The Method of the Roman Jurists

James Gordley*
The Romanjurists developed a method that is not like that of Greekphilosophy, modern
physics, or economics. Thet fundamental concepts were familiar vm ordinary experience-for
example, possession, fault, and consent They were not abstracted nom experience like
substance and accident, mass and energy, or supply and demand, which are mderstood only by
those who have studiedphilosophy, physics, or economics. The Romans refhed and identified
these concepts byputting concrete cases. They would move vm a concept to its application in
a particular case all at once without explaining how they got vm the ore to the other In
contrast, philosophers, physicists, and economists define their concepts and show their logical
implications. It is hard for us to appreciate how diffrent this method is vm that of intellectual
traditions with which we are more familiar. Historians have imagined that they must have been
using some different metho4 one borrowed vm the Greeks. Yet the method was thet own, and
the concepts to which they applied it are now basic to law in the West and in Diuch of the world
besides.
L

ROMAN LAW

933

n.
in.

ROMAN LAW AND GREEK PHILOSOPHY

ROMAN LAW AND LATER CIVIL LAW

939
947

IV
V

ROMAN LAW AND COMMON LAW

A FINAL QUESTION

I.

ROMAN LAW

,
_

949
953

Intellectual traditions have beginnings in tini3.

Westem
philosophy began with the Greeks, modem physics with Galileo
Galilei and Isaac Newton, and modem economics with Adam Smith.
The intellectual tradition that shaped Westem law began with the
Roman jurists. This Article will describe the method by which they
approached legal problems and the features that made that tradition
unique.
The Roman jurists, like those engaged in other intellectual
disciplines, identified and refined a stock of concepts to explain a large
and varied realm of experience. Alan Watson has spoken of the "very
high degree of conceptualization" of Roman law' Nevertheless,
*
2013 James Gordley W.R. Irby Chair in Law, Tulane University Law School.
J.D., Harvard University; M.B.A., University of Chicago; B.A., University of Chicago.
1.
ALANWATSON,THESPIRITOFROMANLAW90(1995). That statement might seem
squarely to contradict Peter Stein and Dietrich Behrens. Stein said that the Roman jurists
"did not consciously think of the law in terms of concepts; indeed the notion of a concept was
not found in their mental equipment." PETER STEIN, REGULAE IURIS; FROM JURISTIC RULES

933

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[Vol. 87:933

although the Romans explored the meaning and implications of

concepts, they did so in a different way than, for example, those in
fields such as philosophy, physics, and economics. Although the
concepts used by a Greek philosopher, a modem physicist, or a
modem economist are meant to explain ordinary experience, they are
not found in ordinary experience. Only a philosopher, a physicist, or
an economist understands concepts such as substance and accident,
matter and energy, or supply and demand. By and large, the concepts
used by the Romans were familiar from ordinary experience. For
example, they explored the meaning of concepts such as sale and
lease, which are familiar to everyone who sells or leases, and concepts
such as slavery, which were familiar to everyone in their society.
Moreover, a Greek philosopher, a modem physicist, or economist
defines their concepts abstractly. They then proceed by logical steps to
work out their implications. The Roman jurists explained their
concepts, not by defining them, but by testing them against particular
cases. The jurist Javolenus said, "[I]n civil law, all definitions are
dangerous for there are few that cannot be upset."^ He meant, as Peter
Stein noted, "AU [definitions] are dangerous; for they give the
impression that they have a general application and cover all the cases,
when in fact they do not."^ Unlike philosophers, physicists, or
economists, the Roman jurists moved from a concept to its application
in a particular case, all at once, without logical steps to explain how
they got from one to the other.
One can see these features of their method in a case put by the
Roman jijrist Gaius that Watson used to illustrate their work." A
contract was made to provide slaves as gladiators to fight in the arena.
The contract provided that their owner would receive 20 denarii for
each one who retumed and 1000 denarii for each one who was killed.
The question is whether the contract was a sale ofthe slaves or a lease
of their services. Either conclusion seems odd. A lessor, unlike a
seller, can demand the retum of his property. But here, the owner of
TO LEGAL MAXIMS 47-48 (1966). Behrens made similar statements, pointing to the lack of
abstraction in Roman law and the limited use of definitions. Dietrich Behrens, Begriff und
Definition in den Quellen, 74 ZEITSCHRIFT DES SAVIGNY-STIFTUNG FR RECHTSGESCHICHTE

352 (1957). I think the contradiction is only apparent. Stein and Behrens certainly did not
wish to deny the importance to the Roman jurists of concepts such as sale, lease, possession,
fault, or consent. They seem to mean that concepts such as these were not themselves
abstract and that the Romans were not concemed with defining them.
2.
D. 50.17.202.
3.
STEIN, supra note 1, at 70.
4.
G. 3.146.

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THE METHOD OF THE ROMAN JURISTS

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the gladiators can only demand the retum of the slaves who survive.
The answer according to most jurists, Gaius said, is tiiat iie contract is
a sale of every gladiator who was kiUed and a lease of every one who
retumed.
Another illustration used by Watson is a case put by Tryphonius;^
a slave woman was to be freed after she had bome tiiree children. The
children bom before she was free would remain slaves of her master.
She bore one child, and later she bore triplets. Which of her children,
if any, were free? It would be odd to think that the triplets were slaves
and odd to tiiink that they were free. Tryphonius answered that only
one child was free: the last of the triplets to be bom.
Watson thought these cases exemplified the method of the
Roman jurists, but for that reason he found their method puzzling. He
could not understand why the jurists were concemed about such
problems. He thought that in tiie case of the gladiators, tiie reason was
procedural. In Roman procedure, there was one action for sale and
another action for lease. Therefore enormous effort was expended "to
determine what counted as [the] sale and what as [the] hire of a tiling.'"
Perhaps. But the reason the jurists were interested in the problem was
probably not tiiat they wanted to know what procedure to follow tiie
next time tiiat the owner of gladiators sued on such a contract. Most
likely, tiie case mattered to them because it showed that might not be
possible to teH whetiier a contract was a sale or a lease at the time a
contract was made but only tiiereafter. The contract was like
"Schrdinger's cat" paradox in quantum physics in which, at a certain
moment, a cat cannot be said to be either ahve or dead but, at a later
moment, tums out to have been alive or dead all along.
Watson found the case of triplets stiH more puzzling. Why would
the jurists worry about it when the birih of triplets must have been a
"rare event"? Why would the master free the slave.,woman under such
a condition? Although "[o]bviously[] he wanted a financial benefit
from slave breeding[, p]resumably [he] was well disposed toward this
slave, but the very condtion in the will is indicative of the callousness
tiiat [arises from] slave-owning.'" Nevertiieless, there is "no trace of
humanitarianism in the argument of tiie jurist.'" "The jurist," he
concluded, "is interested only in the legal problem.'"
5.

