Roman Jurisprudence: From Pontifical to Secular Law

Posted on Apr 29, 2024 in Law & Jurisprudence

ITEM 7: THE JURISPRUDENCE

1. Jurisprudence: Concept and Characteristics

The jurist Ulpian, at the beginning of the Digest, defines jurisprudence as the knowledge of things divine and human, the science of right and wrong. According to this definition, jurisprudence helps decide the legal justice or injustice of actions, whether they are licit or illicit.

2. Pontifical Jurisprudence

In the early Republican era, law had a strong religious character and was handled by the pontiffs. They controlled the Ius and Fas. The popes were the natural interpreters of Fas and mores maiorum. They also controlled trial formulas and formulas of the old Ius civile business. Additionally, they guarded the calendar, which designated days as Fasti or Nefastos.

The pontiffs had three basic functions:

  • Cavere: The pontiffs communicated to the parties the means at their disposal to ensure a legal act or business.
  • Agere: They instructed the party or person who had requested the procedures to follow to start a trial.
  • Respondere: This was the most important activity. It involved issuing a technical opinion on a significant legal topic. Such consultations could be made to a particular Pope or to the full College. The opinion or response would be issued as a responsum, and while it did not legally bind the presiding judge, the influence of the pontiffs and the pontifical college was so great that the sentence often aligned with the Responsum. These opinions, issued under the condition of being true, did not create law but modeled institutions, business, and legal protection.

3. Secular Jurisprudence

Gradually, the law became accessible to the laity due to three key events:

  1. Publication of the Law of the Twelve Tables: This provided a written legal source and limited the power of the pontiffs, as it could not encompass all situations. Sextus Aelius Peto Cato was the first to write a commentary on the Law of the Twelve Tables.
  2. Gnaeus Flavius and the Ius Flavianum: In 304 BC, a lawyer named Gnaeus Flavius, scribe of Appius Claudius, published the proceedings in the Legis Actiones formulas, called Ius Flavianum.
  3. Tiberius Coruncanius: In 252 BC, Tiberius Coruncanius became the first plebeian Pontifex Maximus. He began to issue opinions in public, thus ending the secrecy of the Popes’ activities.

Despite secularization, jurisprudence remained somewhat exclusive, as the pontiffs were patricians.

Characteristics of Secular Jurisprudence:

  • Nationalist: It was intertwined with the values of the Roman cities.
  • Democratic: Accessible to all Roman citizens, although with an aristocratic tinge.
  • Creative: It directly or indirectly promoted the evolution of law. Continuing the work of the popes, it was a public and free technical science dedicated to the interpretation of law.

4. Jurisprudence as a Source of Law

The peculiarity of Roman jurisprudence is its role as a source of law. This stemmed from the foundations of the Mores maiorum and the Law of the Twelve Tables. Logically, old institutions evolved, and the binding force of the law was based on the logic of the business itself.

Jurists belonged to the nobilitas and, during the principality, also to the equestrian class. Leading Republican jurists included Appius Claudius, Tiberius Coruncanius, Cato (the Censor), Quintus Mucius Scaevola, Trebacio Testa, Servius Sulpicius Rufus, and Aelius Tubero.

Features of Classical Jurisprudence:

  1. Absence of formalities.
  2. Practical or casuistic tendency.
  3. Strong conservatism.
  4. Conciseness of style.

The classical period of jurisprudence ran from 27 BC to 235 AD and saw the emergence of several prominent jurists.

  • Stage 1 (Augustus to Flavian): Salvius Julianus was a prominent lawyer during this time, which also saw the creation of legal schools.
  • Stage 2 (Antonines): The legal experts Papinian and Gaius were notable figures.
  • Stage 3 (Severans): Jurists Ulpian and Paul were prominent.

Jurisprudential activity was significantly influenced by the decisions of Augustus, during whose reign it reached its peak. This was due to the granting of the Ius Respondendi ex auctoritate principis to certain lawyers. They were given the authority to issue opinions with the same authority as if they had been given by the emperor, known as Ius Respondendi.

5. The Classical Legal Schools

This period also saw the establishment of schools of jurisprudence, including rivalries between them. The two main schools were:

  • Sabinian or Casiana School: Founded by the jurist Capito, it was known for its conservative stance.
  • Proculeyan or Proculiana School: Founded by the lawyer Labeon, it was more innovative and scientifically independent. It was considered the official school.

Each school had its supporters:

  • Labeon’s followers: Nerva (father and son), Celso (father and son), Proculus, Pegasus, Neratius Priscus, Longinus.
  • Capito’s followers: Masurius Sabinus, Cassius Longinus, Celius Sabinus, Javolenus Priscus, Salvius Julianus, Gaius.

The Sabinian school was considered more conservative than the Proculeyans, who were more innovative and scientifically independent.