10 POST-CLASSICAL LAW AND PROCEDURE

As the government became more bureaucratic, so did legal procedure. The formulary procedure, with the division of the action into two stages, one under the control of a magistrate and the other in the hands of a layman, was abandoned.

No appeal had been possible against the judgment of a lay iudex. The decision of the layman was historically an alternative to a decision based on the ordeal, the judgment of God, and no appeal is possible from the judgment of God. A party who could show that the iudex had ‘made the cause his own’ (litem suam fecit) by bias or incompetence could bring an action against him personally but the judgment itself had to stand. Under the new procedure appeals were possible from judges at first instance to higher courts, through the judicial hierarchy up to the court of the emperor himself.

Compared with the formulary procedure, the cognitio procedure was profligate of professional time. Junior judges spent a great deal of time hearing and recording evidence and senior judges spent their time hearing appeals. Nevertheless the new procedure, like the governmental structure, was copied by the Church in its own administration and was the forum in which the early canon law developed. It was later to have a decisive influence on continental civil procedure.

Apart from the staff of the imperial chancery (for the flow of rescripts continued unabated) and the judges of the court system, each of the hundred or so provincial governors and each vicarius of a diocese needed a legal assessor to advise him. They acted anonymously and, unlike Paul or Ulpian, made no contribution to legal literature. There was no reduc­tion in the number of lawyers but there was a sharp diminution of their quality. The best brains, who had been attracted to law in the second century, turned away from it. The social upheavals of the time were such that clever men preferred to contemplate the heavenly city rather than deal with the problems of the earthly city. The period of legal decline saw the flowering of theological thought represented by patristic litera­ture. Indeed Tertullian, the earliest Latin Church Father, began his career as a lawyer and then abandoned it.

Quite apart from the quality of the personnel involved, the abandon­ment of the formulary procedure had certain effects on the law. Since it was no longer necessary to choose a particular formula, it was possible to bring an action without identifying precisely what was the legal basis of the claim. Under the earlier procedure the division of function between the praetor and the iudex was reflected in a separation of the law from the facts. Now that one judge heard the whole case, that dis­tinction became blurred. The legal issues could gradually emerge as the case proceeded. Technical terms lost their technical meaning and this led to a loss of precision in the law itself.

For example, the classical law made a sharp distinction between own­ership and possession. Often the same person both owns and possesses a thing but it is possible to be the owner, in the sense of being entitled to have it, while someone else has physical control of it. The owner who was out of possession had a special action, the vindicatio, by which he ‘vin­dicated' what he claimed was his from the person in possession.

So also the classical law distinguished between a contract to dispose of property, such as an agreement to sell it, and the actual transfer of ownership from the seller to the buyer. The contract was part of the law of obligations, since it imposed duties on the seller to transfer the prop­erty and on the buyer to pay the price, but it had no direct effect on own­ership. Until the conveyance, the property remained the seller's and the conveyance was part of the law of physical things. Now that distinction too became blurred and we are told that ‘ownership is transferred by a sale'.

To those who appreciate the precision and exact ways of thought characteristic of the classical period, such cases give post-classical law a sloppy, degenerate appearance. It is unscientific and they designate it ‘vulgar law', by analogy with the vulgar Latin of the period during which it was being transformed into the separate Romance languages. Others stress that law has to adapt itself to the conditions of the society to which it applies. If they demand more informality at the expense of technicality, that should be seen as a sign of legal vitality and ‘organic growth'.

The spread of citizenship throughout the Empire, following on the Constitutio Antoniniana, coupled with the relaxation of control of the prov­inces by the central government, meant that Roman law was now no longer the same everywhere. What had hitherto been a uniform law, applicable to citizens wherever they lived, was becoming provincialised and appeared in different guises in different provinces.

The provincial variants of Roman law were categorised as local custom. Until now the relationship between local custom and general law had not been a great problem. The classical jurists had held that, although frequently law is derived from custom, it only becomes law when it is filtered through one of the recognised sources of law, such as magisterial edict or imperial rescript. Nevertheless a custom of purely local scope could be valid, if it supplemented and did not contradict the law. For example, the law of sale allowed the parties to fix the terms for themselves and provided rules that applied in the absence of specific agreement. Such a rule was that the seller was liable if the buyer were evicted from the thing sold. Normally such liability had to be guaran­teed, but the precise extent of the liability, for example, whether the seller should provide not just one surety but two, could be left to local custom. It could be assumed that, unless they stated differently, the parties made the contract with that custom in mind. Such a supplemen­tary custom was therefore valid.

