Salvius Julianus

Lucius Octavius Cornelius Publius Salvius Julianus Aemilianus (c. 110 – c. 170), generally referred to as Salvius Julianus, or Julian the Jurist, or simply Julianus [Iulianus], was a well known and respected jurist, public official, and politician who served in the Roman imperial state. Of North African origin, he was active during the long reigns of the emperors Hadrian (r.117–138), Antoninus Pius (r.138–161), and Marcus Aurelius (r.161–180).

In the Roman government, Julianus gradually rose in rank through a traditional series of offices. He was successively quaestor to the Emperor Hadrian (with double the usual salary), tribune of the plebs, praetor, praefectus aerarium Saturnii, and praefectus aerarium militarii, before assuming the high annual office of Roman consul in 148.[1] Julianus also served in the Emperor's inner circle, the consilium principis, which functioned something like a modern cabinet, directing new legislation, but also sometimes like a court of law. "Hadrian organized it as a permanent council composed of members (jurists, high imperial functionaries of equestrian rank, and senators) appointed for life (consiliarii]."[2] In the 4th-century Historia Augusta,[3] the Emperor Hadrian's consilium principis included Julianus.

"When [Hadrian] sat in judgment, he had on his council not only his friends and comites, but also jurists too, and in particular Juventius Celsus, Salvius Julianus, Neratius Priscus, and others, all of whom, however, the Senate had recommended."[4] Cum iudicaret, in consilio habuit non amicos suos aut comites solum sed iuris consultos et praecipue Iuventium Celsum, Salvum Iulianum, Neratium Priscum aliosque, quos tamen senatus omnia probasset.[5]
In his, quae contra rationem iuris constituta sunt, non possumus sequi regulam iuris.
— Iulianus, liber 27 digestorum

Though Julianus for decades served several emperors in succession, at high levels of the Roman imperial government, to investigate the details of his jurisprudence his written works on law are the primary sources. "The task of his life consisted, in the first place, in the final consolidation of the edictal law; and, secondly, in the composition of his great Digest in ninety books."[6]

Life and career

Julianus was born during the last years of the Emperor Trajan (r. 98–117), probably at the village of Pupput near the Roman colony of Hadrumetum, on the east coast of Africa Province (now modern Sousse in Tunisia). Apparently he came from a Latin-speaking family. At Hadrumetum, an inscription has been discovered which describes his career in office.[7][8]

He studied law with Javolenus Priscus, the head of the Sabinian school of legal thought. Julianus refers to Javolenus in his mature legal writings.[9][10][11] Even as a young man he was renowned for his learning. According to his contemporary the Roman jurist Sextus Pomponius, Julianus (along with Aburnus Valens and Tuscianus) eventually came to lead for a time this very influential school of jurisprudence. A student of Julianus, namely Sextus Caecilius Africanus, perhaps later followed as the head of this Sabinian school.[12][13]

During the Principate the classical Roman law flourished.[14] Two schools of legal thought contended: the Proculian (earlier linked to Labeo) and the Sabinian. It appears there was some rivalry between Julianus who led the Sabinian, and another Roman jurist, a contemporary Publius Juventius Celsus who led the Proculian. Neither one quoted the other in his writings apparently.[15] Among long-standing, close colleagues of Julianus were the aforementioned jurists Africanus and Pomponius.[16][17]

During this period Hadrian (r.117–138) also appointed Julianus to revise into final form the Praetor's Edict, which up until then had been announced annually. Thereafter, Julianus became occupied with writing his own substantial commentary on developments in Roman law, his celebrated Digestorum libri xc [Digesta in 90 books].[18]

Under the next Emperor Antonius Pius, Julianus continued serving in the imperial council, the consilium principis.[19] Subsequently he became governor of Germania Inferior under Antonius Pius, and later governor of Hispania Citerior under the Emperor Marcus Aurelius. Julianus then returned to his native region where, c. 168-169, he concluded his career as Proconsul of Africa Province.[8] He seems to have died during the co-reign of Lucius Verus (r.161-169).[20]

Little is known of his private life. Yet Juliainus (whose own date of birth is uncertain) evidently was related to the Emperor Didius Julianus (133–193, r.193). Perhaps through his daughter from Hadrumetum, who married into the "one of the most prominent families of Mediolanum" (modern Milan), he became the grandfather of Didius Julianas. Or else his uncle.[21][22][23] Yet Didius was unfortunately a notorious scoundrel, who nonetheless was evidently raised by the mother of the noble Emperor Marcus Aurelius (r.161–180).[24]

Legal works

Senatus Populusque Romanus.

