The Relation of Scholasticism to Greek Philosophy and Roman Law

The method of the twelfth-century European jurists was a transformation of the methods of dialectical reasoning characteristic of ancient Greek philosophy and of classical and postclassical Roman law.

-132- concepts by the techniques of distinction, that is, repeated analysis of a genus into its species and the species into their subspecies, and synthesis, that is, repeated collection of species into their genus and the genera into larger genera. Through such reasoning Plato sought to achieve sure knowledge of the nature of Goodness, Justice, Truth, Love, and other "Forms" existing, as he thought, in the universe, independent of humanity.

Aristotle greatly refined Plato's concepts of dialectical reasoning. He distinguished, first, between reasoning from premises that are known to be necessarily true (such as "all men are mortal" or "fire burns") and reasoning from premises that are generally accepted, or propounded by experts, but are nevertheless debatable (such as "man is a political animal" or "philosophy is desirable as a branch of study").

Aristotle also refined and developed the Platonic conception of science. He was the first to use the term in the plural to refer to "a whole series of separate and distinct 'sciences,' all of which possess certain methods and certain distinctions in common, but each of which has its own distinctive archai or 'principles' [literally, "beginnings"] and its own determinate subject matter." 18Each also has its own method of investigation, "growing out of the subject matter itself," ¹⁹ although all share in common the method of observation and hypothesis. Aristotle thus divided Platonic "science" into physics, biology, geometry, ethics, politics, metaphysics, and other types. Medicine, however, remained for Aristotle an "art" (tekhne), since it applied scientific truths but did not itself lead to the demonstration of such truths. Law was not even treated as an art by Aristotle, but was dissolved into ethics, politics, and rhetoric.

In both apodictic and dialectical reasoning, Aristotle said, either inductive or deductive logic may be applicable. (In this, too, he differed from Plato, for whom truth was obtainable only from deductive logic, that is, by reasoning from the general to the particular rather than from particulars to the general.) Nevertheless, in Aristotle's view inductive logic is to be preferred in dialectical reasoning, since it is clearer and more convincing to most people, whereas in apodictic reasoning deductive logic is appropriate to certain kinds of science (such as mathematics) but not to others (such as biology).

133- charioteer is the best charioteer, one may conclude that as a general principle the skilled man is the best man in any particular activity. 20 But this general observation only becomes "scientific," in Aristotle's sense, when the principle that underlies it, that is, the cause of it, is recognized, so that the premises of the argument can be seen to be necessarily true.

The distinguishing feature of dialectical reasoning, however, is not that it is partial to inductive logic, for, as Aristotle showed, apodictic reasoning also inclines toward the inductive method in many fields. Dialectical reasoning is distinguished above all by the fact that it does not start with "propositions," that is, with declarative statements that must be either true or false, from which "scientific" conclusions can be drawn, but rather with "problems," or "questions," about which people may differ, although ultimately the disputed question will be resolved conclusively by a proposition, or first principle, in favor of one side or the other if valid methods of dialectical reasoning are used. ²¹

Aristotle's distinction between apodictic and dialectical reasoning was accepted by the Stoics of the third century B.C. and thereafter. However, the Stoics viewed dialectical reasoning not as a method of arriving at first principles but as a method of analyzing arguments and defining concepts by distinction and synthesis of genus and species. And they lacked Aristotle's overriding concern for systematic exposition; with them dialectics became an independent discipline, not essentially different from logic but with strong elements also of rhetoric and grammar.

It was in its Stoic form, with the writings of Plato and Aristotle in the background, that Greek dialectics was imported into Rome in the republican period ( second and first centuries B.C.).

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them in good faith from another who had fraudulently persuaded the owner to part with them. When they did consider such questions of civil law, they generally treated them as matters of personal ethics. Conversely, questions of constitutional law were generally treated as matters of politics.

Indeed, Platonic thought attributed a transcendent reality to the idea of justice that inhibited the entrusting of its execution to lawyers. Only the seeker after wisdom, the philosophos, was capable of governing, and then only when he had succeeded in his search and become a knower. In Carl Friedrich's words, "The very transcendency of justice precludes [for Plato] its realization in a constitutional order." He adds that as a result constitutional law in the Western sense of the term "was unknown at Athens."

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In Rome, on the other hand, a prestigious class of jurists came into existence quite early.

