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The Legal Profession in Palestine During the Byzantine Period
Published online by Cambridge University Press: 12 February 2016
Extract
We shall begin this paper with a few general remarks on the development of advocacy from the time of classical Greece through to Rome. It was the esteemed jurists of these societies who, in their work, provided the basis for the development of European and modern law.
Creativity in Greek humanistic literature reached a peak prior to the Peloponesian war; thereafter, it exhibited a marked decline in all but one field, that of rhetoric, or the school of oratory. In this field, particularly in the context of political-jurisprudential literature, the development was impressive.
Around the middle of the fifth century B.C.E., the Sophists (“Sophist” means “clever” in Greek) appeared in Greece. These were the teachers of wisdom and higher education in all the fields of science and humanities then known in Greece, such as mathematics, astronomy, philosophy and logic, and of course, literature and linguistics. The Sophists wandered from city to city and spread their teachings; they have been described by some as “itinerant universities”.
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References
1 See Fuks, Alexander, The Athenian Commonwealth (Jerusalem, 3rd ed., 1964, in Hebrew) 153–154.Google Scholar
2 See for example, Dobson, J. F., The Greek Orators (1918, rpt. London, 1974) 106.Google Scholar
3 See for example, Bonner, R.J. and Smith, G., The Administration of Justice from Homer to Aristotle (Chicago, 1938) Vol. II, p. 8 ff.Google Scholar
4 We will forgo discussing the particulars of the court's sitting, e.g., who was the chairman; the place of the herald and the secretary; the various developments in legal procedure; technical detail e.g., the document file.
5 Jolowicz, H.F., “Procedure In Jure and Apud Judicem: A Suggestion” in Atti Congresso Bologna (1935) vol. II, 57 ff.Google Scholar
6 Rabello, A.M., “Non Liquet: From Modern Law to Roman Law” (1974) 9 Is.L.R. 63 ff.Google Scholar
7 For an “overly juristic” treatment see Schulz, F., History of Roman Legal Science (Oxford, 2nd ed., 1953) 54Google Scholar, and the references in Cicero's Brutus orator and de oratore and the discussion of the above selection, also see Note J. at pp. 335–336. His comments are not convincing in a number of selections that he brings as support; Rasi, P., “Advocatie Procretori. Diritto Romano” Novissimo Digesto Italiano vol. I, 2 (Turin, 1958) 1662 ff.Google Scholar
8 See Dan, Yaron, “Cultured Liberal Professionals in the Cities of Eretz-Israel in the Byzantine Period” (1978) 8 Cathedra 95 at 116Google Scholar (in Hebrew) and see references there; John, of Ephesus, , Hist. Ecllesiastica, III, 3, 11, ed. Cureton, W. (Oxford, 1853) 168Google Scholar; trans. P. Smith (Oxford, 1860) 185 ff. and see also op. cit. I, 33, Cureton at p. 49, Smith at p. 69; see also Libanius, Or. XIX, 26; XXIII, 25.
9 For the law of Constantine of 319 A.D., see Cod. Theod. II, 10, 1.
10 Cod. Just., II, 7, 24. The law sets the maximum number of lawyers practicing before this court at thirty. For the various laws see Jones, , The Later Roman Empire (Oxford, 1964) 509 and note 90Google Scholar; Schulz, supra n. 7 at 271. We may infer the existence of a numerus clausus already early in the fourth century from a Constantinian law repealing it (see supra n. 9). This law should not be taken to imply that unregistered lawyers were unable to practice their profession. It would appear that, nevertheless, there remained adequate opportunity for them to utilize their professional skills. Moreover, it is questionable whether the law applied universally and whether it was enforced as written (see text).
11 Jones, ibid., p. 514 and note 103. He also comments on the payment of bribes by lawyers who sought registration in a particular court.
