The Jurist’s Mind

Francesco Giglio

Professor of Civil and Private Law, University of Surrey

 

The Jurist’s Mind^{* **}

 

English title: The Jurist’s Mind

DOI: 10.26350/18277942_000050 

 

Sommario: 1. Introduction. 2. The Legacy of Roman Legal Reasoning: A. From Literature to Science B. The regulae C. Topical Reasoning. 3. Legal Arguments: A Comparison with Athenian Law. 4. Jurists and Advocates. 5. Questions of Law and Questions of Fact. 6. Regulae and Open Arguments. 7. Conclusion

 

1. Introduction

 

In The Province of Jurisprudence Determined, the seminal work by John Austin which is one of the pillars of modern analytical jurisprudence, we can read: “Turning from the study of the English, to the study of the Roman law, you escape from the empire of chaos and darkness, to a world which seems by comparison, the region of order and light”[1]. Although there is some stylistic exaggeration in these words, they capture the essence of the analysis pursued here: The impact of Roman law extends beyond its legal institutions to include methodological issues that have influenced modern legal thinking.

Comparison is about us just as much as, or even more than, it is about the other. Fritz Pringsheim argued that “[c]omparative law without the history of law is an impossible task”[2]. His words find an echo in the strong position taken by Rudolf von Jhering around fifty years earlier. For the author of Der Kampf ums Recht, positivism was a deadly enemy of the law. The latter could only thrive with the support of philosophical, historical and legal analysis[3]. Indeed, law, as a social science, changes with societal and cultural developments. Legal ‘history’ is a term that indicates a transition: it is a dynamic concept. If we want to grasp the legal trends, the nature and role of legal institutions, history has to be part of our analysis: each person, each community are the result of their evolution, and this evolution is based upon, and steered by, our past.

The identification of the historical trends is not just helpful. It is crucial to understand how we think today. We are the heirs of the legal tradition of the Romans; our methods are their methods. In particular, the intellectual structures which we use to adjudicate upon legal matters, as will be shown here, have been first expounded by them.

This is an exercise in the history of ideas with a focus on legal reasoning. It is aimed first and foremost at modern lawyers and legal theorists – with the caveat that the analysis will concern only selected milestones. A general discussion of all, or even most, elements of Roman legal methodology, interesting as they might be, cannot be pursued in the present context.

It will be argued that the Romans created the science of law through their interaction with Greek philosophy. It is now accepted by many, but not all, scholars that this interaction is particularly evident during the late Republic. The jurists of the classical period did not show the same enthusiasm for the Hellenistic world, although they, too, referred to Greek philosophy[4]. Our knowledge is, of course, restricted to the available sources: the reality of the time might have been a bit different. Since the Romans, not much has changed in the noetic processes of the lawyers.

Roman law offers a neutral field to test the validity of the view advanced in this paper. In particular, the thesis will be assessed that a truly closed system of law is purely of theoretical relevance, because factual reality cannot be ignored. For a systematic application of the law, different syllogisms are required for the connection and harmonisation of legal norms and factual reality. Further, to operate, a legal system needs structure and flexibility. The absence of either element seriously hinders legal development. The core argument advanced in this paper is that stricter rules offer the backbone, whereas more flexible ones allow the legal system to adapt to societal changes.

In Part Two, the focus quickly shifts to the Roman legal reasoning and its legacy. It will be argued that the passage from legal literature to legal science was made possible by the arrival in Rome of Greek philosophy, which introduced the jurists to the concept of ‘definition’ and paved the way to the application of methodological, deductive constructs that enabled a properly systematic legal analysis. A central point advanced in this section is the presence of regulae and open arguments as complementary elements: a legal system lacks structure in the absence of the former and is not vital in the absence of the latter. In Part Three, the novelty of the Roman approach to law emerges more clearly through a comparison with Athenian law. Then, the roles of jurists and advocates, Part Four, and the distinction between questions of law and questions of fact, Part Five, are discussed. Part Six contains examples of regulae and open arguments in Roman law. Part Seven offers some concluding remarks.

There will be references to ‘method’ and ‘system’. Both expressions are scientifically charged and looked upon with suspicion by some Romanists. Whereas ‘method’ might receive a more benign welcome given that Cicero showed an interest in this topic, it is often argued that the Romans would not depict their set of rules as systematic. This latter term will be used here in a neutral fashion, as referring to a network of co-ordinated terms and normative statements which extend to the whole system or part of it[5]. No claim is made that the Roman jurists consciously developed the law on the basis of an overarching system.

 

II. The Legacy of Roman Legal Reasoning

 

To comprehend how they thought, we must first see who the Roman jurists were. In a famous passage of the Digest, the late classical jurist Papinian, who died in 212 AD, lists the sources of the civil law:

 

The civil law originates in the statutes, plebiscites, senatus consulta, imperial decrees, the authority of the jurists[6].

 

It strikes the eye of the modern lawyer that the opinions of the Roman jurists were authoritative. Normally, their authority was merely persuasive – it carried the weight of the jurist who expressed the view. In some cases, however, the opinion was vested with the authority of the emperor, who granted the right to give an opinion, ius respondendi[7]. Unfortunately, we know little about this imperial power.

As emerges from the Papinianic passage, the jurists were essential to the development of the law and consequently enjoyed a high social status. They were known for their independent minds and their authority was not based upon a civil service or a magistrature. People saw them as untouchable, strong, and trustworthy. In the De Oratore, Cicero gives us a vivid description of their importance and prestige: he depicts them walking along the forum and being approached by those who needed a consultation on matters of law and beyond, and praises their sapientia, or wisdom[8].

The technique of legal reasoning is one of the main Roman legacies to modern law. Roman law has influenced most aspects of the contemporary legal discourse both in the civil law systems and in the common law. In this section, it will be argued that law is scientific: there is a system in the law. Further, it will be shown that the use of legal definitions paved the way to the introduction of rules through which the system obtained a structure. Finally, the point will be made that the essential difference between law, as an ideal construct, and factual reality explains why the jurists used – and still use – two forms of syllogism: norms required axiom-based deduction, whereas facts needed dialectical analysis.

 

A. From Literature to Science

 

It is argued in this section that Roman law became a legal science through the contacts between the elites of republican Rome and those Hellenistic philosophers who came to Rome from the second century BC onwards. The modern debate on the role of Hellenistic philosophy in Roman law, particularly during the late Republic, but also in classical times, is far from being settled[9]. However, the process of transformation of the Roman jurists into scientists appears to have even older roots, which go back to Aristotle’s investigations – although it is disputed whether and which Aristotelian works were directly available to the Roman jurists of the second century BC, so that it is most likely that his influence was, in this period, mainly indirect[10]. Andronicus of Rhodes, who lived in the first century BC, is credited by Porphyry as the first editor of Aristotle’s work[11]. Cicero’s references to Aristotelian philosophy, as will be seen, suggest that at least some texts by Aristotle were read in Rome during the first century BC.

Aristotle opens his Metaphysics with a statement of perfect beauty: All men by nature desire to know[12]. This is what distinguishes us from animals, who live by appearances and memories. Experience, ἐμπειρία (empeiría), is more valuable for man, who needs it to achieve knowledge and expertise, ἐπιστήμηκαὶτέχνη (epistéme kaì téchne)[13]. Expertise is more closely related to understanding – for instance a set of rules[14] – than pure experience is because what characterises the man who knows is the ability to teach[15]. Experience is essential to develop those skills leading to expertise which can be explained through rules. The acquisition and improvement of such skills paves the way to the analysis. In this context, scientific advancement is possible either through induction, ἐπαγωγὴ (epagoghè) or deduction, συλλογισμός (sullogismós), based upon a valid argument[16]. Induction moves from the particular to identify the universal and provides the basis for developing a deductive argument, or syllogism, which requires information that is already known.

In the Posterior Analytics, Aristotle deals with scientific knowledge. There, we can find a further element necessary to appreciate how the Roman jurists benefited from Greek philosophy: any scientific analysis that is based upon a basic truth. Aristotle identifies three propositions which can be formulated on the basis of such truth: axiom, ἀξίωμα (axíoma), which contains an immediate basic truth; hypothesis, ὑπόθεσις (hupóthesis) through which the existence or non-existence of a subject is asserted; and definition, ὁρισμὸς (horismòs), which is a thesis that is independent of any assertion about the existence of the subject[17].

According to Aristotle, therefore, scientific knowledge requires basic truths, or self-evident principles. It is disputed whether, in legal analysis, principles precede legal decisions or whether they follow from them. In his historical investigation of ancient law, Henry Sumner Maine argued that legal systems in their infancy are characterised by an absence of legal rules. Such systems are rather based upon habit: “The only authoritative statement of right and wrong is a judicial sentence after the facts”[18]. Peter Stein disagrees. In his view, decisions must generally be influenced by legal principle, even if only at a subconscious level[19], so that legal rules are present in some form from the beginning of the legal analysis. The two views differ on the nature of the original concepts upon which the logical process rests that produced the legal decision. For Maine, we can infer that such nature was not legal, whereas Stein’s view implies that the original concepts contained a legal element – possibly they became legal because they contributed to a legal decision. On the other hand, neither view seems to exclude that the original concepts, whether they had legal value or not, through time might have produced legal principles. This is a first step to develop law into a science.

The lack of a systematic approach to law at the early stage of its legal development is evidenced in Roman law by the emergence of a structured legal analysis during the second century BC. The sources give us the name of the first Roman jurist who introduced science into legal analysis. Pomponius, a jurist of the second century AD, writes:

 

D. 1.2.2.41 (Pomp. Libro singulari enchiridii): “Post hos Quintus Mucius Publii filius pontifex maximus ius civile primus constituit generatim in libros decem et octo redigendo.”

 

After them, the pontifex maximus Quintus Mucius, son of Publius, was the first to organise the civil law by collecting it in eighteen books according to genera.

 

The novel, ground-breaking factor is evinced by the words constituere, to dispose, here with the meaning of ‘to organise’, ‘to provide a structure’; and generatim, according to genera. The concept of γένος (génos) was discussed by Aristotle in several works[20]. As the statement is made by Pomponius, and not Mucius, the question can be asked whether the generatim means that Mucius was aware of the Aristotelian analysis or rather whether this is a conclusion a posteriori by Pomponius, who lived at a time where the Aristotelian tenets were better known. The mention of a term of Greek philosophy in a booklet written by Mucius, which will be examined anon, suggests that the author consciously followed Greek tenets. On the other hand, the availability of Aristotelian texts at the time of Quintus Mucius was, at best, very restricted. In either case, some kind of Aristotelian, or at least Greek, influence, possibly via the Stoics, seems probable.

Cicero confirms the importance of this classificatory methodology: the civil law is to be arranged, digerere, in genera, which are few. Within the genera, the different elements of the civil law are to be divided, dispertire, in parts, membra. Each part is explained through a definition. The jurist who proceeds in this fashion displays, for Cicero, the ‘perfect expertise’ – perfecta ars, that is, the Aristotelian τέχνη (téchne) – of the civil law[21].

