Inde

accusatorial systems of law, see �adversary system’

actioprima, secunda, 129; 132-3 �Acts of the Pagan Martyrs’, reasons for excluding, 60-1 administrative law, 5; in Egypt, 8;

47-8, 53-4; 56; 192; see also �fiscal law’ adversary system, 13; 14-15; 132;

139;197 advocates/advocacy, purpose, 196-7;

and jurists, 2; 4; 16; 196-7; Greek tradition of, 8; not legal advisers or protectors, 13; 196; unknown in some legal orders, 14; supposed to be gratis at Rome, 34; gratis to those in need, 125; 130; 186; fees, 129-31; in Greek international arbitrations, 35-6; roll-call of, 41; Kunkel’s list, 180; as profession, 41-5; frequency of use in papyri, 62-4; multiple, 63; 73-4; 78-9; 80-1; 82; 83-4; 85; 86; 87; 97; 98-9; 127-9 (reasons, 128); competence of advs.

preparation (see also �dock-briefs’), 136-8; parties must brief as to law, 139; theatrical side, 138; defence role preferred, 138-9; defence of guilty, 139; regard jurists as failed advocates, 143; origin of aduocatus, 148; as representative, 158; politicised, 9; 174; 176; alleged decline of, 9; 174; 180-7; merge with jurists again, 175; alleged low birth and dubious morals, 180; entry-point into bureaucracy, 190; advocate, jurist and judge, 192-3; source of fresh air from outside law, 196; not amicus curiae, 196; implies possibility of choices, 197; uses ordinary language, 197; see also �Bar’, �orator’, �rhetoric’ aduocatus fisci, 48; 52-3; 152; 190 aduocatus rei publicae, 152-3 aequitas, 9 Africa, proconsular Bar of, 64; 151;

187 agon, 4; 5; 6, in the ancient world in

general; 15; 163; 197 Alexandria, noisy courts at, 187 altercatio, 76; 129; 134; 184, n.66 America, advocacy in present-day

Courts of, 16 amicus curiae, Roman advocate not,

91; 163; 196 Ammianus Marcellinus, his attack on the legal profession, 46; his four types of advocate, 189 antikategoria, 77 Antinoopolis, special status of, 84-5;

90 appeal courts, modem, 27-8 archidikastes, 99-100 argument, importance of, 4; 6 assessores, 178, n.30; Ambrose as, 190; 191; 193; see also �consilium’

Athens, contrasted with Rome, 2;

30-4 auctoritas, 32 auditoria, 136 �autonomous legal science’, 20; 22-3;

176; 177; 178-9; 197

Bar/barristers, the �Roman Bar’, 1 (but the use of the term misleading, 38); in the Later Roman Empire, 2; whether a profession, 2; 41-5; work of modem barristers, 16-17; provincial Bar of Africa, 64; 151; 187; already in fixed Circuits in 3rd cent.

bureaucracy and advocacy, 15; 45; bureaucracy and the legal order, 188; late Roman law as handmaid of bureaucracy, 175-6

Caracalla, ipsissima uerba of, in court, 92-4

career structure of law in the Later Roman Empire, 191-4 Carneades, Roman disapproval of, 173

centumuiri/centumviral court, 42; 133; 181; 184-5

Christians, mixed law and politics in Pliny’s letter, 52

Cicero, as advocate, 1; says little about fact-finding, 19; judges evidence by personalities, 19; his Topica, 23; crowning glory of �Roman Bar’, 38; 'nihil hoc ad ius’, 40; 142-3; on standards, 44; are his speeches constructs post eventum? 65; 134; 162; his civil law speeches, 121; 125; 132; as funny man, 138; claims his Verrines a defence, 138, n. 130; bamboozles jury, 139, n.138; on stating opinions you do not hold, 140; untypical, 145; claims decay of eloquence, 186 cities, disputes between, 50 civil law, Cicero’s speeches in, 121;

125; 132; regarded as of minor importance, 125; 132 and n.84; advocates in, 125; 136; 194; special style appropriate, 132

claques, 183 cliens and patronus, 31; 122-3;

coloniae, etc., as clientes, 123; see also 'patronus’ cognitio extra ordinem, 56-7; 59; 66;

67, n.45; 133; alleged decline of set speeches in, 135; unifies law of procedure, 158,193 cognitores in litigation, 158 consilium, magistrates and indices consult, 66; 99; 193; of Caracalla, 94; see also �assessores’ constitutions, imperial, 99; 104-6 continua oratio/seX speeches, 134;

reaction against, 135 controuersia, 25; controuersiae

agrorum, 53-4 controuersiae, the, 163-7 conuentus, Bar at the, 63; 64; 94-5;

99; 183; 187

cost of having an advocate, 131.

criminal law, 5; 47; 194; see also

'quaestiones’

�Critical Legal Studies’, 25-6; 196 current of decisions, 80; 82; see also

�constitutions’; �judgments’; �precedents’

declamatores, no good in real courts, 165

decline of standards, alleged, 168 defence, role preferred, 14, n.4; 138-9;

more likely to involve extempore speaking, 133; of humble persons, 125; of guilty persons, 139 delays of the law, in Egypt, 68; 91; see also �dilatoriness’ delegations, 51 demurrer, see �paragraphe’ denigration of role of advocates, 172-4 dialectic, see �Greek dialectic’ dilatoriness of the law, in Egypt, 68;

72-3; 89-91; 108 direct, indirect speech, 61-2, and Ch.

