The relationship between jurisconsult and advocate caused some friction in ancient Rome. For the views of jurisconsults about the advocates, we have to depend on the anecdotes that Cicero puts in the mouth of the chief interlocutor of his dialogue On the Orator (De Oratore), L. Licinius Crassus (cos. 95). In addition to his reputation as the leading Roman orator of his generation, he possessed excellent legal knowledge (De or. 1.166-200). In On the Orator, Cicero has Crassus expound on the theme of the advocate who knew so little about the law that he harmed his client’s case. For example, he tells of one trial in which the plaintiff’s advocate claimed more compensation than the legis actio that formed the basis of the case would allow, thereby potentially dooming the action to failure. The defendant’s advocate, meanwhile, protested against the size of the plaintiff’s claim, not realizing that it lay to his client’s interest not to dispute it, and thus to allow a fatally flawed action to go forward (De or. 1.167).
In contrast to Crassus’ purported contempt for the legal impairments of orators, the orators themselves sometimes showed little respect for the jurisconsults, even though they depended on them for legal advice to prepare their case. Orators regarded the jurisconsults as failed advocates and, thus, as their inferiors, whose function was to supply them with some of the weapons necessary to win the battle that they themselves controlled (Quint. Inst. 12.3.4, 9; Cic. Top. 65).50 Roman orators could portray the work of the jurisconsults in a ridiculous light, as Cicero does in his defense of Murena (Mur. 23-9). After Murena had defeated the noted jurisconsult Ser. Sulpicius Rufus in 63 for the consulate of 62, Sulpicius accused him of electoral malpractice (ambitus). In such a prosecution it was normal to argue that the defeated candidate had by far the better chance of winning and, thus, that the winning candidate must have used improper means to counteract this natural advantage. Sulpicius pointed to his service as a jurisconsult as a source of popularity, so Cicero, as Murena’s advocate, ridicules both jurisconsults and jurisprudence in general for their use of the Latin language in ways that make no sense to normal Romans. As exaggerated as Cicero’s treatment of this theme may seem, it clearly resonated in Roman popular consciousness.
Traditionally, the influence of oratory on the law, from actual trials to theoretical jurisprudence, has been viewed as malign; whereas jurisconsults guarded Law as an autonomous and everlasting science, advocates used sophistic tricks in defense of ephemeral causes:
Faithful to the pontifical tradition they (viz., the jurisconsults) were not mere partisans, ready to forward a client’s cause by any and every available means, including falsehood, calumny, and emotional appeals, but guardians and promoters of the law. To this tradition they were resolved to be true, and fortunate it was for Roman legal science that they stood fast and refused to suffer the noisome weed of rhetoric, which choked so much else that was fine and precious, to invade their profession.51
In support of this point of view, scholars have pointed to a statement of the jurisconsult Aquillius Gallus quoted by Cicero (Top. 51): ‘‘ ‘This has nothing to do with the law; it has to do with Cicero,’ said our friend Gallus, if anyone brought him anything involving a question of fact.’’ This statement has been interpreted to mean that the task of the jurisconsult was connected only with the law, while the task of the forensic orator was connected only with non-legal matters. However, Crook argues persuasively that the passage should be translated as ‘‘This is not law, (it’s a fact): it’s for Cicero.’’ According to Crook, therefore, Gallus’ remark does imply that jurisconsults should deal only with the law, and not facts, but it does not say that the orators cannot deal with the law. ‘‘The facts were their territory - facts in the context of the law.’’52 But how much attention did Roman forensic orators pay to the facts? Crook attacks the view that Roman advocates strayed into irrelevancy because they misapplied the precepts of Greek rhetorical manuals to the Roman courts, which used a substantially different procedure from their Greek counterparts. Clarke had contrasted Greek and Roman courts. For example, in Athenian courts witnesses were heard before speeches were delivered, and so the Athenian speakers were introducing arguments based on evidence that had already been presented to the court; in Roman courts the order was reversed, and therefore the Roman advocate when presenting his case could not refer to a known body of fact, and might not even be familiar with the facts that would be introduced by the other side.53 Crook, on the contrary, while he accepts the argument that Roman forensic speeches were full of irrelevancy, maintains that the various digressions were well calculated to serve the clients’ interests.54 Another viewpoint related to the orators’ supposed indifference to law, and accepted by many Roman historians in past decades, maintained that Roman trials, particularly criminal trials, were so bound up in the political conflicts of the time that the verdict often depended more on political considerations than on a judicial combination of relevant facts with the law. This viewpoint now finds less acceptance than previously.55
