Roman Law in Its Historical Intellectual Context

It goes without saying that for the third group of modern scholars - those who follow the contextual approach - Roman law can only be fully understood when non-legal literature is taken into consideration.

This does not imply, however, that the other groups of modern Romanists never look at non-legal literature. For example, in his De officiis and other works Cicero gives very important information about the introduction of bona fides, the exceptio doli, and the contract of sale.⁴⁰ This material has formed part of Romanist scholarship at least since the humanists; it was also employed by the Pandectists and neo-humanistic Romanists. For the early period of Roman law the comedies of Plautus, who wrote in the second half of the third century BC (he died in 184 BC), contain indispensable information, especially because epigraphic sources are scarce for that period, as are the writings of jurists earlier than Quintus Mucius Scaevola (±100 BC).⁴¹

The third approach to Roman law is in a way related to what in modern legal theory is called the Law and Literature Movement. In modern legal theory this movement aims not only at a better understanding of the law through literary texts, but also at understanding law in its cultural and social context. Here the emphasis is on the element ‘law in literature’ rather than ‘law as literature’.⁴² It was in this sense that Leopold Wenger (1874—1953) wrote:⁴³ he was indeed a forerunner of the third group of scholars of Roman law and an advocate for a comparative approach to the different legal orders of antiquity. An important Dutch Romanist who devoted attention towards the social and ideological background of Roman law was Henk (H. R.) Hoetink, a generation younger than Wenger.⁴⁴ In his inaugural lecture as a professor of Roman law at Amsterdam University (1935) he devoted attention to the background of Roman law and emphasized its social, ideological, and economic aspects.⁴⁵

size=1 color=black face="Book Antiqua">As an illustration of this contextual neo-humanist approach let us consider some problems which may be encountered in the use of non-legal literature as a means of acquiring a better understanding of the intellectual background of Roman law.

In the first and third titles of the Digest (De iustitia et iure; de legibus senatusque consultis et longa consuetudine) we find quotations from Greek philosophers such as Chrysippos, founder of the Stoa (±300 BC). One of these quotations contains the famous Greek expression νόμος βασιλεύς (‘the law as king’), which is the origin of all theories about the rule of law (Marcianus, D. 1.3.2).⁴⁶ Theophrastos (±300 BC), successor of Aristotle as the head of the Peripatos, is quoted twice (Pomponius, D. 1. 3.3; Paulus, D. 1.3.6). In the Greek context these quotations deal with the distinction between νόμος and ψηφίσμα - that is, the field of application of a statute. Another example comes from Ulpian, who in D. 1.1.6.1 quotes the well-known opposition between έγγραφοι and άγραφοι νόμοι (written and unwritten law). Ulpian’s definitions of ius naturale and ius gentium (D. 1.1.1.3 and 4) are also certainly influenced by Greek philosophical ideas, although direct Greek quotations cannot be found in the actual text.⁴⁷ Moreover, it is probable that the definition ofjustice (Ulpian, D. 1.1.10) in its turn depends on Greek philosophical ideas as well.⁴⁸

As such, Greek influence on Roman law cannot be easily denied. Occasionally, however, the significance of the first titles of Book 1 of the Digest is played down, and they are regarded as containing only popular - even vulgar - philosophy. I do not share this view and think it necessary to give a thorough overview of the philosophical ideas behind these texts, a task which has not been carried out in recent times.

Since the beginning of Legal Humanism in the sixteenth century, scholars have speculated on the relation between parallel ideas in Greek philosophy and Roman law.

Franciscus Connanus and - even more so - lang=EN-US>Jacobus Cujacius are important in this respect. Since that time the relation between Greek philosophy and Roman law has been a bone of contention in legal scholarship. Nowadays, the majority of modern scholars of Roman law remain firmly convinced that there was hardly any influence of Greek philosophy on Roman law.⁴⁹ I am inclined to think that the current opinion lacks balance and has a rather exaggerated notion of the ‘independence’ of legal scholarship in the Roman Republic and Principate. It could well be that current opinion still reflects nineteenthcentury ideas about the special position of the jurist, advocated first by Friedrich Carl von Savigny (1779—1861) and his followers in the German Historical School. Savigny and the Historical School regarded the jurist as the sole interpreter of the Volksgeist. This view led to emphasis on the independence of legal scholarship from external influences. Behind the scenes it still plays a role in current debate on the position of jurists, as well as in the debate between the Romanists of the three different schools mentioned earlier.

One might suppose that the prevailing view of the relative independence of Roman jurisprudence might deny that non-legal literature could contain information on the content of legal norms in Roman society; in fact, that is not entirely the case. As early as the second half of the nineteenth century, numerous books were devoted to legal passages in non-legal Latin literature; not coincidentally this was in countries where a codification of private law had taken place (France) or was about to take place (Italy). For Cicero we have books by Gaston de Caqueray⁵⁰ and Emilio Costa,⁵¹ who was also the author of comparable books on Plautus and Terence.⁵² Plautus himself stressed the importance of the role of the law in education.⁵³

Cicero in his turn tells us that in schools it was compulsory in the old days to learn the Law of the XII Tables by heart (as a carmen necessarium), and he regrets that this custom has lapsed.⁵⁴ Henriot quotes Horace, who laments ignorance of the laws, and speaks of sanctarum inscitia legum.⁵⁵Finally, we have the testimony of the jurist Pomponius, who refers to a conversation between Quintus Mucius Scaevola and Servius Sulpicius Rufus in which the former reproaches the latter for his lack of knowledge of the law.⁵⁶ Henriot⁵⁷ gave an interesting explanation for the high esteem attached to the law in Rome.

According to him, in modern times there has been a decline in the sanctity attached to jurisprudence: it no longer belongs to the skills one has to learn as an intellectual in society. In the Roman past that was still the case. In recent times Dieter Norr, one of the most prominent adherents of the contextual approach to Roman law, has given a full account of the position of the jurist in Roman intellectual society.⁵⁸

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Source: Johnson David (ed). The Cambridge companion to Roman Law. Cambridge University Press,2015. — 554 p.. 2015

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