Ill, passim diuisiones, 138 �dock briefs’, 63; 66; 90; 95; 97; 100;

107; but cf. preparation, 136-8 documents in the case, see �papers’

education of advocates and jurists, 42

Egypt, courts of, 8; 59; justification for using evidence from, 8; in very ancient times advocacy allegedly banned, 14; see also �papyri’ Emperor, present as judge in Dmeir inscription, 67; advocacy in his court, 181,184 equity, 93, n.150 evidence, treatment of in Roman and modem courts, 6-7; failure of jurists to make any law about it, 179; see also �facts’, �proof

facts, 16-17; 143; see also �evidence’, �proof

fees, no suing for, 43; 129-31 fiscal law, 52-3; see also �administrative law’

Greek dialectic, influence of, 24 Greek law, influence of, 9 Greek rhetoric, influence of, 173 guilty persons, defence of, 139

Hellenistic advocacy, 35-7

2. :£

in iure, apud iudicem, 133 incolae, 55

in fames personae, not allowed to postulare, 159

inquisitorial system, 14-15; see also �adversary system’

interface of law and politics, etc., 46-7; 52; 55; 56; see also �mixture’ interpreters, 62; 104, n.193; 105; 108;

112

inuentio, 24; 29 irrelevance, deliberate or not? 66;

140-1; inadvertent, 141

iudex, job of, 17; is a layman, 18; 40; 193; importance of knowing your iudex, 170; later, is the magistrate, 174; haste to�get on’, 27; 135; 174; 184; jurisprudentially trained, 174; jurist acting as iudex, 175 iudex datus, 73; 78; and Ch. Ill, passim

iudex pedaneus, 193 iuris prudentes, prudentia/iuris peritus, roll-call of, 41; responsa prudentium, 40; epigraphical evidence, 154-5; alleged virtues, 172; some also advocates, 175; 191; chosen to serve as unus iudex, 175; alleged decline of standards, 177; 187-8; limitations, 179

Johnson, Dr, aphorism about defence of guilty, 139

judgments, recorded in papyri, 68; buck-passing, 78; citation of previous, 80; 82; 195; see also �current’, �precedents’, �constitutions’

jurists, see iuris prudentes jurist-rhetor, alleged Byzantine, 192 jury trials, decline of in modem courts, 27; see also �criminal law’, �quaestiones perpetuae'

Later Roman Empire, Bar in, 2; 45-6; 175; 189; continuity into, 102; dichotomy of East and West, 177; periodisation of law in, 178; career-structure of law in, 191-4; intellectual level of law in, 194-6 law, Roman, creative period of, 176 law schools (i.e. academies), 45; 194-5 lay judges, 40

�legal science’, dangers of use of the term, 4

litigant in person, 1; at Athens, 31 litigation, importance of, 5; publicity of, 18

liturgies, leitourgiai, 88; 89; 98; 111 bis; see also �munera’

living, making a, 43; see also �fees’ local communities, law relating to, 48 local courts, shortage of evidence, 187; Ch.

Lucian, not a logographer, 35, n.23; 118, n.244

metics, 31; see also �logography’ mixture of kinds of law, 50; 55; 67 morality and law, 22; 26

More, Thomas, bans advocacy, 14 multiple advocacy, see �advocates’ munera, 55; corvee, 110; angareia, 112; see also �liturgies’ names for advocates, see �words’ �Narratio’-papyri, the, 61; 64; 69;

113-18; see also �petitions’ nomikos, 65; 69; 74-5; 84; draws up a document, 86; 88; (?) in error, 98;

112; in the epigraphy, 155-7 �nouvelle Rhetorique, la’, 3; 21-6;

165, n.294

officium iudicis, 132 oral advocacy, alleged decline of in

modern courts, 27-8 oratio obliqua, recta, see �direct,

indirect speech’ orator, orator/oratory, orator as

statesman, 121-2; for defence of the wronged, 122; 138-9; physical demands, 135-6; origin of term orator, 147; use in the epigraphy, 153-4; published speeches, 167-8;

185; Cicero complaining of decline, 186

ordo iudiciorum, 56; 68; 85

papers in the case, called for, 97; 109 papyri, evidence of, 7-8; Ch. Ill, passim paragraphe/paragraphomai, 92; 94;

104; 112; see also �demurrer’ parties to the action take part in the argument, 65 patronus/patroni, 9; and clientes, 31;

44; 122-3; 162; 172; aristocratic, and later less so, 39; knowledge of the law not necessary for success, 40; granted under lex repetundarum, 125; 161; multiple advocacy advertises patronatus, 127; origin of the word, 146 periods of law in Later Roman

