THE HISTORY OF JURISTIC SCIENCE

Court of the United States lays down the guiding legal principle.^[650] In Rome, the divergent legal opinions of the jurists were each law for the particular case if adopted by praetor or iudex, unless and until a single norm was established.

LiciNNius rufus, Libro II regulation (D. 28.5.75 [74])

If a person shall have been appointed heir, 'excepting the plot of land, excepting the usufruct, let him be heir’, this will be according to the civil law, as if he had been instituted heir without the < exception > [maner], and this was accom­plished by the reputation of Gallus Aquilius.

Cf. D. 21.2.69.3.

UlpiaNUS, Libro XXXII ad edictum (D. 19.3.1 pr.)

The action on transfer at an agreed price was proposedfor the purpose ofresolv­ing a doubt. For there was considerable doubt when a thing was offered for sale at an agreed price whether there was an action on the salefor the price, or on the rental as if I saw the thing sold to have been leased, or on hire as if I had hired out services, or on mandate....

See Buckland, Text-Book 522 n.3.

Ulpianus, Libro XI ad legem luliam et Papiam (D. 37.14.17 pr.)

The divi Brothers rescripted in these words. ‘ Ife have discovered from the learned I in the law) that it was sometimes doubted whether a grandson could seek (praetorian) possession of the estate of a freedman of his grandfather contrary to the will, if his father, when he was over twenty-five years of age, had accused the freedman of his father of a capital crime. Proculus, of no little authority in the law, was of the opinion that (praetorian) possession of the estate should not be given to the grandson in a case of this kind. We adopted this opinion when we rescripted to the petition of Caesidia Longina: but our friend Volusius Maecianus. with a long and well-founded knowledge of the civil law, scrupulously attentive to the respect due our rescript, stated in our presence that he did not think he could respond otherwise. However, since we have dis­cussed this point fully both with Maecianus himself and with others of our friends included within the learned in the law, the better opinion seems to be that a grandson is not excluded on his own account or by the stigma upon his father from the estate of the freedman of his grandfather either by the words or the spirit of the law or the edict of the praetor. Many jurists, including that most illustrious man Salvius lulianus, our friend, have held this opinion.'

Cf. D. 2.1.11 pr.

Paulus, Libro VIII ad Sabinum (Fr. Vat. I)

One who knowingly buys a slave from a woman without the appro­val of her guardian or with the concurrence of a pretended tutor whom he knows is not the tutor, does not appear to have pur­chased in good faith; and this the old jurists (veteres) and Sabinus and Cassius also write so. Labeo, indeed, thought he could not pos­sess him as a purchaser, but as a possessor; Proculus and Celsus as a chaser, which is correct. For he takes his benefits because clear­ly he acquired al the wish of the woman and the woman could trans­fer possession without the appro­val of the tutor. lulianus, even, that he who had given the price to the woman would, according to Rutilius' declaration. (begin} to hold adversely (usucapere) but if the woman tendered the price (back ) before usucaption, he would cease to hold adversely.

Paulus, Libro VIII ad Sabinum (D. 18.1.27)

One who buys a thing which he thinks to be his (who sells), he buys in good faith; but one who buys from a minor without the appro­val of a guardian or with the concurrence of a pretended tutor whom he knows is not the tutor, does not appear to pur­chase in good faith;

Sabinus also wrote so.

pur-

Ulpianus, Libro XVII ad Sabinum (Fr. Vat. 75.3)

The same writer (lulianus) says, if a usufruct is bequeathed to a slave (owned in) common and to Titius separately, then if part has been lost, the usufruct will not belong to Tit­ius but to the other co-owner alone as the only person joint-

Ulpianus, Libro XVII ad Sabinum (D. 7.2.1.2)

The same writer (lulianus) says. If a usufruct is bequeathed to a slave (owned in) common and to Titius separately, then if one of the two co-owners loses the usufruct, it will not belong to Titius but to the other co-owner alone as the only person jointly entitled.

ly entitled. Which opinion nei­ther Marcellus nor Mauricianus approves; Papinianus, also, in book XVII Quaestiones departs from this (opinion). But I think the opinion of lulianus to be correct, since so long as even one (of the co-owners) is using the thing, it can be said that the usufruct is lodged where it was.

And this is the cor­rect view, since so long as even one (of the co-owners) is using the thing, it can be said that the usufruct is lodged where it was. It is the same if the usufruct has been bequeathed to two jointly and another person separately.

