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Legal) Writing CRISIS IN (LEGAL) WRITING Bernard Stolte - 9789047420903 Downloaded from Brill.com10/02/2021 01:22:37AM via free access A CRISIS OF JURISPRUDENCE? THE END OF LEGAL WRITING IN THE CLASSICAL TRADITION Bernard H. Stolte In traditional historiography, the ‘classical’ period of Roman law, when it is judged to have lived its nest hour, is placed between circa 50 B.C. and A.D. 250 at the latest. It is the period in which the clari cation and development of legal doctrine evolved through free discussion among iurisperiti, who thus contributed to the process on a case-by-case basis and who were not dependent on this activity for a living. That period is contrasted especially with that which followed, when these free discus- sions did not only appear to have come to an end, but the quality of legal scholarship was also perceived to show signs of decline. In any case the stream of legal writing in the classical tradition, testifying to these discussions, seems to dry up in the rst half of the third century. The same historiography has little appreciation for the following cen- turies: after classical come epi- and postclassical, then vulgar and one shudders to think of the next phase: byzantine. In this perspective, the history of Roman law is one of rise, ower- ing, decline and fall. The starting-point is the law of the Twelve Tables, the end Justinian’s codi cation, the latter not so much an event with its own importance in that history, but rather a fortunate occurrence which happens to have preserved the writings of the ‘classical’ jurists. The ‘fall’ of Roman law takes place already earlier and the Justinianic revival is seen as something odd, rarely judged on its own terms by legal historians, unless they happen to be byzantinists, who take it as a starting-point and then look at the centuries that follow. All this is, of course, a modern construct. As is well known, Tacitus saw only decline after the Twelve Tables.1 The Romans themselves did not re] ect much on the development of their law in terms of quality, although there is no shortage of disparaging statements about law and lawyers. The idea that the best of Roman jurisprudence is to be found 1 Tacitus, Annales 3.27: duodecim tabulae, nis aequi iuris. Bernard Stolte - 9789047420903 Downloaded from Brill.com10/02/2021 01:22:37AM via free access 356 bernard h. stolte between the rst century B.C. and the rst quarter of the third century A.D. is not found until the legal humanists of the early modern period began to occupy themselves with the historical dimension of legal texts.2 The vili cation of the Justinianic codi cation as the source of corruption of the original writings of Paul, Ulpian e tutti quanti is rst found in those quarters and reached the zenith of its popularity in the \ rst half of the 20th century; it has much contributed to the image of a ‘classical’ period followed by one of which not much is to be said in its favour. Although the established opinion now seems to be that Justinian’s Digest has preserved the original version of the ‘classical’ texts to a much greater extent than has been thought in the past, the word ‘classical’ has kept its traditional connotation.3 What brought about the end of the classical period? Indeed, one might also raise the question of what caused its beginning. It seems not to be overstating to say that the beginning of the classical period coincided with a turbulent period in Roman history. The civil wars and the end of the Roman Republic can hardly be considered to offer an ideal and quiet background for legal re] ection. Yet, already before Augustus we nd great names such as Q. Mucius Scaevola and Ser. Sulpicius Rufus, to name but two.4 But it is to the end of the classical period that I should like to pay attention, and to the understandable inclination to connect the end of legal writing in the classical tradition with the idea of a crisis: a crisis of Roman society, a crisis of jurispru- dence, or a crisis of both. I am not advocating an entirely different opinion of the quality of Roman legal writing in the period traditionally called ‘classical’. Nor am I disputing that in the rst half of the third century this tradition was coming to an end. What I should like to do instead is to try and place this phenomenon in a wider context and to revalue what followed. In the rst Impact of Empire workshop of 2000 our ‘princeps’ Lukas de Blois gave a paper on “Roman jurists and the crisis of the third 2 For the humanists, see, e.g., H.E. Troje, Graeca leguntur (Cologne-Vienna 1971). 3 J.H.A. Lokin argues in favour of a very restricted scope for interpolations in the hands of Tribonian’s committee: The End of an Epoch. Epilegomena to a Century of Interpolation Criticism, in R. Feenstra et al. (eds.), Collatio iuris romani, Études dédiées à Hans Ankum à l’occasion de son 65e anniversaire (Amsterdam 1995), 261–273. 