For Jill Harries, the anonymous Rhetorica ad Herennium and Cicero's early De Inventione, written in the 80s Bc, read ‘at times like textbooks on law rather than rhetoric’. This is surely a reflection of the great emphasis both works place on the Judicial type of oratory, to which the Rhetorica ad Herennium devotes two books. Law and the legal context are manifest in the examples used in these two handbooks written in the 80s Bc, giving an insight into the practice as well as the theory of legal oratory in this period.
In fact, the two handbooks are a rich source of information for several aspects of trials– from the jurists who advise on civil law cases to the advocates who speak at trials and the jurors who judge them. In this chapter I will explore these three groups of people involved in trials (who may not, in reality, be separate individuals) to build a picture of the legal system in Cicero's youth.
The Rhetorica ad Herennium and Cicero's De Inventione are often studied together, to the detriment of one or other of the texts. As will become apparent, the two texts are significantly different, although this is often not explicitly recognised. There is little to gain, therefore, from trying to reason away their disagreements. Instead, these points of difference make the picture of the Roman Republic richer, emphasising the choices that were available to the people involved in the legal world and giving a glimpse of the variety that is frequently lacking in the surviving sources.
Despite their differences, the texts are still worth studying together for two reasons: their date and their common source. Both texts were almost certainly written in the 80s Bc before Cicero began his legal career and before his earliest surviving speech, Pro Quinctio (81 Bc). The commonly agreed dating of the Rhetorica ad Herennium falls between 86 and 82 Bc. The termi- nus post quem refers to the death of Marius in 86 Bc,the latest datable event mentioned in the text, and the fact that there is no mention of Sulla's dictatorship is used as evidence for it being written before 82 Bc.
In 45 Bc, Servius Sulpicius Rufus and Cicero exchanged letters containing reflections on the recent death of Cicero's daughter Tullia. This tragic event was assimilated by both to what they saw as the ‘death’ of the res publica, defined loosely by both as the constitutional order that had underpinned their own success and prestige, and that now, thanks to the victory of Caesar, was no more. However, both also resorted to survival strategies: a continued involvement, somehow, in the affairs of the res publica ; and the fulfilment of obligations to the interests of clients and friends.
Although the emotions that prompted the exchange were heart-felt (at least on Cicero's side), the pair of letters was also a jointly created literary artefact. Both writers were masters of rhetoric (despite Cicero's allegations to the contrary with regard to Servius in the Pro Murena) and their arguments add up to a joint exercise in self-representation as the chief mourners for a defunct res publica. As an analysis of what was meant by res publica, the letters leave much to be desired in that they may reflect Servius’ more limited political and philosophical outlook; Cicero, even when profoundly afflicted by grief, could do better, as is evidenced in the Tusculan Disputations, also a response to Tullia's death. In other words, Cicero, as so often, adapted himself to his correspondent.
Cicero's and Servius’ concern with helping friends would provide a means to enable the elite under the Empire to survive and prosper as manipulators of networks of power. Among them, Servius’ intellectual successors, the Roman jurists, also prospered; his career, and the subsequent perspectives on it, illustrated here through brief analyses of the presence of Servius in Celsus and Pomponius, illustrate how easily the iuris periti could adapt to a new constitutional order, by representing it as a continuation of the old. The ‘procuratorial’ attitude to the role of the populus in the res publica in their exchange is more problematic. The ‘fall of the Republic’ can be read in many ways; certainly, the ability of the populus Romanus to act as an effective element in constitutional governance was an early casualty of Augustus’ new system.
