The Growth of Legal Science

As previously elaborated, after the enactment of the Law of the Twelve Tables (450 bc) the authoritative interpretation of private law remained within the province of the pontiffs.

However, over time an increasing number of nobiles engaged in furnishing legal advice; they were members of Rome's wealthy senatorial class but not associated with the pontifical college. By the end of the second century bc, secular jurists had supplanted the original interpreters of the law. The lay jurists were called iurisprudentes (those possessing knowledge of the law) or iurisconsulti (those consulted in matters of law). These jurists were largely responsible for the development of Roman legal science. They responded constructively to the changed socio-economic conditions of the times and to new intellectual developments, particularly the influx of Greek science and philosophy. Their work inspired Roman law's most characteristic features: its pragmatism and flexibility, as well as its clearness and intellectual superiority to any previously known body of rules.

cicero declared that jurists had to be skilled in three respects in matters of law: agere, cavere and respondere³

Agere (literally, to act) meant managing a legal cause or suit. The jurists gave help on matters of procedure and prepared the forms that had to be used by the parties to lawsuits. As noted previously, in the archaic era a person initiating a lawsuit was required to fit his claim within one of the set forms of action prescribed by the law. The rigidity of this system considerably limited the scope of juristic intervention. However, a new flexible system of procedure for initiating legal actions emerged in the second century bc. Under this system, the final settling of the plaintiff's statement of claim was an extremely technical process and this provided broad scope for the intervention of the jurists in litigation.

It is important to note, however, that the jurists very rarely argued cases in the courts—this task was left to the oratores?³

Cavere (literally, to take precautions) meant the drafting of legal documents, such as contracts and wills, designed to preserve a person's interests by protecting them against certain eventualities. This cultivation of forms was one of the most important contributions of the jurists to the development of legal thinking and language. It was mainly through this work of form development over the centuries that Roman legal speech attained its perfection.

Respondere (literally, to answer) meant giving advice or opinions on questions of law. A practice applicable to every field of Roman life was that an individual ^{^[32]}^{^[33]} would elicit the advice of competent and impartial persons when contemplating a serious decision. Thus, the jurists gave responsa or replies to private citizens involved in lawsuits or other legal business that required attention, and to jurisdictional magistrates and the judges (indices) appointed to decide particular cases.^{^[34]}The responsa were expressed in a casuistic form: the jurist restated the factual aspects of the case in such a way as to illuminate the legal question presented to him. By drawing on the wealth of legal principles applied in the past or encountered within his own experience, he rendered a decision that only obliquely referred to the principle or rule that supported it. It should be noted that the casuistic form in which the responsa were expressed entailed considerable differences of opinion among individual jurists with respect to certain matters.^{^[35]} In many cases, opposing points of view were adopted by contemporary or later jurists. Many of these controversies persisted for decades or even centuries.^{^[36]}

The consultative activities of the jurists were related to the leadership provided to the people by the aristocracy.

Thus, the jurists received no remuneration for their work as they considered it their duty to assist the citizens who consulted them with legal problems. Although legal science did not become a profession for earning a living, it provided an outlet for wealthy and educated citizens aspiring to distinguish themselves in social and political life. As the jurists acquired respect and honour through their activities, they could extend their influence among fellow citizens and widen the circle of their friends and dependants thereby winning their way to high political office.^{^[37]}

Besides these practical activities, noted by Cicero, the jurists were occupied by two further tasks that were instrumental in the development of the law: the education of those aspiring to enter the practice of law, and the composition of legal works.

Legal education in republican Rome had a largely practical orientation; there was neither theoretical nor academic legal training or educational institutions where law was formally taught.^{^[38]} Upon completion of their basic education, young men would enter the household of a jurist to live with the family. They would attend consultations when clients sought legal advice, and accompany the jurist to the marketplace where they observed him imparting legal advice, drafting legal documents and assisting parties in legal proceedings. In this way, students acquired knowledge of the law through contact with legal practice and professional tradition.

Sometimes, the jurists gave opinions when their students raised purely hypothetical cases for discussion. These opinions were almost equal in influence to those given on real facts, and possibly helped to develop Roman law in new and unique directions.

From the second century bc, prominent jurists began to compile books of responsa that they had issued and were applied in practice (especially those ratified by virtue of a judicial decision).

The need to create such collections derived from the fact that in Rome the administration of private law was not closely regulated by the state (the jurisdictional magistrate always appointed an ad hoc judge) and hence judicial decisions were not formally collected on behalf of the state. In their collections the jurists sometimes included summaries of important cases, and recorded the relevant court decisions and the opinions rendered to the parties concerned. The jurists also composed various commentaries or treatises on different branches of the law and, over time, a large body of legal literature materialized. The emergence of such literature is associated with the stimulus that acquaintance with the literary culture of the Greeks provided.

