Sources of law in the Empire

2.3.1 An overview

T he period of the Empire before the accession of Justinian can be divided into two halves. In the classical period, corresponding broadly to the first two-and-a-half centuries AD, some of the earlier sources of law (particularly the legislative assem­blies and the praetorian edicts) gradually lost their importance, whilst other sources, e.g.

2.3.2 Legislation

By far the most important source of legislation in the Empire was to prove the imperial decree. In the early years of the period, the Republican assemblies and the Senate were still responsible for some important law reforms.

2.3.2.1 Republican assemblies

Augustus was anxious to preserve elements of the Republican constitution. Since the assemblies represented (in theory) the sovereign will of the people, Augustus was astute enough to make considerable use of them in effecting the extensive changes that he desired. The assemblies had been rather inactive as regards law reform in the late Republic. Their revival under Augustus could thus be seen as a return to the good old days of stability and wise government unknown to Rome for over a hundred years. A series of enactments was passed that had a substantial effect on the operation of the civil law, especially regarding slavery, matrimonial law, and the law of inheritance.

2 3.2.2 The Senate

Although the Senate had a pronounced influence on legislation in the Republic, it had no direct law-making powers. However, in the early Empire, the Senate increasingly came to be regarded as the primary organ of legislation in place of the Republican assemblies. The close association between the emperor and Senate—he was its leading member—resulted in its resolutions, senatus consulta, being regarded as very persua­sive. The Senate came to be identified with the imperial will, putting into legislative Effect the policy of the emperor. And, it began to exercise very strict control over magistrates, depriving them of a large measure of their former discretionary powers.

When did senatus consulta become legally binding? In the first century AD, the Senate passed a number of measures that had the force of law (enforceable through praetorian remedies). These senatus consulta can be described as ius novum, a new form of law—senatorial directions that magistrates were bound to observe, and which were given the force of law through the exercise of their imperium. An impor­tant early example was the 5. C. Silanianum AD 10:

Ulpian, Edict, book 50: As no home can be safe except if slaves are compelled to guard their masters both from members of the household and from outsiders at the risk of their own lives, senatus consulta have been introduced concerning the questioning on public authority of the household slaves of those who have been killed.

The aim of this law was to punish slaves who failed to protect their masters from attack. All slaves living in the household of a master who was murdered in his own house were liable to be put to death after questioning and torture (see Harries, ]., 'The Senatus Consultum Silanianum: Court Decisions and Judicial Severity in the Early Roman Empire', in New Frontiers, 51-70). Not surprisingly, this law sometimes provoked riots, as on the occasion in Nero's reign when some 400 slaves belong­ing to a murdered consul were put to death. Another example of an early senatus consultum was the 5. C. Claudianum AD 52, which was concerned with cohabita­tion between female citizens and male slaves (see 4.3.3.2). It seems that ius novum included many senatus consulta concerned primarily with the routine administra­tion of the State, intended to implement the many facets of imperial policy. See A. Schiller, Roman Law (1978), ch. 10.

It was probably in the reign of Hadrian that senatus consulta acquired direct bind­ing force without the need for praetorian intervention. The S. C. Tertullianum c. AD 130, an amendment of the law of intestacy (see 8.3.3.1), appears to have been the first senatus consultum to have had direct binding force. But the Senate had by this time become a tool of the imperial will, automatically confirming the Emperor's proposals. Its importance as a legislative organ gradually waned, even if emperors still went through the motions of seeking the Senate's ratification of their propos­als. By c. AD 200, the Senate had to all intents and purposes ceased to make law.

2.3.2.3 The Emperor

Ulpian, Institutes, book 1: A decision given by the Emperor has the force of a statute. This is because the populace commits to him and into him its own entire authority and power... (D.1.4.1pr.)

This statement by the late classical jurist, Ulpian, is something of an ex post facto rationalization. In his time, it was certainly not doubted that the Emperor could make law.

