JURISCONSULTI
JURISCONSULTI or
JURECONSULTI. For some
considerable time after the enactment of the Twelve Tables, the function of
interpreting the law, both sacred (
fas) and
profane (
jus), appears to have been a monopoly
of the College of Pontifices, which appointed one of its members every year
to superintend the trial of private actions (cf. Pomponius in Dig.
de origine juris, 1, 2, 2, § § 6,
7;
Liv. 9.46, “jus civile in penetralibus
pontificum repositum” ). [
PONTIFEX] The pontifices alone had an exact knowledge of the
legal calendar, and were familiar with the intricate forms of action which
prevailed in the courts, whence the importance attached to the publication
of the calendar and of the forms of legis actio by Cn. Flavius about 312 B.C. [JUS FLAVIANUM.] The opening of the office of
pontifex to plebeians, the growth of the praetor's jurisdiction, and the
gradual separation of the Jus Civile from the Just Pontificium, tended to
make the profession of the law a more open one (cf. Ihering,
Geist.
d. R. R. 2.2.42). Tiberius Coruncanius, a plebeian, who was
consul B.C. 281, and also the first plebeian pontifex maximus, is mentioned
as the first who publicly professed (
publice professus
est) to expound the law (
Liv. 30.1;
Dig.
l.c. § 35). A distinct profession of
lawyers certainly existed before the time of Cicero, and the persons
belonging to it were called by the various names of
jurisperiti, jurisconsulti, or
consulti simply. They were also designated by other names, as
jurisprudentes, prudentes, juries periti, and
juris auctores. The words which Plutarch
uses are
νομοδείκτης (
Tib.
Grach. 9) and
νομικός (
Sulla, 36). Cicero (
Top. 5)
enumerates the
jurisperitorum auctoritas among
the component parts of the Jus Civile. the definition of a
jurisconsultus, as given by Cicero (
de
Or. 1.48), is a person who has such a knowledge of the laws
(
leges) and customs (
consuetudo) which prevail in a state as to be able to give
answers to questions submitted to him (
respondendum), act (
agendum), and to
secure a person in his dealings (
cavendum).
Sextus Aelius Catus [
JUS
AELIANUM], M. Manilius, and P. Mucius are examples. In the oration
pro Murena Cicero uses
“scribere” in the place of “agere.” The word
“scribere” refers to the employment of lawyers in drawing
up formal instruments, such as contracts or wills; “cavere,” to
the advice given in the conduct of a suit or the carrying out any
transaction; “agere” to the execution of some legal act on
account of a client. At a later period some of these functions were
performed by persons who were paid a fee, and thus there arose a body of
practitioners distinct from those who gave
responsa. The jurisconsulti gave their advice gratuitously.
Payments or gifts to them were prohibited by the Lex Cincia. They did not,
as a rule, argue cases in court; this task being left to the orators or
advocates. [ORATOR; ADVOCATUS.] Before the time of
Cicero the study of the law had become a distinct branch from the study of
oratory, and a man might raise himself to eminence in the state by his
reputation as a lawyer, as well as by his oratorical power or skill; the
profession of the law being regarded as one of great dignity and
independence. It is probable that
responsa were
not in Cicero's time absolutely binding on courts of justice, although the
judge would be mainly guided by them.
Jurisconsulti gave their advice or answers either in public
places--especially in the forum--or in their own houses (
Cic. de Or. 3.3. 3: cf.
Hor.
Sat. 1.10; Sen.
de
Via, 3.37). We are told of one distinguished jurist that a house
near the forum was provided for him at the public expense, in order that he
might have easy access to clients. They gave advice not only on matters of
law, but on anything else that might be referred to them. The jurisconsulti
were not professors of law in the modern sense, but they were attended by
students who obtained instruction by listening to
responsa: hence called
auditores. towards the end of the republic we also find the
practice in existence of instructing students in the elements of law (cf.
Dig. 1,
2,
2.43: “[Servius Sulpicius] institutus a Balbo
Lucilio, instructus autem maxime a Gallo Aquilio” ), and under
the empire the systematic teaching of law gradually became a distinct
professional function.
