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p653 Jurisconsulti

Article by George Long, M.A., Fellow of Trinity College
on pp653‑655 of

William Smith, D.C.L., LL.D.:
A Dictionary of Greek and Roman Antiquities, John Murray, London, 1875.

JURISCONSULTI or JURECONSULTI. The origin among the Romans of a body of men, who were expounders of the law, may be referred to the separation of the Jus Civile from the Jus Pontificium. [Jus Civile Flavianum.] Such a body certainly existed before the time of Cicero, and the persons who professed to expound the law were called by the various names of jurisperiti, jurisconsulti, or consulti simply. They were also designated by other names, as jurisprudentes, prudentiores, peritiores, and juris auctores. The word which Plutarch uses is νομοδείκτης (Tib. Gracch. 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. I.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 advise (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 business of the early jurisconsulti consisted both in advising and acting on behalf of their clients (consultores) gratuitously. They gave their advice or answers (responsa) either in public places which they attended at certain times, or at their own houses (Cic. de Or. III.33); and not only on matters of law, but on any thing else that might be referred to them. The words "scribere" and "cavere" referred to their employment in drawing up formal instruments, such as contracts or wills, &c. At a later period, many of these functions were performed by persons who were paid by a fee, and thus there arose a body of practitioners distinct from those who gave responsa and who were writers and teachers. The earlier jurisconsults cannot be said to be the same kind of persons as those of a later period. Law had not then assumed a scientific form. The first whom Pomponius mentions was Papirius, who is said to have made a collection of the Leges Regiae. 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), and he was distinguished both for his knowledge of the law and his eloquence. He left p654no writings. It must not, however, be assumed that Coruncanius was a professor of law in the modern sense of the term; nor any other of the jurists after him who are enumerated by Pomponius. 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 military skill. There were many distinguished jurists in the last two centuries of the republican period, among whom are M. Manilius; 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, and one of the masters of Cicero (jurisperitorum eloquentissimus, eloquentium jurisperitissimus, Cic. de Or. I.39, Brutus, c89). 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 tit. 2 s2 § 41). There are four excerpts in the Digest from a work of his in one book, on Definitions. Servius Sulpicius Rufus, the friend and contemporary of Cicero, and consul B.C. 51 (Brut. 740), was as great an orator as the Pontifex Scaevola, and more distinguished as a jurist. Many persons, both his predecessors and contemporaries, had a good practical knowledge of the law, but he was the first who handled it in a scientific manner, and as he had both numerous hearers and was a voluminous writer, we may view him as the founder of that methodical treatment of the matter of law which characterised the subsequent Roman jurists (Cic. Brut. 41; Dig. 1 tit. 2 s2 § 43), and in which they have been seldom surpassed.

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.

It is said that Augustus determined that the Jurisconsulti should give their responsa under his sanction (ex auctoritate ejus responderent). The jurists who had not received this mark of imperial favour, were not excluded from giving opinions; but the opinions of such jurists would have little weight in comparison with those of the privileged class. Those who obtained the Jus Respondendi from the Princeps, would from this circumstance alone have a greater authority, for formally their Responsa were founded on the authority of the Princeps. These responsa were said given sealed (signata), apparently to prevent falsification. The matter proposed for the opinion of the Jurisconsulti was sometimes stated in the Responsum, either fully or briefly; and the Responsum itself was sometimes short, sometimes long; sometimes it contained the grounds of the opinion, and sometimes it did not (Brisson. de Form. III. c85‑87).

