TIBERIUS CORUNCANIUS AND THE MODERN SOCRATIC METHOD

Por

BERNARDO PERIÑÁN GÓMEZ(*)

Senior Lecturer of Roman Law

Pablo de Olavide University

[email protected]

e-Legal History Review 14 (2012)

ABSTRACT: Legal education has a great influence on the evolution of the Law. A polemic essay by Alan Watson about legal education and its methods in the United States of America, written from a romanistic point of view, shows that and helps us to reflect about this topic from a contemporary perspective. It is also convenient to remember the Roman experience in this field, and the Tiberius Coruncanius’ influences in the evolution of Law through the practice of giving public answers to legal questions for the first time. A common legal education related to Roman law in the European Union could also favor the communication of jurists in a common private law context.

KEYWORDS: Socratic method, Tiberius Coruncanius, Bologna Declaration, Roman Law.

SUMMARY: I. The first lessons of Law. II. A educational approach to the new European Common Law.

TIBERIO CORUNCANIO Y EL MÉTODO SOCRÁTICO MODERNO

RESUMEN: La educación jurídica tiene una gran influencia en la evolución del Derecho. Así lo muestra un polémico ensayo de Alan Watson acerca de enseñanza del Derecho en los Estados Unidos de América que, escrito desde un punto de vista esencialmente romanístico, sirve para reflexionar sobre esta afirmación desde una perspectiva contemporánea. Resulta interesante también recordar la experiencia romana en este terreno, especialmente la influencia de Tiberio Coruncanio en la evolución del Derecho, al iniciar la práctica de dar respuestas públicas a las cuestiones jurídicas. Asimismo, una educación jurídica relacionada con el legado jurídico romano en el entorno de la Unión Europea favorecería la comunicación entre juristas ante el nuevo escenario marcado por un nuevo Derecho privado común.

PALABRAS CLAVE: Método socrático, Tiberio Coruncanio, Declaración de Bolonia, Derecho romano.

SUMARIO: I. Las primeras lecciones de Derecho. II. Una aproximación didáctica al nuevo Derecho común europeo.

I. THE FIRST LESSONS OF LAW

Alan Watson (b. 1933) is a very well known law professor in the United States. He has published more than fifty books on Roman and Comparative Law, Legal History and Law and Religion; nowadays, he is one of the most prestigious Anglo-Saxon Romanists in the world(1). Although he is a Scot he spent the last thirty years at American universities in Pennsylvania and Georgia. It is true that some law schools in the United States offer Roman law courses and have had illustrious Romanists in their faculties, at present times and in the past(2). It could also be stated that they are usually in the most important and competitive law schools, where the libraries are rich in legal history materials and the faculty is a gem in legal doctrine.

The book to be focused on now is titled The Shame of American Legal Education(3); it was first published in 2005 and it reached its second edition only one year later. In this book, Watson seriously criticizes the American way of teaching law, mainly the use of the Socratic Method as well as the legal education system in general. He is sometimes even acerbic, but what is important is that he has worked on this system for a long time with great concern on this topic. In this work Alan Watson reminds us of The Magic Theatre by Miguel de Cervantes’, a story of an old tale about the opportunity and the price of saying the truth, the real truth(4).

This paper could have been entitled Watson vs. Kingsfield, if we consider these following words as a symbol of the most traditional American Schools of Law:

“You teach yourselves the Law. I train your minds. You come in here with a skull full of mush, and if you survive, you’ll leave thinking like a lawyer.” These words represent somehow the Socratic Method’s essence, a way of teaching that defines law schools in the United States since the middle of 19th century(5). The quote is unreal and corresponds to a character in the movie “The Paper Chase”(6), Professor Charles W. Kingsfield Jr. This fictional Professor of Contract Law is supposed to be a sort of model or example for the traditional application of the Socratic Method, that’s why it is convenient to contrast him to Watson(7). On the other hand, the movie and the television series based on it have contributed to the mythology of American law schools, often synonymous to social and professional success.

Probably for that reason, this North American teaching model is frequently mentioned as an example of periods of change as the one we now have in Europe after the Bologna Declaration on European Space for higher education(8). That is why the book being discussed is specially interesting to us as it represents a very critical inner reflection of a teaching system that some rise to a mythical status without direct references. As it has been said, this work doesn’t contribute to this idealization of the “case method”; viseversa, this can be deduced from the aggressive title of the book.

