Chicago-Kent Law Review

Volume 70
Issue 4 Symposium on Ancient Law, Economics &
Society Part I: The Development of Law in Classical
and Early Medieval Europe / Symposium on Ancient
Law, Economics & Society Part I: The Development of
Law in the Ancient Near East

Article 7

January 1995

Interpretation and Legal Reasoning in Roman Law

Peter Stein

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Peter Stein, Interpretation and Legal Reasoning in Roman Law, 70 Chi.-Kent. L. Rev. 1539 (1995).
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INTERPRETATION AND LEGAL REASONING

IN ROMAN LAW
PETER STEIN*

The Roman jurists, whose works are excerpted in Justinian's Diare noted for their pragmatic approach to cases and for the subtlety of their casuistic reasoning. They did not generally indulge in
discussions of legal theory. It should not, however, be assumed that
because they did not articulate comprehensive legal theories, they
lacked ideas about the nature of law. For the period of the Roman
republic, these ideas have to be inferred from the bare decisions, but
by the beginning of the empire, differences in the jurists' reasoning
reveal more of their conceptions of the nature of the work in which
they were engaged. The compilers of the Digest, our main source,
were instructed to eliminate disagreements among the jurists whose
works they excerpted. Some traces of these disagreements remain,
however, and there is one text, Gaius's Institutes, 2 which is transmitted separately and contains several references to juristic disputes.
This Article illustrates, with examples taken from the Roman
sources, the methods of interpretation and legal reasoning which characterized the jurists both in the formative period of Roman law and in
its early maturity.
gest,1

WRITTEN LAW AND UNWRITTEN LAW IN THE ROMAN REPUBLIC

From the beginning those who expounded Roman law were well
aware of the difference between unwritten law, which is not stated
authoritatively in fixed texts, and written law, which is so stated. The
distinction was expressly stated by Ulpian at the beginning of the third
century A.D. He indicated that the classification is derived from
Greek thought (D.1.1.6.1), but it was tacitly understood long before
him.
* Emeritus Regius Professor of Civil Law, University of Cambridge and Fellow of
Queens' College, Cambridge. Throughout this article I have provided my own translation for
many of the texts quoted.
1. The Digest of Justinian, Latin text, ed. T. Mommsen, and English translation, ed. A
Watson, Philadelphia 1985 (cited as D.).
2. The Institutes of Gaius, Latin text, ed. B. Seckel and B. Kuebler, and English translation
by W.M. Gordon and O.F. Robinson, Ithaca, 1988 (cited as Gaius, Inst.).

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Roman law, like most legal systems, began as a set of orally transmitted traditional norms, and written law began as written custom. In
the first century of the Roman republic, in the mid-fifth century B.C.,
the popular assembly enacted the Twelve Tables, 3 which had been prepared by a commission established for the purpose of "writing down
the laws." The contents were not so much new law as authoritative
settlement of doubtful cases which had arisen in the application of the
traditional customary law.
The general word for law was ius and enacted law was lex. Lex
was an express statement of what was ius. It derives from legere, to
read out, and indicates what is read aloud, or publicly declared. These
leges were written down, but their most important characteristic was
not the fact that they were committed to writing, but that their formulation was fixed and incapable of being altered, except by further legislation. The text of a statute was naturally subject to interpretation,
but only within the limits of its wording. In the area of private law,
legislation was rare in the republic after the enactment of the Twelve
Tables (the main exception to this being the lex Aquilia, to be considered later).
Legal development was achieved in the second half of the republic through the creation of new remedies. A legal action had two
stages. The first stage, before the magistrate, the praetor, was
designed to decide whether the parties' dispute raised an issue recognized by the civil law and how it should be settled. In the second
stage, the iudex, a layman chosen by the parties from a list of qualified
citizens, conducted a trial and decided the issue.
By the end of the third century B.C., the praetor set out the issue
in writing in a formula addressed to the iudex and expressed the issue
in hypothetical terms in the following form: "if you are satisfied that
the plaintiff has proved .

. . ,

condemn, if you are not satisfied, ab-

solve." Since the praetor controlled the grant of formulae, he could,

like the English Chancellor in relation to the grant of writs, direct the
course of legal development. Formulae that he was prepared to grant
without argument were set out in the edict, which was published by
each praetor upon taking office. As the praetor was a layman, he
came to rely on specialist jurists for technical advice.
In early Roman law it was the pontiffs, those charged with the
maintenance of the state religious cults, who were responsible for in3. H.F. Jolowicz and B. Nicholas, Historical Introduction to the Study of Roman Law, 3rd
ed., Cambridge 1972, 108ff.