D. 1.5.15.

6.

WATSON, supranote 1, at 90.

7.
8.
9.

Id at 69.
Id
Id

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That interest in tiie legal problem alone, however, is precisely why

tiie case mattered to Trj-phonius, and why he stated it as he did,
mentioning only those facts that bore upon the legal problem. The
legal problem was of interest whetiier or not a master was likely to
impose such a condition and whether, if he did, the slave was likely to
have triplets. Because slavery was recognized by Roman law, it was
not necessary to discuss humanity toward slaves or whether slavery
should exist to resolve tiie legal problem, any more than it is necessary
for a modem lawyer discussing a problem in property or corporation
law to consider the justification for private property or capitahsm.
Watson concluded that the Roman jurists wrote "as if tiiey lived in a
vacuum, remote from economic, social, religious, and pohtical
considerations.'"" They did indeed, because they had a metiiod in
which cases were stated abstractly to include only those features that
were relevant to a particular legal problem.
Watson is not the only one to have thought it odd that the Roman
jurists paid attention to cases of such little practical significance. Fritz
Schulz has said:
With untiring patience and unvarying acumen the classical writers
subject the institutions of the law ever and again to a searching casuistic
examination which, by applying it in concrete cases, real or imaginary,
pursues each principle to its most remote and minute consequences.
No problem of private law, however petty or singular, but was
welcomed and probed. One is astonished at the number of insignificant
and practically [useless cases] that are discussed
One wonders
whether it was really justifiable to spend so much time and labour on
these difficult, tortuous questions, tiie practical importance of which
was so small."
The Roman jurists, however, did not regard tiie intellectual problems
raised by such cases as "useless," "petiy," and "insignificant," and it
was tiiose problems that interested them, not the practical significance
of tiie cases. Nevertheless, the practical significance of their work
cannot be understated. They identified and refined concepts that are
basic in modem legal systems, in both civil law and common law
jurisdictions: concepts such as possession, fault, and consent.
Like sale and lease or, in Roman society, slavery, concepts such
as possession, fault, or consent are familiar from ordinary experience.
10.

Id. at 66; accord ALDO SCHLWONE, THE INVENTION OF LAW IN THE WEST 200

(Jeremy Carden & Antony Shugaar trans.. Harvard Univ. Press 2012) (2005).
11.

(1946).

FRITZ SCHULZ, HISTORY OF ROMAN LEGAL SCIENCE 126 (litho. reprint 1953)

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THE METHOD OF THE ROMAN JURISTS

937

Indeed, it is hard to imagine a society in which these concepts would

not be familiar. Possession would be a familiar idea in any society in
which objects belong to people. A person will sometimes possess an
object that does not belong to them. They may pick up anotiier's spear
or blanket. It is hard to imagine a society in which people are
unfamiliar with the idea that a person is at fault if he harms someone
intentionally, which the Romans called dolus, or if he does so
neghgently, which the Romans called culpa (in the narrow sense ofthe
term). Children will be taught to be careful not to bum down the
house, hut, or reindeer skin tent and not to wound someone with a
kitchen knife, javelin, or rock. Similarly, it is hard to imagine a society
in which it never matters whether a person gives their :;onsent. The
genius of the Roman jurists lays not in finding new concepts but in
seeing the legal significance of familiar ones.
They then refined these concepts by putting particular cases.
Their treatment of the concepts of possession, fault,, and consent
illustrates three difFerent ways in which they did so.
Sometimes, as when tiiey explained the meaning of possession,
they put cases that lay at the boundaries of a concept. A person who
had been deprived of possession had an action even if they were not
the owner. But could a person be in possession of an object of which
they no longer had physical control? Certainly. As LTpian said, "if
someone has gone away from his field or house leaving none of his
household there, and on his retum was . . . prevented from entering the
premises," they have been deprived of possession.'^ But what sort of
physical control was necessary to acquire possession? According to
Paulus, though possession must be taken physically, "tLiat should not
be taken to mean that one seeking to possess an estate must go round
every part of it. It is enough that he enters some part of the estate, but
with the intent and awareness that he seeks to possess the estate to its
furthest boundaries.'"^ According to Celsus:
If I instruct the seller to leave what I bought at my house, it is certain
that I possess it, even though no one has yet touched it. Again, if my
seller points out to me from my turret the neighboring land which I
have bought, and declares that he is giving me vacant possession, I
begin to possess it no less than if I set foot within its boundary.'"

12.
13.
14.

D. 43.16.1.24.
D. 41.2.3.1.
D. 41.2.18.2.

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A buyer of wie is in possession when they are given the key to the
cellar." The buyer of a pile of logs who has been told by the seller to
take it away is in possession as soon as they put a guard on them."
Sometimes, as when the jurists explained the meaning of
negligence, they put typical cases in which the concept would apply. A
pmner is negligent iftiieyharm someone by cutting off a branch over a
public way without calling out." If a farmer bums stubble and the fire
gets out of control, tiiey are neghgent if they did so on a windy day but
not if tiie day was calm and tiie fire spread because of a sudden gust of
wind.'* A javelin thrower is negligent if they kill sorneone by throwing
their javelin in an inappropriate place," as is the stoker of a fumace if a
fire starts because tiiey fell asleep instead of watching it,'" and a barber
who shaves a customer out of doors near a playing field and cuts the
customer when a ball strikes the hand holding the razor.^' Likewise, so
is one who digs a pit to catch a deer or bear in a pubhc place, where
someone might fall in, rather than in the usual place for such pits." A
mule driver is neghgent if tiiey are too inexperienced to control tiieir
mules," as is a carter if they loaded stones badly so tiiat one fell out of
the cart,^" and a doctor if tiiey were too unskillful to perform an
operation properly^^ or to prescribe therightdmg."
Sometimes, as when they explained consent in contract
formation, the jurists put cases that indicated distinct types of
situations to which a single concept would apply. Ulpian said:
It is obvious that in contracts of sale there must be consent. The sale is
invalid if there is disagreement either as to the fact of sale (in ipsa
emption) or the price or any other matter. If, therefore, I thought I was
buying the Cornelian estate and you that you were selling the
Sempronian, the sale is void on the ground that we were not at one as to
the physical thing sold {in corpore)
Of course, if we are merely in
disagreement over the name but at one on the actual thing, there is no
doubt that the sale is good; for if the thing is identified, a mistake over
15.
16.
17.
18.
19.
20.
21.
22.
23.
24.
25.
26.

