Bulletin of Transylvania University of Brasov

Series VII: Social Sciences • Law • Vol. 11 (60) No. 1 - 2018

JURISPRUDENCE IN ANCIENT ROME

Cristinel Ioan MURZEA 1

Abstract: Jurisprudence would form an important formal source of law, as,

in the classical age, it would become a valuable instrument and a true
measure of the “jus civilae” system, which later became what the Romans
had intended in the first place, namely an immutable, permanent and
unchanged system of law both in regard to content and form. This is the
time when the most famed legal advisers lived, veritable “wise men” of the
legal system created during the 12 centuries of existence of the Roman state
which was left in the conscience of universal civilization by the science of
law, a universal value which influenced all subsequent systems of law.

Key words: jurisprudence, legal regulation, edict, constitution, jus publicae

repedendendi.

1. Jurisprudence

Among the formal sources of law, jurisprudence synthetically expresses the science of
law – iuris prudentia – a term which nowadays represents the ensemble of solutions
pronounced by the courts of law.
Lato sensu, legal advisers were those specialists of law who would interpret legal
regulations and would transform them in such a manner, by their daily activity, as the
general public would understand legal provisions.
Thus, an official interpretation of legal regulations would be achieved by applying it to
the specific cases which would occur in practice.
The opinions phrased by specialty doctrine have shown that, from the point of view of
Roman law, jurisprudence represents the prudents - legal advisers (Murzea, 2003, p.50),
an interpretation by which law was applied, thus giving value to the legal texts which
were in force.
At the end of the third century BC, the so-called – jurisperiti or juris prudentes -
appear, who, as they were “the wise men of the citadel” (Sâmbrian, 2009, p.40) would
provide advice regarding the manner in which legal acts must be drafted based on legal
regulations, they would also lecture the citizens regarding the manner in which legal
regulations must be interpreted and enforced.
It was justly stated that Roman legal advisers were mere connoisseurs (Sâmbrian,
2009, p.40) or scholars of law during the time between the second and the third century

1 Transylvania University of Brasov, cristinel.murzea@unitbv.ro

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BC, but in fact, they were much more, as Gaius states, they were true creators of law
(A.Schiavone , 1989).
In correspondence with the ages of Roman law, doctrine made a historical time table
of secular jurisprudence in the old age and the pre-classical age, corresponding to
royalty in the first centuries of the republic, classical jurisprudence corresponding to
principality and post classical jurisprudence which corresponds to the age of dominate
when we witness a decline of law.
Regardless of the historical age we consider, Roman legal advisers, by their activity,
paid less attention to the factors which configure law, as they aim to extract the general
principles of the positive legal system by a synthesizing elaborate approach.
Thus, as professor Cătuneană brilliantly states, legal adviser “applied a strong logic to
specific or imaginary (Cătuneanu, 1924, p.63) cases”, thus those principles of law formed
true axioms of law.
These scholars of law would provide strong legal coating to the diverse cases which
would occur in practice, from the simplest ones to the more complicated ones, by
applying “a rule of law to its final consequences” (Cătuneanu, 1924, p.63).
In the old age, this activity of interpreting the legal regulations and giving them legal
value in the process of applying law was achieved through the pontiffs (priests n.n) -
those wise men invested by the gods with the gift of knowledge and interpretation of
legal regulations, as well as the calendars of celebratory days in which justice was to be
administered, as all these were a divine gift of the gods who entrusted the Romans with
this gift through their sacrificers.
During this time, priests were the only ones able to know the legal provisions which
would be enforced and the celebratory days in which justice was to be performed.
They also knew the way in which similar cases were previously solved, as well as the
means of interpretation which were used to this purpose. As a consequence, the
litigating parties needed to address “the pontifical college to be informed of the forms
which needed to be met in order to resolve the most diverse legal issues” (Sâmbrian,
2009, p.40).
Within this procedural background, the head of the family would address “the citadel’s
wise men” in order to find solutions, in order to draft a will, to sell a certain res mancipi,
or in order to conclude a contract of free use.
The current state of things, in which priests were the absolute masters in “the
mysteries of law” a fact which would ensure their domination and influence within
society lasted until their jurisprudence was secularized, along with the disclosure of the
formulas, actions and the Table of Fasts in the year 301 BC by Gnaeus Flavius, a freed
slave of Appius Claudius Caecus (Murzea, 2003, p.50).
All these formulas based on which justice was administered were systematized in the
work called Jus civilae Flavianum.
Starting from this time, the practice by which legal advisers would provide public legal
advice became more frequent.
This, in the opinion of some theoreticians of Roman law, led to the creation of a series
of important legal institutions such as - emancipation, adoption in iure cesio, testament
C. MURZEA: Jurisprudence in Ancient Rome 169

per aes et libram, etc. (Sâmbrian, 2009, p.40).

