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LEGAL REASONING IN ROME AND TODAY

PROFESSOR A. M. HONORE* I INTRODUCTION

A scHoLAR interested in Roman law is sometimes asked to say in what the

contribution of Roman law to our modern legal culture consists. When I am asked this I think first of the rules of Roman law which, through the various sorts of 'reception', have found a niche in modem European legal systems. Then I turn to the concepts, like ownership, which have become embedded in our thinking and in our social ways. But perhaps one should attach equal or greater importance to a third area of influence, namely the method of reasoning which modem legal cultures have inherited from Roman law. To talk about legal reasoning is to hear with trepidation the echoes of von Lubtow's remark that Roman jurists did not talk about method because they knew that a legal science which has occasion to be concerned with methods must be sick. If von Lubtow is right our modem Roman legal science is certainly in decline. Since the Second World War Romanists have shown a great deal of interest in legal method. The two works that stand out are those of Viehweg (1953) and Horak (1969). Viehweg's little classic Topik und Jurisprudenz (1953) is well known. It had a certain succ&s de scandale, because it totally devalued systematic reasoning as a tool of legal decision and suggested that the actual method followed by Roman jurists and their successors right up to the present day was non-systematic and non-deductive. He characterised it as a dialectical method based on topoi, a term taken from Aristotle and Cicero to denote a non-demonstrative sort of argument, in which the conclusions could only be called probable, not certain, and which is based on received or standard arguments, topoi, sedes a quibus argumenta promuntur (Cicero). This type of reasoning is not merely in general non-deductive but it centres round the individual problem to be resolved, the Grundaporie in such a way that the problem-solving element overrides deductive considerations. If the deduction creates a result which is unsatisfactory as an answer to the basic question, it is interrupted by an invention (i.e. a
new rule is propounded or a new argument adduced) . . . by taking

account of a recognized ' topos '. Hence when the will theory (under the BGB) suggests an unsatisfactory conclusion it is supplanted by a tpos, that one who reasonably relies on another should be protected (Vertruaueneschutz), which is not explicitly mentioned in the code and so cannot be deductively derived. Viehweg's contribution, despite the criticism levelled at it, seems to me in retrospect to constitute not merely a famous but an important element in the debate about the character of legal problem-solving. Two of his themes are especially important: the notion of topoi as informal arguments, something distinct from an appeal to rules of law; and the notion of the backlash, a dialectical movement backward from solution to reason or (to use more traditional language), from conclusion to premise.
*Regius Professor of Civil Law in the University of Oxford.

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Not that there was anything fundamentally new about this idea of a reverse movement in the reasoning. Indeed the realist movement (in its American version especially) continually harped on the same theme and treated legal reasoning as essentially justificatory; something produced in order to show why a decision reached independently should be accepted, or to make explicit intuitive assumptions which have gone to the making of the decision. What Viehweg showed was how the backlash from decision ro reason fitted into the more normal forward deductive movement of legal argument, by interrupting it in certain cases and causing a reconsideration of the premises on which a provisional conclusion had been based. A great deal of criticism has been levelled at the work of Viehweg. Much of this is summarized in Horak's recent book Rationes decidendi 1 (1969). He and others have said that it is impossible to contrast, as does Viehweg, a problem-solving sort of legal argument with a systematic, deductive or axiomatic one. Every judge, every legal adviser giving an opinion, every legal writer considering a decision or anticipating a case that has not yet arisen is engaged in problem-solving. Only the methods adopted to solve the problem can differ. The distinction should therefore be between deductive, etc. and' topical ' methods of problem-solving, not between problem solving and deductive or systematic reasoning as such. Secondly the notion of topos is said to be too vague to be of much assistance: in some lists it comprises almost every conceivable type or argument, and includes concepts as well as maxims, principles and regulae. Thirdly topoi are relevant only to law-finding, the formulation of a rule or decision, not to justification. Viehweg, one way and another, has been carried away, the critics say, by enthusiasm for his toy. The first two criticisms seem to me correct. It is important to appreciate the restricted character of the arguments which can be adduced in order to solve a legal problem. The third criticism does not convince. The precise function of the topos is to justify a decision, a rule or a subsumption : indeed it could be defined as an argument which in the context serves in the absence of contrary arguments as an adequate justification for a decision. However, there is no need to be wedded to the somewhat archaic terminology of topoi. Though Cicero wrote a book on the subject addressed to the jurist C. Trebatius Testa it is uncertain how much notice Trebatius took of it. The Roman jurists probably had no conscious theory about the way in which they reasoned. This does not prevent us from trying to give a systematic account of what they were doing, any more than the fact that in ordinary speech the notion of ' cause ' is used unreflectively prevents us from giving a systematic account of the principles on which that unreflective use tests. II
TYPES OF REASONING EMPLOYED BY THE