The Praetor's Edict

The Emperor Hadrian appointed Julianus to collect and revise all the Praetor's Edicts available. For centuries each incoming praetor had issued these annual edicts, which announced his legal positions for the next year. The revision by Julianus became thereafter perpetual. Professor Grant writes that his revision proved to be of some use to the poor.[25]

Soon after 125, Hadrian chose him to revise the Edicta praetoruum or Praetor's Edict, issued each year by the new Praetor urbanus. "The contents of the praetorian Edict can be summed up as constituting the praetor's programme of office: he is announcing to the public, at the beginning of his term, how he intends to exercise his office."[26] This document, being renewed yearly, had been for centuries a most influential and pervasive legal authority in Roman Law.[27] Once during the late Republic (to 44 BC) the source of innovation and new law, by the 2nd century the Praetor's Edict merely might adopt novel procedures to enforce new legislation made elsewhere, e.g., by imperial enactment. Emperor Hadrian directed that the Edict now become 'permanent'.[28] "The Edict, that masterpiece of republican jurisprudence, became stabilized. ... [B]y order of [Hadrian] the famous jurist Julian settled the final form of the praetorian and aedilician Edicts."[29]

Yet our sources for this major reform are "meagre and late", so that it "is difficult to tell what Julianus in fact did."[30] Nonetheless, certain changes in the Edict wrought by Julianus are well known, e.g., regarding intestate succession, that affecting shares of inheritance among children in the Bonorum possessio unde liberi.[31] The finished work was the subject of a senatus consultum in accord with the desires of Emperor Hadrian.[32]

A key feature of the Praetor's Edict was its organizational scheme, the order in which the various subjects of the law are presented. This sequence had obviously "grown up gradually from one generation to another. How far Julian's final redaction departs from the hitherto traditional arrangement we have not the means of judging save in some exceptional cases." But his alterations do not seem problematic. It was this received "edictal order of topics" that was already widely used in juristic works of the Principate, during the classical period of Roman Law.[33] Among Roman jurists, "Julian's work on the Edict was traditionally regarded as of great importance [as] he is repeatedly spoken of as compositor, conditor, ordinator of the Edict."[34]

His Digesta in 90 books

Of his own writings, his principal work was the Digesta, a systematic treatise on civil and praetorian law which was often cited by Roman legal writers. “It is a comprehensive collection of responsa on real and hypothetical cases; in general, it followed the edictal system.” The works of Julianus, in particular his Digesta, "are among the most highly appreciated products of Roman juristic literature."[12]

Prof. Schulz, however, notes the reluctance of classical Roman jurists to formulate principles.[35] "Even in the more theoretical works, such as Julian's... Digesta, case law is dominant, and no attempt is made to translate the cases into abstract principles." This literature, however, does employ "casuistical form" rather than "simply strung together" responsa.

