Reading a Dead Man's Mind: Hellenistic Philosophy, Rhetoric and Roman Law

INTRODUCTIONA recurring topic of discussion, both in Roman antiquity and in modern times, is the connection between philosophy, rhetoric and law. Of the many philosophers and their schools that existed in Roman antiquity there are two that may have been particularly relevant to the development of Roman law: the Hellenistic schools of Stoicism (Middle Stoa) and the New Academy. In the second century Bc, the Roman military conquest of Greece led to the Greek cultural conquest of Rome, introducing Greek philosophy and, in its wake, rhetoric. In that very same century, the praetor was put in charge of jurisdiction, legal procedure was innovated with the formulary procedure, and many new legal institutions were introduced. It is now generally assumed that there was a connection between the rise of Roman law and the arrival of Greek philosophy and rhetoric in Rome. However, the question which of the two philosophical schools was most relevant to the development of Roman law has not yet been answered satisfactorily.In attempting to answer this question, we will use the concept of voluntas testatoris as a case study. We will first briefly consider to what extent the sources– mainly Justinian's Digest and the rhetorical and philosophical works of Cicero– can be of use (section 3.2). Next, we will summarily explain the modern views on the voluntas testatoris and the knowledge theories of the Stoa and the New Academy in antiquity (section 3.3). We will then describe the modern interpretation(s) of the causa Curiana (the first case in which the voluntas testatoris is mentioned), relate it to Stoic epistemology, and compare it with the rhetorical sources (section 4). Finally, having analysed four responsa from the Digest that are generally assumed to deal with the voluntas testatoris (section 5), we will conclude (section 6) that even though the Roman jurists did not develop a blanket theory of voluntas testatoris, if they did follow a particular philosophical school when solving legal problems like those caused by an unclear will, it would more likely have been the New Academy rather than the Stoa.THE SOURCES AND THE DEBATEIn trying to determine which of the two schools had the greater impact on the development of Roman law, we submit as an initial observation that the guidance or direction offered by the sources is relatively sparse.