Вы находитесь на странице: 1из 20

THE NATURE AND SIGNIFICANCE OF

JURISTS LAW
A. ARTHUR SCHILLER*

I am indeed honored to be here tonight as the first American to


deliver the annual lecture on Roman and Comparative Law, a lecture
which has been provided for under the bequest of the late Charles
Phineas Sherman. The inaugural lecture last year, delivered by Pro-
fessor F. H. Lawson, undertook to survey the role of Roman law in the
organization of various legal systems throughout the centuries, and
suggested that this field of the law still had a significant part to play in
the future.' I shall take as my theme one of the elements vital to the
development of Roman law-perhaps the most important single factor-
one which occupied a prominent place in the formation of a succession of
legal systems in the western world. It still has its significance at the
present day. I will speak this evening on the topic "jurists law."'2 It is
somewhat difficult to talk about jurists law. The subject is complex and
* Professor of Law, Columbia University; J.D., University of California, 1926.
The text of the address delivered as the second annual Charles P. 'Sherman lec-
ture in Roman and Comparative Law at the Boston University School of Law, on
October 13, 1966. Annotations have been added.
Citations follow the Modern Language Association style sheet. Radical abbrevia-
tions used include:
Acta Juridica = Acta Juridica (Cape Town)
Atti Napoli = Atti dell'Accademia di scienze morali e politiche, Napoli
Atti Verona = Atti del Congresso internazionale di diritto romano e di storia
del diritto, Verona, 27-28-29-IX-1948
BIDR = Bullettino dell'Istituto di Diritto Romano "Vittorio Scialoja" (Roma
and Milano)
C.Th = Theodosiani libri XVI, ed. Th. Mommsen (Berlin, 1905)
D. = Digesta Iustiniani Augusti, ed. Th. Mommsen, 2 vols. (Berlin, 1870)
Gnomon = Gnomon. Kritische Zeitschrift fur die gesamte klassische Alter-
tumswissenschaft (Miinchen)
Iura = Iura. Rivista internazionale di diritto romano e antico (Napoli)
Labeo = Labeo. Rassegna di diritto romano (Napoli)
RE = Paulys Realencyclopfidie der classischen Altertumswissenschaft (Stutt-
gart)
RH = Revue Historique de Droit Frangais et Ptranger (Paris)
RIDA = Revue internationale des droits de l'antiquit6 (Bruxelles)
SDHI = Studia et documenta historiae et iuris (Roma)
Seminar = Seminar. Annual Extraordinary Number of The Jurist (Wash-
ington)
SZ = Zeitschrift der Savigny-Stiftung ffir Rechtsgeschichte, Romanistische
Abteilung (Weimar)
TR = Tijdschrift voor Rechtsgeschiedenis. Revue d'Histoire du Droit (Gro-
ningen/Bruxelles)
Abteilung (Weimar)
Other abbreviations are those employed in Caes, Collectio Bibliographica
operum ad ius Romanum pertinentium (1949-65).
1 Lawson, "Roman Law as an Organizing Instrument," Boston Univ. L. Rev.,
46 (1966), 181-204.
2 A translation of the more familiar German "Juristenrecht." In English "jurists
law" has not gained common acceptance, but the alternative "lawyers law" is
somewhat misleading.
JURISTS LAW

deals with matters which may appear to be minutiae to the person un-
acquainted with Roman law. Nevertheless, this is an integral part of the
system. I shall do my utmost not to be over-technical.
The first serious attempt to chart the role of jurists law in the sweep
of European history occurred just two decades ago. It was in 1947 that
Paul Koschaker described the place of Roman law in the evolution of the
concept of "Europe. ' 3 In the course of this description he dwelt upon
the successsive epochs in which jurists law prevailed as the result either
of the reception or of the rejection of the institutions and ideas of the
Roman law. This masterly work of Koschaker has undergone several
German editions and translations; it has unfortunately not been trans-
lated into English. 4 Though it drew attention to a fundamental sphere
of legal effort, there has been sparse consideration of the topic in the
intervening years. 5
The term jurists law gained currency more than a century ago when
Georg Puchta employed it in describing that portion of customary law
propounded by legal experts in their role as representatives of the
people.0 This usage of the term fell nicely within the then dominant
theories of the German Historical School, under the leadership of
Savigny, as to the nature of the law. 7 But the inclusion of jurists law
within peoples law (Volksrecht) was attacked by Georg Beseler, who
pointed out that the reception of Roman law in Germany, due almost
entirely to the efforts of legal experts, could hardly be conceived of as an
expression of the "law of the German people."" Savigny further con-
founded the concept-his term was "scientific law" rather than "jurists
law"-by incorporating both the contribution of the jurist as a creative
force in the law and his effort as a scientist in the discussion of legal
theory.9 The contrast between these two aspects of the consideration of
the law is well set forth in the dichotomy of the French terms jurispru-
3 Koschaker, Europa- und das r6mische Recht (1947). There were, of course,
earlier studies, more limited in coverage, to which reference will be made in the
following pages.
4 Reprinted, with introduction by M. Kaser, 1953 and 1958. Translated into
Spanish by Santa Cruz Teijero, 1955; into Italian by A. Biscardi, with an intro-
duction by F. Calasso, 1962. There exists an extensive summary of the book in
English, by Wylie, "Roman Law as an Element in European Culture," South
African L.J., 65 (1948), 4-13, 201-12, 349-61.
5 Notably A. B. Schwarz, "Das strittige Recht der r5mischen Juristen," Atti
Verona, 11 (1951), 121-48 = Festschrift Fritz Schulz, -11 (1951), 201-25; Schiller,
"Jurists' Law," Columbia L. Rev., 58 (1958), 1226-38.
6 Puchta, Das Gewohnheitsrecht, I (1828), 161 ff.; II (1837), 18 f.
7 Koschaker, Europa, 165 ff., 196 ff. Cf. also Windscheid, Lehrbuch des Pandek-
tenrechts (9th ed. by Kipp, 1900), I, 88 ff.; Allen, Law in the Making (6th ed.,
1958), 109 ft., 125.
8 Beseler, Volksrecht und Juristenrecht (1843), particularly 85 ff., 299 ff., 374 ff.
9 Savigny discusses the concept "wissenschaftliches Recht," in System des
heutigen r6mischen Rechts, I (1840), 45 ff. The confusion in Savigny's usage is
treated by Koschaker, Europa, 209 ff.
BOSTON UNIVERSITY LAW REVIEW

