Starting point
This project is based on the experience gained in another precedent that allowed an exploratory foray into the issue of definitions by Roman jurists. This is the project "Definitio: the concept of definition in law through classical philosophical and legal thought" (https://www.fbbva.es/equipo/proyecto-definitio-el-concepto-de-definicion-en-derecho-a-traves-del-pensamiento-filosofico-y-juridico-clasico-definitio/), which was funded by the BBVA Foundation within the LOGOS call for Classical Studies and directed by Prof. Dr. Juan Manuel Blanch Nougués, from the Universidad San Pablo CEU, in the years 2019-2022. This project, rated as excellent by the funding entity, allowed the research team to approach the object of study, enabling the acquisition of basic knowledge on the issue and, above all, the detection of essential questions that demand an answer, as well as the identification of the most appropriate methodology. Starting from the importance of the definition in law, we began to study those of the Roman jurists. In this first project we came to the conclusion that these were much more important than it seemed and, certainly, not as rare or scarce as Javoleno seemed to warn in his famous text of the last title of the Digest (D. 50.17.202 Iav. 11 epist: Omnis definitio in iure civili periculosa est: parum est enim, ut non subverti posset. «every definition in civil law is dangerous, because it is not sufficient to prevent it from undergoing modifications). In contrast to the old school of Romanists (Pringsheim, Schulz and others) who claimed that Roman jurists defined little and with little success, scholars such as A. Carcaterra and R. Martini spoke of the importance of their definitions (in two works published under the same title, Le definizioni dei giuristi romani and in the same year, 1966), although leaving ample room for further development that has not occurred to date and that we intend to carry out. The previous project allowed us to note the following novel aspects with respect to the definitions of Roman jurists, which stand as unavoidable starting points for our current research.
Initial assumptions
1. The sampling carried out in some books of the Digest indicated that definitions appear in the work of the Roman jurists much more prolifically than was claimed. This intuition, already pointed out by Carcaterra and Martini, proved to be correct for the set of texts we chose as a sample for verification. It is now necessary to extend this analysis to the entire Digest. In order for all the definitions hidden in the texts to come to light, it is necessary to adopt two important starting assumptions, absent from previous research on definition: a. A broad and flexible concept of definition must be used, in line with the very conceptions of classical rhetoric, which goes beyond substantial definition through genre and specific difference. Although this is what is considered to be the definition par excellence, the substantial definition, to stick exclusively to it entails not only recognising a drastically smaller number of definitions than the real one, but also failing to conform to the Romans' own reflection on definition. Indeed, classical authors such as Cicero (De inv. 1.8.10-11; 2.17.53, De orat. 1.42.188-191; 2.25.108-109; 3.29.115, Orat. 33.116; Part. orat. 12.41; 31.107-108 Top. 2.9-10; 5.26-28) or Marius Victorinus (ed. Halm 180.26; 181.41-182.23; 193.25; 272.29-276.2; 300.12), who dealt with the exposition of the concept of definition, recognised an extensive typology, in which, although not all the modalities were equally perfect in quality, they were nevertheless recognised as genuine definitions. b. It should be borne in mind that a definition may be introduced by terms other than the verb definire or the noun definitio. One of the reasons for the old opinion that the definitions of the Roman jurists were few in number was precisely this. However, there is a multiplicity of linguistic indicators that indicate the existence of a definition (in correspondence with the broader typology mentioned in the previous point). Thus, for example, a velut can introduce an exemplifying definition. In our project, we intend to pay attention to all the linguistic indicators that can introduce a definition (accipitur, dicitur, est, quasi, velut, significat...). 2. Another point of arrival of our previous research and, consequently, the starting point for this one, is the conviction of the need to interpret definitions in their context if we want to correctly identify their typology and purpose. In this sense, it is essential to carry out a duplex interpretatio, which analyses the definition both in the place given to it by the Justinian compilers in the Digest and in its original context in the work of the Roman jurist. It may happen that the purpose of a definition according to its placement in the Digest is one and, when it is restored to its original context, its purpose and typology change, which is important to note and analyse. A thorough understanding of a definition may depend precisely on this consideration, which has not been observed in previous studies. 3. Another aspect that needs to be taken into account in our research is the connection between the type and function of the definition and the literary genre of the work in which it appears. Indeed, from our previous research we were able to draw the well-founded intuition that this connection exists and that it is particularly noticeable in some cases (for example, works of an isagogical nature abound in definitions with a didactic function, while works more related to the practice of law, such as digests, are richer in definitions of a topical-interpretative nature). In order to verify this relationship in a general way, it is necessary to have the data of all the definitions of the Digest and to approach their study from a quantitative as well as a qualitative point of view. 4. Our previous experience has shown that the definitions are unevenly distributed throughout the Digest. On the one hand, the fact that the compilers introduced a title, 50.16, entitled De verborum significatione, is unequivocal proof of the importance they attached to definitions. Nevertheless, it is a title that has presented difficulties to scholars because of the heterogeneity of its content. We intend to study it in depth by relating it to the general structure of the Digest, which is truly novel, and for this purpose we have researchers specialising in precisely this question on our team. On the other hand, we also note that the definitions are unevenly distributed within each title, being more frequent in general in the initial fragments. This, however, does not seem to be the case in all the titles, which also calls for an investigation as to why. 5. A difficult issue is the differentiation between definition and rule. Our previous project made us aware of this difficulty, which requires, in order to be solved, a thorough analysis of each case in order to try to distinguish one from the other. It is also necessary to start from a conceptual framework which we believe should not be the distinction between definition and rule in current legal thought (even if we are going to study them in order to be aware of the difference in conception), but should be based on an understanding of what notions of rule and definition are derived from the works of the Roman jurists themselves so as not to fall into the imposition of anachronistic moulds of thought on ancient texts.
