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The sources of Roman law
Republican Jurists[1]
Note: The jurists mentioned in this document are listed roughly in chronological order. This reflects the progression of the ‘profession’ as well as the familial and educational links between various individuals. It also links up to the online timeline and its downloadable version. Our focus here is mainly on the jurists mentioned in the text. For a complete overview of all of the jurists, see the works cited in the footnote below.
The jurists cited in this section are:
Appius Claudius Caecus
Tiberius Coruncanius
Sextus Aelius Paetus Catus
Marcus Porcius Cato
Manlius (or Manius) Manilius
Marcus Iunius Brutus
Publius Mucius Scaevola
Quintus Mucius Scaevola
Aelius Cascellius
Servius Sulpicius Rufus
Granius Flaccus
Pacuvius Antistius Labeo
Aulus Ofilius
Quintus Aelius Tubero
Gaius Trebatius Testa
Gaius Aelius Gallus
Aufidius Namusa
Publius Alfenus Varus
Appius Claudius Caecus - He is one of the earliest known Republican Jurists and held the office of Censor (a position of considerable influence) in 312 BC. Under his supervision, the Via Appia was extended south to Capua and the Aqua Appia was constructed. He is known as caecus (blind) since, according to a popular story, he was struck blind by the gods on account of controversial decisions made during his censorship. He held various important offices of state including the Consulship (twice) and Praetorship. It would seem that the Roman iteration of public offices (the cursus honorum) was not yet as rigidly laid down during this time. There are certainly some irregularities in the length of time Appius Claudius retained certain offices. The traditional account states that his scribe, Gnaeus Flavius, obtained the pontifical calendar as well as a collection of the actions-at-law and made these generally available (the term ‘publication’ is much debated) to the Roman populace at large. This collection, known as the ius civile Flavianum (circa 304 BC), undermined (possibly unintentionally) the pontifical monopoly of the law. The entire matter is much debated. There is some controversy concerning the extent of Appius Claudius’ involvement in the publication of this work. Apart from the ius civile Flavianum, he is also credited as being the author of a book de usurpationibus, but the precise content of this work is also steeped in controversy. It is widely believed that this book could not have dealt with the interruption of usucapio (the technical meaning of the term usurpatio), but must have had a wider scope (possibly concerning the ius trinoctii). He is rumoured to have also authored some works of (moral) prose.
See Bauman, Lawyers in Roman Republican Politics, pp. 21 – 66 as well as Schulz, Legal Science, 9 for a sceptical account.
Tiberius Coruncanius – He held the offices of Consul in 280 BC, Pontifex Maximus in 254/3 BC, the first plebeian to be elected to this office. He is widely regarded as being the first jurist to give substance to legal education, since he is described as the man ‘qui primus profiteri coepit.’ The precise meaning of this phrase remains unclear, but it is widely believed that it refers to some sort of public activity outside the normal meeting place of the college of pontiffs. It seems plausible that he allowed members of the public and students of law to attend his consultations in his capacity as the Pontifex Maximus tasked with giving legal advice to citizens.
See Bauman, Lawyers in Roman Republican Politics, pp. 66 – 92 as well as Schulz, Legal Science, 10 – 11 for a sceptical account.
Sextus Aelius Paetus Catus – He held the offices of Curule Aedile in 200 BC, Consul in 198 BC and Censor in 194 BC. His rapid rise through the ranks of the cursus honorum, may have been due to his great intelligence, the word catus meaning “clever”. He apparently gave up his public career to devote his time to the study of law and he is sometimes credited with being the first ‘professional’ jurist in the history of Rome (in the sense of making it the object of full-time professional study). He is the author of a work known as the Tripertita in which he systematically set out each provision of the Twelve Tables together with his commentary and a discussion of the appropriate action at law. He also authored another work, the Ius Aelianum in which he discussed the actions-at-law. The Tripertita was apparently still in existence in the time of the Republic. It is described as cunabula iuris (the cradle (or elements) of the law).
See Bauman, Lawyers in Roman Republican Politics, pp. 121 – 148 as well as Schulz, Legal Science, 35 - 36.
