LEGAL SCIENCE AND RHETORIC IN JUSTINIAN'S DIGEST

Justinian’s Digest is generally regarded as reflecting the culmination of Roman legal thought. It contains fifty books divided into titles. Each title consists of texts taken from the work of one or more jurists who lived in a period ranging from about 100 BCE to 250 CE.

On 15 December 530, Emperor Justinian I ordered his Minister of Justice, Tribonian, to make a compilation of classical Roman law.^[99] In the Byzantine Empire, the writings of the classical jurists were still used to support or deny legal claims but the content and authenticity of the texts were often dubious. The new collection, the Digest, was intended to solve that problem. Tribonian and a dozen experts were given wide powers: they were allowed to select texts that were suitable for inclusion, to delete superfluous and out­dated elements, and to solve contradictions. To structure the collection, they used the same order that had been used by the classical jurists themselves, that of the praetorian edict.

Since the second century BCE, when the new praetor urbanus started his year of office, he published an edict in which he announced for what types of claims he would allow a procedure, and how such claims and possible defences could be worded in a formula.^[100] In the course of time, the edicts had grown into a body of law that was ordered more or less according to the formulary procedure. No edict has come down to us, but from the time of S. Sulpicius Rufus, a prominent jurist of the late Republic, the jurists used the edict as a frame of reference to order their opinions.

As we described in the previous section, the jurists of modern times pre­ferred the structure of Gaius’ Institutes to create a new system of Roman law. However, Roman law as described in Justinian’s Digest was regarded as the high point of Roman legal science. The question then arose how it could be established that Roman law was a science. This is the subject of the famous monograph by Franz Horak, Rationes decidendi, published in 1969.^[102] In this book, Horak discusses some 300 texts in order to ascertain whether Roman law was a science. Horak adheres to the commonly held view that rhetoric is irrelevant in this context.

In the following, we will first summarise Horak’s view, adding our comments. Then we will discuss a Digest text that, in his view, ‘proves’ the scientific character of Roman law. We will demonstrate that it does not do so and that it can only be properly explained by connecting it to rhetoric.

Legal science in Justinian's Digest

Whereas Kaser in his definition of legal science only mentioned the exist­ence of a dogmatic system, Horak also required a context of justification (Begrundungszusammenhang). He described justification as a combination of sentences that are connected in such a way that one is considered explicitly as a logical consequence of the other. This connection may exist because a conclusion is drawn from a premise, or because one sentence is connected with another, argumentative one. Horak took into account only those moti­vations that were explicitly qualified as such. In his view, there is a constant interaction between the system and the justification.

According to Horak, it was essential to distinguish the context of justi­fication from the context of discovery. The latter concept serves to find an argument, and particularly requires intuition. The former serves to prove a logical reasoning to be correct. For legal science, only the context of justifi­cation is relevant. Nowadays, however, there is a tendency to involve facts and values in legal reasoning, for instance by using analogy, so that law can only partially be regarded as a science. In this connection, Horak discussed Viehweg’s book.

There are various reasons why Horak disagreed with Viehweg. One of them is that Viehweg does not distinguish between the context of justifica­tion and the context of discovery. As a result, he applies topica to an indis­criminate range of cases and veils the contrast between legal understanding and normative legal policy. According to Horak, Aristotle’s Topica and its historical derivations hardly contribute to scientific understanding as a method to find an argument, and do not do so at all as a method to prove a logical argument to be correct or not.

The main part of Horak’s book consists of the analysis of about 300 texts dating from the late Republic that contain some form of argumentation. They are divided into two groups. In the first group, the argumentation con­sists of deduction from a certain premise, for instance the application of a general or individual legal norm, the conclusion from a legal rule, or deduc­tion from a certain legal concept. In the second group, the argumentation is not so clear. Here, for instance, the premise is uncertain or the deduction is not compelling like arguing from analogy. Only for the first category can the rationes decidendi be qualified as scientific. Therefore, Roman law can only partially be regarded as a science. Although Horak does not want to draw a general conclusion from texts that only belong to the late Republic, he sug­gests that the Roman jurists reached the same scientific level as jurists of our day.

We would like to make a few comments on Horak’s monograph. First, Horak regarded two elements as essential requirements for establishing the existence of a legal science: a kind of system and a context of justification; he analyses the texts as to the context of justification, but he does not specify the system of Roman law. Second, we doubt whether it really makes sense to distinguish between the context of justification and the context of discovery in connection with topoi; the topos is relevant not only to law-finding but also to justify a decision, a rule or a subsumption.^[103] Third, just like Viehweg, Horak dramatically underestimated Cicero’s Topica. In the previous section, we demonstrated that the controversies described in Gaius’ Institutes could only be explained by connecting them to topical argumentation.