dence and doctrine, or the use in English of the words "legal practice"
and "legal theory," but the German Rechtswissenschaft and its transla-
tion science de droit or "legal science" lead to ambiguity. There must be
clear differentiation between the two roles, for doctrine or legal theoreti-
cal effort does not in any context provide rules of law which are binding
upon court or magistrate, but -only leads to suggestions which may or
may not be accepted as law. 10
At the turn of the century Eugen Ehrlich sought to establish that
Roman ius civile, the primordial portion of the Roman law, was nothing
more than jurists law. 1 Two passages of the jurist Pomponius defining
ius civile-among the extracts in the Digest of Justinian-were funda-
mental to Ehrlich's position.
This discussion and this law which, composed by the learned in the
law, was established without writing, is not called by any special
name-as the other parts of the law which have their12own names-
but it was termed under the common name, civil law.
Hence, in our state, law is constituted either by statute, or there
is the civil law itself which, without writing, is comprised in the
mere interpretation of the learned, or there are actions on the law
. . . or plebiscite .... or edict of the magistrates..., or resolution
of the senate . . ., or imperial constitution . . .13
Ehrlich conceived of this "civil law" of the Romans as deriving from the
activities of the jurists alone, in whatever fashion such activities were
carried out. 1 4 Thus, that part of the law which was put into force by the
10 Van Oven, in his review of Koschaker, in TR, 18 (1950), 68, 69, points out
that he carefully distinguishes between the two roles played by the jurists. Schwarz,
"Der Einfluss der Professoren auf die Rechtsentwicklung im Laufe der Jahr-
hunderte," M~moires de l'Acad. intern. de droit compare, III (1953), 413 ff., also
contrasts the practical and theoretical interests of the jurists. For the varied
meanings of the phrase "jurists law" see Windscheid, Lehrbuch, 90 n.8, and my
forthcoming article in the Studies in honor of Martin David.
11 Ehrlich, Beitrage zur Theorie der Rechtsquellen, Ier Teil (1902), particularly
chaps. I-XI. The conclusions are incorporated into his Grundlegung der Soziologie
des Rechts, translated into English, Fundamental Principles of the Sociology of
Law, trans. Moll (1936), 266 if.
12 D. 1.2.2.5 (Pomponius lib. sing. enchirid.)
. . . haec disputatio eit hoc ius, quod
sine scripto venit compositum a prudentibus, propria parte aliqua non appellatur,
ut ceterae partes iuris suis nominibus designantur, datis propriis nominibus ceteris
partibus, sed communi nomine appellatur ius civile.
13 D. 1.2.2.12 (Pomponius lib. sing. enchirid.) Ita in civitate nostra aut iure,
id est lege, constituitur, aut est proprium ius civile, quod sine scripto in sola
prudentium interpretatione consistit, aut sunt legis actiones, . . . aut plebi scitum,
, * . aut est magistratuum edictum, . .. aut senatus consultum, ... aut est principalis
constitutio ....
14 Ehrlich, Beitriige, 35: "Ius civile is the law that lies at the basis of the activ-
ities of the jurists, thus cavere, respondere, agere, and at the same time flows ftiom
these activities. The ius civile thus extends as far as the sphere of action of the
jurists." Cf. Kaser, "Vom Ursprung des r6mischen Rechtsdankens," Atti Verona,
II (1951), 17, 35: "The basic categories of the late Republic and classical law of
the Principate, ius civile, ius gentium, ius honorarium, . . . only these are the sub-
stance of 'jurists law.'" (Translations by the author.)
JURISTS LAW "

edict of the judicial magistrate, the praetor-the ius honorarium--was


within Ehrlich's broad concept of jurists law, since the institutions flow-
ing from the praetor's edict ultimately stemmed from suggestions made
by the jurists. Similarly, Ehrlich held that the law deriving from resolu-
tions of the senate or from the acts of the imperial chancellery were
jurists law; the jurists had been the inspiration of the principles set
forth in senatorial resolutions and imperial enactments. 15 Later scholars
have disapproved of this wide connotation of the term ius civile. They
have also objected to Ehrlich's views that ius civile was never, anything
more than jurists law. 16 It can be shown that at times ius civile means
"positive law." In this case jurists law is but one of the elements of
Roman civil law, standing alongside the law deriving from statutes, from
plebiscites, from the resolutions of the senate, and from the enactments
of the emperor. 17 In this sense civil law is contrasted, by the jurist Pap-
inian, with supplemental and amending law, i.e., the law which flows
from the activity of the judicial magistrate, the praetor.' 8
It seems to me there is need for narrowing the use of the term jurists.
law, if we are to ascertain the contribution of the groups of legal experts
who, over the centuries of European legal history, have substantially
fashioned many of the legal systems. For Roman jurists the field has
been well circumscribed in the course of the inaugural address of H.
Kreller at the University of Tiibingen in 1932. I quote his opening note:
The expression which has been used by scholars in various connota-
tions will herein only refer to law fashioned in a scientific way,
not to customary law which stems from juristic activity, nor to case
law which is formed regardless of the scientific deliberations of the
judge. The former is not jurists law, in that its binding force is
not dependent on the status position of the persons who gave the
usage force by their acts; the latter is not jurists law, because there
is no significant distinction between the utilization of professional
or lay judges. 19
Narrowing the scope of jurists law permits us to describe more easily
its characteristic elements and to distinguish it from the other component
parts of the Roman law. It is generally recognized that jurists law was
the most important contributing factor to the development of the legal
system of Rome to the middle of the third century of our era, to the end
of what is known as the period of classical law. 20 However, it is not so
15 Ehrlich, Beitrdige, 121 f., 134 ff. Cf. also Kipp, Geschichte der Quellen des
r6mischen Rechts (4th ed., 1919), 105 ff.
16 Reff. in Kaser, Das altr6mische Ius (1949), 71 n.35.
17 D. 1.1.7 pr. (Papinian 2 defin.).
18 D. 1.1.7.1 (Papinian 2 defin.).
19 Kreller, Das Problem des Juristenrechts in der r6mischen Rechtsgeschichte
(1932), 3 n.1 [22]. Italics by Kreller.
20 Kunkel, An Introduction to Roman Legal and Constitutional History, trans.
BOSTON UNIVERSITY LAW REVIEW

easy to ascertain just where jurists law starts and stops, or where to
21
draw the line between it and other activities of the jurists. Several
conditions beginning in the middle of the second century B.C. and con-
tinuing some three centuries formed a favorable base for the flourishing
of this remarkable type of law. I shall point these up.
In the first place, during the last centuries of the Republic there
existed a class of society in city Rome with sufficient leisure and financial
independence for male members of the group to turn their attention
22
voluntarily and without remuneration to the affairs of state. Max
2 3 From among
Weber has denominated these individuals honoratiores.
these the magistrates were elected, who served as the officials of the
Roman people. At an earlier period persons within this oligarchic group
made up the body known as the college of pontiffs, which had taken upon
itself the supervision of legal affairs in Rome during the first centuries
of its existence. In the course of time lay persons in this class replaced
the earlier semi-official religio-legal body.2 4 They gave of the wisdom
and experience acquired through close attention to public affairs to their
friends and fellow citizens when they were approached for advice. As
Cicero relates:
I have often heard from my father and father-in-law that those men
who wished to excel in the renown of knowledge were wont to em-
brace all matters which our state had learned to that time. They
remembered Sextus Aelius; Manius Manilius, even, whom we saw
walking across the forum, because it was a sign that the one who did
this gave of the abundance of his counsel to all his fellow citizens.
To those formerly the citizen had approach, either when they were
walking about or sitting at home in an arm chair, not only. to con-
sult them concerning the civil law but even for getting a girl mar-
ried, for purchasing25
land, for cultivating a farm, for, indeed, all
office or business.
Kelly (1966), 78: "[B]y the end of the Republic jurisprudence [Rechtswissenschaft
in the original] had risen to great heights of achievement and . . .under the
Principate remained for all of two centuries the most productive element in
Roman legal life."
21 Kipp, Geschichte, 106 f.; Riccobono, s.v. Iurisprudentia, Novissimo Digesto
Italiano, 9 (1963), § 28d; Balogh, Atti Verona, 11 (1951), 261, 265 n.10; Kunkel,
Introduction, 115 f. Von LUbtow, "Miscellanea," Studi in onore di Vincenzo
Arangio-Ruiz, II (1952), 353, 357, remarked that there was no sharp distinction
on the part of the jurists between application of the law (Rechtsanwendung) and
fashioning of the law (Rechtssetzung).
22 Kunkel, Herkunft und soziale Stellung der r6mischen Juristen (1952), par-
ticularly 41 ff., 271 ff., gives the over-all picture of the social position of the Roman
jurists. For the tie between juristic status and jurists law, see Koschaker, Europa
(supra, note 3), 166 f., and review thereof by Wieacker, Gnomon, 21 (1949), 187,
188.
28 Weber, Wirtschaft und Gesellschaft (2d ed., 1925), I, 170 f., and II, 609 f.,
674 ff. In part, Max Weber on Law in Economy and Sociology, ed. Shils-Rhein-
stein (1954), 52 f., 332 ff.
24 Schulz, History of Roman Legal Science (Rev. ed., 1953), 8 ff.; Kunkel,
Herkunft, 45 ff.
25 Cicero, De oratore, 111.33.133.
JURISTS LAW

