AUGUSTUS’ CLASSICISM: ORATORY AND ROMAN LAW IN CONTEXT1 EMILIA MATAIX FERRÁNDIZ

Abstract: 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 methodology2. 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”3 (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.

Keywords: Oratory, Rhetoric, Augustan Classicism, Atticism and Asianism, Roman judicial

procedure.

Oratory, Litigation and the Lex Iulia Iudiciorum privatorum.

To introduce this topic, it is important to describe succinctly the main features of the Roman

judicial procedure. To sum up, the earliest form of Roman civil procedure was called legis actiones,

and its peculiar feature was the employment of a prescribed oral words which were used in the stage

of the trial before the magistrate. Changes in the prescribed words by one of the parties might result

in their losing the case. So as can be seen, there was no need for oratorical or rhetorical4 abilities for

this procedure, because the pronounced words were prescribed, and that was how the claimant stated

his position before the magistrate, without any opportunity of persuasion. In this early procedural

form -called legis actiones- all the proceedings were strictly formalist, so a meaningless mistake could

1 Paper given on the Symposium Veronense, “The Age of Augustus”, on the 21st June, 2014, Gazzo Veronese. Special acknowledgement to Prof. Patricia Johnston, for her suggestions and corrections. 2 SANCHEZ-MORENO ELLART, C. Oratory and Roman Law, in The Encyclopaedia of Ancient History, New York, 2013, 4924-6 3 SPAWFORTH, A. J. S. Greece and the Augustan Cultural Revolution, New York, 2012, 18, this denomination also concerns the way of calling the classic art of the age of Augustus. 4 While the term Oratory is referred to the literary gender that embodies diverse disciplines, such as the speech, the dissertation, or the conference; differently, rhetoric must be understood as the method employed in oratory, by which the speaker try to give the written or spoken language enough efficacy to delight, persuade or touch the audience or the reader, Cfr. HORNBLOWER, S; SPAWFORTH, A; EIDINOW; E (eds.); Oxford Classical Dictionary, Oxford, 2012, 1276

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made the claimant lose the lawsuit5.

This form of civil procedure was later superseded by a formulary process, with written

formulae. The formula was introduced by the Lex Aebutia (between 199 and 126 BC or even later)6

for one of the 5 older procedures (legis actiones, and to be more concrete, for the legis actio per

condictionem), and later extended and formally settled by the Lex Iulia iudiciorum privatorum, of 17

BC7 (here and after, the Lex Iulia). The formula consisted of a document which was given to a judge

in a civil trial authorization to condemn the defendant if certain factual or legal circumstances

appeared proved, or to absolve him if this was not the case (si paret. . . condemnato, si non paret,

absolvito) 8.

There had been many discussions about the initial scope of the Lex Aebutia, concerning

whether what was finally settled by Lex Iulia was already provided by it or not9, but what it is clear

is that although the formula may have used before the Lex Iulia, it brought an enormous change to

the procedure10 employed before. It established the formulary procedure as the official and legitimate

one, so it was a kind of an organizing initiative, which provided more safety to the civil procedure

and higher guarantees of success for the claimer (because the procedure was more adaptable to several

circumstances). This arrangement also affected the relationship between oratory and litigation, as we

shall see. This new procedure had two stages;

- In iure, in this procedure, both parties (claimant and defendant) stand before the judicial

magistrate (the praetor). The praetor will listen to the declarations of the parties, will entitle

them (or not) to pursue a remedy in a trial, and will help the parties during all this part of the

procedure, that ends with the writing of the formula which is going to be given to the private

judge or iudex. Here the participants asked legal experts (jurists) to determine the legal matters

of the subject. In this first stage, rhetorical abilities were not really important, but the

5 The legis actiones were the earliest form of Roman civil procedure about which we are relatively well informed. Its characteristic feature was the use of prescribed oral formulae which were used in the stage of the trial before the magistrate, cfr. Gai. Inst. IV. 30 6 Gai. Inst., IV.30-31; and Gell, XVI, 10, 8 7, Quoted in Cass.Dio. LIV.18.2-3; D. 5.1.2.1 (Ulp. Lib 2 ad edict.); and D. 48.14.1.4 (Modest. Lib 2 de poenis) 8 BERGER, A. Encyclopedic dictionary of Roman Law, Philadelphia, 1953, 474 9 As big traditional examples; WLASSAK, M. Römische Processgesetze. Eim Beitrag zur Geschichte des Formulaverfahrens, 1, Leipzig, 1888; EISELE, F. Ueber die lex Aebutia, in Abhandlungen zum römischen Civilprocess, Freiburg, 1889, 65ff.; KASER, M. Die “lex Aebutia”, in Studi E. Albertario, Milan, 1953, 28ff; it is possible to find a very complete bibliography regarding the matter in the artice from TALAMANCA, M. Il riordinamento augusteo del processo privato, in Gli ordinamenti giudiziari di Roma imperiale. Princeps e procedure dalle leggi Giulie ad Adriano. Atti del convegno internazionale di diritto romano e del III premio romanistico“G. Boulvert”, Copanello 5-8 giugno 1996, Naples, 1999, 63ff. 10 TALAMANCA, M. cit. n.9. “La Lex Iulia è inspirata ad una filosofia volta più che altro al futuro [...] che vede più lontano dei protagonisti, vede ormai presagio de la cognitio extra ordinem; in the same sense, PUGLIESE G., Processo civile romano II, Il processo formulare, I, Milano, 1963, 58; BERTOLDI, F., La “lex Iulia iudiciorum privatorum”, Torino, 2003, 33ff.

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knowledge of law.

- Apud iudicem. It was the final stage, and normally ended with a judgement which took place

before the private judge (iudex). Here, the judge takes a decision based on the formula

presented by the parties. In this phase the lawyer (who defends the claimer or the defendant)

had to use his oratorical knowledge to convince the judge of the veracity of his defence.

The changes from one procedure to the other were substantial: as we have mentioned before,

in the previous procedure the lack on the pronouncement of some words (certa verba) can cause the

loss of the trial. By the contrary, in the formulary process the civil effects of the procedure were not

based on the set of words pronounced by the claimant (action) but on the imperium of the magistrate

(iudex)11. The performance did not consist necessarily in repeating formalist words, but in drawing a

legal scheme for acting (in the first phase or in iure), and also in convincing the iudex with persuasion

and argumentation (in the second stage or apud iudicem). Rhetoric empowered the use of aequitas in

law12 in the formulary procedure, due to the fact that the orator can present the case using different

arguments and adapting to the particularities of each case, differently than in the legis actiones, on

which the necessity of formalism made that this equality was difficult to achieve. Other important

consequence of this change of procedure, was the fact that the formulary procedure allows the access

of the non-Roman citizens to the justice, because while the legis actiones were just accessible for the

Roman citizens, the formulary procedure was opened for everyone. This last fact was crucial in an

age that Rome have extended its domination through the Mediterranean and the mass of subjects

arriving to Rome was increasing day by day.

We have to remark here that, on many occasions, the judges who act in the second phase did

not have legal knowledge, because they were private subjects chosen by the parties. So the persuasive

abilities of the advocate could be crucial in this phase, because perhaps the judge would be more

attentive to the way the advocate presents the case; than to the technical background of his

argumentation. A perfect example to illustrate this is the fact that criminal trials were a big opportunity

for a lawyer to achieve fame, more than in civil cases13, where the audience was smaller and the cases

more technical and less attractive14. Here, the public attendance of the trials expect a florid speech of

the lawyer who try to save his client from the condemnation. The rhetorical techniques employed in

11 BERGER, A. Cit. n. 8, 494, in a technical sense imperium is the official power of the higher magistrates (magistratus maiores) 12 A concept which prevailed in Roman jurisprudence since ancient times, Quint. Inst. Orat. IV, 3, 11 and 7, 1, 63; vid. TORRENT. A. Interpretación de la “voluntas testatoris” en la jurisprudencia republicana: “la causa curiana”, AHDE, 39, 1969, 201-2. BERGER, A. Cit.n.6, 354, this element implies the element of equality in law, it postulates equal treatment of all according to the common conceptions in the social conscience of the people which change, when social and economic conditions undergo a change 13 Tac. Dial. 20 14 STEEL, C. E.W. Roman Oratory, Glasgow, 2006, 15

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this case must have been able to persuade the judge and to bewitch the audience. At the end, we can

imagine those trials as a mixture of oratory, juridical background and show business15. Indeed, one

clear example of that, is the case of Cicero, a man with no family connections that was able to climb

the social and political ladder because of the reputation he built up in the courts as an orator16.

Despite the fact that sometimes Roman scholarship clearly distinguishes between

iurisprudentia17 and advocacy18, it is important to underline that it was not as easy to distinguish one

profession from the other in the context of the legal procedure. As scholarship has traditionally shown,

purely legal questions were determined by legal experts in the first stage (in iure), and the evidence

was subject to rhetorical treatment by advocates19 or causidici20 in the second (apud iudicem). The

problem could not be solved simply by describing the procedure as a strict separation between the

use of law (in the 1st stage) and the employment of rhetorical abilities (in the second stage). But

despite this attempt to separate and clarify both categories, recent scholarship tends not to draw such

a big difference between advocates and jurists, and as an example of their advice, is found in the case

of the jurist Servius Sulpicius Rufus, who had not just oratorical knowledge, but also background as

advocate21.

