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Legal Theory and the Media of Law

Thomas Vesting

As many disciplines in the humanities have experienced a focus on culture’s impact in recent decades, questions surrounding the significance of media such as writing, print and computer networks have become increasingly relevant. This book seeks to demonstrate that a media and cultural theory perspective can also be highly productive for legal theory.
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Chapter 9: Specialist writing: Roman civil law

Thomas Vesting

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While ancient Egyptian and Mesopotamian legal literature remained closely intertwined with the practical knowledge of a kingdom committed to justice, and in Greek law epistemic knowledge was influential primarily in the realms of constitutional law and legal rhetoric, Roman contact with Greek writing culture led to a different development. The transition to the formulary system, which fundamentally changed the office of the jurisdictional magistrate or praetor,1 increased demand for professional legal experts, even in general legal and business dealings. To satisfy this demand, and to maintain and refine its own level of expertise, the emerging field of civil jurisprudence began to employ alphabetic writing along with the new intellectual possibilities of the dialectic, initially practiced by sophists and later elaborated in Plato’s late dialogues Cratylus, Theaetetos, and the Sophist. Here alphabetic writing and the art of formal argumentation do not operate in the sense of individual formulas, rules, and institutions adopted from other ancient legal cultures, but rather function in the same way as already existing legal forms, even when it comes to imports in the areas of banking and maritime trade law (lex Rhodia) or sales law (arrha).2 The transition to the formulary system and the role of the praetor in the Republic show that dialectics and Greek alphabetic writing were not responsible for the development of Roman civil law in a causal sense, but rather can be understood as pre-adaptive advances, as an “arrangement favorable to complexity” in the sense of sociological...

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