Jurists and Legal Science in the History of Roman Law

Fara Nasti, Aldo Schiavone, Aldo Schiavone, Fara Nasti

• Publisher: Routledge
• Year: 2021
• ISBN:
  9781000469844
• Edition: 1
• Topic: Histoire
• Subtopic: Histoire de la Rome antique

This book provides a new approach to the study of the History of Roman Law. It collects the first results of the European Research Council Project, Scriptores iuris Romani - dedicated to a new collection of the texts of Roman jurisprudence, highlighting important methodological issues, together with innovative reconstructions of the profiles of some ancient jurists and works.

Jurists were great protagonists of the history of Rome, both as producers and interpreters of law, since the Republican Age and as collaborators of the principes during the Empire. Nevertheless, their role has been underestimated by modern historians and legal experts for reasons connected to the developments of Modern Law in England and in Continental Europe. This book aims to address this imbalance. It presents an advanced paradigm in considering the most important aspects of Roman law: the Justinian Digesta, and other juridical late antique anthologies. The work offers an historiographic model which overturns current perspectives and makes way for a different path for legal and historical studies. Unlike existing literature, the focus is not on the Justinian Codification, but on the individualities of ancient Roman Jurists. As such, it presents the actual legal thought of its experts and authors: the ancient iuris prudentes.

The book will be of interest to researchers and academics in Classics, Ancient History, History of Law, and contemporary legal studies.

Part IMETHODS AND PATHS

Chapter 1SINGULARITY AND IMPERSONALITY IN THE THOUGHT OF ROMAN JURISTS

Aldo Schiavone

SUMMARY: 1. Our project. – 2. From Code to jurists. – 3. Singularity and impersonality. – 4. The authoriality of Roman jurists.

1. Our project

The aim of the Scriptores iuris Romani Project is to introduce and spread – not only among specialists, but to a broader audience of scholars or even those merely curious about law and history – what we can define as a still uncommon and almost unknown way of viewing Roman law, or at least its most important part. This is a manner that is no longer focused, as is usual, on the Justinian codification – the monumental structure of the Corpus Juris Civilis, and in particular the Digesta – but directly on the Roman jurists, their single and definite profiles, considered for what they really were: the authentic protagonists of a long and grandiose intellectual journey, which would become a key feature of the West.¹

¹What I say in these pages is based on my Ius. L’invenzione del diritto in Occidente. Nuova edizione (Torino 2017), English translation of first edition, 2005, The Invention of Law in the West (Cambridge [Mass.]-London) 2012.

With our work – which we have been carrying out for years, long before it became a European Research Council Project, and which had already involved various institutions, including the Istituto Italiano di Scienze Umane, the Scuola Normale Superiore and the University of California, Berkeley – we wish to present a solid textual and interpretative basis for this drastic change in perspective.² We have brought out a series of volumes through the publisher L’Erma di Bretschneider, each one dedicated to the reconstruction of the work of a jurist (or a part of the work in cases in which we have more ample documentation).

²An account of these beginnings can be found in F. Amarelli, A. Schiavone, E. Stolfi, ‘Corpus Scriptorum iuris Romani. Nascita di un progetto’, in SDHI 71 (2005) 4 ff.; V. Marotta, E. Stolfi, ‘L’inizio dei lavori’, in SDHI 72 (2006) 587 ff.; C. Giachi, P. Giunti, ‘I lavori di Berkeley’, in SDHI 73 (2007) 597 ff.; F. Tamburi, ‘Montepulciano: una settimana di verifiche e confronti’, in SDHI 74 (2008) 923 ff.

For each author, we have provided: a broad introduction to his life and his thought; reproduction of the Latin (or Greek) text of his writings, rearranging the fragments handed down by the Justinian Digesta or by other sources according to the original design – as we are able to reconstruct it today – accompanied by a measured critical apparatus grounded in the Mommsen edition; an Italian translation with a historical- juridical commentary; and finally a complete collection of the quotations made by ancient authors useful to outline the biography of the jurist considered.

An indispensable point of reference is, of course, the work of Lenel, truly pioneering for the era in which it was conceived: a beacon that still stands alone, after almost a century and a half, illuminating a path incredibly neglected, or never even perceived, by subsequent studies on Roman law.³ Obviously, after such a long time, many results of the German scholar’s extraordinary research should be re-examined: and we will not fail to do so when the opportunity arises – even if our main aim is not to replicate his Palingenesia but to continue on the road that he foresaw.

³O. Lenel, Palingenesia Iuris Civilis, I-II (Lipsiae 1889; reprint Roma 2002); L.E. Sierl, Supplementum (Graz 1960).

2. From Code to jurists

From the point of view of historiographic theory, the enterprise we are undertaking requires the acquisition of a very important preliminary datum: the separation, in the most radical way possible, of the real history of Roman law from the history of its tradition and its fortune from the Justinian age to the twentieth century: a phenomenon of almost incalculable proportions that has still not ceased to influence the legal culture of the West.

At the origin of the tradition is the Justinian codification, the formidable mosaic of the Corpus Iuris. Instead, the core of the history of Roman law consists of the jurists in their dual, but almost inextricably interwoven, function as inventors of a science and as creators of a legal system that guided a global empire.