Imperial law-making was of overwhelming importance in the later Empire. Legislation became the exclusive preserve of the Emperor. And once the jurists ceased to influence the law, Roman law was reformed by imperial decree alone. Modern scholarship recognizes four main forms of imperial decree: edicta, decreta, mandata, and rescripta, but there is some debate about the inclusion of mandata in this list, see Tellegen-Couperus, Short History, s. 9.2.3.

2.3.2.4 Edicta

The Emperor, in common with high-ranking magistrates, had the power to issue edicts. But whereas magistrates' powers were limited by their specific jurisdiction, the Emperor could make edicts about an unlimited range of matters. However, it became the practice from Augustus onwards for the Emperor to consult his advis­ers before issuing an edict. A number of advisory bodies emerged in the early Empire, but the one with greatest influence on legislation was the judicial council. Originally, it was an informal body, assisting the emperor when he acted as a judge in cases brought before him. It later became permanent, advising the Emperor on the general development of the law. Hadrian was largely responsible for making the judicial council, staffed by leading jurists, an indispensable institution of the impe­rial government. One can assume that the edicts issued in the Emperor's name were the result of a consultative process with his jurists.

There was some doubt in the early Empire as to the longevity of imperial edicts. In theory, since edicts of magistrates had force only during their term of office, those of the Emperor lapsed on his death.

The scope of imperial edicts was very wide, affecting every area of law. One of the best known was Augustus's edict justifying the torture of slaves in exceptional circumstances:

Paul, Adulterers, book 2:1 do not think that interrogations under torture ought to be requested in every case and person; but when capital or more serious crimes cannot be explored and investigated in any other way than by the torturing of slaves, then I think that those [inter­rogations] are the most effective means of seeking out the truth and I hold that they should be conducted. (D.48.18.8pr.)

Other famous imperial edicts included the constitutio Antoniniana AD 212, extend­ing citizenship throughout the Empire; the Edict on Prices AD 301, imposing a maximum on certain prices and wages; and the Edict of Milan AD 313, ending the persecution of Christianity.

2.3.2.5 Decreta

Emperors had extensive judicial powers. They could decide cases on appeal or at first instance. The extent to which emperors exercised their powers varied enor­mously. Some took an obsessive interest in judicial proceedings—Augustus reput­edly heard cases well into the night on occasion. The Emperor was normally guided by advisers from his council, even if he had some expertise in the law, as had, e.g. Nerva (AD 96-8). He was concerned to apply existing law but had considerable discretion in its interpretatio. He could presumably devise new principles and could even overrule existing law, although his council would normally advise caution against any radical departure from the ius civile.

Decisions by judges usually affected only the actual parties in the case—the deci­sions were not regarded as precedents of general applicability. But imperial decreta were different. They were reported and filed in the imperial archives. And, because they were made by the Emperor, they came to be regarded as authoritative.

2.3.2.6 Mandata

These were instructions from the Emperor, acting on the advice of his council, to subordinate officials concerning the performance of their duties. Provincial governors and proconsuls, in particular, were the recipients of a steady stream of such orders. Among the most memorable was the following:

Ulpian, Duties of Proconsul, book 1: A proconsul is not absolutely obliged to decline gifts, but he should aim for a mean, neither sulkily holding completely back nor greedily going beyond a reasonable level for gifts. On this subject the Deified Severus and the present Emperor Antoninus have most delicately given guidelines in a letter, whose words are as follows: 'So far as concerns presents, attend to what we say: there is an old proverb 'neither everything nor every time nor from every person'. For certainly, it is unmannerly to accept from no one, but to take from everyone is utterly contemptible and to take everything offered is sheer greed'. (D.1.16.6.3.)

