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ISSN 1989-1970
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Derecho Romano,
Tradición Romanística y
Ciencias
Histórico-Jurídicas
REVISTA INTERNACIONAL DE DERECHO ROMANO
THE METHODOLOGICAL CRITERA OF COUNTERPROPOSITIONS WITHIN THE ROMAN
SOCIAL LEGAL FRAMEWORK
Patricia Panero
Profesora Titular de Derecho Romano
Universidad de Barcelona
(I)
1. Today, legal systems are typically classified into two types, whose
names are owed to SCHULZ and their diffusion to ESSER1. These two
types of system go beyond the classic controversy between the
jurisprudence of concepts2 and the jurisprudence of interests3. One of
these types is the “closed” system of legal regulations. An example of
this type would be continental European law, in which matters are
codified and which can be traced back to the axiomatic thinking of the
“classical” world4 (ARISTOTLE), and which in modern times, relates to
a systematic manner of thinking (HARTMANN)5. The other type of legal
system is the “open” system, which involves a series of solutions to
legal problems (today, the case law method)6. Examples include English
and Anglo7-American8 law, in which matters are not codified and which
can be traced back to the classical world and ius Romanum9 and
problem-focused or topical thinking (CICERO)10, and in modern times is
related to aporetic thinking (HARTMANN)11.
2. Following this minimal doctrinal reminder, a warning should be
given that some legal systems today, depending on the argumenta
formulated a repugnantibus (to use CICERO’s terminology)12 as salient
aspects, are not produced “in all their purity”, to paraphrase KASER13.
On the contrary, it is communis opinio that the traditional
distinction between “open” and codified or “closed” legal systems has
become blurred, due to an inversion of the factors on which they
operate. Therefore, without attempting to be exhaustive, it is fitting
to present both critical observations, a contrario, and distinctive
criteria that have been pointed out regarding certain legal systems.
Taking the signifier/signified relationship as a basis, these points
will make it possible to combat the dogmatism and rigidity of those
salient aspects and, at the same time, support, not only our latest
general statement that today the differences discussed here have
become blurred, but also that their portrayal is, at the very least,
questionable.
3. As anticipated, our observations will relate to: matters of law;
the axiomatic and the problematic; the value or values of the Topics;
and the systematic and the aporetic. 1) It is important to remember
that although matters of law are codified in closed systems, they are
interpreted, supplemented and reworked within the categories and means
of casuistic law. Meanwhile in open systems, although matters of law
are not codified, statute law includes important components of
regulatory law.14 2) Regarding the opposition between problem-focused15
(topical)16 thinking and deductive (axiomatic) thinking we must point
out that in the majority of cases this opposition is misguided, since
the concepts belong to different areas of logic (they are not
conflicting and are certainly not incompatible) and they operate at
different times within the rational process.17 In other words, further
to playing a first analytical role, topics can play a second synthetic
one18, through which a system can be constructed.19 3) At least two
components should be mentioned in relation to the value (or values) of
the word topics: classical sources and current doctrine. In classical
sources, while Topics is univocal as the signifier, it is equivocal as
the signified20. Today, the Aristotelian signifier of Topics still
exists (=formulation of a “theory” of the dialectic), but for
contemporary jurists, its meaning is Ciceronian and is centred on the
“practice” of argumentation. Also, remember that in modern doctrine a
distinction is made by VIEHWEG, between a first-degree and
second-degree topic21, the latter of which consists of applying a
simple repertoire of previously produced points of view or catalogues
of topics.22 4) Regarding the systematic and the aporetic, prudence
would counsel us to avoid identifying the term “system” with “axiom”,
which has the reverse effect of making that which is systematic and
that which is topical irreconcilable (when this is not the case).
Certainly, system-thinking comes from the whole, while in aporetic
thinking the reverse occurs. However, it is no less certain that the
two functions are compatible. What they reveal is that if emphasis is
put on the “system”, this system will be established by selecting
problems, whereas if emphasis is placed on the “problem”, then it will
be necessary to search for a system to find the solution.23
4. According to TORRENT24, it is frequently stated that common law
recognises case law as a primary source of law, and that therein lies
its major difference from civil law, which only recognises enacted law
or statute as a formal source of law. However, he also emphasises, and
in this he coincides with CANNATA, the undeniable fact that case law
precedents carry extreme importance and authority in continental
European systems as well. So much so that, in many fields, it is not
the law that is “known”, but rather it is the related case law that is
“known”.25
5. As the purpose of this work is to formulate some observations abut
the metohodological criteria of counterpropositions, we shall now move
on to focus on argumentum a repugnantibus and digestorum libri. It is
our intention that considering this type of legal literature more
closely may be fruitful and form a basis for argument, since in ius
Romanum itself (represented by these digesta) radicalisms and extreme
opposition can be avoided, and it may be an iter to invoke in support
of an intermediary route or, at least, a less extreme position.