"[P]roblems are considered from the point of view of general theory, with the result that imagined cases play a considerable, perhaps even a predominant, part. But even so, a plain statement of the theoretical result of the cases, a formulation of the principle to be deduced from them, is avoided."[36]

Other scholars remark on the ascendancy that his writings earned Julianus. According to Prof. Buckland, his presence worked to transcend the opposing schools or sects of Roman law which had continued for several centuries.[37] Prof. Sohm states:

"His vast acquaintance with practical case-law, the ingenuity of his own countless decisions, his genius for bringing out, in each separate case, the general rule of law which, tersely and pithily put, strikes the mind with all the force of a brilliant aphorism and sheds its light over the whole subject around--these are the features which constitute the power of his work. Roman jurisprudence had completed its dialectic training under Labeo and Sabinus, and the time had now arrived for applying to the immense mass of materials the principles, categories, and points of view that had been thus worked out. Julian's Digest exhibited Roman jurisprudence in all its strength, and its success was proportionately great. ... From the time of Salvius Julianus, and as a consequence of his labors, there was but one jurisprudence, and the lines on which it was progressing were those marked out by him."[38]

The purpose of his Digesta was to expound the whole of Roman Law. "It contains a collection of responsa of the most varied kinds: answers by letter, answers in disputations (to be inferred when the answer is introduced by dixi), true responsa in the technical sense, and answers to questions which occurred to the author in the course of theoretical speculation."[39]

Other works

It is known that "Julianus also wrote commentaries on works of two earlier, [now] little known jurists, Urseius Felix [Urseius, 4 books] and Minicius [Minicius, 6 books], and a booklet De ambiguitatibus [On doubtful questions]."[12][40][41]

Excerpts in Corpus Juris Civilis

Short quotations of Julianus (c. 110 – c. 170) presented, chiefly from his Digesta, also from his Minicius and his Urseius. Taken from among Julian's hundreds found in the Corpus Juris Civilis (Byzantium 533), as commissioned and promulgated by the Emperor Justinian I (r.527–565), namely in that part of the Corpus called the Digesta Iustiniani, in 50 books. Translated here by Alan Watson as The Digest of Justinian, published by the University of Pennsylvania (Philadelphia 1985), two volumes. Traditional Digest citation (book, chapter, source) follows the quotation.

Influence and legacy

Among Roman jurists

His opinions influenced many other jurists, thanks to the clarity and finesse of his reasoning, as is demonstrated by the fact that, in the Digest, there 457 fragments written by Julianus. His name also appears first in the list of contributing jurisprudents prepared by order of Justinian, the Index Florentinus. Centuries after his death, Emperor Justinianus would define him legum et edicti perpetui suptilissimus conditor.[42]

The 2nd-century Digesta of Salvius Julianus was repeatedly excerpted, hundreds of times, by the compilers of the 6th-century Pandectae (or Digest), created under the authority of the Byzantine emperor Justinian I (r. 527–565). This imperial Pandect or Digest (part of the Corpus Juris Civilis) was meant by the emperor to serve as a compendium of juristic experience and learning, being drawn from the works of prior Roman jurists. "It has been thought that Justinian's compilers used [Julian's Digest] as the basis of their scheme: in any case nearly 500 passages are quoted from it."[43][44]

Julian died during the reign of the philosophical emperor Marcus Aurelius (r.161-180), who described him in a rescript as amicus noster.[45] "His fame did not lessen as time went on, for later Emperors speak of him in the most laudatory terms. ... Justinian speaks of him as the most illustrious of the jurists."[46]

Among modern scholars

"[S]ome modern authorities would regard [Julianus] as the greatest of all the Roman jurists, not excluding even Papinian."[47] "With Iulianus, the Roman jurisprudence reached its apogee."[12] Professor William Warwick Buckland and Professor Peter Stein here following take stock of Julianus, his rôle and style, and compare him to a great jurist who flourished during the 18th century.[48]

"No other jurist exercised so great an influence on the destinies of the law." His Digest was "a comprehensive treatise on both civil and praetorian law. ... The principal characteristics of Julian's work seem to be a very lucid style and a clear recognition of the fact that legal conceptions must move with the times. He seems to have played somewhat the part which Lord Mansfield did in English law. He did a great work of co-ordination and generalisation, sweeping away unreal and pedantic distinctions. [Prof.] Karlowa justly observes that the appearance of Julian was epoch making."[49]

Professor Fritz Schulz places the Roman jurist Julianus in the context of the growth and development of Roman law, praising his personal contribution made when Roman jurisprudence reached its full height.

