Roman Lawyers and The Art of Goodness

Justinian's Code, the monumental collection of ancient Roman law compiled in the sixth century A.D., begins with a famous first passage. "Law is the art of goodness and fairness," it states. "Of that art, we lawyers are deservedly called the priests."

The words are both memorable and worth remembering. Not many lawyers today would claim to be priests of the art of goodness and fairness. The preferred analogies are more pedestrian: umpires, navigators, architects. One can only imagine the grilling that a Supreme Court nominee would undergo in a confirmation hearing if they claimed to be divine representatives of justice.

But in Ancient Rome, it was not an absurd idea. Law was understood as an elevated form of philosophy--it was practical wisdom--and lawyers were central to its defense.

The most famous lawyer of the Roman Republic was Marcus Tullius Cicero. Born in 106 B.C., Cicero lived through the tumultuous final days of the republic as the pillars of the rule of law slowly crumbled around him. But he worked hard to uphold them, and in doing so, showed how noble the legal profession could be.

In 80 B.C., after finishing his legal education, and at the tender age of twenty-six, Cicero agreed to take up the case of one Sextus Roscius. Sextus had been charged with murdering his own father. Patricide was a terrible crime in Ancient Rome, and the punishment for it was particularly vicious: you were sewn inside a sack alongside a dog, a cock, a snake and a monkey, and thrown into a river.

Sextus was clearly innocent of the crime. His father had been killed in the streets on a trip to Rome, and Sextus, at the time, was back home in his small hill town in Umbria. There was no evidence that he had hired hitmen to do the job.

But despite the shoddiness of the case against Sextus, all the preeminent lawyers of the day refused to defend him. It turned out that the primary accuser of Sextus's was a close associate of Sulla, the reigning dictator of Rome who had recently instituted a violent purge of political rivals. After Sextus's father had been murdered, Sulla's crony had placed the father's name on the list of proscribed persons, confiscating his property and buying it in a rigged auction at a ridiculously low price. None of the leading lawyers wanted to get on Sulla's bad side.

But Cicero had been reared up in the older Roman traditions of moral rectitude and stern duty, and he would not abide what he saw as a flagrant violation of the law. He set out to defend Sextus in the best way he could.

In his defense speech, Pro Roscio Amerino, Cicero pulled no punches. He explained the conspiracy in exquisite detail and showed how Sextus could not have committed the crime. He called upon the court to stand up for the rule of law and "resist the wickedness of audacious men."

There is not one of you who does not understand that the Roman people, who used formerly to be thought extremely merciful towards its enemies, is at present suffering from cruelty exercised towards its fellow-citizens. Remove this disease out of the state, O judges! Do not allow it to remain any longer in the republic; having not only this evil in itself, that it has destroyed so many citizens in a most atrocious manner, but that through habituating them to sights of distress, it has even taken away clemency from the hearts of most merciful men. For when every hour we see or hear of something very cruel being done, even we who are by nature most merciful, through the constant repetition of miseries, lose from our minds every feeling of humanity.

Thanks to Cicero's defense, Sextus was acquitted. A year later, afraid of Sulla's impending wrath, Cicero fled Rome.

Cicero's entire speech is worth reading, but one of its key insights is that cruelty is a disease. It spreads and multiplies. The greatest harm from an abuse of the law is never the direct one. It is the unintended consequences that follow from it. When citizens see wicked, audacious men breaking the law and getting away with it, it hardens their hearts. It takes away their sense of mercy and kindness, and makes them bitter and vindictive. It is a recipe for injustice.

Cicero believed in law as the art of goodness and fairness, and he thought it required kindness. I for one look forward to the day when Supreme Court justices prepare for Senate testimony by memorizing a few choice lines from Justinian's Code.