The Climax of Roman Law

Roman Law is the supreme expression of Roman rational organisation and order. Applying the laws as each instance arose, according to recorded precedents and with a keen eye for the practical needs and circumstances of daily life, the jurists gradually built a systematic structure, founded upon a blend of scientific thinking and common sense. They had come into existence in the remote past because the College of Priests, repositories of the sacred law, had disclosed its secrets to the general public. The consequent need for interpretation opened the way to secular jurists. But when secular courts were created it became established that legal rules could not be laid down by the arbitrary act of the public officials who presided over them. Accordingly expert jurists sat in their courts. These had to ask themselves what was implied in the ordinary or extraordinary informal acts and happenings of everyday life, and what the normal effects of these acts would be. The general recognition of such conclusions as valid and efficacious had been an early triumph of Roman Law. For half a millennium the central part of the jurists’ work was the giving of legal opinions. They were not advocates, and their consequent detachment from the results raised their interpretations above partisanship to a universal significance. They were also engaged in literary and teaching activity, consisting of exposition on the basis of selected cases.

And so jurisprudence, defined as the knowledge of divine and human and of what is just and unjust,³⁵ developed steadily from at least 300 BC onwards. Its practitioners remained unofficial until Augustus permitted selected jurists to give opinions on his own authority, so that they became mouthpieces of the imperial régime. During the second century AD, legislation ceased to be an activity of the senate, which gradually turned into a mere registry of laws communicated by the emperor.³⁶ But most of this imperial action was only legislative in a formal sense, consisting of answers to questions referred to the ruler for his decision. These answers were drafted for him by the jurists, who now ushered in the most creative and philosophical period of Roman Law. Salvius Julianus, an African of extraordinary talent, offered Hadrian a consolidated code when he was still under the age of thirty (129). Then Cervidius Scaevola advised one able emperor-lawyer, Marcus, and was the teacher of another, Septimius.³⁷

In the latter’s reign developed the second phase of this Golden Age of Roman Law. Although perhaps less creative than the previous phase, it witnessed the working out of existing principles over the entire field. The jurists who undertook this collection, criticism and interpretation of the classical heritage, still spent most of their time advising officials; but they also displayed a Greek tendency (being mostly of eastern origin) to write down their transactions. These pronouncements, which came to be recognised as a source of law in themselves, are the most far-reaching of all Rome’s contributions to posterity. They also provide one of the surest ways to a knowledge of the empire, revealing how rulers acted and considered themselves required to act – letting us into the secrets of the imperial machine, and of the imperial conscience as well.³⁸ The new urgency with which Septimius and his successors depended on the expert knowledge of the jurists is revealed by the appearance of their most eminent representatives as members of the emperor’s council and, above all, as successive praetorian prefects (p. 77).

The first lawyer to hold the prefecture was Papinian, probably a Syrian by birth like Septimius’ wife, and like Septimius himself a pupil of Cervidius Scaevola. Papinian became prefect in 203, but in 212 under Caracalla, either because of insufficient partisanship against the latter’s murdered brother or owing to his own unpopularity as a non-military man, he was killed by the guard at the new emperor’s instigation. Papinian wrote no comprehensive systematic treatise, but his voluminous collections and summaries of decisions have made him the most famous name in all Roman jurisprudence. Independent, unafraid of changing his mind, he produced solutions that are original, closely reasoned and of unequalled precision. A little more given to generalisation than his contemporaries, he allowed full scope to equity, ethics and humanity. Papinian possessed a critical and judicial rather than a fertile mind, and his criticisms are deliberate, unprejudiced and moderate; he applied the law responsibly and with the surest instinct. There is elegance in the almost archaic, lapidary terseness of his style, which unerringly and without parade relates the facts to the legal principle involved, and brings out the essential point and only that.

