The Jurists' Law
As has already been observed, in the later imperial era Roman jurisprudence was no longer a living source of law and the place of the responses of the jurists had been taken by the letters of the emperors on legal and judicial matters.
The juristic works of the classical period were now regarded as a body of finally settled doctrine which could be applied in a case at any time. This body of law, which was taken to incorporate legal rules and principles established by the former agencies of legislation (leges, senatus consulta, ius honorarium), was termed ius, in contradistinction with the law contained in the enactments of the emperors, referred to as lex. However, the application of ius was beset by serious difficulties. The classical jurists had left a vast body of literature containing an extensive range of opinions which often reflected conflicting viewpoints. The situation was exacerbated further by the fact that, at a time when legal texts circulated only in manuscript copies, there were many works which were attributed to classical jurists but which in actual fact had not been written by them. Judges, whose decisions were expected to be based upon established authority, often found themselves confronted with the problem of having to choose between two or more conflicting sources, all regarded as being equally authoritative. This situation created a great deal of confusion as to the state of the law and invited abuse, as advocates often sought to confuse or deceive unskilled judges by producing captious quotations from what they alleged to be classical texts. What was urgently needed was a way of finding which works formed part of the authoritative classical literature and which approach was to be adopted if the authorities conflicted in their opinions.[1155] [1156]The emperors tried to deal with these problems through a series of legislative enactments prescribing which juristic works should be relied upon by the courts and what weight should be accorded to different sources.
Thus, a law issued by Emperor Constantine in 321 AD deprived of validity the comments of Paul and Ulpian on the works of Papinian, thus making the latter jurist supreme.[1157] In 328 AD another enactment of Constantine confirmed the authority of the works of Paul, and especially the sententiae, a collection of pronouncements and rules attributed to this jurist.[1158] By far more comprehensive was an edict issued in 426 AD by Theodosius II and Valentinian III, which became known as the Law of Citations.[1159] By this statute the imperial government sought to fix once and for all the degree of authority that was to be accorded to the classical texts. Thus, it was proclaimed that the opinions contained in the writings of the four leading jurists of the late classical period, namely Papinian, Ulpian, Paul and Modestinus, as well as those of Gaius, should be regarded as binding. If the authorities adduced on a legal question were divided, the judge was to adopt the view of the majority, while in the case of a tie, priority was to be given to the opinion which had the support of Papinian. If the opinions adduced were equal in number on each side and no relevant utterance of Papinian could be found, then it was left to the judge to determine at his discretion which of the solutions proposed was to be preferred. The same law also provided that opinions of other jurists quoted by the five principal jurists might also be relied upon, provided that their authenticity could be verified. This meant that if any of the five principal jurists quoted with approval the opinion of a jurist outside the five then he made that opinion his own, and it was so to be taken on the condition that the accuracy of the quotation was confirmed through a comparison of manuscripts. The Law of Citations achieved a measure of uniformity and predictability in the administration of justice. However, the mechanical treatment of legal authorities which it adopted provides a clear indication of the low level to which jurisprudence had sunk and shows the preponderance of dogmatism over creative legal thinking that marks the character of post-classical law.
More on the topic The Jurists' Law:
- CHAPTER VIII The Jurists and Jurists’ Law
- Post-classical jurists and law-schools
- The Law of the Jurists
- The Law of the Jurists
- It is difficult to provide a comprehensive and finite list of the sources of Roman law, since the Roman jurists never defined the term 'source of law' and different sources were emphasized at certain periods in the history of the Roman legal system to reflect their prominence as instruments of legal reform.
- C. THE INDIVIDUAL JURISTS
- I THE JURISTS AND THE LEGALPROFESSION
- I THE JURISTS
- Other republican jurists
- The Roman Jurists
- THE JURISTS IN THE CLASSICAL PERIOD
- The work of the jurists