Methodology
From a theoretical point of view: - We will start from an understanding of the text that is as refined as possible in order to be able to relate it to the intellectual and social context in which it was created. To this end, we will take into account who the author of the definition is, the work and its literary genre, the addressee of the text, the historical moment in which it was created and the possible interactions with interrelated cultural fields, such as philosophy or rhetoric. - In particular, the importance of the duplex interpretatio must be specified, as we will pay attention both to the interpretation of the definition in its context in Justinian's Digest and in its original context in the jurist's work. - Our analysis will involve both a diachronic view, studying the possible historical evolution of some definitions in terms of their content, and a synchronic view, asking ourselves, for the same period, about the trends that can be identified in their definitions: whether there are jurists who define more than others, places, legal contexts or institutions in which the definition is more frequently used, etc. From a practical point of view: In order to achieve the application of the methodology outlined above, we intend to adopt the following particular actions, as part of the practical methodology that will hopefully lead to the expected results: 1. Reading the most important works on definition in Roman law. This is intended to provide a solid background knowledge of the state of the art for all members of the team. 2. Distribution of the books of the Digest among all team members for the extraction of definitions. Our previous experience showed us that, given the ‘hidden’ nature of the definitions we intend to find, and according to the still insufficient state of development of AI tools for natural language processing in classical languages, the best option for detecting these hidden definitions is through a critical and reflective reading of the Digest with the aim of detecting and extracting the definitions found. To this end, the books of the Digest will be distributed among the members of the project, at the rate of 2 or 3 books for each member, depending on their dedication to the project. 3. Sharing of problems in a bi-monthly online meeting. From our previous experience we know that many doubts arise when extracting definitions: ‘Is this a definition or not? What is its function? What is its type? Is it a definition or a rule?...’. Every two months, we will dedicate an afternoon to sharing the most difficult cases that we have encountered in our extraction work, in order to discuss them with the whole team and come up with a solution. This meeting will be devoted, in the first two years, to the presentation of problems related to the extraction of definitions; in the second year, to the critical review of the extracted definitions by another member of the team and the analysis of the results collected in the database; in the third year, to the deepening of each member's own research topics. 4. Permanent online discussion forum. In order to favour permanent and fluid communication between all the members of the team and also because sometimes doubts may arise regarding a specific definition, we are going to make a permanent online forum available to the members of the team, so that they always have the option of sharing their difficulties with the rest of their colleagues without having to wait for the meeting that we will have every two months, for which we will reserve only the most problematic cases. 5. Inclusion of the definitions in a database. All the definitions that we find will be incorporated into a database that will be published on the web for free access at the end of the project. The inclusion of the different data will be carried out by fragmenting the information into different fields, so that, when everything is finished, they can be used to make searches according to different criteria. In principle these fields will be the book, title and fragment of the Digest, the reference in Lenel's Palingenesia, the reference to the Perpetual Edict when relevant, the text of the complete fragment, the text of the definition (definiens), the term or expression defined (definiendum), the type of definition according to the way of defining, the type of work in which it appears, the type of definition according to its purpose (in both contexts) and a comment in those in which some singularity worthy of special mention is appreciated. They may be expanded ex post if the evolution of the research reveals that it is pertinent to include some other field. 6. Concluding seminar of the first phase to detect relevant issues from a theoretical point of view. At the end of the second year, we believe it is necessary to hold a face-to-face seminar in which all the members of the project participate in order to share the partial conclusions we have reached in the process of extracting definitions and to be able to define the direction of the research in the next two years. In particular, we will discuss the most relevant questions concerning the results of the statistical analysis of the data and assign the research topics to the members that will be the subject of the final publication. 7. Application of computer tools for statistical analysis to the database. We intend to use statistical pattern detection software tools to obtain information from the database that would otherwise, given the large volume of information, be virtually impossible to obtain. Indeed, the database will already provide a great utility as it will allow searches by any user using various filters, but we intend to go further. Statistical analysis tools allow the detection of patterns and relationships between elements with a speed and efficiency impossible for humans to achieve. For this reason, we hope that their application to our database can shed light on questions relating, for example, to the possible concentration in a given time, place, type of work, jurist... of more definitions, to the greater or lesser use in a context of legal practice or in other different contexts, or to carry out a comparative study of the role played by the definition in the reasoning of the various jurists as a whole.
Hypothesis
The starting hypothesis of this project is what we might call the ‘existence of hidden definitions’. In contrast to the traditional disdain of the Romanists of the first third of the 20th century for definitions that did not meet certain rigidly determined requirements, we believe that, through the use of certain linguistic markers or patterns that have not been given due attention until now, genuine definitions can be detected that, depending on the interest of the jurist and the context in which they are used, serve a specific and practical purpose in accordance with the type to which they belong (descriptive, etymological, exemplifying...). This will result in a greater number of definitions, the study of which, with the help of computer tools for statistical analysis, will make it possible to discover aspects of the definition in the works of the Roman jurists that had gone unnoticed.