INTRODUCTION TO A SERIES OF FOUR POSTS
In this series, I aim to play with a few ideas. First, I will imagine a society without heavily professionalized sophists who can argue either side in a legal dispute, i.e., lawyer-advocates (posts 1-2). The historical models I employ (Roman and Islamic law) allow me to underscore the presence of a particular kind of replacement for the lawyer-advocate, that is, the slave business-manager or market-agent. This slave market-agent is as good as any “synecdoche” for all agents or advocates representing men and women in matters commercial, nuptial and criminal (post 3). With this I go one step further to point to one utility for this model. A minimally professionalized lawyer-advocate would be much less of an independent agent with interests diverging from those of their appointers. (I take it that advocates with interests independent of those of their clients are something to be reset and corrected.) And wouldn’t it be great if individuals took responsibility for their legal and ethical positions, instead of demanding that professional lawyers find ex-post-facto legal excuses for them? The fourth and last (post 4) considers the mysterious phenomenon of similar legal concepts shared in various legal regimes, as exemplified by similar institutions found in Roman and Islamic law.
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Imagine a society whose laity is not afraid to handle the laws governing the family, the markets, or crime. It is not that all specialize in law; there are legal specialists. Let’s assume that there are very few of these, and they don’t intervene in every matter. In fact, what passes for a legal system in their hands has significant built-in flexibilities. More importantly, these legal specialists are not advocates. (They are not attorneys representing adversaries in lawsuits. French = avocat (masc.)/avocate (fem.)) You and I are the advocates. In this society, you and I need to make sense of the laws and make them our own. You and I might need to discover, and to an extent generate, the laws bit by bit as we handle disputes. In some cases, the legal specialists will wait for this discovery and simply approve it. In other cases, they will tell us what to do. They will not always say yes or no to the choices you and I make. That will depend on how good or bad, sustainable or otherwise, the practices we generate are.
ADVOCATE VS. JURISTS
In both Roman and medieval Islamic legal literature, you will meet an individual who is neither a standard law professor, nor necessarily a judge, and is not exactly a legal philosopher. Overlapping with these professionals, this person, the jurist, can, in some cases, accept a teaching, a government-advisory, or a judicial post. It is usually a “he”—and this “he” can also be independent of the government and be an opposition voice and can, undeniably, be bought. Those among jurists never seen in the corridors of power are legion. Others did come close, touched power’s light and fire, and were occasionally burned. One of the most notable of these, a Levantine (Lebanese/Syrian) Roman man known as Ulpian, was killed in 223 CE for his alliance with Severus, the Roman emperor. Another, Shaybānī, died in 805 CE, lamented by the Caliph Hārūn al-Rashīd of Baghdad fame. (We will hear from these two men again soon.)
In most cases, the jurist’s answers to questions of law and morality are suggestions, but the government may elect to impose them. This also means that the government may elect to ignore them. The population may resist jurist and government or may acquiesce to them. If both the government and the governed agree to a juristic product, the latter become enshrined as norms.
The Roman and Muslim jurist can be a part-time or full-time scholar of law, permanently or temporarily occupied with juristic writing and practice. The jurist offers essentially advice, not binding decree. The backing up of this advice by force is coincidental to its fundamental qualities. Juristic opinion may reflect extensive social experience, coupled with knowledge of tradition, but it may also be shorn of practical knowledge and based mostly on philosophical conceptions of right and wrong.
How about the lawyer who represents clients? James A. Brundage showed that the legal professions of “advocate” or “proctor,” a representative of clients, existed in pagan and Christian Roman/Byzantine times until the 5th/6th century CE then virtually disappeared until it reemerged in the 13th century CE.[1] Ancient Rome had known a mandated legal representative, a procurator. A procurator, in the language of Ulpian (d. 223 CE; we will get to the full text in post 2): “is one who transacts the business of another on a mandate from his principal. 1. A procurator may have been appointed either for all his principal’s business or only for one item of it, either in his principal’s presence or by message or by letter.”[2]
WITH OR WITHOUT LAWYERS
Aside from the mandated procurator, representatives in an act of legal consequence or in a court of law may lack a mandate by the ‘principal’ they represent. How do we know that? One primary source is the Institutes or Elements of the Law, whose author remains known only as Gaius (d. circa. 170s CE). Gaius included only a short hint at “representation without a mandate”:
A procurator is substituted in a suit for the principal without using any particular form of words, but simply by an informal mandate, and even in the absence and without the knowledge of the other party to the action. According to the opinion of some, a person may even become a procurator without a mandate, if he undertakes the office in good faith and gives security that the principal will ratify his proceeding. Although he who is acting under a mandate is also as a rule bound to give this security, the fact that he has a mandate being often concealed in the initial stage of the suit, and only coming to light subsequently when the parties are before the judge (emphasis added).[3]
Another, much richer, primary source that may tell us about representation without extensive legal education is the Digest of Justinian. This is a collection of juristic doctrines, opinions—supported by explanations and arguments—on diverse topics, including commentaries on government (especially senatorial and praetorian) mandates and so-called imperial constitutions (commands, emperors’ legislation). This is one image that emerges from the Digest: The trained or half-trained attorney, when available, was not the only representative who could speak in the name of a citizen or a foreigner (a peregrine) in a legal dispute or settlement.
