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New FrontiersLaw and Society in the Roman World$
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Paul J. du Plessis

Print publication date: 2013

Print ISBN-13: 9780748668175

Published to Edinburgh Scholarship Online: September 2013

DOI: 10.3366/edinburgh/9780748668175.001.0001

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Artes Urbanae: Roman Law and Rhetoric

Artes Urbanae: Roman Law and Rhetoric

(p.31) Chapter 3 Artes Urbanae: Roman Law and Rhetoric
New Frontiers

Olga Tellegen-Couperus

Jan Willem Tellegen

Edinburgh University Press

Is law a science? That question has triggered much discussion among modern lawyers. However, the question: was Roman law a science? has hardly been discussed by Romanists. For more than two centuries, they have assumed that it was. Kaser described legal science as the development of legal concepts that are well determined as to content and clearly separated from each other, and that are ordered and linked together in a logical system. Roman law was assumed to fit that description and, as such, to form a contrast with rhetoric that definitely was not a science. However, is this assumption correct? In the 20th century, Stroux and Viehweg argued it is not, but their view had little impact. Horak concluded that Roman law can partially be regarded as a science because the argumentation used by the Roman jurists to support a particular view was often based on logic. In this chapter, the view is supported that the ways of argumentation that Horak regards as based on logic are in fact based on rhetoric, and that Roman law was not a science in the modern sense. By way of example, texts from Gaius’ Institutes and Justinian’s Digest are discussed.

Keywords:   Roman law, Rhetoric, Legal practice, Legal science

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