The two Roman legal professions

Forsyth, in 1849, quoted²⁹ the great eighteenth-century French Chancellor, Henri Francois d’Aguesseau, on the profession of the law: it was â€?un ordre aussi ancien que la magistrature, aussi noble que la vertu, aussi nĂ©cessaire que la justice’.

²⁹ 83 Forsyth, 1.

³⁰ 129 HonorĂ©, 32. initiates, conscious of its moral worth... that conceived itself as the guardian of the rule of law, the living justification of Rome’s claim to rule.’ A pleasing unanimity of view over more than a hundred years - until it be observed that they are talking about two entirely different sets of people. The first set includes Cicero, as its crowning glory, indeed; the second rejects him with insistence and, sometimes, contempt. We are led to ask two questions: (1) Was that which was done by the Roman equivalents of the people we nowadays call lawyers a unified activity? and (2) were they, or was either set of them, a profession? Our English heritage has accustomed us to the different but also odd distinction between barristers and solicitors, and we are aware that that is not a unified activity (although the differences are in process of diminishing), yet we acknowledge the existence of a single â€?profession of the law’. What, in that light, needs to be said about the Roman distinction? It is well enough known, and stressed by HonorĂ©,^[80] that â€?there was a long tradition of hostility between lawyers and orators’, and the very terms HonorĂ© uses - not, e.g., jurists and advocates but lawyers and orators - show that for him the Roman legal profession, the profession of lawyers, excluded the orators altogether.

A historical development certainly occurred in the status level from which advocates were recruited, as it equally did in the case of the jurists. The patroni of the earlier Republic had been noblemen, and the principal advocates in the Ciceronian age were still men whose entree in society would not have been doubted and was neither enhanced nor diminished by their being advocates.^[82] By the time, at least, of the Flavians notable advocates were arising from humbler, and from provincial, backgrounds,^[83] and nobles had become rare in their ranks. That can be inferred from the younger Pliny’s pride in his noble proteges arguing effectively in the court of the praefectus urbi?^[84] though inference is unnecessary in the light of Juvenal’s explicit remark,¹... but it’s the citizen from the lower plebs whom you’ll find eloquent: he’s the one who regularly defends the cases of the unlettered noble’.^[85] That change is to be associated, however, with the general â€?status-to-contract’ direction of movement all over Roman society, whereby services once done as gratuitous officium by people of equal or superior status came to be done as jobs for a consideration by status-inferiors.

The Athenians, with their populist ideal of law, did not permit the rise of legal experts; Roman society had such specialists from its earliest stage. Rome never had a Cleisthenic or Ephialtic revolution, and the more primitive stages of Roman law either actually lasted into, or strongly influenced the practices of, its more evolved times. Thus, in the most basic institutions of Roman law there continued to be an uncodified element, and in its procedural part an element of formalism. Those were two factors in the early development, in Rome, of specialised legal interpreters; another was the substantial role of religious law, so that legal interpretation is held by historians to have grown out of the priestly function.^[88] Also, as has already been said, Roman society remained oligarchic, many aspects of its functioning resting on the relationship of patron and client, which survived the ending of the old formal clientela·, it remained part of a patron’s duty to assist his client in litigation,^[89] and that is reflected in the fact that the ordinary Latin for an advocate, a pleader in the courts, is not aduocatus but patronus^[90] Finally, at Rome (as at Athens) all judges, in the civil and the criminal law, were lay. So technical legal advice was necessary as much for the judges as for the pleaders and the litigants; and that is what produced the line of celebrated iuris prudentes who were what Honoré means by the Roman legal profession; and the responsa prudentium, the �answers of the learned’ counted as one of the sources of law. For pleading your case you had your patronus, and, as at Athens, high persuasive skill was a prerequisite of that.

By the time of Cicero’s middle age there was a virtually complete separation: advocates versus jurisprudents.^[91] No one can resist quoting Cicero’s account of what his friend Aquilius Gallus, a iuris prudens to the core, �used to say when anyone brought him a problem that involved a question of fact’: �nihil hoc ad ius: ad Ciceronem’, �this is not law, it’s Cicero’s job’.^[92] And in the de oratore^[93] Cicero makes the advocate Marcus Antonins claim that knowledge of the law is neither more nor less necessary for a great forensic patronus than other sorts of general knowledge like history or geography or philosophy. He acknowledges that the iuris prudentes are a different set of men, and he knows where to go to get detailed legal advice in a jam: to humble pragmatikoi^[94] Ovid, too, gives testimony to the dichotomy of the profession. Lady Dawn, in the Amores,^[95] is unwelcome not only to lovers: �nec tu consulto nec tu iucunda diserto’, �and you are a pain in the neck to the jurisconsult and the learned (i.e. the pleader)’. There are even two separate historical roll-calls: Pomponius lists the famous jurists^[96] and Cicero the famous advocates.^[97] We must not, for sure, treat the distinction as absolute. Kunkel points out that Aristo, the eminent jurist contemporary with Pliny, also practised advocacy, and adduces some other examples in the Principate. As he says, �besides the pure orators and the professed jurists there were undoubtedly people who were to a greater or less degree at home in either saddle’,^[98] and that will be corroborated when we turn to the evidence of the inscriptions, at the less exalted levels of society.^{[99] [100] But the saddles - the roles - were different, and known to be so.}

