The most distinctive aspect of Roman legal institutions was the jurisconsult (variously termed iurisconsultus, iurisprudens, or iurisperitus), who inherited the prestige of the public priests (pontifices) of Rome in the area of law. The role of the jurisconsults was, in Cicero’s words (De or. 1.212), to respondere (provide legal advice in response to questions), agere (assist in trials), and cavere (draft documents). Our main source for the development of the role of the jurisconsult comes from a selection found in the Digest (1.2.2.pr.-53) from the Enchiridium, or Manual, of Pomponius, a jurist of the second century ad. Although the text is often vexed, and the author’s historical sense is weak, it provides a capsule history of Roman jurisprudence - the locus classicus on the subject. Pomponius writes that knowledge of the Twelve Tables and of the legis actiones lay in the hands of the College of Pontifices, and that one of the priests was selected each year to preside over matters of private law (see also Chapter 10). This remained the practice for nearly a hundred years, until Cn. Flavius published the legis actiones (Pompon. Dig. 1.2.2.6-7). Pomponius mentions 25 jurisconsults from the Republican period, including some very well-known names, such as Ap. Claudius Caecus (cos. 307 and 296), the builder of the via Appia (Dig. 1.2.2.36), and P. Rutilius Rufus (cos. 105), who despite his exemplary conduct as legate in Asia was condemned in the extortion court (Dig. 1.2.2.40).
The jurisconsults became the dominant force in the development of Roman law, particularly private law. Schiller identifies four factors responsible for their remarkable influence: (1) they constituted a specific group of individuals dedicated to the law; (2) they possessed comprehensive expertise in private law; (3) they were closely involved in the administration of law; and (4) they accepted disagreement and debate among themselves as normal.34 Jurists trained their successors by allowing young men to hear them respond to legal questions in their homes and in the Forum (see also Chapter 20).35 Ti. Coruncanius (pontifex maximusc.254-243) was the first to make public pronouncements (profiteri) about the law (Pompon. Dig. 1.2.2.38). In this connection Pomponius (Dig. 1.2.2.35) makes it clear that he is referring to his willingness to speak publicly about the law, as opposed to restricting his pronouncements to private communication with those who had brought him questions, and Pomponius adds that his responsa (answers) have been remembered, although no writings of his survived. The first jurist to leave an extensive written record was Sex. Aelius Paetus Catus (cos. 198), who wrote a work called the Tripertita, or three-part work, so titled because it in some manner divided legal knowledge into three parts, namely the Law of the Twelve Tables, then a section that furnished interpretation of them, and a third providing the relevant legis actio (Pompon. Dig. 1.2.2.38). Pom-ponius says that the three ‘‘founders of the civil law’’ (Dig. 1.2.2.39) were P. Mucius Scaevola (cos. 133, pontifex maximus 130-c.115), an ally of Ti. Gracchus, M. lunius Brutus (pr. c.140), whose responsa were contained in a work on the civil law (de iure civili), and M’. Manilius (cos. 149).
Q. Mucius Scaevola (cos. 95, pontifex maximus c.89-82) ‘‘Pontifex,’’ the son of the first of these, and killed in 82, raised the systematic exposition of the law to a new level of sophistication: ‘‘He was the first to arrange the civil law in categories’’ (Pompon. Dig. 1.2.2.41).36 For example, he divided tutorship (tutela) into five categories (genera) (Gai. Inst. 1.188). Although the term genera has been argued to have come from Greek dialectic, which was characterized by analysis into thegenos (genus) and eidos (species), the mere use of this term, especially without its companion species, does not provide a strong case for direct Greek influence. Of course, Mucius, like any educated Roman, would naturally have been familiar with Greek philosophy. As Wieacker points out, philologists, who typically deal with a Greco-Roman high culture, are inclined to attribute to Greek philosophy an important influence on Roman jurisprudence, whereas specialists in Roman law, according to Wieacker, are more likely to view Roman jurisprudence as a continuous and autonomous discipline.37 In any event, the issue of influence from Greek philosophy on the jurisconsults has to be addressed both in terms of its likely effect on the substance of Roman Law, that is, decisions in individual cases, and in terms of the jurisconsults’ employment of Greek philosophical methods to analyze and present Roman Law (see also Chapter 20).