A well-attested lawsuit that took place in the late 90s seems at first glance to present an archetypical struggle between jurisprudence and oratory. Coponius left an inheritance to his child or children; however, in the event that the offspring died before reaching the age of majority, he designated M’. Curius as substitute heir. When Coponius died, he had no children, so Curius believed that he was entitled to inherit. However, a relative of Coponius, named M. Coponius, who stood to inherit if Coponius was judged to have died intestate, challenged Curius’ claim to the inheritance. He pointed out that the conditions of the will had not been met: Coponius had left no children not because they had died, but because none had ever been born. The jurist Q. Mucius Scaevola ‘‘Pontifex’’ (cos. 95), representing M. Coponius, argued for a literal interpretation of the will; the case of Curius was presented by Crassus (also cos. 95), who maintained that his client ought to inherit according to the intention (voluntas) of the testator (Cic. Tnv. rhet. 2.122, Caecin. 53, 69, De or. 1.180, 238, 242-4, 2.24, 140-1, 221; Brut. 144-6, 194-8, 256; Top. 44; Quint. Inst. 7.6.9).
Stroux interpreted this trial, which goes by the name of the causa Curiana, as a turning point in a development from an archaic literal form of jurisprudence, to a more flexible form that in general was influenced by philosophy and Aristotelian rhetoric, and specifically employed the Aristotelian concept of to epieikes, or aequitas (‘‘equity’’).56 This seemingly plausible interpretation dissolves upon closer scrutiny, and has now generally been rejected. To view Scaevola as the personification ofliteral-minded jurisprudence and Crassus as the personification of flexible rhetoric is mistaken. Scaevola’s brief was as much based on rhetorical commonplaces as that of Crassus, nor did it present an unassailable legal argument. ‘‘... Scaevola’s argument in this case was essentially only a handbook rehash of the rhetorical defense of scriptum, and not an exercise in abstract jurisprudence.’’57 Crassus, on the other hand, attempted to show that Scaevola’s interpretation of the law was not the only one possible, for indeed it raised a fundamental and disputed question in the law of succession. In addition, he adduced analogous legal precedents to support his emphasis on voluntas (Cic. Top. 44), and relied on the opinions of a jurist (his father-in-law Q. Mucius Scaevola ‘‘Augur’’ [cos. 117]) in making his case (Cic. Caecin. 69). Cicero presents the case as a prime example for the need of orators to know some law, if only to avoid the appearance of incompetence (Cic. De or. 1.180).58 Crassus and Scaevola were both acting as advocates and were both making the best possible case for their client. Were Crassus to have been defending Coponius, and Scaevola Curius, rather than the other way around, the rhetorical commonplaces that each employed would most probably have been similarly reversed. In fact, we know that Scaevola was well equipped to argue on the basis of intention (Cic. Brut. 145, Pompon. Dig. 34.2.33), and Crassus could and did present an argument based on the letter of the law (Cic. Off. 3.67).59 That Crassus and Scaevola were both excellent advocates capable of marshalling legal arguments in an expert manner should hardly cause surprise, for Crassus was reputed the best jurisconsult among the speakers, and Scaevola the best speaker among the jurisconsults (Cic. Brut. 145). In short, the causa Curiana did not open the door to a more flexible jurisprudence.60
Crook, in fact, attacks the previously accepted contention that the growth of advocacy in the second and first centuries caused a divorce between jurisprudence and oratory, and the decline of the latter in the early Principate, by cheapening trials with a rhetorical bag of tricks. If the most productive period of Roman Law coincided with the heyday of the forensic advocates and their rhetoric, he argues, we need to consider the possibility, at least, that rhetoric had a salutary effect on jurisprudence. As Frier argues, the growth of oratory compelled legal science to rest on socially persuasive foundations broader than the law alone.
World History
