Dario Mantovani

Jurists " writers " : is there a Roman legal " literature "?

The writings of Roman jurists, collected mainly in Justinian's Digest, have had a profound influence on medieval and modern legal culture, without being singled out for their literary characteristics. The pragmatic purpose of these writings certainly distances them from more elaborate literary prose, novels of invention, historiography and oratory. Quintilian does not mention them in the canon of authors he recommends students read as a stylistic exercise. A comparison with literary prose, which also applies to technical literature (from medicine to architecture, from military art to agriculture and rhetoric), is interesting if we consider contrasts rather than points of contact. Compared to the treatises of other disciplines, legal literature takes shape in great independence from Greek models. It was produced by members of the upper classes, senators or, at the very least, knights. The aim was not to give an account of a practice developed elsewhere, but to provide direct testimony to a certain legal development, written by the very people who were involved in it. Legal literature is also distinguished by its genetic relationship to two discursive practices, one written and the other oral, namely the law and responses, which permeate its content and forms.

In an attempt to characterize this legal literature, the first lesson adopts the readers' point of view, trying to determine who its audience is, what its expectations are. To do this, we go to an unexpected place, Trimalcion's banquet, where we can overhear a conversation revealing the intense circulation of jurists' writings, which were the object of a veritable trade. In the shadow of poetry and artistic prose, legal works were read by a wider public than might be imagined, interested above all in utilitarian reading, with a view to professional training. This is reflected even in the outward appearance of the manuscripts, which contemporaries recognize thanks to the typical use of titles written in red ink (" libra rubricata " a Trimalcion host calls them, in his colloquial language). The red titling is still clearly visible in a rare, almost contemporary papyrus (P. Mich. 456r), revealing the informative function of these texts, in which it was necessary to be able to find quickly what one was looking for, without relying on continuous reading.

If, in the eyes of the public, the works of jurists were a kind of difficult, albeit useful, genre, a closer analysis reveals, behind an apparent uniformity, a variety of themes and forms, both of argumentation and articulation, in these literary sub-genres.

The jurist-philosopher, the jurist-historian and the jurist-teacher are three manifestations of this variety, chosen as themes for the following lessons.

The first example is that of a jurist from the late Republican era, Alfenus Varus, who must answer the question of whether things and people (all of us) can maintain their identity despite changes over time. Alfenus calls on philosophy - in particular, physics and logic - to give the problem the configuration it needs to be addressed, but it's interesting to note that the solution he gives to the substance of the case is left to entirely legal considerations.

History is also one of the resources used by jurists: but even here, their aim is argumentative. The past of a legal institution (the origin of property or that of the legal system) is transformed into a kind of model, prefiguring the contents that the jurist applies to current problems.

The fourth lesson was devoted to the didactic literary genre. Compared to other technical disciplines, it was only later, but also more vividly, that jurists transformed law into ars, i.e. an institutional manual structured with divisions, definitions and parallels. And this is certainly the sub-genre which, through its formal commitment, including the writing of poems, comes closest to the prose of other technical disciplines: in this prose too, however, the form of legal thought is reflected in a particular style of writing.

Jurisprudential literature, beneath the apparent uniformity of "rubricated books", is therefore a place where numerous cultural contributions and a multiplicity of forms converge in the dual act of elaborating rules and communicating them: a place on the frontier between practice and literary re-elaboration, witness and instrument of an effective technique for settling social conflicts.