In a number of cases, the disputes between the jurists were eventually resolved,^[651] This adoption of a single legal norm in a given situation was accomplished in a number of ways. In the first place, later jurists, when faced with a legal question which had been raised at an earlier time, might well conclude that the view of a particular jurist had prevailed to the extent that no other divergent opinion of another jurist had been, or should be, adopted. In such a situation the reputation of the earlier jurist (auctoritas prudentium) was such that his views had gained general acceptance and a common opinion (communis opinio) had arisen. Sometimes, communis opinio resulted from change in the social or economic circumstances, but the sources regularly indicate no more than that the dispute has been settled.^{[652] [653] In the second place, the judicial magistrate, the praetor, may resolve a controversy by providing for a new cause of action or the avail­ability of an affirmative defense, thus giving state recognition to the view of one jurist as opposed to that of others.” Finally, the emperor, by judicial decision or by means of rescript, may select one of the opposing views and so give it official sanction.}

Many juristic controversies, however, were not settled by the close of the classical era. This is revealed by post-classical versions of juristic texts. In most instances the compilers of the Justinianian Corpus have either resolved the controversy one way or another¹· or have eliminated, by inter­polation, all reference to the dispute and represented the view of a particular jurist as if it were the only rule observed in classical times.·*

The controversial law, persisting throughout the whole of the classical epoch, gives a special cachet to the Roman law of this period. A legal system was evolved in which certainty in the law was not a primary aim, and pre­dictability of the rule to be applied was almost completely absent.²⁰ Did this hamper the efficacy of the system? It is interesting to note that the law teacher - Gaius the specific example - never took a position with respect to the controversies prevalent in legal practice; he had no hesitation in stating his view one way or the other in the theoretical problems of the law, for example, how many types of theft (furtum) were to be recognized?' The exact role of the controversies among the jurists in the evolution of the Roman law of the classical epoch still awaits considerable research?²

2. Regula Jurisprudence and the Science of Law

| 105 Celsus, Libro XXXV digestorum (D. 34.7.1 pr.)

The regula Catoniana defines as follows: A legacy which would have been invalid if the testator had died (immediately) after the time of making the will, is invalid whenever he shall have died. This definition is wrong in certain cases.

Papinianus, Libro XV quaestionum (D. 34.7.3)

The regula Catoniana does not apply to inheritances nor to legacies which become due not at the time of death but after the heir has declared that he accepts the inheritance.

Paulus, Libro VI11 ad Sabinum (D. 50.17,29)

Wfeir is bad from the start cannot be cured by lapse of lime.

18. The instances are collected by Chiazzcse, Qmfronli 429-53.

19. Chiazzese, op tit., 198 n.4; Kaser. La critics del testo 291, 301-10.

20. Schulz, Principles 243 ff.; Maschi, Stud! Betti III 413-449.

21. G. 3.183. See generally. Schwarz. Festschrift Schulz II 201, 216-20; accord, Aoiirante, BIDR 64(1961) 109. 118 f.

22. Bibliography of recent study by Casavola, x.v. Controversia, NNDl 4 (1959) 734-37; Kaser, La critica del testo 291, 302 f.

Quintus mucius scaevola, Libre singular! op10.1

Labeo Antistius cultivated the study of the ius civile with particular attention, and publicly responded to those consulting him upon the law. Moreover, he was not unlearned in other ofthe arts; he had absorbed grammatics and dialectic and the older and more profound writings. He was well versed in the origin and etymology of Latin words, and particularly applied that knowledge in the solution of many intricate points of the law.

Iavolenus, Libro VII epistularum (D. 28.5.65 [64])

The slave who is born after my death can be named (as) my heir, Labeo wrote this on many occasions and supported the validity of this opinion by clear argu­ment, in that a slave of the estate (ofa deceased person), where the inheritance has not been entered into, can be named heir (in another's will), even though at the time that will was made belonged to no one.