The earlier lawyers mentioned by Pomponius differed from those of a later
period by their want of scientific method (as to their characteristics, see
lhering,
Geist. d. R. R. l.c.). Their excessive technicality
is frequently ridiculed by Cicero. The first whom Pomponius mentions was
Papirius, who is said to have made a collection of leges regiae in the time
of Tarquinius Superbus [JUS PAPIRIANUM]. There
were many distinguished jurisconsulti in the last two centuries of the
republican period, among whom are M. Manilius, consul B.C. 149 (cf.
Cic. de Or. 1.4. 8, 3.33;
Brutus, 21, 22, &c.; Varro,
L. L. 7.105); P. Mucius Scaevola, pontifex maximus B.C.
131; Q. Mucius Scaevola, the augur, and Q. Mucius Scaevola, the son of
Publius, who was consul B.C. 95, and afterwards pontifex maximus: he was one
of the masters of Cicero, who calls him “jurisperitorum
eloquentissimus,”
“eloquentium jurisperitissimus” (
Cic. de Or. 1.3. 9;
Brutus, 89). This Scaevola, the pontifex, was considered to have
been the first who gave the Jus Civile a systematic form, by a treatise in
eighteen books (
Dig. 1,
2,
2.41). there are four excerpts in the Digest
from a work of his in one book on Definitions. C. Aquilius Gallus, praetor
B.C. 66, was a most distinguished lawyer; he invented the
actio doli, the
stipulatio
Aquiliana, and a form for instituting or disinheriting the class
of
postumi called after him Aquiliani.
Servius Sulpicus Rufus, a pupil of Aquilius (
Cic.
Brut. 42) and the friend and contemporary of Cicero, was consul
B.C. 51. He was as great an orator as the pontifex Scaevola, and even more
distinguished as a jurist. Many persons, both his predecessors and
contemporaries, were eminent for their practical knowledge of law, but he
was distinguished from them by his scientific mode of handling it; and as he
had both numerous
auditores and was a
voluminous writer, we may perhaps view him as the founder
[p. 1.1038]of that methodical treatment of the matter of law which
characterised the subsequent Roman jurists, and in which they have not been
surpassed (
Cic. Brut. 41;
Dig. 1,
2,
2.43).
The jurists of the imperial times are distinguished from those of the
republican period by two circumstances--the
jus
respondendi, and the rise of two schools of law. We learn from
Pomponius (
Dig. 1,
2,
2.49) that Augustus determined that the
jurisconsulti should give their
responsa under
his sanction (
ex auctoritate ejus responderunt). The
jus respondendi or right of giving such
response appears to have been granted by
Augustus and Tiberius and their successors to eminent jurists selected by
them, who were thus placed in a position analogous in some respects to that
of the pontifices in earlier times. But the jurists who had not received
this mark of imperial favour were not excluded from giving opinions, though
their opinions would have little weight in comparison with those of the
privileged class. The
responsa of those who had
the
jus respondendi were given sealed (
signata), apparently to prevent falsification. They
were probably given by each jurist in his individual capacity, but whether
on the application of the judge or of a party to a suit is uncertain. The
matter proposed for the opinion of the jurisconsulti was sometimes stated in
the
responsum, either fully or briefly;
sometimes it contained the grounds of the opinion and sometimes it did not
(Brisson,
de Form. 3.100.85). The
responsum of a privileged jurisconsultus in a particular case
would be an authority for the decision of a judex, and probably the same
authority was extended by custom to the writings of such jurists who by the
jus respondendi were given the condition of
juris auctores. The definition of
responsa by Gaius (1.7; cf. Inst. 1.2, 8),
“responsa prudentium sunt sententiae et opiniones eorum quibus
permissum est jura condere,” seems to support this view of the
authority of the writings of the priests; the words
sententiae et opiniones being sufficiently wide to include
such writings, and the technical expression
responsa with which the passage begins may, owing to the
increased importance of legal literature, have been very well used by Gaius
in a wider sense than originally attached to it. The duty of the judge, if
the
responsa were conflicting, was, we are told
by Gaius in the same passage, determined by a rescript of the Emperor
Hadrian. If the opinions of the privileged jurists agreed, the judge was to
be bound by them; but if not, he was to be free to follow the opinion he
preferred. (For an account of the different views of modern writers
respecting the nature of the
jus respondendi,
see
Etude sur Gaius, by E. Glasson, § 6.)
