Download Chapter 6 LAW IN ROMAN PHILOSOPHY

Chapter 6
CHAPTER 6 - ROMAN PHILOSOPHY
133
LAW IN ROMAN PHILOSOPHY
by Brad Inwood and Fred D. Miller, Jr.1
6.1. Historical Overview of Roman Law and Legal Thought
Legal philosophy in late antiquity must be understood in relation to Roman law,
a system which continued to evolve from the traditional founding of Rome (753
B.C.) until the fall of the Eastern Roman (or Byzantine) Empire (A.D. 1453).
Rome was at first ruled by kings about whom little is certain. A set of laws
attributed to them (leges regiae) and compiled by Papirius a priest (pontifex)
were probably statements of customary and religious norms, concerning marriage, family relations, funeral rites, and so forth (Johnson, Coleman-Norton,
and Bourne 1961, 3–6). The Roman Republic (509–27 B.C.) was initially threatened by internecine conflict between the patrician and plebeian orders. This
was resolved in part through the Twelve Tables (451–450 B.C.), a written public
code composed by officials called decemviri, which could not be arbitrarily
changed by patrician magistrates. This collection of statutes, which the Roman
historian Livy called “the fount of all law, public and private” (Roman History
3.34.6, trans. Jones), was lost, although many quotations, paraphrases, and descriptions were preserved by later Roman authors (Johnson, Coleman-Norton,
and Bourne 1961, 9–18; Warmington 1967; see also A. Watson 1975).
The republican constitution had three elements: the magistrates, the senate, and the assemblies. The important magistrates (most holding office for a
year) included the two consuls, praetors (both of whom held a coercive power
termed imperium, which entailed a judicial capacity), aediles (whose general
concern was maintenance of public order through adherence to regulations),
quaestors (whose responsibilities were largely financial), and censors (in
charge of census and supervision of morals). In emergencies, usually on the
advice of the senate, a magistrate with imperium could nominate a dictator
who, if approved by the senate, would hold supreme imperium for at most six
months. The senate (literally “council of elders”) had a purely advisory role
based on auctoritatas, a morally binding authority, but it eventually became
the dominant political body. Ideally, it had 300 members (later 600) who were
mostly former magistrates and had lifelong tenure. Among the various assem1
Sections 6.2–5 were written by Brad Inwood, and Sections 6.1 and 6.6 by Fred Miller.
Section 6.1 benefited from suggestions by Thomas Banchich and Richard Epstein. Portions of
Inwood’s discussion appear in an expanded and more fully developed form in Inwood 2003.
Sections 6.4 and 6.5 owe a great deal to the assistance of Fred Miller. All translations are by the
authors unless otherwise indicated.
134
TREATISE, 6 - FROM THE ANCIENT GREEKS TO THE SCHOLASTICS
blies, the oldest was the curiate (comitia curiata), composed of thirty curiae,
which ratified the Twelve Tables but gradually lost importance. The most
powerful assembly was the centuriate (comitia centuriata), organized into
classes based on wealth as an index to military capacity, which elected magistrates such as the consuls with supreme power (imperium) and had the right
to declare war or ratify treaties. The tribal assembly (comitia tributa) elected
lower magistrates and adjudicated some non-capital cases. Finally, to help resolve their conflict with the patricians, the plebeians formed their own assembly (concilium plebis), presided over by ten tribunes, which gradually became
an important legislative body. The tribunes acquired increasing power, including the right to veto the proposals of magistrates and fellow tribunes. These
assemblies underwent changes. For example, the patrician and plebeian membership of the tribal assembly gradually melded with the purely plebeian
membership of the plebeian assembly, so that the tribal assembly became the
dominant legislative and electoral body in republican Rome.