Frequently, members of this small but continuing group held public


office, but the weight and power which they gained as counsellors gave
them equal renown, greater than that which was accorded the most bril-
liant orator or the wisest philosopher. 26 It is inconceivable that private
persons would gain the confidence and respect of the general public in
the time of an absolute and bureaucratic regime, or in a democracy where
any citizen could attain to the highest post. Thus, with the establishment
of the Principate by Augustus and the gradual decline of the power of
the senatorial families, jurists of a lower class-the equestrian class-
came to the fore, and they depended for their prestige to a considerable
degree upon their connections with the imperial regime,' as counsellors
patented by the emperor or as officials with positions in the imperial
27
bureaucracy.
In undertaking to make themselves thoroughly versed in the knowl-
edge of the law, these jurists maintained intimate contact with the day-
to-day dealings of the social and economic life of city Rome. Thus they
acquired technical proficiency in all forms of legal activity. 28 Still they
cannot be said to have been practitioners, for that was the activity of the
rhetors, or orators, like Cicero, who received remuneration. The jurists
close contact with law-in-action is reflected in the fact that, except oc-
casionally during the later Principate, they had no interest in and no
knowledge of anything but city Rome law.29 Coming from old Roman
stock at the start, we would expect that those learned in the law would
belong to the conservative element of the population, and so not given to
readily altering the traditional structure. Neither the wholesale intrusion
of Greek culture in the last centuries of the Republic, nor the political
shift to one man rule in the Principate were reflected to any substantial
degree in the development of the private law by the jurists.8 0 Actually,
26 Wieacker, Vom rimischen Recht (2d ed., 1961), 130: "[T]he practical pro-
fessional learning [of the jurist] gained auctoritas easier than the brilliancy of
skillful oratory or the depth of philosophic wisdom." (Translation of the author.)
27 Schiller, "Bureaucracy and the Roman Law," Seminar, 7 (1949), 26, 37 if.;
Kunkel, Herkunft, 290 if.
28 The close tie of the jurists to actual practice is emphasized by Biondi, "Inter-
pretatio prudentium e legislazione," BIDR, .43 (1935), 139, 142 ff. [Scritti
Giuridici, I (1965), 323, 325 ff.] For the jurist as technical expert, Pringsheim,
"The Unique Character of Classical Roman Law," J. Rom. Stud., 1934, 60-64
[Gesammelte Abhandlungen, I (1961), 70-75] ; briefly, Schiller, Columbia L. Rev.,
58 (1958), 1226, 1231 f.
29 Lenel, Das Edictum Perpetuum (3d ed., 1927), 5; Schulz, Principles of
Roman Law, trans. Wolff (1936), 33 f. An instance of wider interest has been
dealt with by the author, "Provincial Cases in Papinian," Acta Juridica, 1958, 221
ff.
30 The limited influence of Greek dialectic upon the Roman jurists-a view with
which I am in accord-is expressed by Pringsheim, inter alia, in "Aequitas und
bona fides," Conferenze per il XIV Centenario delle Pandette (1931), 183, 193 ff.
[Gesammelte Abhandlungen, I (1961), 154, 159 ff.] For full bibliography of Greek
influence on Roman law, see Bretone, Atti Napoli, 67 (1957), 24 n.115 (of the
reprint). Reff. on the relations of the jurists to the Principate, Bretone, op. cit.,
22 n.111.
BOSTON UNIVERSITY LAW REVIEW

legal traditionalism and formalism satisfied the Roman of the upper


classes. Only through the ever-increasing contact with the outside Med-
31
iterranean world did the new intellectual challenge the old way of life.
Professional jurisprudence gave way hesitantly and it never fully lost
out until the jurists and their way of thinking completely disappeared
32
by the fourth century of the Christian era.
These, then, are the primary factors which laid the foundation for the
role the jurists played in the legal life of Republican and early imperial
Rome. Some of the functions which the jurists performed fall outside
the sphere narrowly defined as jurists law. If the jurist was called upon
by the judicial magistrate, the praetor, to advise him whether new types
of actions should be made available to afford relief, it constituted expert
33
advice and the praetor decided whether or not to follow the advice. If
the praetor, so advised, created new legal remedies, that new law derived
from the praetor's fiat and became part of the praetorian law (ius honor-
arium). It is not properly included within jurists law. Further, if the
jurist was called into the council of the emperor or accepted a post in one
of the legal bureaus, judgments handed down by the imperial court or
answers to queries issued by the bureaus are not to be viewed as direct
efforts of the jurists, but gained their force from the power of the em-
peror.3 4 On the other hand, in early Republican Rome the jurists were
responsible for drawing up the forms for legal instruments employed in
the transaction of daily life. These forms and instruments are properly
considered part of jurists law.35 And if a.person sought the advice-of a
jurist regarding a formula-we would say "instructions upon the law"
-which he should employ in prosecuting a cause of action in the civil
31 Wieacker, R6m. Recht (supra, note 26), 145 ff. The new factors affecting
jurists law include the spread of "empire law" and the bureaucratization of juristic
effort.
The drive toward "empire law" is stressed by Schbnbauer, "Reichsrecht,
Volksrecht und Provinzialrecht," SZ, 57 (1937), 309-55, and "Die Doppel-
bfirgschaft im ramischen Reiche und ihre Wirkung auf die Rechtsentwicklung,"
Anzeiger d. Akad. d. Wiss., Wien, 86 (1949), 343-69; cf. also, Schiller, "The Role
of Roman Citizenship and Roman Law in the Pax Romana," Festgabe fiir Adolf
Leschnitzer (1961), 121, 124 ff.
The effect of bureaucratization is treated by Schiller, "Bureaucracy" (supra,
note 27), 37 ff.; Kunkel, Herkunft (supra, note 22), 290 ff.
32 Berger, s.v. lurisprudentia, RE, 10 (1919), 1159, 1192 ff.; Schulz, History
(supra, note 24), 265 f.; Kunkel, Introduction (supra, note 20), 135 f.
33Wenger, "Praetor und Formel," Sitzungsb. d. Bayer. Akad. d. Wiss.,
Miinchen, 1926.3, 112 ff.; Maschi, "Certezza del diritto e potere discrezionale del
magistrato nel diritto romano," Studi in onore di Emilio Betti, III (1962), 411,
422 ff.
34 Wieacker, Rim. Recht (supra, note 26), 133. The relation of the jurists to
imperial constitutions forms the basis of the monograph of Gualandi, Legislazione
imperiale e giurisprudenza, II (1963), particularly chap. IV.
a5 The so-called cautelary jurisprudence is treated by J6rs, Rimische Rechts-
wissenschaft zur Zeit der Republik, I (1888), chap. XVIII; Schulz, History
(supra, note 24), 49 ff., 111 f.
JURISTS LAW