A prominent jurist of the later republican period was Quintus Mucius Scaevola (pontifex maximus and consul in 95 bc), reportedly the first jurist who endeavoured to systematize the existing law in a scientific fashion.^{^[39]} His chief works included a commentary on the ius civile in eighteen books, and a work comprising definitions and classifications of juridical concepts. He is also attributed with formulating certain standard legal clauses and presumptions, such as the cautio Muciana (a promise by a legatee that he would return the legacy if he acted against the attached condition) and the praesumptio Muciana (the presumption that all the property a married woman possessed was furnished by her husband, until the contrary was proved). As governor of the province of Asia, Scaevola also composed a provincial edict (edictum provinciale) that was used as a model by other provincial governors.^{^[40]} Other leading jurists of the later republican period included: Manius Manilius (consul in 149 bc), whose work venalium vendendorum leges (‘conditions of sale for things capable of being sold') comprised model formulae relating to contracts of sale; M.

Porcius Cato Censorius (consul in 195 bc and censor in 184 bc), whose work de agricultura (‘on agriculture') incorporated forms and precedents for drafting agrarian contracts; M. Porcius Cato Licinianus, who authored a celebrated treatise on the ius civile (de iuris disciplina); M. Junius Brutus (praetor in 142 bc), who composed works on the ius civile; Gaius Aquilius Gallus (praetor in 66 bc), who introduced the action and exception of dolus (a term that merges the ideas of fraud, abuse of right, and the general concept of tort); c. Trebatius Testa, whose work on the ius civile was highly regarded by later jurists; P. Alfenus Varus (consul in 39 bc), who produced an extensive work (Digesta) in forty books; Servius Sulpicius Rufus (consul in 51 bc), whose writings included an important commentary on the praetorian edict; and P. Rutilius Rufus (consul in 105 bc), who devised the bankruptcy procedure (actio Rutiliana) described by Gaius.^{^[41]}Reference should also be made to Aulus Ofilius, a contemporary of Julius Caesar, who was the first jurist to reduce the praetor's edict to some kind of system.^{^[42]}Unfortunately, only a few scattered and fragmentary traces of these jurists' works survive mainly through the writings of jurists from the Principate era embodied in the Digest of Justinian.^{^[43]}

As the foregoing discussion suggests, Roman legal science evolved largely from legal practice with a notable contribution from the discussion of individual cases. As the jurists gradually acquired familiarity with Greek philosophy and the intellectual methods and tools the Greeks had created, they developed a systematic approach to legal knowledge and to handling legal problems. Thus, acquaintance with the logical syllogism (or reasoned conclusions) enabled them to construct legal concepts in a deductive manner. The jurists engaged the dialectical method: a form of logical analysis that both distinguished between various concepts and subsumed those sharing the same essential characteristics under common heads.

This fostered their learning to divide (into genera and species) and define juridically relevant facts, and thereby distinguish and categorize juridical concepts. For example, Q. Mucius Scaevola in his comprehensive treatise on the ius civile first defined the general features of institutions such as possession and tutorship, and then described their various individual forms (genera) existing in the legal system. Moreover, familiarity with Greek philosophical ethics inspired awareness of the sociological function of law. As a result, the jurists attached more emphasis on equity (aequitas), good faith (bona fides)^{^[44]} and other general guiding principles.^{^[45]}Notwithstanding the influence of Greek thought, the jurists' general outlook on law remained casuistic and practical. They did not seek to construct abstract theories of law nor did they regard arriving at flawless logical conclusions as an overriding priority. Rather, their chief concern was to devise just solutions that were acceptable in practice. This meant exercising mature judgement and practical wisdom in tackling problems derived from individual cases, while considering the position adopted by earlier jurists in past similar cases.

The Roman jurists were typical representatives of the empirical or casuistic method; they resorted to topical rather than axiomatic reasoning. Topical (or problem) reasoning occurs when one proceeds from the case to identify the premises that would support a solution, and then formulates guiding principles and concepts as a basis for attaining a solution. The rules and concepts devised in this manner are not rigid and inviolable but are subject to change, depending on the circumstances of the relevant case. Moreover, it is generally believed that the Roman jurists reached their conclusions intuitively. This intuitive grasp of the law is attributed to the jurists' innate sense for legal matters and to their experience with the everyday practice of the law. However, it would be a mistake to construe Roman jurisprudence as a merely pragmatic, unprincipled case law or assume that Roman decision-making was based solely on free and creative intuition. A unique quality of the Roman jurists was their ability to extend beyond the accidental elements of the individual case to illuminate the essential legal problem as a quaestio iuris. Moreover, their tendency towards systematization not only allowed them to present their casuistic approach in a more simple and elegant manner, but also helped to improve their decision-propositions.^{^[46]} As previously observed, this improvement in decisions was closely connected with the requirement for integration in the growing empire and the need to adapt the legal system to its deriving socio-structural changes.

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

The Growth of Legal Science

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