The Roman jurists were intensely practical in their approach to law. Their importation of Greek dialectical reasoning in the second and first centuries B.C., although it was the first scholarly inroad into Roman law, was not the intermarriage of Roman law with Greek philosophy that took place over a thousand years later in the universities of western Europe. The Roman jurists refused to adopt the Hellenistic system of education; legal training continued to consist chiefly of very informal, individual apprenticeship in the house of an older practitioner. "The [Roman] jurisconsults did not discuss with their pupils basic conceptions like justice, law, or legal science, though to the Greeks these seemed problems of the highest, nay almost of sole importance. The student was plunged straight into practice, where he was faced with the everrecurrent question: What, on the facts stated, ought to be done?" ²⁵ Nevertheless, it was in this period -- before the great flowering of so-called classical Roman law in the first to third centuries A.D.

135- attempted systematically to classify Roman law into its various kinds (genera and species) and with precision to define general rules applicable to specific cases.

Perhaps the earliest example of the systematic application of dialectical reasoning to law was the treatise on jus civile by the Roman jurist Q. Mucius Scaevola, who died in 82 B.C. ²⁶ In this work, which is said to have "laid the foundations not merely of Roman, but of European, jurisprudence" ²⁷ civil law was classified into four main divisions: the law of inheritance, the law of persons, the law of things, and the law of obligations. Each of these was subdivided: inheritance into testaments and intestate succession; persons into marriage, guardianship, free status, paternal power, and some other divisions; things into possession and nonpossession; obligations into contracts and delicts. These were further subdivided: for example, contracts were subdivided into real contracts, purchase and sale, letting and hiring, and partnership, while delicts were subdivided into assault, theft, and damage to property. — Under the various genera and species, each of which was characterized by its governing principles, legal materials were reproduced -- above all, the decisions of praetors in particular cases, but also legislative enactments, authorities from older collections of documents, and also authorities from the oral tradition. The major task which the author set for himself was to present "definitions," as he called them, ²⁹ that is, precise statements of the legal rules implicit in decisions of cases.

In the work of Q. Mucius Scaevola and his fellow jurists of the second and first centuries B.C., not only the classification system but also the method of arriving at the formulation of specific rules was dialectical in the broad Greek sense. Questions were posed, various answers of jurists were collected, and the author's own solutions were offered. For example, an earlier jurist had summarized various decisions concerning the scope of the law of theft by saying that one who borrowed a horse was guilty of theft if he took it to a place other than that agreed when he received it, or if he took it further than the place agreed. Q. Mucius Scaevola reviewed the same decisions, and others, and achieved a broader and at the same time a more precise formulation: whoever receives a thing for safekeeping and uses it, or receives it for use and uses it for a purpose other than that for which he receives it, is guilty of theft. ³⁰ This definition includes not only loans but deposits, and it substitutes "thing" for "horse."

As Professor Stein writes, "Following the Aristotelian techniques [ Q. Mucius] saw his task as that of explaining what actually happened in legal proceedings." 31He sought to achieve that task by subdivision of genera and species until he reached specific decisions, classified them, and then was able to explain them by finding "a form of words that included all the relevant categories and excluded all others." ³² His aim,

136- and that of other jurists who followed him, was to declare the preexisting law and to define its precise limits. 33 However, the breadth of generalization was in inverse ratio to its sophistication. One would not look to the Roman jurists of the republican period for a discussion of legal concepts;

"indeed the notion of a concept was not found in their mental equipment." 34

Subsequently, in the classical and postclassical periods ( first to fifth centuries A.D.), the Roman jurists refined and developed the dialectical techniques that had been applied by their republican predecessors, without changing them fundamentally. There was a tendency toward somewhat greater abstraction. In the first part of the second century they began to speak expressly of "rules" (regulae) and not only of "definitions." The difference between the two terms is a subtle one. The definitions seem to have been more closely connected with the cases which they generalized. The rules, though derived from cases, were capable of being considered separately. Sometimes they were collected in "books of rules," which were especially useful to the numerous minor officials of the Roman Empire. Also a few law schools were founded in this period, and although their orientation remained intensely practical, they undoubtedly contributed to a tendency to search for broader rules. Aristotelian concepts of the "nature" of a thing were used, for example, to summarize rules concerning what may be omitted from the express terms of agreements of purchase and sale: it was said that terms that "naturally belong" to the case require no express agreement. ³⁵ However, only one kind of term was given as "naturally belonging" to all types of purchase and sale-namely, that the vendor had title; various other specific implied warranties (as they would be called today) for individual types of purchase and sale were then listed separately -- for example, that an animal is healthy, or that a slave is not in the habit of running away. Sometimes common rules were developed to govern diverse types of transactions -- for example, diverse types of contracts, such as sales and leases. Only occasionally would Roman jurists go so far as to postulate broad principles that seemed to embrace the entire law. Thus Gaius, the great jurist and law teacher of the mid-second century, wrote that agreements concluded "against the rules of the civil law" are invalid, thereby implying, but only implying, what was first spelled out in the twelfth century by the scholastic jurists of the West: that the law forms a whole system, a whole "body."

