C. THE INDIVIDUAL JURISTS

§ 108 In the previous sections of this chapter the nature and the development of jurists’ law have been explored; the manner in which the jurists ap­proached legal problems and the techniques which they employed to fashion the ius civile will be treated below.

Pomponius, Libro singulars enchiridii (D. 1.2.2.13, 35)

... After this (survey of the magistrates), then, we shall speak of the succession of authorities, for law cannot exist unless there be someone skilled in the law by whom it may daily be improved. (35) The science of the ius civile has been professed by many of the greatest men; mention is to be made at this time of such of them as were of first rank in the estimation of the Roman people in order to set forth by whom and in what way the laws were made and handed down.

The concluding portion of Pomponius’ survey of legal history dealt with the ’learned in the law’ (iuris periti), termed also those ‘consulted in the law’ (iurìs consulti), that is, the persons responsible for the major develop­ment of the Roman law in the classical period. For a long time, scholars clung to the idea, forcefully expressed by Savigny, that the individual jurists were ‘fungible persons’.¹ Although Schulz admits that the expression may be too strong,^{[693] [694] [695] he clearly leans to the same idea in his history of Roman legal science, when he states, ‘The biographies of the individual jurists, with their fragmentary personal details and bare catalogues of works, must be left in the background and first place must be given to their mistress, Roman legal science herself.’1}

Gradually, and with ever-increasing effort, the opposite point of view has come into prominence.

Pomponius’ account of the Roman jurists is fairly satisfactory as far as it goes, but inasmuch as it necessarily entirely omits the jurists who followed him and is exceedingly brief as regards his immediate predecessors and contemporaries - while unduly emphasizing a number of relatively less important republican jurists - it is well to supplement his remarks with sketches of some of the significant jurists of the classical epoch from other primary as well as secondary source materials. The chronological sequence of the jurists and the relationship between them has been adequately worked out, since the publication of Fitting's work.* The evidence for dating stems principally from two sources. The first is the reference to older as well as to contemporary jurists in the given juristic work? Citation may be by simple reference, by reference plus quotation, or by reproduction of a passage without mention of the author. Similarly, absence of citation is some indica­tion that we have at hand a work of earlier date. Perhaps of more value, in the second place, are the references to the emperors in the writings of the jurists. Three points are noteworthy: (1) the passage in which the emperor is mentioned cannot have been written before his reign, unless there is interpolation; (2) the attribute ’deified’ (divus) shows that the passage was written after the death of the emperor so deified, since official deification occurred only after death;* and (3) unless otherwise stated, the expression ‘our emperor’ (imperator noster) means reigning monarch. Other appella­tions of the emperor are not as valuable for dating purposes.

In an outstanding work, Kunkel has given us a mass of information on

4. Fitting, Alter und Folge der Schriften romischer Juristen von Hadrian bis Alexander (2nd cd., 1908), Recently, D'Ors, ‘Divus-Imperator. Problemas de cronologia y transmission de las obras de los jurisconsultos roman os’. AHDE 14 (1942/43) 33-79.

5. Fitting, Alter 14-20. Jors’ discussion of Ulpian's citations of earlier writers is particularly illuminating, s.v. Domitius, RE 5(1905) 1455-1501,

6. Herzog-Hauser, s.v. Kaiserkult, RE Supp. 4 (1924) 814, 826 ff. The attribute ‘divus* is of particular value with respect to jurists who lived and wrote in the reigns of two emperors, since it enables us to determine the portions of books written in the time of one or the other emperor.

7. Fitting, Alter 14,

8. See also Sanio, Geschichte 26-116, on the citation of republican jurists by those of the Principate. Recently Honori, Gaius 131-80, has tabulated the forms in which jurists of the 2nd century cite their predecessors and contemporaries.

the family relationship as well as on the place of origin of the greater number of jurists whose names have come down to us.’ In addition, he has dealt with the social standing and status, and has carefully traced the political careers of those jurists who entered into public service.¹⁰ There is as yet, however, no comprehensive treatment of the legal views or of the particular techniques employed by the individual jurists in the classical period.

There is a view prevalent among scholars that the republican jurists were the really creative forces in the development of the Roman law, whereas the jurists of the Principate merely perfected the ideas of their predecessors and presented the whole in their writings. This is the view of Schulz and has been expressed often by others.'⁴ Not all, however, share this view. According to Pringsheim a change is to be noted circa 150 A.D.^IT There was no real distinction between the juristic thought of the republic and that of the first century and a half of the Principate, a happy balance between practice and science, with the legal literature reflecting discussion of cases and interpretation of statutes. In the second half of the Principate free juristic discussion gave way to controlled legal expression, dictated in

9. Kunkel, Herktinft und soziale Stellung der rtimischen Jurisien (2nd ed,, 1967).

10. A bibliography of recent comment on individual jurists, since 1952, is to be found in the Addenda pages of Kunkel’s second edition.

11. See Crifd, ‘Recenti pubblicazioni e discussioni sulla metodologia dei gturistt romani’, Ann. Macerata 2 (1968) 5-28.

12.

13. Berger, lac at., n. supra. In addition, entries will be found in NNDI, and its predecessor, ND!; there are short notes on the leading jurists, in OCD; and in Berger, ED.

14. Ruggiero, j.v. lurfeconsultus, DE 4(1941) 266-68.

15. Kunkel, SZ 66 (1948) 423, 450, and Herkunft 286 f,

16. Schulz, History 126; other scholars cited by Brctone, op. tit., supra, n.l, at 22 n.l 11.

17. Pringsheim, Freib. wssensch. Geselhch. 22 (1933) I if. (» Abhandlungen I 53 ff,]; JRS 24 (1934) 141, 148 ff, [= Abhandlungen I 91, 98 ff.]. Schulz, History 100 f., recognizes two phases of juristic effort during the Principate, the dividing line being the accession of Hadrian, who took decisive steps towards bureaucratization.

accordance with the imperial will. No longer did the jurist depend upon popular confidence; the response now had force if it emanated from an official jurist, speaking with the authority of the emperor. Wieacker takes a still different point of view.'· There was the jurist during the pre-literary classical era, participating fully in the activities of his profession (agere, cavere, respondere, see supra, § 101), recognized and renowned in the public's eye as the spokesman of the state (princeps civitatis), whose wise words were nurtured through the ages. And then there were the jurists of the literary classical age, the new official jurisprudence, reaching its peak under the rule of the Antonines, and adjusting the high-level city Rome legal culture to the needs of the Roman empire and its provincial population. The great Roman jurisprudence, according to Wieacker, saw two apexes, one in the 2nd century B.C, and the other in the 2nd century of our era. The peak periods he has termed that of ‘aristocratic jurisprudence’(‘Adels- jurisprudenz’) and that of 'imperial jurisprudence’ (‘Kaiserjurisprudenz’), with difficulty in selecting the name for the intermediate period.”

In the presentation of the individual jurists which follows there has been no attempt to form ally dist inguish various periods of juristic thought.

1. Jurists of the Late Republic

§ 109 Among the score of jurists who flourished during the last two centuries of the republic the two most significant were Q. Mucius Scaevola and Servius Sulpicius Rufus.* Most of the jurists were of equestrian rank, but these two were in the senatorial order. For the earlier jurists (pontiffs) who may have

18. Wieacker. ‘Ober das Klassische in der romischen Jurisprudenz’, Rom. Recht 161 ff., particularly 175- 78. 181-86.

19. Wieacker, loc dt., 186.

20. The lives and incidents in the careers of the Roman jurists are presented - in addition

to the works already mentioned - in text-books dealing with Roman legal history. Note­worthy are Jors, (for the early republican jurists); Kriigcr, Geschichte

56-76, 154-255 (a comprehensive standard study); Wenger, Quellen 479-85, 496-523. Roby, Introduction xd-ccviii, is the most extensive study in English though somewhat antiquated.

I. For treatment of all the jurists of the republican period, see Kunkel, Herkunft 6-37; briefly, Kaser, Rechtsgeschichte 168-69; and in English, Kunkel, Introduction 98-105.

laid the foundations of juristic science in Rome, reference is made to other works.¹

a. Q. Mucius Scaevola

§ 110 Pomponios, Libro singulars enchiridii(D. 1.2.2.41-42)

Quintus Mucius, pontifex maximus, son of Publius, was the first to compile the ius civile, which he arranged according to genera, in eighteen books. (42) The pupils of Mucius were many, but those of the greatest authority were Aquilius Gallus, Balbus Lucilius, Sextus Papirius, Gaius luventius....

Cicero, Sraias XXXIX. 145^46

Scaevola was considered the most eloquent of those learned in the law. He was an exceedingly acute legal thinker; his language very terse and admirably suited to legal discussion. An incomparable interpreter of the law, but in the matters of emotional appeal, oratorical embellishment and debate a formidable critic rather than a marvelous orator.

See Schulz, History (Note J) 335.

Cicero, De oratore 1.57.244 and Brutus LIL 196-97

... The whole of his (Mucius) oration (in the Curian case) turned on the point of maintaining that the writing ought to have the most validity.... (196) How insidious it would be to the people if the writing should be disregarded and the intention besought in mere opinion, and the writings of simple men be perverted by the interpretation of orators. (197).., What a lot had he to say on the pre­serving of the ius civile....

Cicero, De oratore 1.39.180

... Q. Scaevola, my (Crassus) contemporary and colleague, a man above all profoundly learned in the science of the ius civile and a most acute legal thinker, his language refined and unadorned and, as I am wont to say, the most eloquent of the jurists, the most learned in law of the orators....

Q. Mucius Scaevola, who was designated pontifex to distinguish him from other prominent members of his family, was born in 140 B.C.¹ The family dated back at least to a Q. Mucius Scaevola, praetor in 215 B.C., undoubted­ly a man of the highest rank even at that early time. Mucius became quaestor

2, Eg., Bretone, 'Publius Mucius et Brutus et Manilius, qui fundaverunt ius civile (D. 1.2.2.39)’, La cntica de! test o 103-16; cf. generally, Kunkel, Herkunft 45 if., 56 ff.

1. An extensive vita, now somewhat antiquated, in English, by Roby, introduction cv-cviii. in 110, tribune in 106, praetor about 98, and consul in 95 B.C. Prior to this last office he had been made a pontiff. Subsequently, in 94 B.C., he was named governor of Asia, and in 89 B.C. pontifex maximus. In several of his offices he was the colleague of L. Licinius Crassus, and often opposed him as counsel, notably in the case of Curius vs. Coponius? While governor he incurred the enmity of the equestrian order at Rome, and his legate, P. Rutilius Rufus, also a noted jurist, was unjustly convicted of bribery. Mucius, himself, was murdered in 82 B.C. The Senate, however, extolled him as a model governor, a judgment confirmed in a recent study. ^JQ. Mucius marks the height as well as the end of pontifical jurisprudence; no member of the pontifical body is thereafter included among the jurists.*

Cicero has provided us with ample references to Mucius' fame as an orator, above all in his discussion of the famous causa Curiana. Mucius has been counted a supporter of the formalism of the early Roman law, a conservative favoring ‘strict law’ as against ‘equity’, holding for ‘writing’ against ‘intention’ (see infra, § § 133-34). This estimate is largely based on his position in the Curian case as counsel for the defendant, but it may not be correct to generalize from this situation. Rather, in Cicero’s opinion, Mucius was too brief in his speeches, too objective and unemotional; in short, too much of a lawyer to be an outstanding orator.⁵

As a jurist Q. Mucius gained greatest esteem as the author of the first systematic treatise on the ius civile. It was a product of dialectical method in the view of most scholars, and it continued to be commented upon as late as the 2nd century of our era.^{[696] [697] [698] [699] [700] [701] [702] The compilers of Justinian’s codification probably did not have a copy of the work, for the five short extracts in the Digest were apparently quotations from commentators, and were included as a token of formal homage to the founder of Roman jurisprudence.7 It is generally held that Mucius utilized the dialectic devices of ‘genera’ and ‘species’ in working out the scheme of its organization.1 In any event, the arrangement of materials determined the sequence of comment on the ius civile in succeeding ages. Actually, Kreller has pointed out that Mucius did not work out a logical system.’ He notes that generatim (according to genera) does not mean systematic organization, but rather that Mucius set forth five genera of guardianship, seven genera of possession, etc. It has been modem scholars, he maintained, who have built up a system out of the enumeration of the books which made up the work; Mucius actually followed the arrangement of the Twelve Tables. Recently, Lauria has supported the view, with further evidence, that the arrangement of Mucius’ treatise on the ius civile reflects the order of materials in the Twelve Tables.10 At any event, the work marks the beginning of Roman legal science, and, as Schulz says,}

’Well may we complain of the fate which has preserved so utterly worthless a work as Cicero’s De legibus, but has allowed the book which laid the foun* dations not merely of Roman, but of European, jurisprudence toperish.’’¹

Another work attributed to Q. Mucius in the Florentine Index to the Digest is the single volume ’On Definitions’.¹² It has been commonly thought to be the precursor of later publications of Regulae, and Kubier has traced it back to similarly entitled works of the Stoics Chrysippus and Antipater.^u Sanio suggested that the work used by the compilers - a few direct excerpts are to be found in the Digest - was actually a later epitome,¹⁴ while Lend doubted the existence of any such volume, considering that at most there may have been a later collection of passages from Mucius’ work on the ius civile.¹’ H. Krüger pointed to the inappropriateness of a Greek title fora work of purely Roman content, and thus took it to be a post-classical col­lection of legal rules from Pomponius’ Libri ad Q. Mucium, to which a Greek had added the title. '* According to Schulz, the renaissance of dialec­tic in the post-classical period may explain why a work, not authentic but attributed to Mucius, persisted to the time of Justinian.” Recently, Scherillo has defended its authenticity, attempting to show that Cicero utilized it frequently in his Topics.¹¹ It was, he says, a collection of definitions and maxims, similar to the Pithana of Labeo (see infra, 1113). Stein also attrib­utes the book to Q. Mucius, terming it an unprecedented work in Roman

9. Krdler. SZ 66 (1948) 572, 573 f. So also Kunkel. Introduction 103 f.

10. Lauria, Ius romanum 66-70.

11. Schulz, History 94.

12. Quintu Muciu Scacvola tyxov ßißÄiov Ku.

13. Kubier, 4m* Cong Roma I 79, 86.

14. Sanio, Geschichte 4.

15. Lenel, Pdfingenesia 1 762 n.7; cf. Schulz, History 94.

16. H. Krüger, Studi Bonfanie II 301, 336.

17. Schulz, History, 94, 296.

18. Scherillo, lura 3(1952) 180-90.

legal literature, 'fixing the exact limits (&poi) of legal institutions which in general terms had long been familiar to lawyers'.^{[703] [704] [705] [706]}

A cautio Muciana - security given by a legatee not to act contrary to a condition imposed in the will - and the so-called praesumptio Muciana -a presumption that everything a married woman possessed had been given to her by her husband unless she could prove otherwise - were said to be innovations by Q. Mucius Scaevola.¹⁰

The encyclopedic study of Mucius as a stateman and a jurist is by Miinzer and KObler there are further references by Wenger.“ The extant extracts from his works have been collected by Bremer and Lenel.^[707]

b. Servius Sulpicius Rufus

§111 Pomponios, Libra singular! enchiridii (D. 1.2.2.43)

Servius Sulpicius, when he held the chief place in pleading oases, ar at least second to Marcus Tullius (Cicero}, is said to have gone to Quintus Mucius to gain advice on the case of a friend of his and when the latter had responded to him on the law, Servius understood little: again he asked Quintus and he was answered by Quintus Mucius nor did he yet understand, and so he was reproached by Quintus Mucius; for he said that it was disgraceful that a patrician and a noble and a pleader of cases was ignorant ofthe law in which he was employed. Servius, struck by this insult, we may say, paid attention to the ius civile and received a great deal of instruction from those whom we have mentioned: taught by Balbus Lucilius, instructed most, however, by Gallus Aquilius, who lived at Cercina; accordingly, many books of his, extant, were written at Cercina. When he (Servius} died while a legate, the Roman people erected a statue to him before the rostra, which is to be seen to this day before the rostra of Augustus. A greed number of rolls of his works are extant: he left nearly one hundred and eighty books.

Cicero, Brutus XLI. 152-53

Do you not place our Servius above Q- Scaevola? So I say, Brutus, I think that Scaevola and many others had a practical knowledge of the ius civile, but he (Servius) alone mastered it as an art; which he never could have done from the knowledge of the law itself without having in addition learned that art which teaches us to divide the whole into its parts, to describe the unknown by defini- lion, to explain the obscure by interpretation, to see first what is ambiguous, then to distinguish, and finally to provide a regula by which the true and the false may be adjudged and what things may be deduced from what premisesand what does not follow. (153) He adds this art, the greatest of all arts, as a sort of light to those matters which were responded to or dealt with by others with­out any system....

Cicero, In M. Antonium oratio philippica IX.5.10-11

.., Nor will his (Servius) admirable, unbelievable and almost divine knowledge in the interpretation of laws and in the application of aequitas be passed over in silence. If all men of any age who in this state had understanding of the law were brought together, they would not be comparable with Servius Sulpicius. For he was not more of a consultant in the law than he was (a master) of justice. (II) Accordingly, he always tested the norms deriving from statutes and the ius civile against leniency and equity, and he did not prefer the bringing of judicial actions to the settlement of controversies.

Excerpt from an oration seeking support for the erection of a monument to Servius Sulpicius.

Servius Sulpicius, a contemporary of Cicero, was born in 106 or 105 B.C., a member of a family of lower nobility. ’ The scene which is reported by Pomponius must have taken place before his twenty-fifth year, for Mucius’ death was in 82 B.C.^{[708] [709] [710] In 78 B.C. Servius went to Rhodes, together with Cicero, to study dialectic and philosophy. He became a fully trained and active rhetorician even though Cicero considered him of second rank as an orator. It was thus sometime before he undertook the study of law, in­structed by Lucilius Balbus and Aquilius Gallus. Servius became quaestor in 75 B.C., praetor in 65, and, although he stood for the consulate in 63, he did not obtain that office until 51 B.C. He became governor of Achaia (Greece) in 46, and died while on an embassy to Mark Anthony in 43 B.C.}

Though a life-long friend, Servius was held up to ridicule-and with him the whole science and art of jurisprudence - when Cicero defended Murena against charges of bribery brought by Cato and Servius.’ Yet Cicero, in the passage in Brutus, confers extreme praise on Servius when he contrasts the knowledge of law gained by Q. Mucius in the course of mere practice with the scientific achievement reached by Sulpicius with the application of dialectic, a new Prometheus, bringing the heavenly light of dialectic into the murky world of law.^[711] However, there is as much disagreement among modern scholars as to the relative importance of Mucius or Servius in the evolution of Roman law as there was in Roman times. Stroux maintained that law was converted into a science by the efforts of Servius/ and there is somewhat similar praise by Lend? On the other hand, Levy has argued that Stroux was influenced by Cicero’s bias in favor of his friend?