In essence, it can be said that the author seriously questions the veracity of the famous movie quote -that it represents the most adequate means of learning the Law. In this way, Watson explains that this teaching system sets the students under great pressure, without much effort by the professors. Watson clearly will not be popular among his colleagues when he states: “Most law professors are plumbers, but they wish to be regarded as philosophers, hence, they are poor plumbers.”(9) When it comes to contents of legal education, Alan Watson says that sources of Law, relationship between Law and society, and factors of legal development are ignored in the syllabus. Students may know how to solve a legal problem, but they don´t know why they think like that. There is an enormous difference with the traditional way of teaching Law in continental Europe. We underline the importance of theory and only then do we put this knowledge in practise. A lot has changed nowadays and probably our students have very different feelings from those of us who studied in the late nineties. Small groups, better means, continuous evaluation or shorter subjects in the new syllabus have provoked a sensation of sane envy in a big number of us who are professors today. We remember to be treated as numbers in large lecture rooms without enough seats for all. But the new teaching model, an option among others in this new Bolognese era, is closer to the Anglo-Saxon model than to any other scheme of the European past. In this sense, the influence of English Universities in the European Law Faculties Association (ELFA) should be taken into account. In this continent, the Spanish case is perhaps the best example, the change has been greater than in the British or North European Universities.

If it is true what Watson says, from ouside the American system it can be felt that the problem is not the Socratic Method but the way it is being used. The tense situations at law school described by the author can be the result of a competitive atmosphere, independent of teaching methods. Only the existence of a ranking of students in every class is a distinctive element to appreciate. A place in the ranking is of course translated into money and job opportunities when students get the degree. In my opinion, competitiveness and tension would be the same even if the teaching system were any other. This is to say, it is not a problem of method, but a consequence of the structure of legal education and its implementation in a specific country. It would be advisable to reflect on the usefulness of applying the background of this teaching method to different countries and circumstances. It is a problem of content and not of form. Case method, I think, could be specially appropriate in a legal system where the judicial precedents are so important in the application of law and to the decision of a court. We should remember that it is very different to train lawyers than to educate jurists.

I have focussed my attention on this book because Watson has written it after forty years as a Roman law professor. This may not be his main reason and perhaps any other critic academic could have written this book(10), however as a Romanist, Watson knows how important legal education is for legal development. His critical perspective of the American legal education develops from it. Let’s look at the Roman example.

Quality is the key to understanding the historic importance and influence of classical Roman Law. This legal system, in private law, is the first in history to be built from a scientific point of view. This was the sole work of Jurists. The jurists, whom we know to be no more than sixty in four hundred years, made up what we call Iurisprudentia(11). They transformed Roman Law into a new historical product, separated from religion, rhetoric, grammar or other laws from antiquity(12), and we can say that the real development of classical Iurisprudentia started from a change in legal education in Rome(13).

This change took place at the beginning of the third century BC. when a powerful plebeian, Tiberius Conruncanius, was appointed pontifex maximus. At that time, any citizen with a legal problem used to go to the collegium pontificalis and, there, he received a private answer. So, law was a sort of secret knowledge, a very useful tool to control people and ideas in very few hands. What Tiberius Coruncanius did is apparently simple: he started to give public answers. He broke the secret and anyone for the first time could learn the law(14). From that moment on, we can talk about secular Iurisprudentia(15), even if the first jurists we can individually identify as classical, the founders, are from the second century BC.(16).

So, we can see that legal education has a great influence in the quality and the evolution of Law. The influence of imperial power in individual jurists(17) and bureaucratization(18) caused the end of Jurisprudence. Law started to decline and begun what we call a “postclassical age”(19). The history of the postclassical period is the relationship between a trivial or elemental legal education and low quality Law(20). On the contrary, the renaissance of Law in the Byzantine age is directly related to a new interest in legal education(21).