DIGEST, BOOK 3, TITLE (CHAPTER) 5, Sections 1-49
Of the 38 jurists known to be the source of the legal opinions and arguments contained in Justinian’s Digest, 13 are cited in this section on negotia gesta, translated as voluntary agency or unauthorized jurisdiction, depending on the translation.[4] In chronological order, though death years are mostly conjectural, these jurists are Labeo (d. 11 CE), Scaevola (d. 82 CE), Julian (d. 170 CE), Gaius (d. 170s CE), African (d. 175 CE), Pompon (d. 180 CE), Javolen (d. 190 CE), Tryphon (d. 200 CE), Papinian (d. 212 CE), Callistrat (d. 215 CE), Ulpian (d. 223 CE), Paul (d. 240 CE) and Modestin (d. 260 CE). (Ulpian is the Roman jurist most cited in the Digest of Justinian; Ulpian, again, lived between 170 and 223 CE; the Digest was assembled between December 530 and December 533 CE). While the longest article, No. 6, is attributed to Julian (though via Ulpian, as cited in the Watson translation), Ulpian’s line of legal reasoning dominates the 49 articles in this section, as it does in other sections in the Digest.
Ulpian is the source of articles No. 1, 3-5, 8, 10, 12, 14, 17, 20, 44 & 45. This blog entry will stop at sampling these (summarizing articles 1-10), with a promise that next week will afford us an opportunity to say more about legal representation with and without a mandate in both Roman and Islamic law.
Negotia gesta is an institution that aims to protect the absent against an intervention in their affairs without their permission (No. 1). The rights of the intervener are also preserved, however: A man or a woman, managing the affair(s) of an absent man or woman, may compensate or be compensated, depending on whether they added a gain or incurred a loss to the absent person they represented, and whether the absent is or is not legally competent (Monro & Watson: “lunatic”; Latin: furiosi). Should the absent be shown to have died, compensation claims for or against transfer to their heirs. The mandate for negotia gesta may be given by the government, via an impression that one is responsible to act on behalf of the absent (as in a business partner or creditor or debtor) or be purely voluntary (Nos. 3-5). If I had two partners one of whom forbade me from acting on his behalf when absent (partner A), while the other didn’t forbid me such action (partner B), and it would affect A’s affairs to act on behalf of B in their absence, I am limited to acting on behalf of B to the extent that it does not affect A (No. 8). Strong arguments are found for and against seeking compensation for an act on behalf of the absent to the advantage of that (absent) person, even if conditions turn sour. It is clear that if the intervener has good information about the person s/he represents, takes good cautionary measures to avoid harming while attempting to help, but adverse results befall the absent person’s property nevertheless, then the intervener ought to be compensated, “[f]or this reason, if he shored up a tenement or took care of a sick slave, even if the tenement was burned down or the slave died, he will bring an action for un-authorized administration (No. 10).”[5]
Roman common sense must be seen to operate in here. The well-meaning representative of the absent could not guarantee the results. After all, he or she is not compensated for their effort; only for the cost incurred.
In Roman society, authorized lawyer-advocates had arisen out of orators, who after the Republic morphed into the patroni (men of high status representing the interests of each side), and later gave way to the advocati, as these representatives became more professionalized and drawn less and less from wealthy patrons.[6] Roman judges themselves started out as laymen, from the so-called pre-scientific (or pre-juristic) stage, that is, before 150 BC.[7] Compared to Roman law’s younger sister, medieval Islamic law, Roman law seems to put a greater emphasis on form. Most (legal) interactions, or better (legal) actions, however, were simple and perhaps closer to an everyday person’s understanding of norms.
In the next post, I will say more about the Roman proctor and the Islamic view of both wakāla (representation with a mandate) and faḍāla (necessity representation).
[1] Though heavily focused on England, this demanding tome is replete with insights that may benefit all students of the history of legal practice. James A. Brundage, The Medieval Origins of the Legal Profession: Canonists, Civilians, and Courts (2008). Chapter 2, Law without Lawyers, at 46-74, discusses this gap in detail.
[2] The Digest (1904 & 1985-1998 editions), Book 3, Title (Chapter) 5, Sections 1-49 = D. 3, 5, 1-49. See notes 4 and 5.
[3] Gaius, The Institutes, Book 4, No. 84. I have mostly used Edward Poste’s 1904 Oxford edition, because it was handy when I drafted this piece in Santa Barbara. This translation can be located online with other translations. Where Poste has ‘engages that’ and other translations have ‘gives security that’, I chose the latter to avoid any ambiguity.
[4] In C. H. Monro’s partial, 1904 Cambridge, translation, negotia gesta is rendered as ‘voluntary agency’ but as ‘unauthorized jurisdiction’ in the 1985-1998 revised edition of Alan Watson’s team-translation published by Pennsylvania University Press.
[5] D. 3, 5, 10, 1.
[6] Ernest Metzger, Litigation, in The Cambridge Companion to Roman Law 275 (David Johnston ed., 2015).
[7] David Ibbetson, Sources of Law from the Republic to the Dominate, in 27 The Cambridge Companion to Roman Law 275 (David Johnston ed., 2015).