as the relation of precedent to}}}
$ 98 custom, but they do not seem to have stirred up any discussion?² In a fairly recent treatment of the role of constant decisions von Liibtow maintains that the authority of cases to the same effect may be of importance in local and provincial law, but that in the law of Rome itself‘jurisprudence’ does not exist as a factor in the building of the legal system?’ He further notes that D. 1.3.38 is the single passage in the sources which mentions court usage; Jolowicz’s study is not mentioned?⁴ Other studies of more recent date apparently add nothing further?⁵
This concludes the jurists’ consideration of custom as a source of the classical law. What they did with the concept of customary law has been reserved for the chapter which deals with the theories of law, and of its divisions, in the views of the jurists, chap. XIII.
12. Bescler, Stadl Riocobono 1288 and n. I, had referred to auctoritas ret iudicatae (authority
of decided cases) of the republican period, but the context is unclear, and. according to von Lübtow, Studi II 358, incorrect
13. Von Lübtow, Volk 526-29.
14. Von Lübtow, Volk 529 n.351, does cite the reference to the papyri upon which Jolowicz relied, from Schiller, Virginia L. Aev. 24 (1938) 278 f,
15. No discussion of case law found in Schmiedel, Chnsnetw^o, or in Stühff, Vulgarrecht-}

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

B. LEGISLATION AND CUSTOM

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