4 Fully recognizing the civil unrest, Bruce Frier even seems to value it as a positive factor in the creation of a Roman legal profession (B.W. Frier, The Rise of the Roman Jurists. Studies in Cicero’s Pro Caecina (Princeton 1985)), especially his conclusion, 269 ff. Bernard Stolte - 9789047420903 Downloaded from Brill.com10/02/2021 01:22:37AM via free access a crisis of jurisprudence? 357 century A.D. in the Roman empire”. After outlining the process as he perceived it, he concluded: A consequence of the relative degradation of learned jurists within the imperial administration may have been that responsa and treatises of the great jurists, who during the rst decades of the century had obtained a place in the centre of power, now became classic, deriving their status not only from the outstanding qualities of the authors, but also from the high positions which those authors had held. This may have kept their successors from trying to emulate or surpass them, which in its turn may have ended the publication of learned juridical treatises.5 I do not doubt that this has contributed to the end of legal writing in the classical tradition. A similar line of reasoning had been followed by Detlef Liebs in a survey of Roman legal literature of this period for the Handbuch der Altertumswissenschaft, who also mentioned the “spätan- tike Hang zur Kanonisierung und Heiligenverehrung”, preventing the “Entfaltung neuer Literatur, bis auch die Fähigkeit dazu verküm- merte.”6 Other reasons listed by Liebs are also found in De Blois’s paper; although the argument is slightly different, the two would have no dif\ culty in agreeing. Interestingly, Liebs places the beginning of bureaucratization already in the reign of Claudius and sees a vigorous push in that of Hadrian; we must note that the owering of Roman jurisprudence hardly seems to have been affected. In 2005, volume 12 of the revised Cambridge Ancient History appeared, dealing with the ‘crisis of empire’. Two chapters deal with the law, the \ rst describing ‘high classical’, the second ‘epiclassical’ Roman law. Chapter 7a, by David Ibbetson, concludes with the following reasons for these writings to have to come to an end: High classical law was unsustainable on its own terms. It was also subject to external stresses. The subtlety of thought of Paul, Papinian and Ulpian demanded educational continuity if it was to be developed by the legal thinkers of the next generation; but legal education in Rome was utterly haphazard. A strong measure of imperial indulgence was necessary if legal doctrine was to continue to be elaborated by men who were impe- rial functionaries as well as private lawyers; but not all emperors were so indulgent to lawyers. And political quietude was essential if jurists 5 L. de Blois, Roman Jurists and the Crisis of the Third Century A.D. in the Roman Empire, in Id. (ed.), Administration, Prosopography and Appointment Policies in the Roman Empire (Impact of Empire 1) (Amsterdam 2001), 136–153, at 153. 6 D. Liebs in K. Sallmann (ed.), Handbuch der lateinischen Literatur der Antike 4: Die Literatur des Umbruchs. III. Jurisprudenz (Munich 1997), 217. Bernard Stolte - 9789047420903 Downloaded from Brill.com10/02/2021 01:22:37AM via free access 358 bernard h. stolte were to have the professional leisure to think deeply about abstract and complex legal issues.7 The lack of political quietude, implied for the end of the classical period, is closely related to De Blois’s argument, who plausibly attributes the changing role of the jurists to the fact that military men were needed more and were therefore in a better position to establish themselves at the centre of power. It is the argument that emphatically draws on the perception of a crisis of the empire and connects it with a crisis of, or at least profound change in, jurisprudence. Ibbetson’s rst point is very interesting. It conjures up the image of a tottering pile of books, and the addition of yet another volume making the pile collapse under its own weight. But is it not the case that legal education in Rome had been haphazard from the beginning? And is it not also true that systematic legal education is a phenomenon of Late Antiquity, as is also noted by David Johnston, who wrote the next chapter in het CAH² 12, 7b, dealing with the period 235–300? Johnston sees ‘no sudden break or sharp discontinuity’ in what he has called ‘epiclassical’ Roman law.8 The imperial chancery became more prominent, as is witnessed by the rescript system, and we see attempts at creating order in chaos.
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