Posted by: ken98 | August 26, 2011

Lawyers, Lawyers Everywhere and Not a Law To Uphold

Day 712 – Ken here (F)(8-26-2011)
(DEF II, v.4, Ch.44, pp.790-800)(pages read: 1850)

Again, a very dry day of Roman Law – it gets more interesting a couple of days from now when we actually review specific sections of the law. But…today is a day of personalities and characters – the PEOPLE who defined/refined/shaped the LAW.

This, by the way, is a Gibbon day of lawyers – Roman lawyers that is.

Of the many things that made a Roman certifiably Roman was knowledge, practice, and unadulterated adulation of and for THE LAW. Having law was what made a miscellaneous group of people into citizens of a city and what made citizens civilized (i.e. citi-fied). Law was what the Pax Romana was all about, and was one of the chief differences (if you questioned a Roman) between barbarians and civilized men – civilized men acknowledged the rule of LAW.

Remember, as always, this is ROMAN LAW through the eyes of a late Eighteenth-Century English Gentleman (Gibbon) – and additionally refracted through the cultural lens of an early Twenty-First Century Gentleman (and I use that term loosely – me). So, quite a lot of focussing and bending going on here with the facts – but THEN AGAIN, THAT IS ALWAYS THE CASE WITH HISTORY – a good thing to always keep in mind as you read History (incl this blog) – “What angles are they working?” – anyways…


The Story
History of Lawyers – First Period (450 BCE – 100 BCE)
  • Gibbon gives a paragraph of exceptionally Enlightenment-driven reasoning on the rise of lawyers – not unlike Montesquieue’s “natural” evolution of human society (ex. his Spirit of the Laws)- a rational explanation for the evolution of law – this is Gibbon’s rational explanation for the evolution of lawyers – i.e. lawyers naturally resulted as the law became too 1)antiquated, 2)complex
  • Originally, lawyers were jurisconsults – men who knew the law (and the ancient Latin it was written in) and were consulted for their special knowledge and study of the law – Gibbon portrays them almost like English Gentry – country gentlemen who “dabbled” but were not “employed” monetarily in the law

    History of Lawyers – 3 Periods of Lawyers
  • 1) Golden Age of Individual Study (450 BCE – 100 BCE), 2) Age of Scholars (100 BCE – 230 CE), 3) Age of Emperor’s Codes (230 CE – 560 CE)
  • History of Lawyers – 1) Golden Age (450 BCE – 100 BCE)
  • Amateur, Family-based knowledge of law – certain families specialized in study of law – not for $$$ but for leisure time
  • A pure, almost religious veneration for the law – the Golden Age that the empire always looked back to
  • >History of Lawyers – 2) Age of Scholars and Scholarship (100 BCE – 230 CE)
  • Age of “professional” lawyers – also Age of Private Compilations and the Age of Famous Lawyers – notably the Big 3
  • 1)Aelius Paetus (Catus – the cunning) (200 BCE)
  • 2) Mucius Scaevola (130 BCE)
  • 3) Servius Sulpicius (100 BCE)
  • copious writers of books – most left 100’s of volumes of commentary on the laws – as the laws at this time were a mish-mash of 500 years of ancient and modern legislation, from when Rome was a village to the time the city was the master of the Mediterranean

    >History of Lawyers – 3) Age of Imperial Codes (230 CE – 560 CE)
  • Constantinople and Beirut are now the centers of study of the law – in LATIN even in Greek East
  • Gregorianus Code (collection of emperor’s rescripts 130-290)
  • Diocletian’s Hermogenian Code – laws from 293-294 CE – Diocletian’s rescripts – a kind of appendix to the Gregorianus
  • Neither Code was a summary of law, but rather a collection of rescripts
  • The Theodosian Code – collection of the constitutions (laws) of the Christian Emperors, Constantine to Theodosius II (Younger) (300-430)
  • Justinian’s Famous Code – 3 parts – Code(List of laws), Digest(Pandects-Legal Theory), Institutes(A legal textbook)
  • Note: Justinian’s is the Corpus Juris Civilis – it is THE BASIS of modern Civil Law in Europe and Lousiana /a> (not Great Britain, Canada(outside Quebec Law), Australia, U.S)



    Roman Legal Theory
  • Influenced a great deal by STOICS and Stoic philosophy – love of paradox, dispute, minute distinctions in words
  • example of a Stoic “philosophic” Roman Law – if you steal a few grains of wheat from a pile, or a few cups of wine from a barrel (or amphora as the case may be) you are guilty of stealing the whole thing – something we DEF do not believe in nowadays as we have clear diff’s between misdemeanors and felonies – although perhaps as the $$ amt defining the lower limit of a felony gets lower (or maybe the 3 Strikes laws), we start approaching the severe, purer “Stoic, Roman” view of Law

    Roman Legal AUTHORITY
  • Originally based upon your personal skill in study – and the fact you’re a Roman citizen (and probably a RICH ONE at that) (you’ve got to get people to LISTEN TO YOU to have opinions that INFLUENCE BEHAVIOR) – a kind of marketplace/fame/nobility driven authority – UNREGULATED
  • From Augustus to Hadrian (0-130) Lawyers could only be Senators (not people, not equites(knights)) – the richest of the rich (remember, Augustus abolished the People’s Assembly also – in effect making Rome,as the head of the empire an outright plutocracy – $$-ruled) – UNREGULATED
  • After Hadrian (after 130) – lawyer = Senator, Knight who had the license of the Emperor – SO NOW REGULATION

