The Jurists
(1) The Emergence of the Jurists
We have seen that early Roman law was rigid and formal, dominated by the need to comply with strict procedural forms. That began to change in the late Republic.
The details of how this came to happen are unclear,[204] but from around the beginÂning of the first century BC, Roman law began to develop into something it had never been before, either at Rome or anywhere else: a science, meaning a body of knowledge based on reason. This did not happen overnight, and it was itself a development of earlier trends, but from about 100 BC to approximately AD 250, there developed a body of literature exploring and expounding Roman law as a body of principled rules. This is the period that we call the ‘classical period' of Roman law, and the literature of that period was the work of a group of men we call the jurists.To understand how this happened, we have to start at an earlier stage. In any community that is to have a system of law worthy of the name, where the exercise of authority is based on legal rules rather than on arbitrary decisions, the need will soon arise to have individuals develop expertise in understanding and advising on those rules. So, in the Roman system, who were the legal experts? To whom could one go for legal advice? On whose opinions were the decisions of judges and magistrates based? After all, as we saw in Chapter 2,[205] neither the judges nor the advocates pleading before them were seen as requiring any legal expertise of their own.[206] Equally, there was no requirement for the praetor to be knowledgeable in the law. He was a politician rather than a lawyer. Yet the Romans developed a sophisticated system of law, and this can hardly have happened without the exisÂtence of a class of people specialising in knowledge of that law.
In early times, this function was fulfilled by the priests.
As we saw in Chapter 1,[207] in those days it was hardly possible to make a distinction between secular and reliÂgious affairs. Good governance meant keeping the peace with the divine forces controlling the world as much as it meant keeping the people safe from miliÂtary threats. These priests were not full-time clergy, but men of the upper class, who might hold a priestly office alongside what we would consider to be more straightforwardly political roles. Pomponius tells us that one of these, a member of the college of pontiffs, was appointed each year to take responsibility for priÂvate law matters.[208] As we saw earlier, the Twelve Tables was far from a complete statement of the law, so those who monopolised knowledge of the rest of the law had significant power. This monopoly was only broken when Appius Claudius[209] recorded the required forms[210] in writing, and his clerk, Gnaeus Flavius, copied them and made them available to the public.[211] Gnaeus Flavius was made aedile in 304 BC, in which capacity he published in the Forum a copy of the calendar that showed on which days an action could be brought.[212] Subsequently, Tiberius Coruncanius[213] was the first to make a ‘public profession' of the law.[214] Quite what this means is not completely clear, but if we accept Pomponius' account then it suggests that there was a process going on by which awareness of the law and the ability to advise on it were becoming more widely distributed. It is from this process that the class of men we call jurists emerged.The term ‘jurist' should not be seen as synonymous with ‘lawyer'. The classical period only lasted around 350 years, and during this period we know the names of under 100 jurists. This number cannot possibly have satisfied the demand for legal advice even in the city of Rome itself, a major commercial centre with more than a million inhabitants, so common sense alone should be enough to tell us that there must have been other people giving legal advice.
However, as we have seen, we do in fact directly know this to be the case.[215]Exactly how then we distinguish the jurists from these other lawyers is difÂficult. However, it is clear from the jurists' writings that they constantly cited one another, so we can suggest that it was a self-identified group, membership of which depended on recognition by other jurists. They were a group of mostly upper-class men, many of whom also held senior positions in governÂment. For most of them, being a jurist was more of a hobby than a profesÂsion. Their influence came through their interpretatio. As is fairly obvious from its form, this word means ‘interpretation', but thejurists' interpretatio was a broader, more active enterprise than we would nowadays expect or consider appropriate. It was:
the use of the words of a statute as a peg upon which to hang the novel legal docÂtrine which was being framed. It was not, as one might think, statutory construcÂtion to determine the presumed intention of a legislator; it was rather a device by which living legal principles could be worked into the corpus of the Roman law.[216]
It is true that, at least at first, this was not seen as a formal source of law. However, if their views were habitually acted on by judges, and came to be accepted as corÂrectly representing the law, we may suggest that the question of whether juristic interpretatio was a formal source of law makes little practical difference.
(2) Schools of Jurists
In the reign of Augustus, says Pomponius,[217] the leading jurists were Ateius Capito and Antistius Labeo. They were the founders of two competingjuristic traditions.[218] Pomponius calls them sectae, ‘sects’, but they are more commonly referred to as schools. Each attracted adherents and a tradition of school loyalty through generaÂtions of jurists. The schools are named, not after their founders, but by prominent successors. Members of Capito’s school are known as Sabinians after his successor, Massurius Sabinus.
