Perhaps at about the same date Augustus began granting to certain jurists the right to issue formal opinions on law (responsa) that were based on his own authority. Unfortunately, the two main sources on the ius respondendi are confused and difficult to interpret, and scholars have not reached consensus on the nature and operation of the right.[1160] The likeliest view is that jurists with the ius respondendi could submit responsa that had very great, if not determinative, weight in settling questions of law within trials; even if the responsa of two such jurists diverged, the judge had to choose between them. Augustus is said to have created the right 'in order to increase the authority of law',[1161] which implies that hitherto jurisdc opinions had not always been decisive in private trials. At the same dme, however, the imperial grant of a ius respondendi isolated a privileged group of recognized legal experts, on whose authoritative opinions litigants would inevitably rely if possible; thus the emperor avoided having to determine questions of private law himself.
Augustus apparently granted the ius respondendi only to jurists who had also entered the Roman Senate; this probably remained normal throughout the first century a.d., though Tiberius bestowed the right also on the eminent equestrian jurist Masurius Sabinus.[1162] It is likely, but cannot be proven, that almost all early classical jurists whose views are cited or reported in the Digest had received the ius respondendi. Grant of the right served the emperor in several ways: it increased legal security by limiting the number of jurists allowed to state law authoritatively, while simultaneously creating a new means of imperial patronage and reinforcing the link between the jurists and the empire's governing elite in the Senate. A jurist lacking the ius respondendi could still issue opinions, but his responsa were backed only by his own knowledge and personal authority;[1163] such a jurist would inevitably tend to take his lead from more privileged jurists.
Augustus' thoughtful procedural reforms set the stage for classical Roman jurisprudence - which is, in essence, a protracted intellectual discussion of legal norms and principles conducted within a small circle of skilled professionals. The lex lulia de iudiciis privatis gave Roman procedure a coherence and rationality it had not previously possessed, and thus narrowed and defined the framework of juristic discussion; the ius respondendi ensured that the best product of juristic discussion would have direct and immediate effect within the judicial system. The jurists thus came to occupy a commanding position in relation to the judicial system, even though they were not formally part of it. In the long history of Western law, this astonishing situation has seldom been replicated.
Yet almost at once the process began whereby the carefully balanced Augustan procedural system would be first eroded and then supplanted, although not before the Roman jurists had introduced changes which were permanendy to affect Western understanding of what law is.
iii. labeo
Servius Sulpicius Rufus, the great republican jurist, died in 43 в.с., while on a diplomatic mission for the Senate.19 He left behind him a large and thriving juristic community, which dominated Roman private law undl well into Augustus' reign; yet it lacked a leader comparable to Servius in influence and power of mind. During the triumviral period (43-31 B.C.), Servius' numerous students concentrated on compiling and editing their teacher's writings and responsa-, the most prominent of these students was Alfenus Varus, one of Octavian's early partisans, who earned for his loyalty a consulate (39 в.с.) and a public funeral.20 The only student of Servius who gained a reputation as an innovator was A. Ofilius, who wrote the earliest extended commentaries on the Praetor's Edict and on the corpus of existing statutes;21 Ofilius remained a lifelong eques despite his former close ties to Julius Caesar. Ofilius also was the teacher of Q. Aelius Tubero, who turned to law only around the age of forty after a disappointing career as an orator; Tubero was later regarded as the most erudite of the early Augustan jurists in both public and private law, although his influence was diminished by his crabbed, archaizing prose.22 Two eminent older jurists also survived into the early Principate: A. Cascellius, already very aged but still ferociously independent in his political views,23 and C. Trebatius Testa, Cicero's sometime protege, who like Ofilius remained an eques.u
Except for Alfenus, the early Augustan jurists were characterized by political caution or even quietism; they left almost no mark on the momentous events of their times. For his part, Augustus did not seek to bind them more closely to the new regime; the story that he offered a
" See esp. Gc. Phil, ix; Pomponius, D 1.1.2.43. Pomponius' Enchiridion, poorly preserved in D
2.2, is the only surviving history of the juristic movement; on its form and purpose, seeNorr 1976 (f 672). The work dates to c. a.d. 140.
Pomponius, D 1.2.2.44; Scholiast on Hor. Sat. 1.3.130. The public funeral was perhaps accorded by Augustus. Alfenus, who cites no jurist after Servius, seems not to have participated in early Augustan discussions. Fragments: Lenel 1889 (в 109) I 37—34 (nineteen citations; eighty-one fragments from later epitomators). On the early Augustan jurists, see Bauman 1985 (F642) 66-136 (speculative).
Pomponius, D 1.2.2.44 (as emended). Fragments: Lenel 1889 (в 109) i 795-804 (fifty-eight citations, usually through Labeo). Ofilius survived until at least 20 b.c., since he taught C. Ateius Capito (cos. suff. a.d. 5): cf. n. 28.
Pomponius, D 1.2.2.46. Fragments: Lenel 1889 (в 109) ii 377-80 (thirteen citations, often through Labeo). On the family: Syme 1986 (л 93) 305—6. Tubero also wrote an annalistic history of Rome.
Cascellius, a pupil of Q. Mucius, was quaestor by 73, but advanced no further; cf. Pomponius, D 1.2.2.45 (as emended). His independence: Val. Max. vi.2.12; Quint. Inst. v.3.87; Macrob. Sat.
6.i. Fragments: Lenel 1889 (в 109) i 107—8 (thirteen citations, usually through Labeo).
Pomponius,D. 1.2.2.45. Fragments: Lenel 1889(8 109)11343-52(eighty-sevencitations,often through Labeo). Trebatius was close to Julius Caesar: Cic. Fam. vn. 14.2; Plut. Cic. 37.3; but cf. Suet. lid. 78.1. Caesar probably made him an equer. Bauman 1985 (f 642) 126-7, i)4-l- consulate to Cascellius (who declined it) is of doubtful authenticity.25 None of these jurists is expressly associated even with the drafting of major Augustan legislation, although Trebatius, at least, survived long enough to comment on some of it.26
Our impression of early Augustan jurisprudence derives mainly from the writings of M. Antistius Labeo, who was probably active as a jurist by about 30 в.с. A student of Trebatius, Labeo none the less closely attended the other senior jurists of his time, and he often reports on their agreement or disagreement concerning various technical questions.27 Labeo clearly regards Trebatius and Ofilius, and to a lesser extent Cascellius, as constituting the juristic mainstream, while Tubero is more commonly aberrant in his views; but Labeo presents a general picture of consolidation and regulated contentiousness, with little in the way of major methodological or substantive innovation. However, by about 20 B.C. the generation of republican survivors was yielding before a new and more vigorous generation. According to literary and juristic sources, much of Augustus' reign was marked by the dominance and rivalry of two jurists: Labeo and C. Ateius Capito.28