A further clue about a possible Aristotelian influence, and a confirmation of how innovative this approach was, emerges from a booklet in which Quintus Mucius Scaevola Pontifex analysed the legal terminology and discussed basic principles. He titled the book Liber singularis ὅρων (hóron), or sole book of ὅροι (hóroi)[22]. We have already encountered the stem, ὁρ (hor), of this Greek word in the Aristotelian corpus[23]. As intimated, Aristotle identified three propositions for scientific knowledge. One of them was ὁρισμὸς (horismòs), definition. Note that the term ‘definitio’ appears as one of the elements to achieve the ‘perfect expertise’ of the lawyer as described by Cicero in the passage above. This should not surprise, given that Cicero did his legal pupillage partly under the supervision of Quintus Mucius himself[24]. Hence, the Pontifex wrote a book of definitions relevant to law. The Greek word used in the title is an important clue of the influence of Greek philosophy upon Roman law. Probably for the first time, Roman legal analysis was linked to one of the three Aristotelian statements that are connected to a basic truth. The adoption of a scientific method allows us to describe Quintus Mucius’ text as properly scientific.

According to Stein, there is insufficient evidence that the jurists of the mid-second century BC were scientific. They would rather provide the literature that would then be scientifically organised by the following generation[25]. Indeed, Cicero praises Servius Sulpicius Rufus, one of the greatest late-republican jurists and Quintus Mucius Scaevola’s pupil, as the first lawyer to treat law as an ‘ars’’[26], a term with which he translates the Greek word τέχνη (téchne), or expertise. Although Cicero acknowledges Quintus Mucius’ important contribution, he highlights a significant difference between the latter and Servius. The word ‘ars’ captures this difference – a term that Aristotle associated with understanding and the skills required to teach. For Cicero, law develops into a science, iuris scientia, only when it becomes ars. His legal scientist classifies, defines, interprets, identifies the ambiguities and then establishes a regula on the basis of which true and false statements can be identified. This fundamental passage sums up perfectly how we think today.

It might be that the great orator was a bit partial to his good friend Servius. We find at the beginning of his list of what characterises scientific legal work the capacity ‘to show through definitions what is concealed’, latentem explicare definiendo: a process which ultimately leads to the development of a regula. Cicero uses here two expressions, definition and regula, which were brought to the fore by Quintus Mucius in his work on definitions. This jurist’s standing among his peers, which is confirmed by the several passages reporting his opinions in Justinian’s Digest, together with his mastery of Greek methodology provides support to the view according to which Quintus Mucius was a scientist, indeed a pioneer, although one can agree with Stein that his science was not as developed as that displayed by the following generation. Cicero’s reference to regulae – on the basis of which it is possible to adjudicate on truth and falsehood, qua vera et falsa iudicarentur – was not a casual remark. They are an important component of the legal methodology.

 

B. The regulae

 

The adoption of a method based upon definitions, which builds the foundation of every legal analysis, paved the way to a classificatory approach which supplies a clearer depiction of the legal mechanisms at work. The function of a definition is to set a boundary – finis for the Romans; ὅρος (hóros) for the Greeks. Hence, a definition allows us to understand a concept, but it also limits our freedom. The Romans, by and large, had to develop their analysis within the boundaries of the existing legal institutions. In this regard, they had structures in place which ensured that the legal system evolved not only in a coherent fashion, but also following agreed lines. On this aspect of legal methodology there has been scholarly disagreement. In 1953, Theodor Viehweg published the first edition of his monograph on Topik und Jurisprudenz[27], which sparked a debate among theorists well beyond its original German borders. A core idea advanced in that work is that Roman law was not systematic. Such theory ran counter to the received doctrine of interpretation. How can a harmonious and equitable system of justice be attained in the absence of a coherent framework? Do system and methodology not go necessarily together?

Viehweg states that a systematic-deductive legal system is possible, but fraught with obstacles. For one, the choice of the axioms from which the deductive analysis starts would be arbitrary[28]. This point had already been raised by Aristotle, who, as intimated, observed that the basis of deductive reasoning necessarily rests on prior inductive analysis. The identification of axioms shapes each legal system - thus distinguishing it from those systems which are based upon different axioms[29]. Viehweg accepts that it is possible to develop a procedure to enable the application of an exclusively deductive legal system. Such procedure would require the abstraction of the factual elements into purely logical constructs according to a model that is well exemplified by Leibniz’s calculus. Yet, the author’s aim is to show that the creation of a purely deductive system is only of theoretical relevance. Such deductive effort is made even more difficult by the lack of studies on the legal axioms that would underpin the system and their relationship to each other[30]. He concludes that modern legal constructs are not systems from the viewpoint of logic. Law is rather characterised by an indefinite plurality of smaller systems whose dimensions vary considerably[31]. The co-existence of different systems within the same structure paves the way to collisions, which must be tackled with appropriate interpretive tools.

A good starting point in the Roman sources to test Viehweg’s idea is offered by a renowned Paulian passage, in which the Severan jurist states:

 

A regula is what briefly describes a given res [thing]. The law is not obtained from a regula, but a regula is created from the law as it is. By means of a regula, therefore, a brief description of things is handed down and, as Sabinus states, is in a manner of speaking a causae coniectio [summary outline of the case], which loses its function as soon as it is flawed in any way[32].

 

A res is a thing, but here Sabinus, the great jurist of the first century AD, meant something like ‘situation with legal relevance’, ‘issue’ or ‘case’. The causae coniectio is a brief exposition of the relevant points to the judge before a full discussion of the case[33].

This passage suggests that the Roman jurists did follow given guidelines, which speaks for the existence of a structured, deductive approach consistent with the Aristotelian scientific methodology. The focus of the following analysis will be on the statement according to which ‘a regula must arise from the law as it is’.

Most translations render the term ‘regula’ with ‘rule’[34]. Such rendering of the term is correct, but the original Latin term has a peculiar connotation which might not emerge as clearly in translation. Alessandro Corbino explains that, technically, the regula provides a concise formula to the law[35]. The Latin term is the translation of the Greek κανών (kanón), straight rod or ruler, which was also used metaphorically with the meaning of standard, or rule.

Papinian’s passage on the legal sources examined above does not mention the regulae; nor does Gaius in a passage with a similar content[36]. This absence is not due to carelessness or inaccuracy. The regulae explained the law in the form of general references to other existing cases. They were resilient, but did not have absolute value, and, most likely, they could be modified or abandoned as appropriate – the Latin term vitiatus, which means ‘flawed’, should be understood lato sensu, as referring to the inadequacy of the regula in a given factual scenario. ‘Flawed rules’ were linked to the introduction of new social values, changes in the cultural tenets, and generally any event which had such a significant repercussion upon the Roman community as to trigger a change of course. Thomas Finkenauer proposes an interpretation of regulae as mnemotechnical tools that were particularly popular in the institutional books, such as Gaius’ Institutes, written in the second century AD, which had a mainly didascalic function. In the practice, the regulae would have played a different role: they were applied when convenient and often tacitly ignored if considered inappropriate[37]. This reading of regulae as extremely flexible instruments is not accepted by all Romanists[38]. Yet, even those who are not convinced by this depiction converge on a concept of regulae as directives. The regula was probably not preceptive. It provided an interpretation for an undetermined series of cases with a common core, helping to harmonise the existing law, rather than creating new law[39].

 

C. Topical Reasoning

 

Even if a weaker version of regula is accepted, the latter still remains an important methodological tool. Its application strongly suggests that the Roman legal thought included a deductive element. At this point, the question arises of how deductive legal reasoning manages to bridge the hiatus between law and case. The former provides a theoretical structure which can be developed in an apodictic-deductive fashion on a formal basis, the latter is based upon facts. Reality, upon which these facts are based, cannot be systematised under an axiom. Hence, to dispense justice, it is necessary to bridge the gap betwixt law and fact. Once again, we can turn to the Romans to clarify how this bridge can be built.

In the Topica, Cicero argues us that the legal discourse contains two parts. The first part is concerned with discovery, pars inveniendi; the second part with adjudication, pars iudicandi. Both parts, the Roman orator argues, can be led back to Aristotelian analysis. The Stoics focussed on the second part using a scientific method which they called dialectics, and neglected the pars inveniendi, which is known as topics and, in Cicero’s view, is of higher practical use and certainly prior in the natural order[40].

In this brief passage, Cicero tells us all we need to know to tackle the afore-mentioned issue of the gap between law and fact. The Stoics supplied an essential contribution to the development of the pars iudicandi, the one concerning the skills necessary to adjudicate, which they linked to dialectics. For them, law was reason[41] and therefore the legal toolbox had to contain rational instruments. Dialectics included logic in the modern sense and was one of the two branches of Stoic logic – the other branch being rhetoric[42].

The description of Aristotle as princeps – the first, most eminent person – of the method to speak accurately and appropriately, ratio diligens disserendi, highlights the link between Cicero’s classification of the legal discourse and the work of the Greek philosopher. In the Topics, Aristotle distinguishes four forms of reasoning, or συλλογισμός (sullogismós). The first two forms are pertinent to the instant analysis: ἀπόδειξις (apódeixis) or apodictic reasoning, a demonstration based upon a primary truth, τὰπρῶτακαὶἀληθῆ (ta próta kaì alethê); and διαλεκτικόςσυλλογισμός (dialektikós sullogismós), which is dialectical reasoning ἐξἐνδόξων (ex endóxon), i.e. from generally accepted opinions – ‘generally’ meaning that they are accepted by all or the majority, or by the philosophers[43]. Cicero’s distinction can be perfectly embedded in the Aristotelian scheme. Apodictic reasoning starts from a primary truth, which in law can be identified in a legal norm. It is the basis of the logical reasoning pursued by the judges in the pars iudicandi.

Whereas the apodictic syllogism supplies the method to be applied in the normative analysis, it is unable to tell us anything about the factual scenario to which that analysis should be related. Viehweg distinguishes system-based thinking from problem-based thinking. In his view, when the focus is on the problem, it is possible to identify the relevant system; whereas, when the focus is on the system, only those problems can be solved which are within that particular system[44]. It is possible to provide an alternative narrative to this argument by combining apodictic, system-based reasoning with topical, problem-based reasoning into a common analytical structure, as suggested by Cicero.

To find the legal norm relevant to a particular set of facts, we cannot use apodictic reasoning. We need another analytical tool out of the methodological treasure trove of Roman legal thinking: topical reasoning, which for Cicero is the core of the ars inveniendi – ars meaning the Aristotelian τέχνη (téchne), or expertise. Inventio is one of the five canons of rhetoric[45] and is described by Cicero as a way of devising true or verisimilar arguments that render a case, causa, credible or plausible[46]. Inventio is discovery – from invenire, to come upon – of argumentative structures. In Aristotelian language, dialectical reasoning, to which topics are linked, lacks the scientific basis of the primary truth, which is substituted by generally accepted opinions. However, although the foundations of apodictic and dialectical reasoning are different, their methodological structures are the same, because they both use syllogistic analysis.

To explain the last statement, we ought to start from Trebatius Testa, who was a prominent jurist and a friend of Cicero’s. Trebatius found in Cicero’s library a copy of the Aristotelian Topics and asked him to write a paper in which he explained Aristotle’s ideas to jurists[47]. The outcome, that is, the Topica, had little in common with the Greek work. Cicero justifies the differences by telling us that he wrote it during a journey at sea when he could not consult the original Aristotelian text. In fact, in the Latin work it is notable the impact upon Cicero of the influential teachings on rhetoric of Hermagoras of Temnos, who taught in Rome around the second century BC[48].

