Jurisprudence in ancient rome

Author:Cristinel-Ioan Murzea
Position:Professor, Ph.D. - Transylvania University of Brasov
Pages:130-137
SUMMARY

Among the formal sources of law, jurisprudence occupies a central position, as, by its form and content, it brought expression to a system of law which would become the fundament of law in posthumous ages, thus creating a treasure of ancient civilizations in regard to universal cultural and scientific patrimony. Initially, jurisprudence was achieved by empirical means, by the so-called case interpretation which was unable to provide the necessary background in order to elaborate universal principles of law or systematized interpretation which would represent the fundament of future legal construction. In the classical age, jurisprudence will reach its highest level, thus giving new dimension to the greatness and glory of Roman law, as legal advisers of those times will phrase principles and rules of law by combining different legal cases; thus, they prove to be great exegetes with a real sense of enforcing laws, thus, the regulations of ius civiliae become abstract legal provisions. This is the reason why the most interesting source of law of this age is responsa prudentium, namely the consultations given by the legal advisers; during this age, these consultations are no longer simple opinions which do not oblige the judge, but special concessions form the emperor, thus becoming mandatory regulations. Although, in present times, this possibility of the judge to rule by considering the opinion of a legal adviser, which might tilt the balance of justice one way or another is no longer in effect, the legal advisers still maintain their influence over the rulings of courts even if by indirect means, as is the case of appeal in the interest of law.

 
CONTENT
130 CRISTINEL-IOAN MURZEA
JURISPRUDENCE IN ANCIENT ROME*
Cristinel-Ioan MURZEA**
Abstract: Among the formal sources of law, jurisprudence occupies a central position,
as, by its form and content, it brought expression to a system of law which would become
the fundament of law in posthumous ages, thus creating a treasure of ancient civilizations
in regard to universal cultural and scientific patrimony. Initially, jurisprudence was
achieved by empirical means, by the so-called case interpretation which was unable to
provide the necessary background in order to elaborate universal principles of law or
systematized interpretation which would represent the fundament of future legal
construction. In the classical age, jurisprudence will reach its highest level, thus giving new
dimension to the greatness and glory of Roman law, as legal advisers of those times will
phrase principles and rules of law by combining different legal cases; thus, they prove to be
great exegetes with a real sense of enforcing laws, thus, the regulations of ius civiliae
become abstract legal provisions. This is the reason why the most interesting source of law
of this age is responsa prudentium, namely the consultations given by the legal advisers;
during this age, these consultations are no longer simple opinions which do not oblige the
judge, but special concessions form the emperor, thus becoming mandatory regulations.
Although, in present times, this possibility of the judge to rule by considering the opinion
of a legal adviser, which might tilt the balance of justice one way or another is no longer in
effect, the legal advisers still maintain their influence over the rulings of courts even if by
indirect means, as is the case of appeal in the interest of law.
Key words: Public law, jurisprudence, social norm, legal norm, configuration factors of the
law, society.
Among the sources of Roman law, in the formal meaning of the term,
jurisprudence has an important place as it has a special meaning on a national
level, as opposed to the usual meaning of the term, in case of Roman legal culture,
juris prudentia was the science of law, namely what we call today the doctrine of
law; on the other hand, the obvious reality that all exegetes who have analyzed the
legal phenomenon of ancient Rome have unanimously pointed out that juris
* The article was prepared for the International Law Conference, "Current Issues within EU and
EU Member States: Converging and Diverging Legal Trends", 3rd edition, organized by the Faculty of
Law – Transylvania University of Brasov on the 29th-30th of November 2019.
** Professor, Ph.D. – Transylvania University of Brasov (cristinel.murzea@unitbv.ro).
Law Review special issue, Decembre 2019, pp. 130-137
Jurisprudence in ancient Rome 131
prudentia was not a simple factor of configuring law, as it proved to be a true
formal source of law during the 12 centuries of Roman civilization.
If, nowadays, jurisprudence is the ensemble of solutions by the courts of law in
solving different cases, in ancient Rome, the legal term of juris prudenţia was in fact
„the doctrine elaborated by Roman legal advisers by interpreting the legal
regulations”1.
