It is generally accepted that Roman legal science began in the second century BC, under the influence of the Greek philosophers.
Until that time there had been interpretation of laws and legal remedies in connection with the administration of justice. The new development was that young Romans from the senatorial class were taught methodically how to compose and deliver various types of speeches; these included political speeches, eulogies and the most difficult type: pleading in court. Initially much of the tuition was given by Greek teachers of rhetoric who gave considerable attention to grammar, style, logic and presentation. It was in that context that the Romans became acquainted with Plato’s dialectic method; by means of this method they learnt to divide juridically relevant facts into genera and species and to define these facts and thus to distinguish and categorise juridical concepts. In addition, they became acquainted with the syllogism (or reasoned conclusions) and in this way learnt to form juridical concepts in a deductive manner. There was soon a small group of leading Roman citizens, the jurists, who belonged to the senate and had a very specialised knowledge of Roman law. These were the people who, following in the wake of the pontiffs, were largely responsible for the development of Roman legal science.12
The activities of the Roman jurists are described by Cicero as respondere, agere and cavere (De oratore 1.48.212). They show that the jurists did not form a separate class in society that kept aloof from legal practice and from politics, as is often maintained, but that their opinion was regarded as valuable just because they were part of Rome’s most powerful constitutional body, the senate. Cavere (literally, to take precautions) meant the drafting of texts to be used in legal practice; these could be formulae drawn up in connection with a lawsuit by a jurist either serving as magistrate or as a member of the senate advising the magistrate.
Cavere could also mean the drafting of deeds, for instance deeds of sale and wills. Here the jurists developed standard clauses, for instance the so-called cautio Muciana, which seems to have been
THE LATE REPUBLIC (367–27 BC)
drafted by Q.Mucius Scaevola (beginning of the first century BC);
the cautio Muciana was the promise that the legatee had to make to the heir, namely that he would return the legacy if he were to fulfil the condition which was attached to the legacy.13
Agere (literally, to act) meant serving as advocates in a lawsuit.
As mentioned earlier (see section 6.4.3), the speeches of the advocates often dealt with the interpretation of laws and legal devices. Unfortunately only very few of the speeches dealing with private law have survived; these include the speeches pro Tullio and pro Caecina by Cicero. From the oratorical works of Cicero we can follow the main lines of a famous inheritance lawsuit, the so-called causa Curiana in which Q.Mucius Scaevola and C.Licinius Crassus served as advocates.14
Respondere (literally, to answer) meant giving an opinion on a legal problem to citizens, to jurisdiction magistrates and to judges.
Sometimes those opinions were ratified by a verdict, sometimes they were not. Very few of the responsa given by the republican jurists have survived either. We know that from the second century BC some leading jurists began making collections of responsa that they had given and that had been applied in practice. A need had arisen for such collections because in Rome the administration of justice was not organised by the state (the praetor always appointed an ad hoc judge) and consequently the verdicts given by a judge were not collected on behalf of the state. In their collections the jurists sometimes summarised cases that were important in their eyes and reported the verdict or opinion given in those cases; sometimes they also formulated an abstract rule of law on the basis of an actual case. In so doing they often omitted to mention the motives for the verdict because these were not relevant for the purpose for which the collection was made.15 Hitherto the jurists had collected formulae for lawsuits, but now they collected responsa and verdicts based on a responsum in which new law had been created. Well-known books (or rather scrolls) about the ius civile are those by M.P.Cato Licinianus (chosen as praetor for the year 149—he died before taking office), Manius Manilius (consul in 149 BC) and the aforementioned Q.Mucius Scaevola (consul in 95 BC). Other jurists from the last few decades of the republic include C.Aquilius Gallus (praetor in 66 BC), S. Sulpicius Rufus (consul in 51 BC) and P.Alfenus Varus (consul suffectus in 39 BC, i.e. chosen as an interim consul upon the death or resignation of one of the consuls); Rufus was the first
of these jurists to use the praetorian edict instead of the ius civile as his frame of reference. Unfortunately the works of these jurists have not survived intact, but we do have access to fragments since they are cited by later jurists.16
As can be seen from the foregoing, Roman legal science developed largely from legal practice. The Roman jurists formulated abstract juridical concepts under the influence of Greek philosophy. However, they were not inspired by a specific theoretical concept and they did not seek to construct systems of abstract theories; they started with an actual case and tried to find a just solution that was acceptable in practice. The reason why Roman jurisprudence developed under the influence of Greek philosophy and yet is clearly Roman in character is that the Greek influence was not effective until the second century BC; by that time Roman law had developed sufficiently to withstand confrontation with Greek law. Finally one may well wonder why it was the Romans rather than the Greeks who developed legal science. A possible reason is that the Greek cities preserved their autonomy and their own legal systems and, as a result, Greek law was greatly influenced by local conditions. The Romans on the other hand founded what for those days was a vast empire in which law played a leading role and helped them achieve their imperial ambitions. The Romans became the founders of legal science because they were able to combine their organising talent and their legal talent with the tenets of Greek philosophy.
THE LATE REPUBLIC (367–27 BC)