If this strict point of view were the case, this could just mean that both professionals suffered

a lack of knowledge, fact that would have an effect in the course of the litigation. If an advocate did

not know anything about legal procedures, it could be qualified as a lack of knowledge, as it was

15 ANDERSEN, Ø. How good an orator should be?, in The Orator in Action and Theory in Greece and Rome, Leiden-Boston-Koln, 2001, 9, the subject must be able to manage his oratorical abilities to achieve success with his audience, “what the audience, or at least part of the audience, is invited to appreciate is not only the plain and unselfconscious speaking, which is apparent, but also the masterful control of the techniques of oratory that the speaker demonstrates” 16 WATSON, A. The Law of the Ancient Romans, Dallas, 1970, 7 17 BERGUER, A. cit, n. 8, 524, Defined as "the knowledge of divine and human matters, the knowledge of what is just and what unjust" (D. 1.1.10.2). Iurisprudentia is syn. with iuris scientia: it is knowledge of the law in the broadest sense of the word, the science of the law. The Roman jurists were the most important element in the development of the Roman law, and with good reasons they are named iuris auctores, iuris conditores 18 BERGER, A. cit, n. 8, the advocatus assisted his clients (clientes) with juristic advice be- fore and during the trial, in both civil and criminal matters, and pleaded for them in court. The latter activity was originally reserved to persons specially trained in rhetoric (oratores). This fact means that the advocatus can have knowledge in Law or not, but the most important thing is that he know how to employ his rhetorical abilities. Cfr. ZOLTÁN MÉHÉSZ, K. Advocatus romanus, Buenos Aires, 1971, 59ff. 19 Also lately called patronus, Plut. C. Mario, 5 20 ZOLTÁN MÉHÉSZ, K. Cit. n. 14, 66, qualifies them as lawyers-orators 21 SANCHEZ-MORENO ELLART, C. Cit. n. 1, 4924; also as FRIER, B. The Rise of the Roman Jurists, Princeton, 1985, 20ff, has shown, it was precisely Mucius Scaevola the Pontifex and Servius Sulpicius (patricians and nobles both) who transformed Roman jurisprudence into a legal science and a distinct profession. GARCIA GARRIDO, M. Derecho privado romano. Casos, acciones, instituciones17. Madrid, 2010, 107, Servius Sulpicius Rufus used to assist to the circle of P. Cornelio Escipión Emilianus and Panecius where the assistants discussed the operas of the Greek philosophers and especially the ones of Plato and Aristotle. Cfr. SHIAVONE, A. Nascita della giurisprudenza: cultura aristocratica e pensiero giuridico nella Roma tardo-repubblicana, Bari, 1976, 96ff; SCHULZ, F. History of Roman legal science, Oxford, 1946, 120

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described by classical authors22. On the other hand, Cic. De orat. I, 10, 40 described this ignorance

as shameful23. That position was coincident with the position of the jurist Quintus Mucius, who in D.

1.2.2.43 criticized Servius Sulpicius Rufus, disciple of Cicero, because, although being an orator and

acting as an advocate, he ignored Civil law24.

Recent scholarship25, which were focused on the figure of Cicero, has shown us that to find

out whether this separation between lawyers and their education was true, it is necessary to study

them case by case and not underrate their legal background. The right attitude towards this subject is

not to take one side or the other in a very systematic way, but to search through the cases one by one,

because it would be as incorrect to strictly separate as to confuse the tasks developed by each

professional only to realize in the end that in many cases, they had mixed knowledge.

The Augustan reform was a key point of a new way of understanding the litigation, a way that

included the employment of both juridical and rhetorical abilities of different subjects. This changes

not just enrich the procedure because of the possibility of using other methods of juridical defence,

such as proper rhetorical argumentation, but also make the procedure more adaptable to different

cases. At this point, and taking into account the importance of oratory in litigation -because it can

determine the result of the trial in its final step- I can see that this importance had a continuity between

the Republic and the Principate. Here oratorical abilities were salient in order to perform professions

such as politician or lawyer26, by which the professional has to persuade an audience. On this basis,

we shall show that that if a lawyer wanted to use an oratorical style according to the fashion of the

Principate (for if it was the case that he wanted to achieve fame while being in accordance with the

regime), he had to follow the oratorical debate promoted by Augustus, and by a Cultural phenomenon

which has been labelled as “Augustan Classicism”.

22 Quint. Inst. Orat. XII.3; Lucian, Bis accusatus sive tribunalia, XLVII. 33 23 Cic. De orat, X, 1, 40; Equidem et Ser. Galbam memoria teneo divinum hominem in dicendo et M. Aemilium Porcinam et C. ipsum Carbonem, quem tu adulescentulus perculisti, ignarum legum, haesitantem in maiorum institutis, rudem in iure civili; et haec aetas vestra praeter te, Crasse qui tuo magis studio quam proprio munere aliquo disertorum ius a nobis civile didicisti, quod interdum pudeat, iuris ignara est. [I can remember that Servius Galba, a man of godlike power in speaking, as well as Marcus Aemilius Porcina, and Cneius Carbo himself, whom you defeated when you were but a youth, was ignorant of the laws, at a loss in the practices of our ancestors, and unlearned in civil jurisprudence; and, except you, Crassus, who, rather from your own inclination to study, than because it was any peculiar business of an orator, have learned the civil law from us, as I am sometimes ashamed to say, this generation of ours is ignorant of law] 24 D. 1.2.2.43 (Pomp. Lib sing.) Servius autem Sulpicius cum in causis orandis primum locum aut pro certo post Marcum Tullium optineret, traditur ad consulendum Quintum Mucium de re amici sui pervenisse cumque eum sibi respondisse de iure servius parum intellexisset, iterum quintum interrogasset et a Quinto Mucio responsum esse nec tamen percepisse, et ita obiurgatum esse a Quinto Mucio: namque eum dixisse turpe esse patricio et nobili et causas oranti ius in quo versaretur ignorare. Ea velut contumelia Servius Tactus operam dedit iuri civili et plurimum eos, de quibus locuti sumus, audiit, institutis a Balbo Lucilio, instructus autem maxime a Gallo Aquilio, qui fuit cercinae: itaque libri complures eius extant cercinae confecti. 25 HARRIES, J. Cicero and the Jurists, London, 2006, 92-111; STEEL, C. Cicero, Rhetoric and Empire, New York, 2001, 228-9 26 STEEL, C. E.W. cit. n. 14, 20

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Oratory in Augustan Rome: the “Augustan Classicism”

The so-called “Augustan Classicism”, was a classicizing mood particularly detectable in two

distinct fields: art commissioned by the regime27 (such as the architectural Caryatids from the

Augustan forum); and debates in Augustan Rome about style in oratory. This subjects are also linked

with the complex situation regarding relations between Rome and Greece.

In relation to society, oratory was a matter of crucial importance in Rome`s political life, and

a highly useful skill for any politician. This opinion can be accepted without difficulty for the

Republican period, where popular election, legal scrutiny of public, popular behaviour and senatorial

government combined to make an audience an effective and significant factor in the performance.

The situation was a little different from the Principate of Augustus onwards. Here, despite the fact

that politicians and lawyer keep on giving public speeches, many decisions were made behind closed

doors among small groups whose deliberations were not recorded. Although Augustus tried to hide it

with an appearance of continuity within the Republican institutions, the power of the emperor was

noteworthy in the innovations and schemes provided by him. Augustus did not set out to limit freedom

of speech or suppress oratory, but his enormous personal power was inhibiting and could not help but

affect the conditions of oratory in public speeches.

According to Wallace-Hadrill28, part of the cultural revolution of Augustus was a dialogue

with Roman ideas about Hellenism suited to Roman usage29, a dialogue in which the most important

theme was Rome itself30. Wallace-Hadrill characterised the collapse of the old system and its

replacement with a new political dispensation –the Augustan Principate-- as a mutatio morum or

‘cultural revolution’, where culture is defined as ‘the sum total of practices and beliefs that

differentiate one people from another’31. Roman conquest of Greece led not to fusion but reciprocal

exchange, a process of dialogue with one another, but giving more importance to the one or the other,

depending on which style was being imitated, Roman or Greek.

