This is the third piece Ius & Iustitium is presenting in its symposium on Adrian Vermeule’s new book Common Good Constitutionalism. A general introduction to the symposium may be found here. Aníbal Sabater is a lawyer in New York City specializing in international arbitration.
In the classical legal tradition, the lawyer who argues cases of consequence, the orator, is a “good man skilled in speaking” (“vir bonus dicendi peritus”).[1] The definition first appeared in Cato the Elder and then Cicero, but it was a Roman orator from the early days of the principate, Quintilian, who developed and established it as part of the canon. A talented speaker from Calagurris, Hispania, Quintilian was educated in Roman Stoic circles and had a successful career in the forum, after which he retired to write and school others in oratory. He was “a patient, moderate, reasonable man, dedicated to good teaching, clear thinking, natural expression, and loyalty to the empire,”[2] who also admired the old republican institutions.[3] He analyzed three critical questions—why the orator must be a good man, what it means to be a good man, and what it is to be skilled at speaking.
Why?
Quintilian rejected the sophistry and abstract thinking prevalent among the lawyers of his time, as well as their desire for status—monetary, political, or both. A genuine realist, he thought that lawyers should engage with the world. “I should like the orator I am training,” he said, “to be a sort of Roman wise man, able to play the part of the real statesman not in private seminars but in the experience and activities of real life.”[4] Specifically, the orator should “protect the innocent, repress the crimes of the wicked[,] defend truth in financial disputes … [and] guide the counsels of the senate or lead an erring people into better ways.”[5] For Quintilian, the lawyer is the client’s servant, but the res publica’s first.[6]
Like the rest of the classics, Quintilian realized that the dispositions and actions of the agent must be adequate to their goal, which means that, in order to serve the common good, the lawyer must be good himself. But while Aristotle and Aquinas concede that a non-virtuous agent can still bring about a measure of common good (for instance an intemperate king can enact necessary laws), for Quintilian goodness is definitional. A lawyer who is not virtuous is not an orator, but a “useless pleader” (causidicus) or a “mercenary voice” (“mercennaria vox”).[7]
All this betrays Quintilian’s view of oratory as a vocation reserved for a few. This elitist view permeates much of the classical tradition. Cicero already held the orator in higher regard than the judge because it is the lawyer who finds the argument that persuades the judge; but it was the unwitting classicist of Tocqueville who most famously expressed how a lawyerly elite can fit in the modern egalitarian republic. In Common Good Constitutionalism, Prof. Vermeule reminds the reader that the mixed government of the classical legal tradition contains a balanced proportion of monarchical, aristocratic, and popular elements.[8] Tocqueville sees lawyers precisely as the aristocracy that can protect the republic from popular excesses: “The exercise of their profession daily reminds [lawyers] of [their] superiority; they are the masters of a necessary and not widely understood science; they serve as arbiters between the citizens; and the habit of directing the blind passions of the litigants toward the objective gives them a certain scorn for the judgment of the crowd ….”[9]
The Good Man
The good man of the classical legal tradition has five virtues.
The first is prudence. It is a common mistake to assume that the lawyer only needs to know the law because cases are won or lost on “legalisms.” Quintilian’s orator knows the law, but also logic, history philosophy, religion, tradition and any subject that may be relevant, because it either helps explain the facts of the case or understand–and adjust the message for–the audience to which the case is being presented[10] It would be Ulpian who, two centuries after Quintilian, came up with the definitive formulation: “Iuris prudentia est divinarum atque humanarum rerum notitia, iusti atque iniusti scientia”[11] (the lawyer must know “things divine and human, the science of what is just and unjust”).