In the fifth century Papinian was singled out as the decisive casting vote if authorities disagreed (426; p. 80). Nowadays much weight is also given to earlier jurists. And yet, with the possible exception of Hadrian’s adviser Salvius Julianus, no one else can compete with him; though some would now add Ulpian.³⁹ That lawyer, who came from Tyre, wrote under Caracalla, became joint praetorian prefect in 222 under Severus Alexander, and after failing to master the guardsmen was murdered some years later. His enormous works, reflecting the contemporary civil service trend towards codification, were designed to cover the whole range of the law, so that reference to previous authorities would become unnecessary. Ulpian is reliable, businesslike and unaffected, writing with superlative clarity and ease (though also a certain bureaucratic guardedness), and displaying perfect mastery of his gigantic, complicated material.

Paulus was praetorian prefect at the same time as Ulpian; these last years of lawyer-prefects were full of trouble and mutiny, and the fact that the two men do not cite each other’s works suggests that they had never been very amicable. Paulus’ writings, the most voluminous of all, included a large number of systematic monographs, and an influential book (or compilation from a book) known as the Opinions (Sententiae).⁴⁰ The views and style of Paulus are so hard to disentangle from later interpolations that he has been subject to varied judgments, including accusations of being fanciful and doctrinaire. He was deficient in urbanity, and he had a taste for contradictions. And yet, while lacking Ulpian’s exact clearness, Paulus seems to have excelled him in breadth of interest, independence, abstract reasoning power, and penetrating criticism of other jurists’ opinions. But the aim of both of them was the same, and it was conceived in the spirit of late antiquity; to sum up and condense and clarify an enormous volume of earlier material into simple expositions of the whole legal system.⁴¹

The pursuance of this task was terminated in the middle of the third century by the increasing absolutism of emperors, the perilous instability of their governments, and the counter-attraction exercised upon able minds by the complexities of Christian theology. And so the age of the great jurists ended.⁴² But imperial legislation continued on a massive scale. Diocletian, maintaining that ‘the worst of all sins is to upset things that have once been ordained and prescribed by our forefathers’,⁴³ sought to suppress Greek and other non-Roman concepts and to spread Roman Law throughout his entire empire. Nearly 1,300 of his answers to judges’ questions or to private petitions have survived. The same reign also witnessed the production of compilations, extending back to Hadrian’s time, of the imperial rulings which were now the only source of law. These collections were utilised for generations as legal reference books and, despite their private character, were accepted as authoritative in the courts,⁴⁴

Under Diocletian, then, the traditions of classical legal science were still preserved. But a new crudity became perceptible in the western emperor Valentinian III’s Law of Citations (426), which laid down rules for the employment of classical juristic writings in court. The framers of the measure had a poor opinion of contemporary judges, and were not too able themselves; though their efforts at least allowed a careful barrister to tell his client the law. The Code of the eastern emperor Theodosius II(438), comprising an official collection of imperial statutes from the year 312, seems to have formed part of a general scheme for codifying legislation⁴⁵; and together with Paulus’ Opinions and Diocletian’s collections, it passed into the Vulgar Law which summarised and simplified Roman Law for the barbarian west.

As the academic study of the subject continued to revive in the eastern empire, the jurists of past centuries were perpetuated in the code of Justinian I, which contains almost all that we know of Roman legal institutions (528–34).⁴⁶ This massive classification and commentary, which compressed a vast bulk of material into two volumes of manageable size, was undertaken by a commission of sixteen members, with a civil servant Tribonian usually in the chair; the commissioners were directed to apply considerations of humanity, common sense and public utility. The main part of their task, the compilation of the Digest, was a monument to the Severan jurists, for more than half its contents are versions – partially interpolated and modified – of the writings of Papinian, Ulpian and Paulus.⁴⁷ Ulpian alone provided 2,462 extracts, amounting to one-third of the entire collection.