Among the 180 books left by Servius mention can be made of a few titles: (1) Ad Brutum, in two books, which was the first - if brief-commentary on the edict of the praetor; an extensive commentary on the edict was made by Ofilius, a student of Servius;¹ (2) Reprehensa Scaevolae capita (Censured chapters on Scaevola), also known as Notata Mucii (Critical comment on Mucius), apparently a polemic against the ius civile of Q. Mucius/(3) De dotibus, a monograph on dowry; and (4) another monograph on ‘abomi­nable sacrifices’ (De sacris detestandis). All of the extant fragments from the works of Servius together with his responses, collected and published by his pupils, are presented by Bremer and by Lend.¹⁰

Servius was famed as a teacher as well as a responding jurist; at least ten students named him as their master.¹¹ He was also prominent in establishing a theoretical, philosophical basis for a good deal of the development of the formulary procedure that can be traced to his age. His name was given to two formulae: (1) in the action by a fiction for the acquisition of a judgment­debtor’s property, and (2) in an in rem action for pledge?¹

The encyclopedic study of Servius is by Münzer and Kübler;¹’ there is a lengthy biography by Mdoni;^,4and further references by Berger.^,s

2. Jurists of the Early Prindpate

§112 The jurists of the early decades of the empire were, like their predecessors of the late republic, legal consultants and teachers and also frequently pur­sued a magisterial career leading to the consulate? With the emperor

5. Stroux, Rechtswissenschaft 58 Ã

6. Bruns-Lcnel, Geschichte 344 f.

7. Levy, SZ 48 (1928) 668, 675 [ = Schriften I 20, 26],

8. D. 1 2.2.44 if

9. Schulz, History 91,

Þ. Bremer, lurisprudentiae I 139-242 (with extensive commentary); Lend, Palingenesia II 321-34.

11. Cf. Vemay, Servius ei son ecole (1909); Casavola, ‘Auditores Servii*. La critica del testa 153-63.

12. Kflbler, J.v. Sulpicius, RE 4A (1932) 859 f.; Schulz, History 51 n.9, 202 f.

13. Münzer-Kübler, s.v. Sulpicius (95), RE 4Ë (1932) 850-60.

14. Mdoni, Ann. Cayliari 13 (1946) 67-245.

15. Berger, xv. Sulpicius, ED 704,

j. See Sutherland, 'Personality of the Jurists under the Juho-Claudian emperors', AJP58 (1947) 47-63.

Vespasian a new type of jurist began to come to the fore, engaged in the service of the emperor for the greater part of his life, and increasingly the recipient of a salary for his imperial posts, a practice unknown during the republic and earliest Principate.^{[712] [713] Of the jurists during the Julio-Claudian dynasty, five are presented in this section?}

a. Μ. Antistius Labeo

§ 113 Pomponios, Libro singular! enchiridii (D. 1.2.2.47)

After him (Tubero) of greatest authority were Ateius Capito, who followed Ofilius. and Antistius Labeo. who attended the lectures of all these (late re­publican jurists), but was (especially) instructed by Trebatius. Labeo. when the consulate was offered to him by Augustus, by which he would have become interim consul, refused to take the office but gave his attention in the main to his studies. And he so divided the whole year that he was at Rome six months, six months away and devoted his effort to writing books. As a result he left four hundred books, many of which are employed constantly.... Labeo, by the quality of his originality and confidence in his own learning, having paid attention to other branches of knowledge, endeavored to innovate many things.

A different version of the consular appointment, Tac. Ann. 3.75, infra, § 114. On ‘innovate’, see Grosso, Atti Torino 78 (1942/43)4 if. (of the reprint); accord, Guarino, Labeo 1 (1955) 50, 52 nn. 26-27.

Gellius, Noctes Attioae XIII. 10J

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 of the 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.

Cf. also. Gell. 13.12.1.

Μ. Antistius Labeo, the son of the jurist Pacuvius Labeo, was bom about 50 B.C., and died circa 10/11 A.D. He was primarily trained in law by Trebatius Testa, perhaps at Samnium,¹ though he attended a good many other jurists at their discussions. He was named by Augustus to a commis­sion charged with the drawing up of a new list of senators for the emperor? In his public career he advanced to the praetorship, but he declined the consulate when it was offered to him by Augustus.^{[714] [715] He was both a respond­ing jurist and a prominent teacher, and is considered the founder of one of the two sectae (groups, schools) of jurists of the early Principate.*In politics he seems to have been an upholder of the old order, uncompromisingly opposed to the supporters of the new regime. In succeeding ages he was renowned not only as an expert in the law but as a scholar in philosophy, grammar and rhetoric, and considered well versed in the ancient literature?}

It is with Labeo that modem scholars begin the effort at an explanation of the methodology and techniques of the Roman jurists. Bremer long since sought to characterize the various methods Labeo employed in expounding the tenets of the law.^{[716] [717] [718] Seidl, recently, has sought to evaluate Labeo’s think­ing processes.[719] [720] [721] Whether he advanced beyond his predecessors in applying deductive reasoning to the interpretation of the provisions of wills or con­tracts, or to the construction of an enactment - such as the edict of the praetor - cannot be determined from the extant fragments with any degree of certainty. But Seidl believes that his steadfast adherence to the principle that one should not benefit from the disadvantage of another (unjust enrich­ment) was recognized by the authorities of succeeding ages as the mark of a great jurist.}

Among the four hundred volumina (book-rolls) which were attributed to Labeo are three works which deserve special mention:¹ (I) an extensive commentary on the edict of the urban praetor, with that on the peregrine praetor as an appendix;’ (2) Pithana, that is, ‘probabilia’, a collection of case holdings framed in conditional sentences, with the protasis containing the question, the apodosis providing the answer.^{[722] [723] The work is known from an epitome of Paul in eight books, the text used by the compilers of the Digest;11 (3) Posteriores, in at least forty books, a posthumous collection of actual and hypothetical cases made by an unknown compiler after Labeo’s death. The cases comprise those of republican jurists upon which Labeo commented, together with the responsa of Labeo himself, all apparently in the area of the ius civile. This may well be an unfinished work by Labeo himself, as a com­plement to his commentary on the edict.11 The work is known through an epitome made by lavolenus, but whether the compilers had one or two versions of the epitome is a matter of dispute.'1}

There are other works of Labeo of which a few fragments remain.'* The life and activities of the jurist are treated at some length in the first of three volumes (incomplete) which Pernice devoted to an overview of the Roman law in the time of Labeo.'¹ Reference may also be made to encyclopedic articles dealing with this jurist.“

b. C. Ateius Capito

§ 114 Pomponius, Libro singulars enchiridii (D. 1.2.2.47)

After him (Tubero), of greatest authority were Ateius Capito, who followed Ofilius, and A nt ist ius Labeo.... Of these Ateius was consul.... These two founded, so to say. different schools (sectae); for Ateius Capito adhered strictly to what had been handed down to him, Labeo, by the quality of his originality and the confidence in his own learning, having paid attention to other branches of knowledge, endeavored to innovate many things.

Tacitus, Annales III.75

There died in this year (22 A.D.}... Capito Ateius. of whom I have spoken, having attained the first position in the state by his knowledge of the law. His grandfather was a centurion under Sulla, his father of praetorian rank. Augustus advanced him to the consulate, promoted to this magistracy above Labeo Antistius, prominent in the same field. ■.■ Labeo. not compliant in his in­dependence, achieved greater fame for this reason, but the flattery ofCapito was more pleasing to the rulers. Labeo, because he remained within the praetorian rank, became popular because of this injustice, Capito, because he obtained the consulship, was hated.

12. Krüger, Geschichte 157 f.

11 Berger, BIDR 44 (1936/37) 91-120. one version; H. Krüger, StudiBonfante II301,329 ft, and Schulz, History 207-09: two versions,

14. Listed by Wenger. Quellen 497 n.68.

15. Permce, Labeo. Romisches Privatrecht im ersten Jahrhundert der Koiserzeit. Vols. I, II. 1-2,

Ill. I (Halle 1873-1900).

16. Jors, s.v. Antistius (34), RE I (1894)2548-57; Berger-Nicholas, s.r. Labeo(I),00574,

Tacitus, Annates III.70

L. Ennius, an equestrian, accused of tese-majestd because he had melted down a statue of the emperor to use for silver coinage, the emperor (Tiberius) stopped the trial, Ateius Capita protesting openly, as if for liberty: for the right of the Senate to decide on such cases ought not to be taken away, nor such a crime be done with impunity. The emperor might be slow to resent, but let him not be generous to the injury of the state. Tiberius understood all this, that more was meant than was said, yet persisted in his intervention. Capito was marked with disgrace, for distinguished as he was publicly for his knowledge of human and divine law, and for excellent virtues in private life, he was dishonored (by reason of this flattery ).

Ateius Capito is first mentioned in connection with the secular games of 17 B.C. He was chosen substitute consul by Augustus in 5 A.D.,and held the post of commissioner of waters (curator aquarum) from 13 until his death in 22 A.DJ He, in contrast to Labeo, was a supporter of Augustus, and, accord­ingly, was rewarded with public office. He remained in favor under Tiberius? Though he is termed by Pomponius the founder of one of the two schools of jurists, his contribution to the science of private law was relatively insignificant, and it may be that the rivalry between the two schools was merely attributed to the antagonism which had existed between Labeo and Capito?

Among the works of Capito which are known were Coniectanea (Sum­maries), a work on public law, with one book devoted to criminal law and procedure? a monograph on the senatorial post; a work on sacral matters, falling within the scope of the ius pontificium. The latter works served as source materials for antiquarians of succeeding generations, but the impact of his legal works on later jurists was minimal.

Strzelecki has devoted a monograph to Ateius Capito? analyzing the sources which offer us details of his life, making a study of his works and the treatment of them by later writers, concluding with a palin­genesis of his writings, with the comparable arrangements of his works made by Bremer and Seckel-Kabler? The recent study has rendered fairly cbsolete the earlier surveys of the life and works of Capito?

1. Frontinus, De acquae. 102.

2. The generally accepted view of Capito's toadyism is reported by Kubler, Geschidue 260 Rogers, 'Ateius Capito and Tiberius', Synieleia Arangia-Ruiz I 123-27, argues that there is no evidence of fawning adulation on the part of Capito.

3 Schulz, History 120.

4. Scckd-Ktibler, lurisprudentiae I 63 f.

5. Strzelecki, C Atei Capitonij fragments (196b).

6. Bremer, htrisprudentiae II.I 266-87, Seckel-Kubler, lurisprudentiae I 62-72.

7. Largely superseded are JCrs, s.v. Ateius (8), RE 2 (1896) 1904-10; Wenger, Quellen 497.

c. Massurius Sabinus

§ 115 Pompom us, Libro singulars enchiridii (D. 1.2.2.48,50)

And so Massurius Sabinus succeeded Ateius Capita.... Massurius Sabinus was in the equestrian order and was the first to respond publicly: afterwards this privilege began to be given, which, however, had been granted to him by Tiberius Caesar. (50) Accordingly, it was conceded to Sabinus by Tiberius Caesar that he might respond to the people. Sabinus was received into the equestrian order when advancedin age, in fact about fifty years old. He did not have ample means but for the most part was supported by his students.

For interpolations, and ius respondendi, see supra, §106.

Massurius Sabinus was a man of limited means, though, if related to another Massurius Sabinus of the Adige valley, he was not a poor man, but merely of limited wealth by comparison with Roman millionaires.¹ Pre­sumably he never became a magistrate, but acted as consultant and law teacher, obtaining equestrian rank late in life. Sabinus was famed as the leader of one of the two schools of jurists,² and was reckoned a jurist of prime importance by his successors. Modern evaluation of the methods and techniques employed by Sabinus is still in its first stages.¹

The fame of Sabinus rested in large part on his commentary on the ius civile, the basis of a number of later treatments of the private law.⁴ Accord­ing to Berger this was ‘an extensive, systematic treatise on the ius civile'.* Schulz maintained that it was only an elementary work, a text-book for students, perhaps even lecture notes published after his death.* However, Lend and most scholars following him consider that the organization and treatment of the materials in Sabinus’ ius civile was a notable contribution to the science of Roman law. ’ Although the organization was not necessarily

1. See Kunkel, Herkunft 119. Cf also, De Francisci, ‘La patria e il cognomen di Masurius Sabinus*, BIDR 66 (1963) 95-96.

2. According to Karlowa, Rechisgesdtichte I 686, the first head of the so-called Sabinian school; so also, Schulz, History 120, though he may have shared the leadership with Cassius Longinus for a time.

3. A Start has been made by Seidl, Rechtsgeschidtte 77-81.

4. The well-known commentaries ad Sabinum, by Pomponius, Paul and Ulpian.

5. Berger, r.v. Sabinus, ED 687.

6. Schulz, History 156, on the ground that some major subjects, such as real contracts, locatio conductio and mandatum were omitted. Kunkel, Herkunft 342, is in accord with Schulz, taking it as the only known elementary handbook before Gaius' Institutes. The majority view is that it was meant for advanced study, and that the subjects omitted did not fall within the scope of a commentary on the ius civile.

7. Lend, SaW/tus-System (1896); Wenger. Quellen 501; Frezza, RJSG 8(1933) 412-71. Bremer, lurisprudentiae II. 1 383, points out that, subsequent to his contemporary Cassius Longinus, no one wrote a commentary with the title ‘On the ius civile’; they were all ‘On Sabinus' (ad Sabinum).

original with Sabinus,* the work would seem to deserve a more favorable judgment than that which is accorded it by Schulz. It remained a standard work for some centuries, but scholars are in dispute whether the compilers of the Digest possessed a copy.’

Sabinus was also the author of: (1) a brief commentary on the edict of the praetor; (2) a work dedicated to a certain Vitellius, or a commentary on the work of a jurist named Vitellius;¹⁰ (3) a monograph ‘On thefts’ (De furtis), which may have been part of his ius civile;¹¹ and (4) a collection of responsa, Wlassak thought that Sabinus may have written a commentary on the Julian law on private trials (lex Julia de iudiciis privatis).¹¹ In addition, Sabinus was the author of a number of works not strictly legal in nature, the extant frag­ments of which have been collected by Bremer.·¹

A survey of Sabinus' life and works is to be found in the encyclope­dias.¹*

d. Proculus

§ 116 Pomponius, Libro singulari enchiridii (D. 1.2.2.52)

Proculus succeeded Nerva. At the same time there was Nerva filius and another Longinus from the equestrian order.... But the authority of Proculus was greater, for indeed he had very great influence. Some (of the members of the schools) were called Cassians, some Proculians. the distinction having begun with Capito and Labeo.

According to most, only the cognomen of the jurist Proculus is known, since the reference to a Sempronius Proculus is taken to be a textual error.¹

8. See Stcinwenter, J * Sabinus, RE 1A (1920) 1600 f.

9. Pro: Krüger, Geschichte 164, since it is listed in the norentinc index; contra. Dirksen, Hinterlassene Schriften I 36, and Schulz, History 156, since no excerpts from it arc found io the Digest.

10. Guarino. ‘Ad ViteUium’, BIDR 66 (1963) I, 12 (T, and ‘Libri ad\SynteieiaArangio-Ruiz I 768-71. maintains that it is impossible to determine whether it is a dedicatory work ora commentary, on an earlier jurist. Astolfi, ‘Et Cassius apud Vitellium notat'. Iura 16(1965) 115-23, on the basis of D. 33.7.12.27, shows that the generally accepted view that the works ad Vitellium are commentaries - or annotations thereto - of the work of a jurist Vitellius is the correct view.

11. So Dirksen, contra Karlowa, Rechisgesdtichte 1680; accord with Karl owa, Schulz, History 254 n.4.

12. Wlassak, Grunh Z 19 (1892) 705-08.

13. Bremer, lurisprudentiae III 363-74.

14. Steinwenter, r.k Sabinus (29), RE 1A (1920) 1600 01; Orestano. s v Sabino, Masurio, HHDI 16(1969)294-95.

I. In D. 31.47, ‘Sempronius Proculus Nepoti suo salutem' is an error for 'Sempronius Nepos Proculo suo salutem', so Krüger, Geschichte 168 n.47; De Francisci, Storia II. 1 355; Krampe, Proaili Epistulae ] f.

Kunkel believes that he was of senatorial rank, and may possibly have been one of three Proculus known from inscriptions of the middle of the 1st century.¹ Honord, however, takes Sempronius as his gentilician name, in spite of its use as a John Doe by the jurist, and maintains that Proculus stemmed from the Spanish province of Baetica, befriended in Rome by L. Annaeus Seneca, who came from the same area? Honord advances evidence which leads him to believe that Proculus was born between 12 and 2 B.C., and died some time after 66 A.D. Krampe examines this evidence and con­cludes there is little to support Honord‘s views as to name or place of birth, though he tends to agree with the dates suggested.^{[724] [725] [726] [727] [728] [729] [730] [731] [732] [733] [734]}

Proculus was the head of the school of jurists which bears his name, but whether he was the first head of the school is disputed? Baviera goes so far as to say that the whole description of Proculus' activity is interpolated? Honord holds the jurist responsible for the passage of the SC Trebellianum and the SC Neronianum; such reforms would be too liberal for the con­servative jurist Cassius Longinus, while Sabinus placed a restrictive inter­pretation on the SC Neronianum? The great influence of which Pomponius speaks is taken by Krampe to be political?

Seidl and Mayer-Maly pointed out a number of juristic techniques em­ployed by Proculus? but it remained for a young scholar. Krampe. to care­fully analyze the fragments of Proculus* Epistulae (Letters) preserved in the Digest, and disclose the method employed by the jurist in his treatment of the Roman law?⁰ In some instances a legal problem is presented by an exchange of letters, the first presenting the problem and raising the question, the second rephrasing the legal situation and providing the answer?¹ These arc hypothetical cases, resolved by means of dialogue or the dialectical method. In other instances the letters serve as taking-off points for teaching purposes J¹ Throughout, Proculus employs the technique of dislinctio, the raising of several alternatives, a particularly effective device for pur­poses of instruction.¹¹ The careful analysis by Krampe affords a wealth of information respecting the method employed by the jurist, and leads in­exorably to his conclusion, ‘The Epistulae of Proculus is a teaching manual in which legal problems are presented and resolved with dialectic techniques in the form of an exchange of letters.’¹⁴ At the same lime Krampe restores much to Proculus which had been taken as interpolated.¹⁵ He contends there was no post-classical revision of the text; what alterations there are were due to the compilers, for this student work lost its practical value with the appearance of Gaius’ Institutes. The dissertation of Krampe deserves further attention as one of the new methodological studies of the writings of the classical jurists.

To Proculus has also been ascribed Notae (Annotations) to the works of Labeo, but the exact nature of this work is uncertain.¹⁴ He was not, it seems, the author of an Epitome of the Posteriores of Labeo.¹¹ The encyclo­pedic articles contain further references to studies on Proculus,’· while the views of modern scholars respecting the legal content of his Epistulae are fully presented in the text and annotations of Krampe’s recent work.

e. C. Cassius Longinus

I 117 Pomponius, Libro singulari enchiridii (D. 1.2.2.51)

Gaius Cassius Longinus, bom of a daughter of Tubero, who was (herself) a grand-daughter of Servius Sulpicius, succeeded him (Sabinus); and accordingly, he calls Servius Sulpicius his great-grandfather. He was consul along with Quartinus in the time of Tiberius, and he had great authority in the state until Caesar expelled him from the commonwealth. Banished by him to Sardinia and recalled by Vespasian, he died in his time.

The consular colleague of Cassius was Surdinus, not Quartinus, see Jdrs, RE 3 (1899) 1736.

Tacitus, Annales XII. 11-12.

C. Cassius, who was governor of Syria, was commissioned to conduct the youth (Meherdates) to the banks of the Euphrates. (12) Cassius, at that time, was the most eminent in the knowledge of the law.

