BMCR 2007.02.51

Cicero and the Jurists. From Citizens’ Law to the Lawful State

, Cicero and the jurists : from citizen's law to the lawful state. London: Duckworth, 2006. 256 pages ; 24 cm. ISBN 0715634321 $70.00.

Among those interested in legal history, Jill Harries — Professor of Ancient History at the University of St. Andrews — is famous for her work on law and society in the Later Roman Empire. She begins her latest work by explaining how a specialist in Late Antiquity was drawn into the study of law in the late Republic. In the Later Empire, she writes, law was indissolubly connected to rhetoric. The issuing of law by the emperors was at least as much a means of self-representation as it was a means to bring justice to their subjects. But law was not just oratory — what about the role of the jurists and of jurisprudence? The answer to this question has led H. to Cicero and the late Republic.

H. pursues two main lines of investigation. In the one, she analyzes Cicero’s ideas about the law and the role of the jurists. Throughout much of his life, Cicero, an orator and advocate rather than a jurist, saw jurisprudence as of less value to the state than philosophy or rhetoric. It was only during his last years, when Rome had been wracked by anarchy and civil war, that Cicero recognized the importance of small-time justice and the value of the jurists’ efforts to make justice work. Her other line of investigation explores the history of the ius civile and the development of jurisprudence. The main thesis is that jurisprudence tended to become a specialized field, but that its practitioners were not isolated from society. H. adheres to Kunkel’s view that in the second century BC jurisprudence was in the hands of individuals who belonged to the highest classes at Rome, but that in the final decades of the Republic the social status and political independence of the jurists declined.

Chapter I concentrates on the eminent jurist and pontifex maximus Q. Mucius Scaevola, who was killed in 82 BC at the instigation of Marius the Younger while trying to maintain his neutrality. Cicero’s appraisal of Mucius Scaevola is seen by H. as reflecting his attitude towards jurisprudence. As governor of Cilicia Cicero abided by the ruling of Scaevola’s provincial edict that allowed provincials to resolve their disputes in accordance with their own laws. However, we should not read too much into this. Taking a closer look at Cicero, Att. 6.1.15, we see that he adheres to the rulings of the urban praetor and Scaevola out of pragmatism. The Greeks are happy to have Greek judges, Cicero says, and who cares if these are a long-winded lot, as long as the Greeks think they have gained autonomia ? So much for Cicero’s principles! In his de Officiis, written in the autumn of 44 BC, Cicero again refers to Scaevola, this time regarding the latter’s emphasis on bona fides as a fundamental element of Roman law. Likewise, Cicero thinks that the law is based on the consent of the citizenry. H. argues that Scaevola’s prominence in Cicero’s final writings reflects the latter’s acknowledgement of the value of jurisprudence.

While H. focuses on Cicero’s political and philosophical writings, his letters may shed a different light on these matters. The Epistulae ad Familiares yield only one casual reference to Mucius Scaevola the Pontifex (1.10.26, 54 BC). More interesting are the three references in the letters to Atticus: in February 49, when Cicero mulled over the difficult question whether or not to stay in Italy, he liked to see himself as following the example of Mucius Scaevola, who had faced his opponents in Rome ( Att. 8.3.6). In two subsequent letters, written one month later, he refers to the fate of Mucius ( Att. 9.13.1, 17.2). In his letters it was only in the aftermath of Caesar’s invasion of Italy that Cicero thought of Mucius Scaevola the Pontifex, and not as a jurist but as a martyr in the cause of Liberty.

Chapter II argues that a false tradition emerged in the late Republic and imperial times concerning the history of jurisprudence. In order to strengthen its position, Mucius Scaevola emphasized the relationship between the ius civile and the illustrious XII Tables. The early jurists were members of the elite, whose interest in the law stemmed from their involvement with the law in other functions. For example, the legal work of Manilius ( cos. 149 BC) on the trade in livestock was based on his position as landowner. The jurists derived their authority not solely from their legal expertise. However, the social standing and independence of the jurists declined in the first century BC. In his pro Murena, Cicero ridiculed jurisprudence as an endless debate by second-rate would-be politicians. Pomponius reflects the false perspective of the second century AD, according to which the history of Roman jurisprudence had been one of separate schools of prominent jurists.

Cicero defines the ius civile by its sources, among which he includes custom ( mos) and justice ( aequitas), which obviously increased the ambiguity of legal definitions (Chapter III). Cicero saw the law as based in human reason, which means that the ‘Law’ was not identical with official laws. H. observes that Cicero’s own experiences shaped his view of the law. In Cicero’s eyes law was defined by what was just, not by legal formalities. Hence, Cicero rejected Clodius’ law by which he was banished from Rome as unlawful. At the same time, he regarded some threats to the res publica as sufficiently grave to allow actions in conflict with the formalities of the law. His own execution of the Catilinarians is a case in point.