Mandata usually consisted of detailed administrative instructions—hardly the stuff of exciting legal development. It could be argued that this was not law at all, espe­cially as mandata were often an abbreviated version of imperial edicts or other forms of legislation. But, not all mandata were tedious administrative orders. Consider, for example, the following dramatic exhortation:

Paul, Sabinus, book 13: The governor of a province has authority only over the people of his own province.... Sometimes he has power even in relation to non-residents, if they have taken direct part in criminal activity. For it is to be found in the imperial warrants of appoint­ment that he who has charge of the province shall attend to cleansing the province of evil men; and no distinction is drawn as to where they may come from. (D.1.18.3.)

It was the practice for mandata to be dispatched with the new governor of a prov­ince. In the case of Pliny the Younger, appointed governor of Bithynia by Trajan (AD 98-117), the mandata clearly were not precise enough since an exchange of letters was necessary concerning the interpretation of the instructions. It was Trajan who was responsible for the famous mandate that allowed soldiers to make infor­mal wills (see 8.4.2.6).

2.3.2.7 Rescripta

These were written replies from the Emperor to questions or petitions addressed to him. It was rescripts that provided perhaps the richest source of imperial legislation. There were two kinds of rescript: epistulae (letters) and subscriptiones (notes attached to an existing document). The former were replies to queries from officials or public bodies about their rights and duties. They were handled by a special office 'of let­ters' (ab epistulis) staffed by jurists. The reply was in the form of a letter signed by the Emperor:

Ulpian, Duties of Prefect of the City, sole book: The Emperors Severus and Antoninus issued rescripts to Junius Rufinus, prefect of the city guard, in the following terms: 'You can also order to be beaten with sticks or flogged those flat-dwellers who have kept their house-fires carelessly.' (D.1.15.4.)

(Cf. the wording of the written reply given by the Emperor Antoninus Pius to Aelius Marcianus in Inst.1.8.2.)

Subscriptiones were answers to queries from private citizens. The queries had to be presented in the form of a petition (libellus) (rather than a letter) since private citi­zens were not normally permitted to write to the Emperor. The query was dealt with by the bureau of petitions (a libellis), which would attach its answer to the petition. The whole document was then signed by the Emperor. An answer to a legal query effectively rendered unnecessary the further pursuance of the matter in court. As the office of petitions was usually staffed by the leading jurists of the day, the issuing of subscriptiones became an ideal medium for the interpretation and development of the law. For example, the secretaryship of the office appears to have been held in turn by Papinian and Ulpian. See Honore, A. M., Ulpian (1982).

2.3.3 Edicts of the magistrates

In the early years of the Empire, praetors continued to be elected, to issue edicts, and to control the pre-trial stages of litigation. However, as in the case of the Republican assemblies, the importance of the praetors gradually waned during the first century AD. The prestige of the office suffered on account of the further increases in their number, and because the praetorship came to be seen largely as a reward for loyalty to the Emperor. Moreover, as the domination of the Emperor over the State increased, the importance of its magistrates declined. The praetors lost their influence on legal development, especially after Hadrian commissioned his leading jurist, Julian, to draft a revision and consolidation of the praetorian edicts. The publication of Julian's consolidation, the Edictum Perpetuum, in c. AD 135 was probably not originally intended to end all development of the ius honorarium. Indeed, praetors continued to issue the edict at the beginning of their year of office; but they no longer had any opportunity to be innovative. Consequently, the Edictum Perpetuum came to be regarded as the final version of the praetorian edict as regards structure and content, although there was still a need to interpret it.

2.3.4 The classical jurists

It was the jurists of the classical period who gave Roman law its distinctive colour, and who enabled it to have such great influence on later civilizations. However, their work was essentially a continuation of that of the Republican jurists. The main change was in relation to how jurists worked rather than what they did. They were increasingly employed by the State, first on an ad hoc basis, then regularly— especially from Hadrian's reign onwards. This trend is emphasized by Kunkel in Roman Legal and Constitutional History (1966), ch. 7. He distinguishes between three stages within the classical period—early, mid-classical (AD 96-180), and late—during which the collective character of the jurists changes from that of essentially private individuals to one of very close connection with the Emperor. To some extent, the jurists became glorified civil servants and bureaucrats; but not wholly, for many of them resembled their Republican predecessors in holding some of the important bureaucratic offices of State. Their work consisted mainly of advising, teaching, and writing.

