In his 1995 book, The Spirit of Roman Law (Athens, GA 1995), Alan Watson included a chapter provocatively titled ‘Cicero the outsider’. By locating this chapter towards the end of the book, Watson hinted that any discussion of Cicero in the context of the spirit of Roman law (a difficult concept in itself) could only really form part of an appendix (in this case Appendix A) to a book of this kind. The gist of this chapter, following the then dominant Romanist view, is that ‘Cicero's outlook [was] remarkably different from that of the Roman jurists’ (at 200).As this statement implies, for Watson, Cicero stood outside the traditional narrative of the Roman jurists.

This view of Cicero as ‘an outsider’ is based on two assumptions. The first is that a fundamental distinction between the ‘jurist’ and the ‘advocate’ (orator) existed in Roman law– a distinction that, according to its supporters, seems to have originated already in the mid to late Republic. Jurists were engaged in an intellectual endeavour, removed from the cut and thrust of legal practice, while orators were very much at its centre and utilised the art of persuasion (rhetoric) in courts of law, often with limited attention to (or indeed need for) the intellectual intricacies of Roman law. Such a system was made workable by the formula procedure operating in the Roman courts where the praetor and the jurists dealt with matters of law, while the lay iudex merely decided on the application of the law to the facts of the matter. The origins of this view about the perceived divide between the jurist and the orator are complex and may be traced at least to nineteenth-century German conceptions of law as a Wissenschaft, in which the ‘scientific’ study of law and those who were engaged in it were foregrounded at the expense of legal practice. This view also finds support to some extent in Cicero's own statements about the endeavours of jurists, of whom he seems at times quite critical (although these should be treated with circumspection as they were produced within a specific context).