Evidence

Just as we must view classical Roman Law through the prism of later evidence dating from Late Antiquity, our understanding of Roman Law as it developed during the Republic is based largely on sources from the end of that period or from the early principate, such as Cicero, Dionysius of Halicarnassus, and Livy. Therefore, this chapter will focus primarily on the later Republic, since most of what we know or guess about the early Republican law is based on sources from a much later date. Even if these sources are ostensibly dealing with, e. g., the fifth century BC, their views are often influenced by the legal system that functioned in their own time.

The nature of our literary sources imposes an additional distortion on our understanding of Roman Law. The imperial sources are overwhelmingly juristic, that is, they present views about the law in general, even if to some extent (and modern scholars debate to what extent) these views may reflect opinions about real cases. From the late Republic, on the other hand, we possess over twenty forensic speeches that originated in real trials. Legal historians tend to find these speeches somewhat unsatisfactory as source materials, for a number of reasons: (1) they do not represent

Precise copies of the speeches as delivered; (2) they were crafted by advocates, not jurists; (3) they were designed to sway citizen jurors, not expert jurists; and (4) they were intended to serve the interests of the advocates’ clients, not to present legal doctrine. Nevertheless, even a bewildering speech of Cicero, e. g., his Pro Cluentio, tells us more about the details of the trial at which it was delivered than we know for any trial from the imperial period (the one exception being Apuleius’ self-defense [Apology], a speech delivered at a trial on a charge of magic in the mid-second century ad). This discrepancy in the surviving evidence can easily lead to a misperception that the republican law was practical and based on reality, and imperial law theoretical and based on abstraction. In fact, actual cases and legal science reacted fruitfully with each other during both the Republic and the Empire.