27 Concerning art, it is key the assumption of ZANKER, P. The Power of Images in the Age of Augustus, Michigan, 1988, 239, 240, “The intention was to create a kind of super-culture, which would combine the best traditions of both Greek and Roman culture, Greek aesthetics with Roman propriety and virtus. It was to be an exemplary culture, as It was to be an exemplary culture, as Vitruvius wrote, worthy of the rulers of an empire and a model for the ruled.”; MACMULLEN, R. Romanization in the time of Augustus, Yale, 2000, 2 28 WALLACE-HADRILL, A. Rome`s Cultural Revolution, New York, 2008, 255-6; SPAWFORTH, A.J. S. cit. n. 3, 4ff. 29 GABBA, E. “Political and Cultural Aspects of the Classicist Revival in the Augustan age,” Classical Antiquity, 1, 1, 1982, 64, “the heavy stress on the classical age of Greece can be better explained, even in the case of the Second Sophists, precisely in the sense suggested by Dionysius: as an exaltation of Greek glory within the framework of an acceptance of Rome’ s empire” 30 BOWERSOCK, G.W. Augustus and the Greek World, Oxford, 1965, 75, “The core of a Roman's view of Greek life was mollitia and otium. This view by no means denied the vast erudition which Greeks brought to the Romans; indeed, erudition was nourished in an atmosphere of luxury and leisure, time to savour experience and then to reflect upon it.” 31 WALLACE-HADRILL, A. Mutatio morum: the idea of a cultural revolution, in The Roman Cultural Revolution, Cambridge, 1997, 9

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One of Spawforth’s main arguments was that the transformation of Roman Greece into a

classicizing ‘museum’ was a specific response of the provincial Greek elites to the cultural politics of

the Roman imperial monarchy32. Against a background of Roman debates about Greek culture and

Roman decadence, Augustus promoted the ideal of a Roman debt to a ‘classical’ Greece rooted in

Europe and morally opposed to a stereotyped Asia. As Wallace-Hadrill said, “Augustus tried to bind

together a fragile Roman world not only by military force but also by common values, values derived

from Roman tradition and consciously stamped with Romaness”33.

A common tactic of Augustus was to disguise his innovations by reference to the Roman past,

as if he was thereby following the exempla maiorum. He had employed that tactic concerning his new

social regulations: “what connects the new laws to old values are the exempla, ideals and images

simultaneously part of an imagined Roman past and an imagined Roman future”34. The same strategy

was used for oratory. In this kind of Augustan Classicism, one of the most important fields was the

debate about style in oratory, distinguishing between the less favoured (at least in theory) “Asian

style”35, and the beloved “Attic style”36. In this debate, the Emperor set the tone by cultivating a direct

matter-of-fact way of speaking, in which the graces of style were sacrificed to the intelligibility of the

discourse37, this is the fact why he encouraged the employment of the intelligible Attic style, instead

of the florid, complicated Asian style in oratory.

Asianism originated at Pergamum. Romans used the term “Asian” to impute to others an

oratorical floridity which Romans saw not merely as Greek by definition but specifically as the

hallmark style of the oratory of Hellenistic Asia Minor38. To summarize, Asian style in oratory may

refer to a complicated and crooked style on the use of words. Asianism had a significant meaning in

Roman rhetoric since the major part of the teachers of rhetoric who came to Rome at the end of the

4th Century BC were Asiatic Greeks.

On the other hand, Atticism was a rhetorical movement that started in the 1st cent BC, this fact

has been portrayed as a return to Classical methods after what was perceived as the pretentious style

of the Hellenistic, Sophist rhetoric and called for a return to the approaches of the Attic orators.

32 SPAWFORTH, A.J.S. Cit. n.3; 2, 79 33 WALLACE-HADRILL, A. Augustan Rome, Bristol, 1993, 97 34 MILNOR, K. Augustus, History, and the Landscape of the Law, Arethusa, 40, 2007, 10; the same Augustus told that in his Res Gestae, concerning his innovations in Law, 8.5, Legibus novis me auctore latis multa exempla maiorum exolescentia iam ex nostro saeculo reduxi et ipse multarum rerum exempla imitanda posteris tradidi. 35 This style was quoted by Cic. Brut, 51, nam ut semel e Piraeo eloquentia evecta est 36 Dion. Hal. De antiq. orat., preface, 1–3, also in the book, (1.1.4,7,3.1 we could find how the author connects the social structure within the Greek cities; how Asianism conquers and gains support among the untutored masses, and classical, prudent oratory belongs to the upper classes. 37 CLARKE, M.L. Rhetoric at Rome, London, 1953, 100 38 WISSE, J., Greeks, Romans, and the Rise of Atticism, in Greek Literary Theory after Aristotle, Amsterdam, 1995, 65–82; SWAIN, S. Hellenism and the Empire, Oxford, 1996, 22-3

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Although the plainer language of Atticism eventually became as ornate as the perorations it sought to

replace, its original simplicity meant that it remained universally comprehensible throughout the

Greek world. The Atticists imitated the simple style of the orator Lysias, but during the reign of

Augustus, the Greek critic Dionysius of Halicarnassus explains that Romans developed a different

concept of Atticism39.

Due to this imperial propagandistic movement in favour of Atticism, the orators find

themselves divided in two kinds, Asianists or Atticists. These debates concerning the different

oratorical school occurred on the Years 50-40 BC, set “Atticism” against “Asianism”40. In the case

for Servius Sulpicius Rufus41 and Gaius Gracchus42, they were recognised as Asianist orators.

Quintus Hortensius Hortalus was the major figure in the practice of Asianism, and was a rival and

later friend of Cicero as well as the friend of Catullus. Other case is the one concerning Cicero, who

was critizised for what has been identified as an “Asianist trend”. Gaius Licinius Calvus, friend of

Catullus and future killer of Caesar, was the biggest figure in Atticist oratory. Marcus Brutus, also

one of the killers of Julius Caesar, has been also identified as an Atticist orator.

In the case of Cicero, he was accused by Quintilian of having a mixed style between Asian

and Attic, a style qualified as Rhodian43; on the other hand, many authors identified the hallmarks44

39 Dion. Of Hal. De antiq. Orat. Praef; SAMELLAS, A. Alienation: The Experience of the Eastern Mediterranean (50-600 A.D.), Bern, 2010, 334, Dyonissus explains this phenomenon in a paradigmatic way; since the death of Alexander, Greek rhetoric entered in a crisis, developing a theatrical and unphilosophical style, until Rome brought back this style to its old splendour. According to him, Romans rehellenized the Greeks that they have conquered; KIRCHNER, R. Elocutio: Latin Prose Style, in A Companion to Roman rhetoric, Oxford/Malden/Carlton, 2007, 194; It is not clear how far his ideas were influenced by the Roman version, although he does connect a return to the classic norms established by the Attic orators with Augustus’ defeat of Mark Antony and Cleopatra at Actium. 40 The bibliography on Asianism and Atticism is very large. Recently, see, e.g., LEEMAN, A.D., Orationis Ratio: The Stylistic Theories and Practice of the Roman Orators, Historians and Philosophers, I, Amsterdam, 1963, esp. 136–67; KENNEDY, G. The Art of Rhetoric in the Roman World (300 BC- AD 300), Princeton, 1972, esp. 96–100; WISSE, J., Cit. n. 35, gives a full bibliography and an excellent discussion of the problems. Wisse concludes that Roman Atticism began under the leadership of Calvus between 60 and 55, but only became a significant movement after Calvus’ death (54/53?), thus prompting Cicero’s treatment of the issue in the treatises of the 40’s. 41 Cic. De Or. 2.88, concerning this fragments, VASALY, A. Cicero`s early speeches, in Brill`s Companion to Cicero. Oratory and Rhetoric, Leiden, Boston, Koln, 2002, 99, “here the terms used of the talented young Sulpicius-effervescentibus, redundantibus, profuderunt—foreshadow Cicero’s description of himself in his later works; but in the De Oratore these terms are shorn of their loaded meaning as explicit descriptions of the vices of an ‘Asianic’ style”; Cfr. Cic. De Or. 1.20: ex rerum cognitione efflorescat et redundet. 42 BIAGIO CONTE, G. Latin Literature: A History, 1994, 120 43 Quint. Inst. XII.10.12; this style was also described by Cicero in Cic. Brut. 13.51, Hinc Asiatici oratores non contemnendi qui- dem nec celeritate nec copia, sed parum pressi et nimis redundantes; Rhodii saniores et Atticorum similiores. 44 VASALY, A. Cit. n. 41, 100, “Among these we might mention: complex periodicity, often making use of elaborate parallelism; the presence of rhythm, both in the sense of the employment of clauses within periods that are carefully balanced in length and sound, as well as the employment of favored combination of long and short syllables at the ends of periods (clausulae); constant use of a wide variety of ornamenta, involving both word and phrase, aimed at artistic expression and often privileging sound and general impression over precision of meaning; recourse to wit, irony, wordplay, and humour; employment of variatio at all levels, including within the period, between periods, between parts of a speech, as well as in the styles employed in

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of Ciceronian style with “Asianism”, so of using an excessive florid and detailed style of speaking,

embodying the aesthetic opposite of their ideal, and opposed to his most well-known opponent, Caius

Licinius Calvus, who was acclaimed by his lucidity, simplicity and restraint.

With this encouragement, Augustus pretended not just promote a clearer way of speaking of

the orators, but also –as I have mentioned before- to promote the ideal of a Roman debt to a ‘classical’

Greece rooted in Europe and morally opposed to a badly stereotyped Asia. These debates stemmed

from a momentous turning point in the development of Latin rhetoric45, which became teachable

precisely in this period and thus available as a special skill. By mastering Latin rhetoric, individuals

could rise in Roman society. Augustus specifically idealized Greece of the fifth and fourth centuries

BC, and also tried to adopt this oratorical style himself, as Suetonius described in his Divi Augusti46.