Every adult male citizen was a member of the curiate, centuriate, and
tribal assemblies, and every plebeian (the vast majority of citizens) had a right
to membership in the plebeian assembly. Although all citizens could vote,
their votes were tallied in groups, whether curia, tribe, or century (the last
weighted in favor of wealthy citizens who could afford to arm themselves
more fully). The Romans recognized different sources for law (ius, pl. iura). In
the Republic, a measure approved by an assembly was called a statute (lex, pl.
leges). The acts of the plebeian assembly (called plebiscita) had the force of
law binding on all citizens after the enactment of the Hortensian statute of
287 B.C. An assembly’s powers were limited, because it could not initiate legislation. It could only approve or reject a measure placed before it by a magistrate, which had been previously discussed and approved by the senate. These
resolutions could be vetoed by a tribune or a magistrate with imperium before
the assembly had the opportunity to act on them. The edicts proclaimed by
magistrates were also regarded as laws. In some instances, these edicts served
to confirm resolutions of the senate (senatus consulta).2
Jurists (iuris consulti or prudentes) also played an important role in the development of Roman law (see Lenel 1889; Frier 1985; Bauman 1971; and
Johnston 2000). Originally priests but later normally former magistrates, they
were legal experts who advised the praetor as members of his council. Some
jurists wrote widely circulated manuals, including Quintus Mucius Scaevola
(consul in 95 B.C. and author of an influential treatise on civil law), his pupil
Aquilius Gallus (praetor in 66 B.C.), Servius Sulpicius Rufus (consul in 51
B.C.), and Alfenus Varus (interim consul 39 B.C.). There was also a school
(secta or schola) in the senate that discussed legal issues. The jurists wrote an2
Johnson, Coleman-Norton, and Bourne 1961 and Crawford 1996 are collections of laws,
edicts, rescripts, and other legal documents. See A. Watson 1974.
CHAPTER 6 - ROMAN PHILOSOPHY
135
swers to legal questions (responsa prudentium) concerning the interpretation
of laws and official edicts. They also assisted in the drafting of legal documents such as contracts and wills, and they advised judges and disputants in
lawsuits. Their opinions were embodied in court decisions which served as
precedents for later decisions. The jurists influenced the interpretation of the
unwritten (non scriptum) law or custom (mos, pl. mores), which, like the
Greeks, the Romans distinguished from written (scriptum) law.
The historian Polybius (ca. 200–ca. 118 B.C.) viewed the Roman constitution as the true exemplar of the “mixed constitution,” combining monarchical, aristocratic, and democratic elements:
[I]t was impossible even for a native to pronounce with certainty whether the whole system was
aristocratic, democratic, or monarchical. This was indeed only natural. For if one fixed one’s
eyes on the power of the consuls, the constitution seemed completely monarchical and royal; if
on that of the senate it seemed again to be aristocratic; and when one looked at the power of
the masses, it seemed clearly to be a democracy. (Polybius, Histories VI.11.12, trans. Paton)
Within the Roman Republic, as described by Polybius, each branch has distinct powers: The consuls are the supreme magistrates, especially in matters of
war; and they summon assemblies, introduce measures, and preside over the
execution of decrees. The senate controls public finance, investigates public
crimes such as treason, conspiracy, and assassination, and is in charge of embassies to foreign countries. The popular assemblies have sole constitutional
authority (kurios) over the imposition of honors and punishments and to bestow offices. Also, writes Polybius, “the people have the power [kurian] of approving or rejecting laws [nomôn], and what is most important of all, they deliberate on the question of war and peace” (Histories VI.14.10, trans. Paton).
The three parts of the constitution are each able, if they wish, to counteract
and cooperate with the others in various ways. For example, although the people are obliged to be submissive and deferential to the senate (VI.17.1), the
assemblies can curb the traditional authority (exousia) of the senate and the
tribunes can prevent it from acting (VI.16.3–4). Polybius admires the Roman
system involving separated powers with checks and balances: “Such being the
power that each part has of hampering the others or cooperating with them,
their union is adequate to all emergencies, so that it is impossible to find a better political system than this” (Histories VI.18.1, trans. Paton).