D. 41.21.21.
D. 41.2.51.
D. 9.2.31.
D. 9.2.30.3.
D. 9.2.9.4.
D. 9.2.27.9.
D. 9.2.1 l.pr.
D. 9.2.28.pr.; 5eeD. 9.2.29.pr.
D. 9.2.8.1.
D. 9.2.27.33.
D. 9.2.7.8.
D. 9.2.8.pr.

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THE METHOD OF THE ROMAN JURISTS

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its name is irrelevant. Next comes the question whether there is a good
sale if there is no mistake as to the physical thing {in corpore), but there
is in regard to its substance {in substand), for example where vinegar is
sold for Wine, or copper for gold, or lead or something else resembling
silver for silver."
Ulpian concluded that consent had not validly been given, at least in
the case of the copper sold for gold and tiie lead sold for silver.
Curiously, he claimed that in the case ofthe vinegar sold for wine, the
parties had consented when the wine happened to sour, but not if it had
been deliberately soured to produce vinegar.
Sometimes the question was not the meaning of a single concept
but which of several concepts would apply to a given factual situation.
An example is the case of the gladiators in which the question was
whether the transaction was a sale or a lease. As that case illustrates,
the Roman jurists also answered this question by putting particular
cases. Suppose a goldsmith is paid to make a ring of a given weight
and design using their own gold. Cassius had said the transaction was
a sale ofthe material and a lease ofthe work,^* but according to Gaius,
most jurists regarded it as a sale unless the smith was given the gold
and a charge was fixed for his work, in which case it was a lease." But
suppose a contractor were to build for the owner of the building site,
acquiring all the materials and providing all the labor According to
Paiol, it was a lease ofthe contractor's services.^"
The way the jurists stated their cases was in one way concrete and
in another abstract. It was concrete in that each case concemed a
particular factual situation that might actually occur. It was abstract in
that among all the facts that might be encovmtered in real life, the
jurists mentioned only those that bore upon the legal problem they
wished to solve.
As we will see, this method was not that of later civil lawyers or
of common lawyers. But with it, the Roman jurists identified and
refined the concepts that are basic to the legal systems ofthe modem
world both in civil and in common law.
II.

ROMAN LAW AND GREEK PHILOSOPHY

As it has just been described, the method of the Roman jurists

looks nothing luce that of Greek philosophers such as Aristotle. As we
27.
28.
29.
30.

D. 18.1.9.
G. 3.147.
Id
D. 19.2.22

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have seen, unlike the philosophers, the jurists drew their concepts from
ordinary experience. Unlike the philosophers, the jurists did not
define their concepts and work out the logical imphcations of the
definitions. They explained them by putting particular cases. They
leapt from a concept to a conclusion about how it applied in a
particular case without explaining how they had got there, a feature of
their method that can be unsettling to those famihar with intellectual
traditions such as Greek philosophy, modem physics, or economics in
which one is supposed to describe the logical path that leads from
premise to conclusion.
Perhaps because the method of the Roman jurists was so
different, modem scholars have had trouble seeing how it could have
taken them so far. Many scholars have thought that the jurists' success
must have been due not to a concem for particular cases but to an
effort to transcend this concem. Many have thought that they did so
by borrowing from the Greeks. Thus, according to Paul Jrs, the
Roman jurists succeeded because they advanced from an approach
based on particular cases (CauteJaifunsprudenz) toward one based on
rules {Reglarjurspruden)!^ According to Giorgio La Pira," Fritz
Pringsheim," Fritz Schulz, and Peter Stein, they did so by borrowing
the method of Greek philosophy, and particularly that of Aristotle.^"
According to Aldo Schiavone, their method came from a "delicate and
crucial process of integration [with Greek philosophy,] which managed
to project Roman legal loiowledge beyond previously attained
horizons."^'
In Stein's account:
By the end of the [second] century the whole field of private law was
covered by juristic opinions given piecemeal, and it became necessary
to organise the mass of material in some way. The material remained
Roman, but the methods by which it was organised were Greek. It was
31.

PAUL JRS, RMISCHE RECHTSWISSENSCHAFT ZUR ZEIT DER REPUBLIK 295-313

(Berlin, Franz Vahlen 1888). For criticism of Jrs' use of evidence, see STEIN, iujaranote 1, at
32-33.
32. Giorgio La Pira, La genesi del sistema nella giursprudenza romana, in STUDIA ET
DOCUMENTA HISTORIAE ET IUKIS 319 (Aemilius Albertario ed., 1935).
33. Fritz Pringsheim, Beryt und Boiogna, in JURISTISCHE FAKULTT, UNIVERSITT
FREIBURG

IM BREISGAU,

FESTSCHRIFT

FR OTTO

LENEL

ZUM

FNFZIGJHRIGEN

DocTORjuBiLUM AM 16. DEZEMBER 1921, at 246 (1921); see STEPHAN MEDER,

RECHTSGESCHICHTE: EINE EINFHRUNG 53-54 (2d ed. 2005).

34. In contrast, Jrs thought that there was no evidence to support any conclusion
about Greek influence on the development of what he called Regulaijurisprudenz. JRS,
/7/anote 31, at 312-13.
35.

SCHIAVONE, supmvxiXt, 10, at 186.

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from Aristotle, in particular, that the Roman jurists learned these

methods. In his works they found a statement ofthe general technique
by which any science should be constructed."
The result, according to Stein, was a "scientific revolution."
According to Schulz, the use of Aristotelian dialectic
was a matter of extreme significance in the history of Roman
jurisprudence and therefore of jurisprudence generally. I: introduced
Roman jurisprudence into the circle of the Hellenistic professional
sciences and tumed it into a science in the sense in which that term is
used by Plato and Aristotle no less than by [Immanuel] Kan:."
These conclusions cannot be correct. They truly obscure the
unique contribution the Roman jurists made, which was not to borrow
from Greek philosophy, but rather to found an intellectual tradition of
their own that approached problems in a different way.
These modem scholars correctly understood Aristotle's idea of
the proper method to be followed in investigating a subject. Stein
described it very well: "We begin by accumulating experience....
From the stage of experience we pass to the stage of science . . . by
finding the common element in the particular cases which have been
observed."'* The discovery of this common element is "the method by
which first principles are reached. The final act of insight, whereby we
are 'led on' to recognise the principle which lies behind all the
particular instances, is itself an act of intuition fnousj!'^^ This act of
intuition, by which the first principles are grasped, makes deduction
possible.
Thus Aristotle conceived the development of a science as an upward
movement of thought, by . . . which first principles are discovered and
stated, followed by a downward deductive process io which the
necessary consequences of those principles are worked out,
. . . [T]he material obtained by these two movements fcan then] be
organised [systematically] according to its various partSs genera and
species!"