law, that advice might be considered jurists law if it provided a novel


formula. 6 So it is difficult, indeed, to draw the line between the rules
and institutions for which the jurists were responsible and those which
37
derived their force from action taken by the magistrate.
The particular activity of the jurist clearly leading to jurists law was
that of providing answers to questions of law put to them by party
litigants or judicial officials. 38 Answers of this nature, technically known
as responsa, were orally delivered though in the course of time reduced
to writing. In most cases we can assume that such queries could be
answered by reference to a well-established rule of law. The replies in
these instances simply called for application of a given legal norm, if the
circumstances alleged were proven to the satisfaction of the judge.3 9
But if the jurist concluded that no existing rule afforded legal guidance,
he himself then fashioned a new rule of law, and so he may be said to
have created or to have found the law, depending upon the school of
thought to which one adheres. 40 In the early days of Rome, new legal
rules and institutions were frequently formally said to be derived from
the provisions of the law of the Twelve Tables or other early legislative
enactment, by the technique known as interpretatio.41 Actually, the bulk
of the private law of the Romans during the classical epoch was fashioned
by the jurists, quite apart from statutory construction. 42 Jurists law
36 The role of the jurists in providing formulae was noted by Jfrs, Ram. Rechts-
wissenschaft, 98 n.2; it was demonstrated without question by Wlassak, "Die
klassische Prozessformel," Sitzungsb. d. Akad. d. Wiss., Wien, 202.3 (1924), 25
ff. Reff. to passages in the Digest of jurists responsa respecting the actions to be
brought, collected by Wlassak, 42 ff.
37 Accord, Kunkel, Introduction (supra, note 20), 115 f.
38 Generally, on the responding activity of the jurists, see Berger, s.v. Iurispru-
dentia (supra, note 32), 1162 ff.; von Liubtow, Das r6mische Volk (1955), 538 ff.;
Wieacker, R6m. Recht (supra, note 26), 139 ff.
39 Cf. von Lfibtow, "Miscellanea" (supra, note 21), 356 ff.
40 Kreller, "Textausgabe und kritische Palingenesie," Revista Clasica, 3/5
(1941/43), 18, 20 f.; De Francisci, Sintesi storica del diritto romano (2d ed., 1962),
224 n.1; Grosso, Premesse generali al corso di diritto romano (4th ed., 1960),
75 ff., are among those who hold that the jurists created the law. Further reff.
on the evaluation of the jurists contribution by Kaser, Altr6m. Ius (supra, note
16), 80 n.21.
Von Libtow, "Miscellanea" (supra, note 21), 357: "In fact, the basis of the
entire civil law from Sextus Aelius Paetus to Ulpian is the legal-creative activity
of jurisprudence, and the Romans themselves so understood it." (Translation of
the author.)
41 Generally, on interpretatio, see Schiller, "Roman Interpretatio and Anglo-
American Interpretation and Construction," Virginia L. Rev., 27 (1941), 735-68,
and reif. therein. For a recent survey of the literature, Bretone, "La giurisprudenza
romana nella letteratura storico-giuridica," Atti Napoli, 67 (1957), 26 ff. (of the
reprint).
42 The development of "simulated legal transactions" by the early jurists-cf.
von Jhering, Geist des rSmischen Rechts, II (6th ed., 1921), 528 ff., and III (5th
ed., 1906), 275 ff.: briefly Seidl, Rbmische Rechtsgeschichte (2d ed., 1962), § 114;
Wieacker, R5m. Recht (supra, note 26), 59 f.-presaged the formation of private
law of the classical period. Succinct, noteworthy expressions of the contribution
BOSTON UNIVERSITY LAW REVIEW

occupied the center; legislative enactment was clearly marginal. It is in


the responsa of the jurists that the mass of the legal rules and institutions
constituting jurists law are found.
The methods by which the jurists arrived at the new legal norms con-
tained in the responsa afford the key to any evaluation of the jurists'
contribution to the development of the Roman law. Strange as it may
seem, this particular topic has been grossly neglected in Roman law
study and only recently has it been taken up to any considerable degree,
and with some diversity of opinion. I can only touch upon a few points
that have been made. In the first place, throughout the whole of the
period jurists, in reaching their results, have resorted primarily to what
has been termed "problem thinking" rather than rational deductive
reasoning. 43 That is, the jurists proceeded by topical rather than axio-
matic argument. If the rules and concepts of a legal system are derived
by logical reasoning from basic principles or axioms, then we have to do
with axiomatic argument. But if one proceeds from the case-I suppose
we could say the trouble case-to work out the premisses which would
support a solution and then posit guiding principles and concepts from
which a decision can be reached, this is topical or problem reasoning.
Topoi are not inviolate rules and concepts but are subject to change,
depending upon the case situations sought to be subsumed under them.
The concepts of the Roman jurists are such topoi; they do not derive
from logical generalization, but as P. Stein has recently said:
[T]he Roman jurists were interested in rules, but of a different
kind from those found in a modern code. They judged a rule not by
the extent of its scope or the simplicity of its expression but by its
utility in deciding cases.... The jurists avoided laying down broad
general principles, not because they were unable 44 to do so, but be-
cause they did not see the necessity for them.
of the classical jurists, by Kreller, Problem (supra, note 19), 6 ff., and by Schwarz,
"Begriffsanwendung und Interessenwertung im klassischen rbmischen Recht,"
Arch. f. zivil. Praxis, 152 (1952/53), 193, 207 ff.
43 Primary discussion by Viehweg, Topik und Jurisprudenz (2d ed., 1963),
particularly 26 ff.; cf. also Bretone, "La logica dei giuristi di Roma," Labeo, 1
(1955), 74-78; Wieacker, Gnomon, 27 (1955), 367-70; Coing, Arch. f. Rechts- u.
Soz.-philos., 41 (1955), 436-44. Translation of the 1st edition into Italian, with in-
troduction by Crif6, Topica e Giurisprudenza (1962).
Giambattista Vico's dissertation of 1708, which served as the point of departure
for Viehweg's study, has recently been translated into English, On the Study
Methods of Our Time, trans. Gianturco (1965) ; see particularly the translator's
introduction, xx ff. and xx n.l, as well as 14 ff., 52 ff.
Esser, Grundstaz und Norm in der richterlichen Fortbildung des Privatrechts
(1956), 44 ff., deals with topical thinking in Roman law. In his chapter (XI) on
the distinction between legal principles in problem thinking and system thinking, he
stresses the contrast between the case law approach of the Anglo-American law and
the "code" approach of the continental legal systems, a topic upon which there
exists a substantial literature in English, but nothing, so far as I am aware, spe-
cifically directed to the jurists technique of problem thinking in the Roman law.
44 Stein, Regulae Iuris. From Juristic Rules to Legal Maxims (1966), 102.
JURISTS LAW

