The Jurists of the Late Republic

As previously noted, during the archaic era knowledge of the law and the rules governing legal procedure was confined to the priestly college of the pontiffs.

After the enactment of the Law of the Twelve Tables and the introduction of the system of legis actiones the authoritative interpretation of statutory law and the conduct of the actions at law remained within the province of these priests.^{^[124]} According to Roman tradition, the pontiffs’ monopoly of legal knowledge ended in 304 bc when Gnaeus Flavius published a manuscript containing the procedural formulas and ritual words employed in litigation. In c. 253 bc Tiberius Coruncanius, the first plebeian pontifex maximus, began to discuss cases and to give legal advice in public (publice profiteri) in such a way that the knowledge he imparted became common to all.^{^[125]}Thereafter, an increasing number of secular jurists (jurisprudentes or iurisconsulti)^{^[126]} engaged in furnishing legal advice and by the end of the second century bc they had supplanted the original interpreters of the law. These jurists were members of the Roman aristocracy and were actively involved in politics. Like the pontiffs before them, they received no remuneration for their services for they considered it their civic duty to assist citizens who sought their legal advice. Although jurisprudence did not become a profession through which one could earn a living, it provided an important outlet for members of the nobility who sought to distinguish themselves in social and political life. Because of the respect and honour they gained through their activities, these individuals were able to increase their influence among their fellow citizens and, by widening the circle of their friends and dependants, to win their way to high office.

Cicero declares that jurists had to be skilled in three respects in matters of law: agere, cavere and respondere.^{^[127]}

Agere (literally, to act) meant managing a legal cause or suit.

The jurists gave help on matters of procedure and prepared the forms that had to be used by the parties to lawsuits. As noted previously, in the archaic era a person initiating a lawsuit was required to fit his claim within one of the set forms of action prescribed by the law. The rigidity of this system considerably limited the scope of juristic intervention. However, a new flexible system of procedure for initiating legal actions emerged in the second century bc. Under this system, the final settling of the plaintiff’s statement of claim was an extremely technical process and this provided broad scope for the intervention of the jurists in litigation. It is important to note, however, that the jurists very rarely argued cases in the courts—this task was left to the oratores.^{^[128]}

Cavere (literally, to take precautions) meant the drafting of legal documents, such as contracts and wills, designed to preserve a person’s interests by protecting them against certain eventualities. This cultivation of forms was one of the most important contributions of the jurists to the development of legal thinking and language. It was mainly through this work of form development over the centuries that Roman legal speech attained its perfection.

Respondere (literally, to answer) meant giving advice or opinions on questions of law. A practice applicable to every field of Roman life was that an individual would elicit the advice of competent and impartial persons when contemplating a serious decision. Thus, the jurists gave responsa or replies to private citizens involved in lawsuits or other legal business that required attention, and to jurisdictional magistrates and the judges (indices) appointed to decide particular cases.^{^[129]}The responsa were expressed in a casuistic form: the jurist restated the factual aspects of the case in such a way to illuminate the legal question presented to him.

By drawing on the wealth of legal principles applied in the past or encountered within his own experience, he rendered a decision that only obliquely referred to the principle or rule that supported it. It should be noted that the casuistic form in which the responsa were expressed entailed considerable differences of opinion among individual jurists with respect to certain matters.^{^[130]} In many cases, opposing points of view were adopted by contemporary or later jurists. Many of these controversies persisted for decades or even centuries.^{^[131]}

Besides the practical activities outlined above, the jurists were occupied by two further tasks that were instrumental in the development of Roman law: the education of those aspiring to enter the practice of law, and the composition of legal works.

Legal education in republican Rome had a largely practical orientation; there was neither theoretical nor academic legal training or educational institutions where law was formally taught.^{^[132]} Upon completion of their basic education, young men would enter the household of a jurist to live with the family. They would attend consultations when clients sought legal advice, and accompany the jurist to the marketplace where they observed him imparting legal advice, drafting legal documents and assisting parties in legal proceedings. In this way, students acquired knowledge of the law through contact with legal practice and professional tradi- tion.^{^[133]} Sometimes, the jurists gave opinions when their students raised purely hypothetical cases for discussion. These opinions were almost equal in influence to those given on real facts, and possibly helped to develop Roman law in new and unique directions.

From the second century BC, prominent jurists began to compile books of responsa that they had issued and were applied in practice (especially those ratified by virtue of a judicial decision).

The need to create such collections derived from the fact that in Rome the administration of private law was not closely regulated by the state and hence judicial decisions were not formally collected on behalf of the state. In their collections the jurists sometimes included summaries of important cases, and recorded the relevant court decisions and the opinions rendered to the parties concerned. The jurists also composed various commentaries or treatises on different branches of the law and, over time, a large body of legal literature materialized. The emergence of legal literature is associated with the influence of the Greek culture and science on the Roman aristocracy that encompassed the jurists. It is important to note that the contributions of the jurists are not evenly distributed over the whole field of law; private law and civil procedure patently dominate, whereas many areas of public law were never the object of the same intensive analysis and constructive development.