Under the early empire there arose two schools (
scholae) of jurists, the origin of which is attributed to the
opposition between Antistius Labeo and Ateius Capito, two eminent jurists
who lived in the time of Augustus. (See Pomponius in
Dig.
1,
2,
2.47:
“Hi duo primum veluti diversas sectas fecerunt.” ) Labeo, a
jurist distinguished for his abilities and varied acquirements (
Gel. 12.10; Pomponius in Dig.
l.c.), appears to have been a great legal reformer (
“plurima innovare instituit” ), and the most notable jurist
of his time. His opinions are frequently cited in the Digest. He was
attached to the old republican constitution. Capito, a jurist of much less
eminence, held fist to the traditional learning of his profession (
“in his quae ei tradita fuerant perseverabat” ), and so was
in opposition to Labeo.
The followers of Labeo, whom we know with certainty to have been such, were
M. Cocceius Nerva, Sempronius Proculus, Nerva the son, Pegasus, Juventius
Celsus, Celsus the son, and Neratius Priscus. The followers of Capito were
Masurius Sabinus, C. Cassius Longinus, Caelius Sabinus, Priscus Javolenus,
Aburnius Valens, Tuscianus, Salvius Julianus, and Gaius. But the schools did
not take their names from Labeo and Capito. The followers of Labeo were
named Proculiani, from Proculus. The followers of Capito derived their name
of Sabiniani from Masurius Sabinus, a most eminent teacher of law, the
author of a celebrated work on the Jus Civile, who lived under Tiberius, and
as late as the reign of Nero: they were sometimes also called Cassiani, from
C. Cassius Longinus. The schools may, like the schools of philosophy in
Greece, have consisted of students united together under an eminent teacher
and leading a common life; to the office of head of the Proculian and
Sabinian schools there seems to have been a regular succession (cf.
Pomponius in Dig.: “Ateio Capitoni Masurius Sabinus successit, Labeoni
Nerva,” &c.). Some recent writers suppose that the
schools were not established by Labeo and Capito, but that Sabinus, a
disciple of Labeo, first instituted a school, and that Proculus, who taught
the doctrines of Labeo, subsequently set up a rival one; but from the
account of Pomponius we should rather gather that Labeo and Capito were the
founders of the schools.
It is not possible to educe from the various disputes between the Sabinians
and Proculians, which are mentioned in our sources, any fundamental
differences which characterised the two schools. (For a list of the disputes
between the schools, see Roby's
Introduction to the Digest,
cxxxi. &c.) The head of a school would exercise a predominant
influence over it; and as one jurist succeeded another to the office of
teacher, the character of its teaching might vary. It is sometimes said that
one school adhered more closely to what was established and to the letter of
what was written, while the other looked more to the internal meaning than
to the external form; and thus, while apparently deviating from the letter,
they approached nearer to true results: but some writers attribute the
latter method to the Sabinians and others to the Proculians. In the period
of the classical jurists the division of schools disappears. (Cf. Hommel,
de principali causa dissensionum inter Labeonem et
Capitonem; Dirksen,
Beiträge, 3;
Kuntze,
Excurse über röm. Recht, 2nd edit.,
p. 319; Bremer,
Dic Rechtslehrer und Rechtsschulen im
Kaiserreich, p. 68, &c.; Pernice,
Antistius Labeo.）
Of all public callings the profession of the law was the most independent
under the early emperors, and consequently it attracted to itself an unusual
proportion of men of high ability. Jurisprudence made considerable progress
during this period, especially its influence in developing the principles of
Jus Gentium as
[p. 1.1039]contained in the praetor's edict,
and in giving the law a more systematic character.
The great literary age of Roman jurisprudence, that of the classical jurists,
is generally understood to begin under Hadrian and to end with Alexander
Severus. The great Julian, the compiler of the Edict, may be regarded as the
earliest classical jurist; subsequent jurists of the first rank were
Marcellus, Cervidius Scaevola, Marcianus, Papinianus (the most distinguished
of all Roman lawyers), Ulpianus, Paulus, and Modestinus. (For an account of
the lives of the classical jurists, see Roby,
Introd. to the
Digest.）
Towards the end of the classical period jurisprudence showed signs of decay:
compilations from the works of previous writers were taking the place of
original work; the influence of the jurists was chiefly exercised in the
council of the emperor; the
rescripta were
supplanting the
responsa as a source of law.