Marcus Porcius Cato - Both father and son shared the same name. This entry is mainly concerned with the former. The father, Marcus Porcius Cato Censorius, is a many-sided figure in Roman Republican history who achieved fame not only as a scholar of Roman law, but also as a highly successful legal practitioner, orator and politician. He was born in Tusculum from a humble family and began his military career in 214 as Tribune, rapidly progressing along the cursus honorum, Consul in 195 and eventually becoming Censor in 185/4 BC (the pinnacle of his public career). Apart from various other works attributed to him (De re militari; Carmen de moribus; Ad filium), he is best known as the author of De Agri Cultura, a treatise on agriculture in which legal aspects of many agricultural contracts have been preserved. Apart from his preoccupation with rural concerns, morality seems to have been one of his prime concerns (especially in attempting to curb the influence of Greek culture on Roman culture) and he is known to have introduced punitive measures against the patricians for conspicuous displays of wealth and luxury. Little is known about the life of the son, Marcus Porcius Cato Licinianus. He (the son) is known to have been the author of a book, De iuris disciplina, a treatise on the ius civile. He also seems to have been involved in the introduction of the Regula Catoniana.
See Bauman, Lawyers in Roman Republican Politics, pp. 148 – 224. On the father, see also, among others, Astin, A.E. Cato the Censor (Oxford 1978).
Manlius (or Manius) Manilius – He was an eminent orator and distinguished jurist, who held the office of Proconsul in 155/4 BC and Consul in 149/8 BC. He was the author of a collection of formula for contracts of sale and his works were still read in the classical period. Varro cites him in his definition of nexum.
Marcus Iunius Brutus – He held the office of Praetor in 142 (?) BC and was the author of an introductory work on the ius civile in 3 (perhaps 7) books.
Publius Mucius Scaevola – Tribune in 141 BC, Praetor in 136 BC, Consul in 133 BC, Pontifex Maximus in 130 BC deceased in 113 BC. He is one of the lesser-known Republican jurists from the illustrious Scaevola family. He is known to have been an advisor to Tiberius Sempronius Graccus and apparently also produced a series of histories (annales maximi).
Quintus Mucius Scaevola - The Scaevola family produced a number of jurists, but none as illustrious as Quintus Mucius Scaevola (the Pontifex) (c. 140 BC – 82 BC), Consul in 95 BC Pontifex Maximus in 89 BC. He is credited with being the first Republican jurist to treat the ius civile generatim (in 18 books), but there is some debate as to the exact meaning of this statement. The most plausible explanation is that he was the first to employ the dialectic method in his discussion of the law. His works seem to have been read during the classical period. He seems to have contributed to the development of ‘cautelary’ jurisprudence and was involved in the development of the cautio muciana (in relation to legacies in wills) and the praesumptio muciana (about ownership of goods held by a woman).
See Bauman, Lawyers in Roman Republican Politics, pp. 340 – 429 as well as Schulz, Legal Science, 64. For a survey of the most important sources concerning his life and a critical review of modern scholarship, see Schiller, Roman law, paras 110 – 111.
Aelius Cascellius – Late Republican jurist who lived during the dictatorship of Sulla. Author of a formula called the iudicium cascellianum.
See Bauman, Lawyers in Roman Transitional Politics, pp. 117 – 123.
Servius Sulpicius Rufus – One of the most influential jurists of the late Republic, who was the teacher of many prominent jurists of the classical period. Servius studied rhetoric in Rhodes and remained a student of philosophy throughout his life, but gave up a career in oratory in favour of the legal profession. He held the offices of Praetor in 65 BC and Consul in 51 BC. Although he joined the faction of Pompey in 49 BC, he was later pardoned by Caesar and subsequently appointed as governor of Greece in 46 BC. He died in 43 BC while travelling to negotiate with Mark Anthony and was honoured with a public burial and a statue. He was a good friend of Cicero, who was impressed by his abilities when they acted as opposing counsel in the prosecution of Lucius Licinius Murena for electoral corruption (Pro Murena). Servius was a prolific writer of 180 books. He produced the first commentary on the Praetorian Edict, a commentary on the Twelve Tables and some works on sacral law.