The concept according to which any man of culture needed to have basic knowledge
of law became widely spread.
The mission of the man of law was to be brilliantly defined by the great orator Cicero
who stated that the legal adviser must not only know the law and the custom, but he
must also have a contribution with regard to:
- agere – namely to state and respect the solemn forms which needed to
be performed before the magistrate;
- cavere – namely to respect the translation form of legal acts;
- respondere – namely legal advice provided to the parties and the answer
to their requests;
- scribere – namely the drafting in writing of the acts which were
concluded or drafting legal books.
In regard to this last demand, we must mention, as an example, the fact that the most
important legal adviser of that time Mucius Scaevola drafted 18 books grouped in a
systematic treaty called – Jus civilae.
Information regarding the legal literature of this historical age was passed on in an
indirect manner in the Justinian Digests which belonged to the illustrious Pomponium, a
true creator of law during the time of the Republic, according to his contemporaries.
Pomponium mentions a series of legal advisers, about 20 of them according to some
legal sources, among whom some were creators of legal schools or eminent professors.
Among them, Sextus Aelius Paetus Catus a legal adviser in the year 198 was one of the
most important personalities, author of the famed work Tripertitio, a comment of the
Law of the XII Tables, a work considered by subsequent legal advisers as ”cunabula ius”
(a cradle of law) (Digeste 1.2.2.3.8). From his work “Jus Aelianum” was created, a
synthesis of legal regulations and principles.
Furthermore, Pomponius mentions Manilius, Marcus Iunius Brutus and Publicos
Mucius Scaevola who, in his opinion, are the founding fathers of civil law – fondatores
iuris civilae (Murzea, 2003, p.54).
Specialty doctrine considers Quintus Micius Scaevola son of Publius, a legal adviser
and political figure, a systematic author of law.
This legal adviser would be assassinated in the year of 82 by the followers of Marius,
during the civil wars in Rome.
In his main work – Jus civilae - grouped in 18 books, Scaevola extracts, from the cases
of those times, adagios and principles of law which would be classified by the
theoreticians of law according to the method of legal logic.
A work which represented true progress was the one suggestively called by Scaevola –
Definitiones – a work which refers „praesumtia miciana” showing “that all purchases
made by the wife during marriage are the property of the husband, except for the case
in which the wife proves that she acquired the goods personally and in an honest
manner” (Murzea, 2003, p.54).
Given his ability and his introspective spirit, Scaevola would be one the mentors of
Cicero (Pacitus, 1958, p.39).
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One of the great private law creators would be Aquillus Gallus, disciple of Quintus
Mucius Scaevola, the one who, in the year 66, as praetor, introduced „actio de dolo” an
action by which the sale contract concluded by the use of deceiving means used by one
of the parties to determine the other party to conclude the act was annulled.
He also created a new rule by which the postum grandchildren of the testator,
although unknown people, can be included in the will – postumi aquilani. He was the
creator of a new legal institution ,,acceptilatio,, (Pacitus, 1958, p.39) whereby debts
which resulted from different acts could be paid by one single act.
An eminent professor and commentator of the Law of the 12 Tables was Servius
Sulpicius Rufus, who according to his contemporaries was famous by the eloquence of
his lectures referencing civil law principles.
From the same category of illustrious legal advisers, we must mention Alfensus Varus,
author of the law manual “Digesta” which comprised 40 books (Sâmbrian, 2009, p.42).
The classical age would represent the golden age of civil law, an age in which about 70
remarkable legal advisers lived, who became famous and were grouped within two
renowned law schools which flourished during the reign of the emperor Tiberius.
These schools were founded by Marcus Antutius Labeo, of republican orientation and
Caius Ateius Capito, an opportunist according to Tacitus.
The first one created the Proculian school named after one of its leading legal advisers
- Proculius - while the second one created the Sabin or Cassius’ school.
If the jurisprudence of the remote past had an empirical character based mainly on
the cases it solved, in the classical age jurisprudence acquired a scientific character.
The element which differentiates the two schools is the legal technique. The Proculian
school is much more innovative and is mainly based on legal concepts and categories as
opposed to social experience, whereas the Sabin school rarely and accidentally uses
technical procedures, which are ignored.
Doctrine mentions that in the Proculian school, legal technique is a means to achieve
the designated purpose, whereas for the Sabin school - technique was the means to
keep the position acquired by the vestiture of the empire (Murzea, 2003, p.53).
The historical period beginning with the reign of emperor Aurelius and lasting until
the third century AD would represent a time of great creativity for civil law, which led to
a laborious activity of the prudents who would become famous not only by exceptional
works but also by their specific „respondere” or „cavere” activities.
Thus, classical legal advisers did not limit themselves to solving certain cases, but they
also combined and reevaluated previous solutions by introducing, by means of
jurisprudence, new forms of expression of law, thus achieving a renewal of „jus civilae”
and creating new rules of law (Molcuț, Oancea, 1993, p.48).
Responsa prudentium formed a formal source of law, thus the most renowned legal
advisers were consulted by the citizens in various areas of activity which were
connected to the legal circuit.
The excellence of these “wise men of Roman civil law” was so exquisite as numerous
similar cases were sought, thus creating a universal rule of law which would apply to all
these cases and similar ones.
C. MURZEA: Jurisprudence in Ancient Rome 171

