The Post-Scientific Stage
Somewhere around AD 230 there was a major watershed in the functioning of Roman law. In particular, the scientific work of jurists seems to come to a very sudden halt, with the Digest preserving only a small number of texts extracted from the works of half a dozen jurists postdating Paul and Ulpian.
That said, just as the transition from Republic to Empire was achieved without the appearance of radical change, so the transition across this watershed retained the formal features of the earlier period. The treatment of the sources of law in Justinian’s Institutes58 is substantially derived from that of Gaius.Against this background of substantial similitude, we should note three changes: first, a shift of juristic activity away from the production of scientific literature and towards the giving of rescripts as members of the imperial bureaucracy; second, a change in the way in which juristic literature (largely from earlier periods, of course) was treated; and third, a sharper focus on custom.
The sharp decline of juristic writing is immediately visible from Justinian’s Digest. By contrast with the 2,000 extracts from Paul and approximately 3,000 from Ulpian, only one of the five or six post-Severan jurists is responsible for more than a tiny handful. This sole exception was Hermogenianus, probably writing in the fourth century: around 100 extracts from his luris Epitomarum Libri are found. But the title of his work is revealing: it was not a work of independent thinking, but a collection culled together from the writings of Paul and Ulpian and other major writers of a century or more earlier. Another work of the same kind is the so-called Sentences attributed (probably fancifully) to Paul, whose origins probably date from shortly before AD 300: a brief collection of texts constituting a conveniently accessible handbook for practitioners.
What we lack, so far as our evidence goes, are juristic works revealing any real originality of thought.This does not mean that jurists suddenly ceased to exist, nor that legal thinking disappeared. The successors of men like Papinian and Ulpian still worked in the imperial bureaucracy and prepared rescripts in the name of the emperor just as their predecessors had done,59 and through the work of these men which survives in the Code of Justinian we can see the continuity of legal thinking from the private writings of Papinian, Paul, and Ulpian. It was only after the reign of Diocletian, at the beginning of the fourth century, that this system died away, and with it the constructive work of the jurists.
A corollary of this decline in juristic science was an intellectual shift, as jurists’ opinions took on a greater degree of authority. Rescripts, by their nature, created binding rules of law since they were in form determinations by the emperor himself. Collections of these imperial constitutions were made from the end of the third century - the Codex Gregorianus and the Codex Hermogenianus60 - and hence formed a corpus of fixed legal rules. The works of earlier jurists could not be binding in this way, but they were cited in courts as evidence of what the law was, and even a mean work like the popular Sentences was used in this way. This tendency reached its peak with the Law of Citations of AD 426,61 which limited citation in court to five named jurists - Gaius, Papinian, Paul, Ulpian, and Modestinus - and provided that the view of the majority should prevail, with Papinian to be followed if opinion was evenly split; only if there was no majority and Papinian was silent was the judge to exercise his own discretion. No longer was reason any test of legal validity.
From the beginning of the third century, greater weight was also put on custom as a formal source of law.
The trigger for this, almost certainly, was the greater use of Roman law in the provinces after the extension of Roman citizenship to all free people in the Empire in AD 212. In so far as there was a theory grounding legal rules in popular consent, as Julian had argued,62 lang=EN-US>where different practices had become established in different places it would have been difficult to argue that Roman law in its entirety should be applied. Hence Ulpian was able to contemplate the application of local custom even when it was contrary to Roman law, and Paul to argue that the customary interpretation of a lex in some particular place ought to be respected in that place.63 Julian might well have agreed with this, since his text suggested that a lex could be impliedly repealed simply by being ignored by the people. However, the problem for Gaius and other jurists of the middle of the second century was that there was no easy way to identify custom, and the writings of the jurists had to serve as a proxy for this.64 Yet half a century later legal process was changing, as the formulary system was being superseded by the cognitio procedure. Instead of a lay judge deciding a case within the terms of a formula approved by the praetor, there was a trial before a professional judge in which law and fact were intermingled. This allowed an alternative mechanism for the identification of custom: regularity of judicial decision. For Ulpian, local custom would be recognized if it was embodied in a decision, and his contemporary Callistratus referred to a rescript of the emperor Severus to the effect that a stream of decisions would determine the interpretation of an ambiguous lex.65 Custom, identified through decisions, was therefore able to replace the opinion of jurists as a source of law. This was confirmed, but also limited, by a constitution of Constantine of the early fourth century, providing that custom was of ‘no mean authority’ (the Latin word is auctoritas), unless it was contrary to lex or reason (ratio).66 Asa consequence, the risk that observing custom would degenerate into the mindless following of previous decisions was neutralized.This recognition of custom as a formal source of law is reflected in the treatment of the sources of law in Justinian’s Institutes.67 The basic division here is between written and unwritten law.
