Introduction

An appropriate title for this study, though, alas, too lacking in immediate intelligibility to be so used, would have been �The Vicarious Voice’, for it is about A pleading on behalf of B.

A characteristic of the Roman legal order that has certainly not lacked for exploration is that for a certain - indeed a major - period of Roman legal history there persisted a distinction in the organisation of the law unlike anything to be found in modern legal systems:^[7] the advocates had a different role in the system from that of the jurisprudents.^[8] There is a standard view about the reasons for that fact and its significance in the history both of rhetoric and of law, to which this book is intended to import some modification.

Another question which was, indeed, explicitly posed in one older study,^[9] but the answer to which was taken for granted in most of them, relates to advocacy as a profession. If one looks at the late Roman Empire it is evident that working in the law, and particularly in advocacy, was a profession in a modern-sounding sense: one can speak of the �Roman Bar’.^[10] There were rules about fees, about where you might practise, about legal training and qualifications, and so on. If one looks at the time of Cicero most people’s view is that in that age there was not really a profession of the Bar in any modern sense, though the older books tended to assume something very like it.^[11] So a change did come over the formal role and the career-structure of advocates at some time.^[12] Was it an abrupt change, related to the general bureaucratisation from Constantine on, or did it begin earlier and develop more gradually over a longer time-span? At any rate, the question how far Roman advocacy can be described as a profession during the Principate will be considered below.

There is another excuse, along quite different lines, for coming back to questions about advocacy at the present time. Ancient advocates employed and were masters of rhetoric: for some observers that is the most important and obvious fact about them. Rhetoric was then regarded as the theoretical foundation of forensic practice.¹⁰ Now rhetoric has for a long time been an object of scorn, the very word a â€?boo-word’. Rather surprisingly, at a time when Plato’s belief in absolute truth has been out of fashion, his belief has prevailed¹¹ that rhetoric was sophistical and eristical, a way of escaping from, perverting, concealing something called the truth, which could only be got at by other methods. We find ourselves now, however, in philosophy and jurisprudence and every subject under the sun, in the midst of a new fashion for taking rhetoric very seriously.

¹⁰ I assume the reader knows or can find out something about the theoretical structure of rhetoric. See, e.g., 42 Clarke; 275 Vickers, ch. 6 and appendix 491ff., with illustrations from Shakespeare; 50a Corbett.

¹¹ On Plato’s attack see 275 Vickers, ch. 2. The first few pages of Aristotle’s Rhetoric are pervaded with the same pejorative view: they perhaps represent an earlier stage in his thinking; see 146 Kennedy, 82—5.

¹²Coined by R. Stone; see 261 Stone, 480.

¹³See pp. 21-5, below.

¹⁴ The latest trend is a retreat, on the ground that modern rhetoric is a science of true discourse whereas ancient rhetoric was indifferent to truth-values, see 47 Cole, 9. That exaggerates the difference: Aristotle (though see note 11 above) was not writing three whole books on what he believed to be merely pernicious.

The role of advocacy in the legal order during the Roman period has been insufficiently appreciated and too little discussed for yet another set of reasons, arising from the standard attitude to Roman law of modern Roman lawyers from the Renaissance on. What they have admired and concentrated on, and seen as the whole, or at least the essential, nature of Roman law is the great, jurist-made system of positive law enshrined in the Pandects and inherited at the Reception,^[13] and in so far as they have considered Roman law dynamically at all their eye has been on the growth of that system. From that standpoint, naturally, either the rhetoric of the advocates had an effect on the system of positive law or, if it did not, it was at best irrelevant to the real business of the law, at worst actually inimical to it.^[14] There has, indeed, grown up in the last generation or so a renewed interest in the methods of argumentation of the Roman jurisprudents; but precisely because in the classical age of Roman law the advocates did not play the same role as the jurisprudents, advocacy has not yet benefited from that new interest. The jurisprudents, we are given to understand, were groping (by methods indeed worth studying) for some kind of truth, whereas the advocates were paid to use rhetoric for the unattractive purpose of winning their clients’cases.

The alleged quest for legal �truth’ is, however, based on a misunderstanding. Of course, a legal rule is a contingent fact, and you can tell the truth about what it is (i.e. state it correctly) or tell a lie about it. But the rule itself is neither true nor false: it is either so or not so. Legal argument is not in the sphere of truth-and-falsehood but in that of right-and-wrong; it is a search for a way of deciding who is entitled to win within the rules of a game, a contest, an agon. The ancient jurisprudents were using argument to establish and refine upon the rules: the advocates were helping the parties to achieve maximum success within the rules, and, what is more, it was in their field, that of individual circumstances, that truth and falsehood came into the matter.^[15]

If you look at a system of law in the abstract you are naturally interested in the rules.

