Some comments on the character of Roman jurisprudence
The most characteristic feature of classical Roman jurisprudence was its predominantly technical, strictly legal, nature. The jurists were men who dedicated themselves exclusively or essentially to the interpretation of the extant source material and the application of legal rules and principles in individual cases.
Although they sometimes played a part in the law-making process as advisers or draftsmen, they did not consider it part of their tasks to analyse the law from ethical, historical or other more general points of view, nor were they interested in the laws and customs of other nations, save insofar as these could be incorporated into the conceptual framework of their own legal system. Notwithstanding their open-mindedness towards the phenomena of social and economic life, they did not observe and comment on the law from the outside, as a philosopher, moralist or sociologist would do. Of course, as members of the educated upper classes, the jurists came into contact with the intellectual and ideological movements of their times and both their tasks and habits of reasoning were to some extent influenced by them. Thus, it is not surprising that they were familiar with Stoic philosophy and its notions of natural law and natural justice and that they held, essentially, such humane and enlightened views as were common stock among the ruling classes of the empire. However, there is little evidence in their work to suggest that they took a direct interest in constructing all-embracing philosophical theories of law or that they consciously and systematically put into use philosophical and ethical principles and precepts in their treatment of the law. They were practical lawyers who were primarily concerned with the application of the law as it stood through the exercise of mature judgement and practical wisdom in each case that came before them, while taking into account the position taken by earlier jurists in similar cases. In general, their attitude towards the law was conservative: they endeavoured to preserve the system within which they worked, while at the same time developing it by exploring new ways of putting its institutions to satisfactory practical use. In this way they created a system and a science by means of which they managed to develop the law according to the needs of a complex and growing society.In carrying out the work of interpretation the jurists sought to arrive at the contents of the law by means of logical deduction from extant sources, utilising methods borrowed from Greek rhetoric and philosophical logic;[996] they also relied upon intuitive insight into the problems that arose out of various factual situations - insight based on their familiarity with previously decided cases and earlier juristic opinions. The jurists were fully aware of the problems arising from the fact that the tenor and the intended meaning of a legal text did not always coincide and of the significance of the linguistic context as a tool by means of which texts are understood more thoroughly than if examined in isolation. In their interpretations they usually proceeded from consideration of the letter (yerba) of the relevant law (statute, edict, imperial constitution, senatorial resolution) and continued with an inquiry into the intention, purpose or 'spirit' of the law (sententia). Depending upon whether a legal rule had been expressed in broad or narrow terms, they sought to make more concrete through a restrictive construction or expand through an extensive construction the scope of the relevant provision. In dealing with problems relating to silence of or ambiguity in the law they often relied upon the methods of comparing and analogy and utilised such general concepts as
The Classical Period of Roman Law 305 aequitas, utilitas and humanitas^ Of particular importance in the work of interpretation was the concept of aequitas, which was often relied upon to correct or expand existing rules of law so that they could better meet the needs of social and commercial life.[997] [998] It is important to note, however, that the jurists never formulated a systematic theory of legal interpretation which had the characteristics of a coherent and closed system but confined themselves to the establishment of catalogues of intellectual tools and general interpretative maxims.
A unique quality of the jurists was their ability to look beyond the accidental elements of the individual case, the species facti, and to define the relevant legal problem as a quaestio iuris - i.e.
as a question of justice that had to be answered in the light of certain general principles. Indeed the development of Roman legal science in the classical period involved the ever-broader formulation of general principles of law and their systematisation. This process of abstraction and simplification is natural enough, and is indeed inevitable if the law is to consist in anything more than a collection of particular rules; but it carries with it the danger that a rule, once formulated, tends to dominate legal life rather than to accommodate itself to it. The legal genius of the Roman jurists was shown in their ability not only to erect abstract propositions by way of analysis of their law, but also to make their abstractions sufficiently flexible to be synthesised into new principles when subsequent experience showed that changes in the law were desirable.[999]
More on the topic Some comments on the character of Roman jurisprudence:
- Ill CHARACTER AND TENDENCIES OF ROMAN JURISPRUDENCE IN THE HELLENISTIC PERIOD
- Some comments on the character of the Justinianic codification
- CHARACTER AND TENDENCIES OF JURISPRUDENCE IN THE ARCHAIC PERIOD
- Ill CHARACTER AND TENDENCIES OF CLASSICAL JURISPRUDENCE
- This chapter addresses the spirit, style, and character of the Roman jurists, the true architects of the Roman legal system.
- The Culmination of Roman Jurisprudence
- II CHARACTER AND TENDENCIES OF LEGAL SCIENCE IN THE BUREAUCRATIC AGE
- The end of classical jurisprudence
- 1. The reipersecutory character of the remedy
- 2. The penal character of the remedy
- Early history of jurisprudence
- The Dutch Elegant Jurisprudence
- The late classical jurisprudence
- APPENDIX IV. THE ESSENTIAL CHARACTER OF MANUMISSION1. ITERATIO.