Starting from this reality, the ones called upon to interpret the legal regulations
and to enforce them in regard to different cases, sometimes by subtly completing
or even changing them, by an obvious activity of creating law, were called juris
prudentes, a term which derived from the Latin name of science of law, namely juris
prudentia. It was stated in specialty literature that Roman legal advisers were not
only scientists2, who had thorough knowledge of the Roman system of law, but
they also became creators of law through their entire activity; they participated in
the complex process of creating Roman law, which subsequently became a huge
treasure of the ancient civilization thus, influencing the subsequent European
regulations.
This activity was extremely productive, as mentioned by a source of law of
that time, and took place between the second century BC and the first decades of
the third century AD, when the Roman legal advisers were allowed to contribute
to the process of creating law3.
Thus, even from the old age, the Roman legal advisers, along with the specific
process of interpreting jus civilae by using the principle of judicial syllogism, have
also created new legal institutions, by using the text of the 12 tables, as is
adoption4, emancipation, in iure cessio, per aes et libram will and so on.
When analyzing the evolution of Roman jurisprudence, several stages can be
noticed.
A first stage, which in its turn, contains two phases, is represented by the old
age jurisprudence, in which case we can distinguish between sacred jurisprudence
and laic jurisprudence.
Sacred jurisprudence debuts at the time the Roman state was created, namely
the fourth century BC and lasts until the year 304 BC, when Gnaeus Flavius, a
freed slave of the Patrician Appius Claudius Caecus has divulged a series of tables
by posting them in the forum of legal sanctions, along with the calendar of trial
days – dies fasti – days when justice can be administered, namely complaints could
1 T. Sâmbrian, Roman law institutions, Craiova: Sitech, 2009, p. 40.
2 A. Schiavone, The legal adviser, in „L’uomo romano”, Roma-Bari, 1989, Romanian edition –
Andrea Geardina (coordinator), the Roman man, translation by Dragoş Cojocaru, Iaşi Polirom
Publishing House, 2001, p. 84.
3 Cf. Gaius, 1.7.
4 C.Şt. Tomulescu, Private Roman law, Bucharest: Ministry of Education press, 1956, p. 36.
132 CRISTINEL-IOAN MURZEA
be filed according to the will of the gods in the spirit or Roman tradition5. For his
endeavor, as a reward from the people, he would later be appointed tribune and
edili curuli.
By referencing this historical time, Titus Livius stated the following in regard
to the deed of Gnaeus Flavius „he has divulged civil law hidden to a great extent
by the pontiffs and has posted the calendar in the forum so anyone would know
when he can file a complaint of law”6.
During this time, jurisprudence is a of a primary character with obvious
interference from the magical-religious practice administered by the pontiffs – the
great priests – the only ones allowed to know and interpret the legal regulations
and the only ones who were able to show the interested parties the formulas which
would be used in order to valorize their subjective rights and interests.
The methods by which legal regulations were interpreted, as they were
considered a gift of the gods given to the Roman people, as well as the means by
which several cases were solved by interpreting these rules, was a mystical activity
for the Roman people; thus, only priests which came from the great Patricians
would know and administer these regulations, according to their own interests.
The parties among which the litigation occurred would be forced to address the
pontifical college in order to receive the formulas which needed to be fulfilled7
within the legal endeavor.
The answers drafted by the pontiffs according to – responsa – didn’t need to be
motivated, as they usually derived from the sacred power they held in their
capacity of intermediaries between the divinity and the people, thus showing that
the traditions and ethics of the Roman society was respected8.
During this historical age, the influence of the priests in the Roman society was
overwhelming, as they were considered to be the wise men of the citadel9, and had
to provide solutions to a series of situations which occurred within the civil circuit,
such as drafting a will, transferring a res mancipi or the consultation in regard to
solving another legal relation of patrimonial content.
In the ancient times and most of the old age, the interference between the legal
regulations, jus and the religious ones, fas, was obvious, as the priests were
privileged within society because of their special status, thus being the only ones
who were privy to the truth and scientific results in other areas, such as astronomy,
medicine, geometry or science of nature, such as physics, chemistry and so on.
