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3. Artes Urbanae: Roman Law and Rhetoric
New Frontiers, 2013
New Frontiers to be its underlying rational structure'. 5 In the seventeenth and eighteenth centuries, various orderings of the civil law were made, showing the infl uences of natural law and the Enlightenment. In some countries, for example Austria and France, they resulted in codifi cations. The last step was made by the founder of the German Historical School, Friedrich Carl von Savigny. Focusing on the works of the second-century classical jurists, he tried to ascertain the central principles of Roman law and created the new scientifi c system of present-day Roman law. 6 When the codifi cations 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 interpolations. 7 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 fi rst 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. 2. 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'. In the introduction to the paper, Stroux described the various stages of legal development in Greek and Roman society. 8 Originally, there was only the oral tradition of law. In both cultures,
In the first book of Cicero’s "De oratore" (1.175-184) Crassus criticizes the shameless (impudentia) of those advocates who neglect the civil law and illustrates his argumentation with 10 legal cases. The aim of the paper is to discuss the function of all of them, arguing that they were not only famous cases well known to the interlocutors of the Cicero’s dialogue, which have taken place in September 91 BC, but also could be regarded as theseis, causae or controversiae practiced in schools of rhetoric in the 50’s of the first Century BC when Cicero wrote De oratore and well known most of all from Seneca’s "Controversiae", e.g. the pronoun “ille” in the first case (1.175: causa illius militis) can suggest the well known real case (cf. Valerius Maximus, 7.7.1), but also a case known because similar topics were studied in schools of rhetoric, the examples concerns exiled foreigner “who had come to live in Rome, having the right to do so provided that he attach himself to someone who would act as a kind of patronus, subsequently died without leaving a will” (1.177) contains no detailed information on person, time and place of the law suit and as such can be regarded as sui generis example of quaestio legalis analysed by Cicero in "De inventione" (2.116-122), while famous causa Curiana (1.180) was already analyzed (without names of parties and advocates) by him in "De inventione" (2.122-127) as an example of controversia ex scripto et sententia. The analysis of 10 legal cases / controversies shows that Cicero’s goal is to authenticate the exercises, inspired by the Greek school theseis, in assessment of particular legal controversies by including them in the real reports on legal disputes of the second century BC and the nineties of the first century BC.
Emory Law School, 2018
Course description: In the thousand years between the Law of the Twelve Tables (451 BCE) and Justinian's massive Corpus Iuris Civilis (530 CE), the Romans developed the most sophisticated and comprehensive secular legal system of antiquity. Roman law is still at the heart of the civil law tradition of the European Continent and some of its former colonies in the Americas, Asia, and Africa, and it was instrumental in the development of international law, the church's canon law, and the common law tradition. The Roman lawyers created new legal concepts, ideas, rules and mechanisms that are still applied in the most Western legal systems. Specifically designed for American law students without a civil law or canon law background, this course introduces the Roman legal system in its social, political, and economic context. The course will cover the fundamental topics of private law (persons, property and inheritance, and obligations); the revival of Roman law in the Middle Ages; and the current impact of Roman law in the era of globalization. No knowledge of Roman history or of Latin is required, and all materials will be in English translation. Learning Outcomes: On successful completion of the course on Roman law students will be able to: (i) demonstrate basic understanding of the foundations of Roman law from a comparative perspective; (ii) analyze and critically evaluate Roman legal concepts and rules covered in the course; (iii) present arguments based on Roman law sources in a well-structured manner (iv) exhibit a working knowledge of Property law, the law of succession, and the law of obligations (contracts and delicts); and (v) analyze the techniques of the Roman law of litigation. Final Examination: 1. The final examination for the course on Roman law will consist of an original research papers (i.e. expanded essay) or a written answer to any of the hypos we will discuss during the course. The title of the paper or the selection of the hypo must be approved by the instructor in advance. 2. The paper requires the writer to analyze a perspective or to argue a point. The paper should be about 4,000 words long. It should contain: an abstract, a main text, and some concluding reflections. The style should be similar to that of an op-ed for the New York Times. The answer to one of the hypos should be about 2,000 words long and should contain quotations related to the Corpus iuris or Roman legal sources.
THE OXFORD HANDBOOK OF ROMAN LAW AND SOCIETY
The Oxford Handbook of Roman Law and Society surveys the landscape of contemporary research and charts principal directions of future inquiry. More than a history of doctrine or an account of jurisprudence, the Handbook brings to bear upon Roman legal study the full range of intellectual resources of contemporary legal history, from comparison to popular constitutionalism, from international private law to law and society, thereby setting itself apart from other volumes as a unique contribution to scholarship on its subject. The Handbook brings the study of Roman law into closer alignment and dialogue with historical, sociological, and anthropological research into law in other periods. It will therefore be of value not only to ancient historians and legal historians already focused on the ancient world, but to historians of all periods interested in law and its complex and multifaceted relationship to society.
A LEGAL HISTORY OF ROME, CHAPTER 5: THE LATE REPUBLIC: THE SOURCES OF LAW
A LEGAL HISTORY OF ROME, 2007
This chapter examines the development of Roman law during the late Republican age. In this period Roman law broke through the barrier of formalism and was secularized and internationalized. It formed a highly flexible system that could constantly adapt to the requirements of social and commercial life.
Traditionally, the place of oratory in Roman law has been approached from two not really unrelated points of view: its place in Roman litigation and the possible influence of rhetoric in Roman jurisprudence and its methodology . Taking as starting point both approaches, I would like to focus on three main aspects, also connecting it with the age of Augustus. Those selected aspects are: the impact of the Augustan Lex Iulia iudiciorum privatorum, which affected the judicial procedure; the second aspect is the effects of the so-called “Augustan Classicism” (concerning the debate about style in oratory) in the language employed in Roman litigation. The third aspect is the influence of rhetoric in Roman jurisprudence and its methodology. All these points relate oratory and Roman law, focusing on the Augustan age. The concise revision of these matters may show some particular features from law and procedure of the Augustan period, but it is clear that the breadth of these subjects has resulted in many of these matters being summarised. This paper will examine in a general way some traits of the way of dealing with these problems in this era.