Roman Jurisprudence

laws will apply equally to wills, agreements, contracts and every form of document; nay, it will apply even to verbal agreements. (7,5,5-6)

Ti

The systematic division of the topic, the implied distinction between obscurity and ambiguity, and the explicit extension of the topic to cover not merely laws but all legal instruments show a level of sophistication in legal theory considerably higher than what one sees in Cicero's early writing. This is hardly surprising, considering that none of the great theorists whose work survives in Justinian's Digest, with the exception of Quintus Mucius Scaevola and his pupil Servius Sulpicius Rufus, had appeared in Cicero's lifetime; Scaevola survives only in four fragments, and Servitis not at all, although he is often mentioned or quoted with respect by later jurists. Quintilian, on the other hand, was contemporary with the prolific and innovative jurists of the Augustan age. Concerning conflicts of laws, Quintilian makes an important observation, giving a form of what we shall recognize later as one of the basic principles of interpretive jurisprudence:
it is clear to everybody that one law cannot contradict another in principle (since if there were two different principles, one law would cancel the other), and that the 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 that the laws valid for any community, taken as a whole, form a system which is and must be logically consistent. 4. The Development of Roman Jurisprudence The emergence of interpretive jurisprudence as an explicit element in legal theory had to do with three important developments which were completed during the Hellenistic period. There was the emergence of public legal codes, there was a shift in the theory of legal status toward egalitarianism, and legal theory began to regard itself as essentially universal and international rather than merely local or national in scope. In Greek and Roman pre-republican society, the locus of political organization was the city-state, which had an hierarchically stratified social structure and some form of more or less limited monarchy. Legal theory and legal literature was the exclusive property of elite colleges of priests.

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INTRODUCTION

At Rome there were flve principal colleges, one of which, headed by the Pontifex Maximus, was a kind of legal-political bureaucracy. The Pontifex ("bridge builder") was overseer of the Vestal Virgins and of the circular "house" (aedes) in which they guarded the eternal flame, the spiritual heart and hearth (focus) of the city. He was the officiant at the most solemn kind of marriage ceremony, confarreatio, used for the marriage of a certain high priest (the Flamen Dialis). He was the regulator of the official calendar. And he was chief judge and arbitrator of divine and human affairs (iudex atque arbiter...rerum divinarum humanarumque), expounder and interpreter of the divine will. His role as supreme jurist is underscored by the coincidence of the definition of his duties (Festus, 198) with part of the famous definition of jurisprudence at the beginning of Justinian's Institutes: Iuris prudentia est divinarum atque 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 patrician magistrates by the plebs. In 454 (according to legend) an embassy was sent to Athens to study the legislation of Solon, which had been enacted more than a century earlier as a liberalization of the first Athenian public code, the code of Draco (621). This resulted in publication of the Twelve Tables, which became fundamental law in Rome and remained theoretically in force until the publication of Justinian's Corpus in the 6th century. The text of the Twelve Tables is preserved in Cicero's De legibus. It was memorized by school children in Cicero's time, but by then it must have been difficult to understand, since the Latin was archaic and 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 Appius Claudius Caecus was made public by his freedman, Gnaeus Flavius, in 304. Then the hitherto exclusively patrician office of Pontifex Maximus was attained by a plebeian, Tiberius Coruncanius, who began to furnish public information on legal questions about 254. By this time, Rome had made herself mistress of the Italian peninsula and was expanding her commercial activities throughout the Mediterranean area. Diplomatic relations with a foreign power, Egypt, were established in 273. But foreigners, like the plebs in earlier times, had no legal standing whatever in Roman civil law. The need for a liberalized and expanded legal theory to handle commercial and other relations with foreigners became acute.

