BMCR 2021.08.12

The discovery of the fact

, , The discovery of the fact. Law and society in the ancient world. Ann Arbor: University of Michigan Press, 2020. Pp. 214. ISBN 9780472131884 $75.00.

[Authors and titles are listed at the end of the review.]

 At least as a first approximation, the “fact” of the title should be understood in terms of the opposition between “questions of law” and “questions of fact.” In practice different contributors have more or less to say about the “law” side of the opposition. And as the volume itself demonstrates, different cultural contexts inevitably give rise to different configurations. Finally, in at least some of these contexts the distinction can also be deconstructed altogether as when several contributors discuss what might be called legal facts.”

 Rather than treating the contributions in text order, it may be helpful to divide them into three groups: studies of Greek legal practice, studies of Roman legal practice, and finally two studies that are perhaps best understood as “theoretical.”

 Daniela Cammack argues that Greek (Athenian) democrats valued mass decision-making in assemblies and courts not because it was epistemically better at discovering independently-existing truths (following a modern argument sometimes retrojected into antiquity), but because the decisions these bodies (even the courts) made were construed as making choices, not answering questions. They made facts rather than recovering them. For Adriaan Lanni Athenian courts generally took a broad view of the disputes between the parties before them, not limited to the specific acts which gave rise to the specific legal actions. Significant exceptions to this generalization can be found in the homicide courts, but the difference does not arise from a different epistemology. Rather, their narrow procedure was intended to claim legitimacy in competition with more traditional methods of vendetta and the like. Esther Eidinow shows gossip was important to Athenian litigants not just as a reflection of broad background values but as a sound source of specific information. Properly framed, it threaded a narrow path between the high epistemic value given to personal knowledge and the liability of individuals who attested to any particular claim. Once introduced, however, the same gossip could be deployed to a variety of specific ends by skilled speakers. David M. Lewis looks at case studies of the treatment of slaves in inscribed laws from Gortyn and argues that they presuppose knowledge of various background assumptions never expressed in the texts. This is an interesting and significant paper, but seems only lightly to touch on the theme of the volume.[1]

Nicole Giannella looks at the ways Roman jurists considering suits for freedom negotiated potential mismatches between various kinds of facts: theoretical status (free person vs. slave), actual state of being (in liberty vs. in slavery), and knowledge and/or performance of one or the other status. In resolving these cases the jurists brought together a number of potentially conflicting criteria beyond possible original status: favor libertatis, protection of a bona fide purchaser, the performed identity of the perhaps-slave. This does not give rise to a coherent system, but that very incoherence draws our attention to the fact that such decisions were not necessarily framed as the “revelation of an objective and knowable fact.” Clifford Ando begins his own paper with the observation that Roman institutions of public law documented their proceedings and relied on that documentary record in subsequent proceedings in recursive fashion. Parties to individual disputes do not question this process even when it might be imagined that this could have been tactically advantageous. Over a great deal of time and space “widespread participation in Roman hearings was both constitutive and indicative of a broad-based acceptance of the legitimacy of state institutions and their procedures as fora for the adjudication of facts,” while norms remained unchallengeable. Striking illustrations are offered by the uptake of these processes in the Councils of Carthage and Chalcedon.

 The two “theoretical” pieces both discuss Roman rather than Greek law, but in ways that abstract considerably from actual practice. According to Ando’s introduction, these chapters have a special place in the project of the volume: “[t]he literature of those three men [these two contributors plus Bruce Frier] contributed to inspire this project, and it is a pleasure and an object of this volume to make some aspects of the work and argument of Cornu Thénard and Thévenin available to Anglophone readers.” I would like, then, to direct particular attention to their essays.

 Roman jurists spoke in so many words of quaestiones iuris and quaestiones facti. Nicolas Cornu Thénard investigates what they meant by those terms by looking both at instances of the distinction and at what he regards (surely rightly) as a key intellectual context: the rhetorical doctrine of status. His central claim is that the jurists did not distinguish what they conceived of as inherently different kinds of issues (e.g. to make a fact/value distinction); rather they denoted modes of inquiry (ius the more abstract, factum the less) that could each in principle be directed towards any question. The balance of application of these modes shows a relative (though not an absolute) preference for abstractly predictable results at the cost of some “artificial construction of fact.” This is an important set of claims, but I confess I found parts of the argument, and particularly the invocation of status-theory, hard to follow. For instance, Cornu Thénard picks a particular version of status theory (common enough in Cicero’s writings, though not consistently followed even by him) onto which he attempts to map the questions of fact/questions of law distinction, but then also draws evidence from other sources (notably Quintilian) who in fact operate with other models. We never hear what we should make of the frequent appearance of “legal” questions as a status in their own right separate from Cicero’s three,[2] or about Quintilian’s version in which “legal” and “rational” categories cross-cut the Ciceronian tripartite division.[3] Moreover, the status of quality plays an important role in the argument, but the selection of examples discussed implies an understanding of that category which some may find surprising. One could imagine, for instance, reasons to treat (as the author does) arguments many would think of as extra-legal as “questions of law,” but they are not spelled out here. In each case the chapter seems to sketch very rapidly the arguments of the author’s 500+ page doctoral thesis “La notion de fait dans la jurisprudence classique” without making the bases of those arguments explicit. Necessarily much of the argument and evidence has fallen out, but I fear important bits of definition and explanation have as well. I would be eager to read the thesis—in translation or not—but it remains unpublished as far as I can tell.

