The Culmination of Roman Jurisprudence

As previously elaborated, the legal history of the late republican era is marked by the emergence of the first secular jurists (iurisprudentes, iurisconsulti).

The administrative and judicial authorities in the Principate age faced new demands generated by the empire’s ever-increasing administrative complexity, the expansion of the Roman citizenship in the provinces and the proliferation of legal transactions prompted by the growth of trade and commerce. These new demands could not be adequately addressed without the active assistance of learned jurists. It is thus unsurprising that not only did the jurists’ advisory role increase in importance, but they also commenced a direct involvement in governmental tasks.

Continuing the role of their republican predecessors, the jurists of the Empire were engaged in diverse activities in the legal field: they presented opinions on questions of law to private citizens, magistrates and judges (respondere); helped litigants on points of procedure, interpreting laws and formulas in their pleas and occasionally arguing cases as advocates themselves (agere); and drafted legal documents, such as contracts and wills (cavere). However, composing new formu­lae for use in the formulary procedure was no longer a regular task of the jurists. The reason is that by the beginning of the Principate era the contents of the praetorian and aedilician edicts were largely fixed and adequate legal remedies existed. The jurists were also engaged in the systematic exposition and teaching of law. In performing this task, they composed opinions when their students raised questions for discussion based on hypothetical cases.

In the Principate age, the giving of opinions on legal questions (respondere) evolved as the most important aspect of the jurists’ work. An important change regarding this task occurred in the early years of this period, when the princeps- emperor began to grant certain jurists the right to present opinions and deliver them by the emperor's authority (ius publice respondendi ex auctoritate principis). During the Republic, the jurists’ responsa had not been legally binding but the judge trying a case would normally accept the opinion of a jurist. By the end of this period, the number of jurists practicing in Rome had greatly increased and it was difficult to ascertain precisely which opinions should be relied upon when they all carried the same weight. As a result, the practice of law was thrown into a state of confusion. Partly to resolve this problem and partly to establish some imperial control over the jurists, Augustus is said to have issued an ordinance investing the opinions of certain pre-eminent jurists with increased authority.^[176] The granting of this privilege did not curtail the activity of the unpatented lawyers, although it doubtlessly diminished their influence. However, it gave the response of its pos­sessor as authoritative a character as though it had proceeded from the emperor himself. Although judges were not in principle obliged to accept the opinions of the jurists with the ius respondendi, in practice it was very difficult for a judge to ignore the advice of a jurist whose responsa were reinforced by the emperor's authority.^[177] It may have been understood that the opinion of only one patented jurist was to be sought in any single case, for in the early Principate there seems to have been no provision determining the conduct of a judge when the opinions of his advisers differed.

From a historical perspective, probably the most important of the jurists' activ­ities was the writing of legal works. The great majority of juristic works had a casuistic and practical nature: they were developed from legal practice and written primarily for legal practitioners. Only their expository works, such as elementary textbooks and manuals, exhibited the jurists' adoption of a more theoretical approach to law. Depending upon their subject-matter and structure, the literary works of the classical jurists may be classified as follows:

(a)    Responsa, quaestiones, disputationes, epistulae—collections of opinions or replies delivered by jurists with the ius respondendi. Works of this kind were generally written for practitioners and usually embodied two parts: the first part contained juristic opinions arranged according to the rubrics of the praetorian edict (ad edictum), while the second part linked the opinions with the leges, senatus consulta and constitutiones principum that they addressed.

(b)    Regulae, definitiones, sententiae—short statements of the law that originally related to specific cases, but were later reformulated in the form of legal principles with a more general nature. Couched in terms easily recalled, these works were ‘rules of thumb’ manuals intended for use by legal practi­tioners and probably also students.

(c)    General works on the ius civile. Some of these works were known as libri ad Sabinum or ex Sabino as they were modelled on the systematic treatise on the ius civile (Libri III iuris civilis) written by Massurius Sabinus, a famous jurist of the early first century ad and head of the school of the Sabinians. Others drew upon the earlier work of the jurist Q. Mucius Scaevola, who lived in the first century BC. Essentially, these works were based on the jurists’ interpreta­tion of the provisions of the Law of the Twelve Tables together with the later development of the institutions of the civil law.