Polybius was the friend and teacher of Scipio Aemilianus, a powerful politician and the general who destroyed Carthage. Scipio shared Polybius’ ideal
of the Roman balanced constitution, but feared its eventual decline. This ideal
was increasingly jeopardized by the division between the rich and the poor,
which was reflected in disputes within the Roman ruling class itself between
the so-called populares (who tended to rely on tribunes and the tribal and plebeian assemblies) and the so-called optimates (who tended to rely on the senate and magistracies). The political order was shaken by a series of crises, in-
136
TREATISE, 6 - FROM THE ANCIENT GREEKS TO THE SCHOLASTICS
cluding the attempt of the tribune Tiberius Sempronius Gracchus to institute
land reform through the plebeian assembly and bypass the senate, leading to
his assassination (133 B.C.). His reforms were continued by his brother, Gaius
Sempronius Gracchus (d. 121 B.C.), one of whose laws required that juries be
selected from the equites (cavalry). Although this was meant as a populist
measure, it had the unintended consequence of empowering the publicani (tax
collectors) as an interest group and exacerbating political instability. L. Cornelius Sulla used an army to have himself appointed dictator with unspecified
tenure (81–79 B.C.). A succession of violent conflicts among powerful holders
of imperium, including Marius, Pompey, Julius Caesar, Marc Antony, and others finally brought down the Republic.
Marcus Tullius Cicero (106–43 B.C.) was an influential figure during this
tumultuous period. Scion of an affluent but not politically established family,
he studied law under the jurist Mucius Scaevola and gained personal influence through his rhetorical skill and successes in the law courts. A supporter
of optimate tactics, Cicero defended the Roman Republic as a mixed constitution without parallel. He studied philosophy in Athens, consorted with Greek
intellectuals in Rome, and popularized Greek philosophy among his compatriots. Late in life, forced to withdraw from politics, he wrote dialogues dealing with legal philosophy, including On Duties, On the Commonwealth (with
Scipio Aemelianus as an interlocutor), and On the Laws, the latter two
modeled after Plato’s dialogues. He criticized the traditional jurists for concentrating on particular laws, for example, “about water running off roofs or
about shared walls,” and neglecting questions about the source of law and justice (Leg. I.14). (His views are discussed in Section 6.2 below.) After the assassination of Julius Caesar (44 B.C.), Cicero reentered politics only to be killed
on order of his nemesis Marc Antony, who was in turn defeated by Caesar’s
nephew, Octavian, who, as Caesar Augustus, gained constitutional control of
the state in 27 B.C. Despite his claim that as “first man” (princeps) he had restored the republic, Augustus was in fact the first Roman emperor.
The history of the empire has two main periods: the principate (27 B.C.–
A.D. 284) and dominate (A.D. 284–585).3 During the early principate, legal
authority shifted increasingly to the emperor to whom the people had committed its “entire authority and power” (Justinian, Dig. I.4.1). Legislation by
assembly gave way to imperial enactment (constitutio), and the last statute
(lex) was passed under the emperor Nerva (ruled 96–98). At first the emperor
relied on the senate to approve his proposals, but this procedure became increasingly perfunctory and finally ceased. Nevertheless, there was considerable interest in the law during this period. During the reign of Augustus there
arose two contending legal schools (intellectual movements, not educational
institutions) in the senate: the Proculians and the Sabinians. Since the former
3
See Buckland and Stein 1975 and Schulz 1967 for law in the Roman empire.
CHAPTER 6 - ROMAN PHILOSOPHY
137
school (founded by Labeo, a critic of Augustus) challenged the more traditional view of the latter (under Capito), there ensued vigorous debate over jurisprudence. Augustus granted certain jurists the right to give answers with
the force of law (ius respondendi), although this practice died out during the
second century A.D. The emperors increasingly relied on edicts, legal decisions, and rescripts (written answers to queries by officials). The power of the
jurists in the senate waned under Emperor Hadrian (117–138), but one of his
rescripts did establish that the concurrent written opinion of privileged jurists
had the force of law, although a judge could use his discretion if the jurists’
opinions disagreed.
During the first two centuries of the Roman Empire, Stoic philosophers
made important contributions to legal thought. These included, most notably,
the statesman and dramatist Seneca (1–65), the freed slave Epictetus (60–
140), and the emperor Marcus Aurelius (b. 121, ruled 161–180). (They are
discussed in Sections 6.3–5 of this chapter.)