Divulging the legal procedure by Gnaeus Flavius in the year 304 BC ended the
monopoly of the pontiffs in the activity of administering justice, a fact for which, as
5 Tit Liviu, Ab urbe condita, 9.4.6.5., Plinius, Naturalis Historia, 33,(6), 17 şi 18 (translation from
Latin by Ioana Costa, Iaşi, Polirom, 2001, p. 84).
6 C.Şt. Tomulescu, op.cit., p. 37.
7 Pomponius, Libri singulari enchiridii, Dig.1.2.6, in Th.Sâmbrian, op.cit., p. 40.
8 Cf. A. Schiavone, op.cit., p. 87 şi 89.
9 Ibidem.
Jurisprudence in ancient Rome 133
stated by the renowned Romanist Mommsen, this endeavor would represent a true
social revolution10, and ius civilae, thus divulged, was named Ius civilae Flavianum
or Ius Flavianum11.
Thus the second phase of the jurisprudence in the old age began, namely the
laic jurisprudence, in which the activity of interpreting and enforcing law would be
transferred to individuals who held a magistrate function in the Roman state.
The empirical jurisprudence of those times, achieved by the so called case
interpretation was far from providing the necessary background in order to
elaborate universal principles of law or a systematized interpretation which would
represent the fundament for future legal constructions.
The activity of Roman legal advisers, along with the scientific analysis which
they achieved, also had a practical dimension achieved by respondere, agere şi cavere.
Respondere was the free legal consultation the legal advisers would provide for
individuals in regard to their legal problems. Cavere was the support provided by
the legal advisers in order to draft certain acts meant to valorize the interests of the
people. The third activity, known as agere consisted of the advice given to the
judges in regard to the way in which a trial had to be conducted12.
All these caused these scientists to enjoy a special respect within the citadel,
which determined Cicero to state that „domus iuris consulti totius oraculum civitatis”.
By indirect means, by a fragment belonging to Pomponious listed in the
Justinian Digests, we can find reference in regard to the activity of old age legal
advisers, as well as those from the first decades of the classical age.
An important place in the line of the so called veteres, a title used for the legal
advisers of the classical age, those of the old age, had the first juris consultus from
the history of Roman law, Sextus Aelius Paetus Catus, author of the work called–
Triperlito – a work which represents a comment of the Law of the XII Tables,
subsequently known as the true foundation (cunabula) of law. All the provisions of
law extracted from his work formed the so called Aelianum13.
According to the above mentioned source of law, by quoting opinions by
Sextus Pomponius, those who have founded Roman civil law are– Maniilius,
Marcus Junius Brutus and Publius Mucius Scaevola whose son Quintus Mucius
Scaevola would be the most illustrious representative of his generation (see the
second century and the beginning of the first century BC). His works, called „liber
singularis” and „ius civilae”, were true models for the following generations of legal
advisers. His work is remembered as he was the first to elaborate the first
definitions and synthesis with a pronounced science character in the history of
Roman jurisprudence.
10 Th. Mommsen, Roman history, Bucharest: Science and Encyclopedia Publishing House, 1987, p.
120 and following.
11 Pomponius, op.cit., Dig. 1.2.2.7.
12 E. Molcu, D. Oancea, Roman law, Bucharest, Şansa SRL Publishing House, 1993, p. 48.
13 T. Sâmbrian, op.cit., p. 41.
134 CRISTINEL-IOAN MURZEA
One of his illustrious disciples would be the great speaker Cicero, who would
later become a contemporary and a friend 14 of Aquilus Gallus, who created – actio
de dolo – a complaint for the individual whose consent was affected by vice as a
result of deceiving practice.
We must also notice the rigorous comments of the praetor’s edict by Servius
Sulpicius Rufus, author of a work which contained 40 books, called Digests.
In the classical age, jurisprudence will reach its highest point, thus giving new
dimensions to the greatness and glory of Roman law, as legal advisers of this time
would phrase principles and rules of law which derived from combining different
cases; thus they prove to be great exegetes with an obvious sense for enforcing the
law, thus the regulations of ius civilae become legal provisions with a high degree
of abstract. It was stated that „the permanent relation between the principles of law
and the social reality brought upon their crystallization depending on practical
requirements”15.
