The Culmination of Roman Legal Science

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

Like the pontiffs, the original interpreters of the law, these secular jurists belonged to the senatorial aristocracy (nobilitas) and were actively engaged in public life. Their authority in legal matters derived from their highly specialized knowledge, technical expertise and primarily the esteem the general populace held towards them. In a deeply conservative and traditionalistic society, like that of the Romans, the public actions of private citizens and state organs required the support of religious, political and legal authority. In legal matters, private parties and public authorities (including jurisdictional magistrates) thus relied upon the advice from the ‘oracles of the law'—the jurists. Both legislation and magisterial law were stimulated and moulded by the jurists, who provided guidance to magistrates in the composition of their legislative proposals and edicts. Furthermore, the jurists contributed to the development of the law through their activities in the day-to- day practice of law, the education of students and the writing of legal works. By the end of the republican era, jurisprudence had arisen to great heights of achievement and formed the most productive element of Roman legal life.

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 unsurprising that not only did the jurists' advisory role increase in importance, but they also commenced a direct involvement in governmental tasks during the Principate era.

The emperors employed jurists to assist them in executing the multiplying tasks of administration from as early as Augustus' era with increasing regularity in the later Principate period. Many leading jurists occupied important state posts, from various magisterial positions right up to the prefecture of the praetorian guard. Moreover, distinguished jurists were among the members of the emperor's consilium that evolved under Hadrian (ad 117-138) to resemble a supreme council of the state. But the jurists' increased participation in governmental affairs did not entail that the primary focus of their interests shifted away from private law. In this field, the jurisprudence of the Empire absorbed all the legal questions that had arisen in the republican age. These questions, enriched by the emergence of new issues, were categorized and often adequately answered for the first time.

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. These opinions were almost equal in terms of influence to those formulated for questions arising from actual cases and indirectly helped to develop Roman law in new directions.

In the Principate period, respondere (the giving of opinions) evolved as the most important aspect of the jurists' work.

An important change regarding this task occurred in the early years of this period with the introduction of the ius publice respondendi ex auctoritate principis: the princeps-emperor granted certain jurists the right to present opinions and deliver them by the emperor's authority. 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.^{^[67]} 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. 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. Later it must have been possible to elicit the opinion of several patented jurists on a single legal question. In the early second century AD, Emperor Hadrian promulgated that if the opinions of the jurists possessing the ius respondendi were

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unanimous they had the same force as a statute.

If there was no unanimity among the jurists, the judge was free to adopt any opinion he thought fit.⁶⁸

From a historical perspective, probably the most significant 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 or abstract method. Depending upon their subject-matter, the literary works of the jurists can be classified as follows: (a) responsa, quaestiones and epistulae— collections of opinions or replies delivered by jurists with the ius respondendi; (b) regulae, definitiones, sententiae—short statements of the law, in easy to memorise forms, for the use of practitioners and probably also students; (c) libri or Digesta—general works on the ius civile and the ius honorarium; (d) institutiones or enchiridia—introductory or expository works written primarily for beginners and students; (e) monographs on particular laws or legal institutions; and (f) commentaries on the works of earlier jurists. Among the juristic literature of the early imperial 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.

As already noted, a most notable 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 the jurists 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 institutions to satisfactory, practical use. In the Principate era, the need arose to 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 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.^{^[69]} 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.^{^[70]} 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. According to the Stoics, natural law exists as a reflection of right reason (recta ratio) that is universally valid, immutable and has the force of law per se, i.e. independent of human positivization. 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.^{^[71]}^{^[72]} 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.

At this point, it is important to consider some of the major jurists and the period of their activity. The main sources of our knowledge are the Enchiridium (a work of the second century jurist Pomponius), diverse inscriptions and literary works by authors like Tacitus (c. ad 55-123), Pliny the Younger (c. ad 61-114), Aulus Gellius (c. ad 123-170) and Cassius Dio (c. ad 155-235).