(II)
The Libri digestorum (or Digesta) are authentic treatises on ius
privatum, which follow the expository order of the Edictum Pretorium.26
They came into being as a genre of legal literature27 in its
pre-classical phase with the veteres and, specifically, in the circle
of the Servi auditores28. It is no coincidence that SERVIUS SULPICIUS
RUFUS, considered to be the leading jurist at the end of the Republic
(along with QUINTUS MUCIUS SCAEVOLA29), in addition to being a
prolific teacher30, was the first to bring scientific activity into
the field of ius honorarium, whose productive source is the Praetor’s
Edict itself. His follower ALFENUS VARUS was the first to write a work
of this name: Digesta, a signifier, which importantly, comes from the
verb digerere = to order, and therefore means order. This idea is
anticipated in its title and it ends by reflecting through its
successive proponents, better than any other type of work within the
legal literature (with the logical exception of the libri
institutionum), the systematic tendency of the classical jurists. The
contents of ALFENUS’ digestorum libri were, in essence, his own
responsa and, above all, those of his maestro, which probably does not
prevent31 them from having the nature of private law treatises, as
stated in their definition.32 It is normally maintained that in
classical times the digesta changed the actual order of the ius civile33,
which was followed by their first proponent, and that they were
structured in two parts. The first part was produced with reference to
the ius honorarium, or rather, in accordance with the concepts of the
Praetor’s Edict34. The second belongs to ius civile, and deals with de
legibus, senatusconsultis et constitutionibus pincipum35. Regarding
its legal nature, the digestorum libri, should not be categorised as
problem-focused literature, even though they are casuistic. Certainly,
the digesta are composed of responsa (with ALFENUS VARUS)36 and the
libri quaestionum, responsorum, disputationum similiumque contain the
appendix (pars posterior), which covers laws, senatus consulta and,
sometimes, imperial constitutions.37 In some ways they are similar,
however the responsa are their only material, since casuistic rules,
arguments and reflections also appear along with quaestiones (or
disputations)38. In substance, the libri digestorum were something
more than a casuistic collection, because they contemplated all
possible arguments within private legal knowledge. They are more like
the libri ad edictum, with the difference that they are not based on
each discourse unit of the iuris prudens, dealing extensively with the
cases to which they can refer. In other words, they deal with the
legal “institution” that corresponds to the different points of the
edict in question or of other sources that they consider.39 Within
legal literature, and starting from the distinction between the
different degrees of abstraction achieved by its different types, the
responsorum libri would represent the lowest level, while the
digestorum libri, together with the ad edicta, the highest level, with
the difference that in the latter (ad edictum) the main focus is the
study of the ius honorarium (legal actions and means) while in the
former (digesta) the main focus is the ius civile (or rather, its
institutions included in leges and senatusconsulta).40 No Severian
jurist had the necessary talent or courage to face the complexity that
this type of work represents, limiting their authorship, splendour and
decline to the iurisprudentes of the second century. See: IUVENTIUS
CELSUS filius41, SALVIUS IULIANUS42, ULPIUS MARCELLUS43 and QUINTUS
CERVIDIUS SCAEVOLA44.
The most recent digestarum libri are the 40 by SCAEVOLA and the
best-known are the 39 by CELSUS (perhaps not used by Justinian to the
extent that they deserved)45, and the 90 by IULIANUS (one of the
greatest contributions to Roman legal literature), widely represented
in Justinian’s Digest, the compiler of which especially admired this
jurist and titled the part of his compilation referring to the iura in
his honour.
(III)
A final note in way of a practical example ends our thoughts on the
digestorum libri and its nature as intermediary legal literature
between our continental European legal regulations and the complex of
solutions represented by “case law”, represented by English and
Anglo-American law. In pre-classical and classical law, the case is
made known in iurisprudens through the narration of the person who
poses it (in modern-day terms, this would be the client). This
presentation is normally rich in details, which are frequently
trivial, and it is nothing but a translation of something that
occurred in real life. Based on this, the next thing that iurisprudens
will do is select and synthesise. That is to say, “isolate”46 only the
important elements of the story from a legal perspective and
coordinate them, in order to arrive at a statement of the facts
composed solely of the data that influence the decision. In other
words, this isolation is the legally correct statement of an event,
Sachverhalt, and the basis of its fair resolution. Therefore, on
reducing a case (species facti) to its legally relevant elements, it
loses its specific character (its individuality) and becomes an
outline that can be applicable to other cases (facti) that share the
same characteristics (species). This process, which can be continued
indefinitely47, is called Tatbestand by German Romanists. Thus, the
responsum do not only propose a solution to a specific case, but
rather to a situation that has been reduced to a type of case that
arises from a typical situation.48 Furthermore, it would be fitting to
introduce an intermediary step between the specific case and the
typical case49, which would come to represent a generic case, guide or
case type: Vertatbestandlichung des Sachverhaltes.