Paulus, Libro singular! de iuris et facti ignorantia (D. 22.6.9. pr., 2-3) It is a rule (regula} that ignorance of the law is harmful to every one, but ignorance of a fact is not. Let us therefore examine the cases to which this rule applies.... (2) Ignorance of a fact does not do any harm to anybody unless gross negligence can be attributed to him. What about the case where all in the state know the fact which he alone does not know? Labeo correctly defines the knowledge as not that of a very inquisitive man nor that of an exceedingly negligent man, but that of the man who by diligent inquiry could have known (of the fact). (3) But as to the rule that ignorance of the law is no excuse, Labeo thinks that this has to be understood as applicable in cases where the person had the possibility of consulting a jurist or was acquainted by reason of his own knowledge, so that ignorance of the law is harmful to the person to whom it was easy to know (the law); which is rarely to be supposed.

In 1966, the works of three young Romanists appeared simultaneously, all challenging the views flowing from the writings of Jdrs, Pringsheim and Schulz which in the meantime had gained general acceptance.⁴ The works of Carcatcrra and Martini, on the meaning of definitio among the Roman jurists, took issue with the idea that generalization and the formulation of abstract legal principles was not part of the approach to the law by the jurists of the Principate.^{[656] [657] [658] [659] Stein undertook a re-examination of the concept of regula juris.1 In the part of the volume devoted to Roman law, Stein argues that Jdrs had placed the date of the scientific revolution in the law too early; not until Q. Mucius Scaevola was the dialectic method applied to juristic thinking? And throughout the republic, jurists were satisfied with definitio nes, that is, a general description of the existing state of the law in a given field. Regula, in the republic, had the meaning of‘standard’.[660] [661] It was as a result of a difference of view as to the nature of language between grammarians, the anomalists and analogists, that regula comes to have a new meaning in the law." The analogists took the view that language was orderly and that standards could be established to test doubtful elements in the grammar; the anomalists emphasized that language is far from orderly and that the rules sought by the analogists were riddled with exceptions.}

By the beginning of the Principate, states Stein,” ‘[T]he grammarian, working with a limited number of cases, seeks out the principle which lies behind them, and then enunciates a rule [regula] which applies to all the many cases which fall under it.* Neither Mucius nor Servius put their pro­positions (definitiones or regulae) from the specific point of view of the grammarians. But, according to Stein, Labeo, by reason of his interest in grammar, applied the ideas of the analogists to law.” To him regula con­noted a normative principle which should govern all cases that came within its terms. Definitio, on the other hand, continued to signify merely the statement of the existing law. Not all jurists were of the view of Labeo. Sabinus, in Paul’s statement on regula, challenged the view that the regula Catoniana was applicable to all cases of legacies of manumitted slaves;¹⁴ it was no different from a definitio, hence only a statement of the existing law.” If the regula conflicted with the facts it had no value whatsoever.” Stein, later in the volume,” continues with the study of the extent of the utilization of regulae among the jurists of the Principate. At times they limited the application of a rule, in some instances refusing to apply it,c.g., to the wills of soldiers, for imperial policy had enacted norms for these wills contrary to the principles of the civil law respecting civilian wills.” In the late classical period the term regula came to signify ‘maxim’, a broad general principle extending over several fields of the law, not a normative rule but a slogan for purposes of argumentation. Such, for example, is the statement of Paul on the ignorance of law and fact.”

The views of Stein respecting regulae iuris have not gone unchallenged¹⁰

12. Op. dt., 61.

13. Stein, op. dt., 63 n.3, notes that Schanz, Philologus 42 (1884) 312 ff., early pointed out the tie of Labeo with the analogists, but he does not follow Schanz in holding that Labeo was solely an anaiogjst in law.

14. Stein, op. cit., 67 if., points out that in its original context Paul’s text dealt with manu­missions. and Daube, SZ 76 (1959) 149, 205 ff., has shown that it was part of a discussion of the validity of legacies given to manumitted slaves.

15. Hausmaninger, Geddchtnisschrift Schmidt 399, 408 ff., considers that regula was a generalization of past decisions, not a principle for the determination of future cases. Further on D. 50.17.1: Behrens, SZ 75(1958) 353-61; Hausmaninger. TR 36(1968)469-88; SchmidUn, Rechtsregeln 7-18.

16. Behrens, SZ 75 (1958) 353. 356. and cf. lavolenus’ caution respecting definitio, D.

50.17.202, together with Stein’s comment, op. cit., 70 ff.

17. Stein, op. at., chap. V.

18. Stein, op. cit., 96 ff., on this point.

19. Other regulae which Stein, 105 ff., takes as maxims; D. 22.3.25.2, Coll. 10.2.2; but cf. Wenger, Canon 57 f., on these and similar passages.