Consult the online resources for a list of the jurists of the Empire and their biographies.

2.3.4.1 Advising

Undoubtedly, the most important advice was that given to the Emperors in the jurists' capacity as members of the imperial councils. 'Advice' must be understood i a broad sense—it included the drafting of imperial decrees. Moreover, the practice giving responsa to judges, magistrates, private citizens, and litigants continued, ^Jecially in the early classical period. But there was an interesting development in ^B reign of Augustus:

Pomponius, Manual, sole book:... before the time of Augustus the right of stating opinions at large was not granted by Emperors, but the practice was that opinions were given by people who had confidence in their own studies. Nor did they always issue opinions under seal, but most commonly wrote themselves to the judges, or gave the testimony of a direct answer to those who consulted them. It was the deified Augustus who, in order to enhance the author­ity of the law, first established that opinions might be given under his authority. (D.1.2.2.49.)

Pomponius describes here the ius respondendi, the right that was conferred on some jurists to give responsa sanctioned by the Emperor. Long before the reign of Augustus, the problem of conflicting opinions had arisen. Augustus attempted to make some responsa more authoritative than others. A written reply given under seal to a judge by a jurist with the ius respondendi was to be regarded as highly per­suasive, if not strictly binding. There was probably a political motivation behind this development: by conferring what was seen as a favour, Augustus was more likely to earn the loyalty of the type of men whose support was vital to him. It can be presumed that most of the leading jurists of the early classical period were granted the ius respondendi, although there is little concrete evidence of the identity of the actual recipients.

The later history of the ius respondendi is unclear. It would appear that by Hadrian's reign, the problem of authority had arisen again. Gaius, a jurist writing not long after Hadrian's death, states that responsa are the opinions of men permitted to lay down the law. If the opinions are unanimous, they have binding force; but if they are not, the judge can choose which to follow (Inst.Gai.1.7.). He attributes this rule to a rescript of Hadrian. It would appear that the rescript was emphasizing that responsa were binding only if given by jurists with the ius respondendi and provided that the opinion was unanimously held by such jurists. Hadrian was probably plan­ning to abandon the practice of granting the ius respondendi. Little is heard about the practice after his reign, (see Bauman, Lawyers and Politics, ch. 9).

2.3.4.2 Teaching

Legal education in the era of the classical jurists broadly followed the traditions established by the Republican jurists. There were perhaps more jurists willing to give formal lectures and classes, but teaching remained generally informal, aspir­ants learning juristic skills by attaching themselves to eminent jurists. The loy­alty and allegiance that this system encouraged led to the emergence of differing schools of legal thought. This development originated in the reign of Augustus, and involved the two leading jurists of the time, Labeo and Capito:

Pomponius, Manual, sole book: These two men set up for the first time rival sects, so to say. For Ateius Capito persevered with the line which had been handed down to him, whereas Labeo... set out to make a great many innovations.... And so when Ateius Capito was succeeded by Massarius (read Massurius) Sabinus and Labeo by Nerva, these two increased the above- mentioned range of disagreements. (D.1.2.2.47.-8.)