Throughout the course of the Roman Empire, there continued, however,
to be considerable scholarly interest in jurisprudence (see Honoré 1994).4
Many ancient treatises on this subject have unfortunately perished, although
numerous excerpts were preserved in Justinian’s Digest (see Chapter 10, Section 10.1, of this volume). In the first century A.D., Masurius Sabinus published Three Books on Civil Law, a collection of opinions of jurists. Like other
scholars, he distinguished civil law (ius civile), which applied only to Roman
citizens, from the law of nations (ius gentium), that is, Roman law concerning
cases involving foreigners and Romans (as in international commerce). He
also distinguished different kinds of civil law—law of succession, law of persons, law of obligations, and law of things—an approach followed by later
writers. Many collections of juridical opinions circulated during the first three
centuries A.D., including the Epistulae of Proculus (mid-first century) and of
Neratius Priscus (d. after 133), the Digesta of Julian (second century), the
Digesta and other works of Celsus (second century), the Enchiridion of Pomponius (second century), the Quaestiones and Responsa of the highly revered
Papinian (d. 212), the Institutes of Marcian (early-third century), and the
many works of Paul (d. after 235), fragments of which were later collected in
the extant Sententiae or Opinions. Of special interest to modern legal scholars
is the Institutes of Gaius (ca. 160), of which a manuscript was discovered in
1816.5 The only work of a jurist to survive substantially intact, it covers the
law of persons, property rights and inheritance, and legal actions. Ulpian (d.
228), perhaps the most influential of the jurists, published a Digest and numerous other works with many citations of his predecessors. The extant
4
Robinson 1997, chap. 3, gives a valuable overview of critical editions, translations, and
studies of the extant texts.
5
Gordon and Robinson 1988 is a text and translation. Honoré 1962 is a study of Gaius.
138
TREATISE, 6 - FROM THE ANCIENT GREEKS TO THE SCHOLASTICS
Epitome was a later compilation of excerpts from his writings.6 The last of the
great jurists was Herrenius Modestinus (third century). The Vatican Fragments (mid-fourth century) is a valuable extant collection of extracts from
Papinian, Paul, and Ulpian, as well as later rescripts and opinions. Also surviving is the Mosicarum et Romanarum Legum Collatio (composed between
ca. 390–438), which compares Roman law with Mosaic law, quoting legal experts (on Mosaic law see Chapter 7, Section 7.1, of this volume).
These authorities tended to be scholars and editors rather than original legal thinkers. But their works were widely read and often cited in legal decisions. Some of them (e.g., Proculus, Neratius Priscus, Celsus) favored the
more rigorously principled Proculian viewpoint, and others (e.g., Masurius
Sabinus, Cassius Longinus, Julian, Gaius) favored the more traditional and
pragmatic Sabinian position. Their differences in legal philosophy resulted in
disagreements on some particular issues, for example, on whether the price of
something must be pecuniary (Proculians) or can consist in other goods as in
barter (Sabinians) (see Gaius, Inst. III.140–1). Some of them, especially
Gaius, Paul, and Ulpian, were strongly influenced by the discussions of nature
and law in Aristotle and the Stoics, although they understood these concepts
differently. For example, Gaius generally follows Aristotle’s treatment of law
and justice, including his distinction between the natural and the legal. Gaius
distinguishes civil law, “which each people makes for itself” and is “peculiar
to itself,” from the law of nations (ius gentium), which is common to all peoples: “The law which natural reason makes for all mankind is applied in the
same way everywhere.” Gaius here suggests that commonality of legal practice
is evidence of its reasonableness. Differences of civil law reflect local conventions that were in effect different ways of implementing general principles
(e.g., that promises are binding). Gaius expresses a Roman legal viewpoint
that supported toleration of different local legal systems. According to Gaius,
natural reason also reveals natural law (as in the case of the right of first acquisition), so that the law of nations is, in effect, equivalent to natural law
(Inst. I.1, II.65–6; cf. Justinian, Dig. I.1.9; see Honoré 1962, chap. 6). Ulpian,
in contrast, sharply distinguishes these concepts:
Private law is tripartite, being derived from principles of natural law, law of nations, or civil
law. Natural law is that which nature has taught to all animals; for it is not a law specific to
mankind but is common to all animals […]. Out of this comes the union of man and woman
which we call marriage, and the procreation of children, and their rearing […]. The law of nations is that which all human beings observe. That it is not co-extensive with natural law can be
grasped easily, since this latter is common to all animals whereas the law of nations is common
only to human beings among themselves. (Ulpian, Inst. I ap. Justinian Dig. I.1.1)
Using this distinction, Ulpian reasons, for example, that slavery and consequently manumission belong to the law of nations, “since, of course, everyone
6
Translated by Muirhead 1880.