Through this preservation of their work in the Digest, the lawyer-prefects of Septimius and his successors have exercised more far-reaching influence upon the world than any other Latin writers, without excepting even Virgil, Cicero or Ovid. For when Justinian’s Code was rediscovered in twelfth-century Italy and utilised by Irnerius for his teaching at Bologna, it became the principal support of popes and emperors and men of affairs, and a major factor in the intellectual reawakening of Europe: the universalist dreams of Caracalla and Diocletian had almost been fulfilled after a thousand years’ delay. The writings of the Severan jurists, embodied in the Digest, were now the lingua franca of the law, and these abundant practical solutions and clear and rational distinctions fascinated the most gifted men of the day. And so the legal methods and conclusions of Septimius’ time became patterns for future ages. Until a century ago, they still dominated large areas, through their direct and indirect descendants. Even today, as in the past two millennia, they still provide, through direct and indirect descendants, much of the method and framework by which the law adapts itself to successive generations and forms of government.

The jurists of the second, third and fourth centuries respected human rights in so far as these did not conflict with the overriding needs of the state. Marcus Aurelius gave women more of a legal existence than they had enjoyed before, and both he and Septimius protected the interests of minors and slaves. The latter, it is true, were still chattels, and slavery was recognised to be part of international custom, but some lawyers now asserted that it was contrary to nature.⁴⁸

Where politics and taxation were not involved, the jurists, sitting as prefects or as judges in the prefects’ courts or as advisory experts on the emperor’s council, did what they could to maintain the fundamental institutions of Roman Law – the family, private property and the sanctity of contracts – and even modified them in humane directions compatible with a new sensitiveness for human suffering (p. 87). Consequently, in spite of the severity of his regime, Septimius showed humanitarianism in his laws against abortion, measures protecting wives against the loss of their dowries, grants of privileges to large families and destitute children,⁴⁹ and a general tendency to ensure that people suffered less for the sins of their fathers. Loan-banks were established for the purchase of land, and wider autonomy was given to provincial governors, so as to enable them not only to meet emergencies but to protect the weak and poor against their more powerful neighbours and the soldiery (p. 56).⁵⁰ Later emperors continued to legislate in similar vein.⁵¹ Thus the autocracy which the lawyers were now helping to create was not only centralised but showed a marked increase in standardisation and equalisation. These processes had already become perceptible under Marcus Aurelius, whose policy mirrored the praise of equal law and rights which he expresses in his Meditations.⁵² Dio Cassius, too, speaking through the voice of Maecenas, advocated a general ironing out of distinctions.⁵³

These views provided appropriate theoretical façades, but the real purpose of the levelling was the elimination of all possible mutinous tendencies and discontents which might prevent the maximum exploitation of all classes to serve the state and pay its enormous taxes. A fiscal aim is again expressly attributed by Dio Cassius to Caracalla’s enactment known as the Constitutio Antoniniana (212/13).⁵⁴ This gave the entire population of the empire, apart from slaves and a few other exceptions,⁵⁵ the status of Roman citizens which had hitherto been restricted to Italians and to an éliteand privileged minority of provincials. Caracalla’s measure is not even mentioned on the coins, which mirror many far less significant events. The slightness of the measure’s impact is in accordance with its position as a single, final step in a long and gradual process of development, already evident in the works of the jurists and the mind of Marcus Aurelius. The Constitutio struck a democratic note, which harmonised with Caracalla’s vast Alexander like conceptions and the increasingly wide diffusion of education (P. 115).

Yet, like moves to erode Italy’s privileged status, the effect was to equalise people not upwards but downwards. For henceforward death duties and taxes on the liberation of slaves, to which the older category of citizens had been liable, were payable not only by them but by the multitudinous new citizens as well⁵⁶; and the rate of the death duties were doubled (p. 50). However, this fiscal motive was duly covered over by an appeal to religious sentiment. The Constitutio was represented by Caracalla as a thanksgiving for the liquidation of his allegedly treacherous brother Geta; and it also helped to associate his subjects more closely with Rome and the traditional gods.

