Classical (jurisprudence)

from Wikipedia, the free encyclopedia

In legal history, classical refers to an epoch of Roman jurisprudence that began around the beginning of the principate under Augustus in the second half of the 1st century BC. Until the end of the Severan dynasty with Emperor Severus Alexander in 235 AD. It is generally regarded as the heyday of the Roman science of law and is characterized by a pronounced literary productivity of various important jurists, which continues into modern private law .

Influence by the principle

In contrast to the pre-classical period , in which Roman law was developed primarily through elected jurisdiction magistrates such as the praetor , through people's laws (so-called leges ) and plebiscites , the emperor also increasingly had an influence on legal development from the beginning of the principle . Augustus already introduced an imperial special judicial system for civil proceedings, which came in addition to the form processes before the jurisdiction magistrates. The old legal sources were increasingly replaced by new ones, such as general ordinances and decrees (so-called constitutiones ) and concrete rescripts . The decisions of the Senate , directed by the emperor , also gained in importance.

Individual lawyers had already issued non-binding legal opinions (so-called responsae ) in proceedings . It is said of Augustus that he

" Ut maior iuris auctoritas haberetur, constituit, ut et auctoritate eius responderent "

"In order to raise the prestige of law, determined that they [the legal scholars] should answer legal questions by virtue of its authority."

The so-called respondent lawyers equipped with this ius respondendi were therefore able to issue legal opinions with approximately the force of law . The concrete meaning of this measure has not yet been finally clarified. In older literature in particular, it was seen primarily as a privilege of particularly outstanding lawyers. In the more recent specialist literature, however, the position is increasingly being taken that Augustus bestowed the ius respondendi on selected lawyers and thus intervened in the administration of justice . As a result, the important legal class was formed almost exclusively by senators until the end of the 2nd century AD , because the model of Augustus was adopted by his successors.

From the beginning of the principate , almost all senatorial lawyers, at the latest since Emperor Hadrian, also most of the equestrian lawyers, also occupied leading positions in the Roman administrative apparatus . Even his predecessor, Trajan , used lawyers as advisors. From this, in the second century, a committee of jurists of the equestrian order called consilium principis was formed , which took over the processing of ongoing proceedings of the imperial court and was finally institutionalized under Antoninus Pius .


The functional structuring formed the basis on which Roman jurisprudence flourished.

Legal literature

It expresses itself above all in a particularly rich literary production by classical lawyers, of which around 5% is still preserved today. The main focus is on extensive collections of reports (so-called responsa and digesta ) by the respondent lawyers, which are characterized by a distinctive case history . Legal training was used for introductory works called institutiones and collections of particularly difficult, extensively discussed cases ( disputationes and quaestiones ). In addition, there are rather brief and extremely abstract collections of rules ( regulae ), decisions ( sententiae ) and definitions ( definitions ). This contrasts with the broad commentary on the libri tres iuris civilis by Masurius Sabinus and on the edictum perpetuum . Monographs , however, remained rather the exception .

The later compilation of Roman law in the Corpus Iuris Civilis under Emperor Justinian I is based primarily on these classical writings. Her excerpts were therefore studied in the course of the reception of Roman law in Europe and passed down into modern times . There they became the basis of modern civil law codifications , in particular the German Civil Code .

Working method and influences

Apart from the institutiones , the classical legal literature hardly contains any theoretical considerations of law. Rather, it is characterized by a strong focus on legal practice, from which the problems dealt with there originate and which form the target group for the works. In this respect, classical jurisprudence is characterized above all by its practical approaches to solutions, which are derived from a juridical and methodical point of view and without any considerations of equity . This was mainly done by interpreting the praetoric complaint ( actio ), which is why classic legal thinking is also referred to as action law thinking .

External influences played only a subordinate role in the development of classical jurisprudence. Especially Greek influences since the pre-classical period continued to have an effect in the classical period. The influential jurists of the first century came primarily from urban Roman or at least Italian noble families . This changed in the second and third centuries, but the writings of jurists from the provinces also differ linguistically, but hardly in terms of content, from those of urban Roman jurists.

The legal historian Fritz Schulz found that the style of expression used by classical lawyers was that they "tried to use a beautiful, genuine Roman language, serious, simple, correct and brief". Max Kaser also found that the language testifies to factually oriented pragmatism, which, moreover, grasps the Roman national character very concisely.


The classical epoch of Roman law is divided into three sub-epochs, primarily due to the external characteristics of legal history.

Early classic

The early classical period includes the reigns of the emperors Augustus to Domitian , i.e. the period from 27 BC. BC to AD 96 (1st century AD). During this period, apart from the ius respondendi , the importance of lawyers was based primarily on their origins and their personal relationship with the princeps. In contrast to later epochs, lawyers do not appear frequently in public administration offices. They seemed more private.

Marcus Antistius Labeo is one of the earliest jurists of this era , who openly rebelled against the new form of government of the principate. He rivaled above all with Gaius Ateius Capito , in contrast to which numerous literary works have come down to us. According to tradition, the two Roman schools of law, the Sabinians and Proculians , are said to have emerged from this rivalry . They should not be understood as theoretical-political antipodes, because they were not institutions according to today's understanding, but typified ancient followers who differed on individual legal issues. According to the current state of research, they should have emerged later, not before the reign of Emperor Tiberius . For this, their designation as Sabinians after Massurius Sabinus (sometimes also Cassiani after Gaius Cassius Longinus ) or as Proculians after Sempronius Proculus , who in turn was a pupil of Marcus Cocceius Nerva , who worked until the time of Emperor Nero and Vespasian, is given . In contrast to the Greek schools of philosophy , little is known about their respective views in the Roman schools of law. Occasionally, the Proculians are said to have a stronger orientation towards systematic contexts and conceptual logic, while the Sabinians, on the other hand, are said to be oriented towards tradition and factual logic. Within these law schools there was probably also legal instruction , about which almost nothing is known. However, internships with experienced lawyers are generally regarded as a typical training model.