The legal constructions undertook in order to create rules of law were so
rigorous and serious that they would led to abstract solutions for imaginary
situations, thus causing real judicial axioms turned into principles of practical
character which would apply to similar situations. A rule of law would become a
rule only if it solved a large number of similar situations.
The two great schools of law are founded during this time, true centers of
research which gave expression to legal orientations. From the early stages of the
empire, two schools of legal advisers were founded, one led by C. Ateius Capito (a
consul in the fourth year BC) and another one led by M. Antistius Labeo. These
two rival schools last until the middle of the second century. The fundament of this
division seems to be the following: on one hand, the school founded by Ateius
Capito, also known as the Sabinian school, after the name of Massurius Sabinus,
the successor of Capito as the head of the school, seems to be a traditionalist
school, a conservative one; on the other hand, the school founded by Labeo, was
progressive; it was also called the Proculian school after the name of one of the
head of this school, Proculus. Also, the Sabinians would favor case solutions,
whereas the Proculians would favor systematization
In regard to the material form of these schools, it is not known whether there
were two establishments who taught law or rather two adversary currents of
thinking, much like the philosophical currents of the Greek; nevertheless, it is
certain that they were precisely organized, as each had a leader (princeps scholae);
upon his death, a new leader would be chosen, thus leading to an uninterrupted
series of legal advisers who would pass on their methods and ideas. As a result of
the reorganization of the emperor council by Hadrian, who enlisted Salvius
Iulianus and Celsus, the leaders of the two rival schools, in this council, the
14 E. Molcu, D. Oancea, op.cit., p. 48.
15 Ibidem.
Jurisprudence in ancient Rome 135
division between the Sabinians and the Proculians disappears. Subsequently, we
will describe the achievements of a few legal advisers who had a significant impact
in the classical age16.
Iuventius Celsus (second century) – a Proculian, an original legal adviser,
extremely critical, is distinguished by the clarity of his language and the
independence of his legal reasoning; an adversary of Iulian, who he never quotes, a
member of the Imperial Council of -Hadrian (117-138), along with Iulian, was
twice consul (the second time in 129). He provided the famous, but rustic,
responsum Celsinum to the famous, but naive, consultatio Domitiana. Out of his
numerous works, the Iustinian Digests have only borrowed fragments of hid
Digests in his 39 books.
Salvius Iulianus (second century) – a Sabinian, contemporary and rival of
Celsus, whom he never quotes. He is the most quoted legal adviser in the Iustinian
Digests. His glory consists from the codification of the praetor’s edict – edictum
perpetuum – by request of Hadrian, probably between the years 134-138. Iulian has
codified edicts of edili curuli, both drafts were regulated as mandatory for all
praetors and future edili. Iulian is also the author of Digests grouped in 90 books
which contain the ensemble of law. Although he was Sabinian, he made no rule of
ever adopting a Proculian opinion; he has adopted both opinions, depending on
how rigorous they were; thus, given his prestige, the division between the two
rival schools will become less and less significant until it finally disappears.
Aemilius Papinianus (second-third century) – the most illustrious of the
classical legal advisers, was one of the intimate friends of the emperor Septimius
Severus (193-211); the most important function that he held was that of prefect of
the praetor (205-212). His main works are Quaestiones in 37 books and Responsa in
19 books. Probably his greatest honor was the law of quotations of 426, by which
Valentinian the third confirmed the authority of works by Papinian, Paul, Ulpian,
Gaius, Modestin and, in case of divergent opinions (if two legal advisers had an
identical opinion, two others offered a contrary solution and the fifth one
abstained), the judge would be forced to follow Papinian’s opinion. The authority
he enjoyed is owed to his method of reducing any particular legal problem to the
general rule of law which governs it. Along with his son, he was killed in the year
212 because he refused to write a speech for Caracalla in order for him to justify to
the senate and the people Caracalla’s murder of his brother Geta. After Papinian,
the legal advisers will be preoccupied with arranging the materials left by their
predecessors, in order to allow an easy use of his works.
