The Unique Character of Classical Roman Law Author(s): F.

Pringsheim Reviewed work(s): Source: The Journal of Roman Studies, Vol. 34, Parts 1 and 2 (1944), pp. 60-64 Published by: Society for the Promotion of Roman Studies Stable URL: http://www.jstor.org/stable/296782 . Accessed: 28/10/2011 16:52
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THE UNIQUE CHARACTER OF CLASSICAL ROMAN LAW'

By F. PRINGSHEIM

The unique character of Roman law has been treated for centuries; hymns enough have been sung. My purpose is different: I restrict the problem to Roman classical law and therefore have intentionally added this adjective to the title. Roman private lawand I have only private law to consider here-is not the same throughout the thousand years of its history. Modern research distinguishes in the legislation of Justinian what belongs to the Byzantine epoch from what is genuinely classical. Secondly, we now know more about pre-classical law so that we are better able to contrast classical with archaic law. A third reason for a revision of our view is the developed study of the oriental, the cuneiform, law, and some new research in Greek law. Owing to this threefold progress we can try to sketch the unique character of Roman classical law in comparison with other laws. I discern three periods of Roman law: archaic (or pre-classical) up to 150 B.C., classical from 150 B.C. to A.D. 300, Byzantine (or post-classical) from A.D. 300 to 565. These are the usual periods, except that I carry back the classical period to 150 B.C. I know that there are transitions ; but if we take the years 150 B.C. and A.D. 300, we shall roughly mark the turning points and have before us three distinct periods of Roman law. My thesis is-with a dangerous, but necessary simplification-that it is the classical law which is specifically Roman, and that we have therefore to compare this classical law on the one hand with all other systems, including archaic and Byzantine Roman law on the other. All these other laws, Babylonian, Assyrian, Egyptian, Greek and Germanic law, Muslim and Jewish law, form a single mass-so to speak-of vulgar, common, popular systems with simple and unscientific conceptions. To this class belong archaic and Byzantine Roman law. Roman classical law rises like a mountain above the common level of the others and it slopes down again to the previous level in the Byzantine period. Before I can begin my comparison I must explain what is meant by classical law. I would emphasise that Roman classical law is more juristic, more scientific, than any other law. It was created by the lawyers who guided practice, almost without any intereference from legislation. Jurisprudence attracted the best brains of this age. Their creative ability formed classical law. Although this line is crossed by others, simplicity is the striking feature of classical law. It was reached by abstraction. Analysis of the complex phenomena of life, recognition of the elements of which these are composed, isolation of the legally important facts: all these operations helped to create and develop legal science. The game was played within a limited number of definite juristic conceptions. Economy is one of the principles of this art. Everything seems simple and elegant. The dangers inevitably connected with such a highly developed art (well known to the Continental lawyer of to-day) were avoided by the instinct for a balance between theory and practice. The classical lawyers created notions which now are taken for granted. Therefore it is difficult for us to imagine what it meant to find, to invent, as it were, such conceptions. Only the comparison with other laws can give a true impression of the surprising novelty and uniqueness of this creative process. With the end of jurisprudence classical law ended. After A.D. 300 no legal books were written. The development stopped, Roman law grew rigid, and new influences led to the complex character of Byzantine law. Some failures of Roman law, as we know it, have to be explained by this sudden freezing. Compared with the slowness of historic development in other private laws much was done in the short time in which legal thinking was creative and alive. Before giving some selected examples I must make a few reservations. For my purpose it is necessary to draw sharp lines without noticing the deviations. But I expressly emphasize that there are other lines. Already in the archaic period there existed very Roman rules
1 A paper read on 2nd September, Oxford.
1942,