Moving from theory to practice we shall now pause to look at an
example regarding the manner in which a case is stated and in order to
do this, we shall use the first proponent of the digestorum libri.50
In D. 9.2.52 pr (II Digest), ALFENUS poses the scenario of a slave who
has been injured by a third party and dies as a consequence of the
injuries (Si ex plagis servus mortuus esset). The problem consists of
clarifying the cause and effect relationship between the illicit act
that has been committed (his death) and the damage initially caused
(the injuries), and of a possible interruption to the customary
causality. Or rather, if the perpetrator can be accused of a capital
crime or whether a claim can be made in accordance with lex Aquilia,
which, as GAIUS reminds us in 3.213, concedes to the person whose
slave has died (Cuius autem servus occissus est) the freedom to choose
(is arbitrium habet) between accusing the person who killed him of a
capital crime (vel capitale crimine rerum facere) or claiming
compensation for the damage in accordance with this law (vel hac lege
damnum persequi). In other words and in procedural terms, it is asked
whether the dominus, which was damaged in any event, can be covered by
Caput Primum of the lex Aquilia de damno iniuria dato (286 AC), which
penalised the unjust death of the slave, in which case the reus could
be condemned to paying the owner (tantum domino dare damnetur) the
maximum value of the slave during that year (quanti ea res in eo anno
plurimi fuit), (Gaius 3,210), or if he could only invoke Caput Tertium,
which refers (not to the death, but to the injuries, iniuriae) to all
other classes of damage (de omni cetero damno cavetur)51, with the
sentence, in such a case, for the person who caused the damage, being
the maximum value of the damaged object during that month (Hoc tamen
capite non quanti in eo anno, sed quanti in diebus XXX proximis ea res
fuerit damnatur is qui damnum dederit) (Gaius 3.212).
ALFENUS responds that the third party understands that the slave had
been killed, which means that he died due to the injuries that were
provoked, provided that the death did not come about (accidisset) as a
result of medical incompetence (medici inscientia) or the owner’s
negligence (domini negligentia), which is equivalent to not consulting
a doctor. If these two circumstances have not occurred, the owner can:
recte de iniuria occiso eo agitur. In short, this is a problem in the
relationship between cause (injuries) and effect (death). Thus,
according to the jurist it must be established whether the following
causality exists: plagae + dominus diligens + medicus sciens + mors =
(which will lead to) actio de mortuo eo; or whether, on the contrary,
this nexus does not exist: plagae + dominus negligens + medicus
insciens + mors = (which will lead to) the actio iniuriarum.
A second example from ALFENUS can be found in the same book and Digest
title (9.2.52.4), Alfenus libro secundo digestorum, in which he refers
to the following case: A group was playing with a ball (Cum pila
complures luderent) and one of them ran into (impulit) a young slave (quidam
ex his servulum) trying to get the ball (cum pilam percipere
conaretur, impulit). The slave fell over and broke his leg (servus
cecidit et crus fregit). The question was (quaerebatur) whether the
owner of the young slave (an dominus servuli) would have been able to
bring action based on lex Aquilia against the person who made him fall
over (lege Aquilia cuius impulsi deciderat, agere potest). He answered
that he could not (respondi non posse) because it was due to chance
and not fault (cum casu magius quam culpa videretur factum). In this
case we are not dealing with a problem of causality, but rather of
fault. If there is fault (or even malice), legis Aquilia de damno
iniuria dato can be exercised, while in its absence (casus or vis
maior) the actor that involuntarily causes damage would not be liable.
Applying this to current law, article 1902 of the Spanish Civil Code,
which regulates extra-contractual liability (or Aquilian liability, in
reference to this law) it can be observed that: “Anyone who, by action
or omission, causes damage to another through fault or negligence will
be required to repair that damage”, which is a generic and abstract
regulation, typical of closed legal systems. However, if we take the
viewpoint in the two texts by Alfenus (there is no doubt that here we
have a case!) we find ourselves with some of the same elements being
reiterated. For instance: iniuria, culpa and damnum and, obviously, a
necessary cause and effect relationship between the action, or
omission, and the damage. In the first fragment that we discussed, D.
92.52 pr, special focus is given to the causality relationship and the
possible causes that could interrupt the customary sequence. In the
second, D. 9.2.52.4, focus is placed on the exclusion of liability
through casus (a contrario, at least through culpa, its requirement),
and in both of them, the corresponding damnum and iniuria (in their
simplest terminological sense: not in accordance with law).
ALFENUS tells us of a real event involving the death of a slave, but
we should point out that neither the name nor the description and
circumstances of the slave are given, which distances us from the
specific case. A generic reference is also not used, as might be the
usual scenario of the slave Stichus. These elements represent two
steps in relation to the abstract, which bring us closer to the legal
regulation, the general and abstract characteristics of which have to
be borne in mind. In the scenario to which Alfenus refers, CANNATA52satirises
that it would be easy to imagine the real death of a young slave,
called Erotus, with golden hair. He continues hypothesising that
Erotus’ injuries were caused by Tullius, a treacherous baker, the
previous week. All of this being true, the only aspect of interest is
“the death of a slave as a consequence of injuries”: Si ex plagis
servus mortuus esset. This is not so far from a real event subsumed in
a regulation, which is not a novelty, if for example, we remember the
XII Tables, IV, 5, telling us Si intestato moritur…. The first case of
Alfenus is fulfilled by presenting the logical structure of a
hypothetical rule, since it is as valid to say “If one dies
intestate…” as “One who dies intestate…” or, in the case of Alfenus
“If a slave dies as a result of the injuries caused by a third party…”
as “When a slave dies as a result of the injuries…”.
