The Roman Jurists

Cavere

One of the core tasks of the Roman jurists, in addition to advising the parties on forms of action in litigation (agere) and giving legal opinions (respondere), was cavere.

For the transactions preserved in the archive of the Sulpicii, Camodeca observes that they were based on templates which were the product of local cautelary legal practice.^[257] In Roman Egypt new legal templates or formulas were not the work of jurists but were designed by documentary scribes who were capable of adapting them to the commercial and financial needs of the transacting parties. Rupprecht warns us that ‘the role played by these scribes in furthering private economic activity should not be underestimated' and gives the example of the development of the hypallagma as a less strict form of real security than the older hypotheke.^{[258] [259]}

Respondere

The emergence of the so-called ius respondendi—the privilege of certain jurists to give opinions which were binding on judges—may be linked to the decline in praetorian standards of which the first signs appear in the early Principate.12⁷ As early as during the Republic, iudices would be under a moral compulsion to follow the advice of the jurists. But where jurists would give their advice ex auctoritate Augusti, this compulsion ‘would be not just moral and qualified, but political and absolute'.^ In his treatise on legal history, Enchiridion, Pomponius devotes a large passage to the ius respondendi and declares that ‘it was the deified Augustus who, in order to enhance the author­ity of the law, first established that opinions might be given under his authority'.^ Pomponius also refers to a rescript by emperor Hadrian ‘on an occasion when some men of praetorian rank were petitioning him for per­mission to grant opinions'.

Gai. Inst. 1.7 Responsa prudentium sunt sententiae et opiniones eorum, quibus permissum est iura condere. quorum omnium si in unum sententiae concurrunt, id, quod ita sentiunt, legis uicem optinet; si uero dissentiunt, iudici licet quam uelit sententiam sequi; idque rescripto diui Hadriani significatur.

Juristic answers are the opinions and advice of those entrusted with the task of building up the law. If the opinions of all of them agree on a point, what they thus hold has the status of a statute; if, however, they disagree, a judge may follow which opinion he wishes. This is made known in a rescript of the Emperor Hadrian.

Like Pomponius, Gaius refers to a rescript by Hadrian, which rules that the communis opinio of those jurists who have been allowed to iura condere is a binding source of law. Only if on a particular question of law there is no unan­imi ty is the iudex free to decide which opinion to follow. Pomponius and Gaius seem clear enough. However, for various reasons (corruption of Pomponius's text; Gaius's text is not on ius respondendi but on communis opinio; there is no mention in other sources) part of modern literature holds that the existence of the ius respondendi cannot be reasonably assumed.^{[260] [261] [262] But even if it did not exist, the interpretation and elaboration by the jurists of the formal sources of law (e.g., leges, praetor's edict, and imperial constitutions) would normally be followed in the Roman courts. To give but one of many examples: in a constitution from 223 ad Alexander Severus says that, although the produce of pledged land is (in the absence of an express term in the pledge agreement) impliedly pledged, ‘nevertheless no jurist has held (nulli prudentium placuit) that land purchased with the money derived from such produce is also included for the same purpose' (Alex.}

In his History of Roman Legal Science, Schulz observes that ‘[t]he heroic age of creative geniuses and daring pioneers had passed away with the Republic'.¹¹¹ For the law of pignus and hypotheca this observation does not do justice to the contribution of the classical jurists. It is true, most of the remedies for pledge (interdictum Salvianum, interdictum de migrando, actio pigneraticia directa, and, most importantly, actio Serviana) were created by the republican jurists. However, hypotheca, multiple pledge, ius offerendi et succedendi, pignus nominis, and the general pledge were all the result of the classical jurists applying their creative powers to the accommodation of transactional prac­tices. Much of these variants of pignus required adaptations of the standard form of action of the actio Serviana, which would have been impossible with­out the expertise of the jurists. They were often part of the emperor's consilium or members of the imperial chancery. For instance, in the second century ad, Julian had been a member of the emperor's consilium, tribune of the plebs, praetor, prefect of the treasury, consul, and provincial governor.^{[263] [264] [265] [266] [267] [268] It was at the request of emperor Hadrian that Julian drafted the Edictum perpetuum. In the third century ad, both Papinian and Ulpian were, among other things, procurator a libellis and praetorian prefect?35 One thing did not change, how­ever: the impartiality of their legal opinions. Also in the Principate it was expected from the jurists that they acted as legal experts, whose task it was to give an objective statement of the law?36 They were not supposed to represent the interests of one particular party or the state, even though during the course of the Principate they increasingly earned their income from giving legal advice to magistrates and citizens, or were (like Julian, Papinian, and Ulpian) engaged by the emperor in high positions within the imperial admin­istration.}

Litigation, praetor's edict, and imperial chancery

In individual litigation, the jurists would advise the litigating parties in choos­ing the right action and other remedies, advise the praetor in granting these remedies, provide their advocates with legal ‘ammunition', and counsel the iudex in applying the actions and remedies to the case at hand?3⁸ The indi­vidual forms of action as well as the praetor's edict as a whole were the cre­ation of the jurists.13⁹ The forms of action included in the praetor's edict were largely written in a highly technical and very concise language confined to the essential elements of the remedy concerned. This language was devised by the jurists for the jurists: it was their task to interpret this language, apply it to concrete cases, and generally to secure its accessibility to the public. In the framing and maintenance of the forms of action the jurists of the late Republic and the early Principate used their ‘highest creative powers’.^[269] The jurists had, already at the time of the late Republic, developed from mere ‘expert witnesses’ on the content of the law to the ‘effective determiners of law’Thi In the Principate, when most standard forms of action had more or less become settled, the drafting of forms of action in individual cases would have been routinely performed by ‘lesser’ jurists or scribesTh² The first ranking jurists mainly ‘determined’ the law in their legal opinions and (from Hadrian) in the imperial chancery. On those rare occasions in the classical period where a new action (e.g., actio pigneraticia contraria) was created outside the praetor’s edict, or the scope of an existing one was significantly changed (e.g., actio Serviana utilis), the jurists would have been materially responsible for this.

After the codification of the praetor’s edict the jurists would largely be responsible for the substance of the imperial ius novum. Before Hadrian they would advise the praetor in compiling the edict; after Hadrian they would prepare the rescripts and other constitutions. The ‘codification’ of rescripts only took off under Diocletian, whose rescripts were often more directed at stabilizing the law than reforming itTh³ Moreover, rescripts carried out the same function as the unanimous opinions of authoritative jurists, which (since Hadrian) were binding for judges on questions of lawThi Although in this period the balance between jurisprudence and imperial politics tipped in favour of the latter, the jurists would remain instrumental in answering questions of law and formulating new legal rules.¹'¹⁵