The relationship between forensic and political activity in the Roman Republic is well known. Much of what the iudicia publica dealt with were offences in public office: embezzlement, extortion, bribery and various kinds of misconduct by military commanders. The increasing prevalence of violence within domestic politics towards the end of the Republic further increased the overlap between politics and legal proceedings through the use of legislation de vi. Even if juries generally reached their decision on the basis of the evidence presented to them, rather than their pre-existing political dispositions, it is nonetheless the case that many of the trials heard by the quaestiones that dealt with the offences of repetundae, ambitio and maiestas involved defendants who were prominent in public life. This aspect of Roman public life– the fact that prominent men were vulnerable to legal proceedings arising from their public activities, whose outcome, if a conviction, could have career-ending consequences– would not necessarily lead to forensic activity on the part of politicians, particularly since the Roman legal system allowed advocacy. But in fact senators are found engaged in both prosecution and defence within the iudicia publica. This can be seen as an aspect of that distinctive lack of specialisation, or at least involvement in a range of activities, which is so characteristic a feature of the Republican elite. In addition, prosecution in Rome depended on a private individual bringing a charge, rather than any action by the state: thus prosecution was, or was often perceived to be, motivated by personal animosity between politically active individuals, and undertaken by men who were themselves engaged in a political career. Consequently, forensic ability is generally regarded in modern research on the Roman Republic as a valuable skill for a politician to possess.
The purpose of this chapter is to explore in more detail the ways in which forensic activity played a part in the public careers of late Republican politicians through a close examination of cases where prosecution was undertaken by very young men. Roman writers on rhetoric from Cicero onwards acknowledge the existence of a convention by which a young man prosecuted a senior political figure with a view to becoming known favourably in the community.
A recurring topic of discussion, both in Roman antiquity and in modern times, is the connection between philosophy, rhetoric and law. Of the many philosophers and their schools that existed in Roman antiquity there are two that may have been particularly relevant to the development of Roman law: the Hellenistic schools of Stoicism (Middle Stoa) and the New Academy. In the second century Bc, the Roman military conquest of Greece led to the Greek cultural conquest of Rome, introducing Greek philosophy and, in its wake, rhetoric. In that very same century, the praetor was put in charge of jurisdiction, legal procedure was innovated with the formulary procedure, and many new legal institutions were introduced. It is now generally assumed that there was a connection between the rise of Roman law and the arrival of Greek philosophy and rhetoric in Rome. However, the question which of the two philosophical schools was most relevant to the development of Roman law has not yet been answered satisfactorily.
In attempting to answer this question, we will use the concept of voluntas testatoris as a case study. We will first briefly consider to what extent the sources– mainly Justinian's Digest and the rhetorical and philosophical works of Cicero– can be of use (section 3.2). Next, we will summarily explain the modern views on the voluntas testatoris and the knowledge theories of the Stoa and the New Academy in antiquity (section 3.3). We will then describe the modern interpretation(s) of the causa Curiana (the first case in which the voluntas testatoris is mentioned), relate it to Stoic epistemology, and compare it with the rhetorical sources (section 4). Finally, having analysed four responsa from the Digest that are generally assumed to deal with the voluntas testatoris (section 5), we will conclude (section 6) that even though the Roman jurists did not develop a blanket theory of voluntas testatoris, if they did follow a particular philosophical school when solving legal problems like those caused by an unclear will, it would more likely have been the New Academy rather than the Stoa.
THE SOURCES AND THE DEBATE
In trying to determine which of the two schools had the greater impact on the development of Roman law, we submit as an initial observation that the guidance or direction offered by the sources is relatively sparse.
What does it take to be number one? What did it take in Rome in the late Republic to be the best among the politicians and senators? How did one go about achieving the most brilliant career? These were questions that the young Cicero had in mind, without any doubt, as he started his cursus studying law, rhetoric and philosophy. Similarly, these are questions we need to keep in mind when attempting to understand his judgement of the Roman jurists of his time: Q. Mucius Scaevola, Servius Sulpicius Rufus, Gaius Trebatius Testa. It explains why his testimony, though valuable as can be considering that we do not have that many clues about them, must be considered cautiously: he is not objective, not because of his well-known pride, but because he sees law through the prism of his ambition and determination to achieve immortal glory.
For him it was clear that law was not enough and jurists could not expect to have a brillant career merely because of their knowledge. Cicero was an advocate, the greatest advocate Rome had in the late Republic from 70 Bc onwards. He had studied law with the best, but law alone, in his view, was not sufficient to reach the top. Thus modern scholars must apply this filter when attempting to reconstruct the lives of those jurists he knew and assessing their importance in Roman society of the late Republic. The same caveat applies to his views on generals. Cicero considered it useful for the state to have great officers who won battles and wars, but he was convinced that it was not enough to pretend to be the best, and we can assume it was not only because he knew he could never compete with a Pompey or a Caesar. It was also because he believed that a leader had to be more than a victorious general, just as he believed that a jurist could not be a leader with a knowledge only of law.