"The heroic age of creative geniuses and daring pioneers had passed away with the Republic. Now their ideas were to be developed to the full and elaborated down to the last detail. The culminating point in the curve of this development lies unquestionably with the age of Trajan and Hadrian, when the Principate itself reached it zenith. Julian's Digesta are the greatest product of Roman jurisprudence; they dominate legal science till the end of the Principate. After Julian a slight decline is sometimes observable, but on the whole the science of law remained on the same high level till the middle of the third century."[50]

See also

References

  1. ↑ H. F. Jolowicz and Barry Nicholas, Historical Introduction to the Study of Roman Law (Cambridge University 1932 by Jolowicz; 3d ed. 1972 by Nicholas) at 384–385.
  2. ↑ Adolph Berger, Encyclopedic Dictionary of Roman Law (Philadelphia: American Philosophical Society 1953), "Consilium principis" at 408.
  3. ↑ The Historia Augusta purports to be a 3rd-century collection of biographies on Roman Emperors written by six different authors. Scholarly consensus now accepts Hermann Dessau's 1889 theory that it is a late 4th-century work by one author. Anthony Birley, "Introduction" 7–22, at 7–8, to the Lives of the later Caesars (Penguin 1976), a partial translation of the Historia August. Thus it was the probably fictiuous "Aelius Spartianus" purportedly wrote, e.g., the Vita Hadriani (at 57–87), and other biographies contained therein.
  4. ↑ Historia Augusta translated as Lives of the later Caesars (Penguin 1976) at 76–77.
  5. ↑ Aelius Spartianus, Vita Hadriani in the Historia Augusta.
  6. ↑ Rudolph Sohm, Institutionen. Ein Lehrbuch der Geschichte und System des römischen Privatrechts (Leipzig: Duncker und Humblot 1883, 12th ed. 1905), translated as The Institutes. A textbook of the History and System of Roman Private Law (London: Oxford University, Claredon Press, 3d ed. 1907; reprint: Augustus Kelly 1970) at 97–98.
  7. ↑ H. F. Jolowicz and Barry Nicholas, Historical Introduction to the Study of Roman Law (Cambridge University 1932 by Jolowicz; 3d ed. 1972 by Nicholas) at 384 text and note 4.
  8. 1 2 Diana Bowder, editor, Who Was Who in the Roman World (Ithaca: Cornell University 1980) at 119.
  9. ↑ Julianus, his Digesta, at book 42; i.e., Iulianus, liber xlii, digestorum.
  10. ↑ Centuries later this short text concerning manumissions was quoted in the Digest (or Pandectae) of Justinian (r.527–565); in it Julianus refers to Javolenus as "praeceptorem meum" [my teacher].
  11. ↑ Digesta Iustiniani (Byzantium 533), edited by Theodor Mommsen (1818-1903), translated by Alan Watson as The Digest of Justinian (Philadelphia: University of Pennsylvania 1985), volume II: at 40.2.5 (book, chapter, source), "For my part, since I remember that my teacher, Javolenus, had manumitted... ."
  12. 1 2 3 4 Adolph Berger, Encyclopedic Dictionary of Roman Law (Philadelphia: American Philosophical Society 1953), "Iulianus" at 522.
  13. ↑ Yet Prof. Buckland writes, "The last recorded chief of the Sabinians, [Julianus] was too strong to be bound by the traditions of any school." W. W. Buckland, A Text-Book of Roman Law from Augustus to Justinian (Cambridge University 1923, 3d ed. revised by Peter Stein, 1966) at 29.
  14. ↑ Fritz Schulz, History of Roman Legal Science (Oxford University 1946, 1967) at 99, 126. Roman law's classical period is said to begin with Augustus (r.31BC–AD14) and end as Diocletian (r.284–305) was starting the next bureaucratic period.