ROMAN

JURISTS

Consequently, before proceeding further with the theoretical debate I first describe the sorts of argument which Roman classical jursits deployed or did not deploy in order to justify the decision they reached in particular cases. The sort of decisions we are concerned with are decisions according to law, where that term covers decisions which are made in accordance with some pre-existing law, those decided according to a law which is declared simultaneously with the decision by virtue of a power

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60 CAMBRIAN LAW REVIEW to declare or make the law vested in the decider, and those which are made by virtue of some such power without reference to any pre-existing and simultaneously declared law: in the latter categories one can think of responsa of authorised jurists under the Roman system (compare judicial decisions under the Anglo-American system of precedent which are or are not combined with a stated ratio decidendi). Finally we may include the decisions resulting from the discussion of a quaestio in the Roman system (compare the discussion by a modem text-writer of a disputed or possible case which has not yet been the subject of legal determination). Here it is perhaps more accurate to speak of a recommendation than of a decision, and this recommendation is combined with an element of prediction-that such-and-such will be decided when the case arises-and justification, the giving of reasons for the recommendation. If then we take as the matter to be analysed decision making by solving a problem according to law, we must admit that this activity formed a large part of the work of every Roman jurist as it does of every modern jurist and especially every judge. This is true even of a system which operates more systematically than the Roman or the English, e.g. of German law. Coming then to the types of argument to be found in the Corpus Iuris I propose to take examples only from the Roman law of unjust enrichment, the condictiones. This is a fairly well-known and up-to-date branch of the law, in the sense that it has not to any great extent become oscolete, and it has in fact exercised a great deal of influence on modern systems all over Europe. The first task is to list the main types of argument found in the texts, then to see what they have in common. The analysis which follows is meant to apply to decision making at all its stages. Thus it is not merely the final stage, at which the judge or decider decides that the plaintiff should or should not, recover, that we are concerned with. The analysis applies equally to the formulation of a rule of law which is put forward as the reason for the decision. The analysis we have to undertake therefore applies to a decision or a series of decisions (concerning the formulation of rules, subscumptions, non-subsumptions or the final disposal of the issue) backed by reasons or arguments, either expressed or implied. The decisions that we find in the Roman jurists either (a) rest on rules of law or (b) rest on open arguments (topoi, principles) or (c) appeal to the facts of the case or (d) appeal to auhtority or (e) are unmotivated. (a) Appeal to rules of law. The first category is that of decisions which rest on rules of law. This expression I use in a rather broad sense. It covers every sort of formulation which is intended to have a prima facie universality, that is, to be applied, subject to exceptions, in every case which it appears to cover. The most important type of rule is the norm, e.g. the norm that a payment for a given purpose must be returned if the purpose fails. But 'rules of law ' also includes definitions, e.g. that payment of what is not owing includes payment of something which could not have been recovered by the payee because there was a valid defence to the claim. (Ulp. 26 ed. D. 12.6.26.3)-in the sense in which ' definition ' extends to all directions to subsume certain classes of case or not to subsume them under a general term-and also predicative statements whereby legal consequences are directly or indirectly attached to fact situations, e.g. that a thief is always in mora, always guilty of

