previous next


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]

hide Display Preferences
Greek Display:
Arabic Display:
View by Default:
Browse Bar: