Three Estyle='font-variant: normal !important;text-transform:uppercase'>xamples and Dilemmas of the Contextual Approach
To illustrate the problems that can be encountered in the contextual approach to Roman law, here are three examples and dilemmas.
1. In the Verrine Orations Cicero successfully blamed Verres as much as he could for his fraudulent administration of justice in Sicily.
Here, however, we have no other source than the necessarily biased testimony of Cicero himself in his role as prosecutor (accusator). Cicero blamed Verres for the abusive use in procedural formulae of the fiction of citizenship, with a view to extracting additional taxation. Fernand de Visscher even wrote of Verres’ ‘fantasies with formulae’ (‘fantaisies for- mulaires’).59 The question is, how can we find an objective standard to judge this claim? How can we reliably survey the actual administration of justice in the first century BC in Sicily? The whole question becomes even more debatable when in the Tabula Contrebiensis of 87 BC we find a similar formula with a fiction of citizenship. 0 Ultimately it appears that Cicero used as an instrument to blame Verres a practice that was actually recognized in the administration of justice in the Roman provinces.A general methodological question may be asked here: is non-legal Roman literature a reliable source for information about the historical reality of Roman law? A universal answer cannot be given. The Romanian Romanist Tomulescu took up this question in an article on the reliability oflegal information in Livy.61 Another scholar, J. W. Tellegen, has studied the law of succession in Pliny the Younger62 and concluded that Pliny was a reliable source of information for Roman law. Other examples have been given already.
2. A second example of the difficulties with the contextual approach concerns the controversy on the existence of a domestic court (indicium domesticum) at the end of the Roman republic.
As a source we have here a passage from Dio of Halicarnassus, written in Greek, that the kinsmen (pDyyeveig) are to give their verdict (e8iKaZov). There was a dispute between Volterra and Kunkel on whether a iudicium domesticum really existed, and this has recently been revived by Donadio.63 Kunkel took the wording iudicium domesticum in a technical sense, while Volterra considered it to have only a filang=EN-US>gurative sense. Who are we to believe? Is there a standard of technicality in the language used by non-jurists?3. A third dilemma on the origins of the notion of the will64 has an immediate impact on several topics of Roman law, such as the standard of liability and the doctrine of error in contracts such as stipulatio and sale. It is the well-known problem of the interpretation of intent (animus),65 evil intent (dolus),66 and volition (voluntas). Albrecht Dihle,67 a well-known German historian of philosophy, maintains that the theory of the will as developed by St Augustine, which is the origin of the modern concept of intention, was derived from the voluntas testatoris (‘will of the testator’) used in interpreting the testator’s will in classical Roman law. Throughout the history of philosophy from the early Greeks, Dihle does not identify a coherent theory of the will before St Augustine, and certainly not in Aristotle.68 So far this view has not been taken into consideration by scholars of Roman law, although its consequences could be quite far- reaching. Dihle is not the only historian of philosophy who has studied the history of the will. Anthony Kenny, and R.A. Gauthier in his well-known commentary on Aristotle’s Nicomachean Ethics,69 are even more radical. Kenny starts his book rather surprisingly: ‘There is no theory of the will in Aristotle.’ According to Gauthier there is no theory of the will in classical antiquity, in Aristotle, or in the deterministic Stoic philosophy.
Indeed, there is none until Johannes Damascenus,70 a Byzantine scholar of the eighth century AD, who interpreted Aristotle’s account of necessity and free will. Later, according to Gauthier, this view reached the Latin West and was integrated into Latin medieval philosophy. Gauthier implicitly leaves out the influence of St Augustine here, although Thomas Aquinas, important for the transmission of the ideas of Aristotle in the Western world, quotes St Augustine frequently.These opinions leave us with a lot of questions. One example: are these views on the origin of the will compatible with those of Romanists who say that the subjective will (animus, etc.) was increasingly taken into account in postclassical Roman law? I am inclined to reject that view, although it is not possible here to give an extended analysis of the evolution of the notion of volition in legal and non-legal sources.
4.