The elements of written law are the same as those dealt with in Gaius’s Institutes: lex, plebiscites, senatusconsulta, imperial constitutions, magisterial edicts, and the opinions of jurists. Apart from the removal of the doubt expressed by Gaius as to the force of senatusconsulta,68 the main differences visible in Justinian’s treatment are that greater weight is given to the force of imperial constitutions (strengthened by the opening of the text with Ulpian’s statement that what pleases the prince has the force of lex69), and that the weight given to juristic opinion is reduced by changing the tense of the text from the present to the imperfect, thereby giving it more of a flavour of historical reminiscence.70 Offset against this is the unwritten law - custom - whose force derived from the tacit consent of the people.71Notes
1. Roman Statutes, 555—721.
2. Livy 3.34; the final two tables were probably added later.
3. D. 1.2.4.
4. R. Westbrook, ‘The Nature and Origin of the Twelve Tables’, ZSS 105 (1988): 74.
5. The lex Hortensia; this chapter, 29—30.
6. G. Rotondi, Leges Publicae Populi Romani (Milan, 1912).
7. Roman Statutes, 39.
8. See the chapter by Metzger, 281—3.
9. A. Schiavone, The Invention of Law in the West, trans.
J. Carden and A. Shugaar (Cambridge, Mass., 2012), 74—84.10. Schiavone (n. 9), 131—306. Still useful, if dated, is F. Schulz, History of Roman Legal Science (Oxford, 1946).
11. See the chapter by Metzger, 282.
12. See the chapter by Metzger, 283.
13. Cic. Fam. 7.22.
14. Cic. de Orat. 1.212.
15. Gaius 1.2.
16. Gaius 1.3.
name=bookmark186>17. Gaius 1.4. For senatusconsulta, see R.J.A. Talbert, The Senate of Imperial Rome (Princeton, 1984).
18. Inst. 3.3.2.
19. 34, this chapter.
20. D. 2.15.8 pr.
21. Gaius 1.5; F. Millar, The Emperor in the Roman World (London, 1977), 228—259. With particular reference to the later Principate, see J.-P. Coriat, Le Prince Législateur (Rome, 1997).
22. D. 1.4 pr.
23. D. 1.4.1.
24. Millar (n. 21), 252-259.
25. D.
1.5.17; cf. the chapter by Lewis, 172.26. Millar (n. 21), 228—240; T. Honoré, Emperors and Lawyers, 2nd edn. (Oxford, 1994), 28.
27. D. 36.1.76.1; D. 29.2.97.
28. Gell. NA 3.16; D. 4.2.13 (= D. 48.7.7).
29. Honoré (n. 26); Millar (n. 21), 240—252.
30. D. 48.5.39.10.
31. Honoré (n. 26), 14, based on G. Gualandi, Legislazione Imperiale e Giurisprudenza (Milan, 1963).
32. D. 37.14.17 pr.
33. Gaius 1.6.
34. 28, this chapter; O. Lenel, Das Edictum Perpetuum, 3rd edn. (Leipzig, 1927).
35.size=1 face="Times New Roman"> C. Tanta 18.
36. See the chapter by Metzger, 284.
37. Gaius 1.8.
38. 28—9, this chapter.
39. Gaius 1.7.
40. Schiavone (n. 9), especially at 285—306.
41. D. 50.16.19; D. 2.14.1.3.
42. D. 18.1.1.
43. D. 41.2.3.1.
44. D. 50.17.202.
45. D. 41.2.1.21.
46. D. 9.2.27.13—27.28.
47. See the chapter by Kaiser, 127—33.
48. D. 41.2.3.23.
49. D. 1.2.2.35, 38.
50. D. 1.2.2.49.
51. R. Bauman, Lawyers and Politics in the Early Roman Empire (Munich, 1989), 1—24, discussing earlier views; T. Leesen, Gaius Meets Cicero: Law and Rhetoric in the School Controversies (Leiden, 2010), 20—29, with further references at 22 note 51.
52. Bauman (n. 51), 17.
53. 33, this chapter.
54.size=1 face="Times New Roman"> Honoré (n. 26), 33.
55. Gaius 3.82.
56. D. 1.3.32.
57. 30, this chapter.
58. Inst. 1.2.3-10.
59. Honoré (n. 26), 71-185.
60. See the chapter by Kaiser, 120.
61. C.Th. 143.
62. D. 1.3.32; 39, this chapter.
63. D. 1.3.34; D. 1.3.37.
64. 35, this chapter.
65. D. 1.3.34; D. 1.3.38.
66. C. 8.52.2.
67. Inst. 1.2.3-9.
68. Inst. 1.2.5; 30, this chapter.
69. Inst.1.2.6; 32, this chapter.
70. Inst.1.2.8.
71. Inst.1.2.9.
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