    Sects within Lawyers – the Strict Letter versus the Spirit of the Law
  • Proculians – spirit of the law
  • Sabinians – strict
  • Spirit vs Strict = deciding a case exactly by the letter of the law, or allowing circumstances of the case to influence the decision – apparently, unlike Gibbon, modern scholars have a hard time det exactly what WAS the difference between Proc’s and Sab’s – its not that clear cut

    Justinian’s Code – Late 520’s CE
  • Gets Tribonian to head a huge scholastic effort to reform the law – to from a list of laws that is reasonable, not duplicated, and will be authoritative – ie – after the new code is published, all other laws will be null and void (starts 527)
  • The Code (List, text of laws themselves) is out in a year (2-13-528)
  • The Digests (opinions on the law) (12-15-530 and 12-16-533)
  • Institutes (textbook – largely taken from Gaius’s Textbook from (130-180)

    5 Lawyers of the Past – The Severan Legal Renaissance – and the 5 granted “official canonization” by Justinian and his Legal Reform Team
  • Ulpian – in the 210’s The Great Severan Law Renaissance – just before the Great Crisis of the 200’s (230-280)
  • Papinian (about 200) – A Severan lawyer, Praetorian Prefect
  • Paul another Severan lawyer – 1/5 of the Justinian Code is Paul
  • Gaius (130-180) wrote THE Textbook on Roman Law
  • Modestinus – student of Ulpian – around 250 middle of Crisis – hundreds of passages in the Digest part of Justinian’s Code are quotes from his writings



    Last Word…


    The Law and Religion




    Here are some miscellaneous thoughts of mine – mostly parroting De Coulanges – on teh marriage of religion and well, practically everything in extreme Antique society, and one way of looking at Western Civilization (in capital letters) – ie the disentanglement of religion with every single other aspect of life – a very Enlightenment topic.

    What follows is an extremely simplistic, and a mostly incoherent but hurried attempt to write all this down for today’s blog…

    De Coulanges maintains that to understand Roman Law and Roman society (ie father having supreme power over family, property, inalienable property, male-only inheritance, caste systems, etc) you have to understand the invasions of around the year 1500-1000 BCE in Europe.



    A new group of peoples – the Indo-Europeans rode off of the great peoples-escalator which is the Asian Steppes, and conquered India and Europe – basically becoming the Greeks, Romans, and ancient Indians (in India), also the ancient Iranians later were part of this migration – the key thing is they had a lot in common – an ancestor-based religion centered on the hearth and home-fire, and a very harsh religion where balance between man/society/and gods/ancestors was maintained only through precise, extravagant, specific rituals.

    De Coulanges shows that this idea of the personal home-hearth (somehow) was broadened to include the ancient city – thus – his book The Ancient City – and his thesis: that the city was an extension of the home-hearth – and thus the reason for so much of the strange history of Rome (Patrician=invader, Plebs= indigenous conqd population), (Only citizens- ie conqerors – had household gods, and therefor rights within the city – thus the reason for the bitter disputes over citizenship – the Patricians felt it was a religious issue and thus NOT ON THE TABLE FOR DEBATE) – the LAW was originally unwritten and was actually pure religion (like the Shari’a Law) thus it too was not able to change -ever. Romans attachment to law in the remote past was their fanatical devotion to their gods – the gods of their ancestors and their land – inalienable (what greater blasphemy than to sell a piece of land that an ancestor was buried upon? or looked after? or where the family hearth was located) – again the reasons for the focus on the family fire, ancestors masks, the ancestors (Lares) household gods (and the city of Rome’s Vestal Virgins who tended the City’s hearth.



    All very interesting – but what interests me the most is that ALL THIS DISAPPEARED in the first 2 centuries of the empire (it had been declining greatly for centuries before) – but for me the interesting part is the MOTIVATION – the DRIVE to SUCCEED – the DESIRE TO CONQUER and the CONFIDENCE TO RULE – this had been part of every Roman’s heritage in the great days of expansion of the empire – AND all over the Mediterranean. Each City State had its own LOCAL GODS and families had their own Household Gods – thus the empire truly was driven locally and from the bottom up. This is what a healthy economy looks like in almost every case – driven from the bottom up.

    It was only later, with the advent of Christianity and the over-arching idea of the Roman Empire, that gradually society become homogenized and the local/household gods were forgotten (altho Saints did pick up this very local sphere of religiosity – but people usually dont get rich or conquer their neighbors for the sake of a Saint) – the essential “motor” of the ancient world stopped. The world became a top-down world – of imperial mandates to perform basic societal duties – and like the Soviets, Rome experienced a much less dynamic, much less vibrant economy.



    This is not to say you don’t need a “huge gorilla” like the government around to push around the other “huge gorillas” – the more complex, the larger and more intricately intertwined an economy is, the less you can rely solely on the short-sighted, narrow-focus market forces to adjust our economic activities to our best advantage – (as we’ve learned ruefully in our post-regulatory/pre-re-regulatory world). But one key to the ancient world’s strong economy, and its subsequent collapse (besides economic blows like war and plague and famine which are, to be honest, considerable) is the unconscious underpinnings of what makes people work, and work hard. That changed in Late Antiquity – and so the empire changed with it.

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