This implication was also present in some very broad regulae which, when abstracted from the cases for which they were first generalized, have the form of succinct epigrammatic statements of fundamental legal principles. In Justinian's Digest the concluding Title 50.17, "Concerning various rules of the ancient law," collects 211 such broad rules: for example, "No one is considered to defraud those who know and consent," "In

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doubtful matters the more benevolent interpretations should be preferred," "Good faith confers as much on a possessor as the truth, whenever the law (lex) offers no impediment." However, as Stein has shown, 36 these "legal maxims," as they came to be called in the twelfth century, have a wholly different meaning when taken as abstract principles from that which they had in the context of the types of cases in which they were originally uttered and which are often reproduced in the earlier parts of the Digest. Thus the first of the rules just quoted referred originally to the case of one who acquires something from a fraudulent debtor with the consent of the creditors: the creditors may not later claim that they were defrauded. The second originally referred to legacies; the "more benevolent interpretations" are those that are more benevolent to legatees. The third originally referred to the good_faith possessor of another's slave; if the slave has stolen from another, the victim has an action against the possessor. In 530 A.D. Justinian issued a constitution clarifying the older law on the subject. This constitution is the lex which is obliquely referred to in the concluding phrase of the regula.

This collection of 211 bare statements of abstract rules of the ancient law was not intended by Justinian to deceive anyone into believing that these rules had a meaning independent of the concrete situations to which they were originally applied. The very first regula makes this clear: the jurist Paul is quoted as having said, "A rule is something which briefly relates a matter... By means of a rule a short account of matters is passed on and... if it is inaccurate in any respect, it loses its effect." In other words, rules must not be considered outside the contexts of the cases which they summarize. This is also shown by the fact that each rule is preceded by a citation to its original context. Moreover, with the exception of the first one, the rules are arranged unsystematically, and some of them contradict one another. ³⁷ Justinian added the regulae partly, at least, as an ornamental index to his great collection. It is also likely that they were intended to be useful in argument, possibly as presumptions that could be used to shift the burden of proof. Finally, they served a didactic purpose as an aid to memorizing the vast text. Certainly no Roman jurist treated them as abstract principles. Indeed, the entire Title 50.17 of the Digest must have demonstrated beyond a doubt to the Roman lawyers of Justinian's time the validity of the famous rule of Javolenus, also contained in Title 50.17, "All rules [definitiones] in civil law are dangerous, for they are almost always capable of being distorted." (That, too, was probably aimed at a specific definition.) ³⁸

The classical and postclassical Roman jurists thought of a legal rule as a generalization of the common elements of decisions in a restricted, specified class of cases. Only by thus limiting the scope of legal rules did they hope to achieve their objective of using Greek methods of classification and generalization as a rational basis for deciding cases. The Greeks

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had never attempted any such rationalization of legal decisions and rules; for them, dialectical reasoning was a technique for deriving valid philosophical conclusions_______________________________________________________ "propositions" from

agreed premises. The Romans converted the Greek dialectic from an art of discovery to an art of judging.

It is important to distinguish Roman legal casuistry from the legal casuistry of the western European jurists of the eleventh and twelfth centuries and thereafter, as well as from the case method of analysis practiced by English and American common lawyers to this day. On the one hand, the Romans did not use cases in order to illustrate principles or to test them by going back a step, so to speak, in order to see their applications. On the other hand, they reduced their cases to bare holdings, without treating them in their fullness -- without discussion of ambiguities or gaps in their fact situations, or alternative formulations of the legal issues involved. ³⁹ Max Weber undoubtedly went too far when he referred to the classical Roman jurists' use of rules as a "merely paratactic and visual association of the analogy." ⁴⁰ Yet their failure to articulate the assumptions and deeper reasons on which the analogies were founded-indeed, their failure even to define the most important legal terms 4L-- led to a narrowness, or woodenness, in case analysis; and this was just what the Roman jurists wanted! When Cicero argued for a more complex systematization of the law, with clear definitions and abstract legal rules, the jurists "answered these strictures by polite silence." ⁴² They had no reason to try to transform the Roman genius for consistent adjudication into a philosophical system. They had every reason to be suspicious of the applicability of the higher ranges of Greek philosophy to the practical needs of adjudication.