Hermagoras’ ideas have reached us only indirectly and partly, mainly via Cicero and Quintilian[49]. The Greek rhetorician developed the στάσις (stásis), in Latin status, doctrine. The word στάσις can be translated with ‘standing still’ and is generally seen as the opposite of κίνησις (kínesis), or movement[50]. Since the facts of a case do not change, the only way to influence a legal controversy, or quaestio, and therefore to introduce movement, is through rhetorical argumentation. The Hermagorean doctrine identifies two groups of quaestiones, or controversies: rational and legal. Cicero examines the four quaestiones legales in De Inventione, or On Invention[51]. By way of example, we can mention the species ‘ambiguity’, the Aristotelian amphiboly, in which a given written statement can be read in different fashions according to which grammar rules are applied: the words are clear, their connections are not. Cicero offers the example of a bequest: ‘My heir will give to my wife one hundred in weight of silver plates as wishes’[52]. Who is the subject of the verb to wish, the heir or the wife? Each party will argue differently, because the plates could be of dissimilar quality and value[53].

The role of dialectics in law has been mostly neglected in modern times. Johannes Stroux was the first author to argue that dialectics is a component of legal analysis in Roman law[54]. Whereas dialectical reasoning was traditionally seen as located within the realm of rhetoricians[55], Stroux sought to demonstrate that it had an important role to play in legal proceedings. Cicero dedicated a large part of his youth booklet On Invention to the status doctrine. In his more mature work on Topica, which, unlike On Invention, was expressly written for lawyers, he examined only marginally the quaestiones of the status-doctrine. His aim was rather to provide weaponry to the lawyers which would be of practical advantage in legal disputes. Any statement opens up several alternatives and Cicero, once again following Hermagoras, explains how to choose between them. The Greek rhetorician had developed a method to pursue a line of reasoning based upon τόποι (tópoi). Cicero translates the singular form τόπος(tópos) as locus, or place. He tells us that τόποςis the place where we can find the arguments, and that an argument is what makes credible or plausible what is doubtful[56]. The τόποςdoes not consist of a tool to be applied regularly to similar cases. It is rather a sound statement containing a value which can be of use in the particular circumstances of the case – in a given situation, at a given time, with given parties – and might not be appropriate if any of these variables change. As such, it has a different function from regula: although both regulae and τόποι (tópoi) probably allowed for a good degree of flexibility, regulae provide a structure to the legal system, whereas τόποι support the reasoning through which the parties seek to persuade the judge: Cicero’s study of τόποι shows to jurists how to present legal arguments in a fashion that offers them the best opportunity to win a legal dispute.

Status doctrine and topical reasoning are related. In his oration in support of Aulus Caecina, a Pompey backer later pardoned by Caesar, Cicero addresses a panel of civil-law judges known as recuperatores with these words:

 

The one of the law, according to which content, meaning and equity should have more value, or the one of the wilfulness, which distorts the law through words and letters: you decide, judges, which of the two voices appear to you to be more honest and useful[57].

 

In this passage, a clear picture emerges through the emphatic charge. Cicero confronted two different approaches: a literal interpretation of the civil-law rules that applied to the case at issue, which in his view would have implied opening the gates of the law to whim and arbitrariness, or rather a more equitable interpretation that, unlike the alternative, would have allowed law to triumph. In this case, the literal interpretation would distort the law, which could only be saved by equity. This is an example of the status doctrine. In particular, Cicero used here the dichotomy scriptum et sententia to offer a choice between the formalismof the law and the intention of the legislator. Of course, an advocate who uses sententia, that is, opinion or intention, against scriptum before a court might well decide to put scriptum ahead of sententia in another trial if this suited better the interests of his client.

The στάσις (stásis) doctrine is triggered by the presence of a controversy, in the context of which it provides structures to support either view. Its basic components are the topics. One example of topical reasoning is offered by argumenta coniugata, that is, the topic based upon words derived from the same genus, such as the adjective sapiens, the adverb sapienter, and the noun sapientia, or wisdom[58]. Cicero shows how it works for lawyers: if a testator has bequeathed his whole silver, argentum, to a woman, the bequest ought to include also the cash money, numerata pecunia, still available in the house, because the species, forma, is never separated from the genus as long as it keeps its name; and numerata pecunia falls under argentum[59] – this kind of reasoning would be clear to a Roman because, at the time, silver was the most common coin for money.

The modern civilian lawyers, in whose legal systems the so-called Reception of Roman law took place, do not doubt that law is systematic. Owing to the role of Pandectism in the nineteenth century, the Germans refer to the study and application of the law as a Rechtswissenschaft: the science of law. Probably through their influence, the scientific idea of law has permeated the common law scholarship. Quite aptly, Neil Duxbury refers to analytical jurisprudence as a “Rechtswissenschaft, English-style”[60].

Apodictic-deductive reasoning does not allow for invalid conclusions. In a syllogism, if the premisses are true, the conclusion must be true to them: the solution partakes of the truth-nature of the premisses. Stein argues that one of the reasons why civilian judicial decisions usually do not contain dissenting opinions is that deductive reasoning does not tolerate alternatives: given the validity of premisses, any alternative to the logical conclusion must be wrong[61]. This view, however, is relevant only in the context of the pars iudicandi. But, as intimated, the legal rule and the facts must be harmonised for deductive reasoning to become applicable to the case. This is a task for dialectical reasoning in the pars inveniendi, where τόποι (topoi) as neutral sources of arguments play a central role. As Cicero pointed out, the loci offer solutions which are probable, but not certain. According to how it is construed, a topic can support or weaken the position of the parties to a legal dispute.

The τόπος (tópos)is a rhetorical structure that can be found through inventio. It enables the introduction of new arguments in dialectical contrast within the system. Viehweg considers this dialectical method non-systematic and non-deductive. Yet, Aristotle has shown that dialectical reasoning is as deductive as apodictic reasoning. Cicero suggested that each careful method of arguing, omnis ratio diligens disserendi, is divided in two parts. Viehweg confuses here pars iudicandi with pars inveniendi. The former is systematic and coherent. The latter is systematic, although not necessarily coherent, and allows changes of direction which facilitate the departure from an existing trend. This trend might, and often will, be ultimately based upon a regula, which offers the ground upon which the dialectical method can flourish. A regula, even though as weak as the one adopted in Roman law, is only at home in a structured legal system: a change of direction implies that there is a given direction to follow. In ancient Rome and in modern law, topical reasoning is a structural element of legal thinking and the regulae provide the backbone of the system: they create the structure upon which the dialectical methodology based upon topics intervenes to trigger a change.

For Viehweg, the Roman regulae were only collections or catalogues of topics[62]. He uses this concept of regula to deconstruct the Roman system. But his analysis is not persuasive: the regulae might have had a mnemotechnical function, or they might have had a more important role in the judicial analysis, or there might have been regulae with different strength. In any case, however, they are a characteristic feature of the legal system, the existence of which they implicitly confirm. In the literature, several voices have been raised against Viehweg’s classification of regulae. Thus, Tony Honoré distinguishes Viehweg’s topics, as informal arguments, from legal rules, regulae, and argues that the German scholar was carried away by the pleasure of his views[63]. Jan Willem Tellegen and Olga Tellegen-Couperus observe that “Viehweg was wrong in qualifying the regulae as topoi of Roman law. They are concrete precedents rather than abstract ways of reasoning”[64].

Viehweg’s analysis elicits a series of important considerations. The neutral and relative value of τόπος(tópos) allows for a dialectical interaction in the legal dispute, which might be examined from the viewpoint of different principles. On the other hand, the regulae demonstrate that a properly structured system was important to the Romans. Yet, the jurists did not automatically see matters of congruence as an assault on the integrity of the system. It was clear to them that non-congruent developments offer an opportunity further to develop the system. The topics had then and have now the essential function of windows through which new ideas enter the legal order. In this fashion, life has access to law not only through legislators, but also through the minds of the lawyers, whose views are influenced by non-systemic considerations. Hence, the topics, as open arguments[65], facilitate the confluence of extra-systemic thinking into mainstream legal analysis.

Roman legal argumentation is a blueprint for modern argumentation. At its very roots, it was characterised by formal, more or less strict guidelines and informal, flexible arguments. The guidelines contributed to the stability of the legal tradition and, in so doing, kept steady the course of legal evolution; the open arguments allowed for the necessary room of maneuver within the legal framework.

The Romans used several tools to navigate the law. These tools helped jurists to link abstract legal rules to the needs of the community whose development the law supported. This section opened with a claim that Roman law was non-systematic, but it closes with the observation that there was a method in Roman legal interpretation. The starting point of the legal analysis was supplied by the facts of life, and not by a legal principle. The facts were then used to identify the legal principle, from which the jurists departed if it proved inadequate to respond to the legal question posed the facts. The Romans developed a proper legal system in which dialectical reasoning provides the necessary premisses for the activation of the apodictic-deductive analysis located in the pars iudicandi.

Before examining the role of regulae and open arguments more in detail, it is apposite to place the method of the Roman jurists into the appropriate historical context.

 

3. Legal Arguments: A Comparison with Athenian Law

 

The innovative elements of Roman legal science emerge clearly from a comparison with Athenian law. According to Livy, the Romans sent a delegation to Athens and other Greek cities to study their laws[66]. However, they ultimately followed a different path. The centre of Greek civilisation was the πόλις (pólis), the city-state: Greeks associated themselves directly to the city and its cultural models. Moral and political philosophy dictated the cultural agenda and rhetoric provided the instruments to impose one’s ideas. Yet, the rhetorical skills were not limited to the political debate. They were freely available on the legal scene as well.

Aristotle dedicates important reflections to Athenian law in the Rhetoric, where he examines πίστις (pístis), which can be translated as faith or trust. But here the word is used as meaning ‘proof’ or, in technical legal language, ‘evidence’. More generally, the plural word πίστεις (písteis) refers to the means of persuasion. In a trial, the outcome of a legal dispute was decided by the majority of the dikasts, or jurors, without justification. This procedure elicited legal practices aimed at influencing jurors with arguments drawn from different, including non-legal, perspectives. Stephen Todd highlights the major role played by legal procedure in the development of substantive law – a role emphasised by the structure of the trial, normally initiated and argued by the parties themselves, without an independent judge to provide legal rulings or to instruct the jury[67]. Aristotle writes:

 

“Of the pisteis, some are atechnic (‘non-artistic’), some entechnic (‘embodied in art, artistic’). I call atechnic those that are not provided by ’us’ … but are preexisting: for example, witnesses, testimony from torture, contracts, and such like; and entechnic whatever can be prepared by method and by ‘us’.”[68]

 

Aristotle linked τέχνη (téchne), or expertise, to understanding. Modern lawyers are familiar with the idea of procedural evidence based upon witnesses, contracts and, alas, even evidence obtained through torture, which according to Athenian law was necessary when the witness was a slave[69]. The other leg of the classification refers to evidence that is artificially created. As Aristotle tells us, unlike dialectics, whose aim was to test and uphold an argument, the function of rhetoric was to fight: to defend themselves and to attack the others[70]. No surprise, therefore, that the parties, when they made their case, and particularly when they read out a text prepared by a professional law writer, a logographer, used techniques which came out of the rhetorical, and not the dialectical, tool chest.