Chapter IV returns to the social position of the jurists. H. notes that, despite the reduced status of its practitioners, jurisprudence flourished in the late Republic. H. could have discussed similar developments in other segments of society. Most importantly, we see a similar change in the officer corps of the Roman army, which in the second century BC was largely manned by the young scions of the Roman nobility, whose further careers involved them in many different private and public functions. In Cicero’s age, however, many officers derived from the Italian upper classes. As clients of the Roman magnates they made a career as military professionals. Hence Pompey, Caesar, and Octavian could rely on the services not only of jurists among their staffs, but also of professional soldiers who came from a similar social background. This development does not reflect the decline in status of the Roman army, nor does it regarding jurisprudence.

H. continues with Cicero’s charges against the jurist Servius Sulpicius Rufus in pro Murena. H. shows that we have little idea of the social position and outlook of the jurists of this period. Their writings remain solely in the form of quotations by later jurists and antiquarians which mainly reflect the interests of these later writers rather than those of the original authors. Chapter V shows that there is actually little support for the often held assumption that the jurists’ arguments were of a different nature from those of advocates and orators.

Chapter VI returns to the social position of such jurists as Trebatius Testa and Servius. Cicero provides us with detailed information concerning the activities and attitudes of the latter, who was as much an orator, historian, magistrate and diplomat as he was a jurist. As H. notes, nobody would have guessed this on the basis of Pomponius or the other juristic sources. Trebatius, on the other hand, owed his career under Caesar solely to his legal expertise. H. suggests that the need for systemization and elucidation of Roman law was increased after the expansion of Roman citizen status to the former Italian allies. However, she fails to offer any support for this view, except for the possibly similar upsurge in legal writing in response to the Constitutio Antoniniana. (In the latter case the question remains how much impact the Latin writings of, say, Ulpian had on the courts of the Greek East.)

In early Roman law the primary task of the judges was to mediate. It remained a characteristic feature of Roman law that judges were given much leeway in their treatment of cases. Precedents could not restrict their decisions in any way, and Roman law did not develop along the lines of, for instance, American law. Parallel cases were of importance to jurists in order to distill general legal principles from them, while advocates were interested in the rhetoric employed in previous lawsuits (Chapter VII).

In chapter VIII H. discusses the relationship between the ius civile and other forms of Roman law. There are no clear definitions, and in part they overlap. Modern scholars should not limit themselves to the ius civile and the jurists, she says, but should also take into account the pontiffs and augurs. The priests and the antiquarians also engaged in the interpretation of ancient laws (Chapter IX). When later authors created the history of the ius civile, they did so in the light of their ideas about the development of the Roman state. The development of the ius civile was thus connected to the Struggle of the Orders and to the abolishment of the patrician and priestly monopolies within the state. The story about the creation of the XII Tables has a place in this fictive tradition, as well as that about the scribe Flavius.

The function of the law is to protect the community from the wicked. By their very nature, the wicked cannot be part of the community. Therefore they do not enjoy the same rights and privileges as citizens. The civil strife of the late Republic is seen by Cicero as a struggle between the good citizens, and individual outlaws such as Catiline, Caesar, and Marc Antony, who are solely driven by their own dignitas. Those in power may abuse the law, but their legal rulings never become true law if not with the consent of the good citizens (Chapter X). During the final stage of his life and career, Cicero was driven by the urge to expose the unlawful nature of Caesar’s and Marc Antony’s regime (Chapter XI). His Philippics try to destroy the reputation of Marc Antony and depict him as a villain who has lost any claim to citizen status. Because he threatened the res publica, any means were allowed to overcome him. For this reason Cicero welcomed the murder of Caesar. Cicero’s letters to Cassius ( ad Fam. 12.3.1, 4.1) make clear that he regretted just one thing about the Ides of March: the murderers of Caesar should not have left Marc Antony alive. Interestingly, on occasion Atticus and Brutus expressed their disagreement with Cicero’s radicalism. (Cf. A. Lintott, Violence in republican Rome, Oxford 1999 [2nd edn.], pp. 64f.)

H.’s book is important because it analyses Roman law as shaped by the forces of politics and society. She encourages us not to be deceived by the nature and limitations of our sources, and thus offers a new interpretation of the development of jurisprudence and the social position of its practitioners. However, the subject matter of this book is far from easy and straightforward, and H.’s sometimes confused treatment does not make it any easier. It is often frustratingly unclear why certain topics are discussed and in the order that they are, and equally baffling is the repetition of certain topics, such as Scaevola’s introduction of genera in jurisprudence, Cicero’s pro Murena in chapters II and IV, methods of argumentation in IV and V, and the extensive discussion of the ius civile Flavianum in chapters II and IX.

There are some surprising omissions in the bibliography, such as Gelzer’s authoritative biography of Cicero, C. Meier’s Res publica amissa (Wiesbaden 1980, 2nd ed.), and W. Kunkel, Herkunft und soziale Stellung der römischen Juristen (Graz 1967, 2nd ed.). Moreover, an index locorum is sorely missed.