In the following, we will try to assess whether Horak’s conclusion about the scientific character of Roman law is correct. Horak dealt with the 300 or so texts in an order beginning with the one that provides the best evidence of the scientific character of Roman law, and ending with the one that is least fit to do so. In the context of this chapter, we want to discuss one of his texts. It seems to make sense to focus on the very first one.

Legal reasoning in D.43.19.3pr

The first category of texts discussed by Horak consists of those that include justifications by applying a legal norm. Horak qualified this category as the most obvious way of justification for the modern lawyer, since it is a simple subsumption under a general or individual norm. In the late Republic, there were not as many laws as there are today, so the Roman jurists did not have much to do in the way of justification by simple subsumption. Consequently, this first category includes but a few texts and has hardly anything attractive to offer as to law.

For the first category, justifications by applying a general norm, Horak admits that it has been difficult to find suitable texts.

Ulpian in book 70 Edict. Hence, also Labeo writes as follows: If you have right­fully been having the use of a road from me, and I sell the farm through which the road you used went, and then the buyer prohibits you, then even if you are held to have used it by stealth from him (for whoever uses a road when prohibited, uses it by stealth), the interdict is still available to you within a year, because in this year you will have used it not by force or stealth or precarium.

Digest title D.43.19 deals with the edictal clause about the private right of way in person and with cattle. It consists mainly of texts taken from the 70th book of Ulpian’s commentary on the praetorian edict. In this text, Ulpian quotes Labeo, a jurist who lived at the time of Emperor Augustus. The facts are relatively simple. Plaintiff A claims to have a right of way through his neighbour’s land. The previous neighbour has sold the land to B, probably without telling him about the servitude. When B sees A walking on his land, he forbids him to do so. A turns to the praetor and asks him to grant the interdict De itinere actuque privato. It is granted, but the new neighbour does not comply, and a trial follows.

The interdictum De itinere actuque privato was a praetorian remedy prohib­iting interference with rights of way. It protected anyone who, in the year before the interdict was issued, had used the way not by force or stealth or precario.^[105] In the opening text of title D.43.19, it is formulated as follows:^[106]

The Praetor says: I forbid the use of force to prevent you from using the private right of way in person or with cattle that is in question, which you have used this year not by force or stealth or precario from him.

According to Horak, the interdict posed a general norm and the only thing the jurist Labeo had to do was subsume the facts under this norm. The only condition for applying the interdict would be that the plaintiff had used the right without force, stealth or precario during the previous year, even if he had done so only during a short time.

In our view, this is not simply a case of subsumption. If so, it would not have been necessary to interpret the wording of the interdict. However, the wording is not clear. When is someone acting clam, with stealth? How is the time limit of one year to be understood? Labeo admits that someone who is using the servitude after the owner has prohibited him from doing so is acting clam. Still, he argues that the interdict should protect that person. The time limit of one year is vague but Labeo does not specify whether even a short time within that year is sufficient. Here, Horak refers to Ulpian who, in another text, argued that even a short time like thirty days would be suf­ficient. Apparently, the words ‘with stealth’ and ‘in this year’ were subject to discussion.

In the procedure, both parties would have presented arguments to support their views. A claimed that B should stop hindering him from using the right of way because, in the past year, he had used it nec vi nec clam nec precario. B could put forward two arguments. First, he could deny that the interdict was applicable because, after he had forbidden A to use the road through his farm, A had still done so and therefore had acted with stealth. Second, he could state that the interdict should not be taken literally. During the previous year, A had hardly used the road or not at all and it would be unreasonable to let him be protected by the interdict. The purpose of the interdict was to protect the use of a servitude on a regular basis.

A could reply to the second argument that the interdict does not specify a minimum time limit for using the interdict, and that it therefore should be applied in his case. Moreover, what is ‘a minimum’? A could refer to the paradox of the sorites introduced by the Greek philosopher Eubulides;^[107] it was not until 200 years later that Ulpian fixed it at thirty days. It was more difficult for A to refute B’s first argument; even Labeo himself had to admit that. However, Labeo succeeded to convince the judge that the words of the interdict allowed it to be granted to A.

From the above, it is clear that the interdict in question does not provide a certain premise and that Labeo’s text does not present a case of subsump­tion. The interdict was interpreted by one party according to the letter, by the other party according to the intention. In terms of the status theory of rhetoric, the status scriptum - sententia was used. The text therefore does not present a case of legal science.

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