The responsa of a privileged Jurisconsultus would be an authority for the decision of a judex; if there were conflicting responsa given, the judex would of course decide as he best could. But, besides the direct responsa, which were given in particular cases, there was the authority of the writings of the privileged jurists. As before the time of Augustus, public opinion only gave authority to a jurist's responsa and writings, so from the time of Augustus this authority was given by the Jus Respondendi to the responsa and writings of a jurist. This privilege gave to a jurist the condition of a Juris auctor, and to his writings legal authority, neither of which belonged to a jurist who had not received the privilege. Accordingly, the writings of such privileged jurists received the same authority as their responsa; and if the opinions of the Juris auctores, as expressed in their writings, did not agree, the Judex was left to decide as he best could. This explanation of the nature of the Jus Respondendi, which is by Puchta (Instit. I § 117), is appeared by him to the elucidation of the passage in Gaius (I.7. Responsa prudentium sunt sententiae et opiniones, &c.). He supposes that this interpretation of the passage is strictly conformable to what has been said of the authority of the writings of the jurists. If we leave out of consideration the technical expression Responsa, with which the passage begins, there is no difficulty at all in applying the words of Gaius to the writings of the jurists; and, in fact, it is most consistent to take responsa in this passage in a wider sense, and as equivalent to auctoritas. The term Responsa originated at a time when responsa, in the simple sense of the term, were the only form in which the auctoritas of a jurist was manifested; whereas in the time of Gaius, the writings of the jurists had become a very important legal authority, and consequently they must be included by Gaius in the term Responsa Prudentium, for otherwise he would not have mentioned at all the Auctoritas Prudentium, to which he so often refers in various parts of his work. Puchta's explanation of this passage, which bears the stamp of great probability, may be compared with that of Savigny (System, &c. vol. I p155).

In the time of Augustus there arose two schools (scholae) of Jurists, the heads of which were respectively Ateius Capito and Antistius Labeo. The followers of Labeo, whom we know with certainty to have been such, were Nerva, Proculus, Nerva the son, Pegasus, Celsus, Celsus the son, and Neratius Priscus. The followers of Capito were Massurius Sabinus, C. Cassius Longinus, Coelius Sabinus, Priscus Javolenus, Aburnus Valens Tuscianus, Gaius, and probably Pomponius. 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 Massurius Sabinus, who lived under Tiberius, and as late as the reign of Nero: they were sometimes also called Cassiani, from C. Cassius Longinus. It is not easy to state with precision the differences which characterised the two schools. Whatever may have been the origin of these differences, which may perhaps be partly referred to the personal character of Capito and Labeo, the schools were subsequently distinguished by a difference in their manner of handling the matter of the law. The school of Capito adhered more closely to what was established, and to the letter of what was written. Labeo was a man of greater acquirements than Capito, and his school 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; though the strict logic of this school might sometimes produce a result less adapted to general convenience than the conclusions of the Sabiniani, which were based on the prevailing notions of equity. Much has been written on the characteristics of the two schools, p655but to very little purpose. The matter is briefly treated by Puchta (Instit. I § 98).

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. 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, Definitiones, which probably were collections of maxims and legal principles; collections of cases and answers, under the various names of responsa, epistolae, sententiae, and opiniones; systems of law; and various works of a miscellaneous character, with a great variety of names, such as disputationes, quaestiones, enchiridia, res quotidianae, and various other titles.

The juristical writers were very numerous; they formed a series, beginning with Q. Mucius Scaevola, the Pontifex, and ending about the time of Alexander Severus, with Modestinus who was a pupil of Ulpian. With the exception of the fragments preserved in the Digest, this great mass of literature is nearly lost. [Pandectae.]

The mode of teaching law at Rome was of a practical nature. Professors of law in the modern sense did not exist till the Imperial periods. Ulpian calls them Juris civilis professores (Dig. 50 tit. 13 s1 § 5); but there is no indication that he considered himself as one of the class; nor can we consider that such men as Julian, Papinian or Paulus ever followed the occupation of teacher of law. The instruction which was given in the republican period consisted 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 name Institutiones was given to elementary treatises like those of Gaius. Accordingly, institui and audire, expressed the two parts of a legal education; and this mode of instruction continued probably till near the time of Constantine. 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, who are mentioned by Ulpian and others. Thus Ulpian calls Modestinus, "studiosus meus". As already observed, the class called Juris Civilis Professores arose under the empire, and they received from those who attended them an Honorarium, or fee (Ulpian, Dig. 50 tit. 13 s1 § 5).

(Pomponius, De Origine Juris, Dig. 1 tit. 2 s2; Zimmern, Geschichte des Römischen Privatrechts.)

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