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terpreting the law. They did not give reasoned opinions but "unmotivated" rulings, which carried authority because of their authors'
standing in the community. They had been accustomed to giving rulings on the scope and extent of the unwritten rules and, like the common law judges, could reformulate those rules with an eye to the facts
of a particular case. The existence of a text must have constrained
their freedom of decision making, as indeed it was probably intended
to do, but they soon gained confidence in their task. Indeed, they
were capable of creating new legal institutions in the guise of giving
meaning to the text of the Twelve Tables.
For example, the Twelve Tables contained a provision designed to
penalize a paterfamiliasfor abusing his power over his sons. 4 He was
entitled to sell his son into forced labor to another, but the legislation
provided that if he sold him three times, the son was to be free of his
father's power. Three sales were regarded as an abuse of the power of
the family head. At the time of the Twelve Tables, it was not contemplated that a father might voluntarily wish to free his son, who constituted an important economic asset to the family unit. Later,
circumstances made it desirable that the father should have the power
to emancipate his son and the pontiffs advised that, provided the father went through three successive sales to a compliant friend, the son
would be freed from paternal power by virtue of the Twelve Tables'
rule (Gaius, Inst. 1.132). Thus, an entirely new institution of voluntary
emancipation from paternal power was created by interpretation.
Pontifical interpretation went further. The Twelve Tables referred only to sons, and where daughters and grandchildren were concerned, the paterfamilias could apparently sell them as much as he
liked. Once the three sale rule was interpreted to refer to voluntary
emancipation, the pontiffs declared that, whereas three sales were required in the case of sons, one sale was sufficient for the emancipation
of daughters and grandchildren.
It should be noted that this pontifical innovation, while giving a
family head a power that he previously did not enjoy, did not interfere
with the interests of anyone outside the family. In most cases the pontiffs and the secular jurists, who succeeded them from the middle of
the third century B.c., had to be more cautious. The way they expounded the law differed according to whether the law was in written
or in unwritten form. If it was unwritten, they could gradually de4. Jolowicz and Nicholas, op. cit., 88ff.

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velop it on a case-by-case basis without any objection. If it was written, they had to keep within the terms of the lex.
This point may be illustrated by comparing the development of
theft of property and of damage to property, both of which gave the
victim a civil action for penal damages. Theft was recognized by the
customary law before the enactment of the Twelve Tables and was
regulated by that legislation, 5 whereas damage to property was wholly
a creature of statute.
Two kinds of theft were recognized: (1) manifest theft, where the
thief was caught in the act of theft, and (2) non-manifest theft, where
the thief was apprehended later. The penalty was a function of this
distinction. In manifest theft, the thief was scourged and handed over
to work for the victim. In non-manifest theft, the penalty was monetary with the thief paying double the value of the thing stolen. A
monetary penalty was later substituted for corporal punishment in the
case of manifest theft with the thief paying quadruple the value of the
thing stolen. These sums were penalties payable to the victim, irrespective of whether the victim recovered his property. What made the
grant of such a remedy to the victim realistic was the existence of
noxal surrender. If the thief was a slave or a son in the power of his
family head who would not have funds of his own from which to pay
the penalty, the action would be brought against the slave's owner or
the son's family head. The latter then had the option of either paying
the penalty or surrendering the delinquent noxally into the ownership
or power of the victim.
The Twelve Tables did not, however, define theft (furtum). The
idea was well-established and a definition was unnecessary. As the
etymology from ferre, to carry, suggests, theft originally indicated taking away someone else's property. By the end of the republic, theft
had been expanded to the extent that the jurists were granting the
victim's remedy, the actio furti, for any dishonest interference with
another's property, even if the thing stolen was not moved. In addition, the jurists were ready to give this remedy to non-owners who
found themselves the victims of theft. As Buckland put it, "with the
single word furtum to interpret, the lawyers had a free hand and there
is probably no other institution in which the shaping hand of the jurist,
untrammelled by legislation, is so evident as it is here."'6
5. Jolowicz and Nicholas, op. cit., 167ff.
6. W.W. Buckland, The Main Institutions of Roman Private Law, Cambridge 1931, 327.

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The result was that they "assume a conception of theft so wide as