Once again, we have criticised the radicalism of the
counterpropositions and attempted to defend the intermediary stance,
which, in our opinion, is reflected in the digestorum libri and their
legacy.
1 SCHULZ, F., Storia de la giurisprudenza romana, Italian translation
by NOCERA, G., Firenze, 1968. Original version: History of Roman Legal
Science, Oxford, 1946 (ed. Anastática, 1953). ESSER, J., Principio y
norma en la elaboración jurisprudencial del Derecho Privado, spanish
translation by VALENTI FIOL, Barcelona, 1961. Cfr. criticism by DE
CASTRO, ADC, XI, 1, p. 235 ff. and 283 ff. Original version, Grundsatz
und Norm, Untersuchungen zur Vergleichenden Allgemeinen Rechtslehre
und zur Methodik der Rechtsvergleichung, 1956.
2 GARCÍA DE ENTERRÍA, E, in his prologue to VIEHWEG, T., Tópica y
Jurisprudencia, Madrid, 1964, p. 12, n. 5 (the Spanish version of
Topik und Jurisprudenz, Munich, 1963) states that WIEACKER (cfr. full
bibliographic reference ibid) spoke fairly of “the boring controversy
surrounding the so-called jurisprudence of concepts”.
3 SEIDL takes us on a tour of Roman sources related to the difference
between the jurisprudence of concepts and the jurisprudence of
interests in his succinct and brilliant work, criticised by KASER, M.,
En torno al método de los juristas romanos, translation by MIQUEL, J.,
Valladolid, 1964, pp. 32 to 34, and specifically in his very extensive
n. 74.
4 KASER. En torno al método cit., pp. 10 in fine and 11, specifies
that axiomatic thought derives from a series of fundamental rules and
concepts which, as axioms (hence the name), do not need to be proven.
From these rules and concepts, by using logical deduction, all of
their maxims and concepts can be derived. These will not be capable of
contradicting one another or be derived or deduced from others, or
from the system. KASER concludes that only this type of legal system
can be considered a “system” in the Aristotelian sense.
5 NICOLAI HARTMANN’s category is reminiscent of GARCÍA DE ENTERRÍA in
the prologue to VIEHWEG, Tópica y Jurisprudencia cit., p. 13 and it is
VIEHWEG himself, op. cit., p. 51, who summarises HARTMANN’s
counterproposition between systematic-thinking and problem-focused
thinking starting from the problem and bearing in mind that if
emphasis is placed on establishing a system, the system operates on a
selection of problems; if focus is placed on the problems, then a
system is sought that will help in finding the solution.
6 A problem is understood to mean any matter that apparently has more
than one solution.
7 Especially Australia and New Zealand.
8 That is, the United States of America (except Louisiana) and Canada
(except Quebec).
9 Cfr. for all, to be used as a type of manual, differences between
the Roman jurisprudential system and current open (legal) systems in
GARCÍA GARRIDO M.J., Derecho Privado Romano, Madrid, 1991, pp.
117-120.
10 KASER, En torno al método cit., p. 12 if and 13 pr. reminds us that
topical thinking does not start from within the system as a whole,
from which the applicable rule to resolve the case can be retrieved by
deduction. Instead, it starts within the case itself and involves
searching for the premises that will allow the case to be resolved and
attempting to produce general guidelines and guiding concepts that
will allow the solution to be induced. These guiding concepts are
topoi, while topics consist of “the art of finding these topoi”.
11 VIEHWEG, Tópica y Jurisprudencia cit., p. 52, summarises the
counterproposition in this way: Systematic thinking stems from the
whole; aporetic thinking works the other way around.
12 CICERO, Top. III, 21.
13 KASER, En torno al método cit., p.10.
14 Cfr. for all, KASER, En torno al método cit., p.10.
15 KASER, (following VIEHWEG), En torno al método, cit., p. 14,
summarises that the topical searches for premises that are not
susceptible to deduction, while logic, on the other hand, syllogises
to create premises. Reminds us that anyone who uses topics to deal
with a problem (hence, for some such as VIEHWEG, the terminological
comparison between the problematic and the topical) cannot reject
deductive thinking. This is because although the initial premises are
induced, their application to the specific case is achieved using
logical deduction.
16 Topics has a role that, in the language established by VIEHWEG,
Tópica y jurisprudencia cit., is problematic; hence the terminological
comparison alluded to in the previous note.