Augustan propaganda concerned Greek oratory (or better said, the Attic style in oratory) as

an affair of the state47. The emperor, directly or indirectly, determined careers in oratory, politics,

jurisprudence, and the military48. This had a lot to do with the style employed in litigation by lawyers,

who probably wanted to achieve fame. All these ideas can suggest a hidden way for making lawyers

and orators collaborate with the authority. Emilio Gabba, resumed the phenomenon in an easy and

understandable way:

“The revived classical ideals represent, even more than they had before, the basis for moral,

cultural, and political unity among the ruling class, and no longer only within the Greek cities.

These ideals, shared by Rome, pave the way to an ever-deepening acceptance of the new

imperial society. The increasing adherence obviously results in open and diligent

collaboration with authority”49.

It may have been a logical way to act, taking into account the fact that the new Empire was

being built, and so that the milestones of the new society which would form the people of this Empire

different types of speech; and the constant appeal to the emotions, especially in the opening and the closing sections of the speeches”. Cfr. also about Cicero`s style, LAURAND, L. Études sur le Style des Discours de Cicéron4, 3 vol., Paris, 1936–38 45 HORROCKS, G. Greek: a history of the language and its speakers2. Chichester/Malden, MA: 2010, 100, this movement was a returning point from the vacuousness of the Asianism. 46 Suet. Aug. 84, and 86; genus eloquendi . . . elegans et temperatum; this Augustan style of oratory has been opposed to Anthony`s style, for example by Plutarch, who qualified his stile as Asiatic; Plutarch, Ant, II.5 47 In the most recent scholarship on rhetorical texts, the question of rhetoric in granting ideological power has begun to be explored, as for example had stated GLEASON ,M. Making Men: Sophists and Self-Presentation in Ancient Rome, Princeton, 1995; or BLOOMER, W.M. Schooling in Persona: Imagination and Subordination in Roman Education, Classical Antiquity 16, 57–78; LINTOTT, A. Romans in the age of Augustus, Oxford, 2010, 147 48 WHITE, P. Poets in the new Milieu: realigning, in A Companion to the Age of Augustus, New York, 2005, 327 49 GABBA, E. Cit.n.29, 53

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was also being settled. But all this supposed a closed collaboration within the regime of Rome and

the upper classes of the Greek world. This classical ideas and cultural reforms had obviously an

influence on the legal procedure that has just been reformed, and on which rhetoric was getting an

important role. But as we are going to detail, the topic of the importance of Rhetoric and Roman law

was not just a matter of concern in Augustan age, but a general and timeless problem.

Roman law and the importance of Rhetoric.

As we have seen before, the debate about style in oratory had an influence in the style by

which the orators presented their speeches in the trials, since Augustus firmly state that the formulary

procedure was the only one that was to be used. Logically, since this change in rhetoric would have

had an important role in the procedure, but what was the relationship between rhetoric and Roman

law?

On what concerns these two topics, we have to point out that these concerns are not just issues

related to the Augustan age, but are also general problems based on the relationship between Roman

law and rhetoric. It may be useful to identify this relationships as the text’s “thread of Ariadne”50. It

may also be necessary to understand the context of our subject as we look at the place of oratory in

Rome before the Augustan Principate. After Greek rhetoric was received in Rome, it was followed

three stages: expansion, resistance and acculturation51.

Beginning with Quintilian’s classical definition, rhetoric could be described as “the art of

persuasive speech.”52. Long before the government of Augustus, rhetoric and declamation came to

Rome from Greece. It seems that, in the beginning, Latin rhetoricians did not invent the subjects

discussed in their schools, but that they adapted, with precise modifications, a set of cases formed in

50 In mythology, Ariadne was the daughter of Minos of Crete. According to an Athenian version of the legend, Minos attacked Athens after his son was killed there. The Athenians asked for terms, and were required to sacrifice seven young men and seven maidens every seven or nine years to the Minotaur. One year, the sacrificial party included Theseus, the son of King Aegeus, who volunteered to come and kill the Minotaur. Ariadne fell in love at first sight, and helped him by giving him a sword and a ball of thread, so that he could find his way out of the Minotaur's labyrinth. When I refer to Ariadne’ s thread in my article, I mean that this concept, the relation between Roman law and rhetoric is going to be the guide, through the text, the reference that will connect other ideas reflected here, as the thread of Ariadne was the reference for Theseus to get out of the labyrinth. 51 CULPEPPER STROUP, S. Greek Rethoric Meets Rome: Expansion, Resistance and Acculturation, in a Companion to Roman Rhetoric, Oxford/ Malden/ Carlton, 2007, 23ff; the first stage corresponding to the Hellenistic period; the second one that could be dated within the two edicts again rhetoricians (161 BC, de philosphis et rethoribus for Greek rethoricians, and 92 BC for Latin rethors); and the third stage in the late republic, and concretey, with the publishing of the de Oratore. 52 Quint. Inst. Orat. II, 15. Quid sit rhetorice. Quae finitur quidem variae, sed quaestionem habet duplicem, aut enim de qualitateipsius rei aut de comprehensione verborum dissensio est. Prima atque precipua opinionum circa hoc differentia, quod alii malos quoque viros posse oratores dici putant; alli, quorum nos sententiae accedimus, nomen hoc artemque, de qua loquimur, bonis demum tribui volunt.Eorum autem; also describes it as that Arist. Rhet.1355, 2,30; but the first reference to rhetoric in Roman literature comes from Ennius, ann. 308

10

Greece at the end of the fourth century BC.53 As this set of issues increased in number, with some

cases taken from Roman common life, it was progressively romanized. As Cicero said, to achieve

some success in Rome, it was necessary that the orator hide his Hellenistic knowledge54.

But the Roman conception of oratory was not just limited to understanding it as a technique

of speaking, but also as a moral virtue55, because it showed the proper Roman man56. The only

problem here was that they didn’t employ the traditional names of the Greek styles, but used Roman

names that concern roman models. In sum, they didn’t follow the concerning the much older tradition

of Greek oratory, but reformulate it according to Roman usage. This way of conceiving oratory agrees

with the conception of oratory as a knowledge necessary for a public man, who wanted to rise in the

social pyramid57. This process of romanization attained the necessary diffusion, making the subjects

were more familiar for Roman minds58, and also shows one of the defining features of Roman

society: adaptability to and adaptation of the ideas and practices of other cultures59.

53 SANTACRUZ, J. Influencia de las disciplinas no jurídicas en el Derecho romano, AHDE, XVII-XXVIII, 1957-58, 347, despite of this quotation made in the text, we have to underline that we don`t agree with the author in this article, because he thinks that rethoric and law are both different disciplines, and that it was not connexion between them. 54 Cic. De orat. II.36.153, Tum ille "verum" inquit "ex me audies, Catule: semper ego existimavi iucundiorem et probabiliorem huic populo oratorem fore, qui primum quam minimam artifici alicuius, deinde nullam Graecarum rerum significationem daret: atque ego idem existimavi pecudis esse, non hominis, cum tantas res Graeci susciperent, profiterentur, agerent seseque et videndi res obscurissimas et bene vivendi et copiose dicendi rationem daturos hominibus pollicerentur, non admovere aurem et, si palam audire eos non auderes, ne minueres apud tuos civis auctoritatem tuam, subauscultando tamen excipere voces eorum et procul quid narrarent attendere. Itaque feci, Catule, et istorum omnium summatim causas et genera ipsa gustavi." [“You shall hear from myself, Catulus: I have always think that an orator would be more accepted by the Roman people, who in the first place employ as little artifice as possible, and so not giving at all a Greek sense to it. At the same time, when the Greeks undertook, professed, and executed such great things, when they offered to teach mankind how to penetrate the most obscure subjects, to live virtuously and to speak eloquently, I thought it the part of an irrational animal rather than a man, not to pay them some degree of attention, and, if we cannot venture to hear them openly, for fear of diminishing our authority with our own fellow-citizens, to catch their words at least by listening privately, and hearkening at a distance to what they stated; and thus I have acted, Catulus, and have gained a general notion of the arguments and subjects of all their writers.”] 55 GUNDERSON, E. Staging Masculinity: The Rhetoric of Performance in the Roman World, Michigan, 2000, 67ff. And according to Neumeister, also the orator can choose between the rules of oratory that he wanted to follow up, not to take it as binding principles, as he declares in Grundsdtze der forensischen Rhetorik gezeigt an Gerichtsreden Ciceros, Munich, 1964 56 RICHLIN, A. Gender and Rhetoric: producing Manhood in the Schools, in Roman eloquence. Rethoric in Society and Literature, London, 1997, 74ff 57 TANNER, R.G. Philosophy, Rhetoric, and Legal Advocacy, in Thinking like a Lawyer, Leiden-Boston-Brill, 2002, 184, In fact, the influence of a speaker or pleader would depend more on his status or personal character rather than upon the techniques of persuasion he employed 58 PAOLI, U.E. Droit Attique et Droit Romain dans les rhéteurs latins, RHD, 1933, 176, who say that Latin rhetors mixed and disguised everything, searching to modernise and to adapt this subjects that their students would not had understood on the original way. Some examples of the reshaping of Greek rhetoric into Roman schemes is the treatise De invention of Cicero, and the book also attributed to him Rhetorica ad Herennium. These early handbooks follow in the tradition of Greek rhetorical doctrine, specifically Anaximenes’s Rhetorica ad Alexandrum, the sole extant pre-Aristotelian manual of rhetoric; Aristotle’s Rhetorica; and the work of Hermagoras of Temnos, but also on it it is possible to appreciate the beginning of an independent Roman style and spirit. 59 Caesar observes that feature; Sallust, Bellum Catilinae LI.37–8; it was a double standard between absorbing

11

In the year 100 BC, rhetoric started to be an essential element in the cultural formation,

because it played an important role in providing the young male elite at Rome with the training and

experience necessary to defend and maintain their position in the public meetings. It cannot be

doubted that the jurists received in their youth lessons on rhetoric, which familiarized them with the

exegetic figures of the rhetoricians. The most important thing to be pointed out here is that this

information had an influence not in the building of the structure of the procedural formula, but in

instilling rhetorical knowledge in the lawyer, which was reflected in his performance in judicial

practice60. So that is why the method of argumentation in rhetoric and in law cannot be compared,

because the former is more like an internal knowledge than a systematized structure of argumentation.

