Law and the Roman Genius

The Roman genius was, in many ways, channelled through and marshalled in its creativity. Monuments, great feats of cultural and civic engineering, the notion of a long-lasting and unifying empire – all of these stand as testament to the legacy of Rome. An aspect of this abundant ingenuity can be found in the history of Roman law, and in its applications to other, later legal systems. Many of them owe a great deal, even if it is unspoken, to what came before. In this instance the hand of history is a heavy one; and since the rule of law and its corollaries are so essential to the equitable and prosperous arrangement and maintenance of society, such a subject is ripe for both study and – one hopes – interest.

First published in 1923, edited by Cyril Bailey and with an introduction by H. H. Asquith (who was both a former British prime minster and a self-declared ‘rusty scholar’ of the classics), The Legacy of Rome is a curious – and fascinating – book. It is as much of a historical document, it seems, as a contribution to the sum-total of historical thought. Though it contains many worthy contributions, all of them of interest to the lapsed or untaught classicist, one chapter in particular catches the eye. Written by F. De Zulueta, Regius Professor of Civil Law at the University of Oxford, it is entitled “The Science of Law”; and it purports to explain this heritage, all while settling the debate as to whether ‘Roman Law is, or is not, one of the greatest achievements of the human mind’. This debate includes many interesting digressions – how much of the Roman way of doing things may be due to a Hellenistic influence, for example, and the possible effects of the introduction of Christianity into the mix – but the debate being as it is, consulting other sources (some of which are just a little more focused in their assessment) is vital and worthwhile.

According to Aldo Schiavone, in his book dealing with The Invention of Law in the West, this genius manifested itself in the creation of ‘an autonomous legal system, detached from religious customs but also distinct from politics yet capable of giving power (potentia, as Cicero would later say) to those who mastered it’. And Cicero was to derive great power and influence from his mastery of the law; as can be seen in his speeches for the defence in the law courts, he was more than capable of marshalling his formidable rhetorical skill in often successful bids to protect friends and allies from prosecution. A famous example of this political acuity can be found in Cicero’s defence of Milo.

The trial did not go Cicero’s way; Milo was convicted and exiled by his political opponents (indeed, when he was sent a copy of the version Cicero had written up, Milo ‘wrote back saying that it was lucky for him that the speech had not been made in that form in court, because if any defence of that kind had been made he would not now be enjoying the excellent mullets of Massilia’). It is still useful, however, in illustrating the power afforded to those who were willing and able to put their rhetorical skills to work in the courts. Cicero, whose words echo down the centuries, often as dynamically and effectively as when they were first uttered, is the exemplary test of this suggestion. Witness the final summation of his speech, which, as translated by D. H. Berry, contains a spark of legal and political excellence:

But I must stop now. I can no longer speak for tears ­– and my client has ordered that tears are not to be used in his defence. But I beg and implore you, gentlemen, when you cast your votes, to be bold enough to vote the way you feel. Believe me, your courage, fairness, and good faith will be strongly approved by the man who, when he picked this jury, was careful to select those who were the best, the wisest, and the most brave.

Such blatant and unrepentant flattery may well be condemned now, but as a rhetorical tool it is vital to appreciate – and not least because in speeches like it Cicero gave voice to much beauty and sophistication. And more than fine phrases, pleasing as they are, he was also the author of more substantial works, some of which continue to exert a great influence on much more than mere matters of style.

In De Oratore, Cicero established what he considered to be an ideal statesman – one who could both make law and enforce its wishes and prescriptions.

But if we were inquiring who is he that has devoted his experience, knowledge and enthusiasm to the guidance of the republic, I should define him thus: ‘whoever knows and uses everything by which advantage of the republic is secured and developed, is the man to be deemed the helmsman, and the originator of national policy’, and I should tell of Publius Lentulus that illustrious leader, of Tiberius Gracchus the elder, Quintus Metellus, Publius Africanus, Gaius Laelus, and countless others, some from our own community and some from abroad.

The inclusion of the phrase ‘countless others’ is a helpful one; it suggests that public policy – and the affairs of state so vital for the survival of the republic – need not be the preserve of the few. This relates to Roman law insofar as Cicero – himself a homo novus or ‘new man’, the first in his family to attain high office – was able to influence and indeed to shape Roman law. His ‘Lex Tullia’, a law which punished political corruption with exile, both bore his name and was passed during his time as consul.

Later, Cicero details the qualities a ‘jurist’ must, in his view, exhibit.

If again the question were, who is rightly described as learned in the law, I should say it is the man who is an expert in the statutes, and in the customary law observed by individuals as members of the community, and who is qualified to advise, direct the course of a lawsuit, and safeguard a client, and in this class I should refer to Sextus Aelius, Manius Manilius and Publius Mucius.

