Humanitas and the law

It is proposed to deal with this topic in one continuous discussion taking in both the Republic and the Principate. The topic lends itself admirably to such treatment. For similar reasons clementia as a whole is being reserved for a later chapter.

Cicero strikes something of a keynote on humanitas and the law in his speech on behalf of P.Sestius in 56:

Before the appearance of natural law or civil law there was no settled order. But mankind was teachable, and wise men [the Stoics] brought people from savagery to justice and mildness. First came divine and human law, then communal public institutions, and finally states and cities. The difference between savagery and a life refined by humanity [vitam perpolitam humanitate] is the difference between violence and law [ius]. If violence is to be eliminated law must prevail, and so must the courts on which law depends.

(Sest. 91-2 adapted)

The passage states the Stoic belief that humanitas can only exist when founded on law. Cicero repeated the sentiment in the same year in his defence of M.Caelius: â€?The Wolf-Men [Luperci] were a savage, rustic fraternity...before the introduction of humanitas and leges’ (Cael. 26). Demosthenes had identified a similar link between philanthropia and the law.⁴⁶

The basic cultural aspect of humanitas is not overlooked by the judicial model. In 62 Cicero made the following points on behalf of the poet Archias, charged with falsely assuming Roman citizenship:

All arts pertaining to humanitas have a certain common bond and belong.to a common family. Pleading for a distinguished poet before a highly literate audience and a jury steeped in humanitas, I may be allowed to enlarge on the pursuits of humanitas and literature. Let my client be raised by your humanitas rather than cast down by your disapproval.

(Arch. 2-3, 31)

Cicero’s frequent appeals to the jury’s humanitas gave that concept the quality of a cultural guide to the right decision of a case. A composite illustrates the technique:

I have no doubt of your wisdom and humanitas, and I ask you not to punish talent, industry, humanitas and virtue; you have, I am sure, been persuaded not by my words but by your own humanitas. Your humanitas is deeply moved by my account of Oppianicus’ crimes; I leave the case to your kindness and humanitas. The treatment of Heraclius demands that you listen with humanitas. You should, as jurors endowed with wisdom and humanitas, give careful thought to the fact that the accused is at a disadvantage when the accuser is a tribune.⁴⁷

Cicero also refers to laws of humanitas. The XII Tables rule allowing unintentional killing to be purged by giving a ram as compensation is �a tacit law of humanitas which punished intention, not accident’ (Tull. 51). We also note �the law of common humanity’, �the laws of duty and humanity’ (Place. 24, 57), as well as a passage in the speech on behalf of Deiotarus:

By bringing capital charges and suborning slave witnesses Deiotarus’ family have violated every law of life, common welfare and humanitas. Have they come to Rome to subvert its laws and precedents, to besmirch our community’s humanitas by domestic terrorism?

(Deiot. 30, 32)

There is an unexpected twist in Cicero’s very first use of the word humanitas. Defending P.Quinctius in a civil suit in 81, he addresses the following appeal to the single judge who is trying the case:

To sell a man up is something that decent people hesitate to do to their adversaries. It is worse than an honourable death. No decent man wants to put a citizen to death; he even spares strangers and enemies for the sake of public opinion and common humanity [communis humanitas]. My client begged his adversary to show compassion [i.e. by not driving him to the wall financially]—if not for the man himself, at least for humanitas.⁴⁸

We do not know the outcome of the case, but the point was sound enough in law to be put to the judge, who happened to be the eminent jurist, C.Aquilius Gallus.

Cicero was not the only man in Late Republican Rome to detect the link between humanitas and the law. Caesar tells us that the urban praetor Trebonius (Dolabella’s future victim) thought that in the critical days of the civil war jurisdiction should be exercised with clemency and moderation. He therefore framed his edict with such aequitas and humanitas that no one found it necessary to appeal against Caesar’s fiscal arrangements. Consequently no one availed himself of the services of another praetor, M.Caelius Rufus, who had placed his tribunal close to Trebonius’ chair in order to assist anyone who wished to appeal (Caes. BC 3.20).

Cicero’s ideas on humanitas and the law went down to the legal science of the first two centuries AD. The most striking feature is the classical jurists’ handling of Cicero’s perception of humanitas as a guide to the right decision. This was now elevated to the status of a specific canon of interpretation; it was one of the avenues for the importation of notions of equity into the law, it fostered the correct application of legal principles. For example, when Marcus Aurelius and Verus relaxed the penalty for handing in unprovable documents where that appeared to have been done by mistake, the relaxation was granted �in conformity with their humanity’ (pro sua humanitate) (D. 48.10.3). They could have spoken of aequitas instead of humanitas without the slightest difference in meaning. The same emperors noted with approval �the excellent rationale of humanity’ (egregia ratio humanitatis) shown by a governor who rescinded his conviction of a slave for homicide on learning that the slave had only confessed in order to avoid returning to his master (D. 48.18.1).

The jurists also display pertinent uses of humanitas. Ulpian, writing in c. AD 200, notes the case of a man who induces another’s slave to desert to him. Ulpian excuses him if he receives the slave in order to return him to his master, or is moved by humanity or compassion (humanitate vel misericordia ductus).⁴⁹ A fragment of Salvius Julianus, discussing the interpretation of a will, says of an opinion of Celsus that it is â€?prompted by humanity’ (sententia humanitate suggerente) (D. 28.2.13 pr.). And Ulpian says of an opinion of Julian himself that â€?it has humanitas’ (D. 44.44.7.1). These uses of Julian are important. He was a valued member of the consilium of Marcus and Verus,⁵⁰ who issued the two humanitas rescripts cited above. Those rescripts should be enough to put paid to the widespread belief that all references to humanitas by classical jurists are interpolated.⁵¹ One of the decrees, concerning the governor who sets aside a slave’s conviction, is cited verbatim by Ulpian who even gives the names of the governor and the slave (D.

48.18.1.27). Julian may well have been the draftsman of those rescripts.⁵²