law, Roman, sociology of

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During the later republic and early empire, Roman jurists developed law, esp. private law, on the basis of what they called the ‘art’ of law‐finding: they subjected existing legal rules and institutions to intense and sustained scrutiny, with the aim of isolating the basic principles that controlled the rules, and then applying these principles in the creation of new law. The activity of the Roman jurists opens a new chapter in the history of law. The sociological task is to evaluate how this new form of thinking contributed to Rome's broader social development.

The jurists' legal authority rested primarily on their accumulated knowledge of law and experience in manipulating it. They were independent legal experts who monopolized the study of law, but were available for consultation esp. by litigants and lay judges. However, during the empire the small corps of jurists (probably never more than ten to 20 at any time) was gradually transformed into a legal élite presiding over a much larger legal profession. This is esp. true after ad 150, when most jurists were absorbed into the emperor's central bureaucracy.

At first the jurists transmitted their methods and results from generation to generation internally, through writing and informal teaching. Formal elementary legal education is not attested before the mid‐2nd cent. ad, as law became a more established and accessible profession.

The jurists' extensive writings were central to the continuity of their law‐finding. Their writings were mainly problem‐oriented; the jurists did not decide actual cases, but instead developed law through exploring hypothetical situations. Thus the jurists preserved a distance between themselves and the Roman judicial system; questions of law were solved abstractly, as general propositions not closely tied to the disputed facts of particular cases. The jurists resembled modern appellate judges.

Socially, the jurists belonged to the empire's élite, usually by birth, though some jurists seem to have risen by their legal talent. Their work is closely associated with the capital city, and esp. with the operation of its judicial system, which was, to be sure, widely imitated throughout the empire. Although the jurists differed somewhat in outlook, their social homogeneity is obvious: rich and powerful men drawn increasingly from across the empire, but not usually from the topmost ranks of the senatorial aristocracy.

Their social homogeneity doubtless contributes to a tendency to concentrate on legal problems affecting mainly the upper strata of Roman society; such problems also arose more often at trials in Rome than in the provinces. Although the jurists evaluate these problems even‐handedly, both the framework of their analysis and their understanding of social reality are constricted. For example, they say almost nothing about ordinary wage labour, tenement housing, or peasant agriculture, but much about the management of large estates, succession to the rich, and commerce in staples and luxury items.

The narrowness of the jurists' vision raises difficult issues about the social reach of Roman private law: is it yet another manifestation of a highly stratified society, in which a few men control not only all common social goods, but also the apparatus of justice? None the less, the jurists display considerable sensitivity to the conflicting interests and demands of diverse social groups. Where juristic knowledge of social activity can be closely examined, it is accurate and deep, though casually acquired. The jurists develop Roman law incrementally, decision by decision, often after fierce debate among themselves. This process lent itself to the tacit accommodation of social interests. As the jurists became more confident in their methods, they increasingly justified decisions through reference to external social values such as fairness and practicality.


Subjects: Classical Studies.

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