to include almost any species of dishonesty."'7 For example, it was
theft for someone to cause the loss of a man's mules by summoning
him to court, so that he had to leave them unattended and they were
taken by another (D.47.2.67.2). It was theft from a seller for someone
to lend a buyer weights which were heavier than they should have
been, so that he received from the seller more than he should have
received (D.47.2.52.22). It was theft for a creditor to refuse to return
a thing pledged with him as security, once the debt secured had been
repaid (D.47.2.52.7).
The jurists were primarily concerned with the scope of particular
actions, which were available on demand in the praetorian edict.
Whether the remedy for theft was available in a particular case was
discussed as a matter of legal policy. In a late republican text
(D.47.2.77.1), B steals goods from A and then C steals them from B.
The question is who should sue C. Is it A, the owner of the goods, or
B, the victim of C's theft? One jurist, Servius Sulpicius Rufus, took
the view that the thief must be penalized at all costs, so that if A does
not sue C, then B should be able to sue him. Another jurist, Quintus
Mucius Scaevola, on the other hand, denied this possibility. He took
the view that while it may be true that B, the first thief, has an interest
in the goods being untouched, it is not an interest which the law
should protect. Otherwise, an absurd result might ensue. If B's theft
from A was non-manifest, but C's theft from B was manifest, then B
would have to pay double damages to A but could claim quadruple
damages from C and so make a handsome profit out of his own
wrongdoing.
The point is that the two jurists could argue about what was the
better rule without restrictive pre-conditions, because theft, although
regulated by legislation, was a product of the traditional unwritten
law. Damage to property, on the other hand, was introduced by a
statute of the third century B.C., the lex Aquilia. In interpreting this
statute, the jurists were restricted from the beginning by the words of
the statute.
The first chapter of the statute provided an action for the unjustifiable killing of the plaintiff's slave or larger animal. The penalty, payable to the victim, was the highest value of the slave or animal in the
previous year, thereby taking into account seasonal fluctuations in
value. The third chapter imposed a monetary penalty on one who
7. H.F. Jolowicz, Digest XLVII.2 De Furtis, Cambridge 1940, xx.

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caused unjustifiable loss to another by burning, smashing, or breaking

the plaintiff's property.
The word for breaking was rumpere. The gradual expansion of
this expression was cautious. In the following century, the jurist Brutus was able to declare that if one struck a pregnant female slave, so as
to make her abort, then one was liable to the slave's owner under the
head of rumpere (quasi rupto, D.9.2.27.22). A century later, at the end
of the republican period, almost all jurists were agreed that the word
rumpere should be understood in the broad sense of corrumpere,
which covered all kinds of physical damage, however caused.
Since the statute stated that the penalty was payable to the owner
of the thing damaged, the jurists could not give the Aquilian action to
anyone who was not owner, so that, in contrast with theft, a pledgecreditor or holder of a life-interest could not bring the statutory action. For such non-owners special actions had to be created ad hoc.
The first jurist to attempt to put some order into the mass of remedies and interpretations that constituted the civil law was Quintus
Mucius Scaevola about a century before the end of the republic. 8 He
identified a number of general rules, called definitiones, which were
summary statements of the state of the law. He also wrote the first
treatise which attempted to arrange the civil law in categories. By this
time the jurists had confined the ambit of the civil law to essentially
private law and had factored out the sacral law and public law, both of
which had been included in the Twelve Tables. Quintus Mucius began
with wills, legacies, and intestate succession, which together occupy a
quarter of his whole work. Inheritance problems were clearly the
most important area of the law for the practitioner in the republic.
Mucius did not clearly demarcate any other area of the law. Instead
he merely listed other topics without any semblance of order. Even
theft of property and damage to property were not brought together.
THE

Two

SCHOOLS OF JURISTS IN THE EARLY EMPIRE

At the beginning of the empire, there were two contrasting movements at work among the Roman jurists.9 On the one hand, there was
pressure for more rationalism in the law, for identifying a coherent set
8. P. Stein, "The Development of the Institutional System," Studies in Justinian's Institutes
in memory of J.A.C. Thomas, ed. P.G. Stein and A.D.E. Lewis, London 1983, 151ff.
9. P. Stein, "The Two Schools of Jurists in the Early Roman Principate," 31 (1) Cambridge
Law Journal (1972), 8ff; D. Liebs, "Rechtsschulen und Rechtsunterricht im Prinzipat," Aufstieg
und Niedergang der Rbmischen Welt, ed. H. Temporini and W. Haase, Berlin-New York 1976,
11.15, 197-286; G.L. Falchi, Le Controversie tra Sabiniani e Proculiani, Milan 1981.

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of rules and remedies, each with precisely defined limits, and for the
use of logic in the application of those rules. On the other hand, there
was a counter-movement to avoid too many precise rules, with a view
to preserving as much flexibility as possible, to avoid logic as being too
remote from experience, and to concentrate on the decision in the
individual case.
These contrasting movements were represented by two schools of
jurists, known as the Proculians and the Sabinians. The former was
founded by Labeo and the latter by Capito and they "first made, as it
were, two sects: for Ateius Capito held fast to what had been handed
down to him, whereas Labeo, a genius, with confidence in his own
scholarship, who had studied several other branches of knowledge, set
out to make many innovations" (Pomponius in D.1.2.2.47).
Although Labeo is described as an innovator, a comparison of the
substantive doctrines of the two schools does not show either the
Proculians as reformers or the Sabinians as especially conservative. It
seems that the differences were of method rather than doctrine and
that Labeo used his expertise in other disciplines, particularly grammar and dialectic, to introduce into Roman juristic discourse more rigorous techniques of interpretation and argument than those of the
republican jurists. His views are well represented in our sources.
Capito's views are not, but we have many texts from his successor,
Sabinus, and can draw comparisons between Labeo's methods and
those of his opponents.
INTERPRETATION OF LEGAL TEXTS