20. E.g._t Bonini, in a review of the volume, SDtfj 33 (1967) 447,456, questions the influence of the analogisls, through Labeo, upon the development of normative regulae; among other reviews. Wieackcr, SZ 84(1967) 434.438 f.; Martini. Labeo 14(1968) 301, 306 ff.

$ 105 but the book, along with those of Carcaterra and Martini, reopened the whole question of the introduction of Greek scientific methods into the activities pursued by the Roman jurists. Several Romanists have, since 1966, contributed studies in this field,¹¹ and, undoubtedly, the role of scientific method in the history of Roman juristic science will continue to be dealt with in the years to come.

Labeo, Libro I pithanon a Paulo epitomatorum (D. 8.5.21)

If there is no water visible, no right of way or conduit can be established....

Marcianos, Libro II regularum (D. 4.8.51)

If a person be made arbiter in his own case, he cannot pronounce an award since he would be ordering himself to do something or forbidding himself to seek relief; no one can command himself nor prohibit himself.

Modestinus, Libro I regularum (D. 34.5.27)

If a person shall have desired that one of many (of his slaves) be manumitted and it is not apparent which one the testator wanted to be manumitted, liberty by trust does not lie to any of them.

Schmidlin,” in the belief that the problem of Greek influence has obscured the nature of Roman regulae iuris, has undertaken to re-examine all the texts which concern regula and definitio in order to arrive at the significance of these terms in the Roman law. He differentiates the fixed regulae from the statements of principles set forth in the juristic writings known as Books of Rules 0ibri regularum).The first group, normative principles, derive from the earliest legal institutions of the civil law, the testament and legacy, the stipulation?⁴ To be included alongside these rules of the civil law (regulae iuris civil is) are those rules which provide the means by which the ancient civil institutions were fashioned, the cautelary rules which were to be employed.” In the second group, the works of the jurists entitled Regulae, two distinct forms are to be discerned, according to Schmidlin; the rules which generalize the opinions given by jurists in their responsa or in the rescripts of the emperors - the casuistic type of rule;¹⁶ and the definitional rule which sets forth the 'basic lines of a legal arrangement, the composition

21. Reif, by Kaser. La critioa del testa I 302 n.23.

22. Schmidlin, Die Mmischm Rechlsregeln (1970), Now, also, ANR.W II 15 (1976) 101-30.

23. Schmidlin, op. at., 7; cf. also Stein, Xegtdae 79 If,

24. Schmidlin, op. at., 60 fT. E.g., D. 28.2.13.1 and D. 50.17.73.4, supra.

25. Schmidlin, op. at., 79 ¿¿.

26. Examples in the Labeo. Marcianus and Modestinus passages, supra.

of a legal act, the limits of significance of forms’.*⁷ According to Stein, the two forms of the books of Regulae of the jurists were dogmatic statements defining precisely the limits of legal institutions, probably provided for the use of bureau officials,¹⁸ and more extensive works, incorporating the advances which had been made by earlier jurists, provided with some cita­tion of authority, to meet the needs of the ordinary legal practitioner in the last century of the classical epoch.**

According to Schmidlin, there were three distinct types of regulae, the fixed, normative rules of the old civil law legal institutions, the generalized casuistic regulae of the time of the Principate, and the rules which served as mere definitions of legal terms and institutions?⁰ Not that all types were of equal significance: the normative rules laid down the law, the casuistic and defining rules looked to the establishment of new law, but clearly the greatest weight is to be placed on the generalized case-law rules, which led to the further evolution of the law.”

In a wide-ranging study Norr has afforded a step-by-step review of the content of Schmidlin *s work?* He places it in the framework of the broader problem of generalization and abstraction in the law. He points out the significance of the normative quality of a casuistically derived legal principle of jurists’ law vis-a-vis the normative sense of a regula in an ordered legal system?* Ndrr points out, further, that there is no particular period in which the framing of regulae predominated, nor is there any single purpose to be seen in the works of the jurists devoted to regulae. Al! in ail, the contribution of Ngave preced­ence to a few jurists but it was Tiberius, with the ‘right to respond publicly’ (ius publice respondcre), who created the privilege of responding with binding effect for the Roman people? On the other hand, Magdelain con­tended that only those jurists authorized by Augustus and his successors could respond, with absolute exclusion of all others; but the responsa even of authorized jurists were not binding upon the judges, at least if all had not agreed upon a single position? Von LObtow held that the responsa of the privileged jurist had no binding effect but Augustus, by his action, had attempted to raise the status of the jurists; von LUbtow suggests, however, that it actually lowered the position of the jurist in the popular mind, for there was no necessity and no constitutional basis for designating particular individuals as privileged jurists?