The western European jurists of the eleventh and twelfth centuries carried the Greek dialectic to a much higher level of abstraction. They attempted to systematize the rules into an integrated whole -- not merely to define elements common to particular species of cases but also to synthesize the rules into principles and the principles themselves into an entire system, a body of law or corpus juris.

One of the techniques the scholastic jurists used to achieve this objective was to treat the Roman regulae, found in Title 50.17 of the Digest and elsewhere, as legal "maxims," that is, as independent principles of universal validity. The word "maxim" was drawn from Aristotelian terminology; it referred to a "maximum proposition," that is, a "universal." The Roman writer Boethius ( 480-524 A.D.), from whose Latin translations and commentaries Western scholars from the sixth to the midtwelfth centuries learned their Aristotle, wrote that Aristotle postulated certain self-evident propositions, and that from these "maximum, that is, universal.... propositions... the conclusions of syllogisms are drawn." ⁴³In the twelfth century the great logician Peter Abelard, in his

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Dialectica, described such a maximum proposition as one that summarizes the meaning and the logic common to the particular propositions that are implied in it. For example, from the propositions "if it is man it is animal," "if it is rose it is flower," "if it is red it is color," and other similar propositions in which a species is antecedent to a genus, "the maximum proposition is induced that what is said of a species may be said of a genus." "The maxim," Abelard wrote,

"contains and expresses the sense of all such consequences and demonstrates the mode of inference common to the antecedents." 44 In the same way the jurists of Bologna, contemporaries of Abelard, induced universal principles from the implications of particular instances. This was just the opposite of the older Roman concept of a rule as merely "a short account of matters"; it was assumed instead that the whole law, the entire jus, could be induced by synthesis from the common characteristics of specific types of cases. A similar logic was used centuries later by English and American lawyers to derive general rules from particular judicial decisions. Contemporary logicians call it "existential generalization." 45 It rests on the general principle of inference that if an individual object a of a collection M has the property F, then it can be said of the collection M that some or at least one of the objects in it have or has the property F. The twelfth_century scholastic jurists went farther than the Anglo_American common lawyers, however, in their belief that every legal decision or rule is a species of the genus law. This made it possible for them to use every part of the law to build the whole, and at the same time to use the whole to interpret every part.

It was this belief and this method that characterized the approach by which the scholastic jurists analyzed and synthesized the rediscovered texts of Justinian. Here Aristotelian dialectics -- even before the translation of Aristotle's principal works on logic -- was carried over to law at a level of synthesis far higher than that of the Roman jurists whose writings were being studied. ⁴⁶

Yet there was another side to it. Aristotle had denied the apodictic character of dialectical reasoning. It could not achieve certainty because its premises were uncertain. The twelfth-century jurists of western Europe, on the contrary, used the Aristotelian dialectic for the purpose of demonstrating what is true and what is just. They turned Aristotle on his head by conflating dialectical and apodictic reasoning and applying both to the analysis and synthesis of legal norms. In contrast to the earlier Roman jurists and the earlier Greek philosophers, they supposed that they could prove by reason the universal truth and universal justice of authoritative legal texts. For them, the edicts and responsa of Roman law, taken both individually and as a whole, constituted what they certainly had not constituted in the minds of the Roman lawyers themselves -- a written natural law, a ratio scripta, to be taken, together with the Bible,

-140- the patristic writings, and the canons of the church, as sacred. Since Roman legal norms were true and. just, they could be reasoned from, apodictically, to discover new truth and justice. But since they contained gaps, ambiguities, and contradictions, they had to be reasoned from dialectically as well; that is, problems had to be put, classifications and definitions made, opposing opinions stated, conflicts synthesized.

This was the first systematic application of St. Anselm's famous motto, Credo ut intelfigam ("I believe in order that I may understand"). Aristotle's contradiction between dialectical reasoning and apodictic reasoning was itself resolved. The dialectical method became the scientific method in law -- as it eventually became the scientific method in other branches of learning, including the natural sciences.

