The rhetoric of litigiousness and legal expertise in Cicero and the Attic orators

Abstract

Traditional accounts of ancient law make the following generalizations: Athenian law was a system of amateurs and, consequently, arbitrary and irrational. Roman law, by contrast, gradually became a system of specialized professionals. Legal scholars (jurists) interpreted and developed the law and advocates represented litigants. Thanks to specialization, Roman law became rational and consistent--a foundation for Rome's imperial administration as well as many modern legal systems. Bruce Frier has argued in a landmark book that this development ("the rise of the Roman jurists") began in the last century of the republic, and that it was endorsed by Cicero. By examining how Cicero and the Attic orators discuss legal expertise and litigation, I seek to revise this standard picture in two ways. First, I argue that Athenians were not hostile to legal knowledge per se, but to expertise in litigation. I find, furthermore, that learning from the laws was part of the moral training of Athenian citizens. I then argue that Cicero's attitude towards legal expertise was not progressive, but reactionary. Litigation was a moral issue in the Roman republic no less than in democratic Athens. In Cicero's opinion, the true legal expert--whether an orator, a jurist, or a statesman--is a figure with the moral authority to resolve conflicts without debate. Cicero promulgates an ideology of law wherein litigation ideally would be unnecessary, and citizens' disputes would be resolved by their "natural" superiors.