INTRODUCTION

Modern Romanists generally assume that Roman law was completely separate from rhetoric. Whereas Roman law was a science, rhetoric was not. Rhetoric was a skill developed by the Greeks that was used by advocates to pervert the truth.

In the twentieth century, this view has been challenged several times. First Johannes Stroux and later Theodor Viehweg argued - be it in different ways - that Roman law was closely connected to rhetoric.^[69] Their ideas trig­gered much discussion, but failed to convince the majority of Roman law scholars. Over the past ten years or so, we have also tried to demonstrate that Roman law and rhetoric were closely connected, but so far, our work has not changed the commonly held view either.^[70] The reason may be that we have not yet addressed the basic assumption that Roman law was a science and rhetoric was not. We will do so now.

The assumption that Roman law was a science is based on another sup­position: that the concept of science, including legal science, already existed in classical Antiquity. However, it was only in the sixteenth century that legal science as we know it now came into being.^[71] It originated in the minds of the French legal humanists, for example Donellus. In the words of Peter Stein, ‘he assumed that Justinian’s law must be logical even though it did not appear to be so, and applied himself to identifying what he conceived to be its underlying rational structure’.^[72] In the seventeenth and eighteenth centuries, various orderings of the civil law were made, showing the influ­ences of natural law and the Enlightenment. In some countries, for example Austria and France, they resulted in codifications.

When the codifications of the nineteenth and twentieth centuries turned Roman law into a historical phenomenon, scholars - now called Romanists - began to apply this legal system to Roman law as well. Because classical Roman law was regarded as the basis of modern private law, it was sup­posed to share the same rules and principles. However, some of these rules and principles did not belong to classical Roman law. At the same time, Roman legal practice was familiar with rhetoric, but rhetoric was excluded by modern legal science. Consequently, problems arose when legal sources like Gaius’ Institutes and Justinian’s Digest were studied. These problems were sometimes ‘solved’ by adapting the text to the theory, for instance, by declaring words or sentences in the Digest to be sixth-century interpola- tions.^[74] Sometimes, however, they were not solved at all because the rhetori­cal aspects of, for instance, the controversies in the Institutes of Gaius were ignored. Problems also arose when so-called rhetorical sources like the pleas of Cicero were studied. These problems were solved by regarding the refer­ences to legal practice as biased and therefore as unreliable. As a result, a Roman law was (re)constructed that was not always in accordance with the sources.

In this chapter, we will first discuss the theories put forward by Stroux and Viehweg, adding our comment. Then we will deal with the role of rhetoric in Gaius’ Institutes and in Justinian’s Digest. We hope to make it clear that Roman law was not a science in the modern sense and that law and rhetoric belonged together as two sides of the same coin: legal practice.

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