Perhaps, if Watson were not a Romanist he would not have asked so many uncomfortable questions. But he knows about not only this relationship between Education and Law, but also about the importance of history and centuries of doctrine. One of the basic ideas anyone can get after reading Watson’s book is that going back to the simple problem can be very instructive to educate the “mechanic of law”, but at the same time two thousand years of legal thinking can be discounted and this is necessary to train jurists(22). Regarding the rest of the book, it is difficult to have private opinions if one has not experimented with the American legal education system. Alan Watson’s opinion is interesting and original, perhaps because he is a Romanist and it is very easy for me to understand his position. The work has been wiedly reviewed by colleagues and there are no pacific revisions(23).

II. A EDUCATIONAL APPROACH TO THE NEW EUROPEAN COMMON LAW

The paper I published in the first issue of Roman Legal Tradition in 2002 has a previous version presented in 2000, at the American Roman Law Society Conference, in Lawrence, Kansas. It was then entitled “Some Romanistic Reflections on the Unified European Private Law” (24).

Then, I said statements like this one:

“Current times have, to some degree, changed the roles of those of us involved in historical-legal research. The scope of our studies is still the same -its limitations are determined by the existent sources of knowledge- and yet the same cannot be said of the scope of our reflection. Nowadays, our gaze is often directed towards the new legal reality, which is being built in the old Europe”.

This article was inspired by three European Parliament Resolutions which attempt to influence the progressive unification of Private Law in the new united Europe have been the impetus for what follows.

The first Resolution, from May 26, 1989, encouraged Member States of what was then the ten European Community towards harmonization of Private Law, including the drafting of a “Common European Code in Private Law”. To date this effort has encountered several obstacles both from inside and outside of the various national Governments, in contrast to significant progress which has been made in the scientific field. Thus in 1990, the Italian city of Pavia hosted a conference under the auspices of Professor Gandolfi, to examine the possibility of drafting an “European Code of Contracts”, based on Book IV of the Italian Civil Code of 1942, one of the European legal texts which most clearly influenced by Roman Law. This project, carried out by the Academy of European Private Lawyers, already has a palpable result: the European Contract Code. Preliminary draft (Milano 2001). In a similar vein, and likewise thanks to another academician, Briton Harvey McGregor, a “Code of Contracts” was produced, its principal merit being the harmonization of the Anglo-Saxon and the continental traditions, not surprisingly the study of this topic took place in the United Kingdom where Scottish Law has a distinctive Roman imprint. There has also been a group working in Trento since 1995, directed by Mario Bussani and Ugo Mattei, on a so called “Common Core” of the European Private Law, seeking to strengthen the idea of a common legal culture, on a level far removed from any possible Code.

The second Resolution, from May 6, 1994, follows the same path, but additionally endorses the so-called “Principles of European Contract Law”, produced by the "Lando Commission". This Commission, which started in 1980, is made up of jurists predominantly of Romanist training, from each Member State of the then European Community. This “Commission on European Contract Law” has already published part of its works, and its work is part of UNIDROIT, a United Nations organization to promote the unification of Private Law.

The third Resolution, from November 15, 2001, differs from the others in two aspects: first, it is a realistically delimited undertaking, as it is limited to contract law. Second, the Parliamentary debates producing this resolution flowed from findings of a European Commission that invited the Parliament to consider various different options to address the diversity of Private Law in Europe. Those options ranged from changing nothing to creating de novo of a complete law of contracts for the European Union.

The Parliament, on that political basis, eventually decided to pursue the elaboration of an European juridical statute that would be offered for approval to the international community. With such a goal it constitutes the European juridical institution, and projects an ambitious calendar by which normative harmony would apply starting from 2010. Striving for coherence between the declaration and performance, this same Commission has initiated a Plan of Action in the year 2003”.

Today, the most important doctrinal works have been finished(25) and new materials have been produced(26). The circumstances have changed so much that I could throw that paper into the wastepaper basket. I think there is no place for a common Civil Law in Europe for at least 15 years(27). Local nationalism inside the former EU Member States and the recent addition of a large number of new ones to the Union, will make it very difficult to have a unified Private Law for a long period. Now, the Union has new priorities as a consequence of the changes from both inside and outside. Among these can be counted, for example: the EU constitutional form, the admission of new Member States like Turkey, the Defence politics, and of course the economic recession and terrorism(28).