(d)    Commentaries on the ius praetorium (or ius honorarium), referred to as libri ad edictum.

(e)    Digesta—comprehensive treatises on the law dealing with both the ius civile and the ius honorarium.

(f)     Institutiones or enchiridia—introductory or expository textbooks written pri­marily for students at the beginning of their formal legal education.^[181]

The jurists also wrote treatises on individual leges or senatus consulta, hand­books describing the functions of various imperial officials, and commentaries on the works of earlier jurists. Among the juristic literature of the classical period, the Institutes of Gaius is the only work that survives in its original form. The remaining literature is discoverable chiefly in the citations that appear in the Digest of Justinian and other later compilations of law.^[182]

As previously noted, a distinctive feature of Roman jurisprudence was its strictly legal and predominantly casuistic nature. The jurists did not consider it part of their tasks to critique the law from sociological, ethical, historical or other broader 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. In general, their attitude towards the law was conservative: they endeavoured to preserve the system in which they worked while at the same time developing it by exploring new ways to put its institutions to satisfactory, practical use. In the Principate era, the need arose to further systematize the casuistic method adopted by the republican jurists. In response to this need, the jurists of this period created a system and a science that enabled them to develop the law in new directions in line with changing socio-economic circumstances. The starting-point of a systematic statement of law was often a settled case that was then compared with other real or fictitious cases. Other elements contributing to the process were norms (e.g. statutes and juristic regulae) as well as various standards used in the normative discourse (e.g. bona fides). The function of such elements was mainly explanatory, pedagogical or informative rather than persuasive (especially in jurid­ical treatises): the jurists sought to illustrate the relevant norm or principle through cases demonstrating its actual operation, without immersion in theoretical argument. But Roman jurisprudence did not stop at the level of a purely pragmatic casuistry. As already noted, a remarkable 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. Their legal genius was exhibited in their ability to render their decisions or decision-propositions in concrete cases sufficiently flexible for future synthesis into new principles when subsequent expe­rience showed that change was desirable. Although they kept strictly to the doctrines of their law, they understood the sociological import of its rules. The combination of a sure instinct for the necessities of life with the conscious application of firm principles imparted eternal value to the accomplishments of the jurists.