Empire, 178 persuasion, rather than proof, 20; is

more than proof, 20; see also �proof petitions, 60; 64; initiating

proceedngs, 67-8; 68-9; 84; 90-1;

99-100; comparison of petition and speech, 100-1 cf. 101-2; 104; petitions and the �Narratio’-papyri, 113-18; rhetoric in, 114 philosophy, argument and law, 17-26 plaintiffs, humble, apparent mistreatment of, 70-2 and 75-6; 93; 99-100

plane rhetorike, 79; 89; 105-6 Plato, and rhetoric, 14, n.ll; and synegoria, 32

Pliny the Younger, his proteges, 39; 129; 181; correspondence with Trajan, 51; pleading along with others, 128; on haste, 135; and Regulus, 137; justifying his prosecutions, 139; Pliny and the centumviral court, 181; the �Tacitus or Pliny’ story, 182; ambivalence about state of the profession, 185; his conuentus, 187 politics, and law, 6; 18; and oratory, 120; and multiple advocacy, 128 postulare/postulatio, 159-60 practical effects of the legal order, 5 praefectus Aegypti, court of, Ch.

praefectus urbi, court of, 39; 181 praetor’s edict, granting an advocate, 64; depostulando, 159-60 pragmatikos, 41; 150; tes poleos, 153 precedents, statutes, etc., quoting of;

72; 87-8,88-9; 91; 99; 104-6; 144; 195; see also �current’, �constitutions’, �judgments’ Prefect of Egypt, see praefectus Aegypti presumptions instead of proofs, 19 priests as earliest legal interpreters, 39

principate, consequences of for the law, 45

probable truth in the law, 21 procedure, legal, importance of, 1; in modern systems, 6 profession, advocacy as a, 2; necessary though misleading term, 10; the two Roman legal professions, 37-45; definitions, 41-5; alleged re-unification, 9; 175; 178; 189-93

proof, 17-21; theory of, 17-21; not proof but persuasion, 20; �global’, 20; different attitudes of Greeks and Romans to, 34; see also �evidence’, �facts’, �persuasion’ prosecutor, role relatively unpopular, 138-9; see also �defence’ quaestiones perpetuae, 47; survival of, 80; 194; see also �criminal law’ qualifications, professional, 2; 42 Quintilian, exposition specialist, 129;

Institutes as a source, Ch. IV, passim; and res iudicatae, 144; and witnesses, 145; defence of controuersiae, 166; and Excursus 4, passim, 167-71

rationality of law, 22 �representative’, advocate as, 158-63 restitution on ground of incompetence of advocate, 141-2

reunion of advocacy and jurisprudence, 156-7

rewards for prosecution, 129, n.63; 160-2

rhetor as term for advocate, 62 rhetoric, theoretical foundation of forensic practice, 3; a �boo-word’, 3; rehabilitation of, 3; �La nouvelle Rhétorique’, 3; 21-6; relation to truth, 3; influence on substantive law, why not discussed here, 9 (but see 179); training of the élite in, 9; �constitutive rhetoric’, 26; J.B. White’s definition, 26; Athenian ambivalence about, 34; specialisation, 40; living tradition over centuries, 66; rhetorical artifice in papyri and inscriptions, 72; 93; 100-11; 116-17; unity of the types of oratory, 120: �noisome weed’, 172; 188; Greek oratory, influence of, 173; see also �advocates’, �orator’

Roman lawyers, modem, 4

�Schools’, the, of jurisprudence, 179; 195; see also �law schools’

�Second Sophistic’, the, 48-9, 51; 186-7 secretarium, 102 Senate, the, as court, advocacy in, 181 sheep, of orphans, stolen, 101-2 social questions about the law, 5;

social status of the profession, 44 specialisms, 128-9 standards of conduct, 43-4; see also

officium iudicis status (the term of rhetoric), siaius-theories, 21 status to contract, 39; 173 stay of proceedings, 96; 97-8 Sunday, adjournment on the Lord’s

Day, 113

Supreme Court of the USA, appeals in, 28

syndikos, 48-50; 92; J.04 synegoros/synegoria/synegoreo, at

Athens, 32-4; elsewhere, 35-7; 49; in courts of Egypt, 59; 62, 73; 98-9

testimony, handling of, see �witnesses’

thetes, 32

time-limits to speeches, 67; 94 togati, 42-3

Topik, repertoire of inuentio, 23-4;

Topik und Jurisprudenz, 23 transcripts of forensic speeches, 61 truth, relation of rhetoric to, 3; 4-5;

probable truth, 21; seducing the judge away from, 171

uadimonia, in the Puteoli Tablets, 125

vulgar law, 177

witnesses, as testimony to character, 34; 144; no training on the handling of witnesses given in the schools, 166

words, antiquity a culture of, 197; words for advocates, 146-58

⁶ 239 Schmidt, knowledge of which I owe to a reference by the late Prof.

⁶² Though in sufficient detail for the editor to say at one point: â€?Isidora’s advocate is