Since eloquence continued to be regarded as a virtue, its increased rhetorical importance was

given to less controversial oratorical forms including minor judicial cases and the art of declamation

in schools and at home61. This influence of rhetoric in Roman law can be appreciated in examples

such as the big speeches of Cicero, on the de magie of Apuleius, on what could be reconstructed from

the speeches of Plinius the young, the Controversiae of Seneca the elder, the Declamationes attributed

to Quintilian, or even in the speeches for judicial defence found in one papyrus from Roman Egypt62.

Originally, however, the debate about the relationship between rhetoric and its possible

influence in Roman law started with the famous lawsuit called Causa Curiana (92 BC, more or less),

concerning pupillary substitution (the appointment of a substitute by the father for his child

instituted as an heir in his testament). This lawsuit displayed the case of a father who had appointed

his son in his will, thinking that he was going to be born after his own death, and providing also the

replacement of a third person (Curius) as heir in case that the child died before being able to make

his own will (fourteen years). The problem was that no son was born, so the question was whether

the condition for a substitutio pupillaris included the substitutio vulgaris (substitution of the father

by an heir who was not part of the family) or not.

We know from Cicero63 that in this process they met Lucius Licinius Crassus, who, in

defending Curius (the man instituted as heir in the place of the son that was not born at the end, and

Quintus Mucius Scaevola, who defended the family of the deceased. Crassus was focused on the

the Greek rules and resisting to it; Aul.Gell. Noctes Atticae VI.3; also cfr. DOMINIK, W.J. The Development of Roman Rhetoric, in Oxford Handbooks Online, 2014, 2 60 JOLOWICZ, H.F. Academic elements in Roman law, Law Quarterly review, 1932, 81, “it would be impossible a priori to suppose that the theory (rhetoric) remained without effect on the development of Law, when we consider how common it was for the young romans of the upper classes to be trained in rhetoric and that sometimes the same man, as in the case of Servius Selpicius Rufus, was famous about both as a lawyer and as orator” 61 KENNEDY, G. Cit.n. 40, 303-4 62 CROOK, J.A. Legal Advocacy in the Roman World, London, 1995, 58-118 63 Cic. De invent. 2.122; Cic. De or. 1.36, 1.80; Cic. Brut. 39.144, 52.149–55; Cic. Caecin. 18.52; Cic. Top. 44; Quint. Inst. 7.6.9–10

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logical interpretation of the will, so that in case that the son was not born, Curius was the legitimate

heir. On the contrary, Scaevola defended the literal interpretation of the deceased’ word, so that he

wanted his son to substitute him and just appoint Curius for the case that the son was not able to reach

puberty. Due to the fact that the son was not born, Curius did not match the first condition to become

legitimate heir (the birth of the son and his growth until puberty), and so that he cannot receive the

inheritance.

The positions were clear from the outset: “Scaevola would argue for his client strictly on the

basis of the text itself and amplify for the benefit of the court the inviolability of the Law. Crassus’

position was equally clear: he would certainly expound on the claims of intention but he would also

have to address the juridical question in order to persuade the Centumviri that he was not asking them

to render an unprincipled decision”64. Traditionally, this contraposition of these two pleas has been

distinguished radically: Scaevola used the strictly legal interpretation of the law, and Crassus

employed his rhetorical abilities to enforce the logical interpretation of the case. This way of

proceeding of both subjects has set the idea that Crassus have formation in Oratory and Rhetoric,

while Scaevola was the one with knowledge in Law. However, like mostly everything in Roman law

(and in life in general), we should not believe these extremist points of view, we also know that both

subjects had studied both law and rhetoric, despite the fact that they had each chosen to argue from a

different perspectives. One example of this point of view can be found in a study by Torrent65, who

not only takes into account the education of both advocates, but also their respect for civil law, as

well as a possible antagonism between them, which forced them to use arguments to defend their

position against each other, and possibly not in accordance with the law, except in the case of

Scaevola66.

Crassus finally won the lawsuit, and this event set up a new wave of the interpretation of legal

cases, not based on the written words of the deceased, but on his will. In logic, an argument is defined

as a set of premises followed by a conclusion67. In this case, Crassus was using a logical argument

because his scheme of thinking was a/the father instituted his son as heir, and in case his son was not

able to receive the inheritance, Curius was the legitimate heir; b/ the son was not born; c/ so Curius

will be the heir remaining.

It is necessary to remark that in the moment where the causa succeeded, there was no other binding

precedent on the matter, and other sources on the problem of how to relate pupillary and vulgar

64 VAUGHN, J.W. Law and Rhetoric in the Causa Curiana, Classical Antiquity, 4, 2, 1985, 213-4 65 TORRENT, A. Los antagonismos forenses en la “causa Curiana”, BIDR, 28, 1986, 159ff. 66 As sustained by WATSON, A. Narrow, Rigid and Literal Interpretation in the Later Roman Republic, TR, 37, 1969, 365-6 67KIRWAN, C. «argument», The Oxford Companion to Philosophy, Oxford, 2005 (http://www.oxfordreference.com).

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substitutions could not make the impact of the Causa Curiana on Roman jurisprudence any clearer68.

Also the matter of that case was not officially recognized until one Imperial constitution from Marcus

Aurelius and Lucius Verus, which we can find in D. 28.6.4pr. (Mod. Lib sing. De heurematicis);

D. 28.6.4pr. (Modestinus libro singulari de heurematicis) Iam hoc iure utimur ex divi Marci

et Veri constitutione, ut, cum pater impuberi filio in alterum casum substituisset, in utrumque

casum substituisse intellegatur, sive filius heres non exstiterit sive exstiterit et impubes

decesserit. [Under a constitution of the divine Marco and Vero is said that when the father

replace the prepubescent child for a case, it is understood that replaced for each case, and if

the child had not been heir, and if it had been, and would have died prepubescent.]

This seems to point out some kind of jurisdictional liberty on what concerns the interpretation

of the will. By this constitution, the emperors seem to be in accordance with the argument of Crassus,

and so confirming the final result of the trial. But apart from that, and thinking in the possible simplest

solution, perhaps the two advocates were just employing those two ways of defence, looking to defend

their clients with one strategy. This will split up the debate about the knowledge of both subjects, that

in fact does not make sense, because as we have mentioned before, they had knowledge in both

disciplines, Rhetoric and law.

To analyse this case, it is salient to quote the well-known article summum ius summa iniuria69,

on which J. Stroux argued that, in the late Roman Republic, rhetoric which originated in Greece

provided the archaic formalistic Roman law with a much-needed method to construe an interpretation

that fitted in with the ideas of the time. In other words, from his point of view, Roman law was

renewed under the influence of Greek rhetoric. According to Stroux, law and rhetoric were not

separate disciplines but supplemented each other and were practised by the same group of people.

Stroux conceived the above-mentioned case as a symbol of the triumph of the rhetoric over law, and

said that the claimants derived this framework of interpretation from a rhetorician, Hermagoras of

Temnos (1st century BC) and his theory of stasis or status70. In Hermagoras’ theory we could find

68 SANCHEZ-MORENO ELLART, C. cit. n. 2, 4925 69 STROUX, J. Summum ius summa iniuria. Ein Kapitel aus der Geschichte der interpretatio iuris, intended for the Festschrift P. Speiser-Sarasin, Leipzig, 1926, which never appeared in its entirety. The work was reprinted in Römische Rechtswissenschaft und Rhetorik, Potsdam 1949, 9ff. Thesis which was followed by RICCOBONO, S. Prefazione a Stroux, AUPA, 12, 1929, 639ff; and other jurists as SANTACRUZ, J. Cit. n. 50 or COING, H. Zur Methodik der republikanischen Jurisprudenz zur Enstehung der grammatischen-logischen Auslegung, in Studi Arangio-Ruiz, I, Naples, 1953, 365ff., among others; but strongly challenged by many authors as SCHULZ, F. Cit. n. 17, 119; VOCI, P. Diritto ereditario romano, 2, Milan, 91ff.n, 1963, 913; GANDOLFI, G. Studi sull`interpretazione degli atti negoziali in diritto romano, Milan, 1966, 291-4; WESEL, U. Rhetorische Statuslehre und Gesetzesauslegung der römischen Juristen.Cologne, Berlin, 1967, 9-11; WIEACKER, F. Römische Rechtsgeschichte I, Munich, 1988, 588; inter alia. 70 Theory wich has been followed by various authors, and finishing with Hermógenes. On this matter, we could find the interesting work of CALBOLI MONTEFUSCO, L. La dottrina degli “status” nella retorica

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rational and legal status, and concerning the latter, is the status of the opposition between verba

(written words) and voluntas (will of the subject)71.