Like their republican predecessors, the jurists of the Empire attached particular importance to the concept of aequitas and its role in correcting or expanding the existing body of law so it could meet the demands of social and commercial life. This is reflected in the definition of ius, or law in a broad sense, attributed to the jurist Celsus as the art of doing equity (ius est ars boni et aequi) or, in other words, a technical device for obtaining that which a good man’s conscience will endorse.^[183] The test of the bonum et aequum in this era was still the ius gentium, the norms governing civilized society as construed by the Romans. But the Roman ius gentium was now declared binding because it was also natural law (ius naturale), based on natural reason.^[184] The ‘law of nature’ was a familiar concept to many philosophical systems of antiquity but acquired a more concrete form with the Stoic school of philosophy. The Stoics’ starting-point was the idea that the world is an organic whole, an intimate combination of form and matter and an order of interdependent tendencies, governed by a divine, rational principle (Nous, Logos) and moving towards a pre-determined end (telos).^[185] The word ‘nature’ (physis) is used to refer to this cosmic order and to the structures of its component parts. Natural law, as founded in the natural order of things, exists as a reflection of right reason (recta ratio) and is universally valid, immutable and has the force of law per se, i.e. independently of human positivization.^[186] Compliance with its rules is a prerequisite for attaining justice (iustitia), as the essence of law (ius) in its broadest sense. Although the Stoics’ philosophical views on the ideal law or the ultimate nature of justice apparently had no profound effect on the way the Roman jurists executed their traditional tasks, the concept of natura provided an important device for the articulation and systematization of the law. However, the jurists did not juxtapose the law governing social relations in everyday life to a code of ideal natural law functioning as a master model. They developed the content of natura in close connection with the practical aspects of legal life and always in response to concrete needs and problems emerging from actual cases. From their viewpoint, discovering the appropriate legal rule or devising an acceptable solution to a legal problem presupposed a reasonable familiarity with both the nature of practical reality and the ordinary expectations that social and legal relations entailed. In this respect, the postulates of nature did not emanate from metaphysical speculation but from the findings of common sense and the need for order in human relations. Thus, in the eyes of the jurists, certain methods of acquiring ownership were ‘natural’ or derived from natural law as they appeared to follow inevitably from the facts of life such as traditio (the most usual form for transferring ownership, involving the informal transfer of actual control over an object on the basis of some lawful cause, e.g. a contract of purchase and sale); and occupatio (the acquisition of the actual control of a res nullius, an object belonging to no one). Of course, such methods of acquisition were regarded as universal and therefore as facets of the ius gentium: the law actually observed by all humankind. The fact that the Roman jurists regarded natural law, in the manner described above, as juridically valid is implied by their identification of ius naturale with ius gentium. This prevailed even though the former term referred to the supposed origin of a rule or institution and the latter to its universal application. If natural law is interpreted as law that ought to be observed, the identification of ius naturale and ius gentium is untenable as certain institutions of the law of nations clearly conflicted with natural law precepts. Thus while according to natural law all people were born free, slavery was widely recognized in antiquity as an institution of the law of nations. In view of this detail, the most one can say from a moral-philosophical perspective is that the universal recognition of an institution as part of the law of nations could be regarded to constitute prima facie evidence that such an institution originates from natural reason. The Roman jurists, however, never drew a clear distinction between positive law and law as it ought to exist, nor did they adopt the philosophical conception of natural law as a higher law capable of nullifying positive law. They were not social reformers and their conception of natural law does not embrace anything resembling a revolutionary principle to support those rights that are termed in the modern era as ‘inalienable human rights’. Thus, no matter how such institutions as slavery or the division of property appeared contrary to natural law they were still perceived as perfectly justified and legal. Ius naturale significantly contributed to Roman legal thought, but as a professional construction for lawyers it had little relevance to moral philosophy. It was not viewed as a complete and ready-made system of rules but primarily as a means of interpretation existing in conjunction with the ius gentium to enable the Roman jurists to test the equity of the rules they applied.^[187] In this way, ius naturale played a key part in the process of adapting positive law to changing socio-economic conditions and shaping the legal system of an international empire.

The group of jurists responsible for the development of Roman legal science in the early imperial epoch was always small in scale at any particular time. Never­theless, over the course of nearly three centuries their total attained a considerable scale. Today we are aware of many jurists from fragments of their works incorpo­rated in post-classical compilations of law and from references located in various historical sources. Important sources of our knowledge on the lives of the classical jurists are Pomponius’ Enchiridium, embodied in the Digest of Justinian and containing a survey of jurisprudence until the time of Hadrian; various literary works by authors such as Tacitus, Aulus Gellius, Pliny the Younger and Cassius Dio; and a number of inscriptions. At this point, it is important to identify the most important jurists and the period of their activity. The examination may be divided into three time periods: the early period (27 bc to c. ad 80), the high classical period (c. ad 80 to c. ad 180) and the late period (c. ad 180 to c. ad 235).