The rivalry between Labeo and Capito appears to have been both political and jurisprudential. Labeo, a staunch Republican, dared to refuse the consulship from Augustus. Capito, on the other hand, was a fervent supporter of Augustus. As regards legal issues, the above text suggests that Labeo was a progressive, Capito a conserva­tive. Certainly, in Labeo's case, the mantle of progressive innovator was apt since he was responsible for some interesting and important contributions to Roman law, e.g. the doctrine of unjust enrichment (see 9.9.2). The differences between Labeo and Capito were accentuated by their followers. It was probably for that reason that the two schools came to be named, not after their original founders, but after two zealous disciples, Proculus and Sabinus—hence the Proculians (adherents of Labeo) and the Sabinians (followers of Capito). Some scholars have attempted to trace the origins of these schools to the days of Scaevola and Servius, but there is insufficient evidence to justify such speculation. For a good survey of the teaching activities, see Harries, J., 'Legal Education and Training of Lawyers', in OHRLS, 151-63.

Hadrian had little time for conflicts and disputes between his leading jurists. So, the tradition of rivalry faded in his reign; but legal disputes did not, and jurists continued to propose conflicting solutions, even if they no longer acknowledged allegiance to any particular school.

There were many disagreements between the schools, often presented in the form of set disputations. It is likely that all the leading jurists before Hadrian regarded themselves as members of one or other of these schools. But it must not be imagined that every jurist blindly followed the position adopted by his school. What were the differences between the Proculians and Sabinians? First, it is clear that whatever had been the political differences between Labeo and Capito, political allegiance was not a major distinguishing factor between the schools. We find Republican sympathizers in both camps in the early years of the Empire. But personal allegiance was an important factor, ties of friendship and family (as well as teacher and stu­dent) playing a part in encouraging support for one school rather than another. Other differences may be detected, although none can satisfactorily account for the conflicting opinions in all the known disputes. Proculians tended to favour reasoned decisions based on principle, whereas Sabinians were more pragmatic in their approach, generally trying to find the most practical and fair solution on the merits of each particular case:

The Sabinians countered the Proculian emphasis on logic by stressing the importance of custom and practice. It was more important to them that the law should conform to the facts of life, both in the physical and in the social sense, than that it should be rational. Where the Proculians appealed to the ratio, the logic, of the civil law, the Sabinians justified a rule by reference to the nature of things, natura rerum. (Stein, Character and Influence, 45.)

Stein considers that the differences between the two schools were to some extent a reflection of the grammarian controversy between the analogists—who believed that language was orderly and governed by general rules—and the anomalists— who viewed language as the product of usage and practice.

A striking example of the difference in approach between the schools was the controversy concerning the age at which males reached puberty, and thereby potentially acquired legal capacity. For the Sabinians, the question turned on the physical development of the individual child: in cases of doubt, a physical exami­nation might be necessary. The Proculians, on the other hand, favouring an objec­tive rule applicable to all, regarded the attainment of the age of fourteen years as the criterion (their rule prevailed). Several other disputes will be considered in later chapters. On the law schools, see Viton, P. A., 'On the Affiliations of the Severan Jurists’ (1980) 46 SDHI, 507-11; and the interesting, yet controversial argument by Tellegen, J. W., 'Gaius Cassius and the Schola Cassiana in Pliny's Letter' vii, 24,8 (1988) 105 ZSS (rA), 263-311, that the 'schools' were sections of the Senate special­izing in current legal problems whose leaders were given the ius respondendi. (See also the criticism raised against Tellegen's argument by Van den Bergh, G. C. J. J., Seeing Roman Law as History?’ (1989) 106 ZSS (rA), 573-4; and see also, compre­hensively, Bauman, Lawyers and Politics, chs. 1, 2, 8, and 9.)