 Pierre Thévenin offers the essay with the most ambitious scope, weaving a narrative back from the early twentieth century through early modern science to the recovery of Roman law from the eleventh century (the Roman jurists are relevant to this story, but their reception is more important).[4] His main analytic instrument is a distinction between a “normative” or procedural one (that which is the product of forms of judicial inquiry) and a “descriptive” or epistemological sense of “fact” (that which grounds the truth of propositions). The latter arises in the context of early modern science but does not displace the former. The evolution Thévenin traces results in a jurisprudence (Legal Realism) that relies on both senses of “fact.” Within legal process, formal procedures are allowed to constitute facts as they long had. Externally, scholars observe operations of the law as facts that can (dis)confirm hypotheses about it, in a “scientific” fashion. The chapter is framed as an “archaeology” of Legal Realism, and thus much of it traces a historical narrative through the phases just listed. But this history is ultimately meant to serve a philosophical or (modern) jurisprudential purpose. What lessons can we draw about “what the law is about even today”? (“We” seem to be the makers, broadly construed, of living legal systems.) In particular, Thévenin wants to move back along this timeline and recuperate a “poetic, creative” approach which some medieval readers took towards the reading of Roman law and which did not overcommit to either sense of “fact.”

 The volume is valuable on the one hand for the high quality of the individual contributions and on the other hand for the urgency of the very general question at its heart.[5] There are some themes that come up in multiple chapters. Cornu Thénard and Gianella both talk about ways in which the law attempted to protect itself from potential falsification. Commack and Laani seem to work towards a unified account of the Athenian courts. Cornu Thénard shares some of Thénevin’s contemporary jurisprudential concerns. Still, as one might expect from a fairly slim volume (and as is suggested in the editors’ introduction), considerable space remains for research in the space between the specific and the general.

Authors and Titles

Introduction. The Discovery of the Fact (Clifford Ando)
1. Were the Ancient Greeks Epistemic Democrats? (Daniela Cammack)
2. The Legal Construction of the Fact, between Rhetoric and Roman Law. (Nicolas Cornu Thénard)
3. Legal Knowledge in Gortyn: Debt Bondage and the Liability of Slaves in Gortynian Law. (David M. Lewis)
4. Free in Fact? Legal Status and State in the Suits for Freedom. (Nicole Giannella)
5. Gossip, Slander, Hearsay, Truth: Oral Evidence in Athenian Courts. (Esther Eidinow)
6. Truth and Athenian Court Verdicts. (Adriaan Lanni)
7. The Certainty of Documents: Records of Proceedings as Guarantors of Memory in Political and Legal Argument. (Clifford Ando)
8. Fact as Law: An Archaeology of Legal Realism. (Pierre Thévenin)


[1] One quibble. Whether or not Gagarin’s argument discussed on p. 76 is correct, it is not “inconsisten[t].” Gagarin’s claim that a rule “only matters” in a certain set of cases does not require a reader to have any background knowledge not stated in the text.

[2] See, for instance, Quintilian’s survey of competing theories at 3.6.22-51; he describes a four-fold distinction including a status legalis as conventional at 3.6.76. In fact, for separate legal categories in even Cicero see Inv. 10 (actionis), Top. 95 (legitima).

[3] Quint. 3.6.77. E. Holtsmark (Quintilian on Status: A Progymnasma.” Hermes, 96, 356–69) and I (Mosaics of Knowledge [New York: Oxford University Press, 2019] 42-3) have discussed Quintilian’s reorganization of status theory in largely formal terms, but on reading Cornu Thénard it occurs to me that one might describe the substantive motive of the project as Quintilian’s observation of the failure of the existing categories of status theory to map onto the important law/fact distinction.

[4] I have not read the author’s Le monde sur mesure (Paris: Classiques Garnier, 2017), and he does not cite it himself, but it appears that the present chapter covers similar ground. Nonetheless, the essay here is self-standing.

[5] The contributors are equally divided between men and women and between scholars based in the United States and in Europe.