With these problems on the table, I think it’s going to be very difficult to waste energy in creating a unified Private Law, despite the academic hard work(29). If the EU is still interested and it’s not able to make a concerted effort now, there are still opportunities in the future. Despite the economic crisis, Europe has no other option that going on. The finishing line is the same but perhaps the way to cross it must be rethought in the new circumstances. If the priority is the future and not the past, even if very important scientific results have been reached, the most appropriate ambit to work in could be the education of the next generations of European jurists.

In 1999, the Bologna Declaration fixed the terms of a renewed university system in Europe in order to facilitate what is called “convergence”. If we talk about Law and unification, the opportunity has a name: Roman Law(30). I am not saying that we should go back to Roman Law to find the rules that we need. What I mean to say is that Roman law provides a common legal language for the whole of Europe because it is the common element among the different national legal systems. It is fairly impossible to teach 25 different national laws in law School, but -among other actions- can be taught what we all have in common, even if it is presented in different measures. Again, legal education can be a key to open new doors. If the EU doesn’t take the opportunity that Bologna presents to have a common legal education on things that European States share, then it may be because there is a strong academic resistance to change or, even worse, because the EU is not really interested in the unification of private law(31).

On January 1st, 1900, after the German Civil Code came into effect Roman law became an historical object of study. From then on, most Romanists have lived inside a bubble. For some the bubble is a throne; for others it is a prison. Roman Law was gradually disconnected from reality; for some colleagues, it is sometimes nearer to philology and other times closer to history. These two elements are crucial for studying Roman Law, but Roman law is just law, even if you need philological instruments to understand the texts and historical tools to put them in context. Roman law is difficult and sometimes unintelligible, even to expert positive legal jurists. It is just a step away to becoming useless.

In any case, we have adored our sources like sacred texts. We have thought about ourselves as depositaries of indispensable knowledge; and we have waited for academic recognition among glosses, interpolations and 100 years old scientific journals. The formula worked until the 1960’s. From then on, we have been constantly questioned. If we don’t understand you and you don’t understand us, why are we together? (Any positive law jurist could ask this question to a Roman law one).

Sometimes the problem arises from a lack of credibility of the sources after thousands of sheets dedicated to Byzantine discussions, but our sources are mostly Byzantine and the scientific dialogue can be extensive. It is true that Romanists have not taken into account the importance of being understandable or accessible. We don’t have to connect to the real world. “The world that has to come to us to learn about itself”, we think. But, we have a social responsibility; there are very important reasons to share our treasure with society. We should all speak a common language. Our job consists of removing the philological and historical obstacles, which separate Roman law from the needs of a Society.

The existing reaction to this challenge is slow. It is common to see Romanists as comparative law specialists, but they also take part in positive law debates, interdisciplinary projects, and they are also at the vanguard of new legal teaching methods. Perhaps this is the way to be a Romanist in the XXI century, even if we cannot stop working with our methods and sources, or our 800 years’ old doctrine. This is what makes a difference. Again, legal education. Again, Tiberius Coruncanius.

NOTAS:

(*). This work is part of the activities of the Research Project of the Spanish Ministry of Science “Law & political Power: a historical and comparative analysis from the standpoint of the person” (DER2011-22560).

(1). His writings in Roman Law, Legal History and Comparative Law can be found at http://www.law.uga.edu/profile/alan-watson (consulted April, 10th. 2012).

(2). Among others, we can remember now A. Arthur Schiller, Professor at Columbia University from 1928 to 1977 and David Daube, from 1970 to 1995 at Berkeley. Among the active professors we can highlight, besides Alan Watson, Charles Donahue, at Harvard from 1978; Bruce W. Frier, at Michigan from 1981 and Michel H. Hoeflich, at Kansas from 1994. In the preface of A. A. Schiller, An American Experience in Roman Law, Vandenhoeck & Ruprecht, Göttingen, 1970, the author says: “Together, these studies constitute an American experience with Roman law before an American audience and directed to American readers, lay as well as legal. I trust that they may, at least in part, dispel the type of folk-lore which has come into vogue in Europe respecting the interest in Roman Law in the United States.”

(3). A. Watson, The Shame of American Legal Education, 2nd. ed., Vandeplas, Lake Mary, 2006

(4). The antecedents of this famous “entremés” (a small theatre piece) can be found in an old Eastern legend which was before recreated by Don Juan Manuel in “The Count Lucanor”. The topic returns in the story of H. C. Andersen, The Emperor’s New Clothes, perhaps more well-known internationally than the two Spanish works mentioned earlier.