After the time of Septimius Severus no legal writings of importance were
produced; the writings of earlier jurists were the chief authority in the
courts, and, when these were in conflict with one another, the law remained
unsettled. Thus the “law of citations,” A.D. 426, limited legal
authority to the writings of Gaius, Paul, Ulpian, and Modestinus, and to the
writings of earlier jurists cited by these five (see Muirhead,
Roman
Law, section 78; Roby's
Introd. p. lxxxiv.
&c.). The Digest of Justinian is mainly composed of the writings of
the classical jurists [
PANDECTAE]. The want of constructive legal science in this period
made compilations of law a practical necessity. The writings of the
jurisconsulti consisted of
commentarii on the
Twelve Tables, on the Edict, on particular leges, more especially on some of
the Juliae leges, and on other matters. The later jurists also commented on
the writings of the earlier jurists; e. g. the commentaries on the great
work of Sabinus. They also wrote elementary treatises (
elementa, commentarii), such as the
Institutiones of Gaius, which is the earliest work of the
kind that we know to have been written; books called
regulae and
definitiones, which
were probably collections of maxims and legal principles intended for
advanced students; collections of cases and answers, under the various names
of
responsa, epistolae, sententiae, and
opiniones; systematic treatises on law and
various works of a miscellaneous character, with a great variety of names,
such as
disputationes, quaestiones, notae, enchiridia,
res quotidianae, and various other titles. The term
Digesta probably signifies the collected writings of
a jurist.
With the exception of the fragments preserved in the Digest, this great mass
of literature is nearly lost [
PANDECTAE]. The most important writings which have survived are
the
Liber singularis Regularum and the
fragmenta of Ulpian, the Institutes of Gaius, and
the
Sententiae of Paulus.
The mode of teaching law at Rome in the republican period was of a practical
nature, the instruction which was given consisting in the jurisconsulti
allowing young men to be present as
auditores
when they delivered their legal opinions, and to see how they conducted
their business (
Cic. Brut. 89;
Laelius, 1). Previous, however, to attending to this
practical instruction, young men were taught the elements of law, which was
expressed by the term
institui, whence probably
the term
Institui was given to elementary
treatises like those of Gaius. Accordingly,
institui and
audire expressed the
two parts of a legal education. The most distinguished jurists freely
imparted instruction to young men (
Cic.
de Or. 1.4. 1, 142: “Jus civile docere
semper pulchrum fuit hominumque honestissimorum discipulis floruerunt
domus” ). In the imperial period, probably young men devoted
themselves for a still longer period to attendance on those jurists who had
the
jus respondendi. These young men are the
juris studiosi mentioned by Ulpian and
others. Thus Ulpian calls Modestinus “studiosus meus.” But,
besides this practical training, a more systematic legal education was
established under the empire.
Jurists taught law at fixed places--
stationes, jus publice
docentium--which were probably near the law courts (
Gel. 13.10,
13). The
Proculian and Sabinian schools may have been institutions of this kind, as
has been already noticed. A class of teachers of law--called
professores,
ἐξηγηταί,
antecessores--thus came into existence, who
were entitled to a honorarium for their services.
The student went through a curriculum of study, being obliged to read
prescribed books in a certain order. The plan of study was newly arranged by
Justinian (cf. Rudorff,
Gesch. de R. R. § 112;
Const. Omnem). Law schools were gradually established in the principal
cities of the empire, the principal ones in the time of Justinian being
those at Constantinople, Rome, Berytus, Alexandria, and Caesarea.
(Pomponius,
de Origine Juris, 1, 2; Roby,
Introduction to the Digest, ch. vi.-xvi.; Muirhead,
Roman Law, 262, 315-327; Paul Jörs,
Römische Rechtswissenschaft zur Zeit der
Republik; Sanio,
Zur Geschichte der röm.
Rechtswissenschaft; Karlowa,
Röm.
Rechtsgeschichte, § 61, &c.; Pernice,
M.
Antistius Labeo ; Rudorff,
Röm.
Rechtsgesch. 1. § § 89-91; Filting,
Ueber
das Alter d. Schriften der Juristen von Hadrian bis Alexander.）
[
G.L] [
E.A.W]