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delay and so liable to the various legal consequences of that condition. (D. 13.1.8.1. Ulp 37 ed. semper enim moram fur facere videtur.) Julian is a jurist who often argues by appeal to a formulated rule (not necessarily a regula in the various senses distinguished by Stein, Regulae luris). Thus D.12.1.19 pr (Jul. 10 Dig.) "Not every payment creates an obligation in the recipient, but only when the sense of the transaction is that (an obligation shall immediately be created). Hence in a gift mortis causa an obligation to repay comes into existence only when the event contemplated takes place, e.g. when the donor recovers, in which case the money is recoverable". The rule is first formulated, then applied. The same formulation might constitute a rule of law in the mouth of one jurist and not in the mouth of another. For example that no one should be enriched to the detriment of another (Pomponius 21 Sab., D.12.6.14) might be taken by someone as an appeal to a rule of law, though I should construe it as an open argument. The intention of the person deciding is crucial here. Does he mean this to apply prima facie to every case of enrichment at the expense of another, so that the recipient will have to show why he should not return the enrichment in the particular instance, or is it that this is simply an argument which justifies (not requires) a decision in favour of return in the absence of considerations to the contrary ? This very crucial distinction is central to an understanding of legal reasoning. It should be noted that the rule of law may be implicit in the argument rather than stated, and that it may be already established or newly formulated. (b) Open arguments. The second type of argument is the open argument, topos or principle. What I have in mind is something very like the I principles ' ' Grundsdtze ' explicated by Esser in his classic Grundsatz und Norm in der richterliche Fortbildung des Rechts. They can however be broader than anything which would ordinarily be called a principle in English: for example an appeal to justice, utility or good faith is an open argument in the sense I am using. These open arguments have the following characteristics, partly formal and partly of substance. (i) They are, unlike rules of law, not prima facie universal in scope. Thus, the appeal to utility, utilitas,which is common in the Roman jurists of the early third century does not imply that in all cases the solution which has the greatest utility, which will probably bring the greatest advantage to citizens as a whole is to be selected. It is rather that in the absence of contrary reasons utility will justify the choice of a particular solution and that it will sometimes justify making an exception to a rule of law: (ii) They embody.social values; I am content to follow Esser here and say that they incorporate the purposes of rules of law, Gesetzzweckce. These open arguments are therefore drawn both from legal discourse (previous arguments, professional tradition, etc.) and directly from everyday life, from moral or social discourse in the society in question. However, the argument need not take the form of a direct appeal to the social value in question. Often it does so, and in Roman law we find that such notions as utilitas, bona fides, aequum et bonum, ratio, humanum, natura and so forth figure prominently in arguments at certain periods. There is an element of fashion about this, and there is no doubt, for example, that whereas the heydey of natura/naturalis/naturaliter was the Spanish dynasty, Trajan and Hadrian, the acme of aequum and its cognates came with Marcus Aurelius and that of utilitas under Severus

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62 CAMBRIA" LAW REVIEW and his successors. These social values to which appeal is naturally made outside the law also can be encapsulated in maxims, apothegms, regula (in the Roman sense) and the like. An example is the statement that one who suffers loss through his own fault is not regarded as suffering loss (the basis for many centuries of the rule which debarred a negligent plaintiff from recovering in a tort action). This rule (D. 50.17.203) is by Pomponius who is fond of the encapsulations I am describing; quod quis ex culpa 8ua damnvm sentit non intellegiturdamnum sentire. Pomponius is here ajpeeling to a fundamental nation of responsibility. Everyone is responsible for his own fault and should not try to shift the consequence of it to another. However this notion of responsibility (for which there was no Latin expression) was not directly aipealed to: it is filtered through the more specific maxim. (iii) Tbirdly the open arguments are related to the rules in that they provide the justifications for the rules and justify the making of exceptions to them. And since the operation of a legal system is above all concerned with argument, is dialectical, the open arguments form an essential part of the legal system. To fulfil these functions the open arguments must be relatively broad in character. They are capable of yielding by way of justification a number of detailed rules and conversely of being distilled by what is miscalled an inductive process from the content of a number of rules. Estopped is an open argument since the English legal system contains a number of rules based on it-estopped by representation and by record for example. But the principle can be elaborated by an appeal to rules which do not mention it and are not expressly based on it, like autrefois convict. The arguments I have in mind I call open because they have a wide but indeterminate scope of operation. A Roman jurist who was fond of appeals to such open arguments is Celsus. Thus D. 12.4.3.7 (Ulp 26 ed.) deals with a case where a slave owner dies giving his slave freedom by will if he pays 10 but by a later codicil giving the same slave freedom unconditionally. The slave does not know of the codicil and pays the heir ten. He later discovers, and sues for the 10. Celsus' father held he could not recover but Celsus the son, our Celsus, allows recovery on the ground of naturalis aequitas, natural equity. (c) The facts. Next there is the appeal to the facts of a case. Very often this is coupled with a distinction : if the facts are, or were so-and-so the result is X, if not, Y. Thus D. 12.4.3.3 1 give you money to manumit Stichus, a slave, Stichus dies. Can I recover the money ? Proculus says, if he died after he could have been manumitted, I can, if not I cannot. The reason is implicit : the recipient is at fault in the first case in not manumitting the slave promptly. The appeal is therefore implicitly to the open argument, that the person at fault bears the risk or pays : i.e. to responsibility for one's own actions. Proculus favours this type of argument. (d) Appeas to authority. Notoriously appeals to authority in this sense were abundant in Roman law. These appeals were made quite independently of any doctrine that the responsa or resuripts cited were binding, wbicb in certain cases and at certain periods they were. Labeo says this, Celsus that, Julian the other (D. 12.6.6) ; quite apart from whether one is eonvinced by their reasons, and whether their opinions are binding, they are to be respected as lawyers. In listing the types of argument which underlie the various styles, then, we must make a place for arguments based on personal authority. In modern English practice