It would be salient to raise some questions, because rhetoric and law were not totally separate

disciplines72, despite the fact that the way of arguing in one and the other was different. This

disciplines were not as distant due to the common education received by rhetoricians and jurists (from

the 1st cent BC and after. Because of that knowledge, they were not just familiar with rhetoric, but

also with its forms as applied to legal cases73. But we have always to bear in mind that the renewal

of Roman law did not happen because of the Greek influence and the separation between the

professions of jurist and advocate (2nd-1st cent BC). The main idea to bear in mind is that Greek

rhetoric influenced Latin rhetoric in the order and construction of the discourse, but not in the

argumentation, because legal argumentation could never be the same as rhetoric argumentation. In a

simplified way, we can say that legal argumentation was primarily concerned with reaching

conclusions through logical reasoning, claims based on premises which try to assess what was right

and what was not and get to a conclusion. On the other hand, rhetorical argument intended to attract

attention and obtain the support of the audience, and did not pay attention to what is right, it was just

interested on trying to make the matter appear right and persuade the audience. As an important

examples of how oratory worked, we can quote an oratorical sourcebook, dated to the first century

BC, as it is the Controversiae and the Suasoriae74 (which completed the former) of Seneca the

Elder75. It is salient that this author, who lived in the time of Augustus, also criticized the Asian style

in oratory and argued in favour of Attic style. I can find a description and critique to Asianism in

greca e romana, Hildenseim, 1986; about legal status` theory it could be of interest, TORRENT, A. Salvus Iulianus, liber singularis de ambiguitatibus, Salamanca, 1971 71 According to WIEACKER, F. The Causa Curiana and contemporary Roman Jurisprudence, The Irish Jurist, 2, 1967, 161ff, the antagonism was between rigor-aequitas, instead of verba-voluntas; against, TELLEGEN, J.W. Oratores, Iurisprudentes and the causa Curiana, RIDA, 30, 1983, 294ff. 72 As also has remarked modern scholarship as for example in CALBOLI, G. Rhétorique et droit romain, Revue des études latines, 1999, 158ff; TELLEGEN-COUPERUS, J.W. Quintilian and Roman Law, RIDA, 47, 2000, 167-77; or STEEL, C. E. W. Cit.n 14, inter alia 73 As in the case of Servius Sulpicius Rufus, cfr. Nt. 21 74 For example; Suas. I, 16; IV, 5 75 In the controversiae the author raised several legal issues and in support of the solution considered more appropriate to the case in which he exposed the opinions of the plaintiffs (sententiae). In these kinds of issues, Seneca presented certain resources provided by rhetoric, through which it was possible to use one adverse aspect of the facts to obtain a more profitable offer for the interested parties. These exercises, though a mainstay of oratorical education in antiquity, often draw the fire of ancient critics who find fault with their unreality, analysing them as symptomatic of cultural decline (e.g., Tac. Dial. 35). Concerning this opera, cfr. LANFRANCHI, F. Il diritto nei retori romani, Milan, 1939; FAIRWEATHER, J. Seneca the elder, New York, 1981; CONNOLLY, J. The Strange art of the Sententious Declaimer, in Paradox and the marvellous in Augustan Literature and Culture, New York, 2009; FANTHAM, E. The growth of literature and criticism at Rome, in Cambridge History of Literary Criticism, 1, Cambridge, 1989; SUSSMAN, L.A. Aurelius Fuscus and the Unity of the Elder Seneca`s Suasoriae, Rheinisches Museum für Philologie Neue Folge, 120. Bd., H. 3/4, 1977.

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Contr. I.2.2376; Contr. IX.1.12f77; Contr. IX.6.1678; opposed to Atticism, Contr. X.5.2179. Maybe this

issue could be connected with the anti-Asian oratorical propaganda of Augustus, despite the fact that

Seneca could criticize also the Asian style not just because of the Augustan debate, but also by his

personal taste on the style of the rhetoric, due to the fact that during the Civil wars he supported

Pompei and not Augustus. As we have mentioned before, this debate came from long time before

Augustus, but the fact that in the time of Seneca the elder it was again revitalized by the emperor,

connects the emperor`s advice with the time when he wrote his opera80, maybe he had this personal

taste that connected with the fashion of his era.

Before making any conclusion about this subject, we have to summarily quote also another

theory that links rhetoric and Law. It is the one of Viehweg, who argued that the method of

organization of thought for lawyers and rhetoricians was the same81. However, it was not a systematic

organization of thought in the same way as a logical system, but rather a set of systems or as individual

schemes82. But the most important idea that we could find in his theory, is that his identification of

the topica (common reasoning of most people, given in Aristotle`s Rhetoric83 and especially in

76 Contr. I.2.23, Hybreas, inquit, cum diceret controuersiam de illo qui tribadas deprehendit et occidit, describere coepit mariti adfectum, in quo non deberet exigi inhonesta inquisitio: ἐγὼ δ᾽ ἐσκόπησ᾽ ἂν πρότερον τὸν ἄνδρα εἰ γεγέννηταί τις ἢ προσέρραπται. Grandaus, Asianus aeque declamator, cum diceret in eadem controuersia, num ideo occidi ut adulteros non paterentur? dixit: εἰ δὲ φηλάρρενα μοιχὸν ἔλαβον; In hac controuersia de sacerdote non minus obscene dixit Murredius fortasse dum repellit libidinem, manibus excepit. Longe recedendum est ab omni obscenitate et uerborum et sensuum. quaedam satius est causae detrimento tacere quam uerecundiae dicere. Vibius Rufus uidebatur cotidianis uerbis usus non male dixisse: ista sacerdos quantum militi abstulit! 77 Contr. IX.1.12f; Illa non est similis sed eadem, quam dixit prior ADAEVS, rhetor ex Asianis, non proiecti nominis, deinde ARELLIVS FVSCVS: ACHARISTOS SOI DOcho, KALLIA; OUCH OIDAS, POU MOI TEN CHARIN EDOCHAS; 78 Contr. IX.6.16; Omnes declamatores aiebat voluisse aliquid novi dicere illo loco, quo nominabat noverca filiam consciam. dixit, inquit, HYBREAS: TI OUN; EFEUSATO CHATA TES IDIAS THUGATROS; OUCH. ALLA CHATA TES EMES. Hanc sententiam FVSCVS ARELLIVS, cum esset ex Asia(nis), non casu dixit sed transtulit, ad verbum quidem: quid ergo? inquit, mentita est de filia sua? immo de mea. Modestius hanc sententiam vertit HATERIVS: quid ergo? mentita est? quidni illa mentiretur de accusatoris sui filia? 79 Contr. X.5.21; Sed et Graeci illam subrupuerunt: EVCTEMON, qui dixit: PROMETHEU, EPI SE TIS PUR CHAI ANTHROPON; sanius quam Glycon ADAEVS: PROMETHEU, SE TIS GRAFON ANTHROPON AFANIZEI. DAMAS corruptissime: DICHAIOS, PROMETHEU. DIA TI GAR PUR ECHLEPTES ANTHROPO; CRATON furiosissime, qui dixit: PROMETHEU, NUN EDEI SE PUR CHLEPSAI. hic est Craton, venustissimus homo et [pro homo et] professus Asianus, qui bellum cum omnibus Atticis gerebat. cum donaret illi Caesar talentum, in quo viginti quattuor sestertia sunt Atheniensium more: E PROSTHES, FESIN, E AFEL', INA ME ATTICHON E. hic Caesari, quod illum numquam nisi mense Decembri audiret, dixit: OS BAUNO MOI CHRE; et (cum) commendaretur a Caesare Passieno nec curaret, interroganti, quare non conplecteretur tanti viri gratiam: ELIOU CHAIONTOS LUCHNON OUCH APTO. 80 Cfr. FAIRWEATHER, J. Cit. n. 75, chp. Num.1, entitled Seneca the Elder: A man of his Time; she also quotes some pieces on which Seneca flattered the emperor, as Sen. Cont. II.4.13; IV.pr.1.; or affirms it on her book by the advice of other authors, 26 81 VIEWEGH, T. Topik und jurisprudenz, Munich, 1953, 59, in his theory, rhetoric appears as the element that establish the bases for the communication between the subjects. 82 Ibid. 61 83 Arist. Rhet, I, 1355a

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Cicero’s Topica84) as the way of building argumentations in Roman jurisprudence85. This conception

has been developed by other scholars86, who also think that rhetoric and law had the same logic, based

on the conception of enthymeme (an informally stated syllogism, because it lacks one of its parts).

The enthymeme could be understood as a dialectical syllogism, or on other hand, be conceived as a

logical deduction. So their main argument would be that both ways of argumentation could be

compared because both use logical deductions to build their arguments. This debate between two

different points of view does not make the discussion any easier.