  15. ↑ H. F. Jolowicz and Barry Nicholas, Historical Introduction to the Study of Roman Law (Cambridge University 1932 by Jolowicz; 3d ed. 1972 by Nicholas) at 385.
  16. ↑ Rudolph Sohm, The Institutes. History and system of Roman private law (Leipzig 1883; Oxford Univ. 3d ed. 1907; reprint 1970) at 98.
  17. ↑ Of the opinions of Julianus, many were published with commentary by his student Africanus. Adolph Berger, Encyclopedic Dictionary of Roman Law (Philadelphia: American Philosophical Society 1953), "Africanus" at 356.
  18. ↑ Fritz Schulz, History of Roman Legal Science (Oxford University 1946, 1967) at 105 (offices held); 127, 148–152 (Edicta praetorum); 130–132, 229–30 (Digestorum libri xc).
  19. ↑ Cf., Julius Capitolinus, "Antonius Pius", 96-107, at 106, in the Historia Augusta translated by Anthony Birley as Lives of the later Caesars (Penguin 1976).
  20. ↑ W. W. Buckland, A Text-Book of Roman Law (Cambridge University 1923, 3d ed. revised by Peter Stein, 1966) at 29.
  21. ↑ Cf., Aelius Spartianus, "Didius Julianus" in the Historia Augusta, translated as Lives of the later Caesars (Penguin 1976), 192–200, at 192 ("his maternal grandfather {was} from the colony of Hadrumetum [Sousse]").
  22. ↑ Cf., Michael Grant, The Roman Emperors (New York: Scribner's 1985; reprint Barnes & Noble 1997), "Didius" at 105 ("his mother, a North African, was a close relative of Salvius Julianus, the outstanding lawyer of Hadrian's reign").
  23. ↑ Compare: H. F. Jolowicz and Barry Nicholas, Historical Introduction to the Study of Roman Law (Cambridge University 1932 by Jolowicz; 3d ed. 1972 by Nicholas) at 384 note 4. Here: "great grandfather", "grandfather", or "uncle".
  24. ↑ Michael Grant, The Roman Emperors (New York: Scribner's 1985; reprint Barnes & Noble 1997), "Didius Julianus" at 105–08.
  25. ↑ Michael Grant, The Roman Emperors (New York: Scribner's 1985; reprint Barnes & Noble 1997), at 79-80.
  26. ↑ Fritz Schulz, History of Roman Legal Science (Oxford University 1946, 1967) at 150.
  27. ↑ Alan Watson, Law Making in the latter Roman Republic (Oxford University 1974), chapter 3, "Development of the Praetor's Edict", 31–62, e.g., at 35 (summarizing the Edict from the 3rd century to 100 BC when follows the "main period of the Edict").
  28. ↑ W. W. Buckland, Text-book on Roman Law. From Augustus to Justinian (Cambridge University 1921, 3rd ed. 1963), the third edition (posthumous) as revised by Peter Stein, at 8-10.
  29. ↑ Fritz Schulz, History of Roman Legal Science (Oxford University 1946, 1967) at 127. "The edictal system is so important in the history of juristic systematization... ." Schulz (1946, 1967) at 148.
  30. ↑ H. F. Jolowicz and Barry Nicholas, Historical Introduction to the Study of Roman Law (Cambridge University 1932 by Jolowicz; 3d ed. 1972 by Nicholas) at 356–57.
  31. ↑ Called the nova clausula Juliani de conjungendis, &c. Rudolph Sohm, Institutionen (Leipzig 1883), translated as The Institutes. History and system of Roman private law (Oxford University 1907; reprint Kelly 1970), at 531–532 text and at note 3.
  32. ↑ Constitutio Tanta (533), per Buckland, A Text-Book of Roman Law (1921 3d ed. 1966 rev'd by Stein) at 10 note 5.
  33. ↑ Fritz Schulz, History of Roman Legal Science (Oxford University 1946, 1967): Edicta, Edictum perpetuum at 126–127, 152 (quote); classical juristic works at 189–190.
  34. ↑ W. W. Buckland, A Text-Book of Roman Law (Cambridge University 1923; 3d ed. revised by Peter Stein, 1966) at 10.