Aristotle identifies three groups of entechnic evidence. In the present context, the most interesting group concerns evidence about the character, ἦθος(êthos), of the party; but we should also mention evidence which aims favourably to dispose the listener towards the party represented by the orator[71]. To win a legal dispute, the pleading parties were prepared to make use of arguments ad hominem. They would describe themselves or the opponent against the background of the social, political, and even religious context of the πόλις (pólis)[72]. Thus, an argument against liability might be that the defendant was a very good citizen who had organised sport games or theatrical events. On the other hand, it might have been unclear whether the defendant was liable or not, but someone who had not performed his duties towards the city and his fellow citizens clearly had to be condemned. Justus Lipsius reports on examples of highly defamatory language and insults[73]. Even Aristotle could not refrain from criticising this inappropriate use of rhetorical instruments, in which the speaker focusses excessively on entechnic πίστεις (písteis) to trigger emotion and dismisses logic[74].

Greek law shows how independent and innovative Roman law was. Despite the links between Roman law and Greek philosophy, that kind of argumentation did not resonate with the Romans. Roman legal reasoning required a higher level of legal soundness than what was required in a Greek trial. To achieve this result, the Romans used what Honoré calls a “canon of [legally] acceptable arguments”[75]. It was this canon that qualified the person providing legal advice as a jurist. By developing such a canon, the Roman lawyers became the first legal professionals of Western civilisation, in the sense that they acted as jurists qua jurists, and not as holders of religious or civil positions, such as priests and kings. Their method was arguably linked to Greek philosophy, but the legal methodology itself was purely Roman – and so is our methodology, to a large extent.

 

4. Jurists and Advocates

 

Some Roman jurists were well-versed in rhetoric and dialectics. It is unclear, however, how widespread the expertise in these areas was among the lawyers. The aforementioned episode, in which Trebatius Testa, after having unsuccessfully tried to grasp the concepts discussed by Aristotle in the Topika, asked Cicero for a Latin version of the Aristotelian Topics that would be palatable to lawyers, indicates that, at least until the late republican times, even prominent jurists had only a limited acquaintance with the subject. The Liber singularis ὅρων (hóron) written by Quintus Mucius Scaevola was probably the first example of a concrete Greek influence upon Roman legal thinking.

In this context, Tessa Leesen has argued that the controversies between the two Law Schools of classical times, the Sabinians and the Proculians, might be linked to topical reasoning. However, a clear proof that the jurists were acquainted with the theory of rhetoric and topical reasoning is still outstanding[76]. What emerges from the sources to which she refers is that, for Cicero, this knowledge would be helpful to lawyers, and that some jurists were aware of the philosophical background of their legal skills.

At least until the late Republic, most jurists were not familiar with dialectics. But a shift seems to have taken place around the first century BC. Once again, Cicero’s Topica offers helpful information. Cicero was not only an unrivalled orator, but also a competent lawyer, having undergone legal training under the Mucii[77], a family of great jurists who have influenced the way in which we think today[78]. Thus, Cicero knew the law, although he preferred to portray himself as the greatest orator rather than simply as a good lawyer[79]. It is therefore with no disrespect for the rhetoricians that he related the story of Aquilius Gallus, a well-known republican jurist of the first century BC and teacher of the great Servius Sulpicius Rufus. When asked to give his opinion on a matter of fact, Aquilius replied: “nihil hoc ad ius, ad Ciceronem” – This matter has no legal content. Ask Cicero[80]!

Cicero was a famous advocate. Advocates intervened at the second level of a legal dispute, in court, after the issue had been joined in front of the magistrate, normally with the assistance of the jurists, who helped to compose, if necessary, the formulae on the basis of which the judge had to adjudicate at the trial. Here, the advocate, who might not have been an expert in the law and sometimes accepted the role on account of his relationship of patronage with one of the parties, would use his rhetorical skills to convince the judges and the jury[81].

The anecdote reported by Cicero is quite thought-provoking from several perspectives. It appears that Aquilius Gallus not only distinguishes the roles of the jurists from that of the advocates, but also attaches these roles to different persons: ‘I am a lawyer’, he seems to say, ‘and therefore I do not plead as an advocate’. In so doing, he implies that the two activities are linked to dissimilar skills. The jurist is active in the phase before a magistrate, who knows about the law; the advocate intervenes before a judge, who was a layman and therefore not necessarily skilled in legal matters. As anyone could speak on behalf of the parties in front of the judge, even a lawyer could have done so, but he would have used a different set of skills from those applied in the first part of the legal dispute. How the two roles diverged emerges, for example, from the trial against Lucius Licinius Murena, who had been accused by Servius Sulpicius Rufus of having bribed his way to obtaining a consulship to the detriment of Servius himself. Cicero acted as an advocate for Murena despite his friendship with Servius Sulpicius. In this role, he, a trained lawyer, did not hesitate to deride the law and thus the Servian legal analysis[82]. He managed to obtain Murena’s acquittal: Servius’ solid legal construction was defeated by Cicero’s solid dialectical argumentation. This defeat was a serious blow for Servius, who had to wait more than ten years finally to get a consulship. This example provides support to the view that legal knowledge alone is insufficient to make a strong legal argument.

Rather than indicating that the jurists did not know rhetoric, Aquilius’ statement should be understood as meaning that rhetoric was relevant in the second phase of the trial – to persuade. In the first phase, before the praetor, only legal arguments could be considered: it was the pars iudicandi, which was based upon apodictic deduction. There, the magistrate formulated the legal issue that had to be answered in the positive or in the negative in the phase before the judge, where an insertion of elements which were merely persuasive was seen as acceptable because, whereas the law could, and had to, be determined with certainty, a connection between the norm and the facts was more difficult to ascertain. For Tellegen and Tellegen-Couperus, Gaius saw the link between law and rhetoric as something so clear that it was not even worth mentioning[83]. Yet, from the words of Aquilius Gallus one cannot infer that this link was commonplace during the late Republic: Aquilius himself made clear that he was not interested in acting as an advocate, possibly for want of the necessary dialectical skills. Dialectics was a means to an end: a way to identify the solution of a controversy. Dialectical reasoning became relevant when the jurist had to convince a third party that the argument of the opposition had no merit, and the controversial issue should be decided in favour of his client. On the other hand, the fact that dialectical strength was not required at all levels of the legal procedure does not mean that it was not an essential component of legal reasoning. As the trial against Murena shows, it was.

 

5. Questions of Law and Questions of Fact

 

Just as the late republican jurists, even the classical jurists were ready to deny their competence, or interest, in the interpretation of the facts. Cervidius Scaevola, one of the leading jurists of the second century AD and Papinian’s teacher, was asked to give a legal opinion on the factual interpretation of a particular formula inserted in a will. His laconic reply confirms the pivotal importance of the partition between fact and law:

 

“When the testator has added, ‘just as I possessed it,’ does this mean ‘as instructa on the day of my death,’ that is, with the slaves, cattle, and rural instrumentarium? He replied: This is not a question of law.”[84]

 

Yet, questions of fact are often as important to a legal dispute as questions of law. Hence, a certain level of co-operation between jurists and advocates was essential. Tellegen-Couperus and Tellegen persuasively argue that Aquilius Gallus’ statement showed a collaboration, rather than an antagonism between the two categories[85]. Aquilius did not aim to belittle the advocates, but rather to highlight the difference between the roles in the legal proceedings.

Law and fact interact. It is not possible to keep the latter away from the former. Law, as a social science, deals with social events. Some form of contact with the facts that are socially relevant is therefore not only unavoidable but positively necessary. Both the apodictic syllogism – linked to a question of law – and the dialectical syllogism – linked to a question of fact – are functionally essential to adjudication. A clear example of the interaction between facts and law is supplied by an institution which concerns a factual situation with undeniably legal value: possession. Discussing the relevance of the approval by the guardian or tutor for certain acts performed by persons under their control, Ofilius and Nerva the younger, respectively a late republican and a pre-classical jurist, delivered opinions on a grey area between law and fact. Their views are reported by Paul:

 

Ofilius, for example, and the younger Nerva say that a ward [pupillus] can begin possession even without his tutor’s authority: indeed, this is a question of fact, not of law: this opinion may be accepted if they be of an age that they can understand[86].

 

A pupillus was a boy under legal protection, often an orphan, who needed his tutor’s authorisation to perform legal acts. But possession is a factual event, and therefore the jurists deny that the tutor must intervene. Yet, the case of the pupillus had been debated for long time, although the factuality of possession had not been disputed. Hence, the separation line between fact and law was not as neat as the distinction made by Aquilius Gallus and Cervidius Scaevola would indicate. The fact of possession was a legal requirement in several important actions, such as the actio furti triggered by theft[87]. Further, under certain circumstances, the possessor would be protected by the praetor with an interdict[88]. And the action for the recovery of the thing implied that the claimant had possession[89].

The caution with which the jurists approached questions of fact remained a characteristic of Roman law. Tomasz Giaro argues that the Romans were influenced by those Hellenistic views according to which facts could never be correctly interpreted[90]. He refers to the doctrine of mistake as an example. Paul opines:

 

The regula is that ignorance of law harms anybody, whereas ignorance of fact does not harm[91].

 

Pyrrho of Elis, the founder of scepticism, maintained that our opinions are neither true nor false, for “things are indifferentiable, unmeasurable, and undecidable.”[92] Even before the sceptical Academy, Cicero reports, Democritus, a pre-Socratic philosopher, had stated that truth is hidden in the depths, everything is kept together through opinions and institutes, nothing is left to the truth[93]. If everything is uncertain and unclear, one can be forgiven for misinterpreting the facts. Hence, mistakes of fact can be excused. Law, however, is not a fact, but a construction of human mind. Therefore, a degree of probability is not acceptable: law must be identified with certainty. It follows that a mistake of law cannot be excused. The strong influence of the sceptical tenets is likely to be a contributing factor to the century-old distinction between mistake of law and mistake of fact[94]. This historical development highlights the influence of extra-systemic considerations upon the reasoning of the jurists, and ultimately upon the legal discourse. What is obscure can be the object of debate, and where there is controversy there is room for dialectical reasoning.

 

6. Regulae and Open Arguments

 

The Roman jurists were the first in Western civilisation to leave religious, moral, and personal arguments outside the legal sphere. Yet, law, as a social science, thrives on human interaction and has developed mechanisms through which the factual world becomes part of the legal discourse. Two elements that have been identified in the Roman decision-making process have exerted a strong influence upon the minds of ancient and modern lawyers: regulae and open arguments. On the basis of the legal-historical and philosophical background that has been examined so far, these pivotal pillars of legal methodology will now be considered more in detail.