17 GUZMÁN, Historia de la interpretación de las normas en Derecho
Romano, Santiago de Chile, 2000, p. 311, who I follow, criticises
VIEHWEG’s counterproposition. GUZMÁN tells us that what VIEHWEG is
really trying to do, is to differentiate between codified and
uncodified legal systems.
18 GUZMÁN, Historia de la interpretración cit. p. 312, calls this
second role systematic.
19 VIEHWEG, Topica y jurisprudencia cit., p. 34, explains this in the
following way: ARISTOTLE distinguishes between that which is
apodictic, field of truth, attributable to philosophers; and that
which is dialectic, field of opinion, which corresponds to
rhetoricians and sophists. Topics comprise the art of argument and
belong to dialectical rather than apodictic terrain; topoi are
dialectical and rhetorical conclusions. CICERO does not allude to this
distinction. Invention = discovery (ars inveniendi) art of discovering
arguments, and the formation of judgement (ars iudicandi), are the
essential parts of the dissertation, where he called the first topics
and the second, dialectic.
20 Thus, with the title Topics, ARISTOTLE composed a philosophical
book: he formulates a theory of the dialectic as a rhetoric art and is
primarily interested in causes. CICERO, on the other hand, with the
same title, produces a prescriptive tool; he centres on the practice
of argumentation; he attempts to apply a specific catalogue of topics
and is interested in the results. Cfr. VIEHWEG, Tópica y
jurisprudencia cit., pp. 43-45 and in general, ch. II, La Tópica
aristotélica y la Tópica ciceroniana pp. 32 ff. ARISTOTLE
distinguishes between that which is apodictic, field of truth,
attributable to philosophers and that which is dialectic, field of
opinion, which corresponds to rhetoricians and sophists. Topics = the
art of argument, and belongs to dialectical rather than apodictic
terrain. Therefore, topoi are dialectical and rhetorical conclusions.
CICERO does not allude to this distinction. Invention = discovery (ars
inveniendi), the art of discovering arguments, and the formation of
judgement (ars iudicandi) are the essential parts of the dissertation,
in which he called the first topics and the second, dialectic.
21 VIEHWEG, Tópica y jurisprudencia cit, pp. 52, 53 and 77, summarises
by saying that the first-degree topics originate in the case itself,
involve searching for the premises that might serve to resolve the
case and then attempting to produce general guidelines or guiding
concepts that allow a decision to be induced. This observation shows
that in daily life, this is almost always the usual way to proceed.
KASER, Método de los juristas, cit, pp. 12 and 13, completes this note
in his summary that: the guiding concepts are topoi, while topics are
the art of discovering them.
22 A catalogue of topics, under the title de regulae iuris antiquae,
is supplied by D.50.17.
23 GUZMÁN, Historia de la interpretación cit., pp. 312, defends this
compatibility and actually calls the second function (see our n. 21)
systematic. For the connections, in synthesis, between problem-focused
and systematic thinking as explained by HARTMANN, cfr. VIEHWEG Tópica
y jurisprudencia cit., pp. 50-52. Complete bibliographic references to
HARTMANN, ibi, p. 49, n. 24, without forgetting our notes 19 and 21.
Remember the obvious: a problem is any matter that apparently allows
more than one response and for which it is necessary to find one
single response as a solution, which leads to the problem becoming
incorporated into a system.
24 TORRENT, A. Fundamentos del Derecho Europeo, Ciencia del Derecho:
derecho romano-ius commune-derecho europeo, Madrid, 2007, pp. 248-260;
343-345.
25 Cfr. for everyone, CANNATA, CA, Historia de la ciencia cit. ch.
XIV: I) Dos tradiciones jurídicas II) Case law y dogmatic, pp 238-242.
26 CANNATA, Historia cit., p. 77.
27 GUARINO, A., L´esegesi delle fonti del diritto romano, I, pp.
169-178, Napoli, 1968, systematises le forme della letteratura
giuridica classica and distinguishes between: A) commentaries: a)
whether on civil or praetorian law, such as the iuris civilis libri or
the ad edictum respectively; b) whether texts of the ius publicum; c)
or works by preceding jurists such as notes and observations, with
different titles (ad ex.: the libri ad and the name of the
iurisprudens treatise; libri ex and the name of the author and work on
which he wrote the commentary, or, finally, as notae ad…or epitomae);
B) casuistic works proprio sensu, or rather, collection of casus or
problemata, with their solutions, such as the libri: a) responsorum;
b) quaestionum, disputationum and epistularum and c) the digestorum,
basically collections of quaestiones and responsa, very extensive, in
such as way as to contemplate all private law in force. C) monographic
works: a) either of a special nature, such as the libri dedicated to
the ius fisci or to the res militaris; b) or of specific practical
importance, such as the libri de iudicis publicis; on exercising an
officio of a public nature: such as those de officio consulis,
proconsulis, praesidis, praefecti.. or in matters of cognitio extra
ordinem; and c) on private law, such as manumisiones, nuptiae;
verborum obligationes; testamenta; fideicommissa…; and D) elementary
didactic works in their two forms: a) systematic manuals b) elementary
chrestomathy, such as the collections of: regulae, definitiones,
sententiae, opiniones, differentiae.