This was the means by which a rule of law would be acknowledged as such only if it
provided solutions for all imaginable cases.
Given the fact that the role of the prudents would become more important in the
public life, it will cause a conflict with the imperial image and politics, as the emperor
would occupy the central role, thus determining Augustus to limit the activity to only a
few legal advisers which were subordinated to him (Murzea, 2003, p.53).
The legal advisers of the classical age were the measure of the science of Roman law,
as by their activity they made private law an ideal instrument to regulate legal provisions
within a market based economy, a fact which caused the system „jus civilae” to reach its
purpose, namely that of being eternal in content and form, a fact which was certified
nowadays by the great influence of the Roman regulations on modern laws.
In the classical age, exceptional legal advisers became famous - Caius Cassius Longinius
disciple of Sabinus, a remarkable legal adviser, as the Sabin school was also known as
the school of Cassius.
Reference was made to the illustrious legal adviser Salvius Iulianus whose name is
connected to the systematization of the praetor’s edict as a result of the order of
emperor Hadrianus.
Gaius, the one who would draft a valuable treaty of law called “Institutiones” in which
the case method was replaced with the systemic one, according to which the subject
matter is structured into three parties - people, goods and actions. Also, as a result of his
systemic vision, civil law became common with the Praetorian law.
Pomponius is the one who left us a history of Roman law which came to us through
Justinian’s “Digests”; he would be considered the most illustrious legal adviser of the
classical age – primus omnius - Aemilius Papinianus, who lived at the end of the second
century AD.
During the reign of Septimius, Severus is the “praefectus praetoria”, a function which
requires excellent moral qualities which would cause his end, as he was unable to
motivate the murder of Geta committed by Carcalla in the year 212, a deed which he
qualified as reprehensible.
He would draft a manual of legal practice called “Qustiones” formed of 37 books, a
comprise or legal consultations called „Responsa” consisting of 19 books and a
compendium of law called “Definitiones” formed of 2 books.
G.Iulius Paulus whose vast work comprises 86 works among which ,,Libri ad
Edictum”, ,,Libri ad Sabinium”, ,,Questiones” and ,,Responsa” are the most famous ones
which would be used by Justinian in the “Digests”, N. Domitius Ulpianus author of 81
books systematized in ,,Ad Edictum,, and ,,Ad Sabinum,, which contained 51 books; a
work which would be partly used by Justinian’s commissars in the drafting of the
“Digests” (Sâmbrian, 2009, p.42).
I. Herennius Modestinus, a student and disciple of Ulpian, thought to be the last
coryphaeus of the classical legal thinking, the author of the famed “law of quotations” as
well as of a certain matrimonial monograph or the statute of limitation of punishments
with editions in Latin and Greek.
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In conclusion, the works of the legal advisers of the classical age are classified in:
– Institutiones – elementary works addressed to students and the general audience;
– Sententiae (opiniones) – existentially works which contained legal practice;
– Questiones (dispulationes) – using the case practice in theoretical constructions
with a formative role;
– Epistulae – letters with legal motivation;
– Notae – appreciations and critical references to the classic works;
– ,,Ad edictum,, comments - opinions regarding the edicts of the main judiciary
magistrates (praetors, edili curuli or governors of provinces);
– Digests – genuine legal encyclopedias which contain both civil and Praetorian legal
regulations, formed of multiple books, included into the content of a papyrus
(Murzea, 2003, p.53).