The Roman term ‘regula’ has been intentionally left untranslated. A translation of it as legal ‘rule’, albeit not wrong, might be the source of misunderstanding, for it has a different colour from its modern counterpart. Arguably, it was not as strict as the legal rules applied in some modern legal systems. It mainly offered guidance. By stating a regula, the jurist would say: we can apply this principle to the present facts, but also, possibly, to other similar sets of facts. The regula was likely to be a terminological device to indicate that a given approach might, as opposed to ‘had to’, be applied to a series of situations. For example, it has been seen above that the late classical jurist Iulius Paulus describes the regula according to which mistake of law cannot be excused. So far, only the first sentence of the relevant passage has been examined. Yet, in the following sentences the contours provided by the opening clause are more firmly shaped, so that the source offers a different picture from the first sentence taken in isolation:

 

The regula is that ignorance of law harms anyone, whereas ignorance of fact does not harm. Let us see in which cases it can take place, after having premised that those under twenty-five are allowed to be ignorant of the law. It is said that in certain cases this applies also to women because of the weakness of their sex: and therefore, whenever there is no wrongdoing, but ignorance of law, they are not harmed…[95]

 

The mechanism of the regula emerges clearly from this source. No sooner is the regula stated than Paul explains that it does not always apply. Through the additional comment, the jurist tells the reader that the regula is relevant only in given contexts.

An exclusive focus on strict regulae and positive law, which is often linked to an apodictic, norm-based legal analysis, might give the impression that the investigation should be limited to the legal framework that emerges from the facts. Consequently, extra-systemic arguments ought to be ignored. However, Roman law shows that any attempt to exclude external ideas is incompatible with the ‘social’ element of a social science. Allowances must be made for what can be described as windows, through which the external world gets in contact with, and shapes, the system of law. These windows are made possible by the introduction of open arguments, owing to which Roman law qualifies as a genuine open system. It is argued here that, because of the role of the open arguments in the context of the factual analysis, any legal system is characterised by a quite significant degree of openness. An open argument develops through a dialectical confrontation by means of neutral argumentative structures – that is, structures that do not benefit a priori either party and are used in legal disputes when it is convenient to do so. Significantly, open arguments are drawn not only from the existing legal discourse, but also from other sets of considerations, paving the way to the introduction of new social values into the legal system. Their function is very important. By breaking into the legal system, the open arguments ensure that the system does not fossilise and turn into a stationary mechanism, but it is able to tackle new social and moral developments of human society.

The criterion of fairness offers an excellent instance of the way in which an open argument worked in Roman law. In a well-known maxim, Pomponius examines the concept of enrichment in the light of natural law:

 

“For it is by nature fair that nobody should enrich himself to the detriment of another”[96].

 

This statement, of itself, is far too general to bind the judge. Nor is it providing a clear direction for legal development in given cases. It is simply a statement which expresses what the legal system should seek to achieve. Aequitas, or fairness, is a way to allow a breath of fresh air into the system. This passage does not say whether, in a specific case, what has benefited a party should be transferred to the other party to the claim. The details will be worked out by a judge, who relies on the jurists, but notably also on the advocates, who might have only a limited knowledge of the law.

Another example, by Ulpian:

 

“Suppose a slave who by will is made free on condition of paying the heir ten and by codicil is made free unconditionally. In ignorance of the codicil, he pays ten to the heir. Can he recover? Celsus reports his father as holding that he cannot, but Celsus himself, influenced by considerations of natural equity, thinks that he can. And that is the better opinion”[97].

 

The great jurist Publius Iuventius Celsus is ready to use an open argument to deal with a situation which, albeit it was technically – that is, from the perspective of strict law – not redressable, as acknowledged by his own father, Celsus pater, would have achieved an unjust result under that particular set of facts. The father favours a strict interpretation of the law; the son opposes to it an interpretation based upon fairness, naturalis aequitas. This controversy triggers a dialectical confrontation. The word of the law is opposed to the intention of the legislator. We have already come across this methodological contrast when we considered the quaestio legalis of scriptum and sententia within the discussion on the στάσις (stásis) doctrine.

Although Celsus filius’ legal analysis was often characterised by a strict interpretation of the law, in this and other cases he understood and upheld the role of fairness, as confirmed by his – with Ulpian’s words – ‘elegant’ statement which opens Justinian’s Digest, according to which ‘the law is the art of the good and the fair’[98]. The late classical jurist Ulpian, who reports the two opposing views, sides with Celsus filius on the importance of equity considerations in the evaluation of this scenario. We have seen that the advocates used open arguments according to the convenience of the party they were representing. This passage gives a practical example confirming that even the jurists were amenable to ply the neutral open arguments according to their convenience.

The function of open arguments is clearly explained in the next passage, which shows how fairness is not just an abstract concept, but a value which becomes relevant in practical cases. Ulpian argues that the guarantor should inform the debtor of certain issues. For instance, the guarantor must tell the debtor that the debt has been paid, to avoid that the debtor pays for an obligation which is already extinguished. Yet, there are situations in which the guarantor is not burdened by this duty to inform:

 

“However, there are some things that it is not fraudulent for a guarantor to leave out, even knowingly as, for example, if he, whether knowingly or unknowingly, has left out the defense that the procurator [of the other party] has not been correctly appointed; for it is a question of good faith which is in issue; and it is not in accordance with [good faith] to dispute over the niceties of the law, but only over the question whether he was a debtor or not.”[99]

 

Even if the law is an ideal construct, the lawyers should not deal with legal minutiae, de apicibus iuris, but with fundamental legal questions. For the Romans, an open argument could, or indeed should, be used to ensure that fairness affected practical legal matters. Open arguments paved the way to the adoption of considerations, such as good faith, which, of themselves, were not necessarily legal. They helped judges and praetor to resolve situations in which a strict application of the civil law would achieve unfair results.

Corbino aptly describes regula as a reaction to the dissolutive tendencies of the open system. It acts as the guarantor of coherence within the legal system[100]. This is not the sole function of the regula. It is not only the role of the strict law which needs protection, but also the individual from the excesses of the strict law. The open arguments affect the decisional processes in the jurist’s mind and, in so doing, they see to it that the legal rules maintain a balance with other societal values. Some open arguments may become so significant that they themselves develop into regulae. In this fashion, the legal system progresses and growths.

 

7. Conclusion

 

The Romans understood that the barrier which separates law from society is permeable. Extra-systemic considerations in the form of topical reasoning constitute an important part of the legal discourse and cannot be ignored. Yet, the role of strict law is confirmed by the central importance of the regulae.

Law is a systematic science. Viehweg’s view of law as non-systematic does not contradict this statement, for he does not reject the relevance of systematic reasoning, but only the practical feasibility of a unified system of law. Indeed, he accepts that the law is composed by smaller systems linked to different axioms, which implies that it operates systematically, even though the sub-systems might not always work in a coherent fashion, so that clashes between sub-systems cannot be excluded.

Further, law as a social science ought to develop with the social, moral, cultural and economic changes of the community to which it provides the rules that support its cohesion. Therefore, the legal system strives to find the appropriate balance between a clearly structured framework and a developmental approach to the societal needs. The employment of regulae and open arguments supplies an essential contribution to achieve this balance. Whereas regulae are necessary to ensure stability, open arguments avoid that law becomes a closed, self-referential system.

Lawyers adopt two forms of deductive reasoning, apodictic and dialectical, to harmonise law and facts. Judicial reasoning progresses coherently from a norm or directive. Yet, the facts of the case never completely fit the legal model of analysis. Each set of facts is different from, that is, never identical to, any other. Difference implies a controversy to which axiom-based deductive thinking is unable to provide an answer. Dialectics is required to pave the way to the application of the norm to the specific case. The arguments in favour of – or against – such harmonisation are explored with the help of topical reasoning. The function of topical argumentation is to transform doubt into plausibility and thus persuade the listener, the judge, of the quality of a statement. As apodictic, norm-based reasoning has the same logical structure as dialectical, persuasive reasoning, plausibility makes it possible that the facts are embedded into the law.

 

Abstract: Roman law provides helpful lessons on legal methodology for Romanists and modern lawyers alike. The meeting of Roman law and Greek philosophy was the catalyst for the transformation of Roman law into a legal science, in which the axiomatic structure of the norm was linked to the facts of the case by way of the dialectical syllogism and topical reasoning. The Romans understood that the barrier that separates law from society is permeable. In this paper, it is shown that there is a tension within the legal systems between the guidance provided by the regulae, or legal rules, and the need to allow for open arguments, which are windows on the outside world enabling the system to grow in line with social developments.

 

Key words: Roman law, Greek philosophy, legal reasoning, topical reasoning, dialectical syllogism, regulae, open arguments.

* Il contributo è stato sottoposto a double blind peer review.

** This is the expanded version of my inaugural lecture delivered at the University of Surrey in October 2018:  https://www.youtube.com/watch?v=kEgl9zhsgg0&feature=yo

utu.be. I am grateful to René Brouwer, Ken Ehrenberg, John Murphy and Dennis Patterson for comments on earlier versions of this paper. The title of the address has been kept despite the numerous suggestions by British colleagues to change it to ‘What Have the Romans Ever Done for Us?

[1] J. Austin, The Province of Jurisprudence Determined, Outline, London 1832, pp. xlv-xlvi.

[2] F. Pringsheim, The Inner Relationship Between English and Roman Law, in Cambridge Law Journal, (1935), pp. 347-365, p. 349.

[3] Cf. O. Behrends, Anche la giurisprudenza una scienza? La riscoperta della prolusione viennese tenuta da R. von Jhering Venerdì 16 Ottobre 1868, in C. Cascione, ed., Okko Behrends Scritti italiani, Napoli 2009, pp. 111-119.

[4] By way of example, suffice it to refer to the famous passage by Ulpian, D.1.1.1pr-1. (Ulp. 1 institutionum.): 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, bonos non solum metu poenarum, verum etiam praemiorum quoque exhortatione efficere cupientes, veram nisi fallor philosophiam, non simulatam, affectantes. See most recently G. Falcone, La ‘vera philosophia’ dei ‘sacerdotes iuris’ Studi sulla raffigurazione ulpianea dei giuristi, in AUPA, 49 (2004), pp. 41-147; L. Maganzani, Diritto e ‘simulata philosophia’ nelle Istituzioni di Ulpiano, in ERGA / LOGOI, 8 (2020), pp. 55-87.

[5] Thus T. Giaro, Über methodologische Werkmittel der Romanistik, in Zeitschrift der Savigny-Stiftung für Rechtsgeschichte Romanistische Abteilung (hereafter ZRG RA), 105 (1988), pp. 180-262, p. 193, who observes that the strength of a system declines with its increasing expansion. See also Giaro’s examination of the term ‘system’ at pp. 183-89 and, more generally, his analysis of Systemdiskussionen at p. 207.

[6] D. 1.1.7pr (Pap. 2 definitionum): “Ius autem civile est, quod ex legibus, plebis scitis, senatus consultis, decretis principum, auctoritate prudentium venit.” If nothing else is specified, all the translations in any language are by the author. Double quotation marks will be used only for quotes. For the Latin text of the Digest, I have consulted T. Mommsen – P. Krueger, Corpus Iuris Civilis, Berolini 1872, as reprinted by Cambridge University Press, Cambridge 2014.

[7] D. 1.2.2.49 (Pomponius libro singulari enchiridii): “primus divus Augustus, ut maior iuris auctoritas haberetur, constituit, ut ex auctoritate eius responderent: et ex illo tempore peti hoc pro beneficio coepit. et ideo optimus princeps Hadrianus, cum ab eo viri praetorii peterent, ut sibi liceret respondere, rescripsit eis hoc non peti, sed praestari solere et ideo, si quis fiduciam sui haberet, delectari se populo ad respondendum se praepararet.”