The question whether either of those bodies of men constituted a profession must take account of the large modern literature about the nature of â€?professions’, from which numerous relevant considerations spring, such as, first, how difficult defining a profession is said by the sociologists to be, and, secondly, that a profession is perhaps best thought of as what a set of people see themselves as being rather than how the outside world defines it. Thirdly, it seems to be agreed that the origins of the modern professions do not lie in classical antiquity but in the mediaeval universities and guilds. So Moore in The Professions: Roles and Rules⁵⁴ says that for ancient Rome â€?it is not proper to speak of the professional lawyer’ (though if a profession is so difficult to define it ought to be difficult to say categorically what it is not). And fourthly, making a living is not a necessary criterion, so the social historians insist. Notwith­standing which difficulties, certain standard features are nowadays taken as criteria of a profession: that it is a full-time occupation and if people are earning a living at it it is their main source of a living; that it is a vocation, with the normative expectations that that implies; that it has an organisation and elicits professional solidarity; that it is the object of a specific education, leading to accepted standards certified by the organisation; that it has an ethical code related to the interest of the community; and that it has a monopoly in its sphere of activity.

We have, in the Roman case, two sets of people, each with specialised functions, to consider. Should we call either of them a �profession’ in the light of those modern criteria? First, there were no professional associations, nor anything analogous to the Inns of Court; there was, indeed, no Bench or Bar with a capital �B’, and no career structure. Nor, either for jurisprudence or for advocacy, were any formal educational qualifications needed.

By Cicero’s time a technical jurisprudential literature was growing up, in parallel with the immense technical literature on rhetoric. And perhaps we should note here (in deference to the older books, which made much of the matter) that there arose a little specialist terminology and behaviour. In the elder Seneca there is a reference to the tricks and wiles of the basilicani,^[102] who were, it appears, the habitues of the Basilica lulia, the pleaders in the centumviral court.^[103] And one term used for advocates as a group is togati - regular in the imperial constitutions, if perhaps not before. It relates, obviously, to the fact that Roman citizen advocates wore the toga when pleading. Since every Roman citizen was supposed to wear the toga on formal occasions that would not say much, were it not that Romans in general were constantly failing to do so and having to be coerced: the advocates alone seem to have taken the toga as a group-symbol.

Notwithstanding the social scientists, most people will probably think that making a living or not is relevant to the professionality of ancient advocates and jurisprudents. The latter certainly did not gain their daily bread by jurisprudence: they were members of an upper class pursuing an interest in the interstices of politics and managing their estates, though Aquilius Gallus did give up politics after his praetorship in order to devote himself full time to the law. So those men could feel it to be a demanding activity even though not doing it for their living. The advocates equally, at the top level, were not making a living by that activity, though they were achieving other advantages - social advancement and political influence.⁵⁵ Hence the principle that they, like the jurists, and as in England today, could not sue for fees.⁵⁶ At a less exalted social level, however, there is evidence for advocates making a permanent, if precarious, living out of litigation,⁵⁷ such as the brothers Caepasius, who get into Cicero’s Brutus and are the objects of a comic story in the pro Cluentio.⁵⁸

Turning to the criterion of obligations and standards, we can find both bodies of men recognising a sense of duty both to the public and to individuals. The Roman gentleman who held himself out to the citizenry as a jurisprudent was expected to be available with his advice to all reasonable comers, or he would not long be taken at his word; and to the Roman jurists’ sense of their public importance Honore’s remarks already quoted are ample testimony.⁵⁹ As for the advocates, Cicero provides good material for judging their sense of standards. In the de oratore and the Brutus he talks about the great and the lesser advocates of the past: he lists them, tells anecdotes about them and retails

⁵⁵61 David, passim.

⁵⁸ For more on advocates’ fees see Ch. IV, pp. 129-31, below; and on rewards for postulatio see Ch. IV, excursus 2.

⁵⁷Discussed in Ch. IV, below.

⁵⁸Cic. Brut. 242; pro Clu. 57-9; the story is told on pp. 126-7, below.