See Bauman, Lawyers in Roman Transitional Politics, pp. 4 – 65; Stein, P. The Place of Servius Sulpicius Rufus in the Development of Roman Legal Science, in Festschrift Wieacker, pp. 175 – 184. For a good overview of the primary sources and a critical assessment of modern scholarship on him, see Schiller, Roman law, paras 111 – 112.
Granius Flaccus – Contemporary of Julius Caesar. He is rumoured to have been the author of a commentary on the laws of the kings entitled “De iure Papiriano”, a work of considerable antiquity. There is some controversy about the original work on which his commentary was based, but its existence is plausible.
Pacuvius Antistius Labeo – Father of Marcus Antistius Labeo (the famous jurist) and a follower of Servius Sulpicius Rufus. Not much is known about his activities as a jurist.
Aulus Ofilius – Author of an extensive commentary (possibly the first) on the Praetorian Edict. He was a student of Servius Sulpicius Rufus.
See Bauman, Lawyers in Roman Transitional Politics, pp. 71 – 89 as well as Schulz, Legal Science, 91.
Quintus Aelius Tubero – Fought against Caesar at the battle of Pharsalus, but was later pardoned. He unsuccessfully prosecuted Quintus Ligarius in 46 BC for his co-operation with Juba, but he does not seem to have had a public career thereafter. Author of works on constitutional law (specifically the senate) and the duties of a judge, perhaps also a series of histories.
See Bauman, Lawyers in Roman Transitional Politics, pp. 113 – 117.
Gaius Trebatius Testa – Late Republican jurist of equestrian stock, who was a friend and contemporary of Cicero (the Topica are dedicated to him) and the teacher of Marcus Antistius Labeo. He seemingly did not hold any public office apart from acting as advisor to Caesar and later Augustus, whom he famously advised on the matter of the informal codicil. He seems to have been the author of treatises on the ius civile and divine law, though these have not survived.
See Bauman, Lawyers in Roman Transitional Politics, pp. 123 – 136.
Gaius Aelius Gallus – He is a minor jurist of the late Republic and seems to have produced a work on the topic of the meaning of legal terms. Apart from this, little is known about him.
Aufidius Namusa – He was a Republican jurist and was a student of Servius Sulpicius Rufus. According to Berger, he seems to have authored a book of excerpts (largely) from the works of followers of Servius.
Berger, Encyclopedic Dictionary, entry on Aufidius Namusa as well as various snippets of information in Schulz, Legal Science.
Publius Alfenus Varus – Born (possibly) in Cremona, Consul Suffectus in 39 BC and a ‘new man’. He was a student of Servius Sulpicius Rufus and the author of an extensive work, a Digesta, in 40 books. He is credited with being the first jurist to use the term “Digest” when referring to a series of ordered abstracts. In the 41 BC he was involved in the confiscation of land for redistribution to veterans. He aided Virgil either in retaining his land or obtaining compensation on account of the confiscation.
See Bauman, Lawyers in Roman Transitional Politics, pp. 89 – 105.
[1] Biographies have been compiled using Schulz, F. History of Roman Legal Science (Oxford 1946); Berger, A. Encyclopedic Dictionary of Roman Law (Philadelphia 1953); Schiller, A.A. Roman law: Mechanisms of Development (The Hague/Paris/London 1978); Syme, R. Fiction about Roman Jurists, (1980) 97 ZSS (rA), pp. 78 – 104; Bauman, R.A. Lawyers and Politics in the Early Roman Empire (Munich 1989); Bauman, R.A. Personal names, adoptions and families of Roman jurists, (1991) 108 ZSS (rA), pp. 1 – 20; Spruit, J.E. Enchiridium 4th edition (Deventer 1994); Hazel, J. Who’s Who in The Roman World (London 2001); Hornblower, S. and Spawforth, A. (eds.) The Oxford Classical Dictionary 3rd revised edition (Oxford 2003); Matyszak, P. Chronicle of the Roman Republic (London 2003) (pbk 2008).