Labeo and the Proculians adopted a different approach to cases

involving interpretation of a written text, whether it was the text of a
statute, a will, a contractual promise, or a procedural formula, and
cases in which there was no such text. Where there was a written text,
problems which, according to Labeo, involved "verborum interpretatio" (D.32.29pr.), the Proculians consistently advocated a strict, objective interpretation of the words used, whatever may have been the
intention of the author of the text and often without regard to the
consequences.
For example, the praetorgranted the interdict unde vi to restore
possession of property from which the petitioner had been evicted "by
force." Labeo refused to recommend the grant of the interdict in
favor of one who had received notice that armed men were on their

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way to his land and had then abandoned it, without waiting to be expelled physically (D.4.2.9pr.).
With respect to the first chapter of the lex Aquilia, which seems to
have caused little difficulty in the republic, Labeo held that the etymology of the word for kill (occidere, from caedere, to cut) covered
only killing by violence and with a weapon. Therefore, in a case
where a midwife gave a drug to a slave-woman, who then accepted it,
consumed it, and died, Labeo argued that the action under the statute
was not applicable and that the praetorshould grant a special actio in
factum (D.9.2.9pr.). Whenever the circumstances of a case could not
be subsumed under the terms of the formula of a particular action, the
praetor could grant an actio in factum. In it were set out the particular
circumstances of the case, which the plaintiff had to prove at the trial
if the lay judge was to find in his favor.
Celsus, a later Proculian, had to confront the fact that previous
practice had already extended the word rumpere in the third chapter
of the lex Aquilia to mean corrumpere. He engaged, however, in some
damage limitation. How far did corrumpere extend? Celsus argued
that it was not enough for the owner to be deprived of the thing by the
defendant's act. In addition, it was necessary that the defendant
should have caused some change in the thing itself. Celsus explains
the interpretation of rumpere as corrumpere (to damage) in a typically
Proculian way. Referring to its place in the text following "burn" and
"smash," he added that "there is nothing new in that a statute, after
enumerating some cases specially, should add a general term which
embraces those specific things" (D.9.2.27.16).
With respect to the interpretation of contracts, Labeo held that
what mattered was quod actum est (literally "what was transacted,"
D.18.1.77), and it is clear that by this phrase he referred to the objective agreement of the parties, as expressed in the formulation of the
contract. For him certainty was all-important and if the parties were
not prepared to exploit the potentials for certainty that language offered them, they should not expect the law to bail them out.
Sabinus and his followers favored a looser and less rigid approach
to the interpretation of texts. For example, Sabinus held that the rule
of the Twelve Tables that required three conveyances for a son to be
freed from paternal power, referred only to voluntary conveyances,
even though there was no such limitation in the statutory text. Therefore, when a paterfamiliassurrendered the son noxally to the victim of

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a delict committed by the son, one conveyance was sufficient (Gaius,

Inst. 4.79).
Sabinus also held that the text of the third chapter of the lex
Aquilia should be interpreted as if the word plurimi (highest) had
been inserted before the reference to the value of the thing damaged,
even though it was absent. Sabinus reasoned that the legislator must
have considered it sufficient to use that word in the reference to assessment of the penalty in the first chapter (Gaius, Inst. 3.218).
When faced with the need to interpret the terms of a legacy in a
will, Sabinus did not look for an objective meaning of the words used
by the testator but rather looked to what the particular testator intended. For him the same expression could mean one thing in one will
and something different in another will. According to Sabinus
(D.33.6.9pr.), a legacy of "wine" included whatever that testator regarded as falling within that category (omnia vini appellatione contineri quae vini numero paterfamilias habuit), since the contents of
such a category depended on human preferences and habit (pro
hominum affectione atque usu). For Sabinus, what mattered was to
reach a reasonable solution to the particular problem rather than to
achieve consistency in the legal effect of a form of words.
The contrasting approaches of the Proculians and the Sabinians
to textual interpretation are clearly illustrated in a text on the meaning of the phrase bonorum pars (part of the goods) in a legacy bequeathed by a testator (D.30.26.2). Sabinus and his follower Cassius
regarded a legacy of part of the goods as a legacy of a fraction of the
value of the estate. From the point of view of the administration of the
testator's estate, such an interpretation was more convenient. On the
other hand, Proculus and Nerva, followers of Labeo, considered such
a position to be inadmissible. The phrase "part of the goods" was clear
enough and could only mean a fraction of the goods themselves. If
the testator had wanted to give the legatee a part of their value, he
could have easily said so.
THE

