Bryn Mawr Classical Review

Reviewed by Michael Peachin, New York University (mp8@nyu.edu)

Version at BMCR home site

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At the inception of this valuable book, Paul du Plessis reminds us that, "the ground rules for interdisciplinary collaboration have now been established" (p. 2), and that, therefore, we may proceed apace examining the interplay of Roman law and Roman society. The present volume is meant "to be read as an integrated whole," and the chapters are "arranged in a specific order to form a cumulative picture" (p. 2). Du Plessis