Artes Urbanae: Roman Law and Rhetoric

Abstract

Is law a science? That question has triggered much discussion among modern lawyers. However, the question: was Roman law a science? has hardly been discussed by Romanists. For more than two centuries, they have assumed that it was. Kaser described legal science as the development of legal concepts that are well determined as to content and clearly separated from each other, and that are ordered and linked together in a logical system. Roman law was assumed to fit that description and, as such, to form a contrast with rhetoric that definitely was not a science. However, is this assumption correct? In the 20th century, Stroux and Viehweg argued it is not, but their view had little impact. Horak concluded that Roman law can partially be regarded as a science because the argumentation used by the Roman jurists to support a particular view was often based on logic. In this chapter, the view is supported that the ways of argumentation that Horak regards as based on logic are in fact based on rhetoric, and that Roman law was not a science in the modern sense. By way of example, texts from Gaius’ Institutes and Justinian’s Digest are discussed.