28 With his Ad Brutum libri II (work from which there are only a few
references) Serviuscommences the ad Praetoris Edictum commentaries.
Thus, Pomponius in D. 1.2.44 Lib. Sing. Enchr. tells us: Servius duos
libros ad Brutum perquam brevísimos ad edictum suscriptos reliquit and
Cic. de leg 1.5.17: non ergo, a praetoris edicto, ut plerique nunc…
hauriendum iuris disciplinam putas (plerique means the many followers
of Servius, of whom Pomponiuscites 10 in the aforementioned Digest
text).
29 In a way they apply the same scientific method. Thus, according to
Pomponius, D. 1.2.2.41 Lib. Sing. Enchr. while Quintus Mucius Scaevola
was the first to systematise the ius civile, this activity was
continued by Servius Sulpicius Rufus in the ius honorarium. Cfr. above
note.
30 Creator of the Servian school (auditores Servii) as mentioned in D.
1.2.44.
31 CANNATA, Historia cit., p. 77.
32 Cfr. LENEL, O., Palingenesia Iuris Civilis. I, Lipsiae, 1889, pp.
37-54. That of the digestorum libri XL, such as genuinum Alfeni opus,
(Alfeni digesta), for which we only have numeric references to three
of his books: I (D. 28.1.25 Iav. 5 post Lab), XXXIV (Gell. N. Att.
7.5.1), and XXXIX (D. 3.5.20.pr Paul. 9 ad Ed.); That for which
indirectly, and anonymously (Alfeni Digesta ab anonymo epitomata libri
VII) we have references to five works (to II, IV, V, VI and VII);
through Paulus’ epitome (Digesta a Paulo epitomata vel Paulus
epitomarum Alfeni libri VIII) to seven (from I to VI and VIII); and
where, finally, there are 16 fragments of the Digest where Alfenus
laudatur non indicato libro, to paraphrase LENEL. It is risky to
dogmatise regarding the specific and precise order (or systematic
structure) and the possible (or probable) analogies to and/or
differences from the one adopted, in classical times by: Celsus,
Julianus, Marcellus and Cervidius Scaevola. GUARINO, L´Esegesi cit.,
p. 142, only “assumes” the order of the material contained in the
Praetor’s Edict in the work of Alfenus, and on p. 143 he sheds doubt
as to the classical nature of the sources (epitome and copy) used by
the compilers of the Digest. TORRENT, Diccionario de Derecho Romano,
Madrid, 2005, p. 100 (Alfenus Varus) considers the order of the Edict
to be “likely”. CANNATA, Historia, cit., p. 55 states that it is,
still, a collection of responsa, but sufficiently rich and coordinated
to be classified as a “treatise of private law”. On p. 77 and in n.
157 he distinguishes between the structure of Alfenus’ digesta and
that of the four classical jurists. He maintains that Alfenus’ digest
would follow the order of the ius civile, and on p. 56 claims that
this can even be proven. We agree with CANNATA on these issues, in
that it is necessary to continue bringing up the observations of
SCHERILLO, G., “Il sistema civilistico”, in Studi Arangio Ruiz, IV
(1953), pp. 445 - 467.
33 The matters with which it dealt followed a practical order, and
were centred on four fundamental aspects of the ius civile:
testamentum (which allows us to speak of ab intestato succession);
mancipatio (which makes it possible to deal with sale and purchase,
and easement); in iure cessio (which leads to dealings related to
society); and finally, stipulatio (with the many practical
applications that it makes possible). CANNATA, Historia cit., p. 56,
tells us that it relates to the traditional order of the old
collections of commonly known formulae and that it allowed the work to
be consulted at ease; it was the order of the collections of responsa
themselves and, in one case, Alfenus’ Digesta, it can even be proven.
Following SCHERILLO, CANNATA notes that while the order of the
different works may present certain peculiarities, the general
structure and the idea being governed is invariable. In more detail,
Mucianus’ order of matters was: I) Inheritance (testamentary
succession, heredis institutio, exheredatio, acceptance and
renouncement, legacies and ab intestato succession); II) Persons
(matrimony, guardianship; statuliber; patria potestas; potestas
dominica, freemen and as an appendix: procurator and negotiorum gestor);
III) Things (Possessio and usucapio, non usus and usucapio libertatis);
and IV) Obligations: Contracts, (mutuum, commodatum, locatio conductio,
appendix to easements, and societas) and Crimes (iniuriae, furtum,
damnum iniuria dato ex lege Aquilia). Cfr. LENEL, Palingenesia cit.,
II, p. 1256, which gives detailed information about Ad Sabinum
librorum rubricarum index. KASER, En torno al método cit., pp. 39 to
42, carries out work on synthesis: The only thing that is shown
regarding expository order is that closely-related matters were
united. There is still a method of thinking that acts on the
association coming from empiricism, and like in argumentation, in the
majority of cases we see the genesis of systematic construction. It
begins to deal with matters with an object that forms the centre of
interest, and then it goes from one matter to another, via external,
analogous and different relationships.