13. Krampe, 61 IT, contra to P rings heim, Pestschrift Lene! 204,220 f. [ «■ Abhandlungen 1391, 402 f.}.

14. Krampe, 96 (translation of the author).

15. Krampe, 99.

16. Pemice, Labeo I 84; Krüger, Geschichte 168; Mayer-Maly, op. at. supra, n.9, 1237. Contra, Schult, History 210.

17. So Berger, BIDR 44 (1937) 120-30; Krampe, op. di., 6-8. Contra, earlier. Lend, Ptilin- gertesia II 166; Kipp, Geschichte 117.

18. Mayer-Maly, s.v. Proculus (Jurist). BE 23.1 (1957) 1234-40, and Orestano, j.v. Proculo, NNDI 13(1966) 1244.

C. Cassius Longinus was of the highest aristocracy of his time, a grand­son of the assassin of Caesar on the paternal side, and a great-grandson of Servius Sulpicius Rufus on the maternal. In spite of his origins, he cannot be considered to have been in opposition to the policies of Augustus.¹ He became praetor in 27 A.D., alternate consul in 30, governor of Asia in 40/41, and legate to Syria in 47-49 A.D. D’Ippolito has recently entered into a detailed examination of the public career of the jurist, particularly on the basis of the references in Tacitus, and has furnished a most illuminating picture of the strong conservative, traditional views maintained by Cassius? Extracts from the jurist’s works are integrated with Tacitcan passages, such as the speech in the Senate upholding thesenatusconsultum which decreed the torture and eventual death of all house slaves of a master murdered in his home.^{[735] [736] [737] [738] [739] [740] Cassius eventually incurred the enmity of Nero - because of the fortune inherited from his ancestors and the gravity of his manners. Tacitus tells us that, though blind, he was deported in 65 A.D., allegedly because he had a portrait of his ancestor Cassius in his home. He died shortly after his return to Rome, which had been permitted by Vespasian.*}

Cassius became an eminent jurist, both by reason of his responsa -cited by no less than eight succeeding jurists¹ - and by his fame as teacher and writer, and may well have been the true founder of the school of jurists known as Sabinians or Cassians? He is also cited in the writings of the Roman surveyors as ‘a most knowledgeable man, expert in the law’ (pru- dentissimus vir iuris auctor).^{[741] [742] [743]}

The chief work of Cassius was his commentary on the ius civile, in at least ten books, the arrangement of materials seemingly differing some­what from the order established by Sabinus? The extracts included in the Digest derive largely from the epitome of the work by lavolenus, Ex Cassio, in fifteen books? Another of his works - for which the evidence is slight - is a commentary on Vitellius; Astolfi now seems decisively to have shown that Cassius wrote such a work, reported in D. 33.7.12.27

The attempt of Longinescu to identify the jurist Gaius with C. (^Gaius) Cassius Longinus has been repudiated by all.¹¹ Generally, on the life and works of Cassius, in addition to those cited, see Jdrs, s.v. Cassius (60), RE 3 (1899) 1736-38; Arno, Nuovi studi su Cassio(=Pubbl. Modena 4 [19251); Kunkel, Herkunft 130-31.

3. The Sabinian-Proadian Controversies and Schools

§ 118 Ulpianus, Libro XLI ad Sabinum (D. 47.2.43.5)

If, however, the owner has abandoned the property it cannot be stolen [even though I have the intention of stealing it; J for there can be no theft where there is nobody to steal from, and in this case there is none committed (against any­body/, for the opinion ofSabinus and Cassius has been accepted, which holds that a thing ceases to be ours which we have abandoned.

Interpolation generally accepted, Index Interp., ad h.l.

Paulus, Libro LIV ad edictum (D. 41.7.2 pr.-l)

If we know that a thing is considered abandoned by the owner, we can possess it. (1/ But Proculus says that a thing does not cease to belong to the owner unless it shall have been possessed by another. Julian says it ceases to belong to the one who leaves it. but it does not belong to another until he shall have possessed it, and rightly so.

For comment on this Sabinian-Proculian controversy, see Kaser, Rbm. Privatrecht 426 n.14.

Gaius, Institutionum commentarius 11.123

Similarly, one who has a son in potestas ought to take care that he either in­stitutes him heir or disinherits him by name; for if he shall havepretermitted him in silence he has t estated uselessly, so that indeed our (Sabinian) teachers thought that even if the son had died during the fathers life, no heir can lake under the will, because undoubtedly the institution was invalid directly from the start. But writers of the other school (Proculian) acknowledged that if the son be living at the time of the death of his father he undoubtedly prevented there being any appointed heirs, and he became heir by intestacy. If, however, he died before the death of his father, they thought the inheritance could be taken ^{[744] [745] by will, no son now hindering, because evidently they decided that a testament did become invalid because of a pretermitted son directly from the start.}

In the previous sections there have been a number of references to the successive leaders of the two groups (sectae) or schools (scholae) of jurists. ¹ Arno would trace the beginning of these two divisions back to Quintus Mucius and Servius Sulpicius, but his views have not been substantiated.¹ From the time of Capito and Labeo, however, the two lines can be traced in Pomponius:

Sabin ians or Cassians

Procul ians

Capito Massurius Sabinus Cassius Longinus Caelius Sabinus lavolenus Priscus Aburnius Valens, Tuscianus

Antistius Labeo

Nerva pater

Proculus, Nerva filius, Longinus Pegasus Celsus pater Celsus filius, Neratius Priscus

Salvius lulianus

In the Digest we read of a number of disputes between the leaders of the two schools and in Gaius* Institutes frequent reference is made to the controversies between the Sabinians (praeceptores nostri, our teachers) and the Proculians (diversae scholae auctores, leaders of the other school).^{[746] [747] [748] For the most part, the old controversies were laid to rest by Julian, whose work, says Schulz, dominates subsequent jurisprudence.[749] [750] Nevertheless, later jurists continue to make reference to the old disputes.3 Through the ages scholars have sought to isolate general criteria which would serve to distinguish the views of the two sectac or scholae in alt these passages.[751] [752] [753] [754] [755] [756] [757] [758] [759] There are those who would argue for two opposing theoretical or philosophical points of view, e.g., conservative republican versus liberal imperial policy, ius civile versus ius gentium, the old traditional way versus the modernizing Hellenistic approach, the anomalists versus the analogists, traditional interpretation versus dialectic methodology, and the like? However, no one of these so-called internal distinctions fits the doctrine set forth in all of the controversies of the two schools.* Nevertheless, Bonfante was inclined to accept Pomponius’ analysis, and take the Sabinians as the conservatives, and the Proculians as the progressives, not in the solutions to the problems but in the techniques of interpretation which were em­ployed.’ Riccobono, also, inclined to the view that the methodology was the point of departure, the Sabinians proceeding very cautiously in advanc­ing the law, while the Proculians were innovators and audacious.”}

The greater number of scholars have come to the conclusion that the differences are due to the opposing views of individual jurists, views trans­mitted to their pupils.¹¹ Some of these scholars tie up these discordant views with two separate localities in Rome, where the masters held forth.¹¹ Schulz goes so far as to return to a discarded view advocated last century by Bremer and Bavicra,^[760] that the two schools were educational establishments, not yet recognized as corporations, but provided with regular staffs of teachers?⁴

It would appear, on the other hand, that the recognition of any distinction between lines of thought or between educational establishments falls into the error which Krüger warned against, namely, confusing the so-called Sabinian-Proculian controversies with the differences of opinion bet­ween individual jurists?¹ As has been noted above (supra, § 104), dissen­sions between jurists, the controversial law, is one of the prime character­istics of jurists’ law, and numerous instances are to be found - before, during and after the period in which the sectae flourished - which have nothing to do with Sabinian-Proculian controversies. At one time Cassius may approve a view advanced by Labeo, and at another time support a view held by Sabinus; and the same with a member of the Proculian school.^,Ä In other words, some scholars are now inclined to the position that the sectae were more or less ’debating clubs’ in which a measure of legal educa­tion took place.” They might be analogized to the named moot courts of the American law schools (Kent Moot Court, Marshall Moot Court, etc.),’· with debates regularly held between members of two clubs on well-chosen, familiar hypothetical cases, affording opportunity for practice in legal reasoning and argumentation for budding jurists.^{[761] [762] [763] [764] The educational value lies in the comment by the moot court judges, members of the bench today, the heads of the sectae in Roman times. The Sabinian-Proculian con­troversies may thus have been the moot court sessions participated in by younger representatives of the moot court clubs, some cases undoubtedly reappearing for argumentation a number of times over the years.}

4. The High Classical Jurists

| 119 Beginning with the end of the 1st century of our era the jurists become increasingly involved with the imperial administration (see supra, | 107), while their legal efforts tend more and more to center about case law. There are one or two who devote their time to the exposition of general principles, or an overall view of the law, primarily for educational ends, but most jurists during the Flavian and Antonine dynasties are concerned with hand­ing down responsa, collecting and publishing opinions in various types of literary works.¹ Some scholars have termed the jurists of this epoch the ’high’ classical jurists.² Whether this be true in the literal sense of the word or not, it is usual to single out the jurists from lavolenus Priscus to Ccrvidius Scaevola as a group.^[765] In this section, the life and work of seven of these jurists are sketched, with a view to illustrating the range of activities covered.

a. L. lavolenus Priscus

§ 120 Pomponios, Libra singular! enchiridii (D. 1.2.2.53)

... Priscus lavolenus (succeeded) Caelius Sabinas.... Aburnius Valens and Tusdanus, as well as Salvias lulianus (succeeded) lavolenus Priscus.

Note: As heads of the Sabinian ‘school*.

Corpus jnscriptionum la tinarum Ø.2864 and Supp. 9960

To C Octavius Tidius Tossianus L. lavolenus Priscus. commander of the IVth Flavian and III rd Augustan legions, judge delegate (iuridicus) in the province of Brittania, governor of the province of Germania superior, governor of the prov­ince of Syria, governor of the province of Africa, pontiff.

Guarino, Ë äè. Catania 1 (1947) 331 f., suggests that the jurist Tuscianus may be identified with lavolenus Priscus because of the name Tossianus; this seems hardly likely.

P uni us, Epistulae VI. 15

Passennus Paulus... composes elegies.... He was reciting one and began; 'Priscus, at thy command.’ Whereupon lavolenus Priscus. who was present as a special friend of Paullus(cried out): ‘ Verily. I did not command.* Think what laughter and merriment this occasioned. As a matt er of fact, Priscus is of dubious sanity, although he takes part in public affairs, is a member of councils and publicly responds on civil law....

Pliny apparently did not appreciate lavolenus’ humor, cf. Kalb, Roms Juris ten 54.

lavolenus Priscus held various posts in the imperial service, rising to the highest offices.¹ He was sent to Dalmatia as commander of a legion, and to Numidia as military commander as well as civil administrator in 83 A.D.,¹ judicial officer (iuridicus) in Britain, consul suffectus in 87, sent out again as governor of Upper Germany in 90, later governor of Syria and lastly governor of Africa. Upon returning to Rome he may have been named to the consilium of Trajan;’ he was not included among the jurists in the consilium of Hadrian and it is quite unlikely that he is the Diabolcnus (lavolenus) in the consilium of Antoninus Pius.^{[766] [767] [768] [769]}

lavolenus was linked to the Sabinian school, and the teacher of Julian? He apparently had few ties with his contemporaries, for he is seldom cited by other jurists; Kunkel suggests he may have been the first of his family in the senatorial aristocracy.⁴ Four of his works are known, the first three of which may have been written in early life, the fourth after his return to Rome upon the conclusion of his official and military career.^{[770] [771] [772] [773] [774] [775] [776] The early works show a decided tendency to annotate, epitomize and comment on the writings of earlier jurists.* The works of lavolenus are (I) Libri exCassio, containing extracts from the older jurist to which lavolenus added comment of his own, it being difficult to determine what is to be attributed to each;’ (2) Ex Plautio or Ad Plautium, a lemmatic commentary or a commenting epitome to the works of the jurist Plautius;1® (3) an epitome of Labeo’s Posteriores, the extracts in the Digest appearing in two forms: (A) ‘Labeo libro... posteriorum a lavoleno epitomatorum’ and (B)’lavolenus libro... ex posterioribus Labeonis’. Numerous explanations for the two forms have been advanced: (i) that lavolenus himself prepared two versions;" (ii)one epitome by lavolenus, with two methods of citation due to the compilers of the Digest;11 (iii) two versions, one probably made by the compilers and the other a post-classical revision of lavolenus* epitome;"and (iv)two versions, one fraudulently concocted by a post-classical author, and the other being extracts from die epitome of lavolenus;'* and finally, (4) the most important work, the Epistulae, a collection of responsa in which the epistolary form has been lost'5 and the cases are presented in apparently no discernible order.’*}

b. P. luventius Celsus

§ 121 Pomponius, Libro singulari enchiridii (D. 1.2.2.53)

... Celsus the son and Priscus Neratius. both of whom were consuls. Celsus, indeed, a second time, (succeeded) Celsus the father....

Spartianus, De vita Hadriani XVJI1.1 (SHA)

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

Celsus, Libro XV digestorum (D. 28.1.27)

Domitius Labeo to his friend Celsus, greetings: I ask whether one is to be in­cluded in the number of witnesses wfej, when he was requested to write a will, had attached his seal to the same after he had written the document. luventius Celsus to his friend Labeo, greetings: Either I do not understand upon what you are consulting me, or your question is extremely foolish; for it is more than ridiculous to doubt that such a person can be called as witness, since he himself wrote the will.

For an explanation of this famed ‘quaestio Domitiana, responsum Celsinum’, see Gianturco, Studi Fadda V 23,37-54; Appleton, MHanges Girard I 1-26; Kretschmar, SZ 57 (1937) 52-75; Erman, SZ 59(1939) 560—62; briefly, Kdbler, Gescftfcftre 265 f., and Wenger, Quellen501 n.122.

luventius Celsus, whose full name was Publius luventius Celsus Titus Aufidius Hoeoius Severianus,¹ was praetor in 106 or 107 A.D., member of the consilium of Hadrian, governor in Thrace, twice consul, the last time in 129, and governor of Asia.² According to Dio, a luventius Celsus was in-

14. Di Paola, ’L'opera di Giavolcno Prisco sui “Libri posterior«” di Labeone’, BIDR 49/50 (1947)277-331.

15. Schute, History 228­

16. Lend, Palingenesia I 285 n.7; Bremer, Jurisprudentiae II.2 464.

1. D. 5.3.20.6.

2. Pflaum, Âîëë. Hist. Aug. Colloq. 1968/69, 173, 183 IT.

volved in a conspiracy against Domitian, but by dissimulation escaped penalty? There is some question whether this lavolenus was the jurist.*

Celsus was a student of his father, also a jurist, and with or following Neratius Priscus, the last head of the Proculian school. However, there is no evidence in his writings of any opposition to members of the other school? Celsus was one of the most prolific jurists, his writings revealing profound knowledge of the earlier literature? He is acclaimed for his in­dependence of thought and clarity of expression, yet at the same time he is noted for the sharpness of his invective? Some scholars ascribe the last to the interpolations or glosses introduced by the compilers or pre-Justin- ianian editors, but Wieacker would say that the temper mental outbreaks in Celsus are consistent with his style of argumentation and his grasp of the law. ‘

From references by Ulpian we learn that Celsus was the author of a num­ber of works made up of collections of responsa, namely (1) Epistulae,in at least eleven books, (2) Commentarii, in at least seven books, and (3) Quaestiones, in at least twelve books. However, these works were super­seded by his Digesta in thirty-nine books, the first twenty-seven in the order of the edict with ius civile materials on dowry, guardianship, wills and legacies, usucaption and stipulation interspersed therein, with comment on various statutes and senatus consulta dealt with in the remaining books? this scheme of organization is known as the digest-system.¹⁰The quotations from the Digesta of Celsus by Ulpian are sometimes given a double citation, i.e., 'Celsus libro... digestorum, commentariorum (or epistularum, or quaestionum) libro...’?^[777] This would seem to mean that the older collec­tions of case material were broken up, and distributed in the digest-system either by Celsus himself or by some later writer?¹ Considering the mass of materia] which Celsus had written, and the number of later jurists who cited his works,¹¹ it is strange that the compilers extracted so few passages from his Digesta.^{[778] [779] [780]}

Stella Maranca has reproduced and discussed the fragments of the writ­ings of Celsus which are extant;¹¹ for his juristic activity, see Diehl, j.v. luventius (10), RE 10 (1919) 1363-64; on the family, see Kunkel, Herkunft 137 f., 146 f.; further reff., Reggi, Studi Grosso VI 147, 170 n.70.

c. P. Salvius lulianus

| 122 Pomponius, Libro singulari enchiridii (D. 1.2.2.53)

... Aburnius Valens and Tuscianus. also Salvius lulianus (succeeded) iavolenus Priscus.

Corpus inscriptionum latinarum VIII.24094

To L. Octavius Cornelius Salvius lulianus Aemilianus, son of Publius, judge of the ten-men bench (for the trying of cases), quaestor of the emperor Hadrian for whom alone the deified Hadrian doubled the emolument (salarium) of the quaestorship on account of his extraordinary (legal) knowledge, tribune of the plebs, praetor, praefeci of the state treasury and also of the 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 ofAfrica, to our patron, (erected) by the decree ofthe decurions (of Pupput) with public monies.

On the inscription, see Mommsen, Schriften II 1-6; Girard, Melanges I 232-35; further reff. in Wenger, Quellen 503 n.145.

Spartianus, Didius lulianus 1.1-2 (SHA)

Didius lulianus, who gained possession of the empire after Pertinax, was the great-grandson of Salvius lulianus. a man twice consul, praefeci of the city and jurisconsult, which more than anything else made him famous. (2)... His (Didius) maternal father came from the colony of Hadrumetum.

According to Kornemann, Klio 6 (1906) 178-84, it should be ‘grandson’ rather than ‘great-grandson¹.

