The Role of Pontifical Jurisprudence

style='font-size:9.5pt;line-height: 110%'>In the period following the publication of the Law of the Twelve Tables, new legal norms were developed chiefly through the interpretation of this law and later statutes.

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.

Even though written laws were openly displayed, the interpretation of the terse language of the Twelve Tables and subsequent enactments would be difficult even for those individuals who could actually read them. Moreover, not all relevant norms were expressly stated in the existing statutes and the technical forms prescribed for litigation were not publicly available. As guardians of customary and written law, the pontiffs alone knew all the norms, ritual techniques and documents employed in the administration of justice as well as the authoritative opinions their predecessors had rendered in the past. Thus private citizens had to consult the pontiffs to obtain advice on whether specific rules of law applied to a particular case and the correct procedure in litigation. Despite the emphasis that archaic law attached to the letter of the law and the deriving forms of action, there was a tendency to permit a slightly greater degree of freedom in legal proceedings than was allowed in purely religious ceremonies. Thus, occasionally the pontiffs employed the pretext of interpretation to expand the law to cover new situations.^{^[15]}

A well-known example of law-making through interpretation by the pontiffs 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 and own 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 Law 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 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 a release from the partia potestas and became sui iuris (in control of his own affairs). This example displays how a legal provision was utilised to achieve a purpose quite different from that originally contemplated by the legislator and how a new norm was created through interpretation as required by altered conditions.^{^[16]}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 Law 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 jurists to a new approach that may be termed scientific.^{^[17]}

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

The Role of Pontifical Jurisprudence

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