The scholastic jurists differed frorn the Greek philosophers not only in their belief that universal legal principles could be derived by reasoning from authoritative texts but also in their belief concerning the nature of such universal principles. Plato had postulated that universals exist in nature -- that the idea of justice or beauty, the idea of a triangle, the idea of color, the idea of a rose, and other general ideas in people's minds are imperfect reflections of "paradigms" or "forms" that exist in external reality. This "realist" view of universal ideas, as it was later called in the West (today it would be called "idealist"), was not entirely shared by Aristotle, although most of the differences between Aristotle and Plato were concealed in the only versions of Aristotle's works known in the West until near the end of the twelfth century, namely, the translations and commentaries of Boethius. ⁴⁷Thus Western Christian philosophers had taken both Plato and Aristotle to be realists. Although some of these philosophers had raised some questions concerning the "reality" of universals, the first sharp and systematic attack on the realist position was taken in the eleventh and twelfth centuries, above all by Abelard. He denied the external reality of the common characteristics that define a class of individual substances. He argued that only the individual substances exist outside the mind, and that universals are names (nomina) invented by the mind to express the similarities or relationships among individual things belonging to a class. Some "nominalists" denied that universals have any meaning at all; Abelard, however, asserted that the names do have meaning, in that they characterize the individuals in the class, but that they do not "exist" except as they are attributed to individuals. Thus "goodness," and "society," and "color," and "rose" are not to be found either in the physical world or in some ideal world of forms; rather they are general qualities that the human intellect attributes to good acts, or to individual people living in social relations with one another, or to particular pigments, or to individual roses.

Nominalism played an indispensable role in the movement to systematize law. For realism in the Platonic sense, however convincing it

141- might be as metaphysics, was wholly alien to the effort of twelfth_century jurists to classify, divide, distinguish, interpret, generalize, synthesize, and harmonize the great mass of decisions, customs, canons, decrees, writs, laws, and other legal materials that constituted the legal order of the time. To have postulated, in Platonic style, the external reality of justice, equality, consistency, procedural regularity, and other universal principles, and to have attempted to deduce from them specific legal rules and institutions, would have been a futile academic exercise. Such an abstract system would have been of no use to the emerging polities, ecclesiastical or secular.

What was needed was the Greek genius for classification and generalization but without the belief that the classifications and generalizations reflect the realities of the external world -- without, in short, Platonic naturalism. In law, such naturalism could not go much beyond the casuistic regulae of the Roman jurists. The nominalists, on the other hand, although they shared with the realists a deep concern to establish general principles and to prove the validity of general concepts, nevertheless denied that such principles and concepts exist as such. The nominalists believed that universals are produced by the mind, by reason and will, and therefore can be revised by reason and will, but that at the same time, they inhere in the particulars that they characterize, and can therefore be tested by those particulars Extreme nominalism would deny that "the whole is greater than the sum of its parts," but a more moderate nominalism, such as that of Abelard, asserts that the whole is in the parts, holding them together, so that the parts taken in isolation from one another (rather than as parts) are not so great as the parts taken in relation to one another. Thus the parts are not, strictly speaking, derived from the whole (deduction), nor is the whole, strictly speaking, derived from the parts (induction), but rather the whole is the parts interacting with one another. Therefore nominalism such as Abelard's was congenial to the systematizing and synthesizing of law; for in law there can be no such separation of the whole and the parts, the general and the particular, the form and the substance, the ends and the means, as is inherent in realist philosophies.

The paradoxes implicit in the combining of universals and particulars were closely related to the paradoxes implicit in the combining of apodictic and dialectical reasoning. Both were closely related, in turn, to the paradoxes implicit in the scholastic synthesis of faith and reason. The scholastic dialectic was more than a method of reasoning and more than a way of organizing thought. Its criteria were moral as well as intellectual; it was a way of testing justice and not only truth. Thus the scholastic antitheses included not only general versus special, object versus subject, argument versus reply, but also strict law versus dispensation in exceptional cases, precept versus counsel, absolute rule versus

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relative rule, justice versus mercy, divine law versus human law. These and similar "oppositions" were used as a means of logical reconciliation of' contradictory texts, but they were also used for shaping the legal institutions of both the church and the secular society in such a way as to manifest alternative values. For God himself was conceived to be a God both of justice and of mercy, both of strict law and of equity. The paradoxes of divine justice were for the first time systematically applied to human laws. Thus scholasticism was not only a method but a jurisprudence and a theology.