Spartianus, De vita Hadriam XVIII. 1 (SHA)

[Set forth, supra, 1121]

The account of the life of Salvius lulianus (Julian) is derived largely from the dedicatory memorial to the jurist found in 1899 at the village of Pupput, near Hadrumentum (present-day port of Sousse on the eastern coast of Tunisia). The inscription revealed that Julian held a number of posts under Hadrian,¹ including the office of quaestor of the emperor at double emolu­ment because of his extraordinary knowledge of the law;^{[781] [782] [783] [784] [785] [786] [787] [788] [789] he was also a member of the consilium principis. It had long been known that Hadrian had chosen Julian to compile the edict? Girard suggested that this event oc­curred during the stay of Hadrian in Rome between 125 and 128 A.D./ but later scholars - on the basis of the information supplied by Pomponius regarding the leadership of the schools - concluded that Julian could not have been chosen for the task before 130 A.D? Other epigraphic evidence shows that the consulship mentioned in the Pupput inscription is to be dated in 148 A.D? The fact that the praenomen in the Pupput inscription is L(ucius) while in later texts it is P(ublius) actually causes no difficulty, for one or the other praenomen may be used whenever a person has a number of praenomina? After the consulship and before 155,* Julian was civil governor of the emperor Antoninus Pius in Lower Germany,* and during the rule of Marcus Aurelius and Lucius Verus, some ten years later, was named governor of Hither Spain, and, lastly, governor of Africa. The dis­covery, in 1914, of a dedicatory inscription of Julian - this time with the praenomen L(ucius) - at the site of the capital at Thuburbo Maius, a city some thirty miles south of modern Tunis, has provided the period between December 168 and February 169 as the date of the dedication.[790]}

As a result of this dating most scholars now place Julian’s birth between 95 and 110 A.D., his death in the decade i 70-180.¹¹ Serrao thus would place the compilation of the edict in 137 A.D., on the occasion of the twentieth anniversary of Hadrian’s succession, when Julian was a mature scholar and highly respected jurist.¹¹ In Spartianus’ account of the emperor Didius lulianus it is related that the jurist Julian held the consulate twice and was named urban praefect. Also, he is named as the grandfather, and in Eutro- pius^uas the uncle or great-uncle, of the emperor, who was born in 133 A.D. The failure of the Thuburbo Maius inscription to indicate a second con­sulship and the omission of such an important office as urban praefect has led most authorities to discount the credibility of the evidence in the Scriptores Historiae Augustae.¹⁴ Julian would have had to have been bom before 90 to meet the time span necessary to have been the grandfather of the emperor.^,s Nevertheless, some are willing to accept relationship between the jurist and the emperor, though attributing the ‘second’ consulship to the jurist’s son, consul ordinary in 175 A.D.’⁴ And Barnes, recently, argued that Julian not only compiled the edict in the last years of Hadrian’s reign, but that the jurist was the maternal uncle of the future emperor, and, further, that the second (alternative) consulship could have been held after the African governorship.¹⁷

Julian was a student of lavolenus and succeeded to the leadership of the school. Honord contends that he remained primarily a teacher until the close of the Sabinian school, between 142 and 149 A.D.¹¹ Undoubtedly he had a number of students, but the instruction was informal and ceased

11. Kunkel, ‘Ueber Lebenszeit und Laufbahn des Juristen Julians’, lura 1 (1950) 192-203; Merlin, op. at., n. supra. 111; Serrao, op. at. n. supra, 402 f. Cf. also,Norr,Daube Nosier 233-36,245-47

12. Serrao, op. at., 409 f.; earlier suggested by Vogt, Festschrift Schult II 193, 199 ff.. and D'Orgeval. L'empereur Hadrien 48,

13. Eutropius, Brcv. 8.17: ïåðî* (son of a sister), sec Merlin, op. dr., 115 n.6.

14. The fictional nature of attributions in the later lives of the Scriptores Historiae Augustae has long been suspected, see reff. in Kunkel, Herfanft 160 ff., and recently has been the subject of a number of essays by Syme, Chastagnol, Pflaum and others in Bom. Hist. Aug. Colloq. 1963 ff

15. Guarino, SaMus lulianus (1946) 14-26, and Ann. Catania 4(1949/50) 197,213-15, main­tained that the Pupput and Thuburbo Maius inscriptions did not refer to the jurist but to his son. Contra, Berger, Studi Albertaria I 603-21; d'Orgeval. RH 26 (1948) 301-11; Kunkel. lura 1 (1950) 192-203. Guarino, however. Labeo 5 (1959) 67-78, re-asserted his denial of the identity of the P(ublius) Salvius lulianus. the consul of 148, with the L(ucius) Salvius lulianus of the two inscriptions from Africa. Recently, in reply to a disparaging remark by Barnes. op. at., n. infra, Guarino, Index 3 (1972) 421-26, returns to the defense of his views, with particular reference to the relation between the jurist and the emperor.

16. Kunkel, lura 1 (1950) 192, 194 ff., 203; Merlin, op. at., supra, n. 9, 115 ff.; Serrao. op. at., supra, n. 9, 402 ff.

17. Barnes, Bonn. Hist. Aug. Colloq. 1968/69,42-58; Kunkel, op. oil, n. supra, 203, also sug­gested that if the jurist were consul a second time, it was as alternate (suffectus) and sub­sequent to the African proconsulate.

18. Íîïîãá, TR 32 (1964) 1,40-43.

when Julian left Rome. ” The jurist was chosen by the emperor to be a member of his consilium, in addition to being entrusted with the compilation of the edict. He was renowned among his contemporaries, although he does not cite Celsus, the last head of the Proculian school, nor docs Celsus cite him, perhaps for reasons of personal animosity.¹⁰ Julian's writings were prolific, marked with great clarity and elegance, even in the presenta­tion and decision of the most complex cases. The techniques which he employed in reaching solutions to the problems put him served in a number of recent studies as an introduction into the methodology of Roman jurists?' Since this topic will be dealt with infra, it is unnecessary to stress the particulars at this point?¹

The major work of Julian was his Digesta, a compilation of case law in ninety books. The first fifty-eight books follow the order of the edict, with materials dealing with the ius civile interspersed therein. The second portion comprises cases flowing from statutory construction, books sixty-five to eighty-five relating to the lex lulia et Papia?¹ The extant fragments dis­close, for the most part, casuistic discussion in the nature of quaestiones, with responsa derived from his practice frequently introduced. Commentary on the words and phrases of the edict - lemmatic commentary - and dogmatic exposition is at a minimum. It may well be, however, that the portions of the work which gave it the nature of a commentary were largely omitted by the compilers in favor of the newer commentaries by Ulpian.^M The dale when the Digesta of Julian was written is a matter of some dispute. Fitting offered evidence that the first third of the work was done during the reign of Hadrian, the remainder in the time of Pius.” Appleton advanced the view that the whole work dated from the reign of the latter emperor?⁴ The evidence of the new inscription leads Serrao to suggest that the last portion of the Digesta may have been composed after the governorship in Africa, and thus perhaps as late as the reign of Marcus Aurelius and Lucius

19. Julian speaks of a stay in Egypt, D. 46.3.36, and possibly accompanied Hadrian on his journeys, in addition to his posts abroad at later times.

20. Kühler. Krit. Vjschr. 49 (1911) 1, 7 ff, and Geschichte 267 f.

21. Eg. Rcggi, ‘L’interprctazione analogies in Salvio Giuliano’, Studi Parmensi 2 (1952) 103-59, and 3(1953)465-502; Wescner, ‘Julians Lehre vom ususfmetus’, «SZ81 (1964) 83-108; Bund, Untersuchungen zur Methode hdians(1965); Ankum, ‘Julianus eleganter ait’, Flores legum AAeftema (1971) 1-19.

22. Infra, § 134.

23. Outlined by Kriigcr, Geschichte 184 f.; cf. Wenger. Quellen 503 n.148.

24. So Kruger, Geschichte 185; contra, Schulz, History 230, who held that the work was not intended as a commentary on the edict.

25. Fitting, Alter 25-31; cf. Krüger, Geschichte 185.

26. Appleton, ‘La date des digesta Juhani, NRH 34 (1910) 731-93, and 35 (1911) 593-623; cf. Kipp, Geschichte 123 n.100.

Verus.²⁷ It has been argued that there was an early post-classical revision of the work,¹* and that the compilers possessed a text which had been in­terpolated to a considerable extent.¹*

The minor works of Julian comprise: (1) Ad Urseium Ferocem, in four books, which, according to Krüger, was merely an annotated edition of an otherwise unknown work of Urseius Ferox, a jurist of Trajan’s time.¹⁰ The work was casuistic discussion of legal problems largely in the area of the ius civile, with responsa of Urseius and earlier jurists interspersed.” On the other hand, Schulz stated that Julian’s work was a lemmatic commentary on Urseius, the passages in Urseius quoted and followed by Julian’s observa­tions, introduced by the words, ‘Julian notes* (lulianus notat); the direct speech of Julian has been converted into a report of his words by a revising editor.” (2) Ex Minicio, according to Krüger, a digest of the work of an otherwise unknown jurist Minicius, with annotations by Julian;*’ Again, casuistic discussion, mixed with responsa of Minicius and other jurists, with the arrangement of materials other than the Sabinus-systcm.¹⁴ Schulz takes the work to be a lemmatic commentary by Julian, in which a later reviser had sometimes intermingled Minicius’ text with Julian’s comment, or at times introduced Julian’s remarks with the expression ‘Julian res­ponded’ (lulianus respondit).’⁵ (3) De ambiguilatibus (On ambiguities) in a single book which recently has been shown to be quite typical of Julian’s other writings, and to display a style which is closest to that of the mature, expert writer of the Digest a?⁶ This opinion is in contrast to that of other writers, many of whom took the work to be a post-classical compilation or abridgement of materials in Julian’s Digesta.”

Julian’s influence on succeeding jurists was very strong. In addition to resolving many of the old disputes, his Digesta were republished with an­notations by a number of later jurists. In many later commentaries, partic-

27. Scrrao, op. at. supra, n.9, 411 -13; contra Guarino, Labm 5 (1959) 67, 75-77.

28. Wolff, ‘Concerning Transmission of Julian's Digesta’. Seminar 7 (1949) 69-85.

29. Schulz, History 230, 342 (Note EE).

30. Krüger, Geschichte 174 f.

31. See also Buhl, Satvius Julianas 58 66, and review thereof by Ferrini, AG 37 (1886)324, 331 [= Opere II 505-06].

32. Schulz, History 216.

33. Krüger, Geschichte 175 f.

34. See also, Riocobono, B/M 7 (1894) 225-68, and 8(1895) 169-275 Scritti I 45-176].

35. Schulz, History 216 f.

36. Mayer-Maly, ‘Zu Julians liber singularis de ambiguilatibus', Estudios de derecho romano [ = Homenaje al Profesor Don Carlos Sanchez del Rio y Peguero (1967)] 147-50.

37. Schulz, History 230- ‘If in fact Julian did write such a work, it reached the compilers profoundly altered by post-classical revision’. For various views, sec Mayer-Maly, lac. di,, n. supra; cf. also Torrent, Julianas liber singularis de ambiguilatibus [ sr Aaa Salmantl- censia. Derecho 31)(1971).

ularly those on the edict, the substance of Julian’s remarks in his Digests was repeated, sometimes without acknowledgement of the source.” Berger hails Julian as ‘the most remarkable representative of Roman juris­prudence,... an epoch-making figure in Roman legal science, which reached with him the height of its development’.¹’

For further references on Julian's life and writings, see Pfaff, s.v. Salvius (14), RE 1A (1920) 2023-26; Kunkel, Herkunft 157-66; Berger, j.v. lulianus, Salvius, ED 522. See also the bibliography in Guarino, Salvius lulianus. Profilo biobibliografico (1945), republished in Labeo 10 (1964) 364-426; and now, that of Bund, concluding his study, ANRW II 15 (1976)408,448-54.

d. Sextus Pomponius

| 123 Pomponius, Libro K adQuintum Mucium (D. 7.8.22pr.)

Divus Hadrianus, in a case where the use of a forest was bequeathed, laid down...

Divus indicates that the emperor was deceased when the passage was written,

Pomponius, Libro K/Z epistularum (D. 40.5.20)

In lulianus it is written, ’... (an ans wer to the question whether a beneficiary of an inheritance by fideicommissum, which the heir made over to him, is obliged to manumit the testators slave)...*. (The questioner asks): Do you think this is true? I, myself, with my thirst for knowledge, which I still consider the best principle of life in my seventy-eighth year, remember the saying which runs. ‘Even if! have one foot in the grave, 1 still can learn. (Aristo and Octavenus have held that there is no obligation on the part of the beneficiary to manumit. If the slave had been made over by the heir, what Julian says applies.).

The extract from Julian is from the 42nd book of his Digesta, to be dated in the latter portion of the reign of Antoninus Pius, or even in the rule of Μ. Aurelius and L. Verus. Wenger, Quellen 494 n.41, suggested that Pomponius applied the words of the questioner to himself. Cf. also D. 40.4.61 pr.-l (Pomp. 11 epis), quoting Jul 42 dig. (D. 40.4.17 pr.).

We know very little of the life of the jurist Pomponius, to whom we owe the only account of Roman legal history. From references to the works of con­temporary jurists, however, we may seek to fix the date of many of the works

38. Kruger. Geschichte 186 f,

39. Berger, s v Julianus (2), OCD (1949 ed.) 791. modified with the addition of: ‘perhaps the most remarkable representative’, in Nicholas' revision of Berger, in OCD (2d ed.) 568.

1. Fitting, Alter 33-42, made an early attempt, corrected by Krüger, Geschichte 190-94; recently, Honori, Gau« 55-58, has offered his conjectures, concerning which some question has arisen.

of this prolific writer of the 2nd century of our era.¹ In more or less chrono­logical sequence the following items among Pomponius* writings are deser­ving of mention: (I) the Enchiridion, the Handbook containing the extract on legal history which has been dealt with earlier (supra, §43); it was written in the reign of Hadrian, at the opening of Pomponius’ career;¹ (2) a commen­tary on Masurius Sabinos’ work on the ius civile in 35 or 36 books, in which Pomponius assiduously presented the older literature on the civil law? Schulz deems it ‘grotesque’ to have devoted 35 books to a work he considers faulty in arrangement? (3) the same civil law material was treated in the somewhat later ‘Readings on Q. Mucius’ in 39books. Di Marzo commented extensively on this work of Pomponius in a monograph which has recently been reprinted? (4) the most extensive commentary known on the edicts of the praetor and the plebian ediles, in at least 150 books* shortly after the compilation of these procedural regulations by Julian (see infra, chap. IX, § 151). Perhaps it was written too early to have constituted the definitive text-book on the subject, for the compilers of Justinian’s Digest made no extracts from the work, presumably because they had no copy? (5) later in life Pomponius wrote ‘Various Readings’ and ‘Letters’. The former com­prised comment on the writings of various jurists.’The latter was a collection of case studies, in epistolary form, not in reply to private clients but to other jurists and to his students, and perhaps even to magistrates?

From the above it is clear that Pomponius was primarily a writer of legal works; there is no mention of his having held any imperial post, and true responsa are but infrequently introduced, indicating that he did not possess ius respondendi.¹⁰ Pomponius limited himself to the study of the private law and was primarily concerned with fashioning the writings of earlier jurists into a dogmatic system.ⁿ

Pomponius is frequently joined with Gaius as the two prominent ‘aca­demic’ jurists.¹¹ Honord has, indeed, suggested that Julian was instrumental

2. D. 1.2.2.49 refers to optimus princeps Hadrianus, the designation of a reigning emperor, see Fitting, Aller 35.

3. For the citation therein of the jurists of the republic and the early Principate, Fitting, Alter 36 f.

4. Schulz, History 211.

5. Di Marzo, Saggi critid sut libri di Pomponio ‘Ad Qutnlum Mudum' (1899). reprinted in Labeo 7(1961) 218-46, 352-83.

6. Kruger, Geschichte 192.

7. Schulz, History 193: ‘its loss is one of the heaviest for our science.’

8. Schulz. History 221 f„ Pringshcim, Festschrift Lenel 282 and n.10 Abhandlungen 1 447 and n.414).

9. Arangio-Ruiz, Storia 286 f.

10. Berger-Nicholas, s.v. Pomponius (6). OCD 859.

11. Kruger, Geschichte 194.

12. Schulz. History 107, 134; Honors, Gams 25 f.

in appointing Pomponius to teach at the Sabinian school.¹³ But a careful comparison of the writings of the two jurists, Pomponius and Gaius, reveals striking distinctions in the content and style of their written works?⁴ In the instances in which Gaius wrote on the same subject matter, the texts of Pom­ponius are far more extensive; Pomponius specifically names his sources, Gaius vaguely refers to ‘teachers’, ‘many’, ‘others’; Pomponius never characterizes another jurist’s opinion as ‘absurd*, while Gaius is second to Celsus in subjective disapproval. Liebs concludes that Gaius as law teacher was content to reproduce legal doctrine in a form which could be easily as­similated. Pomponius may have been a law teacher, but soon turned to the composition of encyclopedic works, designed to meet the needs of an ever­growing bureaucratic legal profession?¹ Pomponius lacked the sharpness and independence of thought of contemporary jurists like Celsus and Julian, but his command of the earlier literature and creative treatment of the sub­stance earned him eventual authority with his contemporary and succeeding jurists. Modern scholars have begun to recognize the nature of the con­tribution which Pomponius made to the development of Roman law?*

For a summary analysis of the writings of Pomponius reference may be made to Wesenberg, s.v. Sex. Pomponius (107), RE 21.2 (1952)2416-20. Kunkel, Herkunft 170 f., has attempted to deal with the origin and social position of the jurist. Recently, Ndrr, ANRW II 15 (1976) 497-604, has contributed a full length study?’

e. Sex. Caecilius Africanus

§ 124 Ulpianus, Libro XXXIV ad edictum (D. 25.3.3.1, 3.4)

Whereas the senatus consult um Plancianum relates to those children who are born after divorce, there is another senatus constdtum made in the time of divus Hadrianus that, even if the child is born during marriage, there may be suit con­cerning the acknowledgement of the child. {3.4} And what is to be done if it be disputed if she (the mother of the child) is the wife? And Julian responded to Sextus Caecilius Africanus that there was occasion for a pre-determination (prae iudicium).

Gellius, Nodes Atticae XX. 1.1

Sextus Caecilius was famed for his teaching of the law and his knowledge, ex-

13. Honord Gaius 25, 36.

14. Liebs, ‘Gaius und Pomponius', Gaia 61-75.

15. Liebs, op. at., 73 IT.

16. See particularly, Brctonc, Teauche 109-90, with appreciation thereof, Stein, Index 3 (1972) 545, 547-49. Cf. also, Ankum, ZWe Nosier 1-13.

17. There is an old special study by Heincccius, De Sex. Pomponio iure consulto. Opera (Geneva 1748) III 66-126.

perience and authority in the mastering and the interpretation of the law of the Roman people. It happened, as we were waiting to pay our respects to Caesar (Antoninus Pius}, the philosopher Favorinus met and spoke to Caecilius in the Palatine square, in my presence and that of others. In their conversation mention was made of the laws of the Decemviri, which the Ten Men appointed by the people for that purpose, had compiled and written in Twelve Tables.

When Sex. Caecilius, who had examined and inquired into the laws of many cities, said that these laws had been written down in careful and most concise words, Favorinus replied:'... some of them seem to be very obscure or very cruel, or on the other hand, too mild and too lenient, so that by no means can they be taken as they are written.'

‘As for obscurities', said Sex. Caecilius, ‘we should not ascribe these to the fault of the writers (of the laws) but to the ignorance ofthose who followed them, although those also who do not comprehend what is written may be excused.

There follows an extensive explanation of the apparent archaisms of the law of the Twelve Tables (Gell. 20.1.1-55), one of the most exhaustive treatments of this statute that comes from antiquity.

Africanus may well have been of the family of the Sextus Caecilii who stem from Thuburbo minus (modem Teburbe, west of Tunis), many mem­bers of which held posts in Rome during the rule of Antoninus.¹ If Africanus himself came from Africa,¹ he was a younger contemporary of Julian, in Rome, very probably his student, and most certainly in personal relations with him?

Africanus was the author of (I) nine books of Quaestiones, in this case apparently a collection of replies to legal problems from a jurist to his student? Actually, these appear largely to be oral responses of the jurist Julian which Africanus has published along with own remarks on the cases.^{[791] [792] [793] [794] [795] [796]} There seems to be no particular order, and the work really fits no system otherwise known.* Lenel undertook to re-establish the original order of the materials which have been preserved, in a second effort at palingenesis (see supra, §40), and thus single out the matter which was Julian's, that which was Africanus', and that which was conjectured post-classical or Jus­tinianian interpolation.^{[797] [798] [799] [800] [801] Schulz, however, insists that there exist no clear criteria for distinguishing the words of Julian from the contributions of Africanus,· and suggests, further, that the compilers had before them ‘some sort of post-classical hotch-potch composed from Africanus’ Epistulae and Julian’s Digesta’.* There is one reference in Ulpian to another work of Africanus, (2) at least 20 books of Epistulae, which Julian had cited, *°the nature of which has been disputed.”}

Africanus’ writings were greatly appreciated by later jurists, even though his language was not easy and his texts are sometimes hardly intelligible,^[802]

f. Gaius

j 125 Gaius, Libro I fideicommissorum (D. 34.5.7 pr.)