CHAPTER 6 - ROMAN PHILOSOPHY
139
would be born free by the natural law” (Ulpian, Inst. I ap. Justinian Dig. I.1.4;
cf. 3–4). Ulpian agrees here with other jurists such as Tryphoninus (Disputations VII ap. Justinian Dig. XII.6.64) and Florentinus (Institutes XII ap. Justinian Dig. I.5.4) (see Carlyle 1936, vol. 1: 39). Unfortunately, the crucial distinction between natural law and the law of nations is not further clarified in
the surviving texts of the jurists. Nor do they explain their use of the term
“natural,” which seems to be used for what they regard as normal or reasonable (Levy 1949, 7; Kelly 1992, 57–63).
Concerning the concept of law, the jurists drew on Greek orators and philosophers in an eclectic way. Marcian quotes Demosthenes and Chrysippus.
Drawing on Demosthenes, he mentions three reasons why everyone ought to
obey law: “It is a discovery and a gift of god”; “it is a resolution of wise men, a
correction of misdeeds both voluntary and involuntary”; and “it is the common
agreement [sunthêkê] of the polis according to whose terms all who live in the
polis ought to live.” Papinian echoes this view, when he defines a statute (lex) as
a “resolution of wise men” and “a communal covenant of the state” (Definitions
I ap. Justinian Dig. I.3.1). Marcian also appeals to Chrysippus, “a philosopher of
supreme Stoic wisdom”: “Law is king over all divine and human affairs. It ought
to be the controller, ruler, and guide of good and bad men alike, and in this way
to be a standard of justice and injustice and, for beings political, by nature a
prescription of what ought to be done and a proscription of what ought not to
be done” (Marcian, Institutes ap. Justinian Dig. I.3.2, trans. Watson). Ulpian
expresses a similar view, closely connecting law (ius) and justice (iustitia): Legal
wisdom (iuris prudentia) “is an awareness of God’s and men’s affairs, knowledge
of justice and injustice” (Rules I ap. Justinian Dig. I.1.10). Ulpian also remarks,
somewhat obscurely, that civil law neither follows wholly nor diverges entirely
from natural law or the law of nations, and that it is made by adding to or taking
away from the common law (Inst. I ap. Justinian Dig. I.1.6). The surviving writings of the jurists have little else to say concerning the nature of law.
During the dominate (starting A.D. 284) the emperors wielded absolute
political power. The later empire came to resemble an oriental despotism with
the emperor as a god or, after the triumph of Christianity, God’s representative on earth. Deprived of independent authority, the jurists devolved into
mere advisors to the emperor who possessed the ultimate legislative authority.
Nonetheless, the emperors and citizens alike recognized the lack of, and
pressing need for, a comprehensive and consistent system of laws that would
apply throughout the empire. At the beginning of this period, the Gregorian
Code (ca. 291) and the Hermogenian Code (ca. 295), named after two officials of the Emperor Diocletian (reigned 284–305), undertook to systematize
the rescripts of emperors.7 In an effort to resolve the many inconsistencies in
7
The word “code” translates codex, which indicates that the works were published as
books with pages rather than as rolls.
http://www.springer.com/978-1-4020-4950-7