Something nice on Ulpianus
Aug. 28th, 2012 06:31 am![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
shenbuvЯ тут недавно публиковала одно наблюдение над известной цитатой из Ульпиана. То же самое по-английски и ответ проф. Кацова (под его руководством я писала диссертацию):
Recently I've noticed something nice. Tell me what do you think:
Ulpianus (died 223 C.E.) in the First Book of the Institutes:
Iuri operam daturum prius nosse oportet, unde nomen iuris descendat. Est autem a iustitia appellatum: nam, ut eleganter Celsus definit, ius est ars boni et aequi. Cuius merito quis nos sacerdotes appellet: iustitiam namque colimus et boni et aequi notitiam profitemur, aequum ab iniquo separantes, licitum ab illicito discernentes.
Dig.1.1.1.1 (533 A.D.)
Translation:
A law student at the beginning of his studies should know from where "ius" comes. It is derived from justice. For, in the elegant words of Celsus (ca. 100 C.E.), "ius" is the art of the good and the equitable. Consequently we jurists are called priests because we cultivate justice, and we seek knowledge of the good and the equitable. We mark the difference between equitable and inequitable and determine what is licit and not licit (tr. by Ken Pennington ).
Usually it is understood as an idealistic definition of the law system. But is it?
What does Ulpianus say? "Unde nomen iuris descendat? - Est autem a iustitia appellatum". The word "ius" derived from the word "iustitia"? Is he stupid? Or doesn't he know Latin? Neither, I think. It is an impossibly "etymology" for an educated Latin speaker. So he apparently means something else.
I think the key is in the rest of the citation: Cuius merito quis nos sacerdotes appellet: iustitiam namque colimus et boni et aequi notitiam profitemur, aequum ab iniquo separantes, licitum ab illicito discernentes.
Who are those "nos" it is obvious: those are "us", the jurists, this passage is taken from the text-book for the lawyers. We the jurists are those who "cultivate" (sic!) justice, who point on what is good and what is equitable, we are those who mark the difference between equitable and inequitable and (pay attention!) we are those who determine what is licit and not licit. We are like sacerdotes, like priests! I would say: "like magicians".
Ulpianus doesn't speak on etymology, he tells his students how the things really are. We determine what is good and wrong, we are the most powerful guild. Actually, "ius" is derived from "iustitia" (and iustitia is what we do)!
And what about the quotation from Celsus, that Ulpianus likes so much? What does Celsus really say? Why is it so "elegant"? Ius est ars boni et aequi - "ius" is the art of the good and the equitable. The key-word is ars – "art", or "profession". All is said, but nobody, except of "us" (members of the guild, the artists of this art), will not understand. It is really elegant, since for the "public" it is only a nice banality.
What is really good and equitable, is not our problem. We will make good and equitable whatever we want – if we are studying well.
Hava
Prof. Ranon Katzoff:
Hi,
You make a nice point, and, as you emphasize, it rests on the word 'determine' as translating discernentes. That the Roman jurists considered their activity as forming part of the law is clear and well-known (Gaius, Institutes 1.2; Digest 1.1.7.pr [Papinian]). Ulpian, in your reading, makes the greater claim, that jurists make all law. If memory serves, similar points have been made within the rabbinnic tradition -- was it R. Shimon Shkop, or R. Elchanan Wasserman, or perhaps the introduction to Shev Sma'atisa, and read by modern scholars into R. Yehoshua's "lo bahamayim hi." It is also found all over in post-modern jurisprudence.
The problem is that it is not clear that discernentes should be translated here as 'determine,' rather than 'distinguish,' as do both Scott (no authority, unfortunately) and MacCormick in Watson, ed., The Digest of Justinian. So would I.
If I were looking for support for the imputation of the greater claim to Ulpian, I would start with מורי ורבי A. Arthur Schiller, Roman Law: Mechanisms of Development; and Fritz Schulz, Roman Legal Science.
All the best,
Ranon
Recently I've noticed something nice. Tell me what do you think:
Ulpianus (died 223 C.E.) in the First Book of the Institutes:
Iuri operam daturum prius nosse oportet, unde nomen iuris descendat. Est autem a iustitia appellatum: nam, ut eleganter Celsus definit, ius est ars boni et aequi. Cuius merito quis nos sacerdotes appellet: iustitiam namque colimus et boni et aequi notitiam profitemur, aequum ab iniquo separantes, licitum ab illicito discernentes.
Dig.1.1.1.1 (533 A.D.)
Translation:
A law student at the beginning of his studies should know from where "ius" comes. It is derived from justice. For, in the elegant words of Celsus (ca. 100 C.E.), "ius" is the art of the good and the equitable. Consequently we jurists are called priests because we cultivate justice, and we seek knowledge of the good and the equitable. We mark the difference between equitable and inequitable and determine what is licit and not licit (tr. by Ken Pennington ).
Usually it is understood as an idealistic definition of the law system. But is it?
What does Ulpianus say? "Unde nomen iuris descendat? - Est autem a iustitia appellatum". The word "ius" derived from the word "iustitia"? Is he stupid? Or doesn't he know Latin? Neither, I think. It is an impossibly "etymology" for an educated Latin speaker. So he apparently means something else.
I think the key is in the rest of the citation: Cuius merito quis nos sacerdotes appellet: iustitiam namque colimus et boni et aequi notitiam profitemur, aequum ab iniquo separantes, licitum ab illicito discernentes.
Who are those "nos" it is obvious: those are "us", the jurists, this passage is taken from the text-book for the lawyers. We the jurists are those who "cultivate" (sic!) justice, who point on what is good and what is equitable, we are those who mark the difference between equitable and inequitable and (pay attention!) we are those who determine what is licit and not licit. We are like sacerdotes, like priests! I would say: "like magicians".
Ulpianus doesn't speak on etymology, he tells his students how the things really are. We determine what is good and wrong, we are the most powerful guild. Actually, "ius" is derived from "iustitia" (and iustitia is what we do)!
And what about the quotation from Celsus, that Ulpianus likes so much? What does Celsus really say? Why is it so "elegant"? Ius est ars boni et aequi - "ius" is the art of the good and the equitable. The key-word is ars – "art", or "profession". All is said, but nobody, except of "us" (members of the guild, the artists of this art), will not understand. It is really elegant, since for the "public" it is only a nice banality.
What is really good and equitable, is not our problem. We will make good and equitable whatever we want – if we are studying well.
Hava
Prof. Ranon Katzoff:
Hi,
You make a nice point, and, as you emphasize, it rests on the word 'determine' as translating discernentes. That the Roman jurists considered their activity as forming part of the law is clear and well-known (Gaius, Institutes 1.2; Digest 1.1.7.pr [Papinian]). Ulpian, in your reading, makes the greater claim, that jurists make all law. If memory serves, similar points have been made within the rabbinnic tradition -- was it R. Shimon Shkop, or R. Elchanan Wasserman, or perhaps the introduction to Shev Sma'atisa, and read by modern scholars into R. Yehoshua's "lo bahamayim hi." It is also found all over in post-modern jurisprudence.
The problem is that it is not clear that discernentes should be translated here as 'determine,' rather than 'distinguish,' as do both Scott (no authority, unfortunately) and MacCormick in Watson, ed., The Digest of Justinian. So would I.
If I were looking for support for the imputation of the greater claim to Ulpian, I would start with מורי ורבי A. Arthur Schiller, Roman Law: Mechanisms of Development; and Fritz Schulz, Roman Legal Science.
All the best,
Ranon
