JURISTS

Part of the development of the law comes from its interpretation by experts. In the modern law, this is primarily the function of the courts. Some legal development also comes from interpretations of the law in the writings of legal scholars.

In the formative period of Roman law, as we shall see in Chapter 11, the courts were not presided over by legally trained judges. The courts could not therefore contribute to the development of the law in the way they do today. This role had to be taken by others.

In early Rome, the interpretation of the law fell within the remit of the priests. However, during the Republic a class of secular legal experts emerged, called jurists.

It should not be thought that the jurists were members a legal profession in the modern sense. Rather, the jurists were men of the upper class who took to law as their contribution to public life. Nor can they have repre­sented the whole body of teachers and advisers in the law. We know of only around seventy jurists by name, and as they constantly cited each other’s works in their own writings it seems unlikely that there are many others whose names are lost to us. This number is hardly sufficient to deal with the legal disputes that would have arisen in Rome. There must, therefore, have been many lesser legal advisers who were not recognised as belonging to the elite inner circle ofjurists.

An important respect in which the jurists differed from modern lawyers is that they did not generally represent parties in court. The actual conduct of litigation was carried out by advocates, men whose speciality was oratory rather than the law. There was some overlap, of course. Anyone acting as an advocate would doubtless pick up some of the law. The most famous advocate of them all, Cicero (106—43 Bc), was also knowledgeable in the law. Likewise, Quintus Mucius Scaevola, one of the leading jurists of the late Republic, also appeared in court as an advocate.

The jurists’ role can be said to fall into three parts. First, they were legal advisers. They advised both private parties and public officials, such as the praetor. They might also advise a judge on a case that was before him. Secondly, they were writers. The jurists wrote large numbers of books of various types. It is through their writing that they are known to us. Thirdly, they taught students, normally through a type of apprenticeship rather than through formal classes.

As the Republic gave way to the Empire, this role continued. The classical period of Roman law continued through the Principate, and most of the surviving legal writings come from this period. However, as time wore on, the jurists increasingly became part of the imperial administration, dealing with legal business on behalf of the emperor. As we shall see with the magistracies and Republican assemblies, in the Empire there was little room for legal innovation that was not under the control of the emperor. During the Dominate, lawyers for the most part are anonymous. The compara­tive lack of independent legal writing is part of the reason for the apparent decline in legal science in the Dominate, although it does seem that there was genuinely such a decline, with lawyers increasingly having difficulty working with the classical texts.

The juristic "schools"

Most or all jurists of the first two centuries ad belonged to one of two “schools”, the Sabinian school and the Proculian school. These were founded by two jurists respectively called Capito and Labeo, but they took names from two of their subsequent heads, Sabinus and Proculus. Much is unclear about the nature and functioning of these schools, including the extent to which they were primarily schools of education or schools of thought. Differences of opinion between these two schools appear through­out the surviving texts. On the whole, it can be said that the Proculians preferred an objective approach to the law, stressing rational argument from legal principles, while the Sabinians were readier to depart from adherence to principle when the facts justified it.

Gaius and the Institutional Scheme

One of the legal writers whose name has come down to us is deserving of special comment. Gaius, who lived from around 110 ad until around 180 ad, was writer of the Institutes, one of the most influential legal textbooks ever written. Until its rediscovery in 1816, the Institutes was thought to have survived only in the form of a later abridgement. However, it formed the basis of Justinian’s Institutes, considered below, and is, as far as we know, the origin of the Institutional Scheme into which accounts of Roman law (including this book) are traditionally structured.

The Institutes was written as an introductory textbook, and Gaius himself was probably a teacher. Certainly, he was not one of the circle of leading jurists, and is not referred to by any other writer in the Digest (see below), although by the time ofJustinian he had acquired sufficient eminence to be referred to as Gaius noster, “our own Gaius”. He was also not a typical jurist in that he was interested in legal history and in systematisation of the law. Most jurists tended to take the approach of developing the law on a case- by-case basis, without always having very much concern for how different parts of the law related to each other. The importance of Gaius lies in the distinctive way in which his account of Roman law was structured.

To explain this, it is necessary to look back a bit at how law develops in its early stages. Early law is a law of actions. It is based on procedural forms into which a claim must be fitted, rather than on the substance of the claim. This is certainly true for early Roman law. The law consists of a number of specific claims, or actions, into one of which you must fit your facts. There might, for example, be an action to enforce a sale. However, as the law develops it becomes necessary to elaborate the requirements for each action. Who can bring the action? Against whom? On what facts? It comes to be realised that, underneath the procedure, there is a substan­tive right.

As to the substantive content of the law, the actual rights and duties that a person has, Gaius saw that these could be divided into two types. Some rights and duties relate to personal status, as with rights and obliga­tions arising from marriage or parenthood. Other rights and duties are what one might call “patrimonial rights”, a person’s patrimony being his or her economic assets, and the various duties relating to those. Gaius saw that rights arising from, say, a contract shared this characteristic with rights in the law of property, and so classed property and obligations together. The law of succession also fell into this part, as succession is concerned with the special case of the transfer of patrimonial rights on the death of the person who holds them.

Gaius’s great innovation, then, was in dividing the private law into three parts: the law of persons (i.e. the law relating to personal status); the law of things (i.e. property, succession and obligations); and the law of actions (i.e. court procedures). This method of division is known as the Institutional Scheme. Within each part of the tripartite division, the subject matter was further subdivided. Thus, persons are first classified as either free persons or slaves. Free persons are classified as either free-born or freed.

The Institutional Scheme is not perfect.

The ius respondendi

We have seen that jurists had the function of developing the law through the giving of opinions. Such opinions were not, however, formally binding, and there was also the risk that there would be conflicting juristic opinion on a point in issue.

The jurist Pomponius tells us that Augustus conferred on some jurists the ius respondendi, the right to give legal opinions with the emperor’s authority, which practice was continued by his successors. We are not, however, told the nature of this authority nor how many jurists had it. It would be in­consistent with the general approach taken by Augustus to make an open break with the past, so it may be that the purpose was only to mark out par­ticular jurists with imperial favour, rather than to make the jurist’s opinion formally binding. Of course, in practice it would be a rare judge who would refuse to follow the opinion of a jurist who had been marked out with imperial favour.

The Law of Citations

We have seen that much of the sophistication of the classical law was a result of juristic debate.

To deal with this difficulty, the Law of Citations was introduced in ad 426 by Theodosius II. The Law of Citations named five classical jurists (Gaius, Papinian, Paul, Ulpian and Modestinus) as having special authority. In the event of dispute, the majority opinion among those writers was to be followed, including in the count any quotation made in their works from another jurist. If numbers among those expressing a view were even, Papinian was to be followed. Only failing those rules was the judge entitled to make up his own mind. The rules established by the Law of Citations have been criticised as mechanical, and also for depending too much on the accident of which books happened to be available. After all, in an age before printing made mass-production of books possible, they were somewhat harder to come by than they are nowadays. However, when it is remem­bered that this was a period of decline of legal science, when the skill to handle the classical legal texts was rarer, the approach taken in the Law of Citations had at least the merit of practical expediency. In any case, the extent to which this was a mechanical process can be overestimated. It may be noted at this point that the Law of Citations is not very different from the modern rules of precedent, which equally require courts to follow prior decisions on a basis other than their merit.