University of Malta Martina Ebejer LL. B. (Hons) First Year

The importance and influence that the Jurist had during the Principate:

During the early ages of the Principate, Emperor Augustus, during his reign on the Roman Empire, decided to put “imperial authority behind”¹⁹ the roles that are played out by the jurists. He managed to bring this out when he decided to grant the right to advise the emperor and his authority to specific and qualified jurists, this was known as the “ius respondendi ex auctoritate principis”²⁰. Not only did Emperor Augustus make the Roman legal aspect more advanced and ‘modern’ per se, but he had also increased the level of prestige to the jurist profession. It is believed by some scholars that Emperor Augustus’ sole purpose for granting this ordinance to the jurists was an act that somehow allowed him to gain control on the jurists and their activities. Those jurists being granted that patent meant that their opinion and advice was very valued and valid, but not “binding for the judge”²¹. In other words, the jurists can give their advice, but it was up to the judge whether to accept it or not, but it was rare for a judge to do so, since the opinions of the jurists “were reinforced by the authority of the emperor”²². This was a very important stepping stone for the jurists, since just from expressing their opinion, they were “acquiring the force of law”²³.
This new ordinance of granting the right for jurists giving their own advice to the emperor led to disagreement on certain ideas and writings amongst the jurists themselves. These differences of thought and advice ended up resulting and creating two well-known legal debating schools. These two schools were known as the Proculians, whose leader was Marcus Antistius Labeo, and the Sabinians, whose leader was Gaius Ateius Capito. Considering there is scarce information about these two debating schools, we do not know as much about them, only that they had “contrasting characteristics”²⁴, especially the way they approached cases.
In spite of the lack of information, there is certain knowledge and recorded data on the debates these two schools had, which some turned out to be “moot court debates”²⁵. An example of such a debate between these two schools was “the availability of a suit by a husband against his father-in-law for a promised dowry”²⁶ – in this case Labeo opposed this, whilst Procolus favoured it. Unfortunately, these two prominent debating schools did not last very long, which led to jurists parting their own way and tackling cases individually. One could state that thanks to these debating schools and the disputes they had, they created “a tension between two ways of looking at law”²⁷, resulting in creating a certain legal framework, within which it would be operated by other legal theories.
One important characteristic of the Jurists that was very influential was that once they were granted ‘ius respondende’, they documented possibly every opinion they offered by writing them down. This is seen as vital since, in the following years after the Principate, there were many people, who compiled all of these writings and created commentaries. For instance, the Byzantine Emperor Justinian created the ‘Justinian Code’ which was a compilation of all Roman Law, including “the historical tradition, culture, and language of Roman law”²⁸. One important compilation of jurists’ works, and opinions was the Digest, which was intended for law students since it managed to summarize most of the jurists’ writings “on law and justice”²⁹.

As can be noticed, in the Digest, one can barely find any disagreement amongst the jurists themselves. This is because at the time there was an order given to the compilers to remove any trace or form of disagreement between the jurists. This excluded the classical work called Gaius’s Institutes that contain plenty of evidence that proves that there were conflicts and disagreements between the jurists, since it was added to the Digest separate from the other juristic writings. The Digest, once finished, replaced old books for legal studies and for the court and it was even ordered by Emperor Justinian that they could only refer to this source of law. Therefore, the Digest is “now almost our only source of information about classical law”³⁰.