But the jurists did not use such a method. To show that they did,
Schulz and Stein note that Q. Mucius Scaevola used a general term
when he might have used one that was more particulaL He spoke of
the thefr of an "object," whereas M. Junius Bmtus, forty years earlier.
36.
3 7.

STEIN, supranote 1, at 33-35.

SCHULZ, supra note 11, at 67.

38.

STEIN, supranote 1, at 34.

39.
40.

Id at 35.
Id at 36.

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[VoL 87:933

had spoken of the theft of a "horse." That difference hardly supports

their conclusion that Scaevola was seizing on tiie common element in
the manner commended by Aristotie."' According to Schiavone,
"[T]he achievement of abstraction and concepts developed, in Roman
legal thought, not before, but in conjunction with, tiie use of [Greek]
models.""^ But as we have seen, Roman legal concepts were not
abstract in the same way as those of Greek philosophy. For the most
part, they were taken from ordinary experience. Nor were they
defined abstractly or the implications of the definitions logically
explored.
According to Schiavone, "the logical foundation" of the thought
of Scaevola, one of the founders of the Roman legal method, was "a
new analytical stmcture . . . identified in the articulation of the content
[into] modules of division by genera and species," an idea Scaevola
supposedly took from Plato and Aristotie."' In a similar vein, Schulz
noted that Scaevola distinguished several genera of possession.
Scaevola distinguished five kinds of tutorship and Servius Sulpicius
Ruftis four of theft."" But these distinctions were not genera in the
AristoteHan sense. For Aristotie, as noted, science depended on the
abstraction of first principles. The principles could be stated in a
definition that consisted of a genus containing several different species
and a distinction that made one species of thing different from all
others. Man is a rational animal. The genus is "animal," the
distinction is "rational," and taken together, they define tiie species to
which man belongs. The Roman jurists' Hsts of types of possession,
tutorship, and theft do not attempt anything of the sort. They are lists.
The Roman jurists are doing no more than a common lawyer does
when they say there are four traditional types of negative easement
(light, view, support, and the passage of water) or that there are three
types of burdens that run with the land (easements, real covenants, and
equitable servitudes). As Watson said, "[T]he drawing of these
distinctions could easily have occurred without the influence of Greek
dialectics; and witiiout the ftjrther division of a genus into its species
the essential Greek contribution is lacking.""'
Schulz and Stein also note tiiat sometimes tiie Roman jurists
phrased their opinions as general rules. Schulz cited two instances in
41.
42.
43.
44.
45.

SCHULZ, supranote 11, at 65-66; STEIN, supranote I,at45.

SCHIAVONE, supra note 10, at 198.
/ a t 184-85.
SCHULZ, supra note 11, at 65.
WATSON, supra note 1, at 163.

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943

which tiiey did. Stein cited another seven. Certainly, the Roman
jurists sometimes found it useful to formulate general rulss. Stein may
even be right that "[t]hese propositions show a confident mastery of
tiie relevant material coupled v^tii an ability to pick out the universal
element from the mass of opinions and express it in precise terms."'^
Nevertheless, none of tiie rules that Schulz"' and Stein"' mention look
anything like an Aristotelian first principle. They were statements
about regularities that had been observed in particular cases. As the
jurist Paulus explained:
A rule (regula) briefly explains a res [a thing, event, or fact]. The law is
not taken from rules, but the rule^ comes from the law. Therefore the
rule is a brief statement of the res which is handed down (traditui). So,
as Sabinus says, it is a putting together (coniectid) of causae [meaning
cases or arguments and reasons"'] which loses its force as soon as it is
defective in any way.'
After a detailed analysis of this passage and others. Stein himself
concluded that some jurists thought that a mle "was merely a reflection
of tiie actual state of the law and had no independent normative force";
others recognized tiiat "[b]y his choice of terms the jurist who
formulated the rule made a positive contribution of his own."'' By
either view, "[i]n the classical period, the term regula connoted a
juristic rule, which summed up what had been handed down (tradit)

46.
STEIN, supra note 1, at 38.
47.
The only kind of work one could do on public holidays was work that would
prevent damage from occurring. MACROB. SAT. 1.16.10.2. The widow ofC. Gracchus could
not obtain the retum of her property from her husband's heirs after his murder for his political
activities on the grotind that a husband is responsible for damage caused by himself
intentionally or through negligence. D. 24.3.66.pr.; SCHULZ, supra note 11 at 65.
48.
An act is done by force and therefore a party's possession gaild by force is not
protected when the act is prohibited. D. 50.17.73.2. Whatever is not attached to the soil or
part of a building does not pass to the buyer of land. D. 50.16.241. Whaxver is written in a
testament, and cannot be understood, is treated as though it had not been written.
D. 50.17.73.3. One cannot provide a benefit for another by making an agreement or
stipulation in their favor. D. 50.17.73.4. No one can appoint a tutor except to one whom they
have as their heir. D. 50.17.73.1. Whoever is a tutor for a person has a tutor's power over
their estate (when he dies) except when the heirs are female. D. 50.17.73.pr. If C steals
goods from .5 that 5 had stolen from A, 5 cannot get them back because the actio Art/only
protects "the person whose interest it was that the thing which was taken should be
untouched." D. 47.2.77; STEIN, supranote 1, at 36-38,46.
49.
In context, causae seems to mean cases, but according to GaiiB, the parties would
summarize their case before the iudex, "and [t]his was called causae coniectio!' G. 4.17. The
parties were bringing together the arguments or reasons why they should prevail.
50.
D. 50.17.1.
51.
STEIN, supra note 1, at 73.

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by juristic practice."" Given the examples that Stein mentions, it is

hard to think that rules in the late Roman Republic were regarded
differently.
In a celebrated study, Theodor Viehweg pointed out that the
Roman jurists' method was not based on deductive reasoning." Critics
such as Max Kaser and Franz Horak attacked that conclusion." Arthur
Schiller tried to keep the peace by claiming that the Romans used all
the types of reasoning for decision making that modem legal thinkers
are accustomed to employ." Yet the text Schiller presents as an
example of Roman legal reasoning is the one quoted earlier in which
Paulus explained possession by putting particular cases. Viehweg's
critics did not cite texts in which the Romans used a genuinely
deductive method of reasoning. Indeed, Erwin Seidl has shown that
the Romans hardly ever did." Rather, they assume that because valid
reasoning is deductive, the Roman jurists must have been using it.
Nevertheless, Viehweg also thought that the Roman jurists took
their method from Aristotle. It was not the method based on the
abstraction of first principles but the problem-based method that
Aristotie described in Topics that reached conclusions that are tentative
rather than certain. TTiere, Aristotle distinguished demonstration,
which reasons from first principles and is characteristic of science,
from dialectical argument, which reasons from !'reputable opinions."
Dialectical argument may proceed by "deduction," which shows that
"certain things being laid down, something other than these necessarily
comes about through them."" It may also proceed by "induction,"
which "is a passage from particulars to universals, e.g., the argument
that supposing the skilled pilot is the most efFective, then likewise the
52.

