Champion who put personality into his perorations

Cicero the Advocate

November 18, 2005

Cicero's court speeches are sources for Roman history and Roman law, and for these subjects scholars return to them again and again. The speeches also show off Cicero's skill as an advocate, but his advocacy is not studied so often, at least by legal scholars. The reason, briefly, is that the long evolution of Roman law started to assume the pretensions of a science in the 19th century and, looking back, Roman advocates were not considered to be scientists.

John Crook produced a valuable book on this neglected subject ten years ago, Legal Advocacy in the Roman World , and now Jonathan Powell and Jeremy Paterson have produced another important book. It includes essays by an international group of authors, on Cicero's advocacy generally, as well as essays on some specific speeches. Andrew Lintott provides a summary of late republican court procedure (for which English readers would otherwise have only A. J. G. Greenidge's out-of-date book), and in an epilogue, Lord Justice Laws compares the modern English advocate with the Roman one. Following that, there is a chronology of Cicero's appearances as an advocate. Lawyers and classicists will very much appreciate this book.

To many modern readers Cicero seems to have been a more-than-competent lawyer, but the community of Roman law scholars has for a long time downplayed the need for Cicero or any Roman advocate to "know the law". The judge, it is thought, got his law from the class of professionals that served as the law's real guardian: the iurisperiti or jurists, whose main business was to give legal advice and develop the law. On this assessment the advocate was not a mere performer, but he was not on the highest rung, either. The editors are right, however, that a Roman advocate needed as much law as a modern barrister, which is to say, a lot. They might have added that where court practice is largely oral, as in Rome, the law is important, if not so easy to spot; in written practice, the law is more conspicuous even if it is not more essential to the judgment. The question of Cicero's or any Roman advocate's legal proficiency, moreover, turns on the larger question of what a Roman judgment was supposed to achieve. Law and fact were not the only things apposite to the judgment; there was also equity, custom, and history, Cicero being master of all of these. This is where Jill Harries embarks on some serious blister-pricking: in the chapter "Cicero and the law", she posits that Cicero made it his business to argue such points, but that he occasionally went further and relied on precedent as well. Not everyone will agree with Harries that an exemplum is a precedent, still less a legally binding one, but she is right to raise the possibility that judges paid attention to past judgments. Just because the Roman jurists turned up their noses at past judgments does not mean that every Roman judge did the same.

What exactly has Cicero left us - real speeches, or literary pieces that look like speeches? As an advocate he did not read from a script but spoke from notes and prepared a written version afterwards. Since he wrote for students of rhetoric, we tend not to bother ourselves with the question: Cicero presumably wrote so that they could weigh the rhetorical effect of his works, so even if the written versions deviate from what was spoken, they are authentic rhetorical products. In "Reading Cicero's narratives", David Levene turns the argument back on itself: there are places where the student of rhetoric simply could not have determined how the listener would have responded, and in such cases rhetorical theory might have erected a firewall (my word) between reader and listener by forcing the reader to construe even a faithful account differently from the way a listener had heard it. A wonderful point.

Modern advocates find much in Cicero's advocacy that at best confuses them, and at worst repels them. He not only argues the case; his own integrity, personality and career are part of the case. He is sometimes bitter to his opposite number and attacks the character of his client's opponent. He is also famously self-aggrandising. One of the virtues of this volume is to explain all this without trying to justify it. In their introduction, the editors argue that the advocate was not the disembodied voice of his client but in a sense vouched for the justness of his side. (The epilogue shows how the modern law takes exactly the opposite position.) In his separate essay, "Self-reference in Cicero's forensic speeches", Jeremy Paterson discusses the roots of advocacy in patronage and its effect on the behaviour of the advocate, while in "The rhetoric of character in the Roman courts" Andrew Riggsby argues that character attacks are not utterly irrelevant, even today. And Wilfried Stroh argues, in " De domo sua : legal problem and structure", that blatant emotional appeals are sometimes the only weapons the advocate has.

In "Perorations", Michael Winterbottom says: "The way the judges should vote is commonly presented as the logical consequence of what has been said and done to persuade them." The distance between modern advocacy and Cicero's is nicely expressed in this observation.

Ernest Metzger is professor of civil and comparative law, Aberdeen University.

Cicero the Advocate

Editor - Jonathan Powell and Jeremy Paterson
Publisher - Oxford University Press
Pages - 448
Price - £84.00
ISBN - 0 19 815280 9

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