Bryn Mawr Classical Review

Reviewed by Clifford Ando, University of Chicago (clifford.ando@uchicago.edu)

Version at BMCR home site

In Entre tutelle romaine et autonomie civique, Julien Fournier offers a superbly clear overview of several essential features in the administration of civil and criminal law in the Greek-speaking provinces of the early Roman empire. Among this volume's many achievements three strike me as especially notable. First, alongside the far better known and more thoroughly studied evidence from the province of Asia (which is studied here once again), Fournier provides a case study of another, the province of Achaea. The evidence for Achaea is less robust and more difficult to handle, but Fournier does what he can. When one reads Fournier's work alongside Maria Kantiréa's fine study of the imperial cult in peninsular Greece, the history of Achaea in the early empire is illuminated as never before.¹ This is a signal achievement. Second, Fournier devotes very considerable attention to procedure: as I shall explain more fully below, this might have allowed—and up to a point does allow—a careful weighing of local practice against normative expectations articulated at Rome. It also permits Fournier to give due consideration to the role of local and provincial experts in Roman courts. Third, Fournier assembles, insofar as possible, the evidence for the continued operation of pre-Roman institutions of justice and traces their discrepant fates into the second century c.e.

The result is a very long work, rich in insights into specific texts and judicious and exciting asides into ancillary matters. It would be impossible to do justice to it in a review of short compass. In what follows, I seek to draw attention to specific achievements and implications of Fournier's work; I will mention one or two misgivings of a formal and factual nature; and I will attempt briefly to situate his project in a contemporary landscape of scholarship.

Fournier describes his project in a number of ways. Let me single out two. First, after a brief delineation of his book as an inquiry into the institutions, practices, and politics of the administration of justice, he describes a number of abstract conditions that in his view characterize the historical situation of the Greek-speaking provinces in particular: for historical reasons, through complex processes that are in broad strokes well known, cities in the East continued to perceive themselves as independent entities, even as they were subordinated to Rome — and even as Rome built an increasingly uniform and invasive administrative apparatus. What sort of legal autonomy could cities possess under these circumstances, and how can its history be told without succumbing to teleology? Likewise, despite a desire on the part of Rome (of varying degrees and expression across time) to monopolize the exercise of social violence and control of public order, Rome itself affected to encourage—it did in fact encourage—the formation of local political elites and expected them to govern through pre-existing institutions, however modified and constrained. Fournier describes the resulting patchwork of norms and sources of norms as "federal," and uses scare quotes to indicate the application (I suppose) of an anachronistic analytic framework.

Fournier later describes the project as addressing three questions and the individual parts of the book as answering those questions: who was empowered to judge and in what manner? Who actually judged cases and in what cases? Within what frameworks, and under what considerations, did provincial populations take themselves to the various tribunals open to them? Correspondingly, part 1 studies the organs and actors of the administration of justice in two provinces selected as case studies, Achaea and Asia. Part 2 takes on jurisdiction: what rules governed the distribution of cases to tribunals, and what patterns emerge from the study of practice? Part 3 studies the choices in regard to forum made by the Greeks themselves, first under the Republic and later under the Principate.

I have already mentioned my sense that Fournier's concentration on procedure allows him to highlight the participation of local experts in Roman tribunals, whether as advisors, judges or recuperatores. Fournier rightly argues that the Romans saw it as in their interest to integrate provincials in this as in virtually all aspects of local governance. He perhaps does not say quite so much as he might on the opportunity this provided to Rome to erect and sustain formal distinctions correlating the legal status of persons with access to Roman legal actions. These interests were two sides of the same imperial coin.

I very strongly endorse Fournier's emphasis on the two-stage nature of Roman procedure in the provinces as the means by which a space was created for provincials to administer justice under the aegis of Roman courts, since in official tribunals, at least, Roman magistrates heard in some fashion some details of cases before assigning them to other bodies for adjudication. Nevertheless, I do not endorse the drawing of a sharp distinction between Roman formulary procedure and the so-called extraordinary procedure(s) in use in the provinces. This is an argument that deserves fuller exploration elsewhere. It will I hope suffice to cite an insight provided by Birks, Rodgers and Richardson in their work on the Tabula Contrebiensis: "Nowadays we easily think of pleading and procedure as matters separable from the substance of the law. But under the formulary system the texts of the formulae were the foundations of substantive law, and innovation in their wording was the principal means by which that substantive law was changed."² The same relationship between procedure and substantive law obtained in the two-stage procedure used in provincial courts.