34 The Edictal System was classified by MOMMSEN as “more than order
from disorder” the Perpetual Edict, according to LENEL’s Palingenesia
cit., II, pp. 1247-1255, includes four large groups of matters: 1)
(titles I-XIII, inclusive, de litis exhordio) included the general
principles of iurisdictio and the special principles of the municipal
magistrates, the establishment of judgement (de edendo), citation (in
ius vocando) capacity and authentication of the parties (de postulando),
representation, (de cognitoribus et procuratoribus et defensoribus),
procedural guarantees (de vadimoniis), supplementary remedies of the
iurisdictio (pacta conventa, receptum arbitrii, compromissum), cases
of concession of in integrum restiututio, finishing with the rubrics
de receptis and de satisdando. 2) (titles XIV-XXIV) the most extensive
includes everything relating to the problems of ordinary procedure (de
iudiciis omnibus) and, in essence, it coincided with the matters dealt
with in the civilist works, accompanied by the modifications agreed by
the praetor. It discusses, in detail, cases where the praetor grants
action (iudicium dabo) although the expository order does not respond
to logical criteria and the grouping of matters seems to be more
circumstantial, according to TORRENT, Diccionario cit., pp. 1215-1216.
It is centred on the sphere of obligation (de rebus creditis; of the
actiones that tradition has called adiecticiae qualitatis; de bonae
fidei contractus) in matters relating to the family (de re uxoria; de
liberis et de ventre; de tutelis and de iure patronato) and to crime (de
furtis). 3) (titles XXV-XXXV) mainly contain institutions of
praetorian creation, especially bonorum possessio (completed in the
sphere of succession in relation to de testamentis; de legatis and de
liberali causa) and to a lesser extent, of tenement actions; de
publicanis; de praediatoribus and de iniuriis, among others. 4)
(titles XXXVI-XLII: de extremis iurisdictionis) allude to the
execution and efficacy of sententiae of the iudex ptivatus; re
iudicata, execution procedures and arrangement with creditors. An
appendix or 5th and final part (titles XLIII-XLV) deals with:
interdicta, exceptiones and stipulationes praetoriae. KASER, En torno
al método cit., pp. 42 and 43, tells us that: it is characterised by
its flexible procedural guidelines and the total lack of a private law
system; its purpose is not to produce and ordered system and it uses
discursive thinking to deal with problems; it shows the disdain that
he felt for the dialectic method.
35 These would be their specific references according to LENEL,
Palingenesia cit., II, p. 1255: Ad leg. XII T: de hereditate legitima;
Ad leg. Cinciam: de donationibus; Ad leg. Falcidiam; Ad leg. Corneliam:
de captivis et postliminium; Ad leg. Aeliam Sentiam; De adoptionibus
(?); Ad leg. Iuliam et Papiam ; De publicis iudiciis; Ad leg. Aquiliam;
Ad leg. Rhodiam; Ad leges de adpromissoribus latas.
36 Offering the solution to a real or theoretic case, proposed to the
jurist or that he poses himself, always with a dogmatic or didactic
purpose in consultation with his own followers.
37 CANNATA, Historia cit., pp. 75-77 and n. 133 and 158. This appendix
in the digesta is very important and its proportion in regard to the
libri, ordered in accordance with the Edict, is of special note. Thus:
27/12, for the XXXIX digesta of Celsus; 58/32 for the XC of Julianus;
21/10, for the XXXI of Marcellus and 21/19 for the XL of Cervidius
Scaevola. From the Indices of LENEL, Palingenesia cit., II, p.1255,
under the title IV Digestorum, questionum, responsorum, sententiarum
similiumque librorum rubricarum index, and in regards to the pars
posterior: ad leges, senatusconsulta constituciones principum, what is
referred to in the text is clear. The inclusion (as an appendix) in
these works of comments on the sources of ius civile. These are
especially evident in the following cases: Regarding the responsorum
libri XIX of Papinianus from 12 (proportion: 11/8) and the responsorum
libri XIX of Modestinus from 14 (13/6). Regarding the quaestionium
libri XX of Cervidius Scaevola from 15 (14/6); the quaestionium libri
XXXVII of Papinianus from 29 (28/9), the quaestionum libri XXVI of
Paulus, from 17 to 25, (16/9) C) Regarding the disputationium libri X
of Ulpian from 8 (7/3).
38 Although the notion of responsum (response from the jurist to the
client in a real case posed by him) differs from quaestio (questions
from the followers to the maestro when faced with nuances or variants
of the case, whether posed, suggested or formulated by them as
hypotheses, after the client has left), the same is not true of libri
responsorum or quaestionum in which responsa and quaestiones are
thoroughly mixed. According to CANNATA’s statement, Historia cit., pp.