... And, in our time, indeed. Serapios, an Alexandrian woman, was presented to divus Hadrianus with her five children, whom she had had at a single birth.

Pomponios, Libro XXII ad Quintum Mucium (D. 45.3.39)

... Similarly, if (another s} slave is serving us in good faith, and shall have ex­pressly stipulated for something for his master which he would have acquiredfor us, he will acquire it for him (master}; [fort we must ask by what action we am recover it. And it is not without reason that our Gaius has said... it can be sued for by condietio (actio in rem)].

For interpolation, see Index Interp. Ill 406.

Gaius, Institut ionum oommentarius 1.193

Among foreigners women are not in guardianship in the same way as with us; still, in general, they are in a sort of tutela (guardianship}: a law of the Bithy- nians, for example, requires the authorisation of a husband or son over puberty if a woman enters into a transaction.

Imperator ceasar flavjus lUSHNiANUs... Theophilo, Dorothea.... anteces- sorisalutem (D. Const. Omnem 1)

... Moreover, among these six books (for first year students} were included the Institutiones of our Gaius and four single books,...

The enigma among the Roman jurists is Gaius. We may conjecture the dates of a few of his writings but of his life we known practically nothing. He was born at the latest during the reign of Hadrian, and Demburg has fairly well shown that his Institutes were lecture notes, written in 160/61 A.D? He was still living in 178 A.D., for he wrote a commentary on a senatus consultum of that year? Only what appears to be his praenomen has come down to us? Mommsen, in a now-famed article? argued that Gaius was born, studied and taught in a Hellenized eastern province. He reasoned that Gaius was a ‘provincial’ jurist because, inter alia, calling by first name was common among Greeks, that knowledge of his writings became widespread only in the 5th century in the east, and that he wrote a commentary upon the edict of a particular province; further, that Graecisms are frequent in his writing, that he was familiar with the law of non-Romans, and that he men­tions eastern cities. Mommsen’s theory gained general acceptance for a time, but gradually lost support? Knicp thought that Gaius, born in the east, studied there and at Rome, returned to teach in the east? while Kroll took him to be a Roman living in the Greek portion of the empire? Karlowa early presented the view that Gaius taught at a locality in Rome where eastern law students attended? for arguments that Graecisms indicated Greek birth or residence have been discounted? Today, the majority of scholars take the position that the evidence adduced is not sufficient to justify the assumption that Gaius was a provincial jurist.¹⁰ However, it should be pointed out that in a recent biography of the jurist, Honord seeks to show that, though a Roman, Gaius left Rome when young and wrote most of his books in the east?^{1 [803] [804] [805] [806] [807] [808] [809] [810] [811] [812] [813]}

Gaius held no official position and it seems certain that he did not possess the ius respondendi. Gaius was a teacher, a member ofthcSabinian school, but seemingly unknown to his contemporaries.¹¹ His best known work, In­stitutiones, is generally thought to be notes of his lectures, by Gaius himself or by his student.” It is the only major work of a jurist which has been pre­served in fairly complete form, and accordingly has been dealt with earlier, along with other pre-Justinianian sources (supra, chap. II, § 18). This work of Gaius constitutes the most important example of the type of systematic introduction to the study of the law, the elementary legal work, written by jurists of the 2nd and 3rd centuries of our era; discussion is reserved for the section on ‘legal systems’ (infra, § 144). There is another work designed as an introduction to the legal system which is attributed to Gaius, Res cot- tidianae (Everyday Matters), thought by some to be a revision by Gaius him­self of his lectures, the Institutiones, in textual form.¹⁴ Many scholars, however, believe that this work is a revision of an introductory work made in late classical or post-classical times.”

An important group of works by Gaius comprises his commentaries on the urban edict in 10 or more books, the provincial edict in 30 books, and the edile edict in 2 or more books. The nature of these enactments is treated in a later chapter (chap. IX). Here it suffices to note that Gaius’ commentary on the provincial edict is the most extensive known, but the motive for writing such a lengthy commentary on this edict remains conjectural. Some scholars have suggested that this commentary was designed for didactic purposes.” Schulz thinks it may have constituted lectures given in a provincial city,” while it also has been said, on the other hand, that a commentary on the pro­vincial edict would be valuable in Rome, for newly appointed governors before they proceeded to their provinces.”

Among other works of Gaius were a commentary on the Twelve Tables, monographs on trusts, manumissions, verbal obligations, the lex lulia et

12. The sole reference to him by Pomponius, in D, 45.3,3^, may be in an interpolated portion of the text; see also. supra, § 123.

13. Sec reft, supra, nd.

14. Kruger, Geschichte 210 f.; Grosso, Storia 399 f.; Honori, Gaius 113-16; Liebs, Gwo 63 f.

15. For various views along these lines, see Arangio-Riuz, Studi Bonjante 1493-521; Schulz, History 167 f.; Fuhrmann. SZ 73 (1956) 341, 355 f.; Flume, SZ 79 (1962) 1, 18 ff.; Kaser, Rechtsgeschichte 193.

16. Mayer-Maly, Festschrift Steinwtnter 68 n.73, and SZ 77 (I960) 494, 504 n.30. Cf. Kaser, Gaio 45; Casavola, Gaio 5—7.

17. Schulz, History 191 f.

18. Kiibler, j.v. Gaius, RE 7 (1912) 492; Kunkel, Herkunft 194; but cf. Honort Gaius 79 f.

Papia, and a number of single books on dowry, mortgages, the SCTertul- iianum and SC Orfitianum, etc.¹*

Gaius* works, while not revealing great originality on his part, are recog­nized for their clarity and simplicity.¹⁰ His reputation as one of the major jurists was assured, largely on the basis of his Institutiones.²¹ It was with considerable shock, then, that the scholarly world reacted to Kaser's thesis that Gaius was not a ‘classical’jurist.” Kaser’s view rested on the distinction in substance and style between Gaius and the true ‘classical’ writers. Gaius emphasized systematization and classification, with considerable tendency towards generalization rather than reliance upon individual cases. Whether the Institutes of Gaius be classical or not, its form is non-classical, a pre­cursor of early post-classical writing. Guarino answered critically, point by point.¹¹ We are entitled, he said, to weigh one jurist against another, but not to exclude from ‘classical’ a writer of elementary works. In both style and critical comment, in his isagogic writings and in his commentaries, he was the equal of his contemporaries and of succeeding jurists. Van Oven, also, came to Gaius’ defence.²⁴ Gaius’ dogmatic presentation may differ from the casuistic, exegetical discussion of other jurists, but it is just as important to frame abstract conceptions as to deal with decisions. It is erroneous, van Oven said, to place teachers on a lower level than responding jurists.

At a recent symposium on ‘Gaius in his own time*, Kaser replied to his critics.²¹ It was Gaius’ contribution that he established the ‘system’of the Institutes, a structural order of legal materials. But as a dogmatic lawyer he was not on a par with other classical jurists. An analysis of his other writings shows fondness for definitions and rules, for distinctions and systematization. He was only creative in classifying and building concepts; he was not active in the solution of legal problems. If one wishes to term Gaius a ‘classic’, he is classic in the sense of the utilization of all legal materials for the scope of the school, not for the purpose of practice, for the determination of jurisdiction. And it was in the solution of current legal problems that the great jurists of last three quarters of the 2nd century raised Roman private law to its greatest heights.”

19. Krtiger, Gesdudue 201-04.

20. Cf. Berger-Nicholas, s.m. Gaius (2), OCD 453.

21. The disparaging remarks of Kuntee, Der Proviiataljurist Gaius. wiMtiuchaftlidt abgeschdizi (Oration, Leipzig 1883). were disregarded by others.

22. Kaser. ‘Gaius und die Klassikcr’, SZ 70 (1953) 127-78.

23. Guarino, Saini Jbverte 227-41.

24. Van Oven, TR 23 (1955) 240-48

25. Kaser. Gero 42-51.

26. This last statement is that of the author, not by Kaser, though it would seem to accord with his views of case law (FoWrecAr), cf. Kaser, La critioa del testa I 297 f.

There exists an extensive bibliography on Gaius, his works and his role in Roman law of his age and afterwards. Early references are collected and discussed by KU bier, j,k Gaius (2), RE 7 (1912) 489-508. See further, Meylan, Le jurisconsulte Gaius (1923); Kunkel, Herkunft 186-213; Honors, Gaius (1962); the collection of articles in Gaio nelsuo tempo. Atti del simposio romanistico (1966), Further reff. to recent studies, Kunkel, Herkunft 411 (Literatumachtrag, S. 186); recently, Wittmann, in article by Diddsi,/has declared that the prominence of the jurists of this period in the chancellery offices of the state is revealed by the significantly greater number of imperial enactments during the rule of the Severi than in the years after 235 A.D. * He further remarked that the jurists who held imperial posts were prone to place imperial rescripts on a par with responsa as having the force of law.⁴

The characteristic type of legal writing in this last period of classical juris­prudence is the collection of the efforts of earlier jurists, integrating the case law of the previous eras into extensive commentaries on the civil as well as the praetorian law. Ulpian and Paul were the two jurists most prominent in this effort, if we can judge from the extent to which the compilers of Jus­tinian’s Digest made use of their commentaries in selecting extracts for the 6th century compilation? In addition to the encyclopedic commentaries, the jurists of the Severan age wrote manuals for the use of various imperial officials in the conduct of their public affairs.‘There was also an increased number of monographs on particular legal institutions, many being selec­tions from the extensive commentaries or post-classical abridgements there­of, others being treatments of topics which were not dealt with in the more extensive works?

The excellence of the Roman law of the classical period cannot be at­tributed to Papinian, Paul and Ulpian merely because they were the last great jurists, embodying in their works the heritage of all who had preceded them? But they were not without creative ability, not only in the manner in which they presented the cumulative legal experience of the past, but also in their contribution to the development of the law to meet the exigencies of the Severan age. Indeed, the earliest and foremost of the jurists of this age, Papinian, who was commonly regarded as the greatest jurist of all time through the centuries, is considered one of the most innovative of all the Roman jurists?

a. Aemilius Papinianus

§ 128 Paulus, Libro III quaestionum (D. 12.1.40)

There was read in the court room (auditorium} of Aemilius Papinianus, praeto­rian praefect and jurist, the following contract:...

Spartianus, Antoninus Caracalla VIII.2-4

It is generally reported that Papinian was a very close friend ofthe emperor (Sep­timius) Severus [and that along with Severus was instructed by Scaevola and succeeded Severus as fiscal advocate], even related to him, as some say, through his second wife. (3) And that Severus had particularly commended to him bothhis sons and for this reason he (Papinian) was well disposed towards reconciliation of the Antonine brothers. (4) When Bassianus (Caracalla) accused his brother (Geta) of treachery, he pleaded with him not to put him to death. And as a result he was killed by the troops along with those who supported Geta, not only with the consent but even with the encouragement of Antoninus.

5. The extracts from the works of these two jurists in these fields accounts for approximately one-third of the total content of the Digest.

6. Schulz. History 242-52.

7. Cf. Schulz, History 257.

8. Riccobono, Lineament i 94 f.

9. Kunkel, Introduction 121 f.

[and that along - fiscal advocate]a 13th century interpolation, so Momm­sen, Schriften II 64’67, with the majority of scholars in accord.

Spartianus, Severus XXI.6, 8

... What could have been more fortunate for Septimius Severus than not to have begotten Bassianus (Caracalla}?... (§} who, because he refused to excuse the murder of his brother, killed Papinian, an asylum of law and treasure-house of legal learning, named praefed so that a man who had achieved greatness through his own efforts and learning might not lack official post.

Aemilius Papinianus (Papinian}, related to the emperor Septimius Severus through the empress Julia Domna, was said to have been of Syrian origin,’ or, again, of Libyan origin? But there is nothing, in his language or other­wise, that enables us to fix his place of birth? Honors speculated that Papin­ian was a student of Gaius,^{[835] [836] [837] [838] [839] [840] [841] [842] [843] and he may have been taught under the direction of Scaevola, according to the suspect passage in the life of the emperor Septimius Severus. His equestrian career began as fiscal advocate, if we assume that the interpolated passage actually had factual basis? or as an assistant in the office of the praetorian praefect? He later was named chief of the bureau of petitions (magister libellorum), and eventually praetorian praefect, c. 203 A.D.; it is not known whether he still held this post when he was murdered, in 211 or 212 A.D?}

Papinian’s chief works were his Quaestiones in 37 books and his Responsa in 19 books. The former was written, for the most part, during the sole reign of Septimius Severus. It contains answers given in disputations, in council and as actual responsa, arranged in the order of the so-called digest system? Schulz, in critical studies of the work, came to the conclusion that the com­pilers used a post-classical edition of Papinian’s Quaestiones, of Constan- tinian or post-Constantinian times, in which the editor had adapted a genuine base to the situation of his own times? The Responsa was written in the joint reign of Severus and Caracalla, the last books after the death of Severus. It differs somewhat from the collections of Responsa of other jurists: the statement of facts, the reason for the decision and the holding are included; but the question put by the consultant, matter relevant but not actually involved in the particular case, and dogmatic discussion generally are all omitted, causing the Responsa to partake, to some extent, of the nature of Quaestiones.¹⁰ Papinian’s Responsa, like his Quaestiones, con­tained responses of other jurists, decisions of the emperor and other officials, plus further constitutions; the material was arranged in the order of the digest system. This work, also, seems to have suffered a revision in early post-classical times."

The minor works of Papinian include: (1) Definitiones in 2 books, legal rules in brief form, serving as an introduction to the law student as well as a manual for the practitioner;¹² (2) a single book as well as two books on adul­tery, the relations between the two being unclear; (3) a work bearing the Greek title 'Αστυνομικός, dealing with some sort of municipal official, opinion differing among scholars.¹ ’ There are some who declare the work to have been a post-classical collection of extracts from Papinian’s works.¹⁴

Famed in late classical times, as evidenced by the Notes of Paul, Ulpian and Marcianus to his works, he became renowned in the post-classical age as the greatest of all jurists. The well-known Law of Citations (C. Th. 1.4.3 of 426 A.D.) provided that if the views of the accepted authorities (Gaius, Papinian, Paul, Ulpian and Modestinus) were equally divided, the side on which Papinian stood was to prevail.¹⁵ Modern scholars count Papinian among the leading jurists, gaining superlative praise from scholars of some decades ago,¹⁴ with somewhat more restrained views recently.'⁷ The first volume of Costa’s treatise on the Roman private law in the time of Papinian is devoted to a discussion of his life and works, ’· now somewhat antiquated, as is also, von Rohden—Jors, s.v. Aemilius (105), RE 1 (1894) 572-75. For recent though brief treatment, see Bund, s.v. Papinianus, KI. Pauly 4 (1970) 487-88; Berger—Nicholas, s.v. Papinianus, OCD 777 f.; Orestano, s.v. Papiniano, Emilio, NNDI 12 (1965) 364 f. (extensive bibliography, 365 f.). Now, Giuffri, ΛΎΛΙΡΙΙ 15 (1976) 632 ff. (bibliog. 662-66).

10. Kruger. Geschichte 222 f.

11. Schulz, History 226; Solazzi, AG 133 (1946) 3, 8-9 [ - IV 521-22].

12. Schulz, History 175, says that if Papinian wrote it, it has been defaced by a later editor.

13. Reft, by Schulz, History 247; Schulz thinks that the compilers used a Greek epitome of a Latin work on Roman officials.

14. H. Kruger, Studi Bonfanle II 315; accord Albertario, Introdusione I 7 n.7.

15. Cf. Nicholas, in Jolowicz-Nichoias, Introduction 452.

16. Riccobono, Lineamenti 71; Berger, s.v. Papinianus, OCD (1st ed.) 644; Wenger, Quellen 12, with further reft., n. 249.

17. Kunkel, introduction 121 f.; Honor«, SDH! 28 (1962) 162 f.

18. Costa, Papiniano. Studio de storia interna del diritto romano (1894).

b. lulius Paulus

§ 129 Paulus, Libro I ad Vitellium (D. 28.2.19)

... and it was queried whether he appeared to be correctly disinherited, Scaevola responded he was not, and added in disputation...

Paulus, Libro II ad Vitellium (D. 32.78.6)

Where a man had left "what has been set aside for the sake of my wife, I give and bequeath to her". I also sought before the praetor fideicommissarius (praetor with jurisdiction over precatory bequests) the appraised property, the price of which was fixed in the dowry,...

Cf. also Artemidorus, Onirocrit. 4.80.

Lampridius, Alexander Severus LXVIII.l (SHA)

And that you may know what men were in his (emperors) council: Fabius Sabinus,.... Domitius Ulpianus. most learned in the law, Aelius Gordianus..., lulius Paulus, most learned in the law, Claudius Venacus,..■; Catilius Severus,...; Aelius Serenianus,... Quint ilius Marcellus...

Save for Uipian and Paul, none of these men is otherwise known.

Spartianus, Pescennius Niger VII.4 (SHA)

Afterwards Severus and many of his successors held to this principle (of pro­motion ofassistants to government chiefs), as the praefectures of Paul and Uipian prove, for these men had been assistants to Papinian and afterwards, when one had served as chief of bureau of memoranda (a memoria) and the other as chief of the bureau of petitions (a libellis). they were straightway made praetorian praefects.

Cf. also SHA vita Alex. 26.6, both passages derived from Aur. Victor, Cars. 24.6.

