748. Cicero and the Jurists by Jill Harries

Rostra- from here the voice of liberty once spoke!

748.  Cicero and the Jurists by Jill Harries.  This has been a most interesting book.  I have tried to select the author’s main points:

Legal discussion was not separate from public discourse in ancient Rome as it is in modern times.  As can be learned from Cicero jurists were often Senators and through this they maintained a high profile to compete in Roman politics.  Quintus Mucius Scaevola the Pontifex claimed that bona fides (good faith- the mark of an honest person) was a crucial part of societas (partnership).  He was a stoic and viewed this concept, bona fides, in a philosophical manner and the way people viewed it in society.  Just as a partnership relies on working toward mutual benefit, so partnership (societas) in society  works toward mutual  benefit.  This partnership relies, he felt, on legal consent.  These views of Scaevola, a stoic, influenced Cicero, who, as an avid student of several philosophical systems, connected jurisprudence (the knowledge of the law), philosophy and politics.

Varro and Manilius are used as examples of jurists who led active political lives and published in order to enhance their prestige.  Jurists were not in the Roman Republic professionals as they are in modern times, but were active and interested in a number of other activities.

The Republic gravitated toward avoiding monopoly of knowledge in jurisprudence.  The reason for this is that they had to compete.  Once  pontifices, were in control of knowledge of legal actions allowed.  But Flavius the Scribe published the calendar which contained such information.  This removed control of legal actions from them and made it available to public view.  Thus as time passed jurists came about to study what was known as ius civile, as an end in itself, so in that they lacked political clout and prestige.  This forced them to compete in the political world to enhance their position which jurisprudence on its own could not give.  This did not fully change until the imperial period.  Much of their credibility in terms of legal advice was derived from their position in the state as Praetor or Consul, etc.  

This also helped to create a tradition to give them a basis in history and the workings of government.

Cicero felt qualified to write about Laws, because he was immersed in the Republic, part of which was the law.  De Legibus is the philosophy of law.  Cicero defines law (lex, legis) as something chosen (lego, lectus) because it is just and true.  So he does not examine law through the eyes of a jurist but as a philosopher.  His philosophy of law allowed allowed a denial of laws as law which were contrary to the principles of Natural Law.  

As time passed ius civile was separated from religious law.  There are two aspects to the ius civile: written law and custom. So a case was argued in terms of the written law and and non-legal factors (custom).  The principle of fairness may trump the letter of the law and even someone’s intent (say in a will) , if the intention was not fair.  So the laws of the Republic appear to us chaotic and were written with more flexibility for decisions.

Cicero defines law:  Law is the refined reason, embedded in the  nature of a human which orders what should be done and prohibits the opposite.   (Leg 1.18).  It seems that Cicero carefully and purposefully removes law, the law he is talking about, from the letter of the law so many associate with the word law.

The juristic tradition in Cicero’s time was under attack.  An example can come from Cicero himself.  In his defense of Murena in December of 63 BC, Cicero argued against Servius Sulpicius Rufus, the premier jurist of the day.  As part of his defense, Cicero argued that jurists did not have the necessary status for high office.  In fact after Flavius the Scribe published the legal actions available, jurists were forced to invent jargon to give themselves a purpose and appearance of value (So says Cicero).  It is true that Cicero took the case at the height of the Catilinarian conspiracy and was concerned that if Servius was successful in his prosecution of Murena, the state could be, at a time of crisis, without two consuls in office and in a state of confusion.  So he would need to say what was necessary to win the case.  But he could not say something which meant nothing to his audience or was wacko.  So what he said about jurists meant something to those listening.

In this attempt to make jurists more legitimate, jurists for good reason traced jurists back to the kings of Rome who alone could give answers to legal questions.  The implication was that the same respect was due to jurists.

The survival of jurists’ writings is meager.  What survives has been distorted.  Servius’ efforts survive because of his students.  His works, which themselves do not survive, were quoted.  This has helped to save passages but these are now out of the context in which originally placed.  But what survives of jurists makes it clear that as jurists they needed to be versed in history, antiquarianism and etymology.  As a result their works are sometimes quoted because of a reference to history or antiquarianism or etymology.  These remarks would be made in the context of a discussion of law. 

There is an overlap between jurists and orators on how they approached argument from cases.  De Inventione (Cicero), at times reads as though it is a textbook on law.  Jurists spent most of their time on law based on custom (mos) fairness (aequitas).  But eloquence was required to persuade a jury of the correctness of the jurists views.  To Cicero the foundation of eloquence was a knowledge of history, and this was to used for the good of the community.  For it was, he believed, eloquence which first brought people together to form states.  It was the “tool” which convinced people to leave the savage world and work for the common good of all.  Eloquence was also needed to protect good people from the bad.  Juristic authority relied on custom, popular will and argument.  This authority was challenged by the orator and the people.  Judges were from the upper class, these represented the people and since trials took place in public view, the trial and judges received the impact of the audience.  

Persuasion could convince judges to vote in contradiction to the law.  Thus there was much room for orators to operate.  But the definitions of the jurists could play an important part.  Often the point at issue in a trial required the right question to be asked which would help the decision- this is another overlap between jurists and orators.

The Causa Curiana shows a jurist and orator in battle.  The orator won but used juristic arguments.  The jurists gave responses to questions.  These responses (sometimes recorded and that is how something is known about these guys) were based on real life events, but were stated as a general guide.  As time passed Cicero realized that citations of individual cases needed to be replaced by a system which stated general principles (this push probably came from his deep interest in philosophy which was always seeking the general principles of things).