Members of Labeo’s school are known as Proculians, after a later head, Proculus. Whilejurists did pay attention to views expressed by those of the other school, there does appear to have been some tendency for a jurist to prefer to cite members of his own school.[219] Some differences of approach can be identified. According to Pomponius’ account, Capito tended to follow the tradiÂtional view of the law, while Labeo was more prepared to innovate. There is some tendency for Proculians to base their views on general principles, with Sabinians more willing to take individual circumstances into account. We shall see many disÂputes between Sabinians and Proculians as we go through the book.[220]The nature of these schools is unclear. Were they simply schools of thought, with views being passed down through successive generations of jurists, kept going through loyalty? Alternatively, were they more formal educational instituÂtions? Various ideas have been put forward,[221] though the fact that Pomponius identifies successive heads of the schools suggests some level of formal organisaÂtion. Whatever may have been their nature, though, it is beyond doubt that the existence of these schools was a major influence on the law’s development in the first and second centuries AD.
(3) The lus Respondendi
In the first book of the Digest, the jurist Pomponius gives us an account of Roman legal history. In the course of this, Pomponius tells us that Sabinus was the ‘first to give legal opinions publicly’,[222] having been granted this right by the emperor Tiberius.[223] This right is known as the ius respondendi (the right of giving legal opinions). One of the puzzles about this is that Pomponius goes on to say that this right began to be granted by Tiberius' predecessor, Augustus,[224] so it is not clear how Sabinus can have be the first. The biggest puzzle, however, is what the ius respondendi actually entailed.
Indeed, it has been suggested that the ius respondendi did not actually exist.[225] If it did exist, one possibility is that only those who had it were permitted to issue legal opinions at all. This, though, seems implausible, unless the ius respondendi was given to a huge number of people. As we have seen, the jurists alone could not have serviced Rome's need for legal advice. Alternatively, perhaps the ius respondendi gave its holder the right to give binding opinions, which judges had to follow. Certainly, the jurist Gaius indicates that Hadrian[226] declared in a rescript that, where multiple holders of the ius respondendi were unanimous, their opinion had the force of statute. Only where they differed could the judge pick the opinion he thought best.[227] Earlier in the Empire, though, it seems unlikely that this was the case. As we saw in Chapter 1,[228] Augustus' policy as first emperor was to appear to be preserving and restoring the Republic, and the grant of unprecedented new powers of this kind would not be in keeping with that. Perhaps the most likely explanation is that the grant of the ius respondendi was a mark of imperial favour and an indiÂcator of eminence and respect, which did not formally bind judges, but which would undoubtedly add a certain weight to the opinion. A comparable modern example might be an advocate or, in England, a barrister becoming a QC.(4) The Jurists’ Roles
(a) Teaching
Jurists certainly taught. It appears that, perhaps especially in the Republic, an aspiring jurist's education was based on observation rather than formal classes. Cicero tells us of his own early legal education:
Now, I, upon assuming the toga virilis, had been introduced by my father to [Quintus Mucius] Scaevola [the augur] with the understanding that, so far as I could and he would permit, I should never leave the old man's side. And so it came to pass that, in my desire to gain greater profit from his legal skill, I made it a practice to commit to memory many of his learned opinions and many, too, of his brief and pointed sayings.[229]
Thus, the student would learn by observing thejurist at work and, no doubt, through discussion of cases with thejurist.
Of more formal teaching, we hear little. If it is the case that thejuristic schools were educational establishments, there was presumably some form of more structured teaching, but beyond that it is impossible to say with any degree of certainty what form it took.(b) Advice
Jurists undertook the full range of legal advice work, including assisting with legal transactions (which might include the drafting of legal documents),[230] assisting with the conduct of litigation,[231] and advising on legal problems. This did not simply mean advising private parties, but might also include advising judges and magistrates. Many of the reforms embodied in the praetor's edict will have come from jurists.
(c) Writing
It is, however, to their writing that we owe our knowledge of the jurists' work. Some of the jurists were highly prolific. They wrote a range of types of literature, including commentaries on the praetor's edict and the ius civile, monographs on particular topics, student texts, practitioner texts, and epitomes of other jurists on which they provided their own comments. One striking characteristic of juristic literature is its casuistic approach, which means an approach focused on the disÂcussion of specific cases rather than on general principles. There were exceptions to this, most notably Gaius, about whom we are about to hear, but by and large the jurists showed little interest in abstract theorising.[232] Of course, as we have seen, this is characteristic of the way that jurists learned the law in the first place: through observation and discussion of individual cases.