Since the abolition of any distinction between citizens and non-citizens and between Italy and the provinces had practically identified Roman, imperial and even international law,⁵⁷ there could scarcely, it would seem, be any discrimination between one free person and another in the courts. The actual situation, however, was different. So far from creating such equality, the merger of citizens and non–citizens occurred at a time when legal dissimilarities were becoming crystallised on another basis. For the old territorial and civic differences were now replaced by a social distinction between two main groups to whom the law gave entirely separate treatment. The superior class (honestiores) included land owners, officers, civil servants, town councillors and eventually priests. Everyone else belonged to the lower class (humiliores), which possessed inferior legal rights and incurred heavier penalties in the courts. Although now Roman citizens, these people were liable to flogging, torture and summary execution, which only non-citizens had suffered before. Indeed their punishments were practically those of slaves,⁵⁸ and that is just what many ‘free’ tenants came to be called. Moreover, the right of appeal to the emperor, after only a preliminary enquiry or none at all, was now reserved for thehonestiores⁵⁹; and, although they too had their oppressive compulsory services spelt out for them by the jurists,⁶⁰ the worst thing that could happen to them was to be deprived of that rank.

This differentiation was not entirely novel; except when suspicious emperors took a particular dislike to senators, the administration of Roman law had always favoured the upper class. Already in the second century a distinction between two classes had existed on an unofficial basis; and next came an age in which titles of rank were increasingly employed, gradually ceasing to be informal and assuming official shape. Such was the hierarchic background against which Severan jurists gave their authoritative stamp to the barrier between honestiores and humiliores. However frequent the attempts to soften this situation by humanitarian legislation (p. 81), far more numerous measures, often prompted by landowning interests, were aimed at keeping the poor in their dreary and laborious place. Accordingly in times of crisis, despite every effort to whip up enthusiasm, their response to patriotic appeals was sometimes sluggish.

The laws of Diocletian and Constantine blend humaneness with disagreeable threats. In contrast to the penal savagery of much of his legislation, Diocletian’s Edict on Prices was specifically designed to assist the common soldier, and indeed sought to help poor people in general by framing its provisions in terms of their humble base-metal monetary denominations. In the same spirit Constantine put an end to many harmful conflicts of law, and his legal reforms, inspired by Christianity, prohibited brutal penalties, tried (though ineffectively) to limit gladiatorial shows, and eased the position of women, children, debtridden farmers, prisoners and slaves.⁶¹ Yet he allowed judicial torture as a means of finding out the truth and confirming guilt, and the punishments laid down are ferocious.

The laws denounce and justify with a strident and menacing plaintiveness, repeating the same prohibitions for decade after decade. This was because warnings were laxly enforced, indeed often virtually ignored. The gears turned, but did not mesh.⁶² Septimius and many others penalised corruption,⁶³ but the ‘selling of smoke’, fumum vendere –graft and patronage – poisoned the whole government, and especially the courts of law. Criminal justice was not only dishonest but brutal and arbitrary. The law courts of the later empire, despite improvements by Diocletian, remained labyrinthine, costly and slow-moving. They were burdened by many obscure and expensive conflicts of jurisdiction; and the judges, whose tenure was too short, were liable to intimidation, and became more and more ignorant as the empire went on. And yet this inefficiency proved not too bad a thing for the mass of the people, because it was better to escape the laws, which were so often tyrannical, than to have them all enforced. This was a distasteful and heavy-handed form of government, but it was not efficient enough to keep everyone miserable for the whole of the time.

Such, then, was the epoch which began, under Septimius and his successors, with jurists who were among the greatest of all time, and have certainly been exceeded by no others in their effect on the world to come. This influence attained its zenith in centuries that still lay a long way ahead, and it contributed greatly to the future of Europe. In their own day the enormous talents of these men probably caused more unhappiness than happiness, since their labours were directed not only towards humane legislation but also, and in greater degree, to the tax-extortion and regimentation which were regarded as necessary for the upkeep of the army and salvation of the state. Yet, formidable though such efforts were, they did not have as evil or as universal results as might have been feared, since the inadequacies of the enforcement agencies enabled many people to disregard what the jurists had so brilliantly and painstakingly thought out for their repression.