The Law of the Jurists

As previously observed, by the middle of the third century jurisprudence entered a period of rapid decline and the responsa prudentium soon ceased to be a living source of law.

As already noted, during the Dominate epoch imperial legislation became the principal source of law and the sole means for modifying the current body of law. The old law (embodied in leges, senatus consulta, edicta magistratuum), created and developed by the former agencies of legislation, remained valid. However, it was customary to cite this law not by reference to the original sources, but by reference to the classical jurists' commentaries on them. Moreover, the past emphasis on the development of new law through interpretation of extant legal materials evaporated. The focus now attached to the study and elucidation of the jurists' writings from the Principate era. As jurisprudence ceased to exist as a living source of law, annihilated at its source by the absolutism of the imperial system, literary production in the legal field sank to the level of merely compiling, editing and abridging earlier juristic works. The latter were now treated as a body of finally settled doctrine that could be applied in a case at any time. This body of law was designated ius or ‘jurists' law' in contradistinction to the body of law derived from the enactments of the emperors, known as lex.

However, serious problems beset the application of ius—problems that were intensified by the general passivity of the judges in an age of absolutism, who shied away from seeking original solutions and preferred to rely essentially on established authority. But the sheer vastness of the classical juridical literature made it virtually impossible for the average lawyer to familiarize himself with the material. Furthermore, the classical works contained an extensive range of opinions that often reflected incompatible or contradictory viewpoints. Judges, who were expected to base their decisions upon established authority, often faced the problem of choosing between two or more conflicting sources that in principle were deemed equally authoritative.

In the fifth century, legal scholarship experienced a period of revival centred around the law schools of the empire.

Besides training people for functions in the civil service, the law schools cultivated a scholarly approach to law with a focus on the study and elucidation of the juristic works from the classical period that had evolved into a unitary and peculiar body of law (ius).

As previously elaborated, in the later imperial epoch the problems surrounding the application of ius were magnified by the fact that the manuscripts containing the works of the classical jurists were few and scarce. Thus these materials were not easily accessible to legal practitioners, especially those working in the provinces. Moreover, as a result of the general decline of legal culture, especially in the West, lawyers encountered increasing difficulties with handling and comprehending the language of the classical texts. Connected to these problems was the appearance of legal works that mainly embodied compilations of assorted extracts from the works of the classical jurists and intended primarily for use by students and legal practi­tioners. The authors of these works (whose names remain largely unknown) selected parts from the original texts that would appear interesting to contemporary readers, whilst other parts were reproduced in a summary form or altogether omitted if they were deemed useless or superfluous. Occasionally passages were replaced with those composed by the authors or entirely new passages were added to render the material more intelligible or adapt the classical texts to transformed conditions. From the point of view of a modern scholar, this tampering distorted rather than improved the texts. However, it must be acknowledged that from the perspective of the post-classical lawyers the classical works were largely outdated and in need of ‘modernization’. Irrespective of its form, the juridical literature of the later imperial period patently reveals one aspect: the extent to which legal thinking remained under the spell of classical jurisprudence. The legal science that existed at that time was concerned exclusively with the classical jurists, whose works were regarded with an almost religious awe by legal practitioners and judges.

Probably the most important post-classical collection of juristic writings is the so-called ‘Vatican Fragments’ (Fragmenta Vaticana) discovered in 1821 in the Vatican library. This work contains extracts from the writings of the jurists Papinianus, Paulus and Ulpianus who lived in the late second and early third centuries. It also includes imperial rescripts dating from the period ad 205-372 that were reproduced from the Gregorian and Hermogenian Codes. The texts are arranged in titles according to the subject-matter, with each title preceded by a note indicating the name of the jurist from whose work the materials were extracted or, if the text is a rescript, the name of the emperor who issued it.^[230] Another work, dating from the early fourth century, is known under the title of Collatio Legum Mosaicarum et Romanarum or Comparison between Mosaic and Roman Laws (sometimes abbreviated to Collatio). This work closely resembles the Vatican Fragments with respect to its content and composition but differs from that text as sentences from the first five books of the Old Testament (especially the sayings of Moses) are embodied at the beginning of every title. In addition, it includes texts not only by Paulus, Ulpianus, Papinianus, but also by Gaius and Modestinus. Ostensibly, the purpose of this work was to compare some selected Roman norms with related norms of Mosaic law to show that basic principles of Roman law corresponded with or possibly derived from Mosaic law.^[231] Two other works originating from the same period must also be mentioned: the Pauli Sententiae and the Ulpiani Epitome. The first mainly consists of brief pronouncements and rules attributed to the third century jurist Paulus. It covers a broad range of topics relating to both private and criminal law, and was probably used as a handbook by legal practitioners. As it is not certain whether Paulus himself ever wrote a book called Sententiae, this work is now generally assumed to be a brief presentation of Roman law extracted from the writings of Paulus by an unknown author from the latter part of the third century. We have not discovered this work directly; it exists only through citations in the Digest of Justinian and other post-classical compila­tions of law.^[232] The Ulpiani Epitome was probably an abridgment of Ulpianus’ work liber singularis regularum (Rules of Law in One Book). It was composed in the late third or early fourth century and, like the Pauli Sententiae, was probably used by practitioners. This work has reached us in an incomplete form through a manuscript dating from the tenth or eleventh century.^[233] Two important works from the East have survived: the Syrio-Roman book of law and the Scholia Sinaitica. The first was composed in Greek by an unknown author in the late fifth century and used as a textbook for students in the law school of Beirut.^[234] The second was a collection of fragments from a commentary in Greek on the work of Ulpianus’ libri ad Sabinum that was probably composed at the law school of Beirut where it was used for instructional purposes.^[235]

2.5.3