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LEGAL REASONING IN ROME TODAY 63 arguments from precedent function in much the same way. The doctrine that precedents are binding is not an essential feature of a system based on precedent. English law functioned as such a system for many hundreds years without a formal doctrine to that effect. What is necessary for a system of precedent is that arguments from example should be admissible in the sense that an appeal to a previous instance or example is an adequate justification for decision, not necessarily that it compels decision. The status of precedent in England is derived from the high status of judges. If we look for a moment behind the veil of the technical doctrine that cases make law we find a mode of argument that depends on the authority of judges past and present, just as in Rome the appeal was to the authority of lawyers or emperors, including sometimes to the consensus of learned opinion, quod constat. The appeal to authority, in the case where the opinion or precedent is not technically binding, is a way of adducing a particular type of open argument, based on the social value of keeping to trodden paths, or at least to the path trodden by some man of wisdom and repute. Some Roman lawyers overdid this sort of argument, as do some English lawyers the appeal to non-binding precedents. But it clearly has a place in every system. (e) No reasons given. The unmotivated type of decision was supposed by Schulz to be in some sense characteristic of Roman lawyers, to bring out their real attitude to the business of dicision. In his Roman Legal Science (p. 17) he says that the pontifical jurisprudence was based on the notion stat pro ratione auctoritas, authority replaces reason, and of republican jurists he says (p. 61) that their responsa were brief and in principle disdained to give reasons. This is only a half truth, as Horak has shown in his recent study of Republican decision making in Rationes decidendi. Even at that period in about a third of the cases reported decisions are in fact supported by some form of reasoning. There was nothing to prevent a lawyer or legal writer giving reasons for his views on a given situation. Alfenus Varus (c. 40 B.C.) gives plenty. Nevertheless there is something in what Schultz says. All through the classical period it was quite common to decide a point without giving reasons. Some late classical jurists made a point, when they gave a responsum, of refraining from any explanation. Cervidius Scaevola, prefect in 175 A.D. is an example, and he was followed by his pupil Marcianus and by a pupil of Ulpian's, Modestinus. He will often reply to a questioner that there is no reason why the plaintiff should, or should not recover, nihil proponi cur non agat etc. For example (D. 12.6.67.1 Scae. 5 dig.) a tutor pays his ward's creditor more than he owes the creditor but fails to include the extra amount in his claim for expenses against the ward. Can the tutor recover against the-creditor. Scaevola respondit habere (con-

dictionem . . . "he can".

viz. no estoppel arises (as we should say) from a transaction with a third party, the ward. What sort of reasoning is implicitly appealed to in this unmotivated type of decision ? Although no reason is stated, clearly there is one hovering in the background. It may be that the rule of law applicable is so obvious that it needs no stating. It may be that it is so recherch6 that the lay audience would not understand it. It may be, to be sceptical, that if expressed it would sound unconvincing. Scaevola and his followers (Beseler is a modem devotee of the method) may be saving themselves