The jurists of the early Principate period (27 bc-ad 90) came 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 that formed around two political rivals: Marcus Antistius Labeo and Gaius Ateius Capito. 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. 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 responsa⁷ 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, was known for his adherence to traditional juristic sources. He wrote treatises on pontifical and public law, a book de officio senatorio and collections of epistulae. The school founded by Capito was named after his successor Marcus Massurius Sabinus and so was known as the Sabinian School. Sabinus occupies a special 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. He was the author of a systematic treatise on the ius civile (in three books) that became the object of extensive commentary by later jurists in works known as ‘ad Sabinum'. He also produced a commentary on the praetorian edict, a collection of legal opinions and a monograph on theft. Another leading jurist of this period was C. Cassius Longinus, a student of Sabinus whom he succeeded as head of the Sabinian School. 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. We know his principal work, an extensive treatise on the ius civile, mainly from references and fragments integrated in the writings of later jurists. A considerable quantity of literature has been produced by modern commentators on the character and differences between the two schools. Many scholars are of the opinion that these schools were essentially in the nature of aristocratic clubs with their own techniques and courses of training. They differed mainly with respect to the methods they adopted for dealing with concrete questions of law rather than in their general philosophical 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 jurists of the middle 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. Nevertheless, their legal work was thoroughly Roman in character and exhibited very little foreign influence. 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 middle Principate period was lavolenus 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. Iavolenus 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, ex Plautio) and a collection of texts from Labeo's posthumous work posteriora. 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. His most important works were the consolidation of the praetorian edict (c. ad 130) and his Digesta, a collection of responsa in ninety books. The Digesta was highly regarded by later jurists, as exhibited by the numerous references to this work in juristic literature and the mass of fragments embodied in Justinian's Digest. 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 is best known for his Enchiridium, a comprehensive account of the history of Roman law from the regal era to his own day that is incorporated in its entirety in the Digest of Justinian. He also produced a comprehensive commentary on the edict in 150 books, a commentary on the ius civile in 35 books and several monographs on a variety of topics. There is no evidence that he had a political career or issued legal opinions (responsa). Our only information on Gaius is that he lived in the second half of the second century and that he was a Roman citizen (even his family name is unknown—Gaius is only apraenomen or first name). There is some support for the view that he received his legal education in Rome and that he taught in the provinces (possibly in the East). He is best known for his Institutiones (written about ad 160), a systematic textbook for students and the only juristic work from the Principate era that we have inherited nearly in its original length and form (a manuscript of this work was discovered at the beginning of the nineteenth century in the cathedral library at Verona, Italy).^{^[73]}He 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. Gaius is not cited by his contemporaries and his works appear to have attained fame only after his death.

The most highly esteemed jurists of the late Principate period (ad 180-235) were Aemilius Papinianus, lulius Paulus and Domitius Ulpianus. Papinianus was head of the imperial chancery a libellis, held the office of praefectus praetorio (ad 203-212) and, by virtue of this function, served as a member of the consilium principis. He was executed in ad 212 by order of Emperor Caracalla as he purportedly refused to devise a justification for Caracalla’s murder of his own brother and co-regent Geta. His principal works include collections of case decisions (Quaestiones and Responsa), a collection of definitiones (in two books) and a monograph on adultery. In the later imperial age, Papinianus’ works were regarded as the most important source of juristic law and this is manifested by the numerous fragments embodied in the Digest of Justinian and other post-classical compilations of law. Like other leading jurists of this period, Paulus 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. His numerous works included 80 books on the praetorian edict (ad edictum); a treatise on the ius civile in sixteen 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. Paulus’ writings were widely read by later jurists and their authority was confirmed in the Law of Citations (ad 426) where he is listed as one of the ‘important five’ jurists of the Principate period. 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 222 ad) 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. Like Paulus, Ulpianus was a voluminous writer. His contribution to juristic literature includes fifty-one books on the ius civile (ad Sabinum libri LI); eighty-three books on the edict (ad edictum libri LXXXIII); two books of responsa; a legal manual for beginners in two books (institutiones); collections of regulae and definitiones; and numerous monographs on individual statutes, various state offices and matters of legal procedure. Almost half of Justinian’s Digest (about 42 per cent) consists of materials derived from Ulpianus’ works.

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. The last of the great jurists are considered to include Herennius Modestinus and Aelius Marcianus. Modestinus, a student of Ulpianus, authored many works that embraced an extensive collection of Responsa in nineteen books; a work on differentiae (controversial questions) in nine books; a collection of regulae (rules of law); and a treatise, written in Greek, on the exceptions from guardianship. The authority of his works is confirmed in the Law of Citations where he is listed as one of the ‘important five’ jurists of the Principate age. Marcianus’ most renowned work is the Institutiones, an elementary treatise on law in sixteen books that is frequently cited in the Digest of Justinian.

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Source: Mousourakis G.. Fundamentals of Roman Private Law. Springer, 2012.— 366 p.. 2012

The Culmination of Roman Legal Science

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