Once we bear this in mind, we can study the main jurists who lived in or around Cicero's time. Mucius Scaevola was his master in the study of law, until he died; then Cicero had to study with another member of this family.
This chapter addresses an apparent contradiction in Roman criminal trials between multiple charges and unitary punishment. If the punishment for a defendant who was found guilty was the same whether he was found guilty of one charge or many charges, why were multiple charges common?
I will first attempt to establish that the causa coniuncta, the case involving several charges, was, in fact, common. In order to support this point, I will argue against the belief that many of what I consider to be actual charges were merely character defamation of the defendant, although character defamation of the defendant was typically employed by prosecutors to make a conviction more likely. I will try to make my case not only on the evidence of Cicero's forensic orations, but on the advice provided to orators in the extensive rhetorical literature of the late Republic and early Empire. This rhetorical literature helps us see Cicero as a typical orator, albeit the leading orator of Rome for much of his life, rather than as an anomalous ‘star player’ in the Roman courts.
I hope to show in this chapter that it can be more fruitful to view rhetoric as a means employed by ancient orators, such as Cicero, to implement a strategy that they developed to meet the specific legal environment of a trial, rather than as a way merely to obfuscate the legal issues that the trial needed to address. Rhetoric, I will argue, should not be viewed as an unfortunate but necessary way to confuse the jurors, but rather primarily as a highly developed tool that enabled orators to present the facts and the law to the jurors in a comprehensible and persuasive manner.
Legal history involves an inherent tension between formalism and legal realism. My approach pushes the needle somewhat towards the former and away from the latter, while, I hope, avoiding the pitfalls of an extreme formalist approach.
Prosecutors typically cast many aspersions against the defendant in Roman criminal trials, which we usually know about because the patronus, speaking for the defendant, attempts to refute these aspersions.
Anyone interested in Cicero as a legal thinker and his importance in the development of Roman law will find herself facing a somewhat paradoxical situation. On the one hand, Cicero is often counted among the greatest ancient thinkers on law, while on the other his name and writings are largely absent from ancient Roman legal scholarship. A quick glance reveals that the Institutes of Gaius, a text from the second century Ad, do not cite Cicero by name. Likewise, the fifty books of Justinian's Digest, our most important source for juristic writings, mention Cicero only a handful of times. Even when it comes to the reception of ideas, Cicero's presence seems limited; it is at least sufficiently elusive as to create ample scholarly disagreement. Yet Cicero undeniably had an extensive interest in legal matters, ranging from the wording of wills to questions about natural justice, and there is every indication that much of his oeuvre has circulated widely since his lifetime. For these reasons, it is worth considering how Cicero and his works were received by the jurists and how we should understand his relatively marginal presence in Roman legal thought.
The relation between Cicero and the Roman jurists has undergone thorough scholarly scrutiny, albeit mostly from a Ciceronian perspective. Designated by Latin words such as iure consultus or iuris peritus or simply prudens, a jurist functioned as a legal advisor to individuals with questions about the ‘proper’ interpretation of the law, which could involve written as well as unwritten law. A jurist's answer, specific to the case at hand and known as a responsum, could be cited in court in support of one's case. The authority of responsa was a function of the authority of their authors, who needed to be experts on customary practices in order to find a solution that could be considered ‘right’– that is, a solution in line with traditional interpretations of statutes, or customary law, or, in lack thereof, Roman traditions. We should note at the outset that Cicero is generally not considered a jurist, either by the ancients or by modern scholars. The main reason is that Cicero, when pleading a case in the courtroom, is out primarily to win the suit for his client and as such acts as an advocate, not a jurist.
