Excursus 3. The controuersiae

Few things have done more to induce everybody to think that advocacy was no more than an excrescence on the legal order in the Roman period than the Senecan and pseudo-Quintilian controuersiae, the imaginary law-cases that were the staple exercises in the schools of rhetoric.

English-speaking scholarship picked the new doctrine up from the study by Lanfranchi;²⁸⁵ S.F. Bonner took it on board;²⁸⁶ Clarke, while yielding to no one in his contempt for the

²⁸²On Greek declamation see 230 D.A. Russell.

²⁸³Pp. 4-5, above.

²⁸⁴See 55 Crook.

²⁸⁵1 56 Lanfranchi.

²⁸⁶1 7 S.F. Bonner.

rhetorical schools,^[501] seems to have accepted Bonner’s conten­tion that the alleged �laws’ on which the controuersiae claimed to be based were �fairly closely related to contemporary Roman law’.^[502] Parks also accepted it;^[503] and Winterbottom, in his Loeb translation of the Senecan controuersiae, echoes the prevailing notion in his comments on some of the themes.^[504] The arguments used are that correct Roman legal terminology crops up from time to time in the controuersiae·, that pirates and kidnapping and such-like paraphernalia of their themes were not unknown to the real world in the Roman age; that some of the �laws’ on which each theme is based were, if not actual Roman statutes or edicts, at any rate more or less like principles that we can glimpse being stated by the jurists or observe in the practice of the courts; and that provincial practice was not always on all fours with the law as stated by the metropolitan jurists, and the controuersiae may reflect provincial practice.

That case is lacking in cogency. The identification of correct legal phrases would only be significant if they were used in equally correct and appropriate contexts; and the discovery of the odd alleged rule or principle that looks a bit like a rule of Roman law is no good at all unless it is in a context in which it plays its full Roman part. The search for nuggets of �proper’ Roman law in the controuersiae has, in any case, dredged up mostly marginal items; the proper comparison is of whole range with whole range, and the overall tone and �feel’ of the rhetorical sources remains quite different from that of the jurisprudential ones, even in the most imaginary cases put up in the Digest.^[505] An argument could be constructed that since the bulk of real-life Roman law was criminal and administrative rather than civil the imaginary cases in the Digest are as artificial and unrepresentative as those in the controuersiae, and that the proper course was to agree that both sides, the advocates and the jurists, made use of artificial examples in teaching. But that difference of�feel’ remains, and is apparent when �real’ examples

IV. Advocacy in the traditional material 165 do crop up in the controuersiae, as they occasionally do. What is more, we have earlier seen plenty of â€?real’ cases and â€?real’ arguments in the papyri, and the controuersiae are nothing like those, either. Parks,²⁹² for all his concern to establish the relevance of the work of the schools to the practice of the courts, when it came to the themes of the controuersiae, was reduced to arguing that there was much to be said for the rhetorical training in its own terms, as promoting the general power of argumentation by the use of problems deliberately divorced from the particularities of day-to-day practice.²⁹³ Clarke, too,²⁹⁴ wrote that the rhetorical system â€?provided the instrument for discovering all the topics of argument inherent in a particular situation’.

It is well known that few critics have ever assailed an institution as scathingly as the schools of declamation were criticised by some of their contemporaries. The Satyricon²⁹⁵ and the Dialogus²⁹⁵ are utterly condemnatory, and have no trace of what was suggested above to be the valid justification; and in the reminiscences of the bien pensant eider Seneca we encounter time and time again the trenchant remarks made about the rhetors by their contemporary practising colleagues.²⁹⁷ The part of the story that Parks, for example, shied away from was the contemporary evidence that the leaders of declamation were mostly no good in a real court. Seneca tells the story of Albucius Silus’ tactical error in the centumviral court through offering the other side, in a rhetorical flourish, the chance to swear a iusiurandum - which was accepted,²⁹⁸ and the story of the discomfiture of Porcius Latro defending a relative on trial in

²⁹²207 Parks, 92-4.

²⁹³ 12 S.F. Bonner, also having it both ways, used that argument; so also Winterbottom in The Minor Declamations Ascribed to Quintilian, ed. M. Winterbottom. Berlin/New York, 1984, Introd. xvii-xviii.

²⁹⁴ 42 Clarke, 68. Note how close that remark is to the contentions of La nouvelle Rhetorique, e.g. Viehweg’s view of Topik as a repertoire of invent io, see p. 23, above. That philosophical school really did hark back to ancient rhetoric.

²⁹⁵Petron. Satyr. 1-2.

²⁹⁶Dial. 31 and 35. See 27a Brink.

²⁹⁷Sen. controv. II 13,3; III Praef., esp. 13f.; VII Praef. 6-7; YX. Praef.

²⁹⁸Sen. controv. VII Praef. 6-7. For another story about Albucius see p.

Spain and begging for the case to be heard indoors because the noise put him off.^[506] Seneca refers also - most interesting, this - to Furius Saturninus the declamator, who was actually better at the real thing!^[507] The criticisms are directed at the artificiality and irrelevance of the themes, but also at such points as that the schools give no training in the examination of witnesses^[508] and that in the school disputes the declaimer is playing the role of the litigant and not of the advocate.^[509]

Quintilian gives a �realist’s’ defence of the curriculum of the schools,^[510] not lacking in cogency. Narratio, laus, uituperatio, etc., are required in the courts, and it is expedient that the schools should teach them. The subjects of declamation ought, for sure, to be �as close as possible to reality’:^[511] sponsiones and interdicta, not magic and plagues and oracles; but if declamation is properly directed towards real practice it is a good thing. Furthermore, he asserts, there is a reasonable relationship between some topics of the schools and some real-law situations:^[512] between abdicatio in the controuersiae and disherison and querela inofficiosi testamenti in the courts, or between mala tractatio in the controuersiae and divorce and the actio rei uxoriae, and so on. And the topic of scriptum versus uoluntas, one of the main rhetorical categories, is, he says, the staple of the forum and therefore rightly the staple of the schools.^[513] But Quintilian’s own admirable practice tells, ironically, against his defence, because his own examples are frequently appropriate to real court practice,^[514] thus providing a good index of what was the matter with most of the controuersiae.

One other, arguably better, strategy,^[515] instead of searching, misguidedly, for traces of Roman positive law in the controuersiae, is to look, in those controuersiae that most nearly correspond to Roman actuality, for signs that the teacher was interested in teaching his pupils to argue in a lawyerlike way, i.e. to play an effective part in the procedural part of the law. That search yields a significant, if scarcely large, harvest, sufficient to support the suggestion that advocates were expected to engage effectively in �proper’ legal argument as and when necessary, and that teachers were correspondingly expected not wholly to neglect �proper’ legal argument in their curricula; though for both them and - be it remembered - the professed teachers of law, the imaginary and the real case were equally useful pedagogically.