Of the different types of legal literature that we are used to in the modern world, however, one that was not prominent in Romanjuristic literature was law reporting, that is the production of collections of court decisions.[233] This was understandable enough under the formulary system of procedure,[234] in which the judges were private citizens rather than legally trained professionals, and in which the judge did not have to give reasons for his decision. However, this conÂtinued even under the cognitio procedure,[235] in which written decisions became the norm, and appeals to the emperor were possible. Of course, advice given to a judge, magistrate or litigant might find its way into a jurist's own writings, but then the authority of the jurist's opinion would come from the standing of the jurist rather than that of the recipient of the advice.
(5) Gaius and the Institutional Scheme
There is one other Roman writer who deserves special attention here, because he is something of an enigma. Little is known about him except that he lived during the second century AD (perhaps from approximately 110 to 180) and was a teacher of law. It is unlikely that the jurists of his time would have considered him to be one of them. In all of the preserved juristic writings, there is only one apparent reference to him by another jurist.[236] This is particularly striking given that the jurists cited each other constantly.
Gaius' special contribution to Roman law came through a book called the Institutes. To set the context for this, we need to remind ourselves of how Roman litigation worked. As we saw in Chapter 2,[237] the development of classical Roman law was strongly linked to the litigation system known as the formulary proceÂdure. According to this system, before a case could be put before the judge, it first had to be brought before the praetor, where it would be expressed in terms of one of a number of setformulae. The permitted formulae were contained in the edict issued by the urban praetor at the start of his term of office.[238] We have seen in this chapter how this could be used by the praetor to introduce innovations in the law. A common form of juristic literature was the commentary on the edict, in which the jurist would take each form of action in turn, expounding its requirements and the meaning of individual terms within the relevantformula.
Much can be achieved by this method. What it does not readily allow for, though, is the development of general concepts or the exploration of links between different areas. The edict was not a systematically arranged document, having grown up organically over many years, and areas that we would now consider closely related might be widely separated in the edict. Take the law governing contracts, for example. As we shall see in Chapters 17 to 21, Roman law recognised a number of distinct contracts — sale, hire, different types of loan, and so forth — each with its own specific rules. As long as the different types of contract are considered separately, though, it is difficult to develop such general legal concepts as consensus which, in modern discussions of contract law, have a prominent place.
Gaius' achievement, arising from his practice as a teacher of law, was to proÂvide a map of the law, allowing a beginner to see how different areas of the law related to each other. Gaius was in this way unusual amongjurists, who generally showed little interest in this kind of systematisation. Most jurists' accounts of the law were based on the decidedly unsystematic order of the Twelve Tables or that of the praetor's edict.
At the heart of the institutional scheme lies the realisation that private law disÂputes can be analysed in three parts. First, we must consider the parties to the disÂpute. A person's status may affect their rights in various ways. For example, whether a person is male or female, married or unmarried, adult or child, free or slave affects that person's rights and obligations in various ways. Second, we must conÂsider the subject matter of the dispute. Unless the parties are litigating purely over an issue of personal status, there will be some economic asset at the centre of the dispute, such as an item of property or a right under a contract. Third, we have to think about the procedures for enforcing the parties' rights and obligations. The institutional scheme divides the law accordingly. The first part is the law of persons, which is concerned with matters of personal status. The second part is called the law of things (res), which is a very broad category made up of ‘whatever could be assessed in terms of money, have a cash value placed upon it... the objects and contents of a person's estate'.[239] It includes the law of property, obligations and succession. The third and final part is the law of actions, which is concerned with matters of evidence and procedure. Every private law dispute can be analysed in accordance with this scheme. This is obviously helpful to the student who is trying to build a mental picture of how the different parts of the law fit together and who is learning to navigate through the material covered in the law course.
It is difficult to over-estimate the importance of the Institutes and its scheme of organisation.[240] The merits of its organisational scheme gave it lasting importance after Gaius' own day. In the fifth century, Gaius was named as one of five classiÂcal jurists whose writings were to carry special authority.[241] In the sixth century, it was used as a model for the Institutes of the emperor Justinian, part of Justinian's legal compilation,[242] and through this Gaius' institutional scheme was carried into medieval and then modern law. It has been used, for example, by the Scots instiÂtutional writers for organising their own accounts of the law,[243] and is the basis for the organisation of the French Code civil. Gaius' Institutes themselves were lost until their rediscovery in 1816, so the book's influence was indirect, but it was nonetheless considerable. It is still important today, for another reason in addition to this. It is the only more or less complete classical legal text that we have, and there are numerous points of classical Roman law that we would know little about but for it.
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