The two great collectors and commentators of the works of earlier jurists were lulius Paulus (Paul) and Domitius Ulpianus (Uipian), from whose writings the great portion of the Digest of Justinian was compiled. Yet of the lives of these jurists very little is known, and much of that knowledge is highly questionable. Neither the origin nor the dates of the birth and death of Paul are certain.¹ Paul appears to be the older of the two, his writings dating from the time of Commodus to that of Alexander Severus. He was a student of Scaevola, indicated by his reference to Scaevola noster (our Scaevola) in some of his early works and by evidence of his presence at the older jurist’s disputations.¹ Paul began his career as an advocate, and acted as an assistant ^{[844] [845] to Papinian while the latter was praetorian praefect. Literary sources relate that Paul became chief of the bureau of memoranda (a memoria), was in the imperial councils of Septimius Severus, Caracalla and Alexander Severus, and eventually was chosen for the post of praetorian praefect, either by Elagabulus or Alexander.’ Legal scholars have for the most part accepted Paul’s participation in this equestrian career, and dispute only as to whether Paul held the high office of praetorian praefect as colleague of Ulpian or as his successor.[846] [847] [848] [849] Classical students of the epoch, however, have long doubted the credibility of the later Roman historians who provide this information. Jardrf, in 1925, discounted Paul’s ever holding the office of praetorian prae­fect, and his view has been approved by most of the experts ever since.’ Similarly, his post of chief of the bureau of memoranda, based on the single reference in the life of Pescennius, has long been questioned.4 Indeed, the classicists are somewhat astounded that legal scholars still give credence to the tales in the slipshod histories of Aurelius Victor and the authors of the Historiae Augustae.[850] [851] [852] [853] [854] [855] Nevertheless, a most recent study would affirm the praetorian praefecture of Paul, subsequent to that of Ulpian.1 One can only say with Honorä ‘Paul remains a rather shadowy figure and many details of his career are still obscure’.’}

Paul was prominent as a law teacher, as we see from the number of stu­dents in his works and by the elementary law books that he wrote. ” But he is best known for his activity as a juristic writer. Over 85 works in more than 300 books may be credited to him, in all conceivable fields of legal thought, so that it is impossible herein to mention more than a few of the most im­portant?¹ Among the earliest writings were the Notae and Epitomae of various works of earlier jurists. Included therein are the Notae to Julian’s Digcsta, to Neratius, to Plautius.to Scaevola’sQuaestionesand Responsa?¹ Paul’s Epitome of Labeo’s Pithana (Ffobabilities> was the work used by the compilers rather than the original by Labeo.¹¹ Paul’s most important works are probably his Libri ad edictum in 78 books and Libri ad Sabinum in 16 books. In the former the commentary of Paul seems to have been more systematic and wider in scope than the word for word interpretation by Ulpian; it is dated variously before 195 A.D. and after 211 A.D. “ It seems to have preceded in time Paul’s other extensive work on the edict, Libri 23 brevium or Ad edictum de brevibus. Most authorities take this to be a sum­mary discussion of the edict, but H. Krüger argued that it was a commentary on a special type of edict, the edictum monitorium (referential edict), i.c., an edict which referred to other sources, such as lex, senatus consultum. etc.” The work of Paul Ad Sabinum is not a mere commentary on Sabinus’ ius civile, although the order of the materials is the same, but attempts to give a complete picture of the ius civile, based in large part on Pomponius Ad Sabinum, citing, in addition, a host of other authorities. Paul was also the author of Quaestiones in 25 books and Responsa in 23 books, both in the order of the digest system. The Quaestiones contains lengthy discussions of single cases arising in disputations, with citation of Paul’s own responsa, rescripts and other imperial enactments, the views of earlier jurists, etc. The Responsa is largely devoted to technical responsa derived from practice, but including some additional material. Both works suffered post-classical revi­sion.“ Paul’s Decreta in 3 books and Imperiales Sententiae in 6 books are discussions of cases reaching the imperial high court on appeal.^{[856] [857] [858] [859] [860] [861]The former work has been the subject of intensive exegesis by Sanfilippo. '· Paul was also the author of numerous handbooks for students and practitioners: the well- known Sententiae ad filium - which has come down to us in vastly altered form -has been treated supra (| 19); Institutiones in 2 books; Regulae in 7 books, and in a single book, though the latter is probably a post-classical abridgement of the larger work;” and Manualium in 3 books, which Stein takes to be a prompt book of legal principles useful (manualis) to a prac­titioner.10 Finally, Paul was the author of a great number of monographs, most of them single books, commenting on individual statutes and senatus consults, discussing the general nature of law and statute, or treating par­ticular phases of the law of persons, property, obligations and succession, procedure, criminal law, fiscal law and public law. Many of these may well be separate versions of parts of larger works, or even post-classical abridge­ments of portions of larger treatises.11}

The evaluation of the contribution of the jurist Paul to the development of the Roman law has swung back and forth in the course of the centuries. In post-classical times he was highly regarded, Justinian praised him and the compilers borrowed freely from his works. In the middle ages and early modern times he was considered a mere collector and reproducer, even plagiarizer, of the opinions of older jurists. Recently, he has come again to be considered one of the outstanding Roman jurists. His wealth of citation of others²² is not mere padding but useful confirmation of views which were in­dependently reached. He often opposed the opinions of Papinian or of the emperor, and exercised sharp critical insight into the selection of his authori­ties. The failure of Paul to mention his contemporary Ulpian, and the reverse situation, is indeed a strange circumstance, for which various reasons have been assigned.²¹ But this has no bearing on Paul’s legal standing. Kipp terms him a ’sharp, logical, perhaps hyperlogical thinker’.²⁴ Berger, whose ency­clopedia article on Paul provides thorough analysis of the jurist and of his works, states, in a dictionary article, that, though a compiler and synthesizer, he was neither uncritical or unoriginal, with wide interests. ‘He is sometimes too doctrinaire¹, Berger (and Nicholas) continues, ‘loo given to rationaliza­tion at the expense of practical considerations, but these are the excesses of an incisive and logical mind.’”

For bibliography on Paul, see Berger, s.v. lulius Paulus (382),RE 10(1919) 690, 752; supplemented by Orestano, s.v. Paolo (lulius Paulus), NNDI12 (1965) 362-63.

c. Domitius Ulpianus

§130 Ulpianus, Libro I de censibus (D. 50.15.1 pr.)

It is well known that there are certain colonies under Italian law, as in Phoeni­cian Syria, that most splendid colony of Tyre, whence I had my origin (origo).. ■

21. Schulz, History 252.

22. Berger, op. at., 738-52, has provided a complete survey of all citations to earlier jurists in Paul’s works.

23. See Berger, op. tit., 673 f.

24. Kipp, Gesdiichte 136.

25. Berger-Nicholas, s.v. Paulus (I), OCD 792. Cf. also evaluation by Wenger, Quillen 517; and now. by Maschi, ANRWII 15 (1976) 667 ~7O7.

Ulpianus, Libro XZ ad edictum (D. 4.2.9.3)

...Andi know as a fact when some Campanians putting a man in fear extorted a written promise from him to pay money, it was rescripted by our emperor that he could seek restitution to status quo from the praetor, and the praetor, while I was present in the capacity of assessor, declared....

Spartianus, Pescennius Niger VH.4 (SHA)

[Set forth, supra, § 129]

ImPERATOR ALEXANDER AUGUSTUS sabinae (C. 8.37.4) (222 A.D.)

According to the response of Domitius Ulpianus, praefect of the grain supply (praefectus annonae). jurisconsult and my friend (amicus), a woman who stipu­lated that when she died she wished to leave half her dowry to whom she willed, has stipulated that part of the dowry be returned to her when she died. Posted March 30. Alexander Augustus consul.

IMPERATOR ALEXANDER AUGUSTUS ARRIO SABINO (c. 4.65.4.1) (222 A.D.)... When, however, he (provincial governor) shall have found that the matter re­quires a more severe penalty, he will take care to remit the defendants to Domi­tius Ulpianus. praetorian praefect and my 'parent'.

Posted December I, Alexander Augustus consul.

Dio Cassius, Historia Romana LXXX.1.1, 2.2, 4.

4 lexander, becoming emperor immediately after him (Elagabalus), entrusted to a certain Domitius Ulpianus the praefecture of the praetorian guard and other affairs of state.

(2.2) Ulpianus redressed many measures irregularly taken by Sardanapalus (Elagabalus); but after having put to death Flavianus and Chrestus that he might succeed them, he was slain before long by the praetorians (guard) who attacked him during the night. This occurred in spite of the fact that he fled to the palace to take refuge with the emperor himself and his mother.. -.(4) After these events, Epagathus. believed to be the principal responsible for the death of Ulpianus. was sent to Egypt, ostensibly as governor, but in fact to prevent any disturbance taking place in Rome if he were punished at that place. Later he was taken to Crete and executed there,

Zosimus, Historia nova 1.11.1-3

He (A lexander) named Flavianus and Chrestus, men expert in the military art and good administrators in time of peace. ButMamaea, the mother of the emperor, set Ulpianus over them as arbiter and as associate in command, since he was an excellent jurisconsult capable of handling things well in the present and ready to decide judiciously in the future. The soldiers, displeased with him, contrived secretly to put him to death. Learning of this, Mamaea anticipated the attack,

§ 130 doing away with those wishing to carry it out. Ulpianus was then named sole authority in the office of praetorian praefect. But he drew the ill-feelings of the soldiers - lam not able to indicate the reasons exactly; the historical opinions about his conduct diverge - and he was killed in the course of a riot, the emperor himself not being able to come to his help.

Domitius Ulpianus ( Ulpian) was certainly of Tyrean stock, seemingly of a family which had long enjoyed Roman citizenship.¹ He may even have been bom at Tyre, as some earlier scholars held, and as Frezza has recently maintained on the basis of evidence drawn from his own writings.^{[862] [863] [864] Few details of his early life are known. The Augustan Histories relate that he was an assessor, together with Paul, at the court of Papinian while the latter was praetorian praefect? He himself tells us that he acted in an advisory capacity to a praetor, presumably when established as a responding jurist.[865] Most probably no credence is to be given the reference that Ulpian held the office of chief of the bureau of petitions.[866] [867] Then, with the accession of the young Alexander Severus to the throne, Ulpian rose to prominence in government service. The Roman historians attribute this to the favor of the mother of the emperor, and the close friendship of Ulpian with the young emperor him­self? Constitutions of the emperor reveal that Ulpian was praefect of the grain supply (praefectus annonae) on March 31,222, and praetorian praefect from December 1 of the same year. He held the latter post until his death at the hands of the soldiers of the praetorian guard, under the instigation of a freedman named Epagathus. With the exception of a very few, both his­torians and legal scholars had placed this event in 228 A.D., on the basis of apparent indications that Ulpian was in Rome in that year.[868] Then, in 1966,}

the publication of P. Oxy. XXXI2565 showed without question that Epaga- thus was praefect of Egypt in May-June 224; Ulpian’s murder, therefore, was previous to that time. Modrzejewski and Zawadzki, building upon an idea advanced by Pflaum two decades earlier, developed the thesis that Ulpian was appointed ‘supcr-pracfect’ as colleague to two sets of military praetorian praefects, in charge of the general administration and in par­ticular of the judicial functions of the office, white the military praefects commanded the praetorian cohorts and saw to the security of the emperor.· When the first set of military praefects, Flavianus and Chrestus, was elemin- ated, Ulpian became sole head of the praetorian praefccturc. Subsequently, probably in the spring of 223 A.D., Ulpian was made’super-praefect’again, with two new praefects as colleagues.’The murder of Ulpian by the praetor­ian guard occurred, according to Modrzejewski-Zawadzki, in the summer of 223 A.D.'°

A study by F. Grosso undertakes to discover the reason why Ulpian was killed, in an analysis of the discrepancies in the versions of Dio and Zosimus describing the event.” He considers Pflaum’s theory of a ‘super-praefect’ improbable.^u Bar nes, further, dismisses the whole idea of Ulpian as the wise counsellor guiding the young emperor or as excogitating a vast array of con­structive legislation as pure myth, pointing out that the jurist wasdead before the reign was two years old.” Syme, quite recently, has painted the picture of the learned jurist - his legal effort ending with the rule of Caracalla (217 A.D.) - acquiring favor and protection in high places and thus making a rapid political role for himself in the first months of Alexander’s rule.¹⁴ Ulpian, says Syme, ’deserted the routine pursuits of legal erudition, in­sinuated himself into the favor of the court and responded to the call of duty and hazard, or the promptings of an eager ambition’.¹⁵

Whatever the nature of the political career of Ulpian, the jurist is best known for his writings, one-sixth of the whole of the Digest of Justinian being made up of extracts from his works. These works date largely from the

8. Modrzcjcwski-Zawadzki, ‘La dale de la mort d’Ulpien et la prefecture du pretoirc au debut du règne d’Alexandre Sevère’, ßß 45 (1967) 565-6U, particularly 586-94, based in part on Pflaum, Le marbre ite Tbongny (1948) 36-45.

9. Modrzejcwsld-Zawadzki, op. ÿã., 594-99.

10. Op. di., 584-86.

11. Grosso, Rend. Lincei 23 ( 1968) 206-14.

12. Op. dt., 209 f. Grosso was not aware of the Modrzejewski-Zawadzki article al the time of writing.

13. Barnes, 1968/69 Bonn. Hist. Aug Colloq. 13, 33, with specific rebuttal of the views of Modrzejewski-Zawadzki, n.126, and of Honore, n.127.

14. Syme, Proc. Am. Philos. Sbc. 116 (1972) 406-09. Cf. also, Syme, 1968/69 Bonn. Hist. Aug. Colloq. 309, 318-23.

15. P. 409.

§ 130 period of the sole reign of Caracalla (212-217 A.D.), though some may well have been written before or after this period.¹⁴ His earliest works, like those of Paul, were Notae to the writings ofotherjurists;^lTno Epitomaeby Ulpian are known. Of the commentaries, Ulpian is famed for his commentary on the edict of the praetor in 83 books, and his commentary Ad Sabinum in 51 books. In the former he limited himself as far as possible to the ius honorar­ium (infra, chap. IX, $ 150), presenting the text of each edict of the praetor, with a word-by-word comment on the clauses thereof, followed by the texts of the formulae and lemmatic commentary on these. He omitted all discus­sion of the ius civile (infra. § 132)-which had crept into edictal commen­taries since Celsus and Julian - except insofar as unavoidable in discussing the praetorian law.¹· Schulz contends that Ulpian’s Ad edictum, if com­pleted, must have been one of the great works of Roman jurisprudence for he had full command of the literature and he set about providing a compilation of the law of his time, presenting the accepted opinions of earlier jurists while at the same time, by his own authority, settling outstanding controver­sies, all in language ‘clear, unaffected, businesslike and completely un- rhetorical’.¹’ In the early post-classical times the work was revised; how much of Ulpian was omitted or altered has been the subject of considerable research.¹⁰ Ulpian‘s commentary Ad Sabinum was intended as a restatement of the ius civile of his day. It treated the earlier discussions so exhaustively that it must have superseded the older books. The copy which the compilers used was incomplete; if Ulpian had completed the work, it would have com­prised about 62 books.^{[869] [870] [871] [872] [873] [874] [875] Tribonian speaks of the revised edition (repetita praelectio) of the work which the compilers used (D. Const. Cordi 3), earlier scholars taking this to mean that Ulpian had made two versions, but most recent studies propose an early post-classical revision.21}

Ulpian was the author of Disputation es in 10 books, a collection of cases for discussion, his own and from other sources, as well as Responsa, a com­pilation of abridged versions of his responses in 2 books, seemingly made in early post-classical times.” Also ascribed to him in the Digest are four introductory works in law: (1) Institutiones in 2 books, (2) Regulae in 7 books, (3) Regulae in a single book, which apparently is the Epitome of the Rules of Ulpian, preserved in a Vatican manuscript (see supra, § 20), and (4) Opiniones in 6 books, of which the classical origin was doubted as early as Gothofredus, and which was declared to have been an anthology by a post- classical author.²⁴ Santalucia has recently devoted an extended monograph, coupled with detailed comment on each passage of the work which has been preserved, to prove that the work was actually by Ulpian, written between the time of Caracalla and Alexander, designed as a manual of instruction for the use of all governors of provinces.¹’It was therefore devoted to a descrip­tion of their duties, the regulation of provincial citizens, particularly with respect to obligations owed the state (munera) and exemption from such duties (immunitas), together with discussion of their jurisdiction. Ulpian is further the author of a number of monographs, a particular group of which concerns the duties of various officials, such as the consul, the proconsul, the praetor for guardianships, etc. The work De omnibus tribunalibus in 10 books, on tribunals generally, to some appears to be an attempt to describe the jurisdiction of the various tribunals of his day, to others simply a post-classical collection of excerpts from Ulpian, with alterations and additions.²*

Pernice, in a vigorous article, sought to show that the voluminous writings of Ulpian were nothing more than a compilation of older juristic works, and not even a scholarly one at that.²² Pernice claimed that Ulpian utilized but a small number of jurists and extracted from their writings mechanically, in­serting remarks from other jurists arbitrarily. JiJrs came to Ulpian*s defense and re-established him as one of the more important of the classical jurists.²* Pernice had limited his attention to the commentaries, neglecting the origi­nal effort in Ulpian’s monographs. Even in the commentaries Pemice had

23. Jors, op. at., 1446 f.; Schulz, History 240 f

24. Rotondi, Scritti I 453-85. See generally, Jors, op. at.. 1450 f.

25. Santalucia, 1 'libri opinionum' di Ulpiano (2 vols., 1971); but see critical review by Wi eacker, Labeo 19(1973) 196-207.

26. For the first view, see Samter, Genchtxverfahren 100 n.l, 155; Wlassak. Proiessformel 69-73. As postclassical collection, Schulz, History 256.

27. Pemice, Ulpian als SchrifbtcUer', Sitzb. Berlin 1885. 443-84. reprinted Labeo 8(1962) 351-89.

28. Jors. Jt£5(l9O5) 1455-1501.

exaggerated, for the compilation was not mechanical. Ulpian used as prime sources the Digesta of Celsus, Julian and Marcellus and the Quaestiones and Responsa of Papinian, but he also employed a mass of other writings reach­ing back to the republican jurists.¹⁹ Yet Ulpian does not rank with Julian or Papinian, perhaps not even as great as Paul. Berger says of him: ‘He was mostly a compiler, but not a slavish copyist; a man of great learning, pro­foundly versed in the earlier literature which he sifted with the critical acumen of a practitioner; superior to Paul in clarity and ease of expression, but not in originality and acuteness of judgment’.¹⁰

The article by Jdrs, s.v. Domitius (88), RE 5 (1903) 1435-1509, though out of date, is valuable for its discussion of the individual works of Ulpian, and has been supplemented by Mayer-Maly, y.v. Ulpianus (2), RE 9A(1961) 567-69. Also, of recent date, Crifd, 15 (1976) 708-89. For extensive

bibliography, see Orestano, s.v. Ulpiano, NNDI19 (1973) 1107-08.

d. Herennius Modestinus

§ 131 Ulpianus, Libra XXXVII ad edictum (D. 47.2.52.20)

... / wrote this back to Herennius Modestinus, my student (studiosus), con­sulting me from Dalmatia,...

Lis fullonum de pensione solvenda 2-5 (Bruns, Fontes No. 188 ~ FIRA III No. 165) (244 A.D.)

P. Clodius Fortunatos, permanent five-year official (of the association of the fillers) of this place. Intermediate judgments of Aelius Florianus, Herennius Modestinus and Faltonus Restitutianus, most eminent chiefs of police (praefecti vigilum).

The date of the inscription is 226 or 244 A.D.

The last significant classical jurist was Herennius Modestinus, of whose origin and life we know practically nothing. On the basis of a work written in Greek and a penchant for Greek phrases generally, it has been said that he was of eastern origin, but this is hardly proved by such evidence. He was a student of Ulpian, a responding jurist (cf. C. 3.42.5), and the instructor of the emperor Maximinus the Younger (SHA vita Maxim, duo 27.5). Many of his works are known to us by title alone, but extracts from others are to be found

29. Jors, op. at.. 1475-96, gives a list of the citations from earlier jurists by Ulpian.

30. Berger, s.v. Ulpianus (I), OCD (1st ed.) 932.

in the Digest and the Collatio legum. Though Modestinus covered the whole field of the law he wrote no comprehensive commentaries, but rather pro­duced practice manuals or teaching handbooks, as well as monographs. Among the former are Differentiae, or legal distinctions, in 9 books, Pan­dectae in 12 books and Rcgulae in lObooks. Aside from his Responsa, which contain his own responsa arranged in the digest system (see infra, § 144), the remainder of his writing consisted of monographs, generally in single books. The earliest of these, such as that on manumissions, are to be dated in the time of Caracalla, the majority later; the monograph De enucleatis casibus (On the explanation of difficult law cases) may date from the time of Alex­ander Severus. By far the most significant monograph written by him is De excusationibus (On exemptions from guardianship) in 6 books. The work is in Greek, bearing a Greek title, and the intimation in the work itself is that it was destined for Greek-speaking people (D. 27.1.1.1-2). One scholar has identified Asia Minor as the area to which it was directed? On the other hand, it has been argued that it is a compilation of early Byzantine date,² or that some post-classical writer made a translation of the original Latin work of Modestinus and either the translator or another expanded it.¹ There is a Latin version of the work but this is clearly later in date than the Justinianian epoch.⁴ It is nowgenerally taken that Modestinus wrote the work for the use of eastern provincial practice? Altmann has shown that the monograph comprises Roman legal institutions of the early 3rd century? Volterra has recently marshalled the arguments which show that the work was written in Greek, shortly after the grant of Roman citizen­ship to the greater portion of the inhabitants of the provinces, to explain the conditions of the imposition of guardianship upon Roman citizens.’

