Roman Legal Thinking in Classical Times

Abstract

1) My purpose in this paper is to analyze, especially in a concrete form, the methods of legal thinking and the types of judgements that the Roman jurists and practicians introduced into the interpretations of law during the creative period of early classical times. In particular, I make an attempt to consider the process of development of the Lex Aquilia in the historical society concerned.2) First, on the theoretical bases, it is necessary to re-examine the idea that legal texts were generally interpreted on the basis of voluntaristic theory at that time. Analyzing the texts of the Lex Aquilia, it seems that this idea is not supportable. The theory of Johannes Stroux proposed in 1926 still seems to be accepted only with reservations. In other words, Roman jurists had no system of voluntaristic interpretation which emphasises the will.After the controversy about his theory, at the end of the 1960's, two remarkable contributions to the methods of interpretation were published. Their authors discussed the relation between words of law (verba legis) and intention (voluntas, sententia). After investigating the rhetorical doctrine of status legales, they turned to the Roman jurists and tried to make clear their methods or techniques of interpretation. Then, Dr. Bernard Vonglis insists on the idea of historical legislator's will, according to his two standpoints as the following.That is to say, first, the legislator's will is an idea expressed by the words which the legal texts constitute and, therefore, one must inquire into this intention from the texts directly, secondly, the interpreters who are responsible for applying a law should be obedient to the legislator's will. (B. Vonglis, La lettre et 1'esprit de la loi, p. 31, Paris 1968). On the contrary, Prof. Uwe Wesel, extracting three types of methods in dealing with statutes out of the Roman legal sources, puts great emphasis upon the character of adhering to the literal meaning of the words used .in law and upon the possible extension of this meaning (U. Wesel, .Rhetorische Statuslehre and Gesetzesauslegung der romischen Juristen, S. 133f., Köln/Berlin/Bonn/München 1967). In his opinion, the criteria probably used by the Roman jurists are as follows: 1. the meaning of the statutory words must be determined, 2. proposal must be made for the grant of praetorian actions based on the model of the statute, 3. there must be argumentation according to the sententia as opposed to the verba.3) With this various viewpoints, it is impossible for us to begin with any legal concept, institution or definition and so forth which were reconstructed from the Roman sources by conceptual jurisprudence, or legal positivism. Indeed, we need to try to examine the historical.process of their formation.I would, therefore, be able to give three points of view. In the first place, the theoretical consequences of the Lex Aquilia in classical law which are well-known to us are, in fact, of the jurists' activities in legal interpretation from the enactment of the lex at B. C. 3 to the end of the Republic or early Principate, and of the praetorian development of law. Based on these facts, interpretation of laws done by jurists is directly concerned with the judicial judgements of praetors; in other words, it is closely connected with a decision as to whether or not praetors are able to substitute the legal relations for the facts in social lives.