PROPER SCOPE OF LEGAL ACTIONS

As we have noted in the case of the slave who died after consuming poison, Labeo was unwilling to assimilate under an action facts
which did not strictly fall under the terms of the relative formula.
Rather, he advocated the creation of a separate action for the special
circumstances. Sabinus, on the other hand, preferred to squeeze new

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situations under recognized formulae rather than create a plethora of

particular remedies.
An example of the two approaches relates to the action ad exhibendum, under which a party could compel his opponent to produce
in court a thing which was the object of the dispute. If the thing was
present in court but in a damaged condition, Labeo held that the action was not applicable, since the party in question could not be said
"not to produce" the thing. Sabinus, on the other hand, held that the
party could be said "not to produce it" if it was in court in a damaged
condition. It did not bother Sabinus that this involved a forced interpretation of the relevant words. If the party demanding the thing was
to be accorded a remedy, it was convenient to give him the usual action (D.50.16.246pr.; D.10.4.9.3).
There was a famous school dispute as to whether in a contract of
sale the price had to be in money, or, in other words, whether barter
could be considered a form of sale (Gaius, Inst. 3.141; D.18.1.1.1).
Sabinus held that barter and sale were the same contract. He based
this view on custom and ancient authorities, such as the poet Homer,
who had used the Greek word for sale to describe what from the context was clearly barter. Sabinus's argument seems to have been that if,
in daily life, people had traditionally treated barter and sale as one
transaction, then the law would be unnecessarily artificial to treat
them differently.
Proculus and Nerva stated the opposite view, that the two transactions were distinct. By the first century of the empire, the law recognized that the contract of sale imposed distinct duties on the seller
and on the buyer. These duties were protected by separate remedies,
actio empti against the seller and actio venditi against the buyer. In
barter, however, it was usually impossible to distinguish between
buyer and seller, since each party was at the same time both buyer and
seller. Therefore, the Proculians said that neither of the sale actions
was applicable to barter and special actions had to be provided.
A dispute of a similar type is that concerning specification, where
A creates something new out of material belonging to B (Gaius, Inst.
2.79; D.41.1.7.7). The Proculians attributed the new thing to A, the
creator, whereas the Sabinians held that B, the owner of the material,
owned it. The Proculians' decision seems to have been the result of
their insistence that the plaintiff in an action claiming ownership of a
thing (vindicatio) had to give a precise description of what he claimed
to own. If the correct description of the thing had changed, he could

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no longer claim it by the former description. It was considered a new

thing, which belonged to the maker, A, for it never belonged to B.
The Sabinians, in taking the opposite view, held that it was in
accordance with naturalisratio (literally "natural reason," but with the
connotation of "common sense") that the owner of the material
should be the owner of the new thing made from it. The thought
seemed to be that a thing is a thing, even when its form is changed and
purely legal reasoning cannot alter nature. We shall return to this aspect of Sabinian thinking.
Labeo was critical of some of the extensions of theft allowed by
the republican jurists. 10 In his view, it was necessary to establish criteria which would define the limits of the action for theft and so distinguish between theft and damage to property or fraud. One possibility
was to stress the element of physical contact between the thief and the
thing stolen. Labeo rejected this approach. Rather, he issued a
number of rulings denying the action for theft in circumstances where
another action was more appropriate.
For example, D.47.2.50.4 discusses whether a man who waves a
red cloth at an animal to make it stampede is guilty of theft. Labeo
said that if he did it in order that the beast should be taken by thieves,
then the action for theft should be given against the waver of the
cloth. But if the act, although deliberate, was part of a silly game
(ludus perniciosus), then the action for theft was not suitable and the
praetor should grant an actio in factum, limited to the specific facts of
the case.
This distinction suggests that deliberately causing another person
to lose his property was, in Labeo's view, no longer sufficient to constitute theft, as some republican jurists had held. The thief must further be shown to have intended that the property should be acquired
by someone else, i.e., he must intend to benefit himself or a third
party.
Labeo did not require that all those liable for stealing the thing
should have personally appropriated it. The formula for the action for
theft required proof that the thing had been stolen ope consilio of the
defendant. This was a compendious phrase, covering both the act of
the delinquent, who took the thing, and the act of those who helped
him to take it. In the republic, the phrase was normally understood
conjunctively as meaning something like "by the act or design." The
10. P. Stein, "School Attitudes in the Law of Delicts," Studi in onore di Arnaldo Biscardi, II
(1982), 281ff.

