The Pontiffs and the Beginnings of Jurisprudence

The central role of the pontiffs in the interpretation and application of customary law shows the interconnection of religion and law in the archaic age.

During this period all legal knowledge was confined to their college and was handed down to new members by tradition and instruction. As guardians of ancestral tradition, the pontiffs alone knew all the laws, the forms of actions and ritual techniques, the court calendar and the authoritative opinions their predecessors had rendered in the past. Thus, it was to them that private citizens had to go to obtain advice on whether specific rules of law applied to their particular case and the correct procedure in litigation.^{^[93]}

In the period following the enactment of the Law of the Twelve Tables, the population mass and intricacy of Roman society proliferated. Thus, the old rules proved increasingly inadequate for fulfilling the requirements of social and commercial life. But the Romans did not respond to the need for legal change by replacing the Law of the Twelve Tables with fresh legislation. As noted, the Romans were conservative and extremely careful in their approach to legal matters. They were attached with great tenacity to the Law of the Twelve Tables, which they considered as the foundation of their legal system. Although legislation introduced some new rules, interpretation was the chief means of changing the law (especially in the field of private law). Because a close connection still prevailed between the legal and religious spheres, it is unsurprising that the interpretation of the law and its deriving actions lay in the hands of the pontiffs. Through skilful interpretation of the provisions of the Twelve Tables and later statutes, the early jurists filled the gaps in the law and also succeeded in infusing the old rigid rules with new substance, thus adapting them to changed conditions.

The influence of the pontiffs on legal development was also connected with their role in the administration of justice.

The Romans construed the term lex as a formal act of the people that required or permitted a magistrate to enforce a right (ius), which was demanded in a particular way by a particular procedure. In the archaic period the principal method for obtaining a ius was the legis actio (literally, an action based on the law)—a ritual procedure that was conducted orally and divided into two distinct phases. The first phase (in iure) originally proceeded before a pontiff or, according to some scholars, a consul. This official determined on the basis of the applicable law whether the plaintiff could initiate legal action and, if so, its required form.^{^[94]} In the second phase (apud iudicem) a private judge (iudex), appointed by both the pontiff or magistrate and the relevant parties, considered the evidence and decided the case within the frame set by the pontiff or magistrate. In the in iure phase of the proceedings the plaintiff had to couch his claim in set words, and the defendant also replied in set words—this formed the actual legis actio. If a party used the wrong legis actio or departed from the set form, his claim was rejected. The pontiffs possessed knowledge of the word forms that could be admitted as efficacious. They could expand or restrict the scope of a legis actio by construing it broadly or narrowly as required by the needs of the relevant case. This was rendered possible by the fact that, despite the emphasis that archaic law attached to the letter of the law and the forms of action based on it, there was a tendency to permit a slightly greater degree of freedom in legal proceedings than was allowed in purely religious ceremonies—at least in the era when the legis actio emerged as a definite form of procedure.^{^[95]}

A well-known illustration of law-making through interpretation is the method devised for releasing a son (filiusfamilias) from his father’s control (patria potestas). As Roman society developed in complexity, cases emerged where a son’s absolute dependence on the father regarding his legal position had to be overcome so as to sustain the healthy functioning of economic life.

Originally, the power of the paterfamilias over his children (and also over his grandchildren and more remote descendants) entailed complete control over them. Only the father had any rights in private law—he alone was entitled to own property, including all the acquisitions of the subordinate family members. As economic conditions changed, this rigid system could not be absolutely sustained in practice. The problem was resolved by the constructive interpretation of a certain clause of the Twelve Tables that was apparently designed to protect a son against a father who misused his power. A father could consign a son to another person for money on the understanding that the son obtained manumission upon completion of work for that person. Following the manumission, the son returned automatically into the potestas of his father and the sale process could be repeated. Table 4.2 limited this right of the father by stating that if a father sold his son three times, the latter acquired freedom. The pontiffs seized on this provision and engaged the pretence of interpretation to introduce the rule that if a father completed a fictional threefold sale of his son to another person, the son after the third alienation and manumission gained release from the partia potestas and became style='font-style:italic'>sui iuris (in control of his own affairs).^{^[96]} This example displays how a legal provision was utilized to achieve a purpose quite different from that originally contemplated by the legislator and how, through interpretation, a new norm was created as required by altered conditions.^{^[97]}While the pontiffs retained their monopoly in legal matters, it was mainly through their interpretations that innovations in the field of private law could be effected. At the same time, the pontiffs’ activities as interpreters of the law forged the groundwork for the subsequent development of Roman legal science.

According to Roman tradition, the pontifical monopoly of legal knowledge came to an end after the publication in 304 bc by a certain Gnaeus Flavius, clerk of Appius Claudius (a prominent patrician who was appointed censor in 312 bc), of a collection of formulas and ritual words that were recited in court when litigation took place (ius civile Flavianum).

Although any alert citizen must have known a great deal of the information embodied in the ius Flavianum, it was now rendered official and the jurisdictional magistrates could no longer refuse what all the people would know to be the law. From the late third century bc, an increasing number of leading Roman citizens adopted the practice of proffering legal advice without being members of the pontifical college. Around 200 bc one of these jurists, Sextus Aelius Paetus Catus, consul in 198 bc, published a book containing the text of the Twelve Tables, the interpretations of its rules by the pontiffs and secular jurists and a list of the legal forms employed in civil procedure. This work, known as ius Aelianum, marks the beginning of Roman legal literature and the transition from the unsystematic approach of the earlier priest-jurists to a new approach that may be termed scientific.^{^[98]}

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

The Pontiffs and the Beginnings of Jurisprudence

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