It is vital, for the subject of this book, not to underrate the litigatory side of the law. Law is multi-faceted in relation to society. It is certainly, on the one hand (and most obviously), a set of rules to be obeyed, made by legislators and refined, interpreted, codified and disputed about by jurisprudents. But it is also a mechanism for enabling people to quarrel without blows, and so for argument (perhaps with skilled assistance) between people; at any particular moment the life of the law is contained in its litigation. Marcus Antonius is made in the de oratore to say in his trenchant way that but for the litigation the academic lawyers would be out of a job.^[16] The agonistic facet of the law is as inherent in modern democratic legal orders as it was in the ancient ones, and deserves evaluation, not depreciation. The opportunity for the �day in court’, the chance to confront the adversary on formal and neutral ground, the satisfaction of�having had one’s say’, are well-understood elements in modern litigation.^[17] And as for antiquity, the conflicts of the courts must be seen in the broader context of the importance of the agon^[18] in the ancient world in politics and literature and much else.

A third aspect of the more socially oriented attitude to Roman law is that it can accept without embarrassment the fact that forensic oratory, at the top level of society, was closely related to politics. The traditionally introverted attitude has always regarded that as not quite nice, and so as a stick with which to beat the advocates for being out for political advantage.

In fact, the procedural part of Roman law has too often been discussed from a very lofty standpoint, as if modern legal procedure had reached a kind of entelechy from which we are entitled to gaze down upon, and coolly adjudicate, the inadequacies of past legal orders. But modem legal orders, including our own, are under a constant fire, not only of internal criticism about the detailed rules but of criticism in terms of public policy; and not the least frequent discussions relate to the role of advocacy.^[21] Take, for example, the striking contrast between the â€?free-for-all’ treatment of evidence in the Roman courts, in which advocates hurled every weapon in their armoury across the arena, and the tight treatment it gets in the modern English courts, with strict rules for the exclusion of what the jury or judge must not be allowed to hear and take into account. There has recently been much discussion of the role of proof in ancient and modern legal orders:^[22] some of it is rather self-congratulatory, implying that we do these things better, with our rules of evidence, than the ancients; but by some it is powerfully argued that the modern English system is too restrictive to correspond to the best interests of public policy.²⁵ So in that regard we cannot afford to be too self-assured when appraising how they did things in antiquity. In fact, even more generally, the extent to which our whole legal order may be too introverted is a matter of much contemporary debate - judges, while declaring the law, opining that it is no longer in the best interest of society, and so on - and there are certainly those who claim that our whole system ought to be more responsive than it is to political and social factors. It does not, therefore, necessarily follow that the Roman way of doing these things was in some absolute sense worse: it was just different, and deserves analysis rather than denigration.²⁶

So much for excuses for imposing on the public another study of ancient advocates and their business. Much of the evidence on which it is based is the �old’ evidence - the speeches, the treatises, the literary evidence of the usual sort; but one of the sources to be used here has virtually never been exploited before, at least to this end, and a word must be said about it. In the papyri, essentially of the first three centuries AD, there are many reports of legal proceedngs, which reveal the advocate at work and quote his remarks, if only in summary (and often verbatim, even though abridged). They constitute a source of exceptional importance, for numerous reasons but especially for the following: First, the literary evidence for the activity of the advocates, as usually presented, more or less runs out after Pliny and Tacitus, whereas the papyri are at their most abundant for the 150 years that follow. Secondly, they constitute day-to-day, bread-and-butter accounts of very ordinary litiga­tion below the level of the metropolitan �great and grand’. And thirdly, in some of them the whole progress of a court case is

²⁵ 234 Sawer, 86; abolition of the irrational exclusionary rules of Anglo-American evidence law’; J.R. Spencer in The Times, 13 August 1992: â€?The rule against evidence of bad character is irrational and ought to be abolished.’

²⁶ That is not a plea for returning to Roman law, but merely a reminder that pots must not call kettles black. Observe the Preface, dated 1939, to R.M. Jackson’s The Machinery of Justice in England, retained in the 8th edition, 231 Jackson’s Machinery, xiii: â€?The attempt to treat law as a pure science, isolated from the society it serves, is succumbing to a more sociological approach. To some extent this means that the lawyer must come down from his high perch.’ spread, if in summary, before the reader’s gaze: the arguments of both sides and even the judgment (and it need hardly be said how much better we should understand some of Cicero’s speeches if we knew for certain what the other advocates said and which way the judgment went).

Those merits might seem to make an unanswerable case for bringing in the papyrological evidence, but the right to use it has to be argued for against the objection that �this is Egypt’. These are Egyptian bureaucratic courts; the litigants and complai­nants are Greco-Egyptian, if occasionally Roman citizens; the substantive law being applied is, except in the case of the Roman citizens, Greco-Egyptian, sometimes purely Egyptian; the tradition of advocacy no doubt comes down from the Hellenistic east. Certainly, to scholars with their eyes fixed on Roman law in the traditional sense, Roman Egypt is at best a side-issue; and even the practitioners of Juristic Papyrology, whose constant study is that anomalous world, have made little of the role of advocacy in it. Yet I do not believe that for the purposes of this study the objection is cogent.^[23] Egypt was, from Augustus on, a Roman province: what happened in its courts was Rome’s responsibility, and the head of the judicial hierarchy was the Roman Prefect. Much of the law we see being administered in the papyri is administrative law - taxpayers trying to get out of paying tax, and so on; and for that part of the law it makes no difference whether the locale is Egypt or anywhere else, indeed it is a blessing for the historian, because administrative law is so scantily evidenced in the other sources. Nor, finally, does it matter that these are Greek-speaking advocates trained in the Hellenistic tradition, because it is essentially the same tradition the Roman advocates were trained in. I propose, therefore, to use the papyri; and the words of my title are carefully chosen in order not to exclude them: not �The Roman Bar’ or �Roman Advocacy’, but �... in the Roman World’.^[24]