For Schiavone, this perspective shows that ‘rulers and jurists already performed different functions’, and that this can be further observed in other aspects; for him each role was very much ‘their own’. Furthermore, he writes, ‘[t]heir roles were certainly contiguous, and yet all the same possible to separate’. This suggestion can be evidenced by assessing the individuals which were mentioned by Cicero as exhibiting traits worthy of a jurist. They had all served as consuls. It is thus sensible to suggest that a kind of political awareness was either necessary or of some value in performing the aforementioned activities.

Schiavone does, however, make other points on this score, specifically critiquing the idea that one could serve the republic in both political and legal roles: ‘this was no longer enough, in Cicero’s view, to overlap and blur the boundaries: his memory – the city’s cultural memory – identified these figures only (or at least primarily) as men of law’. (Through Cicero’s own view – retrospective though it was, and refracted through Schiavone – ‘they represented … specialisation in its nascent state’.)

But this positive assessment cannot be called the whole story; there are negatives to be read into this tale. One of the objections to this new legal architecture can be discerned from M. H. Hoeflich. In his book Roman Civil Law and the Development of Anglo-American Jurisprudence in the Nineteenth Century, Hoeflich writes the following (likely an understatement) about ‘the legal system of Cicero and Marcus Aurelius’: ‘[the] mastering of it was difficult’. This issue, which may suggest that success within the Roman legal situation was closed off to those outside a certain section of society – one which was almost certainly more educated, richer, and in possession of more worldly advantages than the common citizens of Rome – was largely accentuated because the internal legal ‘logic’ that this system valued above all was certainly ‘complex’.

There are also positive elements to this assessment, however. Hoeflich does suggest that this could be seen not as a barrier to progress but as ‘a tool for conservative reform, to abolish the antiquated aspects of common law … while preserving the rule of law’. The latter aspect cannot be overstated; much of what is written about the Pax Romana may be seen as nostalgic or to some degree rose-tinted – especially the scholarship carried out by those who, like the authors of essays in The Legacy of Rome, did so at a time of great comparison and analogy between the British iteration of empire and the apparently comparable Roman project which had preceded it. But the idea of a dependable rule of law proved the bedrock upon which a successful state could flourish; and it serves the same function in every prosperous and stable nation today.

And this historical continuity cannot be exaggerated. It is Hoeflich who demonstrates that the accessibility and compelling nature of works such as Cicero’s had a great effect on the development of other, later legal systems. In particular, he writes of the effect these works had on John Austin and Joseph Story, and their own important contribution to latter-day jurisprudence.

This contribution did not exist solely in the form of influencing legal theorists, too. Some of the most essential and therefore little-examined elements of our own legal systems date from their establishment in Roman practice. Sir Carleton Kemp Allen, writing in Law in the Making, states that ‘certainly by the time of Cicero … typical formulae [of legal cases] were published as precedents’. Furthermore, we in the modern age owe much to Roman jurists for their ‘constant renovation of the system of legal remedies which make the Praetorian law such an important social instrument’. Such things are not worthless.

And, perhaps contrary to some suggestions, which hold that British law in particular is more about the cleverness of the advocates than the correctness of the case, we are also indebted to the Romans who went before us for the designation of the judge as the ‘umpire in a contest which [is] as much a battle of writs as a battle of wits’, for ‘the judge as umpire rather than as final deciding authority is a familiar figure in … ancient law’. Of course this idea is not exclusively Roman; the Athenians were very fond of jury trials, and indeed they used juries which were vast in size – all the better to prevent instances of corruption from overturning this combined wisdom. But it would be particularly myopic to deny successive generations of Romans, who first conquered and then governed and administered an entire continent, their role in the further promulgation of this most vital of legal doctrines.

For all of that, it is clear that the influence of Roman law on our modern legal systems has been – and will continue to be – immense. Not for nothing is the name and visage of Tribonian (a Byzantine legal theorist) etched onto the walls of the Congress of the United States; his influence is not singular, and in the legal codices of many nations lie aspects and elements with owe a tremendous debt to Roman theorists, Roman writers and even Roman orators in the mould of Cicero himself. Though elements of its influence could be assessed to have been negative, and though many Roman practices would undoubtedly be dismissed today as diversionary or outright immoral, this imprint remains. Returning to the comment about Cicero’s dual life – combining style and substance, fine words and noble ones – it is worthy to reflect that, as F. De Zulueta writes in his essay on “The Science of Law” in The Legacy of Rome, this crucible of civilisation forged ‘[f]ine phrases, expressing an ideal which the Roman lawyer-statesmen … had for centuries made real’. And there is more than a little to be said for that.

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