No reason : the reason is treated as obvious

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from criticism. Nevertheless in most instances the implication of an unreasoned decision is that the decider could if he would appeal to a rule of law in support of his decision ; more rarely that he could point to some open argument in support of it. Schultz says, rightly in a way, that his style of decision rests on authority and he connects it with the supposedly authoritarian character of Roman law and Roman lawyers. I am not now concerned with this general thesis which contains too many strands to be unravelled at one sitting. It may be worth noting that Horak in his thorough study of the republican decisions comes to the conclusion that the jurists of that period, who might a priori be supposed to show aristocratic authoritarian, tendencies do not argue in an authoritarian manner even when they fail to give reasons for their decisions, but argue rather within a technical or professional framework. But no doubt in a certain sense there is an appeal to authority in these cases. What does this mean ? When the decider is said to appeal implicitly to authority, what may be meant is either that he is trusted to know the law, so that he could if he would state explicitly the rule on which he relies, or else that even if there is no rule in point he can be trusted to decide wisely. In the second case it is his reputation for wisdom, common sense and the like that is the implicit justification for the decision ; in the first, the rule of law which he is taken to know. From a dialectical point of view it is the second case which is the more interesting since the first is already covered under heading (a). Instead of relying on soneone's else authority he relies on his own knowledge of the law or his own supposed wisdom.
III THE
CANON OF ACCEPTABLE ARGUMENTS

Hence all our five categories of presentation reduce to two: open arguments and appeals to rules of law. But in many ways the most important feature of Roman and modern legal argumentation has been omitted from the catalogue so far discussed : it is this feature which constitutes the essence of the Roman gift to modern western civilisation. I am referring to the existence of a canon of unacceptable arguments. If we compare Greek and Roman civilisation and ask wherein the inferiority of the Greek lies from the point of view of legal culture we may be inclined to answer on the following lines. The Greeks had laws and constitutions and conducted arguments before juries and the like, but their mode of argument was determined by rhetorical and not specifically legal considerations. To them any arguments was grist to the mill: in particular arguments ad hominem, that one's opponent was a scoundrel or that one had oneself performed notable services to the city; and arguments which appeals directly to philosophical or religious principles or to political considerations. The Greeks had in fact a notion of rhetoric, of the art of persuasion, and a theory or catalogue of types of arguments, in other words a notion of' topic '. But what they lacked either in theory or in practice was the discipline to set up a canon of acceptable arguments proper to legal discourse. This involves a narrowing of the scope of the discussion with a view to strengthening within certain limits their persuasive power and so the stability of the conclusions reached. The appeal to rules of the law is of course the first type of argument to be listed as acceptable : this in turn involves the existence of a canon of recognition,

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LEGAL REASONING IN ROME TODAY 65 to use Hart's excellent term, which defines the categories of admissible rules. Secondly, there are conventions concerning the range of acceptable open arguments. The creation of these conventions depends on a certain professionalisation of the law. Now it is true that there are senses in which Roman law remained the preserve of amateurs until, in the middle of the fifth century, a law degree was made an essential qualification for admission to certain bars and public offices. Officially jurists were supposed to be unpaid amateurs-a theory which bore little relation to reality, not merely because payment was usual but because it was customary for young lawyers to follow a cursu,3 honorum leading from the treasury counsel's office--advocatus fisci-to the prefectures. More important, lawyers from the republic onwards formed a relatively choesive group which accepted a common dialectical discipline. They were united by their training which taught them to accept certain types of argument and to reject others. The canon of acceptable arguments was gradually extended to include social considerations, utility and the like, in the late classical period which were but sparingly referred to in the republic. The beginnings of this professional discipline which marked off law from the evil influence of rhetoric almost certainly go back to the pontifical jurisprudence of the middle republic. Certainly in Cicero's day the distinction between lawyers and rhetoricians was firmly established, though Cicero himself, despite his acquaintance with leading lawyers, failed to grasp that the narrowness of legal dialectic was the source of its strength. Given, then, intellectual professionalism it is possible for certain issues to be considered not in isolation from the moral, social, political and religious issues affecting society at large but in such a way that these are allowed to be taken into account only on certain terms and within certain limits. The terms are, I think, really twofold. The first is that open arguments resting on social values most ultimately give way to rules : in the last resort the argument that the decision proposed is onconsistent with a rule compelling the contrary decision, must be accepted. This in turn entails that the arbiters of society are in the last resort the legislators. The second is that the positive values which are the basis of open arguments are system-neutral and person-neutral, that is to say that they are indifferent to the idiosyncratic features of religious, moral, philosophical or political thought systems and are not conceived ad hominem. The system-neutrality of which I speak is of course not Kelsenian purity. The open arguments are the window through which the law looks at society and by which the values of society filter through to the law. By them the law absorbs the values of the people : utility, equity, nature and the like. But they enter in that very general form in which they would be likely to be endorsed by the mass of people, rather than as specific programmes, and they are filtered through a professional mesh which reduces them to technically manageable principles and maxims: no one should be enriched to the detriment of another. The argument from utility tout court is therefore in order : the argument that the contrary decision would interrupt the corn supply is not. An argument from deterrence is in order. An argument that a particular defendant will be deterred if the law is settled in a certain sense is not. This impartiality as between persons and systems is crucial to western legal culture ; it is the specific legacy of Roman law to our civilisation and it is alien to