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republican jurists regarded both the person who took the thing and
the person who helped him as equally guilty as thieves. There had
been a tendency to treat as a thief anyone who did something which
resulted in making the victim lose his property to another, if he should
have known that he was acting against the owner's will, whether he
was subjectively dishonest or not.
Labeo held that the words should be read disjunctively as meaning "either by the physical act or by the design" of the defendant
(D.50.16.53.2). Thus, he distinguished the principal who took the
thing from the accomplice who helped him and, in the case of the
latter, required specific, dishonest advice (malignum consilium) directed to the taking. Labeo was consistently scrupulous in requiring
proof of actual subjective dishonesty on the part of the defendant.
Sabinus accepted that the republican jurists' views on theft
needed tidying up but was reluctant to limit the scope of the delict.
He adopted a broad definition, and did not insist on actual subjective
dishonesty: "anyone commits theft who has handled another's thing,
when he ought to know that he does so against the owner's will" (cited
by Aulus Gellius, Attic Nights, 11.18.20). Sabinus held it to be theft
where a stakeholder in a competition received the prize and then refused to hand it over to the winner (D.19.5.17.5).
Although the majority view was that theft was confined to moveables, Sabinus held that land could be stolen and that a tenant farmer
who sold the land that he was renting committed theft against the
owner, who was thus deprived of its possession (Aulus Gellius, id.
11.18.13). (In Roman doctrine the landlord was held to "possess"
through his tenant.)
UNWR

EN LAW

When they were not dealing with the interpretation of a fixed text
or the limits of actions, the Proculians recognized the existence of an
unstated structure of basic principles. They sought to apply those
principles in circumstances where their rivals saw no connection.
They looked for a logical structure to the law, whereas the Sabinians
stressed custom and practice. Labeo held that one could use analogy
to discover the law applicable to a problem which had not been the
subject of a previous ruling. He was familiar with the dispute among
grammarians between analogists, who viewed language as a structure
of rules, and anomalists, who considered language as based exclusively

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on popular usage."' He favored the analogist position and seems to

have been the first jurist consistently to use analogy as a form of
argument.
For example, Labeo noted the essential similarity between theft
of property and damage to property, in effect recognizing the existence of a category of delict, all members of which should be governed
by similar principles. Thus in the case of damage to property caused
by an infans, a child under seven years, who did not understand what
he was doing, Labeo held that there was no liability. If, however, the
damage was caused by an impubes, a child over seven years, who understood what he was doing, there was liability (D.9.2.5.2). There was
no text to interpret in this case. Labeo's reason for the decision was
that the impubes was already held liable for theft. It would be irrational to have different rules for the two delicts and the law must be
rational.
Through the use of the criterion of rationality (ratio), Labeo's followers saw connections between different fields of law. They observed that there was no essential difference between the duty of an
heir to deliver to a legatee what had been bequeathed to the legatee in
a will and the duty of a promisor in a formal contractual promise by
stipulation. Gaius, Inst. 3.98, records a dispute on the effect of a legacy subject to an impossible condition. The Sabinians held that the
heir was bound to hand over what was bequeathed as if it had been
given unconditionally. The Proculians noted that a formal promise by
stipulation which was subject to an impossible condition was void and
that there was no justifiable reason to treat the legacy differently from
the promise. It would be irrational to make the decisions in the two
cases different. Even Gaius, who was himself a Sabinian, had to admit
that there was no rational basis for the difference.
Sometimes the Proculians used ratio to reach a more liberal decision than the Sabinians. Roman wills depended for their validity on
the institution of an heir to the testator's estate and normally the institution was the first clause in the will. There was a dispute on the validity of a clause nominating a guardian (tutor) for the testator's
children, which was written before the institution of the heir (Gaius,
Inst. 2.231). All jurists agreed that the grant of a legacy or the manumission of a slave which was written before the institution of the heir
11. P. Stein, "The Relations Between Grammar and Law in the Early Principate: The Beginnings of Analogy," Atti Del II Congresso Intemazionale della SocietA Italiana di Storia del
Diritto, Florence 1971, 757ff.

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was void, and the Sabinians argued that the same rule must apply also
to the nomination of a guardian.
The Proculians asked what was the reason for the rule and found
that both legacies and manumissions of slaves reduced the amount of
the residuary estate, which went to the heir. Therefore, it was logical
that they should appear in the will after the institution. But this reason did not apply to the nomination of a guardian, and so the Proculians held such a nomination to be valid, even when it preceded the
institution.
THE CRITERIA OPPOSED TO RATIONALITY