Fournier's exhaustive attention to the epigraphic record produces numerous important insights into the fate of local judicial institutions — insofar as the epigraphic record can reveal it. Hence, he is able within reason to trace the general robustness and competence of courts in Athens and Mylasa, Ephesus and Rhodes: the tales he weaves regarding the first three cities take an expected form (the gradual, sometimes rapid diminution in the use of local courts; the rise of new institutions — or rise to new prominence of old institutions — in which judicial authority is surrendered to those same elites into whose hands Rome arranged the surrender of local political authority). At the same time, Fournier is able to confirm the exceptional vitality of the popular courts of Rhodes.

Again, there is a price to pay. Fournier is fully aware of the rapid and stunning rise to prominence of imperial procurators as participants in court proceedings and, soon enough, as effective wielders of jurisdiction. But the irregular nature of their influence would seem to have situated their history outside the formal scheme of his project: as a result, his remarks on procuratorial jurisdiction are scattered across two dozen pages. (On this vital issue, Fournier might usefully have consulted Peter Eich, who treats procuratorial jurisdiction in his fascinating essay on the maturation of Rome's administrative apparatus into (in his terms) a bureaucracy in the third century.³ I don't wholly endorse Eich's arguments, but they deserved full consideration and stand in useful contrast to the form taken by Fournier's.)

Errors and omissions are very few. One of some importance in its context, if not to the argument as a whole, concerns an inscription from Sparta honoring two prokritoi. Fournier interprets the document as revealing a subtle alignment between local and imperial interest, insofar as the individuals selected locally to serve as iudices were Roman citizens. But Tony Spawforth has urged that this text be dated c. 223 and hence after the Antonine Constitution; in that case the politics of the process recorded in this text would be substantially different.⁴

I cannot forbear adding that this is a deeply conservative work. The use of scare quotes around "federal" gestures toward one problem: Fournier provides no abstract apparatus by which to understand the historical developments that he studies. But the study of imperial legal regimes has of course a distinguished history, as does the modeling and classification of pluralist regimes. The tasks of describing what sort of pluralism the empire possessed, how it worked, and how and when it changed, are all ones that in my view could only be enriched by engaging with those literatures. And who knows? Roman legal historians might themselves have something to contribute to the broader project of imperial legal history.

This seems to me a moment in Roman legal history pregnant with promise. To speak only of projects engaging with legal practice and legal institutions in the provinces, one might cite forthcoming works by Ben Kelly, Ari Bryen, Georgy Kantor and Anna Dolganov, as well as seminars being organized by Rudolf Haensch, Frédéric Hurlet and Silvia Strassi at the Villa Vigoni and Andrea Jördens and Christoph Schönberger in Heidelberg and Konstanz. These are often highly particularized studies, or take as their theme sociological categories that sit in relations of useful obliqueness to categories native to Roman legal thought. Julien Fournier's deeply admirable book is of still another kind and will, I expect, prove an invaluable resource to virtually all those engaged in these endeavors.

1.   Maria Kantiréa, Les dieux et les dieux augustes. Le culte impérial en Grèce sous les Julio-claudiens et les Flaviens. Études épigraphiques et archéologiques. Meletemata 50. Athens: Centre de recherches de l'antiquité grecque et romaine, 2007. One likewise looks forward to Tony Spawforth's Greece and the Augustan Cultural Revolution, forthcoming from Cambridge this fall.
2.   P. Birks, A. Rodger and J. S. Richardson,"Further aspects of the Tabula Contrebiensis(," JRS 74 (1984), 45-73 at 60. See also Clifford Ando, "Pluralisme juridique et l'intégration de l'empire," in St. Benoist, S. Demougin, and G. de Kleijn, eds., Impact of Empire X, forthcoming.
3.   Peter Eich, Zur Metamorphose des politischen Systems in der römischen Kaiserzeit, Berlin: Akademie Verlag, 2005, 137-145. One should in this context acknowledge that the evidentiary regime of Achaea and Asia does not permit consideration of a range of legal actors and institutions well-attested in Roman Egypt, who may well have played important roles in all provinces: one thinks immediately of centurions, on whom see Richard Alston, Soldier and society in Roman Egypt: a social history, New York: Routledge, 1995, 86-96.
4.   A.J.S. Spawforth, "Notes on the third century A.D. in Spartan epigraphy," Annual of the British School at Athens, 79 (1984), 263-288 at 270-273.