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66 CAMBRIAN LAW REVIEW Greek culture. Modern examples of its operation are of course well-known for example the canon which excludes from legal discourse the particular interpretation put on a statute by a minister or member of Parliament; or which prevents the courts in tort cases from taking account of the particular insurance situation of the parties, as opposed to the general likelihood that one or other of them will be insured; or which restricts the extent to which sociological and statistical arguments can properly be addressed to a court, and so on. In certain countries, such as the U.S.A., attempts are being made to destroy the separateness of legal discourse and to reduce legal issues to issues in which every sort of social, political and moral consideration ir relevant. In my opinion this modem Hellenistic movement is to be resisted : fear the Greeks bringing gifts, even if they are disguised as devotees of the American Supreme Court. The Romans therefore bequeathed to us a form of legal culture in which the closed and the open are combined. Law is a separate sphere of discourse: it is closed in the sense that all arguments adduced must be person and system-neutral. On the other hand it is open in that open arguments, if they conform to the above criteria, are acceptable, subject to the ultimate test of consistency with binding rules. The openness of their legal culture varied from time to time. In particular arguments drawn from utility (what we whould call public policy, or the policy underlying certain rules and statutes) seem to increase in the late classical period. Arguments drawn from philosophy, e.g. from Stoicism are acceptable if couched in a very general form, as in an appeal to naturaor aequum. This is a point which Stein (36 SDH1 463) has brought out very well: philosophical influence did exist, but it was a general, climatic sort of influence, not something specifically directed towards a given solution to a problematic case. 11
ROMAN AND MODERN LEGAL CONCEPTS AND REASONING

My original aim was to demonstrate the contribution of the Roman world to modem legal concepts and nodern legal reasoning. It will now be clear how I should like to do this. The Roman contribution to our civilisation consisted in an important way in the professionalisation of the law: that is, in the creation, necessarily within a restricted group of persons trained in the same general ideas, of conventions restricting the scope of permissible arguments in relation to given problems, so that the discourse of the law is in one way independent of and in another way open to influences drawn from other streams of social life, moral, political, religious and (in the modem age) sociological : the law looks at society through a half-open window. The Greeks, garrulous and undisciplined, were incapable of devising such an instrument of social control and social cohesion. The Romans succeeded and owing to the tour de force of Justinian's codification luckily transmitted sufficient examples of the technique for the mediaeval and modern world to absorb the essentials of this institution, and at the same time to add to it the discipline of systematic legal science. This, though it has been guilty of grevious intellectual sins, especially of a tendency to become self-centred and narcissistic, is a necessary adjunct to the Roman discipline: one which classifies and systematises the rules and decisions in such a way as to bring out in-

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LEGAL REASONING IN ROME TODAY 67 consistencies at a deeper level than the decision making process itself permits and so to suggest changes and adjustments. The Romans did not get far with the systematising of the law. Gaius, building on rather feeble earlier efforts, took the first steps : but he is not a mainstream Roman lawyer. The mainstream lawyers are not systematisers but casuists and expositors. They are united by their practice of argument, which conforms to a professional tradition. But within that tradition they supply abundance and variety by each doing his own thing. Proculus likes to argue from the facts, Julian to formulate rules, Pomponius to appeal to open arguments, Ulpian to cite authority, Scaevola disdains giving reasons. Professional discipline does not preclude personal idiosyncrasy, and strong opinions are shaped by common standards. These tensions have not ceased to bear fruit.

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