| Sumario: | "The main part of our book presents our novel exegesis of twenty texts from title D. 50.17 De diversis regulis iuris antiqui. To Romanists, this may come as a surprise because they usually associate that title with general rules of law only, not with rhetoric. Our unconventional choice is the result of a concerted reading of Cicero's Topica and Justinian's Digest. It started with Trebatius, the jurist for whom Cicero wrote his Topica and some of whose responsa have been preserved in the Digest: we noticed that in one responsum he used two unmistakable rhetorical devices: a topos and a thesis. Our subsequent perusal of Cicero's Topica is the subject of Chapter 2. What makes Topica special is that Cicero wrote it for legal practice. By giving examples, he explains how the various topoi can be put to good use and how a thesis can make an argument more convincing. Even so, these examples, and Cicero's Topica generally, are often viewed as legally and rhetorically irrelevant, and as a professional jurist, Trebatius, it is felt, would certainly have had no need of them. We disagree and we submit that (1) a much- criticised example in Topica was appropriate both legally and rhetorically, and (2) in a particular case mentioned in the Digest, Trebatius - conceivably inspired by Topica -used a topical argument and formulated it in general terms, as a thesis. In Chapter 3, we turn to Quintus Mucius Scaevola pontifex and wonder whether this alleged founder of Roman legal science might not have done the same. Scaevola was one of the advocates in the causa Curiana, a famous trial known only through Cicero's works. Predictably, Romanist interpretations of Scaevola's performance are uniquely linked to his reputation as a jurist. We think this is a predisposed interpretation and that Scaevola commanded admiration for his ingenious use of rhetoric, too. Scaevola also gave responsa, a small number of which have been preserved in the Digest, and in one of these he appears to have used the topos in maiore minus inest. This topos, which is formulated as a thesis and which stems from Aristotle's Rhetorike, also figures in seven cases included in title D. 50.17 De diversis regulis iuris antiqui. For us, the big question then was whether title D. 50.17 contains similar rhetorical arguments. A rhetorical argument used in legal argumentation can only be properly recognised as such in its legal context. Using Lenel's Palingenesia iuris civilis, we were able to trace this context in the leges geminatae of twenty regulae. Our exegesis of them forms the main part of this book (Chapters 4- 10). As we observed above, Romanists habitually discuss these regulae in the light of the second history of Roman law, which is why they cannot recognise them as rhetorical arguments, but having stepped away from that particular perspective, we show not only that these twenty regulae are indeed topoi formulated in general terms, but also that each of them is meant to apply to one particular case only. This makes them theseis in the sense of Cicero's Topica. In Chapter 11, we put our findings to the test by examining the first text in D. 50.17, which introduces the regula concept. In Romanist literature, D. 50.17.1 has been interpreted in very different ways, usually in connection with the regula Catoniana, which is not mentioned in D. 50.17 but which is pre- eminently regarded as a legal rule. We establish that the regula in D. 50.17.1 matches the other regulae in this title we discuss: they, as well as the regula Catoniana, are rhetorical arguments formulated in general terms but intended for one specific case only. In concluding our book (Chapter 12), we argue that, in thorny questions, the Roman jurists were not averse to using rhetorical arguments to strengthen their responsa. Their auctoritas as jurists was not always enough to convince the praetor or the judge, and sometimes they even expediently preferred rhetorical arguments to strictly legal ones. Against this backdrop of legal pragmatism and of revisiting the traditional, exclusive view of Roman law as a science, the responsa in question can be understood more easily and more fully than has so far been the case. Rather than being poles apart, Roman law and rhetoric were two sides of the same coin - legal practice - and we believe they should be appreciated and studied as such"--
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