A direct attack on all previous views was made by Schdnbauer, based largely on the fact that the equestrian rank was favored by Augustus and his successors in the administration of the state.^{[669] [670] [671] [672] [673] There was no ius res­pondendi, only a ius publice respondendi, for the text of Pomponius is corrupt,11 for Augustus' effort was primarily designed to secure interpre­tation of the taw for the body politic. According to Schdnbauer, what Augustus had conceded for a limited period of time Tiberius granted for the life of the jurists. Schiller has pointed out that Augustus actually turned to the equestrian group for support of his administration, and thus the grant of ius respondendi ex auctoritate principis might well have been a means of gaining support on his part of a small but significant group of jurists.’1 In concluding the discussion of this passage, to Provera the right of responding by virtue of the auctoritas of the emperor gave to the responsa of authorized jurists the character of authentic interpretation, in other words, the same efficacy of a statute.11}

The reply of Hadrian to the praetorian men who sought permission to respond has given rise to another problem. Pringsheim suggested that Hadrian may purposely have misunderstood the request of these men, intending to reserve his approbation for jurists who were members of his council.^{[674] [675] [676] Countering this, Schulz asserted that the emperor would not have resorted to so perverse a misconstruction of a petition from men of so high a rank, and the reply is rather to be taken as indicating that the ius res­pondendi ex auctoritate principis would no longer be granted.11 Daube explained the incident as an appeal by jurists, who had the privilege under Trajan, for a renewal of their individual grants; Hadrian is telling them to wait for a genera] enactment renewing the privileges.14 Honord said Hadrian was answering evasively: first, that the granting of the right of responding is at the emperor’s will, and not to be asked for; but, taking advantage of the unlawyerlike request for ‘responding’ rather than for the ‘right of responding on the approbation of the emperor’, Hadrian said to them, practice and with skill acquired, you will be in a position to be granted the ‘right of responding’.,T It is apparent that no stand can be taken respect­ing Hadrian’s reply until the content of the Gaius passage is explored, particularly to determine whether ius respondendi existed in his time.}

Gaius’ definition of the responsa of the jurists is unique. It is much broader in scope than expected and implies the inclusion of opinions expressed in the writings of the jurists, as well as the typical responsum delivered for the individual case. For this reason several scholars have concluded that the passage has been tampered with in post-classical times,¹* to set the stage for the later so-called Law of Gtations. According to some, the Hadrianic rescript heralds the change from dependence upon ius respondendi to provision that the judge rely on communis opinio.¹* Lauria, on the other hand, declares that Gaius was merely expressing the accepted principle that juristic interpretation has the force of law in terms consonant with his own times, when imperial concession and control reinforced the law-making activity of the jurists.’⁰ However, some effort should be made to explain the ambiguities of the text. De Zulueta offered such an explanation.¹¹ The authority of a jurist whose opinion might lead to the fashioning of com­munis opinio depended upon his personal standing before public opinion, not on the grant of ius respondendi. The use of the clause, ‘those to whom it has been permitted to lay down the law’, is the teacher’s shorthand fora long explanation of the role of the jurists. If the term that Gaius defined was auctoritas prudentium (authority of the learned in the law) rather than responsa prudentium (responses of the learned in the law) the definition would be acceptable.¹* De Zulueta stated, ‘If one accepts the view that Gaius misused the term responsa as the designation of juristic opinions in general, there is not much difficulty left. But one cannot exclude the pos­sibility that Gaius’ improper terminology was caused by the ius respon­dendi.'¹³ Augustus’ action and its effect during the century and a half which followed his rule has indeed been a point at issue among modern scholars. **

17. Honore, Gaw 82-84.

18. Wieacker, Studien 48, and Textstufen 157; cf. Schulz. History 113.

19. De Visscher, PH 15 (1936) 615,633 ff. [ = Nouveiles £tudes 297, 314 ff.].

20. Lauria, ius 190 f.

21. De Zulueta, Tulane L. Rev 22(1947) 173-79.

22. Note that G. 1.2 sets forth the sources of the civil law, concluding with auctoritas pru­dentium. and in the succeeding passages, G. 1.3-1.6 defines each of them, but the last is now termed responsa prudentium.

