II - Roman Iurisprudence

7/28/2019 II - Roman Iurisprudence

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Rom an Jurisprudence Tilaws will apply equally to wills, agreements, contracts and every form ofdocum ent; nay, it will apply even to verbal agreemen ts. (7,5,5-6)

The systematic division of the topic, the implied distinction betweenobscurity and ambiguity, and the explicit extension of the topic to covernot merely laws but all legal instruments show a level of sophisticationin legal theory considerably higher than what one sees in Cicero's earlywriting. This is hardly surprising, considering that none of the greattheorists whose work survives in Justinian's Digest, with the exceptionof Quintus Mucius Scaevola and his pupil Servius Sulpicius Rufus, hadappeared in Cicero's lifetime; Scaevola survives only in four fragments,and Servitis not at all, although he is often mentioned or quoted withrespect by later jurists. Quintilian, on the other hand, was contemporarywith the prolific and innovative jurists of the Augustan age.Concerning conflicts of laws, Quintilian makes an important observa-tion, giving a form of what we shall recognize later as one of the basicprinciples of interpretive jurisprudence:

it is clear to everybody that one law cannot contradict another in principle (sinceif there were two different principles, one law would cancel the other), and thatthe laws in question are brought into collision purely by the accidents of chance.(7,7,2)

This is apparently the oldest surviving formulation of the principle thatthe laws valid for any com munity, taken as a wh ole, form a system whichis and must be logically consistent.4. The Development of Roman Jurisprudence

The emergence of interpretive jurisprudence as an explicit element inlegal theory had to do with three important developments which werecompleted during the Hellenistic period. There was the emergence ofpublic legal codes, there was a shift in the theory of legal status towardegalitarianism, and legal theory began to regard itself as essentially uni-versal and international rather than merely local or national in scope.In Greek and Roman pre-republican society, the locus of politicalorganization was the city-state, which had an hierarchically stratified

social structure and some form of more or less limited monarchy. Legaltheory and legal literature was the exclusive property of elite colleges of


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24 INTRODUCTIONAt Rome there were flve principal colleges, one of which, headed bythe Pontifex Maximus, was a kind of legal-political bureaucracy. The

Pontifex ("bridge builder") was overseer of the Vestal Virgins and of thecircular "house" (aedes) in which they guarded the eternal flame, thespiritual heart and hearth (focus) of the city. He was the officiant at themost solemn kind of marriage ceremony, confarreatio, used for themarriage of a certain high priest (the Flamen Dialis). He was theregulator of the official calendar. And he was chief judge and arbitratorof divine and human affairs (iudex atque arbiter...rerum divinarumhumanarumque), expounder and interpreter of the divine will. His role assupreme jurist is underscored by the coincidence of the definition of hisduties (Festus, 198) with part of the famous definition of jurisprudenceat the beginning of Justinian's Institutes: Iuris prudentia est divinarumatque humanarum rerum notitia, iusti atque iniusti scientia (1.1,1,1).

Laws were not made public until long after the founding of the republic(traditionally 509 B.C.), and then only after agitation against patricianmagistrates by the plebs. In 454 (according to legend) an embassy wassent to Athens to study the legislation of Solon, which had been enactedmore than a century earlier as a liberalization of the first Athenian publiccode, the code of Draco (621). This resulted in publication of the TwelveTables, which became fundamental law in Rome and remained theoreti-cally in force until the publication of Justinian's Corpus in the 6thcentury. The text of the Twelve Tables is preserved in Cicero's Delegibus. It was memorized by school children in Cicero's time, but bythen it must have been difficult to understand, since the Latin was archaicand its social context had disappeared. The formulae for legal actions,however, comparable to the forms of pleading in medieval English law,were still professional secrets until the late fourth century, when(according to tradition) a compilation of them by the Censor AppiusClaudius Caecus was made public by his freedman, Gnaeus Flavius, in304. Then the hitherto exclusively patrician office of Pontifex Maximuswas attained by a plebeian, Tiberius Coruncanius, who began to furnishpublic information on legal questions about 254. By this time, Rome hadmade herself mistress of the Italian peninsula and was expanding hercommercial activities throughout the Mediterranean area. Diplomaticrelations with a foreign power, Egypt, were established in 273. But