Of the later Republican jurists, C. Aquillius Gallus (pr. 66) carried high prestige among the people (Dig. 1.2.2.42). He served as a legal advisor to Cicero’s client Caecina (Cic. Caecin. 77-9, 95), and gave ‘‘his dominion (regnum) in the courts’’ (Cic. Att. 1.1.1) as one reason for declining to stand for election to the consulate of 63.39 The last great jurist of the republican era was Ser. Sulpicius Rufus (cos. 51).40 Pomponius (Dig. 1.2.2.43) relates the story that Servius, having already achieved high standing as an orator, was unable to understand a response to a legal question that he himself had posed to the great jurisconsult, Q. Mucius Scaevola. Mucius reportedly took him to task for displaying such ignorance of the law, ignorance unbefitting a distinguished patrician, noble, and forensic orator such as himself. Stung by this criticism, Servius went on to become the most distinguished jurist of the last decades of the Republic. He was a prolific author, composing nearly 180 book chapters (libri) comprising many works about the law.41
Kunkel has produced a theory about the social status of the jurisconsult that has served as the reference point for all subsequent discussion of the subject.42 He maintains that, whereas in the second century jurisconsults were aristocrats who almost always achieved the consulate, in the first six decades of the first century, jurisconsults were usually of equestrian status and almost never achieved the consulate. Cicero mocked the jurisconsults and their inability to translate juristic eminence into political success through his portrayal of Servius Sulpicius’ unsuccessful campaign for the consulate of 62 (the famous ‘‘Juristenkomik,’ pro Murena; see below); it is worth noting, however, that Servius did reach that office in 51. Kunkel posits two causes of the jurisconsults’ decline in status: (1) Late republican political instability, which undercut the rule of law and made oratory a more successful route to power than jurisprudence, and (2) a weakening of the aristocracy, thus opening the way for the knights (equites) to take over. Legal historians have questioned some aspects of Kun-kel’s account, particularly when he employs an expansive definition of ‘‘equestrian’’ that includes many who went on to acquire senatorial status. Frier argues that, in fact, during the post-Sullan period, when Roman citizenship spread throughout the Italian peninsula, jurisprudence exercised a great appeal to recently enfranchised Italian Roman citizens, just as the Roman political arena did. He argues that they wished to make use of law to advance their substantial economic interests, and that they therefore had an interest in strengthening legal stability in order to protect themselves, as new citizens, against the traditionally powerful Roman elite, to insulate their property from political perturbations, and to reduce the risk involved in economic decision-making.
Frier distinguishes between the ‘‘external’’ aspect of jurisprudence - responses to the specific questions of petitioners - and the ‘‘internal’’ aspect - the development of an intellectual discipline of law. He maintains, ‘‘during the late Republic the ‘internal’ aspect of legal science steadily gained strength at the expense of the ‘external’ aspect, until the communication of law came to be thought of as only an ancillary part of a jurist’s duties, while legal science was increasingly looked upon as a study of value in itself.’’44 Frier identifies Q. Mucius Scaevola (‘‘Pontifex’’) as the key figure in this change, arguing that when he came on the scene, the stability of the ius civile had been threatened by the formulary procedure and the related changeability of the Praetor’s Edict, as well as by the growth of rhetorical advocacy. However, Frier also argues that Mucius’ commentary on the ius civile was essentially conservative, in that it focused on the Roman Law of the Twelve Tables and early statutes, to the neglect of issues raised by the increasingly sophisticated economy of the first century. By contrast, Servius’ writings focused on the Praetor’s Edict. Frier stresses the originality of Mucius’ ‘‘casuistic’’ method: Mucius presented a series of cases in which a legal rule operated, without attempting to formulate the legal rule in the abstract. This method stands in contrast to Anglo-American case law, which draws on the presentation of real or hypothetical cases to illustrate abstract principles. Such a presentation would have made rough going for the novice, and was really aimed at an audience of other legal experts. According to Frier, the development oflegal science during the last decades of the Republic therefore raised the prestige of the ius civile, and countered the instability caused by the praetors and the orators. It also allowed jurists to influence legal developments without having to become excessively embroiled in individual cases.45
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