23. De Zulueta, op. cit., 179.

24. Further references by Massei, Salui Ferrini. Pavia 430 n.5; Kaser, J^nt. Privatrecht 210­11 nn.4-7.

In a recent view the controversial issues have not been resolved.¹’ By extend­ing his authority to some jurists, Augustus may well have intended to select certain of the more renowned jurists as having his confidence. Sabinus was the first of equestrian rank to achieve this distinction. The fact that ius respondendi is not mentioned in connection with any of the great jurists of the 2nd century may indicate that by then it had ceased to exist. Is Gaius speaking not of the technical response of authorized jurists but of all replies whenever given and in whatever form presented? If the latter be true, this would put an end to the binding response of authorized jurists, with the rescript designed merely to instruct the judge on the scope of communis opinio.²* However, one must admit that the extant sources do not permit of concluding one way or the other.

4. The Jurists and Imperial Service

§ 107 Corpus inscriptionum latinarum VIII.24094

To L. Octavius Cornelius Salvius lulianus Aemilianus, son of Publius, judge of the ten-man bench (for the trying of cases), quaestor of the emperor Hadrian- for whom alone the deified Hadrian doubled the emolument (solarium) of the quaestorship on account of his extraordinary (legal) knowledge - tribune of the plebs, praetor, praefect of the state treasury, and also ofthe military treasury, consul, pontiff, priest of the Hadrianic brotherhood and of the Antoninian brotherhood, supervisor of the temples, legate of the emperor Antoninus Augustus Pius to Lower Germany, legate of the emperors Antoninus Augustus and Verus Augustus to Hither Spain, governor of the province of Africa, to our patron, (erected) by the decree of the decurions (of Pupput) with public monies.

Inscription discovered at Souk el-Abiad, northern Tunisia. Other inscrip­tions reveal that Julian was consul in 148, governor of Africa in late 168/early 169 A.D.

Corpus inscriptionum latinarum XIV.5347

To Lucius Volusius Maedanus, son of Lucius, praefect of Egypt, praefect of the grain supply, minor pontiff, secretary of the bureau ofpetitions and oftaxes (a libellis et censihus) of the emperor Antoninus Augustus Pius, secretary of the bureau of studies and director of libraries, postmaster general (praefectus vehiculorum), secretary of the bureau of petitions of Antoninus Augustus Pius during the reign of the deified Hadrian, associate (to the director) of public

25. Nicholas, in Jolowicz-Nicholas, Introduction 359-63.

26. The editor of the third edition of Jolowicz, Introduction, seems to be expressing a view along the lines Jolowicz would have taken.

works, praefect of the First Aelian Classica cohort, subaltern, (monument erected to the patron of the colony Ostia), by public decree of the municipal magistrates with public monies.

Inscription recently discovered at Ostia; a second inscription, CILXIV.5348, identifies Maecianus as [iuris consjulto.^[677]

Gaius, Libro I ad edictum provinciate (D. 2. LI 1 pr.)

If the same person brings a number of actions against the same defendant and the amount involved in each separate case is within the competence of the index, but the aggregate of all exceeds the limit of his jurisdiction, Sabinus, Cassius and Proculus held that suit could be carried on before him; this opinion has been confirmed by a rescript of the emperor Antoninus.

IMPERATOR ALEXANDER AUGUSTUS SABINAE (C. 8.37.4) (224 A.D.)

[Setforth,supra, § 101,p. 276.]

Callistratus, Libro V de cognitionibus (D. 48.7.7)

Creditors who proceed against their debtors should demand back through a judge that which they allege is due them. Otherwise, if they enter upon the properly of the debtor without permission having been given them, divus Marcus decreed that they no longer had the rights of aeditors. The words of the decision (decretum) are these: ’It is best, if you think you have certain claims, that you seek them judicially by actions; in the mean time the other party ought to remain in possession, for you are but a claimant.' And when Marcianus declared: 'No force had been employed^, the emperor replied: 'Do you think there is force only if persons are injured?...’

The remainder of the decision is set forth infra, § 165.