Second, the lawyer must be just.[12] The lawyer does not do justice in the case at hand—it is the judge who gives each his own—but he must act justly, for instance by charging a fair fee,[13] defending the poor, working in a manner becoming of his profession, and refraining from taking an unjust cause or making an unjust argument.[14]
Third, the lawyer must have fortitude so as to persevere in his position notwithstanding opposition from the other party, the judge, or the people.[15]
Fourth, the lawyer must be temperate. Quintilian insists that this is not only to enhance his credibility but also to ensure his commitment to the case. Only a lawyer living a frugal life will endure the labors of study and effort that a case requires.[16]
Fifth, the lawyer must be truthful. Here, however, comes up a significant difference between Quintilian and the classic legal tradition once Christianized. In Quintilian’s view, the lawyer cannot advance arguments or positions that are intrinsically evil[17] and must tell the truth as a general matter, but can lie on occasion in a just case, especially if the truth is too convoluted for the judge to understand or sympathize with—an unrepentantly elitist argument.[18] Aquinas, by contrast is clear that the lawyer must advance honest arguments and abide by the truth in all circumstances.[19]
Skilled in Speaking
For Quintilian, skill in speech is secondary to being a good man.[20] Speaking well is ultimately a subset of prudence and entails the ability to discern the appropriate argument for each case, as well as the emphasis and form with which to deliver it.[21] It requires careful attention to oral and written expression[22] so as to achieve clarity, the ultimate goal. In particular, a restrained, concise, and elegant style is to be preferred.[23] Also, eloquence should be concealed both to increase the credibility of the lawyer and focus attention on the case itself as opposed to the lawyer arguing it.[24] To guarantee an effective delivery, little if anything should be left for improvisation—the lawyer should prepare a script of his argument and rehearse it to be ready for questions and eventualities that may arise.[25]
Who Said Neopaganism?
An obvious question is how much of the classical view of the lawyer survives today. In short, “some.” The notion that the lawyer is an officer of the court who owes duties of candor both to the judge and its opponent traces its lineage back to the classical definition of the lawyer as a common good server. The same may be said about the requirements for the lawyer to take continuous legal education courses, devote time to pro bono representations, abide by ethical rules, and answer to regulatory bodies. Yet, that basic architecture is surrounded by principles and propensities sometimes older than the classical view and incompatible with it. Paramount among them is idealism in the practice of law—Quintilian would shudder at the notion of a profession that comprises aspiring NGOs, think tanks, or lobbying groups for the political cause of the day rather than unabashed party representatives. A modern strong anti-elitist strain also assimilates lawyers (now often referred as the “legal industry”) with accountants, consultants, or general service providers, as members of a putative commoditized breed who works mostly for economic gain, as opposed to the common good. Consistent with that trend, the discussion about profits-per-partner, headcount, and number of offices quite often silences the discussion on quality—the goodness of the person, the skill in the speech. Ultimately, the lawyer as a well-rounded person, Quintilian’s Roman wise man, is replaced by the lawyer as a technician, the expert on the industry that is trending at any given time. It was not like that, however, in the relatively recent past. The classical legal tradition, says Professor Vermeule in Common Good Constitutionalism, was “the fundamental matrix for the thinking of the whole founding generation.”[26] The restoration of that tradition, for which Professor Vermeule offers such compelling arguments, involves, and actually depends on, the restoration of the classical role of the lawyer.
Aníbal Sabater
- The lawyer for less significant cases was just the “advocatus.” The meaning of the terms “orator” and “advocatus” fluctuated, however, over time. Francesco Montone, review of “Per advocatum defenditur,” at https://bmcr.brynmawr.edu/2019/2019.01.57/. Here they are discussed as Quintilian understood them. ↑
- George A. Kennedy, Classical Rhetoric & Its Christian and Secular Tradition from Ancient to Modern Times, 115 (1999). ↑
- Quintilian’s Instituto Oratoria (12.1.16). English quotes are from the Loeb Classical Library translation by Donald A. Russell. ↑
- Quintilian, 12.2.7. ↑
- Id., 12.1.1. ↑
- Id. Also, the orator prefers to defend rather than to prosecute, but is not afraid to prosecute when necessary “because he is anxious to correct vice and reform morals.” Id., 12.7.3. ↑
- Id., 12.1.25. ↑
- Adrian Vermeule Common Good Constitutionalism 48 (2022). ↑
- Alexis the Tocqueville, Democracy in America (tr. By George Lawrence) I, 8. ↑
- Quintilian, 12.1-2. ↑
- Digest 1.1.10.2. ↑
- Quintilian, 12.1.35. ↑
- Id., 12.7.8-11. ↑
- S.Th. II-II, Q. 71 ↑
- Quintilian, 12.1.17. ↑
- Id., 12.1.8. ↑
- Id., 12.7.5. ↑
- Id., 12.1.38-45. ↑
- S.Th. II-II, Q. 71, A. 3. ↑
- Quintilian, 12.1.1. ↑
- Id., 12.8. ↑
- Id., 10.1. ↑
- Id., 8.1-2. ↑
- Id., 12.9. ↑
- Id. ↑
- Vermeule, p. 13. ↑