to the Joint Meeting of the Hellenic and Roman Societies in

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which were only developed in the classical age. On the other hand the Byzantine epoch did not always go back to older and simpler conceptions ; often it continued along classical lines. Finally, I have to neglect elementary jurisprudence, fully aware that there exists something like a scientific jurisprudence in Jewish and Muslim law. I begin by illustrating the uniqueness of classical procedure and classical jurisprudence. The classical civil procedure was that of the written formula, the peculiarity of which was the division of functions between the magistrate (praetor) and the judge (iudex). The first had to help the parties to formulate the dispute and was free to give or decline an action: the judge, like an arbitrator, had to hear evidence and to decide the case, answering the question put before him by the parties. Both were assisted by advisers, by a consilium of jurists. The formulae, published as models in each praetor's yearly edict, announcing that in such and such cases he would grant an action, were set up in the Forum, before everybody's eyes, exposed to everybody's criticism. The fact that the magistrate had to formulate beforehand the patterns in an abstract way, to present them in a clear, a comprehensive, and above all in a concise form, and that the parties had to adapt their dispute to such a formula, was one of the reasons why classical Roman law was able to isolate the facts and to find out which was the decisive question. The formula was an instrument at the same time flexible and precise. The judge on the other hand had not only to hear and weigh evidence, but to interpret the question put before him, a question often leaving to him a large measure of discretion. His judgment was final ; no appeal was possible. In the archaic procedure we find instead of the writtenformula a set form of words to be used by both parties. A claim had to follow exactly the wording of the old law: a failure by the plaintiff to use the right word was fatal to his claim. In these legis actiones there was not the same freedom for the judge, and the judgment only declared which sacramentum(a sum of money deposited by each party as a sort of stake, and forfeited to the State by the losing party) was justified. In the Byzantine period the classical procedure disappeared; the division of the functions no longer existed. Justice was now imposed from above, the judge being an official of a bureaucratic government and the master of the parties. Appeal could be made from each judgment. The characteristics of the classical procedure do not occur in any ancient or modern law. Greek law, for example, did not know the division into two parts. Nothing like the edict existed, and the Greek juries of the democratic age cannot be compared with the unus iudex of Rome. With all its mobility and elasticity the Greek genius was unable to confine itself within the strait waistcoat of a legal formula. The similarity between the classical procedure and that of England in the early Middle Ages is patent. But as soon as we begin to penetrate below the surface the differences between the two systems are at least as remarkable as the resemblances. The best English authority, after having shown the distinction between praetor and chancellor, comparing the iudex with the English jury, speaks of an unfathomable gulf which lies between them. In connection with classical procedure there arose jurisprudence and scientific literature. It was for the jurists to collaborate with the praetor and the iudex and to develop the law in a continuous evolution in such wise that the new had always arrived before the old departed. As Theodor Mommsen expressed it 2: 'The whole wisdom of the Roman creation of law consisted in allowing the jurists themselves to make and change the law'. Their predilection for simplification corresponds with their aversion to mixed forms, to hybrid legal configurations. And this whole tendency is expressed by the language of the literature: this scientific language, with a peculiar vocabulary, is extremely simple, plain and uniform. Here, too, economy is one of the main features. In contrast with all this, early Roman law did not know the separation of the law from extra-legal life. No distinction was then drawn between sacred and secular law, between public and private law, between contract and tort. Circumstantial phrasing marks the language of the early statutes. Only the beginnings of jurisprudence are perceptible ; no literature exists. If we look at late Roman law, we find a number of mixed forms ; postclassical are the actiones mixtae, the interdicta mixta, the actio in rem scripta as a mixture
2

Ges. Schriften 7,

2I2.