Ulpianus, Libro VII ad Sabinum (D. 28.6.2.4)

... lulianus thought, first a testator ought to name an heir for himself, and then an heir for his son. For, if he first made a will for his son, then for himself, it would not be valid. Which opinion has been approved in the rescript of our emperor to Virius Lupus, governor of Brittania, and rightly so. For such a testament is a single will, though there be two inheritances....

For the legal problem, see Buckland, Text-Book 302 f.

Papinianus, Libro II quaestionum (D. 3.1.8)

The emperor Titus Antoninus rescripted that a man who was forbidden by interdict to practice as an advocate for a period offive years was not prohibited from acting as attorney after the five years, for anyone at all. Divus Hadrianus also had rescripted that one returned from exile could plead. No distinction is admitted with regard to the crime for which the person was barred from speaking or exiled, lest otherwise a fixed penal period be further extended contrary to the intention of the decision.

Note: Juristic interpretation of imperial rescript.

Ulpianus, Libra XI ad legem luliam et Papiam (D. 37.14.17 pr.)

... the divi brothers rescripted... Proculus was of the opinion...(We adopted the opinion when we rescripted earlier. But Maedanus did not think he could respond otherwise. But we spoke with Maedanus and others)... the better opinion seems to be... Many jurists, including that mast illustrious man Salvius lulianus. our friend, have held this opinion.

For the full decision, sec supra. § 104. p. 288.

With the reign of Hadrian the jurists began to engage more and more actively in the public service which was being developed during this time in the Principate. It is true that in republican times and during the early empire many of the jurists pursued a magisterial career, such as has been described in an earlier chapter of this book.^{[678] [679] But from early in the 2nd century on the leading legal experts occupy, in addition to their private endeavors, newly created imperial posts? The career of Salvius lulianus is typical of the service undertaken by a jurist of the senatorial class in the middle of the 2nd century. Among the new posts held was that of praefect of the city Rome (praefectus urbi), the highest official position of urban affairs, with intermediate appellate jurisdiction from lesser urban praefectures,[680] [681] [682] special emissary (legatus) of the emperor to one of the provinces, or even governor of a province (e.g., praefectus Aegypti, proconsul Africae), for whom civil jurisdiction was apparently of more concern than military rule? Even more innovative was the emperor’s selection of jurists of equestrian rank to hold offices in the imperial secretariat and to occupy the new prae­fectures in Rome and high posts throughout the empire? The sequence of offices held by the jurist Maecianus is characteristic of the course of the so- called ‘procuratorian career’? By the closing decades of the 2nd century, when the majority of the leading jurists were of equestrian rank, almost without exception these men entered upon and a great number advanced to the highest ranks of the career of imperial service?}

The majority of scholars have attributed this ’bureaucratization’ of jurisprudence to the reorganization of the administration of justice by the emperor Hadrian,® but Kunkel has argued forcefully that Hadrian merely opened opportunities for apprenticeship -legal training alongside military service - and advancement in the civil-legal field that eventually led to the holding of the highest posts in the imperial service by the leading Roman jurists.¹⁰ Civil, criminal and administrative jurisdiction was exercised by many of these officials, and it is therefore not surprising that the administra­tive rulings or judicial decisions handed down reflect the views of recognized jurists. Schiller has described the situations in which jurists provided legal opinions for the imperia] officials of city Rome.¹¹ In a later chapter attention will be called to the role of jurists in the operation of the bureaus of petitions and of letters of the imperial chancellery?¹ Suffice it to point out here that some legal opinions may well have been drafted by jurists of the late 2nd and early 3rd centuries while in imperial service, and were incorporated in their writings.¹¹ To an even greater extent juristic responsa served as models for chancellery bureau holdings. Gualandi has collected all the instances in which jurists’ opinions were followed, distinguished or rejected in the imperial pronouncements?* The decisions of imperial courts and bureaus very often settled controversies that had Jong been prominent in the dis­cussions among jurists?⁵ The jurists’ reactions to imperial determinations

7. The standard comprehensive works arc those of Pflaum, Les pmxrateurs fquestres sous le Hout-Empire contain (1950); Les carrieres proairatoriennes iquesires sous le Haul-Empire contain (4 vol»., 1960-61).

8. Generally, on the jurists in imperial service, see Schiller, 'Bureaucracy and the Roman Law*, Seminar 7 (1949) 26-48, particularly 37 IT. [= American Experience 103 ff.].