The jurists of the early Principate period hailed from urban Roman families or from the Italian municipal aristocracy, and so they possessed a thoroughly Roman background. According to Pomponius, the jurists of this period divided themselves into two schools (sectae) that formed around two political rivals: Marcus Antistius Labeo and Gaius Ateius Capito.^[188] An opponent of the Augustan regime, Labeo never progressed further in his public career than the office of praetor and the traditional account holds that he declined an offer of the consulship from Augustus because of his republican convictions.^[189] Reputedly an innovator and an excep­tionally gifted jurist, he composed numerous highly influential works that included commentaries on the Law of the Twelve Tables and the praetorian edict, a treatise on pontifical law and collections of responsa and epistulae. At the time of his death, his written works amounted to 400 volumes. The school established by Labeo was named after the jurist Proculus, and so was designated the School of the Proculians (Proculiani). Capito, elevated to the position of consul by Augustus who he supported, was known for his adherence to traditional juristic sources.^[190] He produced relatively few works that included a book de officio senatorio; collections of epistulae; and treatises on pontifical and public law. The school founded by Capito was named after his successor Marcus Massurius Sabinus and so was known as the Sabinian School. However, the meaning of the term ‘sectae’ used by Pomponius is not clear as very little is known about the organization and functions of the two schools. It appears that these schools were not places of instruction in law, although it is very probable that young lawyers were mainly educated within the framework of the ‘school’ community. In all likelihood, the schools were in the nature of aristocratic clubs with their own techniques and courses of training, and each centered around a succession of distinguished jurists. In this respect, they resembled the Greek philosophical schools that had existed since the republican era as organized quasi corporations whose direction and management were transferred by one master to his successor. Information reveals that the two schools differed on a great array of individual questions of law. However, the surviving examples do not display the alleged conservatism of the Sabinians or the reformatory spirit attributed to the Proculians. In contrast to the Greek philosophical schools, there were apparently no deep-rooted theoretical differences that separated the two schools.^[191] This induces the conclusion that the schools differed only with respect to the techniques they adopted for dealing with concrete questions of law rather than in their general attitudes or principles. From the little we know, it appears that the Sabinians tended to adhere to the letter of the law while the Proculians emphasised the importance of considering the purpose or spirit of the relevant law in the interpretive process. The doctrines of each school must have derived from the accumulated opinions of their successive heads on different questions of law, perpetuated by tradition and adopted on account of conservatism and a sense of loyalty.^[192] The Sabinian and Proculian schools seem to have disappeared by the end of the second century ad, as no evidence indicates that the leading jurists of the third century were members of either school.

Massurius Sabinus, whose name is attached to the earlier school of Capito, occupies an exceptional position amongst the jurists. He was not a member of the senate nor did he make his career in politics, and he only gained admittance to the equestrian class later in life. Nevertheless, Emperor Tiberius granted him the ius publice respondendi in recognition of his outstanding ability as a lawyer.^[193] His chief work was a comprehensive treatise on the ius civile in three books that exercised a strong influence on Roman legal thought and was subjected to extensive commentary by later jurists in works known as ‘ad Sabinum'.^[194] Other works attributed to Sabinus included a commentary on the edict of the praetor urbanus; a collection of responsa; a monograph on theft (defurtis); and a commentary on the lexIulia de iudiciis privatis.^[195] Another leading jurist of this period was C. Cassius Longinus, a student of Sabinus whom he succeeded as head of the Sabinian School.^[196] He attained the urban praetorship and the consulship (ad 30), and served as governor of Asia and Syria several times between the years ad 40-49. His chief work, an extensive treatise on the ius civile, is known to us mainly from references and fragments integrated in the writings of later jurists.

The jurists of the high and late Principate periods (ad 90-180 and ad 180-235 respectively) were predominantly natives of the provinces and descendants of Roman and Italian families who had settled outside Italy. A notable feature of this age was the increasingly close connection between the jurists and the imperial government. This link, originally established through the ius respondendi, was strengthened under Hadrian’s reign (ad 117-138) and an increasing number of jurists joined the imperial administration as holders of high state offices. The first major jurist of the high classical period was Iavolenus Priscus, who was born about ad 55 and still alive during Hadrian’s age. He had an illustrious military and political career: he was consul in ad 86, served as governor of Upper Germany, Syria and Africa and was a member of the imperial council from the time of Nerva (ad 96-98) to the early years of Hadrian’s reign. lavolenus is best known for his Epistulae, a collection of opinions in 16 books. He also published commentaries on the works of earlier jurists (libri ex Cassio, exPlautio) and a collection of texts from Labeo’s posthumous work posteriora. Fragments of these works were included in the Digest of Justinian. Another leading jurist was Publius luventius Celsus (filius) who succeeded his father, a little known jurist of the same name, as head of the Proculian School. He held the praetorship (ad 106) and consulship (ad 129), served as governor of Thrace and Asia Minor, and was a member of the consilium principis under Hadrian. His works include a set of 39 books of Digesta as well as collections of epistulae and quaestiones. He was held in high esteem by his contemporaries and was frequently cited by later jurists. Probably the most important jurist of the second century was Salvius Iulianus, believed to have been born in Hadrumentum in the province of Africa. Like other distinguished jurists, he held a rich succession of offices (tribune, praetor, consul, pontifex, governor of Germany, Spain and Africa) under the emperors Hadrian, Antoninus Pius and Marcus Aurelius. He also served as a member of the imperial councils of Hadrian and Antoninus Pius. The most important works he composed were the consolidation of the praetorian Edict (c. ad 130) and his Digesta, a collection of responsa in 90 books. The Digesta exercised a potent influence on the legal thinking of the imperial period, as exhibited by the numerous references to this work by later jurists and the mass of fragments embodied in the Digest of Justinian.

