Monday, February 10, 2014

Lawyering Inside and Out

Teaching my law students about ancient lawyers provides a unique opportunity to reflect on a dimension of lawyering usually given little thought: its exterior or interior location. Modern advocates take their inside environment for granted, and apart from occasionally praising (or more often griping about) the architecture of the courthouse, the aesthetics of the courtroom or the paintings on the courtroom walls, they give it no further thought. In classical Athens and Republican Rome, however, most litigation was conducted out of doors in the general vicinity of the marketplace. Athenian juries heard cases in what appear to have been unroofed structures in the Agora and elsewhere in the city. Roman crowds gathered around advocates pleading before judges seated on folding curule chairs set on tribunals (raised platforms) near temples and other public buildings in the Forum. The outdoor setting of advocacy shaped what was said in court, and how it was said.

By definition, outdoor advocates performed in public. They argued their cases under the unobstructed gaze of their community's gods, and they shared the very physical and acoustic spaces where other members of the community interacted to buy and sell, borrow and beg, meet and greet. Even within the confines of the court or the corona (the ring of onlookers surrounding the Roman judge), litigants and their legal representatives inevitably heard the calls and cries of commerce from the market area beyond. People in the marketplace could in turn hear (and in the Roman Forum see) litigants and/or lawyers pleading, creating mutual awareness and to some extent social accountability. There was no silence in these courts.

If nothing else, litigants and orators speaking in these settings needed strong voices to compete against noise and the wind. As space permitted, they became accustomed to using their bodies to move or gesture in ways that added force and meaning to their words. They employed their public surroundings as rhetorical props to remind their listeners of the community, its heroes, its gods, and its values. Inevitably they learned to play off juries and massed spectators to make their points, leveraging reactions to sway decisions.

Then in the later 1st century BCE, something remarkable happened in Rome. Even in absence of rain forcing relocation to a nearby public building, cases once heard in the open were moved inside permanently, into a purpose-built hall called the Basilica Julia, dedicated by Julius Caesar and set in the southwest corner of the Forum. Here a number of Roman courts sat, probably separated by curtains, and here advocates of the late republic and the Empire plied their trade.

Bringing lawyering inside, however, was arguably less an act of architecture as a product of politics. Certainly the Romans, like the Athenians, could have built roofed courts centuries earlier if they had wanted to. The fact they did not says something about both about Roman religion and the extending reach of Roman secular authority. Although the gods may have continued to look down on court proceedings from monuments in the Forum and perhaps even statues on the Basilica Julia itself, their gaze upon Roman justice was now by definition occluded. And who had occluded the sight of the gods? Roman leaders and emperors who now literally sought to confine, possess and discipline the ritual of public justice and the voices and processes of Roman advocacy (at the same time, by the way, as they increasingly claimed to be gods themselves, beginning with Divus Julius, the very builder of the Basilica). In the comparatively cramped space of the Basilica Julia there was literally less room for eloquence, less expanse in which to gather a crowd, less opportunity for advocates to potentially lever their public presence, their bodies and their commanding voices against power. After the death of Cicero, the Basilica Julia helped Rome's dictators ensure that no advocate like him would rise again.

Roman advocacy was only further corralled and muffled by being eventually dispersed to halls and interior settings in other forums, each under the sponsorship of a different emperor - thus the Forum of Augustus, the Forum of Trajan, and so on. Here again, advocates worked in relatively confined circumstances under an even more overt imperial (as opposed to purely deistic) gaze. Advocacy in this circumstance arguably became not just more limited in its effect, but less attractive as a road to public distinction and power.

Imperial advocates felt the impact of these changes, and several openly reviled them. At the outset of the second century AD, Tacitus (an advocate who perhaps not surprisingly became better known as an historian) complained in his Dialogue on Oratory:

How much force may we suppose has been taken from our speeches by the little rooms and offices in which nearly all cases have to be set forth? Just as a spacious course tests a fine horse, so the orator has his field, and unless he can move in it freely and at ease, his eloquence grows feeble and breaks down...[T]he orator wants shouts and applause, and something like a theatre, all which and the like were the every day lot of the orators of antiquity, when both numbers and nobility pressed into the Forum, when gatherings of clients and the people in their tribes and deputations from the towns and indeed a great part of Italy stood by the accused in his peril, and Rome’s citizens felt in a multitude of trials that they themselves had an interest in the decision.
Tacitus understood the implications of what may have been lawyering's most fundamental change of venue. Do we?

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