THE JURISTS IN THE CLASSICAL PERIOD

The main agency of legal development in the classical period was the literature produced by the jurists, both those in the imperial service and those conducting a private practice.

The jurist-law of the classical period was marked by certain charac­teristics, which may be summarised as follows. First, there was a contin­uous succession of individuals, all dedicated to the law and each familiar with and building on the efforts of his predecessors, whose views they cited, especially when they agreed with them but sometimes when they disagreed. Secondly, they alone could be said to have a comprehensive knowledge of private law. The praetor held office for only a year, the iudex was concerned only with the facts of the cases in which he was chosen to preside and the advocates put skill in argumentation above expertise in law. Indeed, there was a tendency, exemplified by Cicero, who was a successful advocate, to sneer at jurists precisely because they seemed to be immersed in legal minutiae, such as the right to let rain­water from one's roof fall on to one's neighbour's roof. Thirdly, the jurists were concerned with the day-to-day practice of the law and could recognise when modifications or reform of the rules were needed. Although they usually had pupils, they were not academics cut off from ‘the real world'.

The classical law was thus the product of disputation. The techniques used differed according as the law was in written or unwritten form. Where the jurists were dealing with the text of a lex enacted by the republican assembly or of the praetorian edict or the text of a contract or a testament, problems had to be solved by the interpretation given to particular phrases in the text and a number of stock arguments were deployed. Should the strict letter of the text or rather its spirit prevail? Should the actual intention of the author be decisive, even when he has expressed it ambiguously, and, in that case, how should his intention be ascertained? Where the law was in unwritten form, stated in juristic opinions which did not involve a fixed authoritative text, the jurists had more scope for reformulating the law.

In the course of the transmission of our sources, much of the evidence of disagreement has not survived (minority views tend to disappear from the sources), but we do know of the existence of two schools or sects among the jurists in the first and early second centuries ad, known as the Proculians and the Sabinians. There is much scholarly debate about the basis of the differences of these schools, but they seem to have been less concerned with substantive issues than with methods. The Sabinians tended to justify their opinions by referring to traditional practice and to the authority of earlier jurists. They were primarily concerned with finding just solutions in individual cases, even if this meant abandoning logic and rationality. When interpreting texts, they were not worried if the same words were given different meanings in different texts. The Proculians, on the other hand, favoured strict interpretation of all texts and insisted that words and phrases should in every case be given an objective, consistent meaning. In the case of the unwritten law, they assumed that it was a logically coherent system of rules and looked behind the rules for the principles that lay behind them. In that way they could extend the rules by analogy to other cases falling under the same principle. Whatever their affiliation, the jurists distrusted broad state­ments of principle. This was not because they were unable to formulate them but because they understood that the wider the statement, the more there would be exceptions to its application and so there was a danger that the law would be uncertain and unpredictable.

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