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between an actio in rem and an actio in personam. Sacred law (now Christian rules and conceptions) began again to play its part, if only in a modest way. Tort intruded into the law of contract. Extra-legal considerations, sentimental arguments, rhetorical distinctions were frequent. Notions without clearness, some of them used in a new sense (aequitas, humanitas, benignitas) served to infuse the law with a new spirit. Instead of casuistic jurisprudence we find now a tendency to generalisation. The language is either vulgar, no longer technical (in the west), or (in the east) Byzantine, that is to say bombastic, complicated and circumstantial. Compared with Roman classical law all other laws were unscientific; everywhere extra-legal arguments played their part ; no jurisprudence existed ; primitive conceptions prevailed in spite of a sometimes highly civilised world. This is especially true of Greek law. No single book on private law written by a Greek lawyer has survived. The practice of the courts did not interest the best brains. Pleading before the Athenian courts was not so much meant to bring legal argument as to win the sympathy of the numerous judges. The instrument for such a purpose was not jurisprudence, but rhetoric. Compared with the Romans the Greek lacked legal technique. Their intelligence was used not to simplify the facts, to create precise legal notions, but to see the whole complexity of life and to master this variety with old and sometimes primitive instruments. No Greek tribunal was free from confusion of law and fact. Babylonian and Assyrian or, more generally, cuneiform law, had no jurisprudence. In spite of our ever-growing knowledge of these systems, we cannot find the same sort of historic development as in Roman law. In the law of contracts, for example, the old forms of a very early period lasted for thousands of years without any alteration. This astonishing stability of the fundamental conceptions shows not only their adaptability to changing conditions, but also some absence of legal thinking. Nothing in modern law is equal to Roman classical jurisprudence. Continental law has been inclined to follow the Byzantine line: it has developed much abstraction. In spite of great progress it cannot hold a true balance between theory and practice. English law is nearer to the classical casuistic spirit and its aversion to excessive abstraction. But it has not quite the same scientific character, and the literature does not play the same important part. Three special examples may illustrate more clearly what I mean. Ownership is a specifically Roman classical institution. Dominium endowed its holder with the greatest legal power. All other rights were sharply separated from ownership. Their number was restricted, their contents definite. Never were they permitted to overpower dominium. The vindicatio, the action for the recovery of property, could be used even against a person who had acquired possession in good faith. The character of ownership was the same for land and moveables. Possession, on the other hand, the actual enjoyment, the fact of having a thing, had nothing to do with dominium. It had its own possessory remedies, but right was immaterial for its defence. All other laws know a scale of rights with different legal powers. For them, ownership does not convey an absolute right. Only relative rights exist, some stronger, others weaker. Ownership is only one of them. Possession on the other hand is not differentiated from ownership. Fact and right interflow. No past or present law knows the precision of the classical conception unless it has been influenced by Roman law. It did not exist in archaic Roman law, and it did not survive the end of the classical epoch. In archaic procedure not only the plaintiff asserted that the thing in action was his, but the defendant made the same assertion. It is evident that the question was one of the stronger right, not one of right against fact as in the classical action. Family property, divided ownership, co-ownership with integral ownership for each owner, all these conceptions existed in the pre-classical period, before the classical unrestricted and absolute character of the dominium was formed. Even the denomination dominium does not occur before the first century B.C. Before that time the Romans spoke of uti, frui, habere, possidere, or, summarising these, of possessio. The single powers later contained in dominiumhad to be summed up to express ownership. Byzantine law filled the gap between dominium and other rights. It created new rights which were so strong that they came very near to ownership. It abandoned the classical rule that there is only one owner of one thing. Two persons can now exercise the right of recovering a thing: the legal owner and