As the Roman state expanded its territory, the peoples of Italy were gradually incorporated into the Roman framework, either as full or partial citizens or as nominally independent allies. In the third century Bc a bewildering variety of legal statuses existed in close proximity within the Italian peninsula, which meant that people of different statuses were obliged to interact regularly. The Roman state endeavoured to accommodate these needs by creating new legal instruments, for example commercium and conubium – which, however, were only available to Latins, not to all Italians. The office of praetor peregrinus was created in 241 Bc to deal with legal conflicts between Romans and Italians. Nevertheless, not all conflicts that involved people who held a different legal status could easily be resolved; new legal instruments were created throughout the Republic.
Most Italians still suffered from legal disadvantages in their dealings with Romans, for example because they did not hold commercium, which made it difficult to do business with Romans and to join in commercial partnership with them, or because they could not inherit from or bequeath to Romans because of their lack of conubium. Moreover, their possessions, especially land, were constantly under threat of confiscation by the Romans, as became clear during the Gracchan land reforms. Recourse to the praetor peregrinus availed the Italians very little in these situations. These legal handicaps may have been among the main reasons for the outbreak of the Social War in 91 Bc: the Italians demanded, among other things, legal equality with their Roman business partners.
In the early first century Bc, after the Social War, all Italians were granted Roman citizenship. However, it took a while before the Roman state was willing to grant them the full benefits of this status; it attempted to limit the voting rights of Italians by entering them in a small number of voting tribus, and are most unlikely to have assigned all Italians a tribus until the census of 70 Bc.
This chapter will investigate the legal status of Italians in the second and first century Bc.In theory, at least after 70 Bc, Italians were equal to the old Roman citizens, in that they could avail themselves of the same legal instruments provided by the Roman state.
Cicero's reputation as a legal philosopher seems to be somehow discredited by his role as a politician and advocate. Despite admiration of his intellectual capacity, there is a prejudice that politics as well as legal practice require a day-to- day pragmatism incompatible with the aim of searching for a reliable, timeless truth. The move towards reading Cicero's writings in context did not change the particular reluctance to believe in what Cicero says or– more importantly– to believe that Cicero himself believed in what he said. Given his different faces, one is prone to read his writings against the background of a multi-layered set of rhetorical, political or tactical functions forming his words and making them understandable in the eyes of a modern reader. As far as substance follows function in this sense, there is no place for a pure, abstract theory of law.
However, during the years of his political retreat after the Luca Conference, Cicero did develop a comprehensive and coherent theory of law and its nature. This theory, mainly found in his Laws and the Republic, is not – as often assumed – a theory contrasting man-made laws and natural law. It is a theory of law in the widest sense of the word, dealing with natura iuris, that is, the nature of law in general. This theory finds its origins in Stoic writings, especially in the oikeiosis doctrine; but Cicero amalgamates nomos and physis towards a new holistic understanding of law, which is not grounded in any dichotomy of leges and a higher-ranking ideal of natural law. For Cicero, law is nature– and what is not nature, is not law. Given this background, Cicero's understanding of law goes beyond the idea of law as a specific tool among others to regulate society. Law has no function in this sense; it rather is the very essence of practical wisdom in a society of rational human beings. This practical wisdom is described as the highest form of human insight; it results from the very moment when gods and men join up to constitute a societas communis.
There is no evidence that Cicero's legal philosophy strongly influenced legal practice in the long term;
The authors included in this volume were asked to revisit the traditional narratives of Roman law during the late Republic with a view to establishing whether and to what extent a greater focus on Cicero and his works would affect these. They were instructed not to treat Cicero as ‘an outsider’, but as part of a broader ‘legal culture’ of the late Republic, while at the same time remaining aware of the biases inherent in his oeuvre.
The first section of this book focused on various interrelated narratives regarding the state of Roman law during the late Republic. Thomas shows the extent to which much of the modern narrative regarding the rise of the Roman jurists and the Roman legal profession remains subtly, yet profoundly affected by notions of specialisation and intellectual isolation created at the turn of the nineteenth century in German legal scholarship. This, in turn, affects modern understanding of the significance of Republican Roman law for the emergence of classical Roman law. By counterbalancing this narrative with the evidence provided by Cicero (while at the same time making allowances for the biases present in his works), it allows the modern reader to obtain a broader, more inclusive picture and, in turn, to reflect more closely on the importance of issues such as rhetoric and of philosophy for the development of Roman law during the late Republic. This latter point finds a natural locus in the chapter of Tellegen-Couperus and Tellegen who, using an aspect of the law of succession as their example, proceed to question the commonly held belief that Stoicism was the driving force behind much of Republican Roman law. In fact, as they show, the jurists drew on a variety of philosophical influences, often also from the New Academy, when debating matters of law. This chapter, in turn, allows the modern reader to draw greater inferences regarding the impact of philosophy upon Republican Roman law, especially in light of the claims often made regarding the philosophical inclinations of some of the great Republican jurists. This insight percolates into the final chapter in this section in which Forschner grapples with the knotty issue of Cicero's ‘theory of law’.