Id at no.

53.
54.

THEODORVIEHWEG,TOPIK UND JURISPRUDENZ (4th ed. 1969).

FRANZ HORAK, RATIONES DECIDENDI: ENTSCHEIDUNGSBEGRNDUNGEN BEI DEN

LTEREN RMISCHEN JURISTEN BIS LABEO 45-64 (1969); MAX KASER, ZUR METHODOLOGIE
DER RMISCHEN RECHTSQUELLENFORSCHUNG 53 (1972).
55.

A. ARTHUR SCHILLER, ROMAN LAW: MECHANISMS OF DEVELOPMENT 382-83

(1978).
56.

Erwin Seidl, Labeos geistiges profil, in 1 E\COLT DI GIURISPRUDENZA,

UNTVERSIT DI ROMA, STUDI IN ONORE DI EDOARDO VOLTERRA 63, 64-68 (1971).

Seidl

believes that they did so in only two cases: in interpreting the words of a testament and in
interpreting those ofthe edict ofthe praetor. In both cases, their reasoning began, of course,
with the word in question. But that would not show that their reasoning was deductive unless
they were treating the word as an abstract concept from which conclusions could be derived
by deductive logic. Instead, as his examples indicated, they were trying to determine what the
testator or the praetor meant by the word, a question that tumed on conventional usage and
common sense.
57.

ARISTOTLE,TOPICS I, i 100 25-26.

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THE METHOD OF THE ROMAN JURISTS

945

skilled charioteer, then in general the skilled man is ttie best at his
particular task."^* As we have seen, however, the Roman jurists were
not reasoning from reputable opinions. They were giving their own
opinions as jurists as to how legal concepts applied to particular cases.
They were neither deducing the results in the cases from the concepts,
nor deriving general conclusions about the concepts from the results in
the cases. As Jrgen Blhdom has shown," to identify the method of
the Topics wh. that of the Roman jurists, Viehweg had to misread the
Topics.
Marcus Tullius Cicero understood how different ths work of the
jurists was from the treatises of the Greeks. He lived during the period
that Schulz called "[t]he heroic age of creative geniuses and daring
pioneers,"*" during which the jurists developed the method that
classical jurists were to perfect. If Sextus Pomponius is correct," the
civil law was "founded" in the half century before Cicero's birth. As a
young man, Cicero attended the legal consultations of Scaevola, the
first jurist to write a commentary on civil law. Cicero did not like what
he saw, especially as compared with Greek learning. The jurists
concemedtiiemselveswith trifles. According to Atticus, a character in
one of his dialogues, "[T]hough they have made great claims, [they]
have spent their time on unimportant details."*^ They write about "the
law of eaves and house-walls [de pan'etum]" and about "the formulae
for making a stipulatio or bringing a legal action.'"^ "[A]ll this
amounts to little so far as learning is concemed.'""
Moreover, according to Cicero, the method of the jurists was too
unsystematic to be intellectually respectable. In his dialogue De
oratore, Licinius Crassus explained that the reason that the study of
law was "a matter of great difficulty" was that "no one [had been] able
to distribute these matters into their kinds and arrange them as an
ar5."" By an ars, Cicero did not mean a science as Aristotle had
conceived it: an exercise of theoretical as opposed to practical reason
in which first principles are abstracted and conclusions follow
deductively. For him, an ars was an orderly and systematic
58.

ARISTOTLE,TOPICS I, xii 105" 10-15.

59. Jrgen Blhdom, Kritische Bemerkungen zu Theodor Viewegs Schri: Topik

und Jurisprudenz, 38 TIJDSCHRIFTVOORRBCHTSGESCHIEDENIS 269,278,3C7 (1970).
60. SCHULZ, supra note 11, at 99.
61. D. 1.2.2.39, .41.
62.

CICERO, DE LEGIBUS 1.4.14.

63.
64.

Id.
Id

65.

CICERO,DEORATORE 1.41.185-.186.

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presentation of practical knowledge like a Greek treatise on rhetoric.

He said, "Ars is the synthesis of disciplined observations for some
pvupose useful to Hfe."** It was a definition taken from the Stoics and
has been attributed to Zeno." The word he was translating as "ara''
was the Greek word ''techne" which means a useful or applied body of
knowledge.''*
Cicero believed that law should be made into an ars, but the
jurists had failed to do so. In a dialogue, his character Licinius
explains that one should proceed by
dividing the entire civil law into its genera, which are very few, and next
distributing what I may call the members of those classes, and after that
making plain by definition the proper significance of each, [and] then
you will have a perfect ars of the civil law, magnificent and copious but
neither inaccessible nor mysterious."
The disorderly work of the jurists did not rise to the level of an ars.
Later in the same dialogue, Antonius complained:
[T]he jurists embarrass us andfrightenus away from learning. For I
observe that in the treatises of Cato and Brutus the advice given to
clients of either sex is generally set dovwi with the parties named, I
suppose, to make us think that some reason for seeking advice or for
the discussion originated in the parties and not in the circumstances, to
the end that, seeing the parties to be innumerable, we might be
discouraged from studying the law, and might cast away our inclination
to leam at the same moment as our hope of mastery. But these matters
Crassus will one day disentangle for us and set forth arranged under
heads.
Judging from the texts that have survived, to reproach the jurists
for mentioning the names ofthe parties seems unfair. Names are rare,
and the cases are usually stated so abstractly that one cannot tell
whether they are real or hypothetical. But Cicero evidently did not see
why the jurists should discuss particular cases instead of presenting the
law "under heads" as an ars Once that task had been accomplished,
Crassus explained, "[N]o ari would be easier of attainment."" It could
be leamed by the nonspecialists along with other artes, such as
66.

1 STOICORUM VETERUM FRAGMENTA 2111.19-20 (Joannes ab Amim ed., 1905).

67.

By Olympiodorus. Id. at 21 11. 3-6. On Stoic doctrines of ars, see NEAL W.

GILBERT, RENAISSANCE CONCEPTS OF METHOD 11 -13 ( 1960).