Whereas the Proculians appealed to the criterion of reason, ratio,

the early Sabinians preferred to cite precedents and practice. Sabinus
is said to have continually approved the views of the old republican
jurists (Ulpian, in D.12.5.6) and Aulus Gellius (Attic Nights, 5.19.13)
notes that Sabinus was concerned that the antiquity of the law should
be maintained.
Gradually it became accepted that logic and rationality, on the
one hand, and settled practice, on the other, were alternative justifications for a decision. The Sabinians were prepared to tolerate a certain
level of irrationality with equanimity. As Javolenus, a Sabinian, put it,
"Labeo's opinion has reason in its favor, but the rule that we use is as
follows," (D.40.7.39.4).
Typical of these two approaches were the views of the schools in
the dispute over when an impubes reached puberty and so attained
legal capacity (Gaius, Inst. 1.196). The Sabinians held that the time
varied from one young man to another, according to their physical
development. In the case of someone who was impotent, the Sabinians held that the normal age of puberty should be applied. The
Proculians argued that the need for certainty required one time for
every case and held that a young man should be considered to have
reached puberty at the age of fourteen years, whatever his physical
development. Not surprisingly, the Proculians' view prevailed.
Where there was no firm practice to follow, the Sabinians referred to the nature of things, a category in which, remarked Sabinus,
"everything was certain" (D.5.1.28.5). I have argued elsewhere 12 that
it was Sabinus who introduced the term "natural reason" (naturalis
ratio) into legal discourse, as a counterweight to what he regarded as
12. P. Stein, "The Development of the Notion of Naturalis Ratio," Daube Noster, Essays in
Legal History for David Daube, Edinburgh 1974, 305 ft.

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the too legalistic reasoning (civilis ratio) of his opponent. The phrase
is used in lay literature to explain, as natural, unusual events which
have been attributed by others to supernatural causes. It has been
noted that in the dispute over specification, Sabinus justified his view
that the new thing belonged to the owner of the material by an appeal
to natural reason.
In another dispute, there are traces of similar arguments
(D.17.2.83). When a stone was embedded in the ground, partly in A's
land and partly in B's land, A and B each owned that part of the stone
which lay in his land. For when it was in the ground, it was not distinguishable from the ground. What is the position when the stone was
removed from the ground? Some jurists (the Proculians?) argued that
then the stone, as an object distinct from the ground, was owned in
common by A and B in undivided shares, which bore the same relation to each other as the former separate portions. Others (the
Sabinians?) differed. How, they asked, could the mere removal of the
stone from the ground alter its ownership? The solution suggested by
nature was that A and B each retained absolutely the same part of the
stone as they had when the stone was in the ground. The law cannot
alter what nature has settled.
Later Sabinians substituted "the general convenience" (utilitas
13
communis) for nature as a criterion to set against Proculian logic.
Justifying a ruling that some might consider "absurd," Salvius Julianus
remarked, a century after Sabinus, that "it can be proved in innumerable cases that many rulings have been accepted by the civil law contrary to logic for the general convenience." As an example, he set
forth the case of several persons, intending to steal, who carried off
another's timber beam, which none of them could have carried alone.
They are all liable for theft, "although by subtle reasoning (subtili ratione), it might be argued that none of them is liable because no one
person actually removed the beam" (D.9.2.51.2).
THE NATURE OF LEGAL RULES

There are traces of a dispute over the nature of legal rules.14 The
late republican jurists, particularly Quintus Mucius Scaevola, tried to
state the civil law in a series of definitiones, which were seen as summary descriptions of the law as revealed in practice. Labeo intro13. V. Scarano Ussani, L'Utilita e la certezza: compiti e modelli del sapere giuridico in
Salvio Giuliano, Milan 1987, 3ff.
14. P. Stein, Regulae luris: From Juristic Rules to Legal Maxims, Edinburgh 1966, 67ff.

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duced a new word, regula, as an alternative to definitio. He took this

word from grammatical language, where it had decidedly analogist
overtones. A regula was something more than a definitio. It was a
normative proposition which governed all situations which fell within
its rationale. In contrast with definitio, which looked to the past, a
regula looked to the future since its ratio was applicable to many cases
which had not yet arisen.
A text of Paul (D.50.17.1), which cites Sabinus in support, combats this view. 15 It describes a regula as a brief account of the matter
and goes on to say that, "it is not from the regula that the law is derived but the regula is made from the existing law." It is like the summary outline of a case (causae coniectio), made to the iudex by the
parties, before the case is put in detail, and it loses its function if it is
false in any particular.
The form of the statement "it is not from the regula that the law is
derived," suggests strongly the existence of a dispute in which someone suggested that the law could be derived from the regula. Such a
someone would be Labeo, whose view Sabinus countered with the argument that regula and definitio were synonymous.
It is of interest that two centuries later Paul took Sabinus's view.
By his time, analogy was fully accepted as a legal argument and regulae were seen less as precise rules than as maxims, which had a general
application but did not necessarily cover every situation which fell
under their wording.
TiH

