THE THEORIES OF STROUX AND VIEHWEG

Johannes Stroux (1886-1954) was a German classicist and historian. In 1926, he published a paper entitled ‘Summum ius summa iniuria, ein Kapitel aus der Geschichte der interpretatio iuris’.

Stroux suggested that it was through Hellenistic philosophies and rheto­ric that Rome was influenced by the idea behind the aphorism summum ius summa iniuria. Here, however, the contrast between strict law and equity was incorporated into legal practice and, in that way, had stimulated legal devel- opment.^[76] Rhetoric provided the means for implementation, particularly the so-called status doctrine.

We know the status doctrine because it is described by Cicero in his De inventione but it may have been developed in the second century BCE by the Greek rhetorician Hermagoras.^[77] It basically deals with the question of how to defend oneself against an accusation: by focusing on the facts or on the law.

Stroux noticed that Roman jurisprudence then also changed into a legal science, and he wondered whether this happened under the influence of rhet­oric as well. In his time, it was generally assumed that the scientific approach to law was provided by Hellenistic philosophy, and particularly by the Stoa. Stroux admitted that Stoic philosophy was very influential in Rome, but not its dialectic. He assumed that rather the New Academy and the Peripatetic School supported the development of Roman legal science. Again, rhetoric provided the means, as is shown by the methodological work called Topica which Cicero wrote for his friend, the jurist Trebatius. By drawing up an abstract Topica - that is, a scientific theory of argumentation - the orators offered the jurists a means to systematise their casuistic opinions.^[80] Stroux concluded that the fact that Justinian’s Corpus luris does not contain a com­prehensive theory of interpretatio iuris does not prove that such a theory did not exist in classical Roman law, but that Justinian, in his new codifica­tion, wanted to exclude all signs of interpretation: he even wanted to make interpretation superfluous.^[81]

There are two comments we would like to make on Stroux’s theory.

Theodor Viehweg (1907-88) was Professor of Philosophy and Sociology of Law at the Johannes Gutenberg University at Mainz, Germany. His approach to the relationship between law and rhetoric was very different from that of Stroux. In his book Topik und Jurisprudenz, Viehweg ‘con­trasted the deductive systematic intellectuality that has been influential since Descartes and the more contextual problem oriented style inherited from classical rhetoric’.^[82] On the basis of examples drawn from two millennia of legal history, he concluded that the rhetorical or topical approach is more suitable for law. In the context of this chapter, we will focus on the first part of his book, where Viehweg dealt with Greek and Roman Antiquity.

Because the concept of topica was practically unknown in his time, Viehweg first wanted to discover its meaning and therefore turned to the works of Aristotle and Cicero on this subject (§2). He noticed that Aristotle did not present his Topica as part of logic but as belonging to dialectics. In this work, Aristotle offered a catalogue of ways of reasoning that could help in a discussion of any problem whatsoever to draw conclusions from sentences that were probably true. Cicero, in his Topica, did not add this philosophical context but only created a catalogue of arguments that were based on probability and that could be used in daily life.

Next, Viehweg analysed the concept of topica (§3). He assumed that a problem is any question that seems to allow more than one answer, and that only relevant questions need to be answered. The problem is brought into the context of a more or less explicit and extensive deduction from which the answer is inferred. This context can be called a system. In short, solving a problem involves classing it into a system. If an attempt is made to solve a problem by focusing on system A, then only some problems can be solved, the others cannot: they will no longer be regarded as real problems. If, on the other hand, an attempt is made to solve a problem by focusing on the problem, systems A, B, C and so on may be taken into consideration. Topoi are points of view that can help when choosing a particular system or way of reasoning. Some topoi can be used to solve all sorts of problems; others are particularly suited to solving legal problems.

Viehweg then turned to the Roman ius civile. ‘It is well known’, he wrote, ‘that ius civile [Roman law] is rather disappointing to deductive systematiz- ers’ (§4). The texts in the Digest, for instance, belong to contexts that are problem-oriented rather than system-based. Consequently, the concepts and rules developed by the ius civile cannot be readily systematised; they must be understood to form part of topical thinking. Topica tends to collect points of view and summarise them in catalogues. Ius civile did the same, for law. The jurists proceeded to formulate propositions that could be used as topoi. According to Viehweg, the so-called regulae provide a good example of such propositions. At times, they were collected and summarised. Viehweg thought that the last section of the Digest, book D.50.17, constituted such a catalogue.

Can Roman law be problem-oriented and still be qualified as a science? Viehweg used the Aristotelian distinction between techne (art) and episteme (science) to answer this question; he concluded that the Roman jurists themselves regarded ius as an art.

Viehweg went several steps further than Stroux in connecting law and rhetoric. In our view, he demonstrated convincingly that Roman law was characterised by a problem-oriented way of working, and that the jurists and the orators applied the same topical approach. However, we have two points of criticism; both regard his connecting topica and Roman law. First, Viehweg did not see that Cicero’s Topica cannot really be compared to that of Aristotle, let alone be qualified as inferior. As Robert Gaines has demon­strated, it contains various ways of finding arguments ordered in a systematic way meant for legal practice.^[84] Secondly, Viehweg was wrong in qualifying the regulae as topoi of Roman law. They are concrete precedents rather than abstract ways of reasoning.^[85] In our view, it is certainly possible to find topoi in legal sources like Gaius’ Institutes and Justinian’s Digest. In the following two sections, we will apply Viehweg’s theory to these sources.

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