Modern lawyers take it for granted that judges provide the reasoning behind their decisions and that the verdicts themselves are widely reported. Yet this is a comparatively new phenomenon. Outside the Common Law, on the continent of Europe, the legal reasoning of the courts was for the most part a closely-guarded secret.
Sometimes the veil is lifted by accident, as when E.M. Meijers rediscovered and published the personal diaries of the president and vice-president of the Supreme Court of Holland and Zealand, Cornelis van Bynkershoek and Willem Pauw, spanning the period from 1704 to 1787. And sometimes, infrequently, courts went against the custom of the time and published their decisions with ample motivation, as happened in Genoa and at the Rota Romana of the Papal States. But the farther we go back in time, the less there is. For Roman law – nothing.
Or almost nothing. Scattered throughout the 6th c. Digests of Justinian are fragments of a book by the famous early 3rd c. jurist Julius Paulus. This book, the Decreta, contained the reports of cases judged by the imperial consilium under the emperor Severus, and possibly Caracalla.
Paulus had first-hand knowledge of the proceedings since he was a member and probably even the secretary of the imperial court. He relates the opinions of the privy councillors, some of the sharpest legal minds of his time, and quotes the emperor’s personal contributions to decision-making. He does not suffer from the (modern and ancient) tendency to anonimize the litigants, so annoying to legal historians, but often gives full names instead. Many are identifiable from other sources, which helps to place the cases in a social context.
Thus, the Decreta provide an invaluable source for understanding questions of access to justice, the dialectic between power and legal reasoning in shaping the law, and the bureaucratic decision-making process in imperial Rome.
Last week, the Leiden Department of Legal History was awarded a grant by the Netherlands Organization for Scientific Research (NWO) to produce a critical edition of Paulus’ Decreta. The four-year project will be carried out, under the supervision of prof. Willem Zwalve, by Elsemieke Daalder, a cum laude classics and law scholar, as part of her dissertation.
The new edition will, no doubt, supersede the 1938 edition by Cesare Sanfilippo, which suffers from methodological problems (as a product of the so-called Interpolationenforschung) and which in any case is only available in Italian. The final book should be of interest to legal historians and ancient historians alike: the Decreta allow an exceptional glimpse, rare in legal history and unique for the time, into the inner workings of the Roman Supreme Court.