In addition to the histories of Roman law, encyclopedia articles by Brass- loff, s.v. Herennius (31), RE 8 (1913) 668-75, and Orestano, s.v. Modestino, Erennio, NNDJ 10 (1964) 819-20, offer further discussion and bibliography regarding Herennius Modestinus. ^{[876] [877] [878] [879] [880] [881] [882]}

£>. JURISTS’ LAW

1. Ius civile and Jurists’ Law

| 132 Pomponius, Libro singulari enchiridii (D. 1.2.2.5, 12)

When these laws (XII Tables) were enacted, discussion in the forum became necessary - as naturally is wont to happen, that interpretation requires the guidance of the learned in the law. This discussion and this law, which in un­written form was developed by the learned, is not specifically named - as the other parts of the law have been designated by names, since special names have been given to the other parts - but is referred to by the general name ius civile. (12) Hence in our state a rule depends either on law, that is, upon a statute, or there is our own ius civile which consists without writing in the mere inter­pretation of the learned, or the legis actiones which give the forms of pleading, or plebiscite enacted without the authorization of the Senate, or the edict of the magistrates whence the ius honorarium derives, or the senatus consultum which takes effect on the mere resolution of the Senate without statute, or the imperial constitution, that is, what the emperor himself decrees and is observed as a statute.

Cicero, Topica V.28

A partitive (definition) exists when the matter which is concerned is separated into its component parts, as if one should say: the ius civile is that which is found in statutes, resolutions of the Senate, judgments, authority of the learned (in the law), edicts of magistrates, custom, equity....

Papinianus, Libro [//] definitionum (D.l.1.7 pr.)

The ius civile is that which is derived from statutes, plebiscites, resolutions of the Senate, decrees of the emperors, the authority of those learned (in the law). Kalb corrects the number of the book, see Index Interp. 12.

Gaius, Institutionum commentarius 1.1-2.

Every people that is governed by statutes and by customs observes partly its own particular law and partly the common law of all mankind. That law which any people establishes for itself is peculiar to it and is called ius civile as being the law of its own citizenry.... (2) The laws of the Roman people consist of statutes, plebiscites, senatus consulta, constitutions of the emperors, edicts of those possessing the right to issue them, answers of the learned (in the law).

Cicero, De oratore 1.44,197

You will receive, also, this pleasure and delight from the study of the law. that you will then most readily realize how far our ancestors excelled other nations in wisdom, if you compare our laws (leges} with those of Lycurgus and Draco and Solon, ft is, indeed, incredible how barren and ridiculous is almost all ius civile except our own.

The meaning of ius civile in the period of Roman classical law varies almost from passage to passage. It has particular meaning when contrasted with ius sacrum, with ius gentium, with ius honorarium, with ius naturale. And the meaning ascribed by various jurists does not at all conform to the connotation of ius civile among literary sources, including Cicero. Indeed, Cicero vacillates from one to another meaning.¹ In the entry in the encyclo­pedia on classical antiquity Weiss noted three meanings of the phrase ius civile: (1) the most significant meaning tied up with interpretation and dis­putation in the forum, non-legislated customary law, the result of the activity of the jurists, thus contrasting ius civile with ius sacrum and ius publicum, as well as with statutory enactments and resolutions of the Senate; (2) the positive law, including the statutes, identified as the law of the Roman citizens themselves (ius proprium civium Romanorum), in con­trast to the ius gentium, the law of and for foreigners; (3)the private law, jurists' law, in contrast to the ius honorarium, the law developed by the exercise of the praetor’s office? Buckland noted the various meanings of ius civile: (1) the law peculiar to Rome, which would include some of the prae­torian law, for not all of the praetor’s edictal law was ius gentium in origin; (2) the usual meaning was the unwritten part of the law, that part which was developed by the jurists at a time when they did not possess legal authority, and (3) the law resting on statutes plus that evolved by the jurists in contrast to the law developed by the office of the praetor? Finally, Kaser distin­guishes ius civile in the sense (I) of the law valid for the Roman citizen, set forth in the old customary law, the statutes and senatus consults, and developed by the activity of the jurists, hence contrasted with the ius gentium; (2) the law comprising ’folk law’ in contrast to the ’official law* developed by the praetor and other judicial magistrates; and (3) in a non­technical sense, the whole of the private law and procedure, as the subject matter of jurisprudence, in particular, jurists* law?

This by no means exhausts the meanings of ius civile, in the view of modern scholars. According to Schulz ius civile meant ius inter cives, the law between citizens, thus Roman private law in contrast to public law, which ^{[883] [884] [885] [886]}

§ 132 was the law of the state (re publica), including the relation of the state with its citizens; Cicero’s usage of ius civile is quite distinct from that of the jurists, and not uniform.^{[887] [888] [889] [890] [891] [892] [893] Gioffredi, on the other hand, would not contrast ius civile with public law, but saw it as a complex of rules developed by the jurists for the citizens in contrast to the norms imposed on non-citizens.* Berger has attempted to survey the various meanings of ius civile, and, eliminating certain connotations considered post-classical, concludes that the proper identity is ius civile = ius privatum, though that equation is not found in the texts?}

Elsewhere in this volume attention will be turned to the relation of ius civile to ius honorarium, to ius gentium and to ius naturale, but at this point the interest is in the tie between ius civile and jurists’ law. In the Pomponius passage jurists’ law is the ius civile.’That this meaning of ius civile antedated Pomponius seems assured, for the earliest recorded use of the phrase in Varro (Varro, de re rust. 2.1.15, 2.10.4) indicates similar usage, and it un­doubtedly dates earlier than that author. At the turn of the 20th century Ehrlich strenuously argued that the term ius civile served with practically no exceptions to designate the law which derived from the activity of the jurists, primarily through interpretatio (expounding of fixed legal principles).’This ius civile was to be contrasted with the law established by state action, and he held that the antithesis ius civile-lex (or plebiscitum, senatus consultum, constitutio principis) was fundammental in the Roman law. A basic study on the relation between the interpretation of the jurists (interpretatio pru­dentium) and legislation was later offered by Biondi. The activity of the jurists, Biondi declared, was designed to serve the ever-developing practical needs of the Roman citizen. In the course of time the state stepped in -by statute, praetorian edict, imperial enactment-to supplement juristic activ­ity. But jurists’ law was primordial, autonomous to a large extent, with state interference always marginal. ‘Interpretatio was an organic system of juri­dical principles, it was the logical application of these to contingencies in practice.’¹* In recent decades other scholars have continued to emphasize the

role of juristic interpretatio in the formation of private law throughout the pre-classical and classical epochs.¹¹

However, the identification of ius civile with the interpretatio of the jurists has not gone unchallenged. Kaser argued for the tie-up of the Pomponius passage with the Tripertita of Sex. Aelius Paetus (see supra, § 58 i.f.Jand its threefold division into lex, interpretatio and legis actiones?¹ The inclusion of the phrase sine scripto (without writing) in the Pomponius passage signi­fies, according to Kaser, that lex, i.e., the Twelve Tables, is no longer in­cluded within ius civile as jurists' law; that is now interpretatio, a separate part of the Law. There was no intention in this definition of ius civile to in­clude anything more than the interpretatio of the jurists on the law of the Twelve Tables. From Ciceronian and other texts we learn that ius civile was also used to designate the whole of the private law and procedure, including the statutes. Ehrlich, it has been said, greatly overemphasized the signif­icance of the definition of ius civile in D. 1.2.2.5 and 1.2.2.12J⁴ Recently, again, the substance of these two passages of Pomponius has been defended?¹ The evidence respecting the place of jurists' law in practice and its tie with ius civile is sought to be demonstrated in the following two sections, on early case law (§ 133) and on juristic decision-making (§ 134).

2. Early Case Law

§ 133 For the most part we have no knowledge of the processes by which the jurists of the early republic arrived at the decisions which transformed the law of the Twelve Tables and other early legislation into the living law of the Romans of the 3rd and 2nd centuries B.C. The reasons for the decisions are almost never expressed, or at least they have not been included within the reports of the opinions of the veteres (old jurists) which have been handed down in the writings of the jurists of the Principate. The creative develop­ment of the law depends frequently upon the fact that an earlier jurist of good repute had rendered a decision in a situation which intuitively

12. E.g., Balogh, Aai Cong. Perone II 261, 265 ff.; von LQbtow, Polk 551; Grosso, Storie 122-24.

13. Kaser, 'Lex mid ius civile’, Deutsche Landesreferaf ztun Vff. Inlernaiionalen Kongress far Rechtsvergieidttutg in Uppsala 1966 (1967) 3-21, and Studi Donaturi 11 523, 545 f.

14. Berger, Festschrift Kisch 125, 129 ff., collects the references in other scholars to the

assertions of exaggeration on the part of Ehrlich; cf., however, Schiller, Boston Univ. L. Rev. 47 (1967/68) 20. 22 f. [- Experience 201 f.],

15. Bretone, Tecniche [26-35.

§ 133 could be associated with the case at hand.¹ Kaser urged that the primary force in case law was at aU times intuition.’This rested, he maintained, upon the feeling for law in the select group of individuals who made up the body of jurists through the years. This was coupled, in the course of time, with the experience handed down by jurists of earlier ages in their responses and their legal writings. The case law of this early period was not logical devel­opment of the law, and it took little account of the social or political needs of the people.¹ The nature of this early case law can perhaps be best illus­trated by some of the juristic decisions which have come down to u$.

Pomponius, Libro Vad Quintum Mudum (D. 50.16.120) By the words of the Law of the XII Tables. ‘According as he has bequeathed his property by will, so shall law hold good’, the most extensive power seems to have been granted (to the testator) to appoint an heir, to grant legacies and freedom, as well as to establish guardianships. But this has been limitedeitherby the interpretation of statutes or by the authority of those establishing the law.

Interpolated, see Index Interp. Ill 586, though the motive of the compilers to make changes is obscure, Carcatcrra, Definizione 14 n.14.

Pomponius, Libro V ad Quintum Mudum (D. 50.16.120, as conjectured) By the words of the Law of the XII Tables. ‘According as he has bequeathed his property by will, so shall law hold good’, the most extensive power seems to have been granted (to the testator) < by the authoritv of those establishing the law> to appoint an heir, to grant legades and freedom, as well as to establish guardianships. But this has been limited either by < the provisions of the lex Falcidia > or by the authority.

Conjectured original according to von Ltìbtow, Studi De Francisd 1409, 511 f., and Volk 632. Cf. also, Siber, Ada Acad. Comp. I 986, 994, and Rom. Recht II 332.

Gaius, Institutionum commentarius 1.165

By the same law of the XII Tables the guardianship offreedwomen and of freed­men under the age of puberty belongs to the patrons and their children, which guardianship is also called statutory; not because any express provision is made in that law with regard to this guardianship, but because it has been accepted by reason of interpretatio exactly as if it had been introduced in the words of the law. For, from the fad that the law ordered the inheritance of freedmen and ^{[894] [895] [896]}

freedwomen, if they died intestate, to belong to the patrons and their children, the early jurists (veteres) concluded that the law intended that the guardianships also devolve upon them, since it ordered that the agnates whom it called to the inheritance should be guardians as well,

Cf. D. 26.4.3 pr.

Paulus, Sententiarum adfilium liber IV.8.20

Women beyond the degree of sisters (bom of the same father) are not admit­ted to statutory inheritances (intestate succession); and this seems to have been effected under the ius civile on the principle (ratione) of the Voconian statute.

Whether one accepts the Pomponius passage (D. 50.16.120) as it stands, or as conjectured by von Ldbtow and Siber, as it was originally written, the provision of the Twelve Tables was interpreted by the early jurists to enable a testator to manumit slaves and to appoint guardians, and subsequently to limit the amount granted by legacy.^{[897] [898] [899] [900] [901] [902] The Gaius passage is self*cxplanatory: guardianship over freedmen and freedwomen minors was entrusted to their patrons not by a law of the Twelve Tables but by interpretatio - today we would say, by analogy -by the early jurists.’ As respects the Paul passage, a provision of the Twelve Tables provided for distribution of property under intestate succession without distinction of age or sex. A lex Voconia of 169 B.C. provided that a testator belonging to the first census class, i.c., the wealthiest, could not name a woman heiress to his estate.4 Presumably this legislation was intended to combat the luxury expenditures of wealthy women, and at the same time keep the largest fortunes intact in the family? But the statute had nothing to do with intestate succession;1 it was juristic interpretation which devised the rule excepting women beyond the degree of sisters from taking when there was no will.’ The development of the law by the jurists in this early period has been termed strict interpretation, or, perhaps even better, literal or word interpretation. By reason of association of factual circumstances, a word or a phrase in an earlier norm is seized upon as the peg upon which to hang the solution of the problem being presently faced. There is no necessity for logical connection, no need that the new}

§ 133 situation be within the scope of the legislative aim.’⁸ Word interpretation not only filled in the gaps in the law but gave new semblance to old legal rules; there were many devious and formal operations by which new ideas were introduced into the provisions of the Law of the Twelve Tables.” Von Lubtow presents an apt discussion of the nature of word interpretation, emphasizing the way in which the early jurists employed the word to over­come the word, in order to develop the statutory norm beyond itself.^{[903] [904] [905] He notes the aphorism of Ernst Fuchs, who speaks of this as crypto-sociological method: ‘One desires to reach a given result and uses the word ofthelawas a means to an end, in order to establish an external accord between result and statute/[906]}

Papinianus, Libra [//] definitionum (D. 1.1.7 pr.) The ius civile is that which is derived from... the authority of those learned in the law (auctoritas prudentium).

The passage in full, supra, § 132.

Cicero, De oratore 1.45.198 And many (jurists) who, when they had gained distinction for themselves on the strength of their ability brought it about that, in responding on the law. they prevailed rather more by their reputation (auctoritas) than by their very talents.

Pomponios, Libra singulari enchiridii (D. 1.2.2.39,42)

After these (Marais Cato and his son) were Publius Mucius and Brutus and Manilius. who founded the ius civile.... (42) The pupils of (Quintus) Mucius were many, but those of the greatest authority (auctoritas) were Aquilius Gallus, Balbus Lurilius, Sextus Papirius, Gaius Juventus; of these Servius says Gallus had the greatest repute (maxima auctoritas) among the people....

Pomponios, Libro XXXVII ad Quintum Murium (D. 49.15.5.3)

If, however, a captive shall have been set free by us and shall have gone back to his own people, he is considered to have reverted by the right of return (post­liminium) if he desires to follow them rather than remain in our state.... And accordingly, with respect to a certain interpreter, Menander, who after he had been freed by us, was sent back to his own people, a statute which has been enacted in his case so that he remain a Roman citizen is not deemed necessary;

for either he has had the intention of remaining among his own people, and would cease to be a (Roman) citizen, or he has had the intention of returning, then he would remain a citizen, and accordingly the statute was superfluous.

Beseler, SZ 45 (1925) 487, considered the last clause interpolated.

It should be noted that there is another term, auctoritas (authority, repute), which is at times co-ordinate with interpretatio prudentium, and at other times appears to replace the latter phrase. Lauria believed that in the Pomponius passage, D. 50.16.120, the auctoritas of those creating the law refers to jurists who interpret the ancient norm in a restrictive fashion.^[907] Fuhrmann has asserted, indeed, that it was Pomponius-or his republican source - who gave technical significance to the term interpretatio, and dated it back to the activity of the pontiffs and the jurists of the early re­public.^{[908] [909] There is no reason, he said, why all the development initiated by the jurists should be subsumed under the phrase interpretatio prudentium.}

In this connection Bretone has advanced an intriguing thesis to explain why Pomponius should have stated that Publius Mucius and Brutus and Manilius ‘founded’ the ius civile.¹⁴ Earlier jurists, and later jurists, also, evolved the Roman law by utilizing the words of the Twelve Tables and later statutes as props upon which to support new determinations. It may be that these three jurists, in addition to depending upon statutory forms, were the first to rely on an autonomous interpretatio, solely on the basis of the intrinsic reality of the situation. Pomponius appears to have been sym­pathetic to this distinction between lex and the reasoning of juristic inter­pretatio: the statute in the case of Menander wassuperfluous(D. 49.15.5.3).

3. Juristic Decision-Making

j 134 For the most part the treatment of jurists’ law by modern scholars very strangely has been devoted to the exposition of the theoretical bases upon which juristic opinions were fashioned. All nevertheless would agree that the jurists themselves, in their cases and in their writings, were not at all concerned with abstract theory or the philosophical idea which might have led to the decision which was rendered. One must suppose that the nature of continental jurisprudence - for most Romanists of the past century have been trained in the civil law - was such that it was not deemed possible for Roman jurists* law to evolve without a firm theoretical foundation. If we take into account the well-recognized impact of Greek culture and thought in Rome during the last century and a half of the republic, it is not sur­prising that the various facets of Greek learning should have been con­sidered the font of what is often termed the ‘liberal’ interpretation of the Roman jurists.

Among the earliest to suggest that the jurists relied upon Greek training was Voigt, who devoted se veral hundred pages of one of his larger treatises to a demonstration that the jurists of the classical era based their scheme of legal interpretation upon the so-called rhetorical theory of interpretation, evolved by the Greek, and adapted by the Roman rhetors.' In 1926 Stroux ‘discovered’ the same phenomenon² and it was seized upon by Riccobono for the justification of the theory which he had championed of the Roman jurists’ development of the law? Other scholars were less enthusiastic? but considerable attention has been given this topic for some four decades, culminating in the opposing views set forth somewhat recently in the mono­graphs of Wesel and Vonglis?

In the meantime Schulz had stressed the crucial effect that the introduc­tion of dialectic - from the Greek schools -had upon the development of the Roman law by the jurists? Then, in 1953, Viehweg advanced the view that juristic thinking in Rome was‘topical* or‘problematic’ rather than ‘axioma­tic* or ‘logical*? The theory of topical thinking had been described by Ar istotle, but to the Roman rhetors, including Cicero, the exposition of the catalog of ‘topoi’ (loci) became the basis of the art of argumentation. Ac­cording to Viehweg, the classical jurists adopted the idea and resorted to problem thinking rather than logical deduction in developing the ius civile? For almost two decades Romanists have argued pro and con with respect to the role of problem thinking in the solution of legal cases by the jurists, but recently strong attacks on the very premises of Viehweg’s thesis have re-

1. Voigt, Jus naturale IH 7-398, and IV 333-76.

2. Stroux, Summum ius summa imuria. Ein Kapitel aus der Geschichte der interpretativ iuris (Leipzig/Berlin [ 1926]), reprinted in Hämische Rechtswissenschaft und Rhetorik (1949).

3. Preface to the Italian translation, 4/wi. Palermo 12 (1929) 639-47.

4. Himmelschdn, 'Studien zu der antiken Hermeneutica iuris’, SymbolaeLenel 313, 393-95, 422-24; Pringsheim, Conferenze Pandeiie 183, 192 f; Schulz, Principles 129 f. An extended treatment of the possible dependence of the jurists on the rhetorical theory of interpretation, by Schiller, Texts and Commentary, chap. X, particularly, 283-302.