68.
For the definitions of "Olympiodorus" and "Lucianus," see 1 STOICORUM
VE-TERUM FRAGMENTA, Supranote 66, at 21 11. 3-8.
69.

CICERO, D E RATORE 1.41.191.

70.
71.

Id
/ d at 1.41.185.

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THE METHOD OF THE ROMAN JURISTS

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rhetoric. It could be leamed by the oratores who actually argued cases

but had no specialized legal training. Would there then be any need for
jurists? Cicero does not say. According to Aulus GeHius, Cicero wrote
a work. De iure civile in ariem redigendo, or "The Civil Law Redacted
as (or Reduced to) an Art."" But it disappeared and left no trace on tiie
work of the jurists" who, as Stein observed, "tumed their backs on
Cicero's idea of converting the civil law into a science composed of
clear-cut rules.'"" There was no doubt in Cicero's mind tliat jurists had
not leamed their metiiod from tiie Greeks.
As we have seen, the jurists did not take their method from the
Greeks. It was an intellectual innovation as strikingly original as those
of GaHleo Galilei, Isaac Newton, and Adam Smitii, who founded
modem physics and economics.
III.

ROMAN LAW AND LATER CIVIL LAW

Much of modem civil law is based on concepts that the Roman

jurists identified and refined. Nevertheless, today it is commonly said
tiiat a distinctive feature of civil law is tiiat it depends on principle and
on system. The civil law is organized into fields such as property, tort,
contract, and unjust enrichment. Each is explained by a series of rules
and principles that are to govem it.
It may surprise some modem civil lawyers tiiat Roman law was
so different. Roman law was not based on a set of rule 3 or principles
that tiie jurists themselves articulated. Neitiier did Roman law have a
systematic doctrinal stmcture. For example, tiie Romans did
distinguish ownership from possession. But ownership, for them, was
not simply an exclusive right to property. There were many types of
ownership that involved pardal rights or rights of the public in
general." They discussed possession not in the abstract, but in tiie
context of a variety of actions known as possessory interdicts. As legal
historians have often said, the Romans did not have a unified tort law

72.

AULIUSGELLIUS,NOCTESATTICAE 1.22.7.

73. In Brutus, Cicero praised his friend, the jurist Servius Sulpicius Rufus for using
dialectic and treating law as an ars. CiCERO, BRUTUS 41.152. Schulz calls that statement a
"gross exaggeration." SCHULZ, supra note 11, at 69. Even if it were true, it did not shape the
work of later jurists or even their use of Servius' work. As Stein noted, the surviving
references to Servius' writings do not suggest a systematic treatment of law. STEIN, supra
note I,at42.
74. STEIN, sz/pya note 1, at 102.
75.
Seel.2.\.

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or contract law." They had a series of particular torts and contracts,

each with its ovra rule. Thus when they discussed fault, it was in the
context of an action under the Lex Aquilia for harm done to another
wrongfully. There were other actions in tort, some of which did not
require fault. When they discussed consent in contract formation, it
was in the context of a particular contract, the contract of sale.
Doubtiess, they would have decided cases involving other conti:^cts
such as lease in a similar way. But they did not describe consent as an
element in a general law of contracts. Indeed, the first Roman jurist to
distinguish contract and tort (contractus and delictus) was Gaius," who
may have taken it from Aristotle's distinction between commutative
justice in voluntary and involuntary transactions." Having presented
that distinction, instead of exploring its consequences, Gaius discussed
tiie particular contracts and torts recognized in Roman law.
When we consider their method, it is not surprising that the
Roman jurists did not try to formulate general rules or principles or
develop a systematic doctrinal stiiicture. Their metiiod did not require
them to do so. It required a stock of concepts of legal significance that
they could refine by putting particular cases. When the jurists had to
decide which of two concepts to apply to a particular situation such as
sale or lease, they also resolved that question by putting particular
cases. Their method did not require them to define their concepts or
explain the relationship between one concept and some higher-level
concept.
As I have described elsewhere, it was not until the sixteenth
century that private law was explained by general rules and principles
and given a systematic doctrinal stmcture. The work was done by a
group centered in Spain and known to historians as tiie "late
scholastics." They set themselves tiie task of syntiiesizing Roman law
with Aristotehan moral philosophy as reworked by Thomas Aquinas."
76.

5ee WATSON, supra note 1, at 169-70; J.A.C. THOMAS, TEXTBOOK OF ROMAN LAW

226(1976).
77. G.3.88.
78.
A.M. HONOR, GAIUS 100 (1962); MAX KASER, DAS RMISCHE PRTVATRECHT 522
(1959); REINHARD ZIMMERMANN, THE LAW OF OBLIGATIONS: ROMAN FOUNDATIONS OF THE

CIVILIAN TRADITION 10-11 (1990); Helmut Coing, Zum Einffu der Philosophie des
Aristoteles auf die Entwicklung des rmischen Rechts, 69 ZEITSCHRIFT DER SAVIGNYSTIFTUNG FR RECHTSGESCHICHTE 24,24-59 ( 1952).
79.

JAMES GORDLEY, THE PHILOSOPHICAL ORIGINS OF MODERN CONTRACT DOCTRINE

69-111 (1991); James Gordley, Contract, Property, and the WillThe Civil Law and
Common Law Tradition, in THE STATE AND FREEDOM OF CONTRACT 66 (Harry N. Scheiber

ed.,

1998); James Gordley,

The Principle Against

Unjusdfed Enrichment, in

GEDCHTNISSCHRIFT FR ALEXANDER LDERITZ 213 (Haimo Schack et al. eds., 2000); James

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THE METHOD OF THE ROMAN JURISTS

949

Roman law and Aristotelian philosophy had been studied intensively in

the Middle Ages, but by different scholars in different faculties. The
late scholastics attempted to combine the two by providing Aristotehan
philosophical explanations for the conclusions of the Raman jurists.
Roman law and Greek philosophy had finally encountered each other.
In the seventeenth century, many of the conclusions of the late
scholastics were taken over by a school of jurists founded by Hugo
Grotius and eventually passed into modem private law. Paradoxically,
they were disseminated throughout Europe even though the
philosophical ideas on which these conclusions had been founded were
falling from favor
IV. ROMAN LAW AND COMMON LAW

A distinctive feature of common law is that it vas based on

decided cases. Stein has noted that the work ofthe Roman jurists and
that ofthe common law judges was similar in that it depended on the
use of particular cases.'" But it would be a mistake to think that the
method of the English judges who founded the common law was like
that ofthe Roman jurists. They were using their cases in very different
ways.
The Roman jurists used cases to clarify the meaning of general
concepts such as ownership, possession, fault, sale, and lease.
Traditionally, Enghsh judges used cases to determine the boundaries of
the writs recognized by the common law courts. To bring a case
before a common law court, the plaintiff had to obtain a "writ" from
the royal chancellor. At first, the chancellor created new writs as new
cases arose that in his judgment, the royal courts ought to hear.
Eventually, the number of writs became frozen, so that by the
fourteenth century, no new writs were being created. Until the
nineteenth century, to obtain relief, the facts ofthe plaintiff's case had
to fit one of the existing writs, often called the "forms of action."
Whether they did was determined by reference to the cases that had
previously been decided. The judges did not try to cetermine the
scope of writs by such general concepts as possession, fault, or
consent, nor did they regard their cases as significant because they
clarified such concepts. The cases were a body of lore that grew up
around each writ without reference to any such general concept.
Gordley, Tori Law in the Aristotelian Tradition, in PHILOSOPHICAL FOUNDATIONS OF TORT

LAW 131 (David G. Owen ed., 1995).