  35. ↑ "'All abstract formulations in private law are dangerous; they generally prove fallacious': this saying of Iavolenus [Javolenus (teacher of Julianus) in Digest 50.17.202] is more than a casual remark; it voices the intimate conviction of the second century jurist." In a later age, Justinian's compilers "cherished" and searched for reductions of "case law" to "abstract principles", precisely what "the classical jursists purposely refrained from doing". Fritz Schulz, History of Roman Legal Science (Oxford University 1946, 1967) at 130.
  36. ↑ Fritz Schulz, History of Roman Legal Science (Oxford University 1946, 1967) at 130–131.
  37. ↑ W. W. Buckland, A Text-Book of Roman Law (Cambridge University 1923; 3d ed. as revised by Peter Stein, 1966) at 26 (sects or schools), at 29 (Digesta of Julianus).
  38. ↑ Rudolph Sohm, The Institutes. A Textbook of the History and System of Roman Private Law (Leipzig 1883, 1905; Oxford University, 3d ed. 1907; reprint 1970) at 98.
  39. ↑ Fritz Schulz, History of Roman Legal Science (Oxford University 1946, 1967) at 229–30: the Digestorum libri xc of Julian.
  40. ↑ The Digest of Justinian translated by Alan Watson (University of Pennsylvania 1985) at vol. I: lxxiii.
  41. ↑ Fritz Schulz, History of Roman Legal Science (Oxford University 1946, 1967) at 230: the De ambiguitatibus liber singularis, "probably a post-classical abridgement of Julian's Digesta, with comments by the epitomist."
  42. ↑ Constitutio Tanta 18. The Tanta was Justinian's enactment text of December 16, 533, which promulgated the Digest. Adolph Berger, Encyclopedic Dictionary of Roman Law (Philadelphia: American Philosophical Society 1953), "Digesta Iustiniani" at 436-437, "Tanta" at 730, "Dedoken" at 427.
  43. ↑ W. W. Buckland, Text-book on Roman Law (Cambridge University 1921, 3rd ed. 1963 rev. by P. Stein), at 29. Yet in Justinian's 6th-century Digest many more passages are quoted from other Roman jurists, and Julianus "is not one of the five singled out for citation in the Law of Citation... no doubt due to his early date." Buckland (1963) at 29.
  44. ↑ The Pandect, in addition to its official rôle as part of the controlling law of the eastern Roman (Byzantine) Empire, also became a principal source for the medieval study of Roman Law in western Europe. Peter Stein, Roman Law in European History (Cambridge University 1999) at 43–45. Stein quotes from a letter of the famous, 19th-century English legal historian F. W. Maitland:
    "The Digest [of Justinian] was the only book in which medieval students could obtain a knowledge of Roman law at its best. ...but for the Digest Roman Law could never have reconquered the world. ...it was only in the Digest that [lawyers] could get any notion of keen and exact legal argument, precise defiition, etc." Stein (1999) at 44.
  45. ↑ The Latin amicus noster signifies "our friend".
  46. ↑ W. W. Buckland, Text-book on Roman Law. (Cambridge University 1921, 3rd ed. 1963 by P. Stein) at 29, at 29 n.5.
  47. ↑ H. F. Jolowicz and Barry Nicholas, Historical Introduction to the Study of Roman Law (Cambridge University 1932, by Jolowicz; 3d ed. 1972, by Nicholas) at 385.
  48. ↑ The work of Lord Mansfield, who was learned in the civil law derived from the Roman, helped to modernize the commercial law of England, despite his being somewhat 'heritical'. W. S. Holdsworth, Sources and Literature of English Law (Oxford University 1925, 1952) at 218–221. The analogy of Mansfield to Justinian pertains to their leadership rôle.
  49. ↑ W. W. Buckland, Text-book on Roman Law (Cambridge University 1921, 3rd ed. 1963 rev'd by P. Stein) at 29–30.
  50. ↑ Fritz Schulz, History of Roman Legal Science (Oxford University 1946, 1967) at 99.
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