In Chapter V an attempt will be made to put straight the historical record about the role of advocacy in the legal order during the Roman period, which, as usually stated or implied in books whether on Roman law or on Roman rhetoric, seems to me to be gravely askew. The standard historical tale is - to state it, for the moment, very crudely - that after the arrival of rhetoric, that pernicious Greek novelty, in Rome in the second century BC the fine old class of patroni, who had been both speakers on behalf of clients and also learned in the law, split up, and in the courts the eristical, politically motivated tribe of rhetoricians prevailed. With the Principate, however, political oratory lost its forum, and judges came increasingly to be bureaucrats with no time or taste for long-winded floridities, and so advocacy declined and fell on evil days; until finally, at least in the east, advocates were corralled into a professional Bar and came to be more law- and less purely rhetoric-trained, so that by the end of the classical age the long split between advocacy and jurisprudence was healed and the law rescued from the Bad Fairy of rhetoric. In the light of the evidence presented in the intervening chapters, in Chapter V the absurdities and paradoxes of that standard tale will be exposed, and the thesis argued that advocacy never declined, but flourished all through the Roman period because it was an integral and structural part of the legal order.

A subject that readers might expect to find discussed in these pages is the influence of rhetoric on the rules of Roman law. That is the one topic related to the theme of â€?advocacy and the law’ that has been much, and continuously, debated in the last sixty years. It is part, indeed, of a wider debate, that as to the influence of Greek legal concepts and institutions on those of Rome, in which scholars remain quite divided;²⁹ but its more particular manifestation has been in the contention that certain concepts, such as aequitas, entered the thought-world of the jurisprudents via the domain of rhetoric and rhetorical theory and the training that all the Roman Ă©lite, jurists, advocates and the rest, received in that theory and practice. My excuses for not providing here any account of an undeniably important subject are (in addition to a conviction that it is too hard for me) first, that to do it justice would require many more pages than can be justified by the scale of the present book, and, secondly, that it is, after all, only tangential to the theme of this study, which is

²⁹ A survey whose conclusions coincide with those of the present author is 285 Watson, ch. 16. about â€?nuts and bolts’ - the â€?how’ and â€?why’ of the doing of advocacy in the Roman legal order.

Let their due meed of praise be given to two long-gone predecessors in - more or less - this field. W. Forsyth in Hortensius or the Advocate (1849) had chapters on the Roman, the French and the English Bars, and was the only author of that age known to me (perhaps, indeed, he was at the end of a tradition) to raise comparative questions about what sort of societies are likely to have a flourishing profession of advocacy. And the book Le Barreau Romain (2nd ed. 1858) by M. Grellet-Dumazeau gave a full and judicious survey of the evidence then available, enhanced, if not quite by the broad comparative sense of Forsyth, nevertheless by a sharp and sensitive percipience. Those are the admired predecessors that the present book seeks to follow even if it cannot emulate.

*

Some prefatory matters remain:

(a) Terminology. The terms â€?barrister’ and â€?counsel’ will be avoided, in order not to raise false analogies: I stick throughout to â€?advocate’.³⁰ On the other hand, though there will be argument presently about whether those advocates can properly be said to have belonged to a â€?profession’, I nevertheless speak sometimes of â€?the profession’ because there is no other un-elephantine collective term in English. Thirdly, â€?Roman lawyer’, in this book, will always and exclusively mean a modern - i.e. a post-Roman - exponent of Roman law: for the lawyers of Roman times other phrases will always be used, such as â€?Roman jurist’ or â€?Roman advocate’, as the case may demand. And, finally, â€?jurist’ and â€?jurisprudent’ and their adjectives are used in what follows as synonyms.

(b) Designation of a source·. I confess to an idiosyncrasy that some will find tiresome: I have never been totally convinced that the Dialogus de Oratoribus is by Tacitus. Out of scruple, therefore, it is here designated throughout by its title (Dial.) alone.

(c) Apparatus: For references in the footnotes to the ancient

³⁰ Though no word in any language quite fits and squares with the meaning! s) of the â€?same’ word in another language. On aduocatus, etc., see Ch. IV, excursus 1, below. literary sources standard abbreviations are used. A finding-list and expansion of the abbreviations used for the non-literary sources precedes the Bibliography, below. References in the footnotes to books, articles, etc. are coded: each begins with a number in italics, which is the serial number of that item in the Bibliography, where fuller particulars are given.

(d) Professor M.H. Hansen of Copenhagen inspected and, needless to say, improved the pages about classical Athens; he has my warm thanks.