⁵⁹ Pp. 37-8, above. their views about their job, doing it all, evidently, in a normative spirit, that of one laying down the traditional standards.^[104] The long-lived archaic concept of the advocate as patron also helped to give a dimension ofâ€?client-orientated’ responsibility to the job of the advocates. Ammianus Marcellinus in his attack on the lawyers of his day has a couple of interesting quotations from Cicero not otherwise preserved:^[105] â€?Perhaps to refuse to take on a defence may be done without criticism, but to do it and botch it is unforgivable’, and (in the mouth of Scipio) â€?If it is true that nothing must be so free from taint in public life as a vote or a legal opinion, I for my part cannot understand why a man who has corrupted those things by money is prosecuted whereas if he does so by oratory he is praised. Indeed, I think that to some extent the man who corrupts by eloquence does more harm than he who corrupts by money, for you can’t corrupt an honest man by money whereas you sometimes can by eloquence.’

If, finally, the �profession’ question is posed in terms of standing in the community, it must be said that neither jurisprudence nor advocacy in itself conferred high social status: there was no equivalent of �noblesse de la robe’ or judicial peerages. Jurisprudence was never practised except by persons of senatorial or at least equestrian status; as for advocacy, if practised by persons already of high status it could enhance - as perhaps nothing else - their celebrity and forward their political careers, but it did nothing in particular to commend socially those who practised it at the humbler level.^[106] And neither branch had a monopoly in its sphere. Eloquence everybody could train themselves in, and were at liberty to choose the sphere in which they would exercise it; the rest would depend on the law of the market. As for jurisprudence, we find the emperor Hadrian^[107] still insisting that anyone may hold himself out as a jurist if he is confident of his capacity. That is, again, the law of the market.

The reader may feel that the argumenta in utramque partem in the previous paragraphs leave bewilderment as to how far it is appropriate to speak of the �profession’ of Roman advocacy (or the �profession’ of Roman jurisprudence or the �Roman legal profession’) before the late Roman Empire. In truth, it does not matter: it does no harm to use those convenient expressions for the bodies of people who engaged in those activities, provided that one is not misled by the terminology into thinking that the practical working of Roman law in Cicero’s time and later was more like the way modern systems work than was really the case.

The principal change in the field of law brought about by the Principate was that there existed from then on a final instance and an ultimate source of decision about the law, as about politics and everything else. That led, though only in the course of a long and complex development whose length tends to be telescoped in standard books and its complexity to be understated, to the requirement for a more bureaucratic legal professionalism. The science of the law, the business of the jurists, came, in the end, to be concentrated on providing technical advice to legal decision-makers who were themselves part of the bureaucracy, from the emperor himself downwards: a judge was a law officer. And the art of advocacy, the business of the orators, came to be concentrated on fetching out of the bag the relevant precedents to convince that same judge who was a law officer.^[108] Thus, in the end, the roles coalesced.^[109] By the time of the Dominate, the �later Roman Empire’, the lawyers, with claims now to be both advocates and jurists, constituted a �profession’ that fulfilled most of the modern criteria listed earlier. They were �Beamte’, �fonctionnaires’, part of the militia, the bureaucratic system, and legal training was now a passport to an official career in the public domain. They had a fixed structure of careers and remuneration: you became an advocate at a particular central or provincial court, you stayed there all your career, you rose to the top post, and almost at once retired on pension. Law schools grew up: though it remains uncertain how and when they began, they were flourishing in the fourth and fifth centuries AD, the famous one being that of Berytus. They were �Technical Universities’ with a fixed curriculum, and by Justinian’s time entry to a Bar depended on the presentation of certificates of instruction.

There is an even-handed sketch of the legal profession in the later Roman Empire in Jones’s Later Roman Empire,^[110] to set against the ferocious attack directed at its practitioners by their contemporary, Ammianus Marcellinus.^[111] More representative of the general view amongst modern Roman lawyers is, however, the following, from Roscoe Pound’s paper published in 1944:^[112] �In the fifth and sixth centuries, great improvements took place which gave to advocacy something very like its modern organization. Indeed, the modern continental organization is simply a development of the Roman in this its final form. The advocates ceased to be merely orators. They were not merely trained in rhetoric. They had studied at one of the law schools... ’ As can be inferred from the tone of that quotation, the picture makes a modern Roman lawyer content: it is a familiar picture, and it is a picture of that �autonomous science of jurisprudence’ upon which people are so keen. But the later Roman Empire, to which the picture applies, is not usually so much admired by historians for its institutions; and of its law in particular it is hard to maintain that it was better than Rome had had before: most people would say it was worse - less creative, less responsive. For the reasons why they think so the chapter of Jones’s book referred to above is the best place to start looking, but reconsiderations are needed, and will be embarked on in Chapter V below.

3.