2.3.4.3 Writing

The classical jurists continued the literary traditions of their Republican predeces­sors, but the literature of the classical age was more varied and certainly more volu­minous. The character of classical legal writing was primarily casuistic, i.e. involving extensive discussion of cases, both actual and hypothetical. There was little abstract reasoning, philosophical inquiry, or historical content. Neither did the jurists reveal in their writings any particular bent for law reform, although many of them were involved in the drafting of imperial decrees. Nor did they appear interested in moral, political, social, or economic issues, or even procedural questions. Watson, in Spirit of Roman Law, considers that the absence of such factors in juristic literature demonstrates legal isolationism: 'Roman jurists argue as if they lived in a vacuum, remote from economic, social, religious, and political considerations' (66). So, what was it that informed juristic literature? It was the jurists' concern with interpret­ing and expounding the law, 'striving for clarity of legal concepts' (Watson, Spirit of Roman Law, 40). (For criticisms of this view, see Tellegen-Couperus, O. E. and Tellegen, J. W. 'Artes Urbanae: Roman Law and Rhetoric’, in New Frontiers, 31-50.) In achieving a high degree of conceptualization, the jurists employed techniques of reasoning which have proved fundamental to the development of Western juris­prudence: 'The Roman legal tradition was characterized not so much by its substan­tive rules as by its intellectual methodology. Between about 100 BC and AD 250 the Roman jurists developed techniques of analogical and deductive reasoning which produced a jurisprudence of enormous refinement and sophistication' (Roman Law Tradition (1994), 1). For a good survey of the cognitive strategies employed by the classical jurists, see Babusiaux, U., 'Legal Writing and Legal Reasoning', in OHRLS, 176-87.

The main categories of classical juristic literature were:

(a) Problematic literature This is a description for a group of works that focused on the discussion of difficult legal questions, problems, and cases. It is the problematic literature that can be most obviously described as casuistic and, therefore, as par­ticularly characteristic of juristic output. The most substantial collections of prob­lems are to be found in works entitled Digesta—e.g. that of Julian (in ninety books). Smaller collections, consisting mainly of opinions given by jurists in matters spe­cifically referred to them, were entitled Responsa, Quaestiones, or Disputationes.

(b) Commentaries Large-scale commentaries on the ius civile and the edicts of the praetors constituted a highly important category of writing, often comprising the most substantial works of the leading jurists. For example, Pomponius' commen­tary on the Edict consisted of 150 books (but the 'books' of that period were akin to modern chapters). Ulpian's Ad edictum and Ad Sabimim were heavily excerpted by Justinian's Digest commissioners (see 2.5.3.1).

(c) Monographs These specialized treatments of a particular statute or legal topic continued to be written in the classical period. Hadrian's bureaucratic reforms led to an increase in the number of monographs concerned with the performance of public duties by magistrates and other officials.

(d) Textbooks The increased emphasis on legal education in the early Empire resulted in the publication of works intended specifically for the use of students, a notion uncommon in the Republican era. The Institutes of Gaius, written c. AD 160, was the best-known textbook from the classical age, if not necessarily the first.

(e) Notes and epitomes These were comments by jurists on extracts from pub­lished works of other jurists, a category of literature that did occasionally provoke controversy, ft was the most suitable form of writing when criticism was the main object of the author. For this reason, notes and epitomes were the least reliable of the juristic works.

(f) Practitioner materials This was a group of works intended primarily for legal practitioners but of use also to students, e.g. collections of basic rules and pro­cedures, brief summaries of rules, and principles. They were called (variously) Regulae, Definitiones, Sententiae. See generally, on juristic literature, Schulz, History of Roman Legal Science (1946) and Schiller, Roman Law (1978).

2.3.4.4 Some outstanding jurists

. Consult the timeline on the online resources for dates.

Labeo, credited with founding the Proculian school.

Pomponius, Manual, sole book·. Labeo declined to accept office when Augustus made him an offer of the consulship.... Instead, he applied himself with the greatest firmness to his stud­ies, and he used to divide up whole years on the principle that he spent six months at Rome with his students, and for six months he retired from the city and concentrated on writing books. (D.1.2.2.47.)

(a) Labeo Labeo was a prolific writer, the author of a diverse range of works, including commentaries on the Twelve Tables and the praetorian edicts. His opin­ions and works were seminal in the development of the Proculian school, and his innovatory thinking enriched the development of Roman law. Labeo was probably the first jurist to stress the importance of analogy in legal reasoning; this became a major characteristic of the Proculian school. He was a distinguished scholar, undoubtedly the outstanding jurist of the period of transition from Republic to Empire.