Sabinus had the greatest impact of all early classical jurists. His tres libri iuris civilis still served the late classical jurists as the textual basis for their comments on civil law.

High class

The high classic includes the reigns of the emperors Nerva to Marcus Aurelius , i.e. the period from 96 to 180 AD (2nd century AD). Characteristic for this epoch is the advancement of lawyers into offices of the Reich administration and the turning away from doctrinal / theoretical considerations towards a strong practical orientation. This also leads to a resolution of the school dispute that was dominant in the early classical period. That is why many responses, legal information in letters, quaestion literature and collections of decisions originate from this period.

The lawyers Titius Aristo and Lucius Iavolenus Priscus mark the transition to the high class . While the former worked mainly as a legal expert and lawyer , Iavolenus went through an official career. Even Lucius Neratius Priscus belongs to this period of transition. His works are already clearly based on individual cases. The jurists who were active during the reign of Hadrian , above all Publius Salvius Iulianus and Publius Iuventius Celsus, are considered the highlight of Roman jurisprudence . The former came from Hadrumetum and worked in the imperial administration from Hadrian to Marc Aurel, including as governor of Germania Inferior in Cologne . He was a pupil of Iavolenus and had already been entrusted by Hadrian with the final editing of the praetoric edicts for the edictum perpetuum . His pupils included Sextus Caecilius Africanus and Lucius Volusius Maecianus . The late representatives of the high classical period include Ulpius Marcellus , Quintus Cervidius Scaevola and Publius Taruttienus Paternus , who worked in the consilium of Marc Aurel.

Around the middle of the second century, a new current of Roman jurisprudence appeared, the most important representatives of which were Sextus Pomponius and Gaius . It marks an effort to order the legal literature and the writing of simple overall representations. Little is known about either. For posterity, on the other hand, it is of great importance that Gaius preserved an almost completely preserved book that remained important outside the Byzantine codifications .

Late Classic

The late classical period corresponds to the reign of Emperor Commodus and the Severan imperial dynasty , i.e. it ranges from 180 to 235 AD (2nd / 3rd century AD). Influential jurists almost without exception belonged to the knighthood and usually went through the cursus honorum , which culminated in the office of praefectus praetorio . They commanded the life guards and exercised imperial jurisdiction in top positions. The lawyer Papinian , who was executed after Emperor Caracalla's disapproval of the murder of Geta , which was stylized as a martyr's death , gained special significance . His literary work was still clearly in the tradition of high classics. This changed with his assessors Ulpian and Paulus , who mainly devoted themselves to the collection and simple presentation of the Roman legal system and thus tied more to the work of Pomponius and Gaius. Her works are particularly extensive and form a substantial part of Emperor Justinian's digests . With Modestin , Ulpian had another important student who marked the end of the late classical period.

This was followed by the post-classical period (sometimes referred to as epiclassical), from which hardly any authors are known. During this time, a number of pseudepigraphs emerged under the names of late classical lawyers. It was not until the fifth century that classical law was revived, mainly supported by the Beirut school of law .


Individual evidence

  1. a b c d e f g Ulrich Manthe : History of Roman law. 4th edition, Munich 2011, pp. 88–92.
  2. ^ A b Max Kaser , Rolf Knütel : Roman private law. 19th edition, Munich 2008, § 1 II b.
  3. a b c d e f g h i j k l m Wolfgang Kunkel , Martin Schermaier : Römische Rechtsgeschichte. 14th edition, Cologne 2005, pp. 140–149.
  4. Digest 1,2,2,49.
  5. Ulrich Manthe : History of Roman law. 4th edition, Munich 2011, p. 111.
  6. Ulrich Manthe : History of Roman law. 4th edition, Munich 2011, p. 122.
  7. ^ Fritz Schulz : History of Roman jurisprudence . Weimar 1961. p. 115.
  8. Max Kaser : Roman legal sources and applied legal method. In: Research on Roman Law , Vol. 36, Böhlau, Vienna / Cologne / Graz 1986, ISBN 3-205-05001-0 , p. 127.
  9. a b c d e f g h i j k l m n o p Wolfgang Kunkel , Martin Schermaier : Römische Rechtsgeschichte. 14th edition, Cologne 2005, pp. 150–162.
  10. Uwe Wesel : History of the law: From the early forms to the present. CH Beck, Munich 2001, ISBN 978-3-406-54716-4 . Pp. 234-238 (236 f.).
  11. ↑ In 1816 the ancient historian Barthold Georg Niebuhr rediscovered the Gaian institutions in a manuscript in the monastery library in Verona.
  12. Compare in this respect, Detlef Liebs : The Jurisprudence in Late Antique Italy (260–640 AD) (= Freiburg legal-historical treatises, new series, vol. 8). Duncker & Humblot, Berlin 1987, ISBN 3-428-06157-8 . Pp. 283-287.