THE IUS GENTIUM AND THE ADVENT OF JURISTS

Where one or both of the parties was not a citizen, it was inappropriate to apply the traditional civil law to their disputes. At first, when non­citizens were relatively rare, the Romans resorted to the fiction that the foreigner was a citizen in order to bring a case within the scope of the civil law.

The civil law was the proud possession of Roman citizens and could not be extended indiscriminately to peregrines. In the third century bg citizenship was a privilege that marked off Romans from other peoples and Romans were expected to observe higher standards of conduct than others. Livy (34.1) records that an Oppian law of 215 bg required Roman matrons to wear simple dress without ornament, while peregrine women walked the streets of Rome in purple and gold. Disputes involving per­egrines had, however, to be settled by recognised rules.

The Romans solved the problem in a typically pragmatic way by the recognition that Roman law consisted of two kinds of institutions. There were first those legal institutions, such as traditional ceremonies for the transfer of property from one person to another, which were peculiarly Roman and therefore must be reserved for citizens. There were also other institutions of Roman law, such as many of those derived from praetorian remedies, which were considered to be found in the laws of all civilised people.

The iss gentium was available to citizens and non-citizens alike. The notion enabled the Romans to deal with the practical problem posed by peregrines living under Roman government. Later, when they specu­lated about why such rules were universally recognised, they suggested that the reason must be that they were based not on traditional practice but on the common sense, or ‘natural reason', which all men shared as part of their human nature. Thus the ‘law of nations' was sometimes characterised as natural law (iss natstale}. It came to be accepted that the law of nations and natural law were similar, except for the institution of slavery. This was an institution which was recognised in all ancient soci­eties, and was therefore clearly part of the law of nations, but it was equally clearly not something dictated by common sense and so could not be part of natural law.

In the later republic the formulary system and the supplementary remedies available to litigants became increasingly technical and there was a need for specialist experts to give advice where it was needed. Neither the praetor nor the isdex, nor the advocates who represented the parties before them, were trained in the law and all of them needed expert help from time to time. From the second half of the third century we hear of a class of legal experts, jurists, who had no formal role to play in the administration of justice but who were prepared to explain the law to the main players in the legal drama. At first, they were not paid but regarded their work as a form of public service. They took over the func­tion of being custodians of the law from the pontiffs but, unlike the pontiffs, they acted openly and in public.

The work of the Roman jurists was from the beginning concerned with cases which had given rise to legal problems. Their function was to suggest formulae or defences, appropriate for a particular fact-situation, and to draft documents, such as wills or contracts, which would achieve the effect that the parties desired and have no other, undesired, effect. The opinions of these late-republican jurists depended entirely on their personal reputation and those of the more authoritative jurists were col­lected together in Digests, for reference in similar cases that might arise in the future. The jurists were largely concerned with private law and did not normally deal with public or criminal or religious matters. The law relating to these topics was, as it were, ‘factored out' of the civil law, which became synonymous with private law.

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