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Roman Jurisprudence 25and in 242 a special court was created for this purpose, the court of thepraetor peregrinus. The basic doctrines of international law, the iusgentium, emerged from the discretionary practices of that court.Sir Henry Maine, in a famous book on ancient law (ch. 5), character-ized the development of legal theory during this period as a movementfrom status to contract. The older civil law, he thought, made legal rightsand obligations depend largely on status: the adult male patrician head ofhousehold was the real "legal person," and all others derived whateverlegal protection they could through him. In the newer law, status becameless important and legal theory tended to rely on contract as the basicsource of rights, thus implicitly treating all parties as having equal status.There is some truth in this idea, although it relies too much perhaps onan analogy between republican Rome and eighteenth-century Europe.Differentiation by status never disappeared from Roman law; it is stillpresent in Justinian. And the main ideas in contract law are too ancientto be attributed with confidence to any particular founder or period. Butit is true that as Rome became more an international power its ownpopulation became more diverse, and its older patriarchal social structuretended to break down. Disposition of property by will gradually replacedthe older custom ary intestate succession; contracts, treaties arid legislationbecame more abundant and complex. All these developments created anobvious need for equitable methods of interpretation of legal instruments.

The internationalization of legal practice, moreover, made theinternationalization of legal theory inevitable. Jurisprudence could not re-main the professional secret of a municipal college of priests when newlaw was being openly created and applied to persons not subject to theold municipal civil law. At the same time, Roman life was stronglyinfluenced by Greek and other Mediterranean cultural and intellectualmovements. Pythagorean, Academic, Peripatetic, Stoic and Epicureanphilosophers all left their marks in Latin literature, including legalliterature. The Stoics, in particular, took a strong interest in practicalmoral and legal questions, and developed explicitly the notion of interna-tional citizenship {cosmopolis), which was a consequence of the recogni-tion of a body of international and natural law. As Rudolf Sohm well putit:


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26 INTRODUCTIONThis growth of internationalism in legal theory and jurisprudenceaffected the older civil law itself, as administered by tht praetor urbanus,

which led naturally to codifications and then to various forms ofsecondary literature designed to cope with it. The praetor's edictumperpetuum was in effect a periodically expanding code. Each praetorserved a one-year term, issuing his "edict" at the outset as a statement ofpolicy in granting or limiting legal actions not already granted or limitedin established practice. In 67 B.C. the lex Cornelia made it obligatory forthe praetor to follow these announced policies. Although the succeedingpraetor was not at first bound by his predecessor's edict, it becamecustomary to respect it; and at length the emperor Hadrian appointedSalvius Iulianus to revise what had become a voluminous edictal corpus.The revision was accomplished between 130 and 138 A.D. and submittedto the Senate for ratification. After this, no further changes in the Edictwere permitted, and the flexible elements of practical jurisprudencepassed over to the imperial household. One effect of freezing the Edict,however, was to stimulate secondary legal literature, so that after Hadrianthere was a rapid growth of commentaries on the Edict, commentaries onthe work of some particular jurist, digests, and other specialized works.Even before Hadrian, P. Iuventius Celsus produced a digest in 39volumes; that of Salvius Iulianus was 90. Under Marcus Aurelius, Q.Cervidius Scaevola produced a digest in 40 volumes; his pupil, AemiliusPapinianus, compiled 19 volumes of "responses" (responsa), 37 volumesof "inquests" (quaestiones), and other works. Papinian's pupil, DomitiusUlpianus, produced 83 volumes on the Edict, 51 on the prominentAugustan jurist Sabinus, and many other books. Fully one third of all thematerial in Justinian's Digest is drawn from the writings of Ulpian. Hiscontemporary, Iulius Paulus, produced 80 volumes on the Edict and 16on Sabinus. As might be expected, this sort of secondary literaturebecame unwieldy, and in 426 A.D. the emperor Valentinian III orderedthat only the works of Gaius, Papinian, Ulpian, Paul and Modestinus, andauthors cited by them, were to be judicially recognized. At the sametime, collections of imperial legislation and rescripts were accumulating;there was the Codex Gregorianus (c.3OO), the Codex Hermogenianus (4thcentury) and the Codex Theodosianus (438).


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Roman Jurisprudence 27jurisprudence in this regard, we must now turn to the fragments of theseworks that are preserved in the Corpus iuris civilis of Justinian.


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