As the result of extensive employment of problem thinking, it has been


noted that Roman jurists law is both incomplete and unsystematic. It is
incomplete in that the rules uttered in response to cases put the jurists,
though covering all fields of the private law, necessarily did not com-
pletely exhaust the possible subject matter.45 It is unsystematic in that
the jurists made no effort to order the material in any logical arrange-
46
ment or system.
As a further point, it is generally asserted that the Roman jurists
reached their conclusions intuitively. M. Kaser attributed the intuitive
grasp of the law to the innate sense of the Romans for legal matters, and
to the full experience which the jurists had with the day-to-day practice
of the law.4 7 Recently, E. Seidl has urged that each jurist had his own
method for reaching solutions to the law questions put him. 48 Some
jurists did, indeed, take into account actual factual circumstances of the
case, some the subjective intention of the parties, some resorted to
deductive reasoning from general concepts in arriving at their decisions.
Due to the incursion of Greek modes of thought into Rome at just the
time when the Roman jurists were fashioning jurists law, it is quite
possible that some of the tools of dialectic Were employed in framing
responsa, but by and large the jurists held fast to the traditional ap-
proach, "at the beginning is the case." 4 9 For instance, A. Steinwenter
maintains that analogical application of the law in the broad sense of the
term, i.e., extending a rule from one case to another by reason of the fact
that both are comprehended within a general concept, is not to be found
in Roman jurists law."0 Yet-it has been shown that jurists depend upon
related cases frequently to arrive at their decisions. Intuition, Kaser
says, determines whether the analogy is to be pressed or not. 5' One can
conclude, then, that the thought process quite likely varied with the in-
45 Koschaker, Europa (supra, note 3), 96 ff.
46 Wieacker, R6m. Recht (supra, note 26), 149 f.; Vieheg, Topik, 26 ff.; Huib-
ner, "Die r6mische Juristenausbildunrg," Aktuelle Fragen . . .Gedichtnisschrift fir
Rudolf Schmidt (1966), 551, 554.
The lack of system does not preclude the fact that jurists law might still be
scientific, Bretone, "Logica," Labeo, 1 (1955), 74, 77 f.
47 Kaser, "Zur Methode der r6mischen Rechtsfindung," Nachrichten d. Akad.
d. Wiss., G6ttingen, 1962.2, 49, 54 ff.; cf. Hausmaninger, Gediichtnisschrift Schmidt,
408 and n.31. Koschaker, Europa (supra, note 3), 195: "[T]he response [of the
jurist] which fashions new law is in the final analysis based on intuition." (Trans-
lation of the author.)
48 Seidl, "Prolegomena zu einer Methodenlehre der R6mer," Gedichtnisschrift
Schmidt, 359 if.
49 Hfibner, Geddchtnisschrift Schmidt, 554.
50 Steinwenter, "Prolegomena . . . Analoge Rechtsanwendung im r6mischen
Recht," Studi in memoria di Emilio Albertario, II (1950), 105-27. Schwarz, Arch.
f. zivil. Praxis, 152 (1952/53), 193, 207 ff., suggests that Steinwenter is in error in
his exclusion of analogical reasoning from Roman legal thinking; see also Esser,
Grundsatz (supra, note 43), 231.
51 Kaser, "Methode," 59 f.
BOSTON UNIVERSITY LAW REVIEW

dividual problem as well as with the individual jurist, but that the
evidence indicates that the "sense of law" attributed to the Romans
normally led them to employ problem thinking in seeking the answers to
novel legal situations with which they were faced.
Another remarkable note is that the responses of the Roman jurists
were without exception expressed in casuistic form. 52 The jurist restated
the factual aspects of the case in a manner which focussed on the legal
question put to him. From the wealth of legal principles provided by the
past or encountered within his own experience, he rendered a decision
only obliquely referring to the rule which prompted it. Fairly regularly
all reference to the guiding principle was completely suppressed and the
legal question answered by a simple "yes" or "no," that is, "I have
responded . . ." or "I have responded that . . . not . , .- 53 In a body of
law built up by a group of expert jurisprudes, and always expressed in
casuistic form, it is natural that there should be considerable difference
of opinion among the individual jurists. Discussion in the forum was a
normal precursor to the response which was given by the jurist in answer
to the case. 54 In many cases opposing points of view were taken by con-
temporary or by later jurists, and many of these controversies were not
resolved for decades or even for centuries, and some persisted to the
time of Justinian. 55 The controversial law is much more extensive than
the set disputes, the so-called controversies of the Sabinian and Pro-
culian "schools" of the early Principate. 56 Many more controversies
existed than are revealed either in the Institutes of Gaius-a first year
teaching book which purposely omitted the resolution of disputed ques-
tions- 67 or in the Digest of Justinian-which at the latter's orders
sought to resolve the controversial matters. 58 The nonlegal writers con-
tribute to our information; viz., Cicero:
52 "Casuistic" is not used here in a disparaging sense, but to describe the science,
art or reasoning of the resolution of cases, applying the injunctions of individual
authority to the particular instances of conflict. The art of casuistry, as viewed by
the lawyer, is well stated by F. Cohen, s.v. Casuistry, Encyclopedia of the Social
Sciences, 3 (1937), 265 f.
For casuistic usage in the jurists, generally, see Wieacker, R6m. Recht (supra,
note 26), 151 ff.; Kaser, "Methode," 54 f.
53 Instances, for example, D. 41.1.60 (Scaevola 1 respons.), and D. 47.2.52.13
(Ulpian 37 ad edict.).
54 Jbrs, R6m. Rechtswissenschaft (supra, note 35), 84 f., 232 ff.; von Lfibtow,
R~m. Volk (supra, note 38), 542 ff.
55 The basic discussion of the "controversial law" is by Schwarz, "Strittige
Recht" (supra, note 5); the promised extended treatment of the theme never ap-
peared. See also Schiller, "Jurists' Law," Columbia L. Rev., 58 (1958), 1226, 1232
ff.; Kaser, "Methode," 74 f.
56 Kuibler, s.v. Rechtsschulen, RE, 1A (1914), 380-94; a brief report of the
Sabinian - Proculian controversies by Roby, Introduction to the Study of Justin-
ian's Digest (1886), cxxvii-cxli.
5T Schwarz, Festschrift Schulz (supra, note 5), 213 ff.
58 Chiazzese, "Confronti testuali," Annali Semin. Giur. Univ. Palermo, 16
(1931), 429-53, treats of the legislative resolution of the controversies of the jurists
by the codification commission of Justinian.
JURISTS LAW

Are we to have our leading statesmen debating such topics as


whether the offspring of a female slave is to be considered belonging
to the person who has hired her (or to her owner), Publius Scae-
vola and Manius Manilius upholding one opinion while Marcus
Brutus dissented from them--conceding that such questions raise
nice points (of law) as well as being of practical value for the use
of citizens; and we read and shall continue to read with pleasure
those writings and others of the same nature-? But shall those
questions which cover the entire range of conduct be neglected?
For, though legal subjects are no doubt more popular, philosophical
topics are undoubtedly richer in interest. 59
Divergent rules of law in response to the same legal question imme-
diately raise the query: were the rules laid down by the jurists in their
responsa actually rules of law, binding upon the magistrate and judge,
and controlling the outcome of the case, provided the facts alleged were
proven ? Or were they merely expert opinions, to be tested by the officials
of the court? The force of law to be attributed to the responses of the
Roman jurists remains a matter of dispute to scholars. To T. Kipp, for
example, the rule expressed in a response had to undergo the same sort
of test to which a legal instrument or procedural formula devised by a
jurist was subject, before it gained recognition. 60 Kaser restates the view
of many:
The responsa have only the nature of private points of view and
consequently are not binding upon praetor [judicial magistrate]
and iudices [judge-jurors], and gain authority only by reason of the
validity of the legal ideas expressed therein and because of the
reputation of the author [jurist] .61
I incline to the view that the jurists were recognized as the creators of
legal rules, in accord with the statement of the jurist Papinian that the
"authority of the learned" (auctoritas prudentium) was a source of the
positive law (ius civile) .62 Actually, it is of no great concern whether
the responsa are said to be binding upon magistrate and judge or not.
For magistrate and judge were not knowledgeable in the law; the
former held a post in the course of a public service career, the latter
corresponded to our juror, limited to decision upon the facts. 63 Hence,
if only one response were tendered to magistrate or judge in a particular
case, these officers, since they knew no other, would abide by the rule
advanced. And if both parties obtained divergent responses, then there
was an occasion of controversial law with the magistrate or judge choos-