Regarding these two theories, both of them could be criticized for being too radical in the case

of Stroux, because he thought that everything in legal argumentation came from rhetoric87, and in the

case of Viehweg, despite the fact that the topica were common places that can be used in both kinds

of argumentation (rhetorical and legal), as we have mentioned before, legal argumentation search to

get to a truthful conclusion based on certain premises, while rhetoric argumentation looks to convince

the audience through persuasive arguments. Despite of that, recent scholarship88 tends not to draw

such a clear distinction between these disciplines and the way that these professions made use of

them, bearing in mind that both rhetoricians and jurists had approaches in common due to their

educations based on rhetoric. It is also clear that in legal texts -especially those of Cicero- we could

find an influence of the stoic logic designed by Crisipus89, but this does not mean that his arguments

were necessarily attached to a philosophic school.

Legal training of orators must be studied separately in each case; the particular study of the

cases carried out by lawyers will finally show us that each of them has an education in rhetoric, and

that they used this art as well as philosophical concepts in their own ways, and whether functions in

the judicial procedure were separated or not.

Conclusions

All the problems discussed in the text trace some features of the Augustan age, and also

84 Cic. Top. VI-VII 85 It is part of the rhetoric broadly containing the arsenal of ideas or arguments with which, on the one hand, he thinks and organizes your thinking and, on the other, is preparing to convince his audience (strictly rhetorical sense) or defeat an opponent (dialectic). To sum up, topica is a set of topics that serve to develop arguments 86 For instance, SOBOTA, K. Sachlichkeit, Rhetorische Kunst der Juristen, Frankfurt, 1990 87 VAUGHN, J.W. Cit.n.64, 221-2, “Stroux’ s thesis was based on the assumption that Scaevola as a iurisprudens argued for a literal interpretation (scriptum) in an effort to uphold the rigor of the law, while Crassus as an orator argues for an interpretation based on fairness alone. This sharp distinction of rule and purpose cannot be drawn. Each man argued as an orator on behalf of his client’ s interests, his personal opinion about about the legal question at hand being of little importance and impossible to reconstruct. We know that Scaevola was fully capable of arguing from the writer’ s intention and that Crassus argued at least one case in defense of the “letter” of a document” 88 CROOK, J. Cit.n.62, 3–10; HARRIES, J. Cit.n. 25, 70–4, 97–136; cfr. Also. TELLEGEN, J. W. “The reliability of Quintilian for Roman law on the Causa Curiana.” In O. E. Tellegen-Couperus, ed., Quintilian and the law: the art of persuasion in law and politics: 191–200. Leuven, 2003 89 GARCIA GUAL, C. La filosofía helenística, Madrid, 2008, 80ff

17

underline notorious peculiarities of the emperor Augustus and his way of governing. All those reforms

carried out by Augustus had an influence in many directions, maybe not noticeable at first sight, but

deep and remarkable in the end.

For that which concerns the legislative reforms of private procedure, Augustus appears as an

organizer of some practices that started to be carried out previously, establishing definitively the

formulary procedure on the procedure and qualifying it as the legitimate one which has to be

employed in the trials. Sometimes big changes come about not from original and completely new

ideas, but by acts of authority that lay down the common practices. By his action, Augustus thrust the

importance of the language (and so of the oratory and rhetoric)90 into Roman procedure, settling the

change from a rigid and excessively formal practice into something much more colourful and flexible,

adapted to real-life situations. This new procedure helpfully reminds us that the world is not so

carefully ordered that everything needs to fit into a single, and necessarily imperfect, intellectual

scheme. Augustus was one of the first to notice this, and acted by adapting the old institutions to his

time, and to the new political and structural conceptions by which he was creating the Roman Empire.

But here I have to distinguish two events connected to one main idea: that the fact of the procedural

reform of Augustus and his propaganda in favour of the Atticist style in oratory were two separate

events, which were mixed up and connected because of the day by day practice and the context

surrounding.

Why do I say so? Because the main purpose of Augustus with the changes done in procedure

was to settle, organize, and made it accessible to both citizens and foreign people that needed to have

access to the justice. On the other hand, the Augustan propaganda concerning oratory was an Imperial

manoeuvre that seek to connect the origins of Rome with Greece, but also showing the superiority of

Rome over Greece, because of the Roman conquest of it and transformation in a kind of “Hellenistic

museum”. Augustan Classicism, was a cultural movement which idealized the conception of classical

Greece, which the emperor tries to connect with Rome so, as we have mentioned before, a classicizing

movement with Greece as main character, but in fact just concerning Rome as rooted in Greece but

being “superior” at the end. But that, as we have seen, perhaps it affected also the view of people

concerning oratory, so they criticized the flourishing style and searched for a way to make speeches

with a simplified, lucid and restrained point of view. We understand that these matters affected the

subjects involved in this formulary procedure settled by Augustus as the second stage of the process,

so in a way we can imagine how they elaborated their speeches according to the fashion of the era:

trying to follow the proper attic style. But it must be stressed that this classical rebirth was an exercise

of enhancement of ancient Greece suited to the needs of the Roman Empire that Augustus was

building.

90 For the differences between one discipline and the other, cfr. Nt. 3 18

How this two events are related to each other? As I have mentioned before, due to the daily

practice. On one side, I find the formulary procedure, with two phases, and one in which the

employment of oratory as theory and rhetoric as practice was essential to persuade the judge. On the

other hand, the context surrounding that change in the procedure was in part characterized by a

propagandistic movement in favour of the Attic style in oratory. As I have mentioned before, trials

were an occasion of achieving fame for lawyers, so what will be more logical than to adapt their

speeches to the fashion of the Principate? This will be a matter of fact to be in accordance with the

guidelines settled by the emperor. Furthermore, as explained before, the study of oratory and the

employment of rhetoric were not disciplines totally alien for both jurists and advocates. One clear

example of the importance of this fashion in the Principate, can be seen in the Controversiae of Seneca

the elder, books on which the author criticized the Asian style in oratory and argued in favour of Attic

style91.

The subject of the relationship between rhetoric and law was not a problem just from the

Augustan age, but a general and timeless problem. As it has been shown with the case of the Causa

Curiana, was more correct to benefit the written words, or take into account the will of the deceased?

This case, despite the fact that happened before Augustus’ time, show to us the importance of Rhetoric

for the development of legal cases. As we have seen, the case is not as simple as that, because neither

are the cases clear and pure, nor can the parts benefit from just one kind of knowledge.

In the introduction to her comprehensive book, Women in Roman Law and Society92, Jane F.

Gardner urges caution in drawing too many conclusions about the realities of Roman life from the

letter of Roman law. We must take that advice ourselves; as with this letter, cases as the Causa

Curiana shows it is unavoidable that the performances of human beings in real life are not easily

identifiable and able to fit into a concrete scheme of facts. Accordingly, we come to understand that

the measure of the relative influence of rhetoric and Roman law is an exercise that must be done case

by case, not in a general way. Generalizations can be used to cope with diversity and also draw

guidelines of knowledge for a better understanding, but usually do not fit into the concrete situations

of real life. I cannot quote any other case of the same importance than the Causa Curiana that

happened in Augustus’ time and shows the importance of rhetoric in legal contexts, but I think that

this case is a big example to show how huge was the importance of this discipline. Taking this premise

into account, and due to the changes happened in Roman procedure, we can see how this discipline

was earning a big role in this practices. All this ingredients, settled in the context of the Augustan

cultural classicist movement, launch wires through which we can establish connections and try to

imagine the events in context. Like a pebble that falls in the water and creates circular waves, each

91 Maybe the author simply loved this style, but the fact is that he connected with the fashion of this era, and shows how beloved was the Attic style in literature, opposed to the Asian style. 92 GARDNER, J.F. Women in Roman Law and Society. Bloomington and Indianapolis, 1986

19

of this performance has an influence in other, connecting one event to the next one and letting us to

try to establish that hypothesis, that Roman lawyers of Augustus’ time not just employ rhetoric for

their defence speeches, but also that maybe they were employing an attic style for it, adapting his

practice to the fashion of the Principate.

As a general conclusion, I can say that the shadow of Augustus can be appreciated behind all

parts of the article. As the thread of Ariadne given to Theseus before he entered the labyrinth,

Augustus is the line that guides all the article from the start to the end. His settlement of the procedure

and authority of the style of oratory that must be employed in the Empire had an influence in the way

that the subjects express themselves in the procedure. Definitively, this innovation from Augustus

settled a new pattern for the legal practices, despite the fact that some of the changes had been done

before. His preference for a concrete style of oratory was also a pattern to follow to be in accordance

with his imperial propaganda. With his authority and guidelines, we can imagine the legal panorama

from a new point of view: with colourful trials, but always following the exempla maiorum, to always

recall the glorious empire that he, Augustus, had raised up.