[8] D. Mankin, ed, Cicero De Oratore Bk III, Cambridge 2011, paras 33.133-134: “Meminerant illi Sex. Aelium; M'. vero Manilium nos etiam vidimus transverso ambulantem foro – quod erat insigne eum, qui id faceret, facere civibus suis omnibus consili sui copiam – ad quos olim et ita ambulantes et in solio sedentes domi sic adibatur, non solum ut de iure civili ad eos, verum etiam de filia collocanda, de fundo emendo, de agro colendo, de omni denique aut officio aut negotio referretur. haec fuit P. Crassi illius veteris, haec Ti. Coruncani, haec proavi generi mei Scipionis prudentissimi hominis sapientia, qui omnes pontifices maximi fuerunt, ut ad eos de omnibus divinis atque humanis rebus referretur.”

[9] There are plenty of studies with different views on this subject. Ex multis, M. Villey, Logique d’Aristote et droit romain, in Revue historique de droit français et étranger, 28 (1951), pp. 309-328; M. Kaser, Zur Methode der römischen Rechtsfindung, Göttingen 1962, pp. 49-78; F. Horak, ‘Rationes decidendi’, Entscheidungsbegründungen bei den älteren römischen Juristen bis Labeo, Vol I. Innsbruck 1969, pp. 225-235; J. Miquel, Stoische Logik und römische Jurisprudenz”, in ZSS RA, 87 (1970), pp. 85-122; B. Schmidlin, Horoi, pithana and regulae – Zum Einfluß der Rhetorik und Dialektik auf die juristische Regelbildung, in Aufstieg und Niedergang der römischen Welt, II/15 (1976), pp. 101-130; P. A. Vander Waert, Philosophical Influence on Roman Jurisprudence? The Case of Stoicism and Natural Law, in Aufstieg und Niedergang der römischen Welt, II/36.7 (1994), pp. 4851-4900; W. Formigoni, Pithanon a Paulo epitomatorum libri VIII. Sulla funzione critica del commento del giurista Iulius Paulus, Milano 1996; L. Winkel, Le droit romain et la philosophie grecque, Quelques problèmes de méthode, in Tijdschrift voor Rechtsgeschiedenis, 65 (1997), pp. 375-384; J. Kroger, The Philosophical Foundations of Roman Law: Aristotle, the Stoics and Roman Theories of Natural Law, in Wisconsin Law Review, (2004), pp. 905-944; R. Brouwer, Ulpian’s Appeal to Nature: Roman Law as Universal Law, in Tijdschrift voor Rechtgeschiedenis, 84 (2015), pp. 60-79.

[10] With the probable exception of the dialogues. The Greek author Strabo, who lived in the first century AD, recounts that part of Aristoteles’ acroamatic works ended up in the hands of someone who was unaware of their value and did not store them properly. They were subsequently bought by Apellicon of Teos who, lacking the necessary skills to restore the books, published them full of errors. Eventually, some of the copies were brought to Rome, where more copies were made by unsupervised scribes, with the result of increasing the number of errors; v. Strabo, Geographica, para 13.1.54. I used the online version edited by H. L. Jones, Cambridge MA and London 1917, available at http://penelope.uchicago.edu/Thayer/E/Roman/Texts/Strabo/home.html (last access

18 November 2020).

[11] Porphyry, Life of Plotinus, 24. I consulted A.H. Armstrong (transl.), Plotinus. Ennead, Vol. I: Porphyry on the Life of Plotinus. Ennead I Loeb Classical Library 440, Cambridge MA 1966.

[12] W. D. Ross, ed, Aristotle’s Metaphysics, Oxford 1924, p. 1; 980a 21 “πάντεςἄνθρωποιτοῦεἰδέναιὀρέγονταιφύσει.”

[13] Idem 981a 1. Τέχνη (téchne) is often translated as ’art’; see eg Ross’s translation. However, René Brouwer, in his book on The Stoic Sage, Cambridge 2014, pp. 50-59, convincingly argues for a translation of τέχνη as ‘expertise’ on the basis of Olympiodorus’ Commentary on the Gorgias. Brouwer observes that the Stoics linked this term to actions conducted methodically. This link is important in the context of the present analysis, in which the application of a method is seen as a key element to enable the passage from literature to science.

[14] H. G. Liddell – R. Scott – H. S. Jones, A Greek-English Lexicon, 9^th ed. Oxford 1940, s.v. τέχνη A III. The online version of the LSJ is available at http://stephanus.tlg.uci.edu/lsj/#eid=1 (last accessed 29 December 2020).

[15] W. D. Ross, Metaphysics cit., p. 2; 981b 9-10: “καὶδιὰτοῦτοτὴντέχνηντῆςἐμπειρίαςἡγούμεθαμᾶλλονἐπιστήμηνεἶναι.”

[16] W. D. Ross, transl, and L. Brown, ed., Aristotle The Nicomachean Ethics, Oxford 2009, pp. 104-05; 1139b 25-32.

[17] W. D. Ross, ed., Aristotle’s Posterior Analytics, Oxford 1964, I, 2; 71b 14-24: “Ἀμέσουδ᾽ἀρχῆςσυλλογιστικῆςθέσινμὲνλέγωἣνμὴἔστιδεῖξαι, μηδ᾽ἀνάγκηἔχειντὸνμαθησόμενόντι·ἣνδ᾽ἀνάγκηἔχειντὸνὁτιοῦνμαθησόμενον, ἀξίωμα·ἔστιγὰρἔνιατοιαῦτα·τοῦτογὰρμάλιστ᾽ἐπὶτοῖςτοιούτοιςεἰώθαμενὄνομαλέγειν. θέσεωςδ᾽ἡμὲνὁποτερονοῦντῶνμορίωντῆςἀντιφάσεωςλαμβάνουσα, οἷονλέγωτὸεἶναίτιἢτὸμὴεἶναίτι, ὑπόθεσις, ἡδ᾽ἄνευτούτουὁρισμός. ὁγὰρὁρισμὸςθέσιςμένἐστι·τίθεταιγὰρὁἀριθμητικὸςμονάδατὸἀδιαίρετονεἶναικατὰτὸποσόν·ὑπόθεσιςδ᾽οὐκἔστι·τὸγὰρτίἐστιμονὰςκαὶτὸεἶναιμονάδαοὐταὐτόν.”

[18] H. S. Maine, Ancient Law, 10^th ed., London 1908, p. 7.

[19] P. Stein, Regulae iuris, Edinburgh 1966, p. 4.

[20] On the relationship between γένος and εἶδος (eîdos – Lat. species), see e.g. Ross, ed., Metaphysics, cit., para 5 28; 1024a 29-30: “γένοςλέγεταιτὸμὲνἐὰνᾖἡγένεσιςσυνεχὴςτῶντὸεἶδοςἐχόντωντὸαὐτό, οἷονλέγεταιἕωςἂνἀνθρώπωνγένοςᾖ, ὅτιἕωςἂνᾖἡγένεσιςσυνεχὴςαὐτῶν”.

[21] Cicero, De Oratore, I 190: “ut primum omne ius civile in genera digerat, quae perpauca sunt; deinde eorum generum quasi quaedam membra dispertiat; tum propriam cuiusque vim definitione declaret; perfectam artem iuris civilis habebitis, magis magnam atque uberem, quam difficilem atque obscuram”. I consulted E.W. Sutton – H. Rackham, transl, Cicero, On the Orator: Books 1-2. Loeb Classical Library 348, Cambridge MA 1942.

[22] P. Stein, Regulae iuris, cit., p. 38, points out that Mucius’ usage of a Greek word in the title of his work highlights the lack of a proper Latin terminology at the time.

[23] For René Brouwer, Law and Philosophy in the Late Roman Republic, Cambridge 2021, pp. 32-3, only Stoic philosophy could be relevant in Roman legal circles at the time of Quintus Mucius. Although Brouwer makes a powerful case for the role of Stoic thinking in Roman law, the role of Stoic reasoning does not exclude that Mucius’ use of the Greek term for a book on definitions was influenced by the Aristotelian classification. Aldo Schiavone, Studi sulle logiche dei giuristi romani, Napoli 1971, p. 81, observes that the reading of Aristotelian works in the cultural circles of the late Roman Republic is an uncontestable fact, “un fatto che non può essere contestato”. Although the expression ‘uncontestable fact’ hints at a level of certainty which might be too optimistic, if one does not qualify the episode related by Cicero on the origin of his Topica as a pure invention (see text to note 47), one has to acknowledge that some Aristotelian philosophy was available to the Roman orator, who, one should not forget (see following note), was taught by Mucius. Further, Mucius’ precise usage of Aristotelian methodology and terminology speaks in favour an Aristotelian influence upon this jurist. Some of the terms developed by Aristotle were used by the Roman jurists probably even before the Aristotelian texts became available because several of these terms were also part of the vocabulary of the Stoics who were teaching in Rome.

[24]Cicero,Laelius de AmicitiaI, 1: “ego autem a patre ita eram deductus ad Scaevolam sumpta virili toga, ut, quoad possem et liceret, a senis latere numquam discederem.Itaque multa ab eo prudenter disputata, multa etiam breviter et commode dicta memoriae mandabam, fierique studebam eius prudentia doctior. Quo mortuo me ad pontificem Scaevolam contuli”. I consulted the text edited by J.G.F. Powell, M. Tulli Ciceronis de Re Publica, de Legibus, Cato Maior de Senectute, Laelius de Amicitia, Oxford 2006.

[25] Stein, Regulae iuris, cit., p. 33.

[26] Cicero, Brutus, 152: “iuris civilis magnum usum et apud Scaevolam et apud multos fuisse, artem in hoc uno; quod numquam effecisset ipsius iuris scientia, nisi eam praeterea didicisset artem quae doceret rem universam tribuere in partis, latentem explicare definiendo, obscuram explanare interpretando, ambigua primum videre, deinde distinguere, postremo habere regulam qua vera et falsa iudicarentur et quae quibus propositis essent quaeque non essent consequentia.” I have consulted the Latin text by A.S. Wilkins, ed., M. Tulli Ciceronis Rhetorica / T. 2, Brutus; Orator; De optimo genere oratorum; Partitiones oratoriae; Topica, Oxford 1911, freely available online at

the Perseus website: http://www.perseus.tufts.edu/hopper/text?doc= Perseus%3Atext

%3A2008.01.0544%3Achapter%3D52 (last accessed on 30 December 2020).

[27] T. Viehweg, Topik und Jurisprudenz, München 1953. I have used the fifth and last edition, 1974.

[28] Idem, p. 84.

[29] However, note that, for Aristotle, axioms do not apply to human conduct: F Susemihl – O. Apelt, eds, Aristotelis Ethica Nicomachea, Leipzig 1903, book 1 and particularly p. 3; 1094b 19-22: “ἀγαπητὸνοὖνπερὶτοιούτωνκαὶἐκτοιούτωνλέγονταςπαχυλῶςκαὶτύπῳτἀληθὲςἐνδείκνυσθαι, καὶπερὶτῶνὡςἐπὶτὸπολὺκαὶἐκτοιούτωνλέγονταςτοιαῦτακαὶσυμπεραίνεσθαι.” Ross’s translation, Nicomachean Ethics, cit., I, 3: “We must be content, then, in speaking of such subjects and with such premisses to indicate the truth roughly and in outline, and in speaking about things which are only for the most part true and with premisses of the same kind to reach conclusions that are no better.”