In Cicero’s De Oratore, Mucius Scaevola argues that a good man, not eloquence, is needed to keep a state healthy.  Crassus responds that an orator trained in history, questions, philosophy is best suited to bring it all together.  And in truth judges did not explain their decisions and thus there was no precedence.  The orator using eloquence to explain and persuade the correctness of a jurist’s response contributed to the development of law and jurisprudence. 

Cicero argues that jurists depend upon elegance for interpreting law and upon philosophy because philosophy concerns the great questions:  how best to live the good life, what is a good man, friendship, etc. Cicero hoped by approaching law this way to make it accessible to ordinary people.  

What about the influence of Topica by Cicero? In this work Cicero makes the case that rhetoric’s system of arrangement influences better understanding of law.

What about precedents?  Previous decisions in court carried auctoritas but were not binding on the next trial.  The judex was not a professional , represented the populus and their view.  Since the Romans saw this as an advantage, they did not want the judge to be fettered by precedence.  Consequently the Romans never developed case law.  However Roman advocates did cite past cases and used these to support their case but these were not binding.  There was precedence in this sense: ius was law based on custom and consent.  This put limits upon what the populus could declare to be law.  The case which is cited concerning this is the defense Cicero gave for a woman from Arretium.

Ius civile and pontificial law were interconnected in that pontificial law had a part in adoptions and augurs from signs from birds, etc.

Cicero in De Domo suo knew in his effort to get his full property back after his exile that the case before the Pontiffs would shape the debate in the Senate.  Thus he had to prove that the Lex Clodia was invalid, i.e. his adoption.

Jurists and Antiquity:  Jurists were not part of the origin of the Roman constitution but as Romans who looked back on the past as guides to the future, particularly during period of upheaval, of the late Republic, put them in the mix in terms of legitimacy.  This is indicated by a strong antiquarian tendency of jurists and their interest in etymology.  And it makes sense that to understand the Twelve Tables or old legal terms, it was necessary to learn the origin of words and their history.

Cicero slowly realized the connection between specialist jurisprudence and his understanding of law in a wider sense as important for the existence of the state.  The ius civile covered actions permitted but it also represented “advantage and life style common to all.”  (Pro Caecina. 70).

An inheritance can be lost and if done contrary to law, the community (not just the person who loses the inheritance) is endangered.  In the Caecina case Cicero contends that court decisions should not diverge from juristic authority.  Because the courts could be wrong and advocates could use forged testimony to get the verdict they desired (for example).  He was arguing to win his case, but this does not mean that he did not see the need for more authority for jurists.

Bound up in this case for Caecina was the possibility that Caecina could lose his reputation- to a degree the loss of reputation was worse than material loss, so honor was important.  Because losing it was due to being wicked.  Thus Catiline and Clodius did not operate in ways respecting Roman law and society (societas= partnership).  To Cicero such people were not citizens.

What about a situation wherein there was no possibility for Cicero to prosecute someone?  Was there a substitute?  In the speech In Pisonem Cicero attacked Piso, the one who stood by while Cicero was exiled.  In fact it appears he made a deal with Clodius to look the other way; in return he received a plum province.  Cicero made a strong case in the Senate to have him recalled from his province.  So why did he not prosecute the guy in court?  Piso’s son in law was Caesar.  Thus Cicero did not want to risk prosecution and failing in court.  So he delivered a blistering attack in the Senate. (Piso was recalled.) 

(So the author gives a new way to look at the speech against Piso.)

Cicero’s speeches of 57- 55 BC present serious thoughts about law and citizens.  His exile caused him to think about such matters in a very new light.  He felt and defended the idea that ius (law) is to a degree based upon community perception. His return from exile was supported by so many from so many areas: Senate, comitia vote, embassies from all over Italy, elected officials that this, he felt, represented the real Republic, not those who master minded his exile through force.  And this showed that Piso was not a true representation of the feeling of the people.

This is why van de Blom 2003 asserts that if Cicero had known ahead of time what would happen in his fight against Antonius, he would have done it anyway.

In Cicero’s view the honorable must be beneficial, the rule of law produces justice.  To do otherwise was/is against nature.  To join honor with the beneficial/expedient was true gloria (reputation).  Thus true gloria is not gained by personal ambition.  So Antonius by using Caesar’s notebooks as his acts subverted law to his own purpose and not to the advantage of the Republic.

In the De Officiis Cicero connects moral value of the Republic with ius civile, the value of fairness, trust, obligation and honor.  Antonius in the Philippic 2 did not recognize those rights expressed in the ius civile.  This marked him as a man outside of societas (partnership):  his thefts, ignoring of the Senate, disregard for law put him in the category of a non-citizen.

(Cicero conceived the Republic in terms of Natural Law- if someone conducts himself in such a way to deny the essence of what it is to be a human then that person does not deserve protection, indeed that person is an enemy.  Those laws of the land which prevent implementation of the natural needs of humans, should be ignored.  To be a human every one needs the freedom to think and say what they feel.)

In Cicero’s De Officiis and De Re Publica societas is a partnership for advantage/benefit, united by self will and ruled by law- that law in turn relied on fides (good faith, character).  This is very similar to Mucius’ concept of societas in the ius civile.

Did Cicero go too far?  In his concept of Natural Law?  He took on Antonius not because he thought he could win but because it was the right thing to do.  He argued for what a Republic ought to be.