Cicero's Law : Rethinking Roman Law of the Late Republic

Why did Roman prosecutors typically accuse the defendant of multiple crimina, when in most standing criminal courts the punishment imposed on a guilty defendant was the same (typically “capital,” that is, a kind of exile), no matter how many charges were proven? The answer lies not in a failure to distinguish between legal charges leveled at the defendant and defamation of his character, but rather in a rhetorical strategy that made sense in light of what was legally necessary to obtain a conviction. The greater the number of charges, the more likely the jurors would be persuaded that the defendant had in some way violated the statute according to which the trial was being conducted. It is true that prosecutors typically argued that the defendant’s prior conduct made it plausible that he had committed the crimes with which he was charged, but in a way that, as much as possible, made his guilt on these particular charges seem likely, and defense patroni attempted to undermine the charges and the character defamation. This answer to the apparent contradiction between multiple charges and unitary punishment favors a moderate formalism over legal realism as the way to interpret Roman criminal trials. Title page 5 Copyright 6 Contents 7 Contributors 9 Abbreviations 10 A Note on Translations 11 Chapter 1 Introduction 13 PART I On Law 21 Chapter 2 A Barzunesque View of Cicero: From Giant to Dwarf and Back 23 Chapter 3 Reading a Dead Man’s Mind: Hellenistic Philosophy, Rhetoric and Roman Law 38 Chapter 4 Law’s Nature: Philosophy as a Legal Argument in Cicero’s Writings 62 PART II On Lawyers 81 Chapter 5 Cicero and the Small World of Roman Jurists 83 Chapter 6 ‘Jurists in the Shadows’: The Everyday Business of the Jurists of Cicero’s Time 100 Chapter 7 Cicero’s Reception in the Juristic Tradition of the Early Empire 112 Chapter 8 Servius, Cicero and the Res Publica of Justinian 135 PART III On Legal Practice 155 Chapter 9 Cicero and the Italians: Expansion of Empire, Creation of Law 157 Chapter 10 Jurors, Jurists and Advocates: Law in the Rhetorica ad Herennium and De Inventione 178 Chapter 11 Multiple Charges, Unitary Punishment and Rhetorical Strategy in the Quaestiones of the 199 Chapter 12 Early-career Prosecutors: Forensic Activity and Senatorial Careers in the Late Republic 217 Postscript 240 Index 243 "In his 1995 book 'The spirit of Roman law, ' Alan Watson included a chapter ... titled 'Cicero the outsider.' Watson's argument, following the then dominant Romanist view, was that Cicero's outlook was significantly different from that of the Roman jurists. While Watson's cautious observation has merit in the context of his argument, its subtext is more problematic. It is the purpose of this volume to critique the pervasive view in Roman-law literature that minimises the significance of Cicero in the narrative of Roman law of the late Republic. This reappraisal of the significance of Cicero reflects current thinking in Roman law and forms part of a larger and more complex debate concerning the nature of law and of the legal profession in the last century of the Roman Republic."-- Quatrième de couverture "In his 1995 book 'The spirit of Roman law, ' Alan Watson included a chapter ... titled 'Cicero the outsider.' Watson's argument, following the then dominant Romanist view, was that Cicero's outlook was significantly different from that of the Roman jurists. While Watson's cautious observation has merit in the context of his argument, its subtext is more problematic. It is the purpose of this volume to critique the pervasive view in Roman-law literature that minimises the significance of Cicero in the narrative of Roman law of the late Republic. This reappraisal of the significance of Cicero reflects current thinking in Roman law and forms part of a larger and more complex debate concerning the nature of law and of the legal profession in the last century of the Roman Republic."-- Page 4 de la couverture A fundamental re-assessment of Cicero's place in Roman law. This volume brings together an international team of scholars to debate Cicero's role in the narrative of Roman law in the late Republic - a role that has been minimised or overlooked in previous scholarship. This reflects current research that opens a larger and more complex debate about the nature of law and of the legal profession in the last century of the Roman Republic. Contributors. Benedikt Forschner ́0Ø Catherine Steel ́0Ø Christine Lehne-Gstreinthaler ́0Ø Jan Willem Tellegen ́0Ø Jennifer Hilder ́0Ø Jill Harries ́0Ø Matthijs Wibier ́0Ø Michael C. Alexander ́0Ø Olga Tellegen-Couperus ́0Ø Philip Thomas ́0Ø Saskia T. Roselaar ́0Ø Yasmina Benferhat