80. Peter G. Stein, Roman Law, Common Law, and Civil Law, 66 TUL. L. REV 1591,
1591-92 (1992).

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Consequently, while the Roman jurists developed a substantive law

based on these concepts that was largely independent of procedure, the
English judges never developed a substantive law that stood apart from
the procedural question of what writ the plaintiff could bring. As Sir
Henry Maine said of writ system, substantive law was "secreted in the
interstices of procedure."*'
The great historian Frederic Maitland once said that when the
history of the common law is finally written, we will understand how
the common lawyers arrived at "the great elementary conceptions,
ownership, possession, contract, tort and the like."*^ As Charles
Donahue has said: "[W]e know a considerable amount more today
than we did when Maitland wrote.... What we have leamed,
however, is puzzling. Relatively little of the history of the forms of
action seems to deal with 'the great elementary conceptions,' like
ownership, possession, tort and contract."" A.W.B. Simpson believed
that these conceptions and a great deal else were borrowed from the
civil law in the nineteenth century and grafted on to the writs and case
law.'"
It is not surprising that conceptions such as these did not emerge
from the traditional case law because, traditionally, the judges were not
trying to delimit the scope of the writs by reference to general
concepts. Indeed, as I have shown elsewhere,*' it was only in the
nineteenth century that the common law adopted the basic concepts
that we have examined here: the protection of possession, liability for
fault, and the effect of mistake on consent to a contract.
The English courts were never clear about whether they were
protecting ownership or possession until the Court of Queen's Bench
decided Asher v. Whitlockm 1865.'* In prior cases, the courts had
allowed the prior possessor to recover by saying prior possession was
81.

SIR HENRY SUMNER MAINE, DISSERTATIONS ON EARLY LAW AND CUSTOM 389

(New York, Henry Holt & Co. 1883).

82.

FREDERIC WILLIAM MAITLAND, Why the History of English Law Is Not Yet

Written, in 1 THE COLLECTED PAPERS OF FREDRIC WILLIAM MAITLAND 480, 484 (H.A.L.

Fisher ed., 1911).

83.
CHARLES DONAHUE JR., WHY THE HISTORY OF CANON LAW IS NOT WRITTEN:
SELDEN SOCIETY LECTURE DELIVERED IN THE OLD HALL OF LINCOLN'S INN, JULY 3RD, 1984, at

6 (1986).
84. A.W.B. Simpson, Innovation in Nineteenth Century Contract Law, 91 L.Q.R. 247
(1975); see James Gordley, The Common Law in the Twentieth Century: Some Unfnished
Business, 88 CALIF. L. REV 1815 (2000).
85. James Gordley, Brendan Brown Lecture Series, lus Civile and Civil Codes:
Lessons irom the Romans, 54 LOY. L. REV 555,563-65 (2008).
86. (1865) 1 L.R. 1 (Q.B.) 6. The coiirt flip-flopped. It had held the opposite in Doe
ex dem. Carier v Barnard, ( 1849) 116 Eng. Rep. 1524 (Q.B.); 13 Q.B. 945.

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THE METHOD OF THE ROMAN JURISTS

951

evidence of title" or forcible dispossession by the defendant was

evidence of title.**
As late as the eighteenth century, it was still impossible to know
whether the fault of the defendant mattered in common law when the
plaintiff was trying to recover for harm done to them. As S.F.C.
Milsom and C.H.S. Fifoot have pointed out, they failed to distinguish
between fault-based and strict liability.*' Some judges said that the
defendant was not liable if they had done their best,"* some said that
they were," and some said they could escape hability if their conduct
were the product of "unavoidable necessity.'"^ It is hard to know what
these statements meant to the judges who made them. For example, in
Weaver v. Ward, a member of a company of part-time soldiers had
injured another when his musket accidentally fired." Hb pleaded that
he was not at fault. The court said that he was Hable anyway but would
be excused if he were "utterly without... fault," if the accident were
"inevitable," and if he "had committed no negligence to give occasion
87. Doe ex dem. Humphrey v Martin, (1841) 174 Eng. Rep. 395 (K.B.); Carr & M.
32; Denn ex dem. Tarzwell v Barnard, (1777) 98 Eng. Rep. 1259 (K.B.); 2 Cowp. 595.
88. Doe ex dem. Hughes v. Dyeball, (1829) 173 Eng. Rep. 118': (K.B.); M. & M.
345. The court did not explain whether the plaintiff won because he had possession or
because possession was regarded as evidence of title. Chitty, for the defendant, objected that
plaintiff had not proven title. Lord Chief Justice Tenterden answered: "That does not signify;
there is ample proof; the plaintiff is in possession, and you come and turn him out: you must
shew your title." Id. at 1184. Dispossession, then, was proof of title. The headnote
summarized, "Prior possession, however short, is a sufficient prima facie title in ejectment
against a mere wrong-doer." Id.
89.
C.H.S. FIFOOT, HISTORY AND SOURCES OF THE COMMON LAW: TORT AND
CONTRACT 189,191 (1949); S.F.C. MILSOM, HISTORICAL FOUNDATIONS OFTHE COMMON LAW

392-98 (2ded. 1981).

