Beyond the Formal Law: Making Cases in Roman Controversiae and Tang Literary Judgments

Abstract

In the Roman Empire and the Chinese Tang dynasty, two societies with sophisticated laws, students were trained to argue cases through rhetorical exercises that paid little attention to formal legal sources (statutes, regulations, case precedents, etc.). This dissertation examines how these exercises shaped, and were themselves shaped by, Roman and Tang legal culture. Controversiae were legal speeches performed before fictitious judges as a Roman schoolroom exercise, and literary judgments (pan 判) were decisions on legal and administrative questions of the sort tested by the Tang selection examinations. Both types of exercises used arguments drawn from history, literature, and moral principles, and featured ornate language addressed to trial judges or officials who must approve a decision already made. This dissertation focuses on the relationship that these exercises had to the formal law of their respective societies as a way to explore the interactions between law, rhetoric, and morality. Chapter One looks at Roman and Tang legal training and practice, and argues that these exercises taught students how to introduce traditional moral values into legal norms. Chapter Two examines cases from the elder Seneca’s (ca. 55 BC–AD 37) controversiae in light of Augustan moral legislation, showing how these cases challenged the claims of the Augustan legislative program. Chapter Three looks at cases from the pseudo-Quintilianic Declamationes maiores (ca. 2nd to 4th c.) and their use of pathos to sway judges in conflicts that the formal law allegedly could not adequately resolve. Chapter Four analyzes the relationship between classical learning and law, and the persuasive power of literary display, in Zhang Zhuo’s 張鷟 (658–730) judgments. Chapter Five looks at the judgments of Bai Juyi 白居易 (772–846) and their use of moral and ritual propriety as a standard for deciding private and familial conflicts. The Conclusion questions the view that controversiae and judgments were literary showpieces that had a peripheral interest in law, and argues that both genres understood the limitations of the formal law and the persuasive power of a language of equity shaped by a recycled set of stories, arguments, and scenarios with minor variations.