University of Southampton

E.Mataix-Ferrandiz@soton.ac.uk

Bibliography

- ANDERSEN, Ø. How good an orator should be?, in The Orator in Action and Theory in

Greece and Rome, Leiden-Boston-Koln, 2001, 3-15

- BERGER, A. Encyclopedic dictionary of Roman law, Philadelphia, 1953

- BERTOLDI, F., La “lex Iulia iudiciorum privatorum”, Torino, 2003

- BIAGIO CONTE, G. Latin Literature: A History, 1994

- BLOOMER, W.M. Schooling in Persona: Imagination and Subordination in Roman

Education, Classical Antiquity 16, 57–78

- BOWERSOCK, G.W. Augustus and the Greek World, Oxford, 1965

- CALBOLI, G. Rhétorique et droit romain, Revue des études latines, 1999, 158ff

- CALBOLI MONTEFUSCO, L. La dottrina degli “status” nella retorica greca e romana,

Hildenseim,1986

- CLARKE, M.L. Rhetoric at Rome, London, 1953

- COING, H. Zur Methodik der republikanischen Jurisprudenz zur Enstehung der

grammatischen-logischen Auslegung, in Studi Arangio-Ruiz, I, Naples, 1953, 365ff 20

- CONNOLLY, J. The Strange art of the Sententious Declaimer, in Paradox and the marvellous

in Augustan Literature and Culture, New York, 2009

- CROOK, J.A. Legal Advocacy in the Roman World, London, 1995

- CULPEPPER STROUP, S. Greek Rhetoric Meets Rome: Expansion, Resistance and

Acculturation, in a Companion to Roman Rhetoric, Oxford/ Malden/ Carlton, 2007, 23-37

- DOMINIK, W.J. The Development of Roman Rhetoric, in Oxford Handbooks Online, 2014

- FAIRWEATHER, J. Seneca the elder, New York, 1981

- FANTHAM, E. The growth of literature and criticism at Rome, in Cambridge History of Literary

Criticism, 1, Cambridge, 1989, 220-45

- GABBA, E. Political and Cultural Aspects of the Classicist Revival in the Augustan age,

Classical Antiquity, 1, 1, 1982, 43-65

- GARCIA GARRIDO, M. Derecho privado romano. Casos, acciones, instituciones17. Madrid,

2010

- GARDNER, J.F. Women in Roman law and Society. Bloomington and Indianapolis, 1986

- EISELE, F. Ueber die lex Aebutia, in Abhandlungen zum römischen Civilprocess, Freiburg,

1889

- FRIER, B. The Rise of the Roman Jurists, Princeton, 1985

- GANDOLFI, G. Studi sull`interpretazione degli atti negoziali in diritto romano, Milan, 1966

- GARCIA GUAL, C. La filosofía helenística, Madrid, 2008

- GLEASON, M. Making Men: Sophists and Self-Presentation in Ancient Rome, Princeton,

1995

- GUNDERSON, E. Staging Masculinity: The Rhetoric of Performance in the Roman World,

Michigan, 2000

- HARRIES, J. Cicero and the Jurists, London, 2006

- HORNBLOWER, S; SPAWFORTH, A; EIDINOW; E (eds.); Oxford Classical Dictionary,

Oxford, 2012

- HORROCKS, G. Greek: a history of the language and its speakers2. Chichester/Malden, MA:

2010

- JOLOWICZ, H.F. Academic elements in Roman law, Law Quarterly review, 1932

- KASER, M. Die “lex Aebutia”, in Studi E. Albertario, Milan, 1953, 28ff

- KENNEDY, G. The Art of Rhetoric in the Roman World (300 BC- AD 300), Princeton, 1972

- KIRCHNER, R. Elocutio: Latin Prose Style, in A Companion to Roman rhetoric,

Oxford/Malden/Carlton, 2007

- LANFRANCHI, F. Il diritto nei retori romani, Milan, 1939

- LAURAND, L. Études sur le Style des Discours de Cicéron4, 3 vol., Paris, 1936–38

- LINTOTT, A. Romans in the age of Augustus, Oxford, 2010 21

- MACMULLEN, R. Romanization in the time of Augustus, Yale, 2000

- MILNOR, K. Augustus, History, and the Landscape of the Law, Arethusa, 40, 2007, 7-23

- NEUMEISTER, C. Grundsdtze der forensischen Rhetorik gezeigt an Gerichtsreden Ciceros,

Munich, 1964

- PAOLI, U.E. Droit Attique et Droit Romain dans les rhéteurs latins, RHD, 1933, 175ff.

- PUGLIESE G., Processo civile romano II, Il processo formulare, I, Milano, 1963

- RICHLIN, A. Gender and Rhetoric: producing Manhood in the Schools, in Roman eloquence.

Rhetoric in Society and Literature, London, 1997, 90-110

- RICCOBONO, S. Prefazione a Stroux, AUPA, 12, 1929, 639ff

- SAMELLAS, A. Alienation: The Experience of the Eastern Mediterranean (50-600 A.D.),

Bern, 2010

- SANCHEZ-MORENO ELLART, C. Oratory and Roman Law, in The Encyclopedia of

Ancient History, New York, 2013, 4924-6

- SANTACRUZ, J. Influencia de las disciplinas no jurídicas en el Derecho romano, AHDE,

XVII-XXVIII, 343 – 398

- SHIAVONE, A. Nascita della giurisprudenza: cultura aristocratica e pensiero giuridico nella

Roma tardo-repubblicana, Bari, 1976

- SCHULZ, F. History of Roman legal science, Oxford, 1946

- SOBOTA, K. Sachlichkeit, Rhetorische Kunst der Juristen, Frankfurt, 1990

- SPAWFORTH, A.J. S. Greece and the Augustan Cultural Revolution, New York, 2012

- STEEL, C. Cicero, Rhetoric and Empire, New York, 2001

- STEEL, C. E.W. Roman Oratory, Glasgow, 2006

- STROUX, J. Summum ius summa iniuria. Ein Kapitel aus der Geschichte der interpretatio

iuris, Berlin/Leipzig, 1926

- SUSSMAN, L.A. Aurelius Fuscus and the Unity of the Elder Seneca`s Suasoriae, Rheinisches

Museum für Philologie, Neue Folge, 120. Bd., H. 3/4, 1977, 303-323

- SWAIN, S. Hellenism and the Empire, Oxford, 1996

- TALAMANCA, M. Il riordinamento augusteo del processo privato, in Gli ordinamenti

giudiziari di Roma imperiale. Princeps e procedure dalle leggi Giulie ad Adriano. Atti del

convegno internazionale di diritto romano e del III premio romanistico “G. Boulvert”,

Copanello 5-8 giugno 1996, Naples,1999, 63ff.

- TANNER, R.G. Philosophy, Rhetoric, and Legal Advocacy, in Thinking like a Lawyer, Leiden-

Boston-Brill, 2002, 181-190

- TELLEGEN, J.W. Oratores, Iurisprudentes and the causa Curiana, RIDA, 30, 1983, 294ff.

- TELLEGEN-COUPERUS, J.W. Quintilian and Roman Law, RIDA, 47, 2000, 167-77

- TELLEGEN, J. W. “The reliability of Quintilian for Roman law on the Causa Curiana.” In 22

O. E. Tellegen-Couperus, ed., Quintilian and the law: the art of persuasion in law and politics:

191–200. Leuven, 2003

- TORRENT. A. Interpretación de la “voluntas testatoris” en la jurisprudencia republicana:

“la causa curiana”, AHDE, 39, 1969, 173-211

- TORRENT, A. Los antagonismos forenses en la “causa Curiana”, BIDR, 28, 1986, 159ff.

- TORRENT, A. Salvus Iulianus, liber singularis de ambiguitatibus, Salamanca, 1971

- VASALY, A. Cicero`s early speeches, in Brill`s Companion to Cicero. Oratory and Rhetoric,

Leiden, Boston, Koln, 2002

- VAUGHN, J.W. Law and Rhetoric in the Causa Curiana, Classical Antiquity, 4, 2, 1985, 208-

22

- VOCI, P. Diritto ereditario romano, 2, Milan, 1963

- VVAA. The Oxford Companion to Philosophy, Oxford, 2005

- WALLACE-HADRILL, A. Augustan Rome, Bristol, 1993

- WALLACE-HADRILL, A. Mutatio morum: the idea of a cultural revolution, in The Roman

Cultural Revolution, Cambridge, 1997

- WALLACE-HADRILL, A. Rome`s Cultural Revolution, New York, 2008

- WATSON, A. Narrow, Rigid and Literal Interpretation in the Later Roman Republic, TR, 37,

1969, 353ff.

- WATSON, A. The Law of the Ancient Romans, Dallas, 1970

- WESEL, U. Rhetorische Statuslehre und Gesetzesauslegung der römischen Juristen.

Cologne, Berlin, 1967

- WHITE, P. Poets in the new Milieu: realigning, in A Companion to the Age of Augustus, New

York, 2005, 321-39

- WIEACKER, F. The Causa Curiana and contemporary Roman Jurisprudence, The Irish

Jurist, 2, 1967, 161ff

- WIEACKER, F. Römische Rechtsgeschichte I, Munich, 1988

- VIEWEGH, T. Topik und jurisprudenz, Munich, 1953

- WISSE, J., Greeks, Romans, and the Rise of Atticism, in Greek Literary Theory after Aristotle,

Amsterdam, 1995, 65-82

- WLASSAK, M. Römische Processgesetze. Eim Beitrag zur Geschichte des

Formulaverfahrens, 1, Leipzig, 1888

- ZANKER, P. The Power of Images in the Age of Augustus, Michigan, 1988

- ZOLTÁN MÉHÉSZ, K. Advocatus romanus, Buenos Aires, 1971

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