90. E.g., The Thorns Case, Y.B. Mich. 6 Ed. 4, fol. 7, pi. 18 (1466) (Choke C.J.) ("As
to what has been said that they [thorns] fell ipso invito [on another's land], this is not a good
plea; but he should have said lat he could not do it in any other manner of that he did all that
was in his power to keep them out."); Mitten v Faudrye, (1626) 79 Eng. Rep. 1259 (K.B.)
1260; Popham 161 (excusing defendant because he had "done his best endeavor"); Wakeman
V Robinson, (1823) 130 Eng. Rep. 86 (C.P) 87; 1 Bing. 213 (Dallas C.J.) ("If the accident
happened entirely without default on the part of the Defendant, or blame imputable to him,
the action does not lie.").
91.
The Thorns Case, Y.B. Mich. 6 Ed. 4, fol. 7, pi. 18 (Littleton Ji) ("If a man suffers
damage, it is right that he be recompensed."); Lambert v. Bessey, (16821 83 Eng. Rep. 220
(K.B.) 221; Raym. Sir T. 421, 467 (Sir Thomas Raymond) ("In all civil a^ts the law doth not
so much regard the intent ofthe actor, as the loss and damage ofthe party suffering."); Leame
V Bray, (1803) 102 Eng. Rep. 724 (K.B.) 727; 3 East. 593, 600 (Grose J.) ("[I]f the injury be
done by the act ofthe parfy himself at the time, or he be the immediate cause of it, though it
happen accidentally or by misfortune, yet he is answerable in trespass.").
92. Dickenson v. Watson, (1682) 84 Eng. Rep. 1218 (K.B.) 1219; Jones, T 205
(stating that defendant who had shot the plaintiff and pleaded accident was not excused "for
in trespass the defendant shall not be excused without unavoidable necessrty").
93. Weaver v. Ward, (1616) 80 Eng. Rep. 284 (K.B.); Hobart 134.

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to tiie hurt."'" As Fifoot said of this case, "'Fault,' 'inevitable accident,'

'negHgence,' are words used indiscriminately witiiout reflection and
almost without meaning.'"^
It was not until 1865, in tiie now-famous case of Raffles v
Wichelhaus, that an EngHsh court finally said, like tiie Roman jurists,
tiiat mistake could prevent the formation of a contract because the
parties must consent to tiie same tiling.'* As Simpson noted, tiie
common law judges said very little about mistake until tiie nineteentii
century." Even then, they avoided saying much about it for a long
time. When a buyer of a bar of silver was mistaken as to how many
ounces it contained, the court said tiiat tiiere was no warranty as to tiie
number of ounces.'* When a buyer of "ware" potatoes mistakenly
tiiought he was getting "Regent's ware" and received "Kidney ware"
instead, tiie court applied the parol evidence rule to prevent hin from
proving the mistake." When a buyer purchased one hundred chests of
"Congou" tea because tiie seller had mistakenly shown him a sample
of a quite different tea, tiie court held that tiie buyer need only
compensate tiie seller for any difference in the quality oftiietea.'""
Maine seems to have thought that the writ system marked a midpoint in a natural process that leads all societies from formalistic
procedures like tiiose of early Germanic societies to a substantive law
like tiie one the Romans developed or tiie English eventually adopted.
That is not what happened. Altiiough Romans had particular actions,
tiiey never had anything like tiie EngHsh writ system, let alone tiie
EngHsh method for determining the scope of a writ. Moreover, once
the English had estabHshed tiieir writ system, tiiere was no natural
process that required it to disappear. It may have worked weH enough
for practical purposes. It was still intact when the English had
developed a commercial empire in tiie seventeenth and eighteentii
94.
/ a t 284.
95.
FIFOOT, supra note 89, at 191. On account of these uncertainties, the plaintiff
might sue, not in a trespass action but in trespass on the case, and allege that the defendant
acted negligently in his statement of the facts that supposedly called for relief Sometimes,
the plaintiff did so. MILSOM, supra note 89, at 394. But even then, it is not clear what the
allegation meant, /d at 399; A.I. Ogus, Vagaries in Liability for the Escape of Fire, 27 C.L.J.
104, 105-06 (1969). It might or might not mean negligence in the modem (or ancient
Roman) sense. Certainly, judges did not instruct the jury to ask themselves whether the
defendant had behaved like a reasonable person. In any event, the defendants also brought
actions of trespass on the case without alleging negligence. MILSOM, supra note 89, at 394.
96.
(1864) 159 Eng. Rep. 375 (Ex.); 2 H. & C. 906.
97.
Simpson, supra note 84, at 265-69.
98.
Cox V Prentice, (1815) 105 Eng. Rep. 641 (K.B.); 3 M. & S. 344.
99.
Smith V. Jeffryes, (1846) 153 Eng. Rep. 972 (Ex.); 15 M. & W. 561.
100. Scott V. Littledale, (1858) 120 Eng. Rep. 304 (K.B.); 8 El. & Bl. 815.

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953

centuries and began to industrialize in the early nineteen Ji century. It

was displaced in the nineteenth century when common lawyers
became concemed, not with resvilts that courts were reaching (which
they accepted and tried to explain), but with how to explain these
results. As mentioned, they did so by borrowing much from the civil
law. Before the nineteenth century, the English had a learned tradition
but not an intellectual tradition, if by that one means a tradition that is
concemed with explanations. In the nineteenth century, the tradition
became intellectual as well as leamed. The cases were now significant
because they were illustrations of general concepts of substantive law.
Only at this point did the common lawyers' use of particular cases
resemble that of the Roman jurists.
V.

A FINAL QUESTION

A final question is why the Roman jurists developed the method

they did. Perhaps that question cannot be answered. Other
civilizations have administered law without producing a class of
lawyers with specialized legal training. In Athens, the discretion to
decide cases was given to lay people such as the Atiienian jurors who
did so without leamed advice. The Romans might have done the
same. Criminal cases in the late Republic were decided by assemblies
of several dozen laymen, and the jurists had little to say about criminal
law. "There were other courts for civil cases, one type with . . . thirty
to forty members, another with . . . five.'""' In other civizations, such
as China, lawsuits were decided by judges who had received a
generalized education that was thought to fit them for any important
role in government. It is ahnost surprising that the Romans did not do
so as well. Rome was govemed by nonspeeialists who came, typically,
from upper-class families and received an all-around education that
was supposed to prepare them to serve as a praetor or a consul, to
make speeches, to lead armies, and eventually to take a place in the
senate. Of those who played a leading role in government, only the
jurists were trained as specialists. Indeed, the administration of law
can depend on a class of leamed men with specialized legal training
and yet not develop an intellectual tradition like that cf the Romans.
English common law, as it was for many centuries, is an example.
Once an intellectual tradition is started, one can say a good deal
about its method and why its practitioners took the course they did. It
is a different matter to explain why the tradition got started at all. One
101.

JOHN P D A W S O N , T H E ORACLES OF THE LAW 101 (1968).

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cannot see why Rome should have produced jurists or Greece

philosophers. One cannot see why there should have been a Galileo, a
Newton, or an Adam Smith.

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