Abstract
How is authority used to solve a case ? And how does recourse to the past turn the past into a paradigm ? In D., 5, 4, 3, a case is presented by Paul, one of the most important jurists of the Severan period, with a strong and personal thought, nourished by extra-legal influences. It is taken from a commentary on the work of Plautius, a jurist of Flavian times, who in turn went back to the opinions of earlier jurists, especially representatives of the two schools of Sabinians and Proculians. The antiqui," writes Paul, "safeguarded the patrimonial position of the unborn child(venter). This exordium, in the form of a legal eulogy(laus iuris), is part of the rhetorical and legal tradition, and underlines two reasons for approval : the protection of the posthumous is inspired by a feeling of humanity ; the principle is validated by time, since it was the antiqui who introduced it. The problem is to know how much of the paternal inheritance should be left to the unborn child, after the father's death, and when a son has already been born - which means also knowing how much will be left to the latter. Jurists begin by " restricting the scope of the decision " (to borrow a phrase from W. Waldstein) : the fundamental principle is the protection of posthumans. But this is not enough : the next step is to solve the problem of uncertainty as to the number of children to be born, and thus to determine the quota left to the co-heirs. In this respect, Paul relates a list of examples of multiple births in the ancient world, which shows many points of contact with a page of Pliny the Elder (Plin., N.H., 7, 33) : the two authors probably used a common source. The resemblance allows us to detect differences and better understand the thinking of the two authors : Pliny proceeds in ascending order, from triplets (Horatii and Curatii) to septuplets (in Egypt), in order to emphasize the extraordinary rather than the normal.
The jurist Paul, on the other hand, is looking for a norm. He distinguishes between two main groups: fable-like examples and credible Roman examples (Horatii and Curiatii triplets, quintuplets presented to Hadrian in Alexandria), following a rhetorical precept developed by Cicero(De Inv., 1, 39). But the question is still open, and nature does not offer a precise solution, as it presents several possibilities. Jurists therefore chose the middle way between the widest possible number of births, and balanced protection of the patrimonial interests at stake: they agreed on triplets. It is not the variety of nature that serves as a guide, but normality, which can become the norm and is the subject of cultural construction.
In conclusion, the jurists decide that the son already born receives a quarter of the inheritance, with the remainder held in abeyance until the moment of delivery, leaving open the possibility of the birth of triplets. The past has thus entered the reasoning of the jurist, with an argumentative function. History falls prey to jurists, who, to regulate the future, seek order in the past too.
