LAW 691/HON 494 Michael J. White Great Traditions of Jurisprudence Fall semester, 2013

Roman (Civil) Law

I. Senses of the phrase ‘civil law’ A. The law of an individual, autonomous state (civitas) B. ‘Private law’ (as opposed to criminal law or public, administrative law) C. The law of most of Europe that derives from the corpus juris civilis, promulgated by the Byzantine emperor Justinian 529-534 A.D. (often opposed to the ‘common law’, which is the foundation of the legal systems of most English-speaking jurisdictions)

II. Characteristics of A. Its formalism. In Roman law, it is the concept of a remedy, rather than a right (ius) that is of primary importance. For there to be a remedy, there must be a possible (legal) action; and for there to be an action, there must be a correct formula in which to express it. B. Its possession of its own ‘internal logic’. This involves the development of a particular ‘lawyerly’ way of assessing and analyzing a problem C. Its conservatism and relative isolation (from other social institutions, as well as from the influence of ‘external’ theoretical and practical concerns): “The law possesses a life of its own.”

III. Sources of Roman law A. Statutes or ‘enacted law’, beginning with Twelve Tables of 451-450 B.C.). Plebiscita and leges (plurals of ‘plebiscitum’ and ‘lex’, respectively) B. Edicts of magistrates–particularly those of the urban praetor. C. Interpretatio prudentium–‘Interpretation by the wise’ (jurists or jurisconsults). D. With respect to B above, the urban praetor (like other magistrates) had no formal legislative authority. But he greatly influenced the development of law by issuing an edict at the beginning of his term specifying the kind of actions he was prepared to hear with accompanying remedies and formulas for bringing the actions. E. With respect to E above, the jurists were not formally a part of the legal mechanism (e.g., judges, magistrates, advocates in court). Rather they gave legal advice that became more-or-less authoritative. Originally, this had been done by members of the priestly (and patrician) college (college of pontifices). Later it became the job of ‘lay jurists’, who were generally wealthy (and often aristocratic) ‘men of affairs’–public men. The jurists were responsible for whatever (rather informal) legal training that occurred. While in the common law tradition, law often gets ‘made’ by judges dealing with actual cases, in the Roman law tradition, it often gets ‘made’ by jurisconsults dealing with ‘hypotheticals’. IV. History of the institution of jurists. A. In the early empire (Principate), the role of jurist was somewhat formalized by the emperor’s granting a ius respondendi (‘right of replying’–to a legal problem) to certain distinguished jurists; this privilege gave particular authority to the opinions of such a favored jurist.

B. As early as the 1st century A.D., there seem to have developed two rival ‘schools’ of Roman legal thought, the Sabinian and the Proculian. But we really do not know what this distinction amounted to. C. From the 2nd century A.D., we have some information from two sources: Sextus Pomponius (who lived during the reign of Hadrian, 117-138 A.D) and , about whom we know very little but who wrote an Institutes (a textbook, in essence) that was very influential and which was incorporated into the in the 6th century. D. The 3rd century A.D. represents the apparent height of the Roman legal tradition with the figures , Ulpian, Paul, and Modestinus. E. But with the advent of the Dominate (with Diocletian, who became emperor in 284 A.D. after a period of great social and political turmoil earlier in the 3rd century), “the sole source of the law is now the Emperor, and the place of the jurist is taken by the anonymous civil servant in the imperial chancery. The life has gone out of the Roman law” (Barry Nicholas, An Introduction to Roman Law [1962], p. 30). F. In 426 A.D. (during the reign of the emperor Valentinian), the ‘Law of Citations’ is passed, restricting a judge’s use of the intepretation prudentium to the opinions of the jurists Papinian, Paul, Ulpinian, Modestinus, and Gaius. 1. If there is a conflict among them, the opinion of the majority is to be adopted. 2. If there are equal numbers holding different opinions, the view of Papinian is to prevail. 3. If there are equal numbers and Papinian is silent on the question, the judge can decide for himself.

V. Some Illustrations of the ‘characteristics of Roman law’ (above, section II) from Watson’s The Spirit of Roman Law.