Two more jurists of this period deserve mention with a focus on their activities as writers and teachers rather than their innovative contribution to Roman legal thinking: Sextus Pomponius and Gaius.

Pomponius lived in the time of Hadrian and Antoninus Pius and was a man of great knowledge and an enormously prolific writer. Yet, his work is characterized by clarity rather than by originality or depth. He appears to have acquired notoriety as an antiquarian rather than as a lawyer, even though some of his doctrinal writings are mentioned by later jurists and numerous fragments were included in the Digest of Justinian. No evidence indicates that he ever held public office and it is unknown whether he was granted the ius publice respondendi as no responsa of his are mentioned. His works included three treatises on the ius civile written in the form of commentaries on earlier juristic writings (ad Quintum Mucium, ad Plautium, ad Sabinum); an extensive commentary on the praetorian edict (discoverable in cita­tions by later jurists); two comprehensive collections of casuistic material (epistulae and variae lectiones); and a series of monographs on various subjects (stipulationes, fideicommissa, senatusconsulta and such like). Pomponius’ best- known work is the Enchiridium that embodies a short outline of Roman legal and constitutional history that spans the period from the kings through to his own day. The relevant fragment has been preserved in its entirety in Justinian’s Digest, under the title ‘de origine iuris’ (‘on the origin of law’) and, despite its gaps, constitutes an important source of information on the historical development of Roman law.^[197]

Although Gaius is one of the most renowned jurists of the Principate period, there is scant information on his life except for the material emerging from his writings.^[198] Internal evidence suggests that he lived during the reigns of Hadrian (ad 117-138), Antoninus Pius (ad 138-161) and Marcus Aurelius (ad 161-180), and that he was a Roman citizen.^[199] His style of writing and his knowledge of Eastern laws and customs have been construed to suggest that he was a teacher of law in a province within the eastern half of the empire, probably Asia. However, presently no convincing evidence exists to support this hypothesis. Since he refers to the leaders of the Sabinian school as ‘our teachers’, it is very likely that he studied law in Rome, and was thoroughly familiar with Roman law as practiced and taught by the leading lawyers of the capital. In contrast to his contemporary Pomponius, who was held in great respect and frequently cited by classical writers, Gaius is not mentioned by any of them. This suggests that he was not accepted as a member of the select group of jurists who possessed the ius respondendi. He was probably one of the many lesser jurists outside this select group, rescued from oblivion by the later recognition of his elementary treatise, the Institutes, as a major document of classical Roman law.^[200] The Institutes (Institutiones), was designed as an introductory textbook for students and was written about ad 160. Until the 1816

discovery of the Institutes text in Verona,^[201] only fragments of the juristic literature from this period survived through later compilations of law such as the Digest of Justinian. Although the manuscript unearthed at Verona dates from the fifth or early sixth century ad (more than three centuries after Gaius’ time), it is now generally perceived as a faithful reproduction of Gaius’ original work. The importance of the Institutes is twofold. In the first place, it is the only juristic work from the Principate era that we have inherited nearly in its original length and form. Therefore, the work is an important source of classical Roman law. Secondly, the relative simplicity and lucidity of Gaius’ style made the Institutes ideal for the ordinary lawyer and the student; thus it was heavily relied upon in later Roman law. Gaius’ textbook was used as a model by the compilers of Justinian’s Institutes, which played an important part in the reception of Roman law in Western Europe since the High Middle Ages.^[202] Gaius also published commentaries on the Law of the Twelve Tables, the provincial edict (edictum provinciale) and the edict of the praetor urbanus; monographs on various legal institutions; and collections of opinions.