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and in 242 a special court was created for this purpose, the court of the praetor peregrinus. The basic doctrines of international law, the ius gentium, emerged from the discretionary practices of that court. Sir Henry Maine, in a famous book on ancient law (ch. 5), characterized the development of legal theory during this period as a movement from status to contract. The older civil law, he thought, made legal rights and obligations depend largely on status: the adult male patrician head of household was the real "legal person," and all others derived whatever legal protection they could through him. In the newer law, status became less important and legal theory tended to rely on contract as the basic source of rights, thus implicitly treating all parties as having equal status. There is some truth in this idea, although it relies too much perhaps on an analogy between republican Rome and eighteenth-century Europe. Differentiation by status never disappeared from Roman law; it is still present in Justinian. And the main ideas in contract law are too ancient to be attributed with confidence to any particular founder or period. But it is true that as Rome became more an international power its own population became more diverse, and its older patriarchal social structure tended to break down. Disposition of property by will gradually replaced the older customary intestate succession; contracts, treaties arid legislation became more abundant and complex. All these developments created an obvious need for equitable methods of interpretation of legal instruments. The internationalization of legal practice, moreover, made the internationalization of legal theory inevitable. Jurisprudence could not remain the professional secret of a municipal college of priests when new law was being openly created and applied to persons not subject to the old municipal civil law. At the same time, Roman life was strongly influenced by Greek and other Mediterranean cultural and intellectual movements. Pythagorean, Academic, Peripatetic, Stoic and Epicurean philosophers all left their marks in Latin literature, including legal literature. The Stoics, in particular, took a strong interest in practical moral and legal questions, and developed explicitly the notion of international citizenship {cosmopolis), which was a consequence of the recognition of a body of international and natural law. As Rudolf Sohm well put it:
The entire world came, so to speak, to make Rome its capital, and with it came tlie jus gentium, a law, not for any particular state, but universal; a law not merely for the citizen, but for the private person as such. (69-70)

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INTRODUCTION

This growth of internationalism in legal theory and jurisprudence affected the older civil law itself, as administered by tht praetor urbanus, which led naturally to codifications and then to various forms of secondary literature designed to cope with it. The praetor's edictum perpetuum was in effect a periodically expanding code. Each praetor served a one-year term, issuing his "edict" at the outset as a statement of policy in granting or limiting legal actions not already granted or limited in established practice. In 67 B.C. the lex Cornelia made it obligatory for the praetor to follow these announced policies. Although the succeeding praetor was not at first bound by his predecessor's edict, it became customary to respect it; and at length the emperor Hadrian appointed Salvius Iulianus to revise what had become a voluminous edictal corpus. The revision was accomplished between 130 and 138 A.D. and submitted to the Senate for ratification. After this, no further changes in the Edict were permitted, and the flexible elements of practical jurisprudence passed over to the imperial household. One effect of freezing the Edict, however, was to stimulate secondary legal literature, so that after Hadrian there was a rapid growth of commentaries on the Edict, commentaries on the work of some particular jurist, digests, and other specialized works. Even before Hadrian, P. Iuventius Celsus produced a digest in 39 volumes; that of Salvius Iulianus was 90. Under Marcus Aurelius, Q. Cervidius Scaevola produced a digest in 40 volumes; his pupil, Aemilius Papinianus, compiled 19 volumes of "responses" (responsa), 37 volumes of "inquests" (quaestiones), and other works. Papinian's pupil, Domitius Ulpianus, produced 83 volumes on the Edict, 51 on the prominent Augustan jurist Sabinus, and many other books. Fully one third of all the material in Justinian's Digest is drawn from the writings of Ulpian. His contemporary, Iulius Paulus, produced 80 volumes on the Edict and 16 on Sabinus. As might be expected, this sort of secondary literature became unwieldy, and in 426 A.D. the emperor Valentinian III ordered that only the works of Gaius, Papinian, Ulpian, Paul and Modestinus, and authors cited by them, were to be judicially recognized. At the same time, collections of imperial legislation and rescripts were accumulating; there was the Codex Gregorianus (c.3OO), the Codex Hermogenianus (4th century) and the Codex Theodosianus (438). , It was during this post-Hadrianic period that the finer details of the Roman doctrines of legal interpretation were worked out, especially in the subtle and essentially philosophical observations of Papinian and Paul. In order to gain some insight into the ultimate achievements of classical

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jurisprudence in this regard, we must now turn to the fragments of these works that are preserved in the Corpus iuris civilis of Justinian.

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