The success of the medieval and especially modern tradition of Roman law has decisively contributed to the establishment in the West of the individualistic form of private subjectivity as an intrinsically juridical form: a hugely important result that has accompanied and favoured the triumph of the capitalist organization of the world. Captivated by the force of such an outcome, we have ended up projecting the model of the Code, the basis of that tradition, not only – as was completely legitimate – onto the events subsequent to its formation, that is onto the history that it initiated, but also – which instead was quite misleading – onto those that preceded it, i.e. the real history of Roman law, as if the latter were nothing but its prelude, the anticipation of its realization.

That is how the shadow cast by the Justinian codification obscured the Roman jurists, hiding them for millennia. For too long, their history – which is, in its strongest sense, the actual history of Roman law – has never been told: and this omission, concealing a decisive point of our past, has removed from us a very part of ourselves. While the late medieval and especially modern tradition of Roman law, from the Bolognese masters to the German Pandectists, was developing right before our eyes – and left Europe with a legacy that is unique but whose appraisal has now definitively been made, and there is nothing more to add – the authentic Roman genealogy of that knowledge, so utilized and reworked, has remained a largely unexplored territory from which we still have much to learn.

Today, contemporary juridical thought must perform a crucial task: a leap beyond itself and its old confines to succeed in thinking and disciplining the reality emerging from the great transformation in the last decades of the twentieth century: to construct a legal system of the new global world worthy of the name. But this will be impossible without coming to terms completely – without lacunae – with our past, without first having written all of our history. In this sense, the function of present-day legal historians could be much more important than one might imagine; and it certainly does not consist – as some still insistently believe – in attempting to continue, in an ever more tired manner, a tradition that has now ceased forever. Rather it is to bring to light a part of the past that we had buried without knowing it: to understand it and finally – freer, because to understand is to change – to be able to look ahead.

3. Singularity and impersonality

In the twentieth century, each time some scholar of Roman law tried to deal with the ancient jurists in order to more carefully trace their characters and profiles, it was sooner or later objected that, although the effort was commendable, the history was impossible to recount. According to widespread opinion, two particular obstacles would have hindered it.

The first concerned the state of the texts. It was said that of the works of the ancient jurists, with the sole exception of Gaius, there remained only fragments – those making up the plan of the Digesta. Moreover, they were strongly altered by the intervention of the Justinian compilers, when not (according to more recent hypotheses, culminating in the reconstruction by Franz Wieacker)⁴ already modified from the originals by the editors who had transcribed them after their first publication (especially by those who had worked between the second part of the third century and the first decades of the fourth).

⁴Textstufen klassischer Juristen (Göttingen 1960, reprint 1975).

Today this barrier seems anything but insurmountable. The use of a less destructive philology, less conditioned by classicist prejudices, has left us much more confident about the good preservation of the writings of Roman jurisprudence. After an unprejudiced examination, the great majority of what were thought to be Justinian, or even late antique (‘post-classical’, as was preferred at the time), interpolations and falsifications turned out to be non-existent, suspected merely on the grounds of very weak evidence, or of a priori petitio principii, based on ignorance of the writing styles of the jurists and the richness of their conceptual worlds. Not to mention that the more we carefully study the late antique legal culture, as we have begun to do for some time now, the more we discover that it had other objectives, perspectives and expressive means, that it was not a plan for the systematic rewriting of the works of the old masters.

As for the fragmentary condition of the texts, this is certainly an incontrovertible fact. Yet, we are now able to reconstruct even very complex intellectual histories starting from collections of documents far more incomplete than the ones we have for Roman legal thought: this is what occurs in the history of science, of philosophy, of religion, of material culture. It is sufficient to pose the right questions, using the appropriate tools.

The second objection raised against the study of the thinking of Roman jurists is much more insidious. Indeed, it leads us directly to the heart of the most important problem posed by this type of historiography.

According to a belief that was widely held in twentieth-century Roman studies, and which we can trace back to an intuition by Lorenzo Valla, and later to a line of studies from Savigny to Schulz,⁵ the Roman jurists were intrinsically indistinguishable from one another; in other words, they were all ‘fungible people’, according to an expression by Savigny himself⁶ which then remained exemplary of this position. The specificity of their intellectual work, let us say also the peculiarity of their science and its manner of developing in time, would have meant that those figures lost all definiteness. Their voices would overlap and merge into a single sound, in which it would be impossible to distinguish the contribution of each one: the choir would be their unique destiny.

⁵L. Valla: in the preface to the third book of Elegantiae, in E. Garin (ed.), Prosatori latini del Quattrocento (Milano-Napoli 1952) 607-609; F.C. Savigny, Vom Beruf unserer Zeit für Gesetzgebung und Rechtswissenschaft (Heidelberg 1814, 18403, reprint Hildesheim 1967) now also in H. Hattenhauer (ed.), Thibaut und Savigny. Ihre programmatischen Schriften (München 1973) 95 ff., an...

Table of contents

• Cover Page
• Half-Title Page
• Title Page
• Copyright Page
• Table of Contents
• Abbreviations
• Contributors
• Preface
• Part I Methods and Paths
• Part II Stories of Jurists and of Jurisprudence
• Index
• Names (ancient and modern)