Iulius Paulus (third century) – a member of the Imperial Council during the
time of Septimius Severus and Caracalla. He wrote an impressive amount of
works, additional to his notes on the works of other authors; his known work
16 See C. Murzea, S.-D. Şchiopu, A. Bianov, A collection of Latin legal texts Brasov, Romprint
Publishing House, 2006, p. 393-396.
136 CRISTINEL-IOAN MURZEA
consists of 86 works and 319 books (especially given the work of his ancestors who
he commented and compiled); his reputation is consecrated by the work Sententiae.
However, despite the materials he borrowed from previous legal advisers, Paul, in
regard to his personal contribution, proves to be an excellent legal adviser, a fine
critic with a vast culture, in many cases his opinions prove to be greatly
independent, as his personal contribution is obvious. Extracts from his work
represent a sixth of the Digests.
Ulpianus (third century) – from Tyr (Syria), a member of the Imperial Council
under Severus Alexander (222-235) and prefect of the praetor (222-228), the
favorite adviser of the emperor, who protected him on numerous occasions form
the rage of the praetorians (Ulpian had attempted to reduce the influence of the
military); however, in the year 228 he was assassinated by the praetorians. He was
one of the greatest Roman legal advisers, although he was not a creative spirit, but
more a clear and intelligent adviser who systematized the works of other legal
advisers. His precision and clarity led to his work representing about a third of the
Digests.
Herennius Modestinus (third century) – the last classical legal adviser, a
disciple of Ulpian, a teacher of Maximilian the young (assassinated along with his
father in the year 238), known for his manuals for students and practitioners of
law. His work reveals the first symptoms of the decadence of the science of law, by
the ignorance of legal studies in favor of the practice manuals, as well as by a
tendency to return to the case method of law.
Thus, the most interesting source of law of this time is responsa prudentium,
namely the consultation provided by legal advisers which, in this age, no longer
represent simple opinions who do not hold the judge to respect it, but mandatory
regulations by special concession from the emperor.
August, probably with the purpose of winning over some legal advisers,
granted some of them ius publice respondendi ex auctoritate principis (the right to
provide legal consultation in the name of the emperor), provided that these
consultations were signed, namely invested with the seal of the legal advisor, in
order to guarantee the authenticity of the consultation17. The consequence of this
right was the fact that the judge who was brought such an opinion was tied to the
opinion of the legal adviser (for that specific case); he was however free to
appreciate the facts. Subsequent to the emperor Hadrian, the opinion of legal
advisers would have power of law (also for similar cases) if they are unanimous; in
case of divergent opinion, the judge was free to choose the opinion which he
thought to be correct18.
17 D.1.2.2.47: „...August was the first who, in order to add more weight to these responses,
ordered that legal advisers will only be able to provide legal advice if they were authorized by him...”.
18 Gaius 1.7: „Responsa prudentium are those opinions which were allowed to give foundation to
all rights. If the opinions of all legal advisers converge toward the same solutions, what they believe
Jurisprudence in ancient Rome 137
Although, nowadays, this possibility to appeal to the science of a legal adviser
in order to force a certain opinion on the judge no longer exists, the legal advisers
still maintain an influence over the rulings of most judges even if by indirect
means, such as the case of the appeal in the interest of law.
According to article 516 sixth alignment of the Civil Procedure Code19, the
judge can request a written opinion from renowned specialists in regard to the
problems of law which were solved in a different manner; the report will contain
the different solutions and the reasoning for the solutions, the relevant
jurisprudence of the Constitutional Court, the European Court of Human Rights,
doctrine and any consulted specialists.
Conclusions
Although we may never be in the presence of such influence by the legal
advisers over the configuration of law as was the one exercised by those who
enjoyed ius publice respondendi ex auctoritate principis, the role of doctrine can’t be
underestimated in present times, especially since the court rulings often contains
quotes from modern legal advisers.
becomes law; if they are in disagreement, the judge is allowed to follow the opinion which he thinks is
correct; this was established by the divine rescript of Hadrian”.
19 Law no 134 of July 1st, 2010 regarding the Civil Procedure Code, republished in the Official
Bulletin no. 247 of 2015.