59 Cicero, De finibus, 1.4.17.


60 Kipp, Geschichte (supra, note 15), 105.
61 Kaser, Das r6mische Privatrecht, I (1955), 188.
62 D. 1.1.7 pr.
63 For judicial magistrate (praetor or aedilis), see Kunkel, in J6rs-Kunkel,
R6misches Privatrecht (3d ed., 1949), 21; for judge-juror (iudex), see Buckland,
Text-Book of Roman Law from Augustus to Justinian (3d ed., 1963), 21.
BOSTON UNIVERSITY LAW REVIEW

ing the one he desired. This response was the legal rule controlling the
case, but it was not necessarily the principle of law that ultimately pre-
vailed.
The force of jurists law rested upon "auctoritas prudentium," the 64
esteem with which the individual jurists were held by the populace.
In the time of the Republic the reputation which a jurist had depended
on his position in society, on the amount of attention he had given to
public affairs, and upon the correctness of the legal rule which he had
set forth in his response. The latter, of course, was a matter difficult of
evaluation by a lay person, but could usually be sensed from the fre-
quency with which the jurist was approached on questions of law. If a
jurist's responses were regularly discarded for the answers of other
jurists, one may be certain the former did not remain a responding
jurist for very long. The jurist himself, whenever possible, reinforced
his point of view by citation of authorities, i.e., earlier jurists who had
65
pronounced a similar rule of law in comparable cases. The assertion
that the problem had been dealt with earlier was the significant factor,
for at times a jurist cited an earlier authority who had set down a
66
different rule of law.
A change in the nature of jurists' responses occurred with a regu-
lation by the emperor Augustus and continued in practice to the reign
of Hadrian at least. Particular jurists were declared to have the "right of
responding on the authority of the emperor." 67 The significance of this
is greatly disputed. 68 Perhaps the prestige of the jurists had diminished
with the entry of members of the equestrian class into the group; or,
possibly, Augustus sought political support for his regime by aligning
himself with a highly respected group in the society. There is great
difference of opinion, too, about the effect of the imperial license or patent
upon the response itself. One extreme suggested by A. Magdelain is
that only patented jurists had the right to give consultations to party or
magistrate concerned with questions of law.69 Scholars generally believe
64 Schulz, Principles (supra, note 29), 164 f., 183 ff.
65 Berger, s.v. Iurisprudentia (supra, note 32), 1175 f. Cicero ridiculed this cult
of authority, in a letter to Trebatius, a jurist friend, Epist. ad famil., 7.10.
66 E.g., D. 31.49.2 (Paul 5 ad leg. Iul. et Pap.), in which Paul refers to Labeo's
citation of a response of Trebatius, according to Paul an incorrect statement of the
law.
67 D. 1.2.2.49 (Pomponius lib. sing. enchirid.), a source uniformly acknowledged
corrupt.
68 See Schulz, History (supra, note 24), 112; von Lfibtow, Rm. Volk (supra,
note 38), 388; Bretone, "Motivi ideologici dell'enchiridion di Pomponio," Labeo,
11 (1965), 7, 23-25; most recently, Kelly, Roman Litigation (1966), 96 ff.
Cf. Schinbauer, "Die Legende vom ius respondendi ex auctoritate principis,"
Anzeiger d. Akad. d. Wiss., Wien, 1950, 94-124, who declares, 114, that the Pom-
ponius passage never contained the words ex auctoritate principis (on the authority
of the emperor), and further, that there is no evidence for the occurrence of this
phrase in the whole Augustan period!
69 Magdelain, "Jus respondendi," RH, 28 (1950), 1-22, 157-82. Cf. Kunkel,
JURISTS LAW

that anyone holding himself out as a jurist was permitted to transmit


responsa, and that the imperial imprimatur only gave added prestige
and weight to the reply of the patented jurist. 70 The majority also main-
tain that the responsa of patented jurists acquired binding force, i.e.,
they had to be accepted by magistrate or judge.71 There are still some
who say that such responsa had no more statutory or binding force than
in earlier times. 72 I am inclined to think that Augustus' move was an
administrative one, that it was a device to ensure that the responsa of
jurists would continue to be respected, though not necessarily binding.
Inasmuch as neither the magistrate nor the judge had any way of dis-
covering the law, the response of the jurist would be followed unless
conflicting responsa were submitted by different jurists.
Scholars point to a passage in Gaius' Institutes which is said to relate
to the final stage in the evolution of Roman jurists law of the classical
period. I believe the reference has nothing to do with the field of jurists
law, so it is necessary to turn briefly to a discussion of the various types
of juristic literature. 73 The major source of our information for the
Roman law of the classical epoch is the Digest of Justinian which con-
tains extracts from juristic writings of the classical period. During the
late Republic the first collections of the responsa of individual jurists
were published, and this practice became general in the time of the
Principate. The publishing might be done by the jurist himself, by a
disciple or by a successor. These collections comprised the responsa
which had been delivered in actual cases, the answers to hypothetical
cases presented in the course of public discussion, or even the conclusions
drawn from the exchange of letters between jurists. They were variously
titled, Responsa, Quaestiones, Disputationes, Epistulae, etc., works
which F. Schulz classes as problematic literature. 74 The responses in
these collections were set forth in casuistic form and constitute jurists
law in the basic sense of the term. Then there are other writings of the
jurists included in Justinian's Digest which are largely made up of the
principles and the institutions which form the jurists' contribution to
the Roman law. I have foremost in mind the numerous commentaries on

Introduction (supra, note 20), 99 ff.; at greater length, "Das Wesen des ius res-
pondendi," SZ, 66 (1948), 423-57.
70 Schulz, Principles (supra, note 29), 186 f.; Guarino, "II 'ius publice respon-
dendi,'" RIDA, 2 (1949), 401-19; von Liibtow, Rom. Volk (supra, note 38), 553
ff. Recently, Provera, "Ancora sul 'ius respondendi,'" SDHI, 28 (1962), 342-60,
with full references to the literature.
71 Kreller, Problem (supra, note 19), 10; Kaser, Ram. Privatrecht (supra, note
61), 189; Kelly, loc. cit. (supra, note 68).
72 Schulz, History (supra, note 24), 113; von Lfibtow, "Miscellanea" (supra,
note 21), 371.
73 Full discussion of classical juristic literature in Schulz, History, 141-261;
briefly, Berger, s.v. Iurisprudentia (supra, note 32), 1171-78.
74 History, 223-42.
BOSTON UNIVERSITY LAW REVIEW