The most highly esteemed jurists of the late Principate period (ad 180-235) were Aemilius Papinianus, Iulius Paulus and Domitius Ulpianus.

Generally regarded as the greatest of the late classical jurists, Papinianus was a lifelong friend of Emperor Septimius Severus (ad 193-211).^[203] In ad 203, the emperor elevated him to the position of prefect of the praetorian guard (praefectus praetorio)—the emperor’s chief of staff, principal adviser and executive officer in civil and military matters.^[204] Emperor Caracalla ordered the murder of Papinianus in ad 212 because, it was rumoured, he had refused to devise a justification for Caracalla’s murder of his own brother and co-regent Geta. Papinianus did not compose general treatises and his works were mainly collections of opinions and discussions of special topics. These works included 37 books of quaestiones and 19 books of responsa that also contained references to opinions of other jurists and to judicial decisions adopted by the emperor and the prefects. He also composed a collection of definitiones (in two books) and a monograph on adultery. In keenness, breadth of reasoning and clarity of presentation his works were unsurpassed, and his authority settled the law for centuries on many controversial issues.^[205] Numerous fragments of Papinianus’ works were preserved in the Digest of Justinian and other post-classical compilations of law.

Like other leading jurists of this period lulius Paulus, a contemporary of Papinianus, had a brilliant career in the imperial civil service: he was head of the chancery a memoria, member of the consilium principis during the reigns of Septimius Severus and Caracalla, and praefectus praetorio under Alexander Seve­rus. He was an enormously prolific writer and presented great commentaries on earlier legal works. His best-known work is a comprehensive commentary on the praetorian edict in 80 books (ad edictum). Among his writings are also a treatise on the ius civile in 16 books (ad Sabinum); commentaries on various leges, senatus consulta and the works of other jurists (lulianus, Scaevola, Papinianus); two collections of decreta; and numerous monographs on various subjects in public and private law. An extensive collection of extracts from Paulus’ works, known as Pauli sententiae, was widely used during the later imperial period.^[206] The authority of Paulus’ writings was confirmed in the Law of Citations (ad 426) where he is listed as one of the ‘important five’ jurists of the Principate period.

Domitius Ulpianus, a pupil of Papinianus, held various imperial offices during his lifetime that included head of the chancery a libellis, praefectus annonae, praefectus urbi and (from AD 222) praefectus praetorio. However, his political influence made him unpopular among the members of the powerful praetorian guard and this led to his assassination in ad 223. Ulpianus is probably the most industrious of all the Roman jurists. His contribution to juristic literature includes 51 books on the ius civile (ad Sabinum libri LI); 83 books on the edict (ad edictum libri LXXXIII); 2 books of responsa; a legal manual for beginners in two books (institutiones); collections of regulae and definitions; and numerous monographs on individual statutes, various state offices and matters of legal procedure. A thorough assessment of Ulpianus’ ability as a jurist is difficult as only fragments of his many works exist. Yet, modern scholars regard him as one of the most learned and elegant writers on the law, if not the most brilliantly original. The extent of his influence can be judged by the fact that almost half of Justinian’s Digest (about 42 %) is comprised of fragments extracted from his writings.

In the later half of the third century, Roman jurisprudence lost its vitality and rapidly approached its end. The chief reasons were the collapse of the PaxRomana, the demise of the political system of the Principate and the accompanying swift move towards absolutism. As long as private jurists were members of a senate that retained some authority, their responsa carried sufficient weight and played a part in the administration of justice alongside the emperor’s rescripts. However, the jurists’ responsa ceased to be regarded as authoritative when the senate lost all its power and authority in the third century ad to the emperor and his bureaucracy, and the senators no longer had any influence in the consilium principis. In the third century ad, as imperial government increasingly assumed the characteristics of an absolute monarchy, the responsa prudentium ceased to function as a living source of law, having been superseded by the emperors’ rescripts on legal and judicial matters.^[207]

2.4.6