INTRODUCTION: WHO WAS A JURIST?
It is a matter of dispute whether the Roman jurists of the Republic can be aptly described as such. There was no formalised training for the legal profession nor is it clear how much time the Roman jurists devoted to their profession. Indeed, the jurists of Cicero's time were amateurs compared to modern jurists. The Roman jurists active during that time could be described most accurately as ‘gentlemen’, men from higher classes who engaged in giving legal advice and representing parties in court due to favours owed to their clients, acquaintances and family members. Legal services were not paid for but nor were they free of charge. Rewards were often made in the form of gifts, bequests or other services. Monetary reward, even the prospect of financial gain, was, although undoubtedly present, looked down upon by the Roman aristocracy. For them, giving legal advice, making accusations, litigating on behalf of others and arbitrating was part of the duties of a vir bonus. Moreover, it was considered necessary to legally assist friends and acquaintances to spread favours before and for elections.
SOCIETY AND THE LAW
In earlier works I used to define as jurists men (1) who identified as such, (2) who were called jurists, (3) to whom considerable legal knowledge was attributed and (4) who had left responsa. For the purpose of this chapter I would like to supplement a fifth category: men of whom legal knowledge can be presumed on the basis of their legal work.
I want to define as jurists in the shadows men from a lower social background, who devoted themselves to less illustrious legal work and were therefore, when consulted, seldom mentioned by name. Their activities can be attributed to the following categories: legal representatives, the staff and other advisors of the magistrates, businessmen, and conveyancers. It should be stressed, however, that these categories are neither exhaustive nor exclusive. For example several negotiatores served as procuratores, Atticus, a respected businessman, drafted at least two last wills4 and private secretaries had official duties when their patron became a magistrate.
The centre of gravity of legal development therefore from time immemorial has not lain in the activity of the state, but in society itself.
In his 1995 book, The Spirit of Roman Law (Athens, GA 1995), Alan Watson included a chapter provocatively titled ‘Cicero the outsider’. By locating this chapter towards the end of the book, Watson hinted that any discussion of Cicero in the context of the spirit of Roman law (a difficult concept in itself) could only really form part of an appendix (in this case Appendix A) to a book of this kind. The gist of this chapter, following the then dominant Romanist view, is that ‘Cicero's outlook [was] remarkably different from that of the Roman jurists’ (at 200).As this statement implies, for Watson, Cicero stood outside the traditional narrative of the Roman jurists.
This view of Cicero as ‘an outsider’ is based on two assumptions. The first is that a fundamental distinction between the ‘jurist’ and the ‘advocate’ (orator) existed in Roman law– a distinction that, according to its supporters, seems to have originated already in the mid to late Republic. Jurists were engaged in an intellectual endeavour, removed from the cut and thrust of legal practice, while orators were very much at its centre and utilised the art of persuasion (rhetoric) in courts of law, often with limited attention to (or indeed need for) the intellectual intricacies of Roman law. Such a system was made workable by the formula procedure operating in the Roman courts where the praetor and the jurists dealt with matters of law, while the lay iudex merely decided on the application of the law to the facts of the matter. The origins of this view about the perceived divide between the jurist and the orator are complex and may be traced at least to nineteenth-century German conceptions of law as a Wissenschaft, in which the ‘scientific’ study of law and those who were engaged in it were foregrounded at the expense of legal practice. This view also finds support to some extent in Cicero's own statements about the endeavours of jurists, of whom he seems at times quite critical (although these should be treated with circumspection as they were produced within a specific context).
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