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the equitable owner. Two ownerships of different weight in the same object: a notion contradictory to classical strictness. In cuneiform law no clear distinction existed between ownership and other rights, and between ownership and possession. It is to-day the common opinion that Greek law had no clear conception of ownership and did not separate sharply possession from ownership. I have some doubts whether this opinion is not an exaggeration: probably ownership existed, although it was not quite the same as Roman dominium. Muslim law knows good and bad ownership; an imperfect sale gives only bad ownership. As the notion of ownership was not present in Germanic law, English Common law does not sharply distinguish between ownership and possession. There is a hierarchy of rights, a sort of descending scale from the purely proprietary to the purely possessory. The old principle of the better right is still in full operation. No vindicatio, no special claim for the recovery of property exists. An action in tort or contract, or an action based upon right of possession fills the gap incompletely. My second example is the consensual contract. In the classical period of Roman law several classes of contracts-the most important being sale and hire-became binding by mere consent, without any form. The consensus, the agreement, no matter how expressed, was sufficient to create legal obligations. A very simple and natural conception, so it seems to us nowadays. But it is not universal, and nobody knows how the Romans reached it, although they say that they took it from the iusgentium, an explanation-as we shall seeobscuring rather than revealing the real historical process. Archaic Roman law had only a few formal contracts. Some of the classical contracts, for example sale, did not exist at all. The mancipatio of the pre-classical law was a sale for ready money, not a contract ; there was no place for obligations. Other contracts were based at first on tort, all of them still in their infancy. The Byzantine age returned to the formal contract and destroyed the classical notion. A new form, the written document, more and more took the place of the consensual contract. Consensus, the real expression of a real agreement, was no longer necessary; the Byzantine animus (or intention), put on record in the document, was sufficient. In Babylonian law a severe formalism is characteristic for a period of two thousand years. The old view that Greek law began with consensual contracts must be revised ; it seems improbable that Greek law at any time reached the conception of legally binding consensual contracts. In our own time English law requires for a valid contract either that the agreement be embodied in a formal deed under seal or the presence of consideration. Looking back from this to the short period in which Roman law created and preserved consensual contracts one can get an impression of what is meant by the uniqueness of classical law. As a third and last example I would take engagement or betrothal. Characteristic of classical Roman law is the careful avoidance of any interference with matters not primarily concerning the law, the aversion to subjugating things of life and freedom to legal rules. So marriage and betrothal were free ; no binding or penal stipulation was possible. But in the archaic period there existed stipulations between the father and the bridegroom. The giving of a ring is a survival of the old price for the bride: the primitive conception of marriage as something like a sale is still alive. This conception comes back in the Byzantine age. The earnest money for the betrothal, sometimes a ring, confirms the promise. Breach of promise by the bride gives an action for damages to the bridegroom. Breach of promise by the bridegroom results in the loss of the earnest money. Babylonian and Mosaic law had the sale-marriage and, corresponding to it, the formal and binding law with the earnest money and its consequences for a breach betrothal-Babylonian of contract. As in Germanic law, the early English betrothal was a formal contract. If the bridegroom refused to perform it, he lost the bride-price; if the bride refused, she had to pay back the price augmented by one-third. And even to-day by a breach of promise the other party is entitled to claim not only actual, but also exemplary, or vindictive, damages, so that the defendant is punished for his injury. Roman law early overcame the primitive conception of marriage as a sale. In consequence of this, not only marriage was free and informal, but also engagement. In the East the old principle survived. It returned to Rome when the classical period ended. In the Byzantine epoch conceptions long since

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abandoned penetrated Roman law again. They were primitive, and, as such, common to archaic Roman law, to all other laws, and to Byzantine Roman law. Everything in such a survey is hypothetical. But I hope to have shown that the results of modern investigations require a revision of our picture of Roman law. General observations about procedure and jurisprudence and the special examples given-ownership, consensual contracts, betrothal-demonstrate that for a comparison of Roman law with other laws it is indispensable to distinguish between classical law on the one hand and archaic and Byzantine law on the other. Only so can the unique character of Roman classical law be displayed. This character consists mainly in the application of scientific thinking to legal life. Superiority of jurisprudence does not mean in itself realisation of justice. Therefore our comparison in no way intimates that less scientific laws are inferior in this respect. Not only is the character of classical Roman law unique: its history is too. Created in the period from 150 B.C. to A.D. 300 it was revived after an interval of about 300 years by Justinian. But after him the Byzantine Empire shrank, and law declined in its now limited province. For five centuries the treasure lay hidden in Justinian's Digest. It was only when, about 1050, an old manuscript of the Digest was discovered and interpreted in Italy that classical law awakened and began to speak again. And this voict was heard all over Europe. No learned tradition connected this new study with its predecessor. This time the classical law was reborn, not by the order of an absolute emperor, but from the parchment of a single manuscript. It seems as though some secret power had enabled it to survive. This unique history is only to be explained by the unique character of classical Roman law.