Iurisprudentia
A post-classical term defined by the
Digest (i. 1, 10) as the knowledge of
what is legally right and wrong (
iusti atque iniusti scientia). The
science of law is the one branch of Roman literature which had a purely national development.
From an early date there were definite legal ordinances in Rome, and shortly after the
expulsion of the kings a collection of
leges regiae was made by a certain
Papirius. These consisted of archaic customary laws of a strongly sacerdotal character, and
arbitrarily attributed to individual kings (known as the
Ius Papirianum).
However, the foundation of the collective legal life of the Romans was primarily the
well-known law of the Twelve Tables, B.C. 451-450. (See
Twelve Tables.) This put an end to the want of a generally known law; for
the knowledge of previous legal decisions, like the whole of the judicial procedure, had been
hitherto kept in the exclusive possession of the patricians. The administration of the
law remained as formerly in the hands of the patricians alone, for they kept from the
plebeians all knowledge of the
dies fasti and
nefasti—i. e. the days on which legal proceedings might or might not be
taken, as also the forms of pleading which were regularly employed (
legis
actiones). The latter were so highly important that the least infraction of them would
involve the loss of the cause. This condition of things existed for a long time, until Appius
Claudius Caecus drew up a calendar of the days on which causes could be pleaded, and a list of
the forms of pleading. These were made public about B.C. 304 by his secretary, Gnaeus Flavius,
after whom they were then called
Ius Flavianum. By these means a knowledge of
the law became generally attainable. It soon had eminent representatives among the plebeians
in the persons of Publius Sempronius Sophus and Tiberius Coruncanius. In ancient days,
however, the work of the jurists was purely practical. It was considered an honourable thing
for men learned in the law (
iuris periti) to allow people to consult them
(
consulere, hence
iuris, or
iure
consulti) either in the Forum or at appointed hours in their own houses, and to give
them legal advice (
responsa). It was mainly by a kind of oral tradition
that the knowledge of law was handed down, as the most eminent jurists allowed younger men to
be present at these consultations as listeners (
auditores or
discipuli).
The beginning of literary activity in this department, as in others, dates from the Second
Punic War. It begins with the earliest exposition of existing law. Sextus Aelius Catus
published in B.C. 204 a work named
Tripertita (from its being divided into
three parts) or
Ius Aelianum, which consisted of the text of the laws of the
Twelve Tables together with interpretations, and the legal
formulae for
carrying on suits. From the middle of the second century it became common to make collections
of the
responsa of eminent jurists, and to use them as a source of legal
information. Among others, Marcus Porcius Cato , the son of Cato the Elder, made a collection
of this kind. In some families knowledge of the law was in a measure hereditary, as in those
of the Aelii, Porcii, Sulpicii, and Mucii. A member of the last family, the pontifex Quintus
Mucius Scaevola (died B.C. 82), was the first who, with the aid of the formal precision of the
Stoic philosophy, gave a scientific and systematic account of all existing law, in his work,
De Iure Civili. Servius Sulpicius Rufus, the contemporary and friend of
Cicero, further advanced this new and more methodical treatment of law by his numerous
writings and by training up pupils, such as Aulus Ofilius and Publius Alfenus Varus. The
former rendered great assistance to Caesar in his scheme for forming the whole of the
Ius Civile into a single code. Besides these there were several eminent
jurists at the close of the Republic: Gaius Trebatius Testa, Quintus Aelius Tubero, Gaius
Aelius Gallus , and Aulus Cascellius.
While under the Republic the learned jurist had held an inferior position to the orator in
influence and importance, there is no doubt that under the Empire public eloquence became
subordinate, and the position of the jurists was the most coveted and influential in the
State, especially when Augustus decreed that the opinions of jurists authorized by the head of the State were to have the validity of law. It was from the jurists as
advisers of the emperor that all legislation now proceeded. They had access to all the highest
offices of the court and of the State. Accordingly men of the highest gifts and character
betook themselves naturally to this profession, and even introduced into the laws an increased
unity, consistency, and systematic order. Under Augustus two jurists were pre-eminent, Quintus
Antistius Labeo and Gaius Ateius Capito, the founders of the two later schools, named, after
their pupils Sempronius Proculus and Masurius Sabinus, the “Proculiani”
and “Sabini” respectively. Labeo sought to extend his professional
knowledge, while Capito held fast to the traditions of former jurists. A third school was that
of the Cassiani, who took their name from the jurist Cassius Longinus (Pliny ,
Epist. vii. 24, 8), and represented a mean between the conservatism of Capito
and the innovating spirit of Labeo.
The first scientific collection of laws was made under Hadrian by the Sabinian lawyer
Salvius Iulianus, with his
Edictum Perpetuum, a classified collection of the
praetorian edicts from the times of the Republic. (See
Edictum.) Sextus Pomponius, his somewhat younger contemporary, composed among other
things a history of the law till the time of Hadrian.
Under the Antonines jurisprudence was able to claim a remarkable representative in the
Asiatic Gaius, but it received its completion and conclusion in the first half of the third
century A.D. through Aemilius Papinianus, Domitius Ulpianus, and Iulius Paulus. After their
time there were no jurists of great and original capacity. In the fourth century literary
activity revived again, but confined itself to the collection of legal authorities, especially
that of imperial ordinances. Thus the
Codex Theodosianus, finished in A.D. 438,
contains an official record of all the enactments decreed by the emperors from the time of
Constantine. Under Justinian I. (A.D. 527-565) the last and most complete Roman collection of
laws was made, under the name of the
Corpus Iuris Civilis (q. v.).
See Bach,
Historia Iurisprudentiae Romanae (rev. by Stockmann, Leipzig,
1796); Bremer,
Die Rechtslehrer und Rechtsschulen im röm.
Kaiserreich (Berlin, 1868); Krüger,
Quellen und Lit. des
röm. Rechts; and on the law language, Kalb,
Das
Juristlatein (Nürnberg, 1886).