(b) Sabinus In contrast to most jurists, he had an unprivileged background, never held high office, and was supported by his students:

Pomponius, Manual, sole book:... to Sabinus the concession was granted by Tiberius Caesar that he might give opinions to the people at large. He was admitted to the equestrian rank when already of mature years and almost fifty. He never had substantial means, but for the most part was supported by his pupils. (D. 1.2.2.50.)

Such was his reputation, that the Sabinians were named after him. He is known for certain to have received the ius respondendi. His chief contribution as an author was his commentary on the ius civile in three books—not many when compared to the efforts of some jurists. It appears to have been little more than an outline summary of the law; but it was treated as a work of the front rank, inspiring major commen­taries on the civil law by later jurists such as Paul and Ulpian.

(c) Julian He was possibly the most distinguished of all Roman jurists. An inscription found in Tunisia (from where he originated) lists the numerous offices that he held, including that of quaestor, tribune, praetor, consul, and governor of Germany, Spain, and Africa. These honours were achieved over a long career, serv­ing a succession of distinguished Emperors—Hadrian, Antoninus Pius, and Marcus Aurelius—during Rome's greatest years. Under Hadrian, he was given the task of consolidating the Edict (see 2.3.3), which suggests that he was pre-eminent among his contemporaries. The Tunisian inscription speaks of the doubling of his salary

i^as Quaestor on account of his 'extraordinary legal knowledge'.

Julian became head of the Sabinians—indeed, the last head. The era of rivalry between the schools appears to have ended in his time. The suggestion that this was the result of Julian's pre-eminence amongst his contemporaries is unconvincing since it underestimates the importance of Celsus, the last head of the Proculians. Celsus was an em inent teacher and prolific writer, perhaps not quite Julian's equal but, nevertheless, a distinguished jurist. Julian's published works were numerous and of the highest quality. His style was a model of clarity and elegance. His great­est work, his Digesta, was regarded as an exemplary casebook, a catalyst for some of the important work of the late classical jurists.

(d) Pomponius He took a particular interest in Roman legal history, his works— especially the Enchiridion, an elementary account of legal history—being the source of much of the historical material to be found in Justinian's codification. Moreover, Pomponius wrote important commentaries on Scaevola and Sabinus, and an extensive treatment of the praetorian Edict. A contemporary of Julian, he confined his activities mainly to writing and teaching, and appears not to have held high office in the imperial government.

(e) Gaius Similar in several respects to Pomponius (a contemporary), Gaius was a jurist of the Sabinian school, a teacher, and writer who did not hold high office. He was not well-known in his day, but acquired posthumous fame through his most important work, his Institutes. This textbook for students came to be regarded as a model exposition of the law. Its simplicity and lucidity ensured it lasting influence in the post-classical era and beyond. Justinian based his own Institutes, an important part of his codification, on Gaius’ work. Gaius pro­pounded a tripartite division of the law into 'persons', 'things', and 'actions', a classification which was to prove seminal in Western jurisprudence, see Kelley, D. R_, 'Gaius Noster: Substructures of Western Social Thought' (1979) 84 American Historical Review, 619-48.

As the focus in his Institutes was on exposition and summarization rather than on casuistic analysis, the work may seem to lie outside the mainstream of clas­sical juristic literature; but this was a factor that partly accounted for the work’s later popularity. It is the only juristic work of the classical period to have survived substantially intact—a fifth-century manuscript (thought to be authentic and virtually complete) was discovered in Verona in 1816. Gaius wrote several other important works, including valuable commentaries on the ius civile and on the provincial Edict. Res Cottidianae ('Everyday matters')—traditionally attributed to Gaius—was another elementary work to have acquired considerable posthumous popularity.

