Adversariness and Advocacy

Sources

Attempting to Win. American courts today are highly adversarial (most European ones less so). That is, the two parties gather and present the evidence they want and tell the stories they want in an attempt to win. The court’s role is primarily to decide between the two positions they offer. There are certain exceptions. The sides can have witnesses compelled by the court’s subpoena. “Discovery” procedures require some sharing of information. Evidentiary rules constrain what can be offered in court (e.g., no hearsay). The judge makes authoritative decisions on questions of law (as opposed to those of fact). Lawyers are bound by canons of ethics. In the Roman courts the procedure was almost purely adversarial. Romans also had nothing like the rules suppressing the results of an improper search. One of the few countervailing factors, at least in private trials, was that the index might seek his own legal or other advice. The praetor (magistrate) did direct the index of a private case by means of the formula. It, however, gave only the most general guidance.ludices in public cases apparently did not get even this treatment. Many have held that this extreme adversariness was a relatively “primitive” feature of the Roman legal system.

Public Speakers. Romans in both public and private cases, both prosecuting and defending, ordinarily came into court with one or more advocates to speak for them. These advocates should not be confused with the modern “lawyers” they superficially resemble. Advocates were primarily public speakers and only exceptionally had more legal expertise than they happened to pick up on the job. (Conversely, only occasionally most jurists argued cases in court.) The other thing an advocate might be hoped to bring to the table was personal prestige. Thus, in celebrity public cases each side would try to sit as many former chief magistrates (and the like) as possible. Another striking difference from modern practice is that, for most of Roman history, advocates were not allowed to accept pay for their services. This practice is connected to the desire for prestigious advocates. They were meant to personally guarantee the characters of their clients more than provide technical skills. In any case, the ban seems to have been easily evaded. The reliance on advocacy is in striking contrast to some other well-known legal systems of antiquity (such as that of Athens).

Sources

John Anthony Crook, Law and Life of Rome (Ithaca, N.Y.: Cornell University Press, 1967).

Crook, Legal Advocacy in the Roman World (Ithaca, N.Y.: Cornell University Press, 1995).