2. Instead of a Conclusion

After the classical age, the flourishing age of the civil law was followed by the post
classical age which brings along the Domination regime leading to the demise of the
Roman society and the system of law with direct resonance over jurisprudence which
came to an end and has become a formal source of law.
During this time, the work of legal advisers had a profoundly dogmatic character and it
was limited to copying texts of the classical age and changing them in order to solve
cases which occurred in the legal circuit.
The work of legal advisers of the post classical age would be limited to creating
compilations with the role of systematizing the works of the classics by drafting treaties
which contained the texts of famed authors of the principate.
The decline of law and jurisprudence led to the practice of quoting, before the judges,
of classical texts meant to influence the solution that would be pronounced; the
quotations were inexact and presented with omissions or were even forged. In this
context, the Emperor Valentin the third, in the year 426 Ad, drafted the “Law of
quotations”, (Bruhl, 1957, p.10) a law which confirms the authority of the works of
famed legal advisers of the classical age such as Papinian, Paul Ulpian, Gaius, Modestin.
Thus, neither the parties nor the lawyers could invoke other legal advisers in
motivating their demands. It was mentioned that the opinion of other legal advisers
could be invoked before the court provided their works had been quoted by one of the
five advisers and the manuscripts were compared (colatis codicum).
In case there was divergence between the five, the majority would decide and in case
of equality the opinion of Paprinian would win; in the absence of his opinion, the judge
was free to agree to any of the opinions which were expressed.
The law contained in the Constitution of Valentin the third would remain in force for a
century until it was abolished by the emperor Justinian (Gaudemont, 1963, p.747).
Along with Justinian’s law, the scholars ceased to use the theoretical considerations
referring to Roman law, as from that time onwards both the state and the law would be
under the Byzantium (Greek) influence.
C. MURZEA: Jurisprudence in Ancient Rome 173

A moment which preceded the process of the Greek influence over the Roman society
and subsequently the extinction of the Roman state would represent what specialty
doctrine called the pre-Justinian codifying procedure.
The procedure represented an ample process of systematization of the vast legal
material, namely ancient and classical age literature and the process of codifying the
numerous imperial constitutions which used new methods and techniques,
constructions and legal institutions which were the true factors which configured the
law specific to those times and were reflected in the legal regulations of that age.
This impressive legal material was meant to be valorized and aimed to preserve the
work of the Romans, as well as to pass along the extremely valuable legal arsenal which
the Roman legal advisers left for posterity.
This caused the rebirth of the collections of legal texts generically called “leges” as well
as the appearance of elaborate works which belonged to illustrious Roman legal advisers
called “Jus”.
Nowadays, the researchers of the history of Roman law would define three types of
collections - collection of “leges”, collection of „ius” and mixed collections formed of
,,leges,, and ,,ius,, (Murzea, 2003, p.55).
From the first collection, we identify codes such as Codex Gregorianus drafted at the
end of the third century by the legal adviser Gregorius, who would systematize the
imperial constitutions given between the years 196 and 291 (Lancon, 2003, p.72).
Codex Hermogenianus which represents a private synthesis, drafted by Hermogenian
who synthesizes imperial constitutions until the year 320 and Codex Theodasianus, an
official collection as opposed to the first two, achieved at the order of the emperor
Theodosius the second who ruled the Eastern Roman empire.
The work was elaborated by a commission of legal advisers led by Antiochius and
published in the year 438 in Constantinople (Sâmbrian, 2009, p.46).
It would be later passed on to the emperor Valentin the third (425 - 459) who adopted
it as a unified code for the entire Roman society on January 1st, 439.
Thus, the premise of the legislative unification between the two Roman civilizations
was created and the passing from “the Roman civilization to the Christian civilization”
was achieved (Sâmbrian, 2009, p.46).
The work consists of 16 books with the tendency of adapting the new laws to the new
social realities.
From the category of ius, certain works of illustrious Roman legal advisers were
valorized in the activity of interpreting law and even in the activity of creating law, as the
law of quotations passed during the reign of Valentin and Theodosius would certify the
work of Roman legal advisers Papinian and Ulpian – Fragmento Vaticana Collatio
Mosaicorum et Romanorum and the Siro-Roman book.

References

Bruhl, L. (1957). Revue historique de droit francais et etranger. Paris.

Cătuneanu, I. (1924). Elementary course of Roman law. Cluj: Editura Cartea românească.
174 Bulletin of the Transylvania University of Brasov • Series VII • Vol. 11 (60) No. 1 - 2018

Gaudemont, J. (1963). Revue historique de droit francais et etranger. Paris.

Lancon, B. (2003). Constantine the Great. București: Editura Corint.
Molcuț, E., Oancea, D. (1993). Roman law. Bucureștit : Șansa Publishing House.
Murzea, C. (2003). Roman law, second edition. Bucharest: All Beck Publishing House.
Pacitus (1958). Works, volume I. București: Editura Științifică.
Sâmbrian, Th. (2009). Roman law institutions. Craiova: Editura Sitech.
Schiavone, A. (1989). Juristul in L’uomo romano, Roma-Bari. Romanian editions Andreea
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