12 Cod. Just., II, 7, 11, 2. Here registration in the court of the praefectus praetorio of the east was prohibited absent the presentation of documentation attesting to the applicant's legal education and sworn to by the applicant's teachers. (See text at n. 17). Laws from the sixth century attest to the application of this condition, together with reference to a fixed period of legal study, in some of the lower courts. We hear specifically of those of Comes Orientes (A.D. 505) and of the praeses of Second Syria, Cod. Just. II, 7, 22, 4, 24, 4. See also Collinet, P., Histoire de l'école de droit de Beyrouth (Paris, 1925) 259.Google Scholar
13 See supra n. 12.
14 On these and for sources see Yaron Dan, supra n. 8 at 110, note 81. Regarding the appellations see P. Collinet, supra n. 12 at 51, 124; Schulz, supra n. 7 at 274. The appellation “Mother of the Law” is already found in Libanius, letter 652. See also Eunapius, , Vitae Sophistarum, p. 490Google Scholar, Loeb ed., p. 500 referring to the “Mother of the Study [of Law]”; Zacharias Rhetor, Disp. de Opificio Mundi, in Migne, , Patrologia Graeca, 85, 1071AGoogle Scholar; for the term “Nurse of the Law” see Constitutio Omnem 7.
15 Constitutio Omnem, 7. Although Rome fell into his hands only later, Justinian already considered himself emperor of the entire Ancient Roman Empire from an early stage of his reign.
16 Details can be found in Constitutio Omnem, 1. From this source we can also learn about the program of study that existed previously. See also P. Collinet, supra n. 12 at 233 ff; Schulz, supra n. 7 at 275–276.
17 See especially Schulz, supra n. 7 at 270–271.
18 For all the examples see Yaron Dan, supra n. 8 at 111, note 94 et seq. See Symeon Metaphrastes, Xenophon's Lives, in Migne, PG supra n. 14 at 114, esp. col. 1016; John of Ephesus, Vitae Sanctorum Orientalium, ed. Brooks, , Patrologia Orientalis, (PO), XVII, pp. 284 ff.Google Scholar; Zacharias of Mytilene, Vita Severi, PO, II, pp. 11, 92, 95.Google Scholar
19 II, 15, 3.
20 Concerning the Arabian students in Beirut at the time of Diocletian who were exempted by the emperor from various obligations until the age of twenty-five, see Cod. Just., X, 50, 1, and see P. Collinet, supra n. 12 at 29–30.
21 Rabello, A.M., “The Legal Condition of the Jews in the Roman Empire” Aufstieg und Niedergang der Römischen Welt part II, vol. XIII (1980) 742.Google Scholar
22 See Zacharias, of Mytilene, , The Life of Severus, ed. Kugener, M.A., PO, II, p. 230Google Scholar; Vita Severi, supra n. 19 at 98.
23 Supra, n. 15.
24 Cod. Just., II, 3, 30, (A.D. 531); 6, 58, 12, (A.D. 532); Inst., II, 8, 2, 3, 19, 12.
25 Casson, L. and Hettich, E., “Excavations at Nessana”, II, Literary Papyri (Princeton, 1950) vol. II, nos. 11, 12.Google Scholar
26 Letter no. 11.
27 Dan, supra n. 8 at 114–115 and note 115 et seq. Concerning his studies, see Zacharias, supra n. 22 at 11 ff., 46. His dialogue with the Alexandrian Sophist Ammonius has also survived, and it has been suggested to identify him with a commentator to Aristotle, sec Christ, W. von, Geschichte der griechechen Literatur II, 2, edition Schmid, & Stählin, (Munich, 6th ed. 1924) 1033Google Scholar; Downey, G., in (1958) 12 Harvard Library Bulletin 309 ff.Google Scholar; Nissen, Th., in (1940) 40 Byzantinische Zeitschrift 15 ff.Google Scholar; Zacharias, supra n. 19 at 95. It would appear that Zacharias was at some point appointed a lawyer in one of Constantinople's high courts and was even a legal advisor to the comes sacri patrimonii, see H. Lippold, Zacharias Scholastikos, Pauly-Wissowa, , Real Encyclopaedie, II, R. 18 (Halbb., 1967), col. 2213.Google Scholar
28 Libanius, Or. LXII, 46 ff.; Jones, supra n. 10 at 512.
29 See Starr, J., (1937) 58 American Journal of Philology 85 ff.Google Scholar (Insc. c); Y. Dan, 8 Supplementum Epigraphicum graecum No. 37.
30 Concerning the two brothers from Aphrodisias, see Zacharias, supra n. 19 at 39. Another brother studied literature in Alexandria, op. cit. p, 15. Concerning Anthemius, see Agathias, , Historiarum Libri, V 6, 3–5, ed. Keydell, R., p. 171.Google Scholar