(5). Vide, R. B. Stevens, Law School: Legal Education in America from the 1850s, 2d. ed., Union, New Jersey, 2001; S. Sheppard (Ed.), The History of Legal Education in the United States: commentaries and primary sources, Salem, Pasadena 1999; W. P. Lapiana, Logic and experience: The origin of modern American legal education, OUP, New York, 1994.

(6). James Bridges, 1973. The movie is based on the novel with the same title written in 1970 by J. J. Osborn Jr. The author wrote the novel when his was a student at Harvard Law School.

(7). For example, we can see that the University of Chicago Law School webpage, http://www.law.uchicago.edu/socrates/method.html, refers to Professor Kingsfield in order to demythologize the Socratic Method: “Perhaps because of its over-the-top portrayal in the 1973 movie The Paper Chase, the very mention of the Socratic Method strikes fear in the hearts of those considering attending law school. John Houseman may have won an Oscar for his impressive performance, but if anyone ever did teach a law school class like his Professor Kingsfield, no one at Chicago does today.”

(8). The Bologna Declaration of June 19, 1999 is the true angular stone of the European space for higher education, which should be completed in 2010. From 1999 to now the Declaration has been adopted by forty four States among which are some that have not yet joined the Union.

(9). A realistic view of law Professors’ atmosphre in the USA can be seen in Frank T. Read & M.C. Mirow, “So Now You’re a Law Professor: A Letter from the Dean”, in Cardozo Law Review, 2009, pp. 55 ff.

(10). For example, D. Kennedy, Legal Education and the Reproduction of Hierarchy: a polemic against the system. A critical edition, New York University, New York, 2004.

(11). For all, F. Schulz, History of Roman Legal Science, Clarendon, Oxford, 1953; W. Kunkel, Die römischen Juristen; Herkunft und soziale Stellung. Unverändert Nachdruck der 2. Aufl. von 1967, Böhlau, Köln, 2001.

(12). See, A. Watson, The Spirit of Roman Law, University of Georgia, Athens,1995, pp. 64 ff., 111 ff. and 158 ff.

(13). See, A. A. Schiller, Jurists’ Law, in An American experience cit., pp. 1231 ff., identifies four fundamental factors to the existence of jurists’ law: 1) The continued existence of a group of individuals dedicated to the law; 2) They had a comprehensive an expert knowledge of the Private Law; 3) They were connected with the day to day administration of the law; 4) They discussed and their opinions in freedom. This factor is also related to the existence of two main schools, Proculian and Sabinian.

(14). D. 1,2,2,35 (Pomp. l. s. enchir.). Before that, the scribe Cneus Flavius had published some important writings, mainly procedural models, called for that reason ius Flavianum. Cfr. D. 1,2,2,7 (Pomp. l. s. enchir.) About credibility of Coruncanius’ story, vide F. Schulz, History cit., p. 10. For me, if what Pomponius says it’s not true it could have been, if Tiberius Coruncanius was not the first, someone was.

(15). About this transition, see G. Nocera, Iurisprudentia. Per una storia del pensiero giuridico romano, Bulzoni, Roma, 1973, pp. 75 ff.

(16). Manius Manilius, Marcus Iunius Brutus and Publius Mucius Scaevola, cfr. D. 1,2,2,39 (Pomp. l. s. enchir.). On the importance of Roman Jurisprudence for Roman Law see, for example, A. Schiavone, Ius. L’invenzione del diritto in Occidente, Einaudi, Torino, 2005, pp 29 ff.

(17). In this field, was specially important the emperors’ authorizations to give responsa ex auctoritate principis. On this, vide J. Paricio, El “ius respondendi ex auctoritate principis” , in ID., De la Justicia y el Derecho. Escritos misceláneos romanísticos, El Faro, Madrid, 2002, pp. 109 ff.

(18). Vide A. A. Schiller, Bureaucracy and the Roman Law, in An American experience cit. pp. 37 ff. This relationship is so close that F. Schulz, History cit., pp. 262 ff., talks about “bureaucratic period of Roman Jurisprudence” from Diocletian to Justinian.