The jurists occasionally speculated about the basis of the authority of such local custom and argued that, just as a statute owes its authority to the will of the people, expressed formally by vote of the popular assem­bly, so a customary rule owes its authority to the will of the people, expressed by their practice.

In the third and fourth centuries the extent of local customs increased and the imperial government tried to control the recognition of custom as law in situations where the custom did not merely supplement the law but seemed actually to conflict with it. In 319, the Emperor Constantine recognised that the authority of custom and long usage was significant and could not be overlooked, but that it could be valid only to the extent that it did not override either reason or written law (C. 8.52(53).2).

The difficulty facing those who sought to maintain some consistency in the application of Roman law was that it was often a considerable task to establish just what it was. A fourth-century practitioner would know that he should find the relevant law in writings of authoritative jurists, such as Paul or Ulpian. This was easier said than done, as Paul's com­mentary on the praetorian edict was in eighty books and Ulpian's in eighty-one books. Earlier jurists would have made frequent consultations of such works and would have made themselves familiar with their con­tents.

The hard-pressed lawyers of the early fifth century preferred to avoid such consultation, if possible, and relied more on Gaius's Institutes, in which the whole law was set out in only four books. The Institutes and its author gained greatly in prestige in the post-classical period. What the lawyers of the time wanted were rules of thumb, which they could apply without bothering about their rationale.

The lawyers of the time were not really capable of making their own judgment about whose works to consult and what to do when the writ­ings that they consulted disagreed. They wanted imperial direction and this was provided by the Law of Citations of 426 ad, issued in the names of Theodosius II, emperor of the east, and Valentinian III, emperor of the west (both grandsons of Theodosius I). The Law elevated five jurists to the status of primary authorities: Papinian, Paul, Ulpian, Modestinus and Gaius. The first three, the giants who dominated the last phase of classical law, practically chose themselves and Modestinus, a pupil of Ulpian, was the last jurist of note. The significant feature of the list is the inclusion of Gaius, which demonstrates the popularity of his works in the post-classical period. The law also allowed reference to secondary works cited by the five primary authorities, but since manuscripts of their works would be scarce and unreliable, such reference required comparison of manuscripts. In practice, therefore, it was only the five jurists who counted. If their opinions differed, the majority view should be accepted. If the numbers were equal, Papinian's view prevailed. Only if the numbers were equal and Papinian was silent could the judge make up his own mind on the matter. The reduction of law-finding to a purely mechanical process is testimony to the fact that Roman legal science had reached its nadir.

The law found in juristic writings was now referred to as ius, in con­trast with that derived from imperial legislation, for which the designa­tion was lex. The spate of imperial enactments required ordering and systematisation. Two private collections of imperial constitutions, mostly rescripts, were made at the end of the third century, called Codex Gregorianus and Codex Hermogenianus, after their compilers. In the fifth century the imperial authorities felt that an official compilation was required and in 429 Theodosius II appointed a commission to make a collection of all imperial legislation enacted since the time of Constantine.

The original plan contemplated a second collection which would combine legislation and juristic writing into a grand plan of life for all the citizens of the empire (C.Th.1.1.5). As the work proceeded, however, the inclusion of juristic writings was abandoned and the compilers were permitted to abbreviate and alter the text of the laws they included, so that they should state the law actually in force. The whole compilation in sixteen books, with the laws arranged in titles in chronological order, was completed early in 438. The work was conceived and executed in the eastern empire but copies were sent to the west, where it was approved by the Emperor Valentinian III and the senate.

The original text of the Theodosian Code has not survived but it has been substantially reconstructed. It is a major source for the political and economic history, as well as for the legal history, of the late empire but it is not easy to use, as the language is grandiloquent and often obscure. Its constitutions seem to have been drafted by imperial officials who felt that it was more important that imperial legislation should reflect the splendour of the imperial office than that it should be intelligible to those who had to follow its precepts. In the west, at least, it had to be supple­mented by idterpretatioder, to explain its contents in simple language.