This volume wants to do a lot. It works, for one, as a useful guidebook to two disciplines that thrived in Rome from 155 bce to the end of the Republic: the study of civil law (ius civile) by the veteres jurists and the philosophy of the Republican ‘Roman Stoics’ – Diogenes of Babylon, Antipater of Tarsus, and Panaetius and Hecato of Rhodes. At under 200 pages, it does an excellent job at directing legal historians and historians of philosophy through prior discussions of jurist-philosopher exchange (Chapter 1) and historical and conceptual context (Chapter 2) towards questions of genuine interdisciplinary interest (Chapters 3–7). In Part 1 (on the influence of philosophy on law) B. examines the origins of juristic methods – speciation and definition (Chapter 3) and rules (Chapter 4) – and the substantive concept of the person (Chapter 5). In the second part (on the influence of legal practice on philosophy) he considers the Roman Stoics’ interest in casuistic modes of debate (Chapter 6) and the notion of private property in accounts of justice (Chapter 7). The book also aims to engage contemporary students of law by tracing the impact of these intellectual exchanges on the modern civil and common law traditions in Europe, both at the end of individual chapters and in a conclusion (Chapter 8). There is no competing book like it, and it is affordable.
At the same time, Law and Philosophy wants to be a monograph for specialists that offers fresh arguments for the cross-pollination between Roman law and Greek philosophy. While not the first to argue for influence in either direction, B. intends to be more precise about which methods and concepts are informing which jurists and philosophers (pp. 6–7). There are, however, obstacles keeping the book from success here. One hurdle, of which B. is well aware, is the state of the evidence for jurists like the Mucii Scaevolae, even more fragmentary than our sources for the Roman Stoics. But another is self-imposed: the flip side of writing a short introduction to no less than two fields of study is that there remains little room to develop arguments that will persuade informed readers. It is, in fact, even more difficult to trace lines of influence than B. lets on.
Chapter 3 argues that two Stoic definitions of science (technē) – as ‘a methodical disposition’ (SVF 1.72, 1.490) and as ‘a system of cognitions’ (SVF 1.73, 2.56) – spurred jurists like Q. Mucius Scaevola Pontifex, first, to define and organise legal concepts by the method of division and, second, to produce a literal systematisation of civil law (e.g. Mucius’ 18 books on the ius civile – I do not know why his Horoi are not also mentioned). Underpinning this argument is the assumption that the two Stoic definitions noted above jointly relate science to a method and its subsequent product. While a clever attempt to read the two definitions as complementary, both describe mental states and neither target non-mental products of science. Besides, it seems excessive to turn to particular conceptions of science to explain why jurists would textually organise civil law. How exactly would thinking that science is a ‘system of cognitions’ have ‘helped [jurists] to produce systematic overviews of law’ (p. 51)?
In Chapter 4 B. proposes that Republican jurists took over the practice of studying a case to extract a rule (regula) not only from grammarians (Gellius, NA 13.10.1), but also from the Stoic kanōn of truth and especially kanones of action. With respect to the latter, B. supposes that Panaetius developed specific rules for action because he turned his attention to appropriate actions (kathēkonta), for which an agent can only give reasonable defences. By contrast, B. says, the sage's actions (katorthōmata) are in accordance with right reason and so ‘cannot be captured in generally formulated statutes’ (p. 58). However, Panaetius’ focus on kathēkonta made it no easier to formulate rules for action than if he were focused on the sage; for a reasonable defence provides a rule for appropriate action only if it is in accordance with right reason, too. Still, since Panaetius was interested in rules in ethics (and possibly in grammar), B. reasons that jurists may have developed the notion of the regula as early as the latter half of the second century bce. He rules out an earlier date, on the grounds that the regula Catoniana – our best candidate for a Republic-era rule – would instead have been called the regula Porciana if it were named for Cato (d. 152 bce) during the Republic. Perhaps, though, Cato and others had the notion of a rule even if Cato's rule did not have a name. In any case, the chapter concludes with the clarification that jurists used rules only as mnemonic devices for the study of ius civile, whereas they rarely cited them in their responsa. This concession undercuts the force of the preceding argument for Stoic influence, since the kanones are tools for making judgments and deciding on actions, not mere aide-memoires.
Around the latter half of the second to the first century bce technical senses of the ‘person’ come to be used by Hermagoras in rhetoric, Dionysius Thrax in grammar and Mucius Pontifex in law. Chapter 5 argues that the source of this blossoming of technical persons is Panaetius, whose division of at least two ethical personae – the common and the individual – reflect a combination of the general actor-type masks of Greek theatre with the masks of individual ancestors in Roman funerary rites. I doubt we need any more than the theatre to genealogise Panaetius’ theory, though, since he used an actor's mask to illustrate his multiple ethical personae (Cic. Off. 1.97), implying he conceived of both the common and the individual personae as analogous to actor-type masks. And the masks of the theatre are only analogous to the ethical personae, because actor-types are more particular than the common persona, yet more general than the individual one. Besides there being no evidence that Panaetius also referred to Roman imagines, it does not seem he would have needed to.
Chapter 6 holds that the fascination of Diogenes, Antipater and Hecato with hard ethical cases, as documented in Cic. Off. 3, stems from probable and even attested jurist-philosopher interactions, like Diogenes’ visit to Rome in 155 bce, Antipater's relation to the Mucii through their mutual friend, the Stoic Gaius Blossius, and Q. Tubero's friendship with Panaetius and Hecato. While that is no doubt plausible, B. does not address another, better attested influence, Carneades’ Roman arguments for the separation of justice from wisdom (despite mentioning Carneades’ use of anti-Stoic cases [p. 86]). Some of the same hard cases debated by Diogenes, Antipater and Hecato were Carneades’ own counterexamples against the unity of justice and wisdom (see Chapter 9 of M. Schofield's Saving the City [1999], which B. cites).
Now, I am not suggesting that Roman jurists and Stoics did not learn from each other. I do not even think all of B.'s proposals ought to be rejected. I only mean there is more work to be done that attends more carefully to these questions. B., at least, points us in promising directions. Typos are few, but three errors of fact should be noted: Servius Sulpicius Rufus is called a Philonian sceptic (p. 30), but of his philosophical education we only know that he went with Cicero to Rhodes to study with Posidonius; the dedicatee of Cicero's Brutus is not Decimus Junius Brutus Albinus (p. 43); and the years of death for the Quinti Mucii Scaevolae are confused, with the Augur's listed as 82 instead of 88 bce (p. 44).