DEFINITION OF LAW

It was a Proculian, Celsus, who formulated the famous definition

of law as "the science (or technique) of the good and fair" ("ius est ars
boni et aequi," D.1.1.1). This has been understood by some scholars
as merely a rhetorical slogan. Recently, however, there has been a
tendency to take it more seriously. 16
If law is an ars (in Greek techne), it must be an area of human
activity (artificialis)with its own rules and methods, as opposed to a
natural phenomenon. Although ars itself connotes human creativity,
15. Regula est quae rem quae est breviter enarrat. Non ex regula ius sumatur, sed ex iure
quod est regula fiat. per regulam igitur brevis rerum narratio traditur, et ut ait Sabinus, quasi
causae coniectio est, quae simul cum aliquo vitiata est, perdit suum officium.
16. S.Riccobono, "La definizione del ius al tempo di Adriano," 53-54 Bulletino del Istituto
di diritto romano (1948), 5ff; P. Cerami, "La Concezione celsina del 'ius'," 38 Annali del
Seminario giuridico dell'Universita di Palermo (1985); F. Gallo, "Sulla definizione celsina del
diritto," 53 Studia et Documenta Historiae et luris (1987), 7ff; V. Scarano Ussani, Empiria e
Dogmi: la scuola Proculiana fra Nerva e Adriano, Tbrin, 1989, 91ff.

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its object is understood not as something created but as something

already there. The ars suggests the conversion of what is fair and equitable into law. Celsus's definition stresses that the activity of lawyers has an ethical purpose. He avoided the word justice, preferring
to insist that the concern of the law was with what ordinary people
regard as good, as opposed to bad, and fair, as opposed to unfair. Aequum has a sense of equality; the law must treat all equally. So far
most jurists would have agreed with Celsus.
Celsus's definition is, however, more specifically Proculian in its
reference to science. Law is not a vague undefined expression of
goodness and fairness, but a science. The values of justice in the general sense may not be capable of being realized in every case through
law, because, as a science, it is necessarily subject to particular limitations. These limitations are based on other values, such as certainty,
regularity, and predictability. Law cannot be just a set of individual
cases. It was Celsus who said that laws are not established in matters
which may happen only in one case (D.1.3.4). Law is, therefore, a
compromise between the demands of morality and those of science.
CONCLUSION

The two schools of jurists, as representatives of two opposing approaches to law, did not survive much more than a hundred years
among practitioners. By the beginning of the second century A.D.,
there was a tendency to merge the methods of both schools. As consultants, the jurists could deal with the cases that came their way individually, but as teachers they had to take a broader view.
Evidence for the existence of the schools as teaching institutions
is sparse, but it is not difficult to believe that the differences between
the schools survived in law teaching after they had ceased to have
much significance in practice. Debates between teachers and students
and alumni loyalty to their institutional attitudes would have ensured
their survival in the academic environment. Even in the second half
of the second century A.D., Gaius, who was exclusively a law teacher,
treated the school disputes as alive and flourishing.
The lasting influence of those disputes was the creation of a tension between two ways of looking at law. This tension formed the
parameters within which the later giants of classical jurisprudence operated. It is through their writings, particularly those of Paul and Ulpian in the early third century, as excerpted in Justinian's Digest, that
later generations learned about the nature of law itself.

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The famous aphorism of Oliver Wendell Holmes, Jr. in his lectures on The Common Law, "the life of the law has not been logic; it
17
has been experience," was itself derived indirectly from Roman law.
Holmes went on to say, "it is something to show that the consistency
of a system requires a particular result, but it is not all.... The law...
cannot be dealt with as if it contained only the axioms and corollaries
of a book of mathematics.' 1 8 Two years before he wrote those words,
Holmes had been reading (in a French translation) Rudolph von Jhering's Der Geist des rdmischen Rechts ("The spirit of Roman law"). In
this work Jhering says, "the desire for logic that turns jurisprudence
into legal mathematics is an error and arises from misunderstanding
law. Life does not exist for the sake of concepts but concepts for the
sake of life. It is not logic that is entitled to exist but what is claimed
by life, by social relations, by the sense of justice,-and logical necessity, or logical impossibility, is immaterial."' 19
In their debates, the Roman jurists were caught in the two contrasting characteristics that society still expects from law: certainty and
rationality on the one hand, and a satisfactory solution of the individual case on the other.

17. P. Stein, "Logic and Experience in Roman and Common law," 59 Boston University
Law Review (1979), 433; reprinted in P. Stein, The Character and Influence of the Roman Civil
Law: Historical Essays, London-Ronceverte, 1988, 37ff.
18. O.W. Holmes, The Common Law (1881), 1.
19. 4 L'Esprit du Droit Romain, translated 0. Meulenaere (3rd ed.1888), 311.