Gaius' career remains something of a mystery. Hard facts are scarce, speculation plentiful. He appears to have lived or travelled outside Rome for a substantial part of his career. But his firm adherence to the Sabinian school throws doubt on the possibility that he was simply a jurist rooted in the provinces. He may have started his juristic career in Rome but then carried on his work in the eastern provinces. See generally Honore, A. M., Gaius (1962).

(f) Papinian His Quaestiones (thirty-seven books), and Responsa (nineteen books), were two of the outstanding examples of problematic literature. Papinian earned a formidable reputation and attained the highest office, becoming praefectus prae- torii, chief of the praetorian guard (the Emperor's closest adviser), in AD 203, hav­ing previously been the head of the office of petitions. He visited Britain in AD 208, experiencing the delights of York in the company of Paul, Ulpian, and the Emperor Septimius Severus. The accession of Caracalla proved to be fatal for Papinian: the jurist's alleged refusal to condone the murder by Caracalla of the Emperor's brother cost Papinian his life in AD 212.

(g) Paul A somewhat enigmatic character about whom little is known for cer­tain. Early in his career, he appears to have been engaged in teaching and advo­cacy. Later, he acted as assistant to Papinian and held high office. He was a prolific author, his work demonstrating a critical intellect and a considerable range in terms of subject-matter and category of writing: elementary works for students and practitioners, several monographs, problematic works, notes and epitomes, col­lections of decisions, and large-scale commentaries on the ins civile and the Edict. His Sententiae was used extensively in the lex Romana Visigothorum (see 2.4.3.3). His reputation and influence in the post-classical era was immense. Only Ulpian is more extensively quoted in Justinian's Digest.

(h) Ulpian His career illustrates the increasingly prominent role being played in the affairs of Rome during the course of the Empire by men from the provinces. Ulpian was a Syrian, probably born in Tyre. His writings were voluminous and are extensively quoted in Justinian's Digest, one-third of which consists of pas­sages from Ulpian. He may perhaps have lacked the critical insight of Paul, but his writings were considered to be models of clarity, simplicity, and reliability. Ulpian gained a reputation as a scholar, possessing an unrivalled knowledge of juristic literature and displaying an interest (unusual for a jurist) in philosophical issues. For Ulpian, law was the highest form of philosophy: it was concerned with notions of right and wrong and consisted of rational rules free of prejudice: see generally Honore, A. M., Ulpian (1982). Ulpian's writing dates mainly from AD 213-17 and appears to have been intended as a single-handed codification of the law. Honore controversially argues that Ulpian probably felt that there was a need for a compre­hensive exposition of the law for the peoples of the Empire following the general grant of citizenship in AD 212 by the constitutio Antoniniana (which he may have personally drafted). The chief works were Ad edictum and Ad Sabinum, as fine as any written in that genre.

Ulpian held several offices in the imperial government. He was probably the head of the office of petitions in the early years of the third century. Later, he became chief of the Praetorian Guard under Alexander Severus, but showed a lack of adroitness in his tenure of the office, incurring the enmity of his own guards—they murdered him, probably in AD 223, allegedly in the presence of the Emperor.

(i) Modestinus Definitely not in the class of that formidable late classical trio, Papinian, Paul, and Ulpian; Modestinus is, nevertheless, important as perhaps the last distinguished jurist of the classical period. Ulpian refers to him as his 'pupil': Ulpian, Edict, book 37: If someone drove off my male ass and set him loose among his own mares to impregnate them, he will not be guilty of theft unless he has a theftuous intent; I gave this reply to my pupil, Herennius Modestinus, who consulted me from Dalmatia con­cerning horses to which a man was alleged to have submitted his mares for the same purpose, that he would be liable for theft if he had guilty intent... (D.47.2.52.20.)

Modestinus held only minor office in government, but allegedly gained influence at the imperial court. As a writer, he eschewed the large-scale commentary, concen­trating instead on student handbooks, practice manuals, and monographs.

2.4