(19). It can be conventionally situated from 230 AD onwards. Á. d’Ors, Derecho privado romano, 9.ª ed. rev., Universidad de Navarra, Pamplona, 1997 § 6.

(20). On the problem of “vulgarismus”, “classicismus” and legal education, vide, v. gr., M. Talamanca, Istituzioni di diritto romano, Giuffrè, Milano, 1990, pp. 41 ff.

(21). The older oriental law school could be located in Berytus, established by 239 AD. The other important centre for legal studies was in Constantinople, founded as late as in 425 AD.

(22). R. Pound, Roman Law in China, in L’Europa e il diritto romano. Studi in memoria di Paolo Koschaker I, Giuffrè, Milano, 1954, p. 444, says: “But in the present we go too far in reaction and seek to ignore history. As Elipaz said of Job, we think we are the first men that were born.” In the same sense, the author, ID., Ibid. p. 443, quotes another famous American influent academician and says: “Justice Holmes, in speaking of the attitude of jurists of the last century toward history, said that in law historical continuity was not a duty, it was a necessity.”

(23). For example, D. J. Guth, in The Manitoba Law Journal n. 31, 2005, pp. 369 ff.; J. M. Donovan, in Political and Legal Anthropology Review, n. 28-2, 2005, pp. 327 ff.; W. E. BUTLER, in Journal of Comparative Law n. 2-2, 2007, pp. 238 ff.

(24). The paper was later reformed and published as “A Romanistic Approach on Unified European Private Law”, in The Roman Legal Tradition 1, 2002, pp. 104 ff. I reproduce here the text without notes.

(25). For example, O. Lando (Ed.), Principles of European Contract Law I & II, Kluwer, The Hague, 2000, III Kluwer, The Hague, 2003; L. Diez Picazo-E. Roca-A. M. Morales, Los principios del Derecho europeo de contratos, Civitas, Madrid, 2002; G. Gandolfi,
Code européen des contrats: avant-projet, 2nd. ed., Giuffrè, Milano, 2004. The most developed instrument in this sense is the Draft Common Frame of Reference (DCFR) prepared by the Study Group on a European Civil Code and the Research Group on EC Private Law (Acquis Group). On this last Project, see F. J. Infante Ruiz, “Entre lo político y lo académico: un Common Frame of Reference de Derecho privado europeo”, in INDRET 2/2008, pp. 1 ss.

(26). Since 2003, there is even a very active journal devoted to the topic, European Community Private Law Review (München), related to the Study Group on a European Civil Code, which succeeded the former Commission on European Contract Law.

(27). A. Watson, Legal History and a Common Law for Europe, Institutet for Rattshistorisk, Stockholm, 2001, p. 153, goes further, and says: “For me, law begins when there is a recognized process for resolving disputes. Thus the Private Law on the European Union is still in its prehistoric stage.”

(28). The instability the European political situation, mainly because of the failure of the project to have a European Constitution can be seen, for example, in recent press articles like A. Giddens. “Ocho tesis sobre el futuro de Europa”, in Claves de Razón Práctica n. 175, September 2007, pp. 4 ff.

(29). See new perspectives, for example, in S. Leibe, “Vías para la unificación del Derecho privado europeo”, in Anuario de Derecho Civil n. 59, 4-2006, pp. 1589 ff.

(30). The most recent vision, highly recommended, of the Roman legal legacy as a global reference is J.M. Pérez-Prendes Muñoz-Arraco, Las bienaventuranzas del Derecho romano, Iustel, Madrid, 2010.

(31). This proposal is a step further in the way signed in The Communication on European Contract Law to the European Commission by the Joint Response of the Commission on European Contract Law and the Study Group on a European Civil Code (2001). Point 76 states: “Academic teaching of law: In considering the future of European law the significance of legal education is easily under appreciated. A restatement can also have a substantial impact here if taught in all or at least most European universities and if it constitutes subject-matter for assessment in examinations. We are of course aware that in questions of higher education the Community has no independent competence. However, the Community does enjoy other means of influence and in that regard we would urge that in relation to law the Commission in due course attaches to relevant funding programmes for advancement of and mobility in higher education (previously Erasmus, currently Socrates) the condition that appropriate tuition takes place. We recommend that the Commission makes use of the means at its disposal to promote future legal education on the basis of a restatement.”