5. The works of these authors cited infra; Stein, SDMI 34 (1968) 446-51, an analysis of the two in English,

6. Schulz, History 62-69.

7. Viehweg, Topik und Jurisprudenz (2d cd.. München 1963), particularly $ 4.

8. Viehweg, op. at., 30 ff.

moved this subject from major attention.’ In addition, through the years there have been further studies which have emphasized the influence of Greek philosphy and thought upon the methods employed by the Roman jurists?⁰ A recent undertaking has been the learned article by Miquel to show that the Roman jurists, or at least Proculus, Scaevola and Julian, were thoroughly familiar with the intricacies of Stoic logic?¹ Indeed, Miquel marvels at the skill of the Roman jurists in keeping their own logical training a secret from modern scholarship for so long a time!'¹

Reference has been made earlier in this chapter (supra, § 105) to the role of dialectic in the framing of regulae and definitiones by the jurists, par­ticularly in the last century of the republic. And in the last chapter of the volume attention will be turned to the influence of Greek thinking in certain aspects of theoretical approach of the classical jurists to phases of the law. In this section, however, we are concerned with the methods of reasoning employed by the jurists in reaching their decisons. Perhaps it was as the result of the constant insistence by English and American scholars that Roman classical law was predominantly a case law system¹¹ that a new slant was given to the study of juristic decision-making a little more than a decade ago. The last years have seen an ever-increasing number of monographs and articles devoted to the methods by which the classical jurists came to the conclusions expressed in their opinions?¹· Not so much a question of from what source the jurist derived the method of reasoning which he used, but rather what method of reasoning led to the decision he rendered. It is fre­quently not possible to answer this question, either because the jurist has

9. Horak, Ratioms 45-64; Bluhdom, TR 38(1970) 269-314.

10. E.g., Coing, Zum Einfluss der Philosophie des Aristotles und die Entwicklung des romischen Rechts’, SZ 69 (1952) 24-59, and 'Zur Methodik der republikanischen Juris­prudenz. Zur Entstehung der grammatisch-logischen Auslegung’, Studi ArangioRuii I 365-88; Wieacker, ‘Über das Verhältnis der romischen Fachjurisprudenz zur griechisch­hellenistischen Theorie*, Iura 20 (1969) 448-77, with further reff.

11. Miquel, ‘Stoische Logik und romische Jurisprudenz', SZ 87 (1970) 85-122.

12. Miquel, op. dr., 122.

13. E.g.. Roby. Roman Private Law 1 (1902) xi ff,; Buckland, Equity 117 ff.; Smith, Cong. of Arts and Sciences, Universal Exposition, St, Louis, 1904, ]] 315, 320-25 [ = Columbia L. Rev. 4 (1904) 523. 531-36]; Pound, Harvard L. Rev. 36 (1922/23) 940,948 ff. This idea is relatively recent among continental Romanists: the first edition of Kaser, Rom. Privatretht I (1955) 642, omits the entry 'Fallrecht' in the Index, but a topic extensively treated by Kaser and others in recent years, reff, by Kaser, Rom. Privalredu 1 (2d ed. 1971) 775, s.v. Fallrecht. (Add Kaser, GtdOchtnisschrift Dietz 14—20 [of the reprint].) The topic is not mentioned in Dukkeil-Schwarz, Rechtsgeschichte (4th ed, 1966) § 24.11.7, but is found in the 5th ed., 1970, at that place!

13a. The jurists’ criticism of legal principles appears to be a new topic for research, introduced by Norr, 'Rechtskritik in der romischen Antike*; Abh München, n.F. 77 (1974), particularly chaps. VIII-Xl; unfortunately, too late for discussion herein.

§ 134 not revealed enough of the circumstances, or because the classical text has been so altered in post-classical or Justinianian times that the method of reasoning cannot be determined. Nevertheless, a mass of cogent material has been collected in several studies of juristic decisions referred to. It is proposed to select passages haphazardly from a number of these studies to illustrate the diversity of reasoning exemplified in the writings of the jurists.¹⁴ There has been no attempt to reproduce the approach of the modern scholar to this material, or even to describe the general theme which these authors pursued; for that the reader must turn to the monographs and articles them­selves.

Two recent volumes by Wesel and Vongtis deal with the question of the dependence of the Roman jurists on the rhetor’s theory of interpretatio, and are replete with quotations from the Digest to justify their views.” Wesel recognizes three forms of juristic interpretation, the first of which he terms ‘identifying’ interpretation (identifizierende Interpretation), that is, the particular factual situation is identifiable with the wording of a statute.’* From this group several texts have been selected.

Ulpianus, Libro XVIII ad edictum (D. 9.2.7.1)

FFi ought to take the word 'kill' whether the party look a sword or even a stick or other weapon or used his hands - if, for instance, he strangled the man - or assaulted him with a kick or butted him or any way whatsoever (and he died). Wesel, op. rit, 42-45: declaratory interpretation.

Ulpianus, Libro XVIII ad edidum (D. 9.2.27.13) The statute (lex Aquilia) says 'break' (ruperit). Nearly all the old jurists (veteres) have understood the words ‘to have broken (rupisse) to mean 'have destroyed (corruperit).

Wesel, op. cit., 45-65: extensive interpretation.

Another form of interpretatio discussed by Wesel is the reliance upon the (supposed) intention of the statute (sententia legis) as contrasted with its words (verba legis).’⁷ An instance of restriction of the statute, within this category:

14. The works selected are monographs of Wesel, Vonglis, Bund and Horak, and an article by Seidl.

15. Wesel, Rhetorische Statuslehre und Gesetsesauslegung der romischen Juristen Ann. Saraviensis No, 29] (Koln 1967); Vonglis, Sententia legis. Recherches sur Hnterpritation de la ioi dans ta jurisprudence (Diss. Paris 1967). The discussion is continued by Vonglis, TR 37 (1969) 247-56. and by Wesel, TR 38 (1970) 343-66.

16. Within this category, declaratory, extensive and restrictive interpretation, analogy and the resolution of ambiguous texts.

17. Within this category he treats of analogy as well as restriction.

Ulpianus, Libro III ad legem luliam et Papiam (D. 24.2,11 pr.)

When the law (lex lulia et Papia) says: ‘thefreedwoman who marries her patron does not have the power of gaining a divorce...

plus

Terentius clemens, Libro VIII ad legem luliam et Papiam (D. 23.2.48.1) If a patron shall have married his freedwoman who was disgraced, it is held that, because he was married contrary to statute, he does not have the privilege of the law.

Wcscl, op. cit., 115-19: restriction of the law.

Incidentally, the rhetorical status sententia et verba legis is the sole one, and only in part, which Wesel admitted had any influence upon the jurists' interpretation of the law.¹*

Finally, Wesel turns to the cases where the jurists refused to apply the provisions of a statute, by reason of strict interpretation, for example:

Gaius, Institutionum commentarius 11.274

Similarly, a woman who, by reason of the lex Voconia, cannot be instituted heir by a testator who is assessed in the cenus at more than 100,000 sesterces, can nevertheless take an inheritance if left to her by trust (fideicommissum}.

Wesel, op. cit., 120-32: strict interpretation of the statute.

Vonglis, also, has engaged in a study of the intention of the legislator as expressed by the words of the law, and the extent to which the interpretation of the law is consistent therewith.'* The chapter on sententia legis (intention of the taw) presents instances intended to support an interpretation not con­sistent with the words of the law (verba legis). Among these an instance where, according to Vonglis, the interpretation takes the form of reasoning a minore ad maius, characteristic of the rhetor’s status of ratiocinatio (conse­quential):

Iulianus, Libro I ad edictum (D. 3.2.1 pr.)

The words of the praetor state: M person is marked with infamy (infamial... who shall have contracted for two betrothals or two marriages at the same time. ‘

plus

Ulpianus, Libro VI ad edictum (D. 3.2.13.3)

Similarly, if a woman is betrothed to one man while she is married to an­other, she is punished according to the intention (sentential of the edict.

Vonglis, op. cit·, 156-63: ratiocinatio in the form ofsententia legis.

18. Wesel, op. at., 138 f.

19. Vonglis, dL supra, n.15.

The monograph of Bund, an early study of the methods of the jurists, is limited to those instances in which Salvius lulianus relics upon one case in coming to a conclusion regarding another.¹⁰ Similarity and iden­tity, analogy and fiction are the classifications under which he treats these cases.^{[910] [911]}

Africanus, Libro V quaestionum (D. 7.1.36.1)

/ stipulated with Titius (to give me) the Cornelian estate, reserving the usufruct, after which Titius died. It was asked what it was that the heir was bound to give me. tie (Julian) responded that it depended on what the intention was in the usu­fruct being reserved.... That this was the question is even more apparent in the case of legacies; for if an heir, by whom the bare ownership is bequeathed with a reservation of usufruct dies before proceedings are taken respecting the will, there is less reason to doubt that the heir of such heir will have to turn overfull ownership (including the usufruct). And it is the same (similiter) if the legacy has been made under a condition and the heir shall have died pending the fulfill­ment of the condition.

Bund, op. dt., 43-45: identity of situation.

Africanus, Libro Ó1Í quaestionum (D. 17.1.34 pr.)

One who carried on business for Lucius Titius, when he recovered funds from his debtors, sent him a letter in which he stated that he was holding a certain sum for management and would owe it as if lent at 6% interest. It was asked whether an action for money lent could be brought on this ground, and whether interest could be demanded. He (Julian) responded, there was nothing owed; otherwise it would be said that a loan could be established [from any contract] by mere agreement. For it is no parallel (nec huic simile) that if an agreement is made for money to be deposited with you that you will have a loan, that this is taken as a loan. Or similarly, if I have ordered you to receive money from my debtor, that there is a loan, for this has been allowed indulgently....

Bund, op. cit., 92 f.i dissimilarity of situation.

Bund very carefully lays down the conditions under which he will consider that Julian may have employed analogy as a method of reaching condu-

sions,“ aware of Steinwenter’s strong argument that analogical reasoning did not exist among the Roman jurists, for ‘without a unified comprehensive legal system, filling in the gaps by analogy’ is not possible?¹ There are in­stances in Julian where it would appear that the decision in a second case results from analogy with an earlier case, but Julian never seems to have relied upon analogical reasoning as such; for example:

Iulianus, Libra X digestorum (D. 12.6.20)

If the debtor and the suretor jointly pay a debt, they do not differ in this case from two debtors promising (to pay}; hence all we have said concerning the latter may be transferred to the former as well.

Bund, op. cit., 112-21: analogical reference (par ratio).

Bund also deals with fictional association of one situation with another, as is instanced:

Iulianus, Libro XXI digestorum (D. 26.3.3)

A guardian who has been appointed by a father either by an invalid testament or not according to law is to be confirmed for the undertaking of the guardianship just as if he were guardian according to the testament, that is, security is dis­pensed with for him.

Bund, op. tit., 159 f.: fictional legal transaction.”

Morale has begun the analysis of those jurists’ decisions - up to and in­cluding Labeo - in which the basis of decision is expressly set forth. In a first volume he has presented those grounds for decision in which the cognitive element is predominant, reserving for a second volume those cases in which the value judgment is dominant or is alone controlling. In this first volume the type-situations are divided into two groups, based on deduction,²¹ and

22. Bund, op. at., 101—06. Cf. Reggi, 'L’interpolazione analogies in Salvio Giuliano', Parmensi 2 (1952) 103-59 and 3 (1953) 467-502.

23. Steinwenter, SWi Albertario 11 105, 107 f. Steinwenter. in the course of three articles: Sludi Albertan# II 105—27; S’/Wi Anutgio-Ruh II 169-86; Festschrift Schuh I! 345-63, demonstrated the absence of analogy, in the strict sense of the term, from the thought processes of the classical jurists. Scholars have quarreled with Steinwenter’s limited con­notation of the term: Schwarz, dv. Prax. 152 (1952/53) 193, 207 IT.; Kaser, Methode 59 n.45; Bretonc, Labeo 15 (1969) 298, 305 f. [ = Tecniche 205, 215).

24. See also Bund, 'Die Fiktion "pro non scripto habetur" als B cispiel fiktionsbewirkter interpreiatio’, Festgabe von Lubtow 353-80,

25. I.e., including application of a legal norm, flowing from logic or grammar, derived from principle of jurists' doctrine, from rule of law (regula), from juristic ‘construction*, or from particular legal concept.

based on probability?⁴ From a vast array a few extracts are presented herein:

Iavolenus, Libra IV ex posterioribus Labeonis (D. 28.8.11)

One who has a freedman (adopted) son named him as heir, and then had written (in his will): 'ifthere shall be no son of mine who shall have reached majority, then Dama, my slave shall be set free.' He had < no son except > the adoptedfreed­man (when he died). It was asked whether Dama should be freed. Trebatius said no, because an adopted freedman is included within the term 'son; Labeo contra, because in this situation it is proper that it (word) be taken as true son. I approve the opinion of Trebatius,...

Horak, op. cit., 130: opinion based on language usage.

Paulus, Libro XXV ad edictum (D. 50.16.25.!)

Quintus Mucius says that by the word 'part' there is signified a portion of an undivided thing; for if something divided is ours, that is not a 'part' but a 'whole'. Servius not improperly (says) that both are signified by the term 'part'.

plus

Paulus, Libro XL ad Sabinum (D. 47.2.21 pr.)

/1 well-known question is whether one who takes a bushel out ofa pile of grain has committed theft of the whole pile or only of the part taken? Ofilius holds it is theft of the whole pile. For one who touches someone's ear. he scans to have touched the whole man; similarly, one who opens a cask and takes a small portion of wine is not only a thief with respect to what he has taken but in respect of all (the wine in the cask).

Horak, op. cit., 230-34: opinion based on the philosophical view (of the whole and its parts).

Ulpianus, Libro LIII ad edictum (D. 39.3.1.21)

Just as a structure so built that rain water causes damage (to my property) gives rise to this action (for prevention of rain water damage), on the contrary it is asked whether there can be suit for rain water prevention if a neighbor has built a structure so that water which otherwise running down had benefited my field, (now) would not benefit it. Ofilius and Labeo thought there could not be suit even if it was to my interest that the water fell on my (land); for this action was available if rain water damaged, not if it did not benefit.

Horak, op. cit., 258: argumentum e contrario.

26. I.e., from uncertain premises, such as juristic controversy, linguistic usage, popular philosophical doctrine; by means of non-controlling premises, such as analogical conclu­sions; by means of incomplete conclusions and/or uncertain premises.

Paulus, Libro IV epitomarum Alfeni digestorum (D. 18.1.40.3) The seller of a farm reserved (for himself) the crops sown. Some corn sprouted from the stalks left on the land and it was asked whether this was included within the reservation? He responded that it depended very much on what was intended; for the rest, according to the words (used) what grew from the stalks was not [considered] any more than that which fell from the corn sacks of the harvesters or from that which was strewn by birds from the air.

Horak, op. cit., 265-75: deductio ad absurdum.¹¹

Following upon two decades of research in the topic, Seidl has pointed out in his ‘Preliminary Observations’ that, in addition to deductive reasoning or reliance upon the intention or upon the exercise of good faith (subjective criteria), the Roman jurists were thoroughly familiar with the processes of thought which today are included within sociological jurisprudence, or as he terms it, the jurisprudence of interests (Interessenjurisprudenz).¹· Seidl outlines five - and there may be more-types of reasoning within this system (objective criteria); extracts evidencing these types:

Iavolenus, Libro K ex posterioribus Labeonis (D. 18.1.79)

You have sold one half of an estate on condition that the purchaser shall take a ten year’s lease on the other halfwhich you retained at a fixed annual rent. Labeo and Trebatius deny that an action on sale can be brought to enforce that which was agreed upon. I hold the contrary provided you sold the land for a lower price so that the lease could be effected for you; for this (lower) price for the land is to be regarded as a consideration that it had been sold with a condition. And this is the law we follow.

Seidl, op. cit., 362-63: relation between performance and counter­performance.

Ulpianus, Libro XIII ad edictum (D. 4.8.15)

Although the praetor in his edict should dedare distinctly that he will compel an arbiter to make an award, still in some cases he ought to listen to his reason and allow his excuse on due cause shown (for not making the award); for

27. Cf also Reggi, 'L'argomentazione per assurdo c Celso figlio', Studi Grosso VI 147-72. with reff, to further studies on deductio ad absordum, 147 nn.1-2.

28. Seidl. ‘Prolegomena zu einer Methodenlehre der Romer’, Gedächtnisschrift Schmidt 359-78. For the dispute regarding the presence of jurisprudence of interests and con­ceptual jurisprudence among the jurists, see Schwarz, ‘Begriffsanwendung und Interes­senwertung im klassischen romischen Recht’, dreh. civ. Prax. 152 (1952/53) 193-215; Seidl. ‘Moderne zivilrechtliche Lehren als Erkenntnismittel der Rechtsgeschichtc'. Festschrift Lehmann l 97-112, and ‘War Begriffsjurisprudenz die Methode der Romer?’, Arch R. Soz Phil. 43 (1957) 343-66; Kaser. Methode 64 n.74.

$134 example, if he is defamed by the litigants, or if there has arisen some deadly enmity between him and the litigants or one of the litigants, or if age or illness occurring after the charge was referred to him. or the necessity of handling his own affairs, or a journey or duty of some public service, A nd so Labeof decided}.

Seidl, op. cit., 365, and Festgabe Müller-Erzbach 104-16: decision founded on power of control (Beherrschungsvermogen, Machtlage).

Paulus, Libro XXX ad edictum (D. 15.4.2 pr.)

If, with the authorizat ion of the guardian, a loan is made to the slave of the ward, I think that if the loan was to the advantage ofthe ward, an action for what the guardian ordered (quod iussit tutor} should be given against the ward.

Seidl, op. cit., 365, and Festschrift Lehmann 101-05: decision based on the advantage (Interesse) to the party concerned.

Pomponius, Libro XXXVIII ad Quintum Mudum (D. 47.2.77.1)

If anyone has stolen another's (goods} and a third party has stolen from him that which he has stolen, the owner can sue the second thieffor theft of his pro­perty, but the first thief cannot, because (only} the owner, not the first thief, had an interest that the property which had been stolen remain untouched. This Quintus Mucius notes, and it is sound.

Seidl, op. cit., 366-68, and Eranion Maridakis 1231,232 ff.: opinion based on special consequences arising from the decision.

Iulianus, Libro XXXVI digestorum (D. 5.1.75)

If the praetor has ordered one who is sued for debt to appear, and having gone through a series of summons, shall have held that the absent defendant must pay, then a judge who hears the case for action upon the judgment cannot inquire into the grounds of opinion of the praetor; otherwise summons and decrees of the praetor will be a mockery....

Seidl, op. cit., 368 f.: opinion based on the general consequences which would arise from the decision.

Seidl goes on to illustrate the employment of subjective rather than objec­tive criteria in reaching a decision, namely, laying weight on the intention of the parties or the element of good faith, and he concludes his survey by noting that, in late classical times at least, the jurists, particularly Ulpian, employed deductive reasoning from concepts or from general rules to arrive at a decision.

Sufficient examples from the writings of the jurists have been set forth above to indicate that no method of reasoning, objective or subjective, topical or axiomatic, associative or logical, seems to have been overlooked.

If not mentioned above, that does not mean that the Roman jurists did not employ it. Modern scholars continue to delve into the subject: the methods employed by the jurists in arriving at their decisions?* The surveys of this relatively new field of endeavor by Kaser and by Crifd are undoubtedly the precursors of many others in the future?⁰

E.