76 and 77, this makes it fitting to extend them to include the libri
epistolarum and a long etcetera, and which, he reminds us, is the
motivation for SCHULZ’s fair and generic classification of all of
these models as problem literature.
39 To paraphrase CANNATA, Historia cit., p. 78, a text like this, a
thematic commentary, or a vision clearly based on ius honorarium, is
contrasted with another that has more relation to ius civile or that
deals with matters that fall under ius civile.
40 Vid. for all, regarding concepts, analogies and differences within
this casuistic literature, TORRENT, Diccionario cit., pp. 319, 642 and
643.
41 The digesta of P. Iuventius Celsus… filius (Celsi digestorum),
cover: the first part (pars prior) is related to ius honorarium and
contains commentaries on the edict (ad edictum) in a total of 27 books
(lib. 1-27). The second part (altera) contains the remaining books (lib.
28-39) with comments on the ius civile and, specifically, on the laws
and senatus consulta (ad leges senatusque consulta pertinet) that come
from it. Cfr. LENEL, Palingenesia cit., I, pp. 127-171.
42 The digesta of Salvius Julianus (Iuliani digesta) with a total of
90 books, cum notis of Mauricianus, Marcellus, Cervidius Scaevola and
Paulus, are from Adrianus and Antoninus Pius times, 117-138 (conscripta
sunt sub Hadriano et Antonino Pio) and are divided into two parts (Sunt
autem divisa in duas partes). The first covers up to book LVIII and
deals with ius honorarium and follows the order of the Edict (quarum
prior (lib. I-LVIII), edicti sequitur ordine), the final draft of
which is fixed (being able to state, based on its Edictum Perpetuum,
ex Edicto Perpetuo a Iuliano composito). The second part (posterior (lib.
LIX-XC)) deals with ius civile and the laws and senatus consulta on
which it is based (ad leges pertinet senatusque consulta). Cfr. LENEL,
Palingenesia cit., I, pp. 318-483.
43 The digesta of Ulpius Marcellus, with notes by Cervidius Scaevola
and Ulpianus, are from the times of Antoninus Pius and the Divi
Fratres, 161-169 (Marcelli digesta conscripta videntur M Aurelio et
Lucio Vero imperantibus). Their first part (parte priore) covers the
first 21 books of the 31 of which they consist, and deal with the
Edict, source of ius honorarium (Ad edictum pertinent libri I-XXI
(parte priore)). Their final part consists of the ten following books
and deals with other sources of the ius civile in which the imperial
constitutions now appear (ad leges senatusconsulta constitutiones,
libro XXXI (parte posteriore) sqq.). Cfr. LENEL, Palingenesia, cit.,
I, pp. 318- 589-631).
44 The digestorunm libri XL of Q. Cervidius Scaevola, are probably the
most recent (sub Marco et Vero, Commodo, Septimio Severo.impp
193-211). They follow (ius honorarium) the order of the Perpetual
Edict in their first 29 books (Edicti perpetui ordinem sequuntur libri
I-XXIX). The others deal with ius civile and contemplate laws and
senatus consulta (reliquos libros omnes ad leges senatusque consulta
spectasse suspicari licet). Cfr. LENEL, Palingenesia, cit., pp.
215-270.
45 LATORRE, A. Iniciación a la lectura del Digesto, Barcelona 1978, p.
35.
46 Cfr. SCHULZ, Principios del Derecho Romano, 2ª Ed. Translation by
MA VELASCO, Madrid, 2000, pp. 39-59.
47 SCHULZ, Principios cit., p. 61-62, after reminding us that “in the
beginning there was the case”, gives the following example: the vendor
of a horse has to compensate the purchaser for the damage arising from
a delay, and signals the following possible steps tending towards the
abstract: 1) the vendor of a horse has to compensate the purchaser for
the damage arising from the delay; 2) the vendor of an animal… id …;
3) the vendor of a thing… id…;4) the debtor has to compensate the
creditor… id…; 5) the debtor has to compensate the creditor for the
damage arising from the violation of his credit right.
48 Cfr. for all GARCÍA GARRIDO, from that now far away 1965, in his
Casuismo y Jurisprudencia Romana, Pleitos famosos del Digesto,
occupies himself with Roman jurisprudence and the casuistic
elaboration of law, above all, for his clarity and synthesis: Derecho
Privado Romano cit., La técnica de elaboración casuística, pp. 90-94.
49 To use the German terminology: Sachverhalt and Tatbestand, CANNATA,
Historia cit., pp. 53 and 63.
50 Cfr. VIEHWEG, Tópica y Jurisprudencia cit., ch. IV La Tópica y el
Ius Civile, pp. 67 to 83, in general and 67 to 70 in particular, for
some texts of Julianus’ Digests coming from D. 41.3.33.
51 Gaius 3.217 states that damage is understood in the broadest sense
of destruction.
52 CANNATA, Historia, cit., p. 53.
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