[30] T. Viehweg, Topik und Jurisprudenz, cit., p. 87.

[31] Ibid.: “Das wirklich vorzufindende rechtliche Gesamtgefüge ist also allenfalls kein System im logischen Sinne. Es ist vielmehr eine unbestimmte Mehrheit von solchen Systemen, deren Umfang sehr unterschiedlich ist”.

[32] D. 50.17.1 (Paul. 16 ad Plautium): “Regula est, quae rem quae est breviter enarrat. non ex regula ius sumatur, sed ex iure quod est regula fiat. per regulam igitur brevis rerum narratio traditur, et, ut ait Sabinus, quasi causae coniectio est, quae simul cum in aliquo vitiata est, perdit officium suum.”

[33] F. de Zulueta, ed. and transl., The Institutes of Gaius, part I, Oxford 1969, (hereafter “Gai”) Bk. IV, 15: “deinde, cum ad iudicem uenerant, antequam apud eum causam perorarent, solebant breuiter ei et quasi per indicem rem exponere; quae dicebatur causae coniectio.”

[34] Cf. Michael Crawford’s translation of D. 50.17.1 in A. Watson, ed, The Digest of Justinian, Philadelphia 1985. Hereafter “the Pennsylvania translation”.

[35] A. Corbino, Caso, diritto e regula. Limiti alla funzione normativa del caso deciso nella visione romana, in Revue Internationale des droits de l'antiquité, 61 (2014), pp. 47-82, p. 48.

[36] Gai, I 2: “Constant autem iura populi Romani ex legibus, plebiscitis, senatus consultis, constitutionibus principum, edictis eorum, qui ius edicendi habent, responsis prudentium.”

[37] T. Finkenauer, Le ‘regulae iuris’ come strumenti mnemotecnici, in Index, 43 (2015), pp. 15-21.

[38] As acknowledged by Finkenauer, idem at p. 16, for instance in the case of the regula ‘alteri stipulari nemo potest’ on the prohibition of certain agency agreements.

[39] Cf. Corbino, Caso, diritto e regula, cit., p. 72: “La ‘Regula’ … appare insomma preordinata non a creare ‘diritto’, ma a favorirne piuttosto una uniforme applicazione: a fare della serie dei ‘casi’ già decisi secondo una ratio costante un nuovo elemento di orientamento per l’interprete.”

[40] Cicero, Topica, para 6: “Cum omnis ratio diligens disserendi duas habeat artes, unam inveniendi alteram iudicandi, utriusque princeps, ut mihi quidem videtur, Aristoteles fuit. Stoici autem in altera elaboraverunt; iudicandi enim vias diligenter persecuti sunt ea scientia quam διαλεκτικὴν appellant, inveniendi artem quae τοπικὴ dicitur, quae et ad usum potior erat et ordine naturae certe prior, totam reliquerunt.“ I have used the Latin text edited by T. Reinhardt, Cicero’s Topica, Oxford 2006.

[41] See K.M. Vogt, Law, Reason and the Cosmic City, Oxford 2008, ch. 4; René Brouwer, On Law and Equity: the Stoic View, in ZRG RA, 128 (2011), pp. 17-38, highlights the differences between Aristotle, according to whom equity is a useful corrective device for positive law, and the Stoics, for whom equity is superfluous, because the sage acts in accordance with universal law.

[42] Cf. A. A. Long – D. N. Sedley, The Hellenistic Philosophers, Vol. 1, Cambridge 1987, pp. 183-90.

[43] Aristotle, Topics, I 1.1, 100a 25 – 100b 24: “Ἔστιδὴσυλλογισμὸςλόγοςἐνᾧτεθέντωντινῶνἕτερόντιτῶνκειμένωνἐξἀνάγκηςσυμβαίνειδιὰτῶνκειμένων. ἀπόδειξιςμὲνοὖνἐστίν, ὅτανἐξἀληθῶνκαὶπρώτωνὁσυλλογισμὸςᾖ, ἢἐκτοιούτωνἃδιάτινωνπρώτωνκαὶἀληθῶντῆςπερὶαὐτὰ30γνώσεωςτὴνἀρχὴνεἴληφεν·διαλεκτικὸςδὲσυλλογισμὸςὁἐξἐνδόξωνσυλλογιζόμενος. ἔστιδὲἀληθῆμὲνκαὶπρῶτατὰμὴδι᾿ἑτέρωνἀλλὰδι᾿αὑτῶνἔχοντατὴνπίστιν·οὐδεῖγὰρἐνταῖςἐπιστημονικαῖςἀρχαῖςἐπιζητεῖσθαιτὸδιὰτί, ἀλλ᾿ἑκάστηντῶνἀρχῶναὐτὴνκαθ᾿ἑαυτὴνεἶναιπιστήν. ἔνδοξαδὲτὰδοκοῦνταπᾶσινἢτοῖςπλείστοιςἢτοῖςμάλισταγνωρίμοιςκαὶἐνδόξοις.” I consulted H. Tredennick –E. S. Forster, eds, Aristotle Posterior Analytics. Topica.,Loeb Classical Library 391, Cambridge MA 1926.

[44] T. Viehweg, Topik und Jurisprudenz, cit., pp. 32-33. For a criticism of this approach, see F. Horak, Rationes decidendi, cit., pp. 48-49.

[45] As developed by Hermagoras. Cf. Quintilian, Institutio oratoria 3. 3.1: “Omnis autem orandi ratio, ut plurimi maximique auctores tradiderunt, quinque partibus constat: inventione dispositione elocutione memoria pronuntiatione sive actione utroque enim modo dicitur. Omnis vero sermo, quo quidem voluntas aliqua enuntiatur, habeat necesse est rem et verba.” I used H.E. Butler, ed. and transl., Quintilian. Institutio Oratoria, Books 1-3,Loeb Classical Library 124, Cambridge MA and London 1920.

[46] Cicero, De Inventione I 9: “Inventio est excogitatio rerum verarum aut veri similium quae causam probabilem reddant”. I consulted H. M. Hubbell, transl, Cicero. On Invention. The Best Kind of Orator. Topics. Loeb Classical Library 386, Cambridge MA and London 1949.

[47] T. Reinhardt, Cicero’s Topica, cit., 1-5. See O. Tellegen-Couperus – J. W. Tellegen, Nihil hoc ad ius, ad Ciceronem, in Revue Internationale des droits de l'antiquité, 53 (2006), pp. 381-408.

[48] Cicero does not always agree with Hermagoras, who in his view could speak about the art of the orator, but not according to the rules of oratory: Cicero, De Inventione, cit., 8: “verum oratori minimum est de arte loqui, quod hic fecit, multo maximum ex arte dicere, quod eum minime potuisse omnes videmus.”.

[49] Quintilian, Institutio Oratoria, cit., particularly book 3.

[50] See O. A. L. Dieter, Stasis, in E. Schiappa, Landmark Essays on Classical Greek Rhetoric vol. 3, Davis CA 1994, pp. 211-241, at pp. 214-15, repr. from Speech Monographs, 17 (1950), pp. 345-369.

[51] Cicero, De Inventione, cit., II 116: “In scripto versatur controversia cum ex scriptionis ratione aliquid dubii nascitur. Id fit ex ambiguo, ex scripto et sententia, ex contrariis legibus, ex ratiocinatione, ex definitione.”

[52] Ibid.: “heres meus uxori meae vasorum argenteorum pondo centum, quae volet, dato.”

[53] I came across of a nice example of amphiboly in a magazine with reference to a famous Austrian-American actor and politician living in the US. The article contained a statement along these lines: ‘he has returned to public life after open-heart surgery to tackle climate change.’ That someone decided to undergo heart surgery to tackle climate change baffled me.

[54] J. Stroux, Summum ius summa iniuria. Originally written for the Festschrift für Paul Speiser-Sarasin, Basel 1926, it was later published in his Römische Rechtswissenschaft und Rhetorik, Potsdam 1949, pp 7-80. The ground-breaking, “epochal” importance of this work is highlighted by the Italian scholar Salvatore Riccobono in his preface to the Italian edition of the booklet, in Annali del Seminario giuridico dell’Università di Palermo (AUPA), 12 (1929), pp. 639-691.

[55] See T.G. Leesen, Gaius meets Cicero: Law and rhetoric in the school controversies, Leiden 2010, pp. 18-20.

[56] T. Reinhardt, Cicero’s Topica, cit., para 8: “Itaque licet definire locum esse argumenti sedem, argumentum autem rationem quae rei dubiae faciat fidem.”

[57] Cicero, Pro Caecina, 77: “iuris, rem et sententiam et aequitatem plurimum valere oportere, libidinis, verbo ac littera ius omne intorqueri: vos statuite, recuperatores, utrae voces vobis honestiores et utiliores esse videantur.” I used A.C. Clark, ed, M. Tulli Ciceronis: Orationes, Vol. 4, Oxford 1909. The Latin text is available online at http://www.perseus.tufts.edu/hopper/text?doc=Perseus%3Atext%3A1999.02.0013%3Atext%3DCaec.%3Asection%3D77 (last accessed on 06 April 2021).

[58] T. Reinhardt, Cicero’s Topica, cit., 12.

[59] Idem, 13: “quoniam argentum omne mulieri legatum est, non potest ea pecunia quae numerata domi relicta est non esse legata; forma enim a genere, quoad suum nomen retinet, numquam seiungitur; numerata autem pecunia nomen argenti retinet; legata igitur videtur.”

[60] N. Duxbury, Frederick Pollock and the English Juristic Tradition, Oxford 2004, p. 97. Duxbury shows that Pollock did not have any issues with the idea of law as a system, e.g. pp. 102-103.

[61] P. Stein, Roman Law, Common Law, and Civil Law, in Tulane Law Review, 66 (1992), pp. 1591-1603, at p. 1596.

[62] T. Viehweg, Topik und Jurisprudenz, cit.,pp. 55-56.

[63] A. M. Honoré, Legal Reasoning in Rome and Today, in Cambrian Law Review, 4(1973), pp. 58-67, p. 58-59.

[64] J. W. Tellegen – O. Tellegen-Couperus, Artes urbanae. Roman law and rhetoric, in P. J. du Plessis, ed, New Frontiers: Law and Society in the Roman World, Edinburgh 2013, pp. 31-50, p. 36.

[65] T. Honoré, Legal reasoning in Rome and Today, cit., pp. 61-62.

[66] Livy, Ab Urbe Condita, III 31: “cum de legibus conveniret, de latore tantum discreparet, missi legati Athenas Sp. Postumius Albus A. Manlius P. Sulpicius Camerinus iussique inclitas leges Solonis describere et aliarum Graeciae civitatium instituta mores iuraque noscere.” I have used B. O. Foster, ed. Livy History of Rome books 3-4, Cambridge MA and London 1922. Even if some authors have questioned the validity of this source, contacts between the Romans and the Greeks were established via the Greek colonies in Southern Italy. Cf. Brouwer, Law and Philosophy in the Late Roman Republic, cit.,at p. 2.