As the foregoing discussion suggests, Roman jurisprudence evolved largely from legal practice with a notable contribution from the discussion of individual cases. A distinction is usually made between two types of juristic method: the empirical or casuistic and the deductive. The Roman jurists were typical representatives of the former method. When dealing with legal problems, they resorted primarily to topical rather than axiomatic argument. If a legal rule or concept is formed by logical reasoning from basic principles or axioms, it invokes axiomatic argument. Topical or problem reasoning, on the other hand, occurs when one proceeds from the case to identify the premises that would support a solution, and then formulates guiding principles and concepts as a basis for attaining a solution. The rules and concepts devised in this manner are not rigid and inviolable but are subject to change, depending on the circumstances of the relevant case.

Moreover, it is generally believed that the Roman jurists reached their conclusions intuitively. This intuitive grasp of the law is attributed to the Romans’ innate sense for legal matters, and to the jurists’ experience with the everyday practice of the law. However, one should not construe Roman jurisprudence as a merely pragmatic, unprincipled case law or believe that Roman decision-making was based solely on free and creative intuition. The greatest achievement of the Roman jurists was their ability to extend beyond the accidental elements of the relevant case to illuminate the essential legal problem as a quaestio iuris. As the jurists gradually acquired familiarity with Greek philosophy and the intellectual methods and tools the Greeks had created, they developed a systematic approach to legal knowledge and to handling legal problems. Thus, acquaintance with the logical syllogism (or reasoned conclusions) enabled them to construct legal concepts in a deductive manner. The jurists engaged the dialectical method: a form of logical analysis that both distinguished between various concepts and subsumed those sharing the same essential characteristics under common heads. This fostered their learning to divide (into genera and species) and define juridically relevant facts, and thereby distinguish and categorize juridical concepts. Moreover, awareness of the sociological function of law led the jurists to attach more emphasis on equity (aequitas), good faith (bona fides) and other general guiding principles.^{^[134]} The jurists’ tendency towards systematization not only allowed them to present their casuistic approach in a more simple and elegant manner, but also helped to improve their decisionpropositions. This improvement in decisions was closely connected with the requirement for integration in the growing empire and the need to adapt the legal system to its deriving socio-structural changes.

A celebrated jurist of the later republican period was Quintus Mucius Scaevola, pontifex maximus and consul in 95 bc.

Scaevola is declared to have been the first jurist who endeavoured to systematize the existing law in a scientific fashion. Unlike earlier jurists, he did not confine himself to the discussion of isolated cases or questions of law. Rather, he made great efforts towards a higher level of generalization and ventured to introduce more definition and division. In his comprehensive treatise on the ius civile, he assembled related legal phenomena and principles under common headings. He also distinguished the various forms of appearance of these broader categories. For instance, he first defined the general features of possession, tutorship and so on, and then described their various individual forms (genera) existing in the legal system. He also seems to have written a book that featured brief definitory statements (horoi) indicating the decisive factual moment (horos) of a certain legal consequence or decision.^{^[135]}Scaevola is also attributed with formulating certain standard legal clauses and presumptions, such as the cautio Muciana (a promise by a legatee that he would return the legacy if he acted against the attached condition) and the praesumptio Muciana (the presumption that all the property a married woman possessed was furnished by her husband, until the contrary was proved). As governor of the province of Asia, Scaevola also composed a provincial edict (edictum provinciale) that was used as a model by other provincial governors. Scaevola’s work was an important step forward as it introduced a scheme of law conceived as a logically connected whole alongside the collections of precedents and isolated legal rules. It had enduring influence and commentaries on it were still written as late as the second century ad.^{^[136]}

Other distinguished jurists of the later republican period included: Manius Manilius, consul in 149 bc, whose work venalium vendendorum leges (‘conditions of sale for things capable of being sold’), mainly elaborated model formulae relating to contracts of sale^{^{New Roman">[137]}}; M. Porcius Cato Censorius, consul in 195 bc and censor in 184 bc, whose work de agricultura (‘on agriculture’) comprised forms and precedents for drafting agrarian contracts; the latter’s son, M. Porcius Cato Licinianus, who authored a celebrated treatise on the ius civile (de iuris disciplina)^{^[138]}; M. Junius Brutus, praetor in 142 bc, who wrote books on the ius civile^{^[139]}; Gaius Aquilius Gallus, praetor in 66 bc, who introduced the action and exception of dolus (a term that merges the ideas of fraud, abuse of right, and the general concept of tort)^{^[140]}; C. Trebatius Testa, a friend of Cicero’s, whose work on the ius civile was highly regarded by the classical jurists^{^[141]}; P. Alfenus Varus, consul in 39 bc, who produced an extensive work (Digesta) in 40 books^{^[142]}; Servius Sulpicius Rufus, consul in 51 bc, whose writings included an important commentary on the praetorian edict^{^[143]}; and P. Rutilius Rufus, consul in 105 bc, who devised the bankruptcy procedure described by Gaius (actio Rutiliana).^{^[144]} Only a few scattered and fragmentary traces of these jurists’ works survive through the writings of jurists from the classical period embodied in the Digest of Justinian.^{^[145]}

2.3.4

<< | >>

↑

Source: Mousourakis G.. Roman Law and the Origins of the Civil Law Tradition. Springer,2015. — 339 p.. 2015

The Jurists of the Late Republic

More on the topic The Jurists of the Late Republic: