Almost without exception, the attested writings of first-century jurists are directed primarily toward other jurists; these writings thus have an austere format that elevates technical discussion of rules and 'cases' above the didactic exposition of broad principles.[1191] Two major types of juristic literature are attested. The first is the extended commentary on a set text: above all, the Urban Praetor's Edict (by Labeo, Mela, Sabinus and probably Plautius as well), but also the Twelve Tables (Labeo) and the edicts of the peregrine praetor (Labeo) and of the curule aediles (Caelius Sabinus). Such commentaries assemble and interpret all law pertinent to each provision of the object text. The second type is 'problem-oriented', assembling decisions on a wide range of legal questions; these writings may take the form of collected responsa (Labeo, Sabinus) or of disputes and investigations (Labeo, Capito, Proculus, Sabinus and Fufidius).
In addition to these basic types, some jurists devote monographs to particular areas of law; attested examples are Sabinus on theft and the younger Nerva on usucapion. Jurists also frequendy develop law by critically annotating the works of earlier jurists, especially those of Labeo and Sabinus.
This literature is not designed to be readily accessible to non-jurists, since it all presumes considerable prior knowledge of the institutions and principles of Roman private law. Yet literary sources show that demand was also growing among laymen for elementary handbooks.[1192] Although there is no evidence that the more prominent first-century jurists offered instruction to beginners,[1193] the need for a handbook was provisionally met by Sabinus' three books on the ius civile, an authoritative summary of the legal rules peculiar to Roman citizens. The arrangement and content of this work owe much to earlier republican treatises; like them, it introduces topics rather haphazardly and even omits some significant areas of law. None the less, by the reign of Nero it was already a standard elementary handbook.[1194] So successful was it as a statement of the 'civilistic system' that in the following centuries it attracted lengthy commentaries from Pomponius, Ulpian and Paul. Cassius' treatise on the ius civile, in at least ten books, was similar in arrangement to Sabinus', but much less influential except among jurists. Deliberately designed handbooks for beginners (Institutiones) appear only in the second century a.d., contemporaneously with the emergence of professional law teachers.[1195]
vi. imperial intervention
Although classical private law is chiefly a juristic creation, the Roman state did not surrender its power to create new legal norms through statute (lex). In the republican constitution, statutes were enacted through popular assemblies (comitia) upon a magistrate's initiative. During the Empire legislation was always initiated by the emperor or by a magistrate acting with his approval. Augustus had a large body of statutes enacted, a portion of which affected significant change in the private law of persons and succession; especially important is his extensive 'moral legislation' encouraging marriage and childbirth, imposing sanctions for adultery, and restricting testamentary manumissions.[1196] Later Julio-Claudian emperors also utilized comitial statutes,intervention
especially in matters concerning status or succession; the controversial social character of such laws may have made it desirable to obtain at least the formality of a popular vote.
However, legislation through the cumbersome popular assemblies soon became obsolete as new forms of law-making emerged to express a centralized government. These new forms had administrative origin and character; but they gradually created, alongside the ius civile (statutes, praetorian procedure and juristic interpretation), a body of law intended to supplement or replace older law. Eventually this law came to be called the 'new law' (ius novum or ius extraordinarium).11
Already in the Republic the Senate had often issued advisory directives to be executed by magistrates; but in the early Empire the decrees of the Senate (senatusconsulta) gradually emerged as a source of law in their own right, though how and when this occurred remain controversial.78 During the first century a.d., senatusconsulta that significantly alter private law still often direct magistrates to execute their provisions; but in the following century this fiction is dropped and the Senate legislates directly - though always upon the emperor's initiative or at least with his express approval.79
The emperor, himself a magistrate, also gradually came to enunciate general legal norms through a variety of administrative channels, including proclamations (edicta), judicial decisions (decreta), answers to petitioners (rescripta), and instructions to other magistrates (mandata).90 In the early second century these channels were formalized, and the rescript system emerged as the major channel for imperial pronouncements on private law; but earlier the channels have a much more casual, almost ad hoc quality. However, even as early as Augustus the emperor is occasionally described as proclaiming new rules of private law.81 In most cases, he probably did so only after gathering advice from a specially summoned 'council' (consilium) consisting mainly of jurists. One such council, which led Augustus to approve the enforceability of codicils to a Senator's will, is described in Justinian's Institutes.82 During the first
Cf. Kaser 1971 (f 662) 1199, 208-9; Schiller 1978 (f 689) j 3 5-7. The terms appear in a technical sense only from c. a.d. i jo.
See Schiller 1978 (f 689) 4j6-62, with bibliography. Most known senatusconsulta are listed by Talbert 1984 (d 77) 43 >~59-
Directives to magistrates are found in senatusconsulta from the reign of Augustus (the earliest: a.d. 10) to as late as Vespasian. The legislative character of senatusconsulta is affirmed by Gai. Inst. 1.4 (acknowledging earlier uncertainty); cf. Papinian, D 1.1.7 pr., and Ulpian, D 1.3.9.
See Schiller 1978 (f 689) 480-j 06.
E.g., Ulpian, D 16.1.2 pr. (edicta of Augustus and Claudius prohibiting women from assuming their husbands' debts); Paul, D 28.2.26 (edictum of Augustus forbidding disinheritance of a son serving as a soldier; later repealed).
975
Just. Inst. 11.2j pr. (Trebatius persuaded the emperor; on the date, see n. 26); compare ibid. ii. 23. i, on Augustus' recognition of informal bequests (fideicommissa). The consilium principis is, in the first century, an informal advisory gathering of the emperor's 'friends'; it acquires more formal status only in the second century. See Crook 19; j (d 10); Amarelli 1983 (d 4); and Schiller 1978 (f 689) 466-74, summarising the controversy.
century the emperor's legislative power may not yet have been recognized de iure, as an express function of his office; but it clearly existed de facto, and its importance steadily increased as the emperor's constitutional position was rationalized.[1197]