[67] S. C. Todd, Law and Oratory at Athens, in M. Gagarin – D. Cohen, The Cambridge Companion to Ancient Greek Law, Cambridge 2005, pp. 97-111.

[68] G.A. Kennedy, Aristotle on Rhetoric, 2^nd ed., Oxford 2007, 1, 2; 1355b 2. For the original text, I consulted W. D. Ross, Aristotelis Ars Rhetorica, Oxford, 1959: “τῶνδὲπίστεωναἱμὲνἄτεχνοίεἰσιναἱδ᾽ἔντεχνοι. ἄτεχναδὲλέγωὅσαμὴδι᾽ἡμῶνπεπόρισταιἀλλὰπροϋπῆρχεν, οἷονμάρτυρεςβάσανοισυγγραφαὶκαὶὅσατοιαῦτα, ἔντεχναδὲὅσαδιὰτῆςμεθόδουκαὶδι᾽ἡμῶνκατασκευασθῆναιδυνατόν, ὥστεδεῖτούτωντοῖςμὲνχρήσασθαι, τὰδὲεὑρεῖν.” Kennedy considers it as more appropriate not to translate the word ‘πίστις’, thus highlighting the complexity of its meaning. This approach to the term is quite common in the literature, e.g. C. Rapp, Rhetorik und Philosophie in Aristoteles Rhetorik, in Rhetorik, Ein internationales Jahrbuch, 18 (1999), pp. 94-113, pp. 111-12.

[69] J.H. Lipsius, Das Attische Recht und Rechtsverfahren, Vol 1, Leipzig 1905, pp. 888-95

[70] Kennedy, Aristotle on Rhetoric, cit., I, 1; 1354a.

[71] Idem, I, 2, 3; 1356a. The Greek text reads: “τῶνδὲδιὰτοῦλόγουποριζομένωνπίστεωντρίαεἴδηἔστιν: αἱμὲνγάρεἰσινἐντῷἤθειτοῦλέγοντος, αἱδὲἐντῷτὸνἀκροατὴνδιαθεῖναίπως, αἱδὲἐναὐτῷτῷλόγῳδιὰτοῦδεικνύναιἢφαίνεσθαιδεικνύναι.”

[72] T. Giaro, Knowledge of Law as Knowledge of Facts. The Roman Experience, in T. Giaro, ed., Roman Law and Legal Knowledge – Studies in Memory of Henryk Kupiszewski, Warszawa 2011, pp. 215-241, at p. 216, argues that “Greek law existed in the shadow of the intellectual disciplines of rhetoric and philosophy, as well as democratic politics.”

[73] Lipsius, Das attische Recht, cit., p. 919: “maßlose Schmähungen und Beschimpfungen”.

[74] Ross, Aristotelis Ars Rhetorica, cit., I, 1, 4; 1354a: ”διαβολὴγὰρκαὶἔλεοςκαὶὀργὴκαὶτὰτοιαῦταπάθητῆςψυχῆςοὐπερὶτοῦπράγματόςἐστιν, ἀλλὰπρὸςτὸνδικαστήν: ὥστ᾽εἰπερὶπάσαςἦντὰςκρίσειςκαθάπερἐνἐνίαιςγενῦνἐστιτῶνπόλεωνκαὶμάλισταταῖςεὐνομουμέναις, οὐδὲνἂνεἶχονὅτιλέγωσιν“. Kennedy, Aristotle on Rhetoric, cit., translates: “for verbal attack and pity and anger and such emotions of the mind [ψυχή] do not relate to fact but are appeals to the juryman. As a result, if all trials were conducted as they are in some present-day states and especially in those well-governed [the handbook writers] would have nothing to say”. See also E. Sanders, Emotive Techniques and Persuasive Genres, in E. Sanders – M. Johncock, eds, Emotion and Persuasion in Classical Antiquity, Stuttgart 2016, pp. 13-22, at p. 13.

[75] Honoré, Legal Reasoning in Rome and Today, cit., pp. 64-65.

[76] The caution of some of Leesen’s statements suggests that she is aware of the lack of sound evidence for a general conclusion that the jurists, as opposed to some jurists, were acquainted with the rhetorical tradition. See for example Leesen, Gaius, cit., pp. 40-41.

[77] First Quintus Mucius Scaevola Augur, then, after the latter’s death, his nephew Quintus Mucius Scaevola Pontifex. See supra note 24.

[78] On the methodology of Quintus Mucius Scaevola pontifex, see the – admittedly not uncontroversial – theory advanced by Okko Behrends, Institutionelles und prinzipielles Denken im römischen Recht, in ZRG RA, 95 (1978), 187-231.

[79] In Wilkins, ed., T. 2, Brutus, cit., 42, 153, Cicero tells us that Servius mastered also dialectic: “dialecticam mihi videris dicere, inquit. Recte, inquam, intellegis”. Servius, as Cicero, was well-versed in both law and dialectics. Yet, according to Cicero, Servius chose to become the foremost authority in the civil law, in iure civili esse princeps, which was the second art, rather than to be second in the highest art, that is philosophy:”videtur mihi in secunda arte primus esse maluisse quam in prima secundus” Brutus, 41, 150.

[80] Reinhardt, Cicero’s Topica, cit., 51: “Ac loci quidem ipsius forma talis est. Admonet autem hic locus ut quaeratur quid ante rem, quid cum re, quid post rem evenerit. 'Nihil hoc ad ius; ad Ciceronem,' inquiebat Gallus noster si quid ad eum quis tale rettulerat ut de facto quaereretur.” Cicero does not explain the context in which this statement was made. We only know that it emerges in the discussion on the locus ad adiunctis and that this issue had already been mentioned by Cicero in an earlier passage. It is unclear which passage this would be. Tellegen-Couperus – Tellegen, Nihil hoc ad ius, ad Ciceronem, cit., advance a convincing case for the setting of Topica 51, linking it to Topica 18 and Gaius’ Institutes II 118-119.

[81] See L. Bablitz, Actors and Audience in the Roman Courtroom, Oxford 2007, pp. 141-169.

[82] E.g. Cicero, Pro Murena, 26, where Cicero refers to the ancient, much esteemed jurists as “those bearded men”, apud illos barbatos.

[83] Tellegen – Tellegen-Couperus, Artes urbanae. Roman law and rhetoric, cit., p. 43.

[84] D. 33.7.20.9 (Scaev. 3 responsorum): “Quod adiecit testator ‘uti possedi’ an hoc significet sicut instructa in diem mortis habuit, id est cum mancipiis pecoribus instrumento rustico? respondit: non de iure quaeritur.” Pennsylvania translation by T Braun.

[85] Tellegen-Couperus – Tellegen, Nihil hoc ad ius, ad Ciceronem, cit., p. 408.

[86] D. 41.2.1.3 (Paul. 54 ad edictum): “Ofilius quidem et Nerva filius etiam sine tutoris auctoritate possidere incipere posse pupillum aiunt: eam enim rem facti, non iuris esse: quae sententia recipi potest, si eius aetatis sint, ut intellectum capiant.”

[87]E.g. D. 19.5.17.5 (Ulp 28 ad edictum):“Si quis sponsionis causa anulos acceperit nec reddit victori, praescriptis verbis actio in eum competit: nec enim recipienda est Sabini opinio, qui condici et furti agi ex hac causa putat: quemadmodum enim rei nomine, cuius neque possessionem neque dominium victor habuit, aget furti? plane si inhonesta causa sponsionis fuit, sui anuli dumtaxat repetitio erit.”

[88] E.g. Gai, IV 154.

[89] D. 50.17.15 (Paul 4 ad Sabinum): “Is, qui actionem habet ad rem reciperandam, ipsam rem habere videtur.”

[90] Giaro, Knowledge of Law as Knowledge of Facts. The Roman Experience, cit., pp. 219-220.

[91] D. 22.6.9pr (Paul. libro singulari de iuris et facti ignorantia): “Regula est iuris quidem ignorantiam cuique nocere, facti vero ignorantiam non nocere.”

[92] S. H. Svavarsson, Pyrrho and Early Pyrrhonism, in R. Bett, ed. Cambridge Companion to Ancient Scepticism, Cambridge 2010, pp. 37-57, p. 42. The importance of this approach is confirmed by Eusebius, Praeparatio evangelica, 14.18, who refers the quote above whilst reporting the thought of the peripatetic philosopher Aristocles of Messene (I c AD). The Pyrrhonian statement had been recorded by Pyrrho’s pupil Timon of Phlius. Cf. Long – Sedley, The Hellenistic Philosophers, cit., pp. 14-15.

[93] Cicero, Academica posteriora, I 12: “ut Democritus in profundo veritatem esse demersam, opinionibus et institutis omnia teneri nihil veritati relinqui”. I have used the Latin edition by O. Plasberg, Leipzig 1922.

[94] A distinction abandoned in England only over twenty years ago. In Kleinwort Benson v Lincoln CC [1999] 2 AC p. 349, at p. 375 (House of Lords): “English law should now recognise that there is a general right to recover money paid under a mistake, whether of fact or law.” (Lord Goff)

[95] D. 22.6.9pr (Paul. l.s. de iuris et facti ignorantia): “Regula est iuris quidem ignorantiam cuique nocere, facti vero ignorantiam non nocere. videamus igitur, in quibus speciebus locum habere possit, ante praemisso quod minoribus viginti quinque annis ius ignorare permissum est. quod et in feminis in quibusdam causis propter sexus infirmitatem dicitur: et ideo sicubi non est delictum, sed iuris ignorantia, non laeduntur…”

[96] D. 12.6.14 (Pomp. 21 ad Sabinum): “Nam hoc natura aequum est neminem cum alterius detrimento fieri locupletiorem.” Pennsylvania translation by Peter Birks.

[97]D. 12.4.3.7 (Ulp. 26 ad edictum): “Sed si servus, qui testamento heredi iussus erat decem dare et liber esse, codicillis pure libertatem accepit et id ignorans dederit heredi decem, an repetere possit? et refert patrem suum Celsum existimasse repetere eum non posse: sed ipse Celsus naturali aequitate motus putat repeti posse. quae sententia verior est”. Pennsylvania translation by Birks.

[98] D. 1.1.1pr (Ulp. 1 institutionum): “ut eleganter Celsus definit, ius est ars boni et aequi.”

[99] D. 17.1.29.4 (Ulp. 7 disputationum): “Quaedam tamen etsi sciens omittat fideiussor, caret fraude, ut puta si exceptionem procuratoriam omisit sive sciens sive ignarus: de bona fide enim agitur, cui non congruit de apicibus iuris disputare, sed de hoc tantum, debitor fuerit nec ne.” Pennsylvania translation by W.M. Gordon – O. Robinson – D. Fergus.

[100] Corbino, Caso, diritto e regula, cit., p. 68: “Con la regula, la giurisprudenza reagisce, dall’interno, alle tendenze dissolutive che il sistema “aperto” porta con sé… Difende – con la preoccupazione di non smarrire la propria “coerenza” — il prestigio del proprio ruolo.”