9. Pringshcun, 'The legal policy and reforms of Hadrian*. JRS 24(1934) 141-53 [ ® lugen 191-101 ]; Wieacker, Srudien 43,79 ff„ 117 f.; Schulz, History 100 f,

10. Kunkel, Hericunft 292-96.

11. Schiller, 'The Jurists and the Praefecte of Rome’, RIDA 3( 1949) 319-59. reprintedBIDR 57/58(1953) 60-97.

12. Infra, chap. XI. f 162.

13. E.g., in the‘case-law¹ writings ofPapinian, Scaevola and Modestinus, soSamter, Geridits- vetfahren 12 ff., 17 ff„ 31 ff,, 61 IT. See generally, Schiller, op. at., n.8, 44 fT., and particularly 46 n.66.

14. Gualandi. Legislatione II 107-58.

15. De Robenis, Ann. Bari n.s. 4 (1942) 285-312, examined these instances and concluded that the great majority constituted an official ruling on matters in dispute; cf. also Massei, Scritti Ferrini. Faria 401,418 ff.

is more difficult to ascertain. There are, indeed, hundreds of instances in which decisions of imperial fora are cited with approval in the opinions of the late classical jurists. '* But whether the jurists in their rcsponsa ven­tured to depart from the principles laid down in imperial pronouncements is disputed.^{[683] [684] [685] [686]}

The relation of juristic thought to the decisions of imperial officials and bureaus has been the subject of a number of studies in recent times which merit attention, ’· for the very nature of Roman law in the late classical period depends to a considerable extent upon the interaction of juristic opinion and imperial and chancellery enterprise.”

Spartian us, De vita Hadriani XVIII. 1 (SHA)

When he (Hadrian) tried cases, he had in his council (consilium) not only his friends and attendants, but also jurists, in particular luventius Celsus, Salvius lulianus, Neratius Priscus, and others whom, indeed, the entire Senate had approved.

Casaubon (cd. SHA 1603) read luventius for lulius in the editio princeps of 1475.

Paulus, Libro I decretorum (D. 14.5.8)

Titianus Primus had appointed a slave for the lending out of money on loans and the taking of pledges; this slave was wont to take up debts for dealers in grain on behalf of the purchaser, and pay them. Since the slave had run away and the person to whom he had been given as substitute debtor to pay the price of the grain having sued the master in his status as factor, the latter denied he could be sued on this account, for the slave had not been appointed for this business. But as it was proved that the same slave had engaged in other transactionsand had leased granaries and paid out sums to many persons, the praefect of the grain supply (praefectus annonae) handed down judgment (against the master). We contended this seemed to be a sort ofguaranty since he was paying money for another, [nor ] he was undertaking debt for others; but it was not custom­ary for an action to be given against the master on this ground and it did not seem that the master had authorized it. But as he seemed to have appointed the slave to act for him in all transactions, the emperor affirmed the judgment.

Mommsen read in place of [non].

Evidence of the jurists’ connection with service to the emperor is also afforded by their participation on the advisory council of the emperor (consilium principis).^[687] The origin of the council is a matter of dispute, but many scholars have urged that the introduction of jurists to it by Hadrian was an important element in the reorganization of the administration of justice by this emperor.^{[688] [689] [690] The jurists, along with high officials and bureau chiefs, sat as advisory judges on the imperial court, and were in part re­sponsible for the decisions (decreta) handed down in the supreme tribunal of the Roman state.n Whether they also acted as advisors of the emperor on public policy, or at least on legal policy, is more difficult to determine. In §161, infra, specifically devoted to the council of the emperor, it will be noted that Crook has viewed it as a council of state, comprising a fluctuating membership to advise the emperor on all matters of state, admitting that a special section might consist of jurists to form a judicial council.21 Kunkel, however, refused to accept this analysis, contending that the consilium was solely a judicial council made up of legal experts (jurists) and public officials (praefects and bureau chiefs), assisted by a paid staff: a collegiate bench in criminal cases, the vote of which the emperor was bound to follow, and an advisory council in civil cases.[691] [692] In any event, the jurists who par­ticipated as councillors in the hearing of cases before the emperor have left us reports of these trials in their writings.21 There can be no doubt but that the jurists’ contribution to the development of the law in the last century of the classical epoch constituted a distinct departure from their role in earlier times, fashioned as it was by the participation of the majority of these legal experts in various bodies of imperial civil service.}