the civil law (ius civile) .75 In large part these commentaries reflect the
interpretation of the jurist upon the provisions of the law of the Twelve
Tables together with the later development of the institutions of the
civil law. Most of the matter in the commentaries is casuisic in form,
recording cases in the jurist's own experience as well as in those of his
predecessors, with the controversial law in evidence. Annotated editions
and epitomes of earlier commentaries as well as commentaries upon other
statutory enactments, upon resolutions of the senate, and on single in-
stitutions of the civil law contain large elements of jurists law. Even
commentaries upon the edict of the praetor include some substantive law
which may be included within the compass of the jurists' contribution to
the law.70 Again, it is difficult to draw a hard and fast line between
juristic comment on legal principles stemming from the praetor's initia-
tive-and thus forming part of the ius honorarium--, and the casuistic
juristic responses to queries on procedural law which display innovative
trends within this sphere of the law-and thus forming part of jurists
law. 77 Those works known as Digesta---a combination of comment on
the civil law and on the edict of the praetor-also provide some portion
of the substance of jurists law. Another type of juristic literature which
came into prominence in the late clasiscal period were the handbooks
describing the functions of various imperial officials. These contained a
limited amount of jurists law, for case material was occasionally included
78
to point up legal matters within the jurisdiction of these officials.
There is one important type of legal literature which, to my mind,
does not fall within the scope of our topic. I refer to the institutional
treatise destined for the use of students at the beginning of their formal
legal education. 79 The Institutes of Gaius is not, I submit, a repository of
75 This type of juristic work dates from the time of the late Republic, Schulz,
History, 92, continuing through the classical period, 204 ff. See recently, Seidl, "Die
Methode der Kommentatoren in der r6mischen Rechtsgeschichte," Studi in onore
di Emilio Betti, IV (1962), 119, 128 ff.
76 Kriger, Geschichte der Quellen und Litteratur des r6mischen Rechts (2d ed.,
1912), 142: "The latter [commentaries on the edict] generally incorporate a good
part of the ins civile which is still valid and expound the ius civile in connection
with related praetorian legal principles or formulae of civil actions set forth in the
edict." (Translation of the author) Schulz, in speaking of Ulpian's commentary
on the edict, History, 197, states that the jurist dealt with the ius civile "only so
far as was unavoidable in expounding the praetorian law." See also Seidl, "Meth-
ode," 120 ff.
77 Kaser, "Zum Ediktsstil," Festschrift Fritz Schulz, II (1951), 21, 23: "The
jurists generally limited themselves in the framing [of the edicts of the praetor]
to the expression of the guiding principles, leaving the coverage of the edicts in
broadening or narrowing scope to interpretation. This was only possible in view
of the fact that they themselves were called upon for the interpretation of the
words of the edicts, whether upon consultation by the parties or in the advisory
council of the magistrate holding court." (Translation of the author)
78 Dell'Oro, I 'libri de officio' nella giurisprudenza romana (1960), presents the
substance of these monographs, in which jurists law is repeatedly met with.
79 The place of institutional (introductory) manuals in education in antiquity
JURISTS LAW

jurists law. It is certainly true that the reports of the Sabinian and Pro-
culian controversies in Gaius are fairly faithful representations of the
conflict of views of the jurists of these schools. But the purpose for
which these disputes were introduced was instructional rather than
practical. The Institutes as a whole was a simplified presentation of the
legal institutions and rules of the Roman law in the cachet of a Greek
model. As W. Kunkel has expressed it, "Alongside [the main stream
of jurisprudence], a secondary stream can be discerned which was con-
cerned rather with the ordering and clarifying of the legal material
heaped up by the older jurists, and the production of simple, easily
grasped general treatises."' 0
The passage to which I referred earlier-said by some scholars to
tie up with the development of jurists law-is contained in the Insti-
tutes of Gaius:
The responses of the learned are the decisions and opinions of those
who are authorized to lay down the law. If the decisions of all of
them agree, what they so hold has the force of law, but if they dis-
agree, the judge is at liberty to follow whichever decision he 8pleases.
This is declared by a rescript of the late emperor 'Hadrian. 1
If this statement is meant as a definition of juristic responsa, it is at odds
with every thing else we know of this phase of the jurists' activity.
Judgments and opinions were not the same as responsa in Gaius' time.
F. de Zulueta hazarded the view that the definition actually referred to
82
auctoritas prudentium, the popular esteem behind the jurists' power.
F. Wieacker has urged that the passage has been seriously altered in
postclassical times, 8 3 while F. Pringsheim thinks that, at the very least,
Gaius has made a grave mistake. 84 The rule that the unanimous agree-
ment of all the jurists (communis opinio)85 had the force of statute and
was thus binding upon the judge is suggestive of the attribution of legis-
lative force to the acts of the emperor. It is an anticipation of the famous
Law of Citations of 426 A.D., the enactment of the emperor Theodosius
is well portrayed by Fuhrmann, Das systematische Lehrbuch (1960), 183 ff. on
Gaius' Institutes. Cf. also, Wieacker, "Griechische Wurzeln des Institutionensys-
terns," SZ, 70 (1953), 93, 102 ff.
80 Kunkel, Introduction (supra, note 20), 110; also, 103.
81 Gaius, Inst. 1.7: Responsa prudentium sunt sententiae et opiniones eorum,
quibus permissum est iura condere. quorum omnium si in unum sententiae concur-
runt, id, quod ita sentiunt, legis vicem optinet; si vero dissentiunt, iudici licet quam
velit sententiam sequi; idque rescripto divi Hadriani significatur.
82 De Zulueta, "Reflections on Gaius 1.7," Tulane L. Rev., 22 (1947), 173-79.
83 Wieacker, Textstufen klassischer Juristen (1960), 38 n.60.
84 Pringsheim, "The Legal Policy and Reforms of Hadrian," J. Rom. Stud.,
1934, 141, 145 [Gesammelte Abhandlungen, I (1961), 91, 96 f.] For further views,
see Provera, "Ius respondendi," (supra, note 70), 348 ff.
85 For various views on communis opinio, see von Lfibtow, "Miscellanea" (supra,
note 21), 374 ff.; David-Nelson, Gai Institutiones commentarii IV Kommentar
(1954), 17 ff.; Honork, "The Severan Lawyers," SDHI, 28 (1962), 162, 228 f.
BOSTON UNIVERSITY LAW REVIEW

II which conferred "statutory" force upon the writings of certain of the


classical jurists and made them binding upon the judge.8 6 In any event,
neither the definition of Gaius nor the principle according to which the
judge was to carry out his office constitute jurists law.
Nor, finally, do the books of "rules" (Regulae) which became prom-
inent in the second century provide source material of jurists law.
P. Stein suggests that these works were manuals of "rules of thumb"
to guide bureau officials in the routine cases which came before them.8 7
By the end of the classical era greater attention in the books of Regulae
was given to classification, co-ordination and definition, a clear indication
that these works resemble the literary efforts destined for formal elemen-
tary legal educational purposes. In sum, then, within the entire field of
legal literature of the classical period the collections of responsa afford
the bulk of jurists law; the commentaries on the civil law, on statutes and
on senatus consulta a good deal more; and the commentaries on the
edict, the handbooks and the monographs occasional references; while
the isagogic and related works of elementary nature are negligible
sources of jurists law. Nonlegal literature, particularly the works of
Cicero, of the antiquarians and encyclopedists, adds to our knowledge of
this sphere of the Roman law.88
Does study of Roman jurists law have significance for us at the present
day? In the time remaining I should like to touch briefly upon two rea-
sons why jurists law is deserving of further attention. The first is im-
plicit in what I have said up to this point. As indicated several times,
we have just begun the basic research needed for a true understanding
of jurists law.8 9 A good deal more is required in order to discern the
methods by which the Roman jurists arrived at the conclusions which
were framed in their responsa. It is also necessary to describe at greater
depth the rules and institutions of jurists law, and to compare and con-
trast this sphere of law with the spheres of the ius civile and the ius
honorarium, and even of the ius gentium. True, the Romans themselves
never attempted to formulate such a division of the law, for this would
have been diametrically opposed to their thinking about the law. They
were not interested in generalization and conceptualization. But there is
no reason why today we should not strive for a thorough understanding
of the whole product of Roman law of the classical epoch.
86 C.Th. 1.4.3. Briefly, Kunkel, Introduction (supra, note 20), 145 f.
87 Stein, Regulae (supra, note 44), 79-89.
88 The pertinent passages in Cicero and other writers are collected and discussed
in the opening chapters of Ehrlich, Beitriige (supra, note 11).
89 Mitteis, Antike Rechtsgeschichte und romanistisches Rechtsstudium (1918),
17, called for research into the techniques of the individual jurists, a plea which
was only intermittently recalled, see Schiller, "Provincial Cases" (supra, note 29),
221 f., but is now being actively undertaken.
JURISTS LAW

