The Law of the Jurists

As previously noted, during the first two centuries of the imperial age the work of the jurists was the most creative element in Roman legal life.

However, 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. This development was generated by a combination of factors: the disturbed condition of the Empire; the crisis of the political system of the Principate and the growing absolutism of the emperor who sought to make himself the sole source of legal progress; and the gradual abandonment of the Roman tradition of distilling legal norms from the body of individual cases in favour of a system where decisions in individual cases were controlled by previously formulated general rules. In the Dominate epoch, earlier juristic works were regarded as a body of finally settled doctrine that could be applied in a case at any time. This body of law existed as a synthesis created by the juristic interpretation of rules and principles established by the former agencies of legislation (custom, statutes, senatorial resolutions, magisterial edicts). It constituted a single ‘jurists' law' (ius) that was now evolved in contrast with the law contained in the enactments of the emperors (lex). However, it would be a mistake to conclude that the decline of jurisprudence in the later imperial age was tantamount to a collapse of legal culture in general. Lawyers were still essential in the imperial court, the various government departments, and those agencies in Rome and in the provinces that controlled the administration of justice. But it is clear that in the period under consideration the social position of the lawyers and the character of their work had radically changed. These new lawyers abandoned the legal practices they inherited as members of the senatorial aristocracy, experts in law, and representatives of a great and living tradition: they no longer worked as individuals who presented opinions on legal problems and recorded them in writing.

These lawyers were mere state officials, anonymous members of a vast bureaucratic apparatus, who simply prepared the resolutions for issue in the name of the emperor.

New Roman">In the fifth century, legal scholarship experienced a period of revival centred around the law schools of the Empire. The first law school was probably founded in Rome in the late second century and a second such school was later established in Beirut during the third century. As the administrative needs of the Empire grew (especially after Diocletian’s reorganisation of the administration), new law schools were established in places such as Alexandria, Caesaria, Athens and Constantinople in the East; and Carthage and Augustodunum in the West. Particularly at the law schools of Constantinople and Beirut, the study of classical legal science was resurrected in a systematic fashion. Initially, tuition at the law schools was delivered in Latin but from the early fifth century Greek replaced Latin as the language of instruction. The teaching was conducted by professional law-teachers (antecessores), and the courses offered were components of a fixed curriculum that focused entirely on the study of classical juristic works and imperial constitutions. First, the Institutes of Gaius were discussed and then followed the study of the classical jurists’ opinions ad ius civile and ad edictum embodied in collections (with special attention to the works of Papinianus and Paulus). In the final year, the focus converged on the study of current law and this involved an examination of imperial constitutions dating from the middle of the second century ad. The method of instruction was similar to that used in the schools of rhetoric: a classical work was discussed and clarified step by step and, when possible, compared or contrasted with other relevant works. In this way, general legal principles were formulated and applied to resolve specific problems of law arising from actual or hypothetical cases.

At the end of their studies that spanned a maximum of 5 years, students were awarded a certificate that entitled them to serve as advocates in the courts or to join the imperial civil service. Over time, the professional lawyers educated in the law schools (causidici, advocati) replaced the earlier orators (oratores) whose training in law was usually only elementary.^{^[87]}

The study of the classical authorities at the law schools of the East engendered a new type of jurisprudence concerned not so much with developing new legal ideas but with understanding and expounding the classical materials in light of the needs and conditions of the times. Despite its lack of originality and its tendency towards simplification, post-classical legal science did succeed in resurrecting genuine familiarity with the entire classical inheritance and facilitating its adaptation to the conditions of the times. The new insight into the essence of the classical law enabled court lawyers trained at the law schools to enhance the technique of imperial legislation and successfully tackle the task of legal codification. It was largely through the work of the late imperial jurists that the spirit of classical legal science was preserved and found its way into the codification of Justinian and thereby into modern law.

The juridical literature of the later imperial age consists largely of compilations of assorted extracts from earlier juristic texts designed to render the works of the classical age more accessible to students and legal practitioners. The authors of these compilations (whose names remain largely unknown) selected parts from the original texts that would appear relevant to contemporary readers, whilst other parts were reproduced in a summary form or altogether omitted if they were deemed useless or superfluous. Occasionally new passages were added to render the material more intelligible or adapt the classical texts to changed conditions.

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.^{^[88]} 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.^{^[89]} 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.^{^{New Roman",serif;color:black'>[90]}} 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.^{^[91]} 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.^{^[92]} 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.^{^[93]}

In spite of the existence of the above-mentioned collections, the application of the jurists' law was beset by serious problems. First, the sheer vastness of the classical literature made it virtually impossible for the average lawyer to familiarize himself with the material. Furthermore, the juridical literature comprised a highly extensive range of opinions that often contained contradictory viewpoints. Judges were required to support their decisions by reference to established authority, and often faced the problem of choosing between two or more conflicting sources that appeared to be equally authoritative. The problem was exacerbated by the fact that at a time when legal texts circulated only in manuscript copies, many works attributed to classical jurists were actually not composed by them. This situation caused much confusion in the administration of justice and also opened the door to abuse, as unscrupulous advocates often sought to deceive judges by producing captious quotations from allegedly classical texts.

This prompted the urgent need for a more reliable and efficient way of recognizing those works that formed part of the authoritative classical literature and the appropriate solution to adopt if the authorities conflicted in their opinions. The emperors responded to this need by introducing a series of laws: in ad 321, Emperor Constantine decreed that the critical comments (notae) that the jurists Paulus and Ulpianus had made in connection with the responsa collection of Papinianus were no longer to be used.^{^[94]} However, a year later Constantine issued another enactment confirming the authority of Paulus' other works (especially the Sententiae).^{^[95]} In the end, these measures proved inadequate. Theodosius II (Eastern emperor, ad 408-450) and Valentinian III (Western emperor, ad 423-455) thus formulated a new law on the subject in ad 426. The effect of this so-called Law of Citations was that the works of Gaius, Papinianus, Paulus, Ulpianus and Modestinus were made the primary authorities and the only ones that could be cited in a lawsuit. Gaius was the only jurist of the middle Principate period to be chosen, probably because his work was popular and well known. The other jurists belonged to the later Principate period and so manuscript copies of their works must have been readily available. If the authorities adduced on a particular issue disagreed, then the majority view prevailed; if numbers were equal, then the view of Papinianus had to be followed and only if Papinianus was silent was the judge free to make a choice himself.^{^[96]} Although the Law of Citations did not provide a definite solution, it imparted a measure of certainty to the administration of justice and remained in force until the time of Justinian.

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Source: Mousourakis G.. Fundamentals of Roman Private Law. Springer, 2012.— 366 p.. 2012

The Law of the Jurists

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