Then, when we do have the substance of jurists law established, we


can rewrite the textbooks of Roman law in a form which they have not
had since the days of the Roman jurists themselves. We need modern
versions of the commentaries on the civil law, of the commentaries on
the edict, and a present-day edition of a composite treatise on the whole
of the private law, such as Julian's Digesta.90 The textbooks of Roman
law of both continental as well as English writers are systematically
arranged, a product of humanistic and natural law thinking of the six-
teenth to eighteenth centuries, culminating in the Pandect study of the
nineteenth century. 91 In most of these works a "general part" has been
added to the Roman law, and in all the arrangement of the substantive
law is in the categories devised in medieval and modern times: the law
of persons and of the family, the law of property, the law of obligations
and the law of succession, with the procedural law prefixed or appended
to the whole. Nothing could be further from the order of arrangement of
the civil law (jurists law) or of the discussion of the edict. To really
understand the nature of the Roman law we must discard the classifica-
tion employed in Gaius' Institutes as well as the sequence of topics cur-
rent in continental and English textbooks. Roman law of the classical
epoch, when rewritten in the light of modern scholarship, promises new
insight into the relation of law and society in Rome during those cen-
turies.
A second major reason for the study of Roman jurists law relates to
its comparative law value. At one time Roman law was a favorite
vehicle to introduce law students to modem European legal systems; it
still may be employed in this respect in some law schools. 92 The Roman
law that is the historical predecessor of present-day continental law is
not the Roman jurists law of which I have been speaking. It stems from
the Corpus luris of Justinian, and thus includes imperial legislation as
well as extracts from the ancient jurists. But it is a Corpus Iuris rein-
terpreted by the Glossators, applied by the Commentators, reexamined
by the Humanists, reformulated by the natural law exponents, and
90 1 know of only one modern treatment which presents the Roman law in an
arrangement the jurists themselves would have recogized, namely, the concluding
portion of Lauria, Ius Romanum, 1.1 (1963) 65-169. Whether the thesis of Lauria
that there exists but one "sequence of law" (ordo iuris) for the Roman law can be
substained or not-see comment by Wieacker, Iura, 16 (1965), 269-83--the study
constitutes an exciting beginning to a wholly new approach to the writing of Roman
law.
91 The process is portrayed by A. B. Schwarz, in ."Zur Entstehung des mod-
ernen Pandektensystems" and "Pandektenwissenschaft und heutiges romanistisches
Studium," both studies now reprinted in Rechtsgeschichte und Gegenwart (1960),
1-25 and 93-124.
92 Sherman, Roman Law in the Modern World; 3 vols. (3d ed., 1937), and
Epitome of Roman Law. (1397), are works designed to serve this aim; so also the
last effort of Jolowicz, Roman Foundations of Modern Law .(1957).
BOSTON UNIVERSITY LAW REVIEW

codified during the nineteenth century. As such, civil law today owes a
great deal to the influence of the "professors," the teachers and theore-
tical exponents of the doctrines of the Roman law. "Professors law," as
F. Pringsheim and more particularly, A. B. Schwarz have shown, is the
scientific scholarly exposition of what the law should be. 93 It depends on
state authorities, the legislature and the courts, for its adoption as law.
We know it as the "leading textbooks" and the "important law review
articles." On the continent it is doctrine or Kommentar and the like.
Jurists law, on the other hand, is law in and of itself whether appearing
in a responsum of a Roman jurist, or in our case, in the decision of a
judge. Consequently, it is futile to attempt comparative study of Roman
jurists law and a modern continental legal system. 94 And again, the use
of Roman law in legal education in this country as a supposed corrective
to the overemphasis of case law is fallacious. Roman law does not offer
insight into the role of concepts and conceptual thinking; the academic
Pandect law of nineteenth century Germany does. The base for compar-
ison of Roman jurists law is judge-made law of the Anglo-American
legal system, more particularly the second element of this hybrid. Roman
jurists law and American case law are not identical, though they have
much in common.9 5 Reasoning by example or reasoning from case to
case is not quite the same as the Roman jurists technique of generalizing
from a single case so that it might be easily transformed into a guiding
principle. The niceties of "dintinguishing" a case are not fully discern-
ible in the intuitive selection of one or the other responsum in the con-
93 Pringsheim, "Beryt und Bologna," Festschrift ffir Otto Lenel (1921),
204, 205 ff. [Gesammelte Abhandlungen, I (1961), 391, 392 ff.]; Schwarz, "Ein-
fluss" (supra, note 10).
94 There is good basis, however, to compare and contrast Roman classical law
with English and American law, as has been frequently done, e.g., De Zulueta, The
Roman Law of Sale (1945).
95 The similiarity of case law and jurists law has been frequently noted, Prings-
helm, "The Inner Relationship between English and Roman Law," Cambridge
L.J., 5 (1935), 347, 353 ff. [Gesammelte Abhandlungen, I (1961), 76, 81 ff.] ; von
Liibtow, "Miscellanea" (supra, note 21), 353-59; Kaser, "Methode" (supra, note
47), 72 ff. The close relationship between Anglo-American and Roman law was
the subject of an address by Monroe Smith, my predecessor at Columbia, on the
occasion of the Congress of Arts and Science, Universal Exposition of St. Louis,
in 1904, "Problems of Roman Legal History," Congress of Arts and Science, II
(1906), 315-28, earlier published in Columbia L. Rev., 4 (1904), 523-40.
Jurists law, however, did not rest upon precedent, see Jolowicz, "Case Law in
Roman Egypt," J. Soc. Public Teachers Law, 14 (1937), 1 f.; Koschaker, Europa
(supra, note 3), 95 ff. The variation in the employment of cases to fashion the
law is even more striking, cf. Levi, An Introduction to Legal Reasoning (7th impr.,
1961), particularly 2 ff., 29 ff., with Viehweg, Topik (supra, note 43), 29 ff. The
emphasis upon the contrast between axiomatic (system) and problem (topical)
thinking and the identification of the former with the continental European and the
latter with the Anglo-American law by Esser, Grundsatz (supra, note 43), has
obscured a possible distinction between Roman jurists' thinking and Anglo-Amer-
ican judge& methods in that work. Indeed, the subject does not seem to have been
adequately studied by any one.
JURISTS LAW

troversial law. This is not the place to set out the materials nor to esti-
mate the value of the comparison of the jurists' methods and techniques
with the manner of reasoning of today's judges. I think all will agree
that ,knowledge of the way our courts "find" the law is one of the most
complex, if at the same time, most fascinating aspects of law study. If the
art and the techniques of the Roman jurists will in any way illumine the
process employed by our judges, the effort of reexamining and restating
this sphere of Roman law will be well repaid.
And so I have attempted to describe the nature of Roman jurists law
and to emphasize the value of its study. Interestingly, Roman law has
gained its reputation largely as the result of the efforts of the jurists of
the classical epoch, yet the portion of the legal system with which the
jurists were most intimately concerned has not yet been fully explained.
The tools of modern research must be brought to bear on this aspect of
the Roman law, and eventually as the full content of jurists law has been
adequately presented, we will have on hand a fertile field for compara-
tive study with other case law systems. It is my belief that this is an area
for research in which American lawyers are particularly qualified to
engage, and their findings could be invaluable since close ties exist
between the responwa of the Roman jurists and the decisions of Ameri-
can judges. As the American student seeks to exploit the resources of
the Roman law-and I trust there will be some among you-he will,
I believe, be particularly intrigued with the jurists' approach, as he
discovers similarities with his own way of treating legal questions.
American scholarship has scarcely begun to realize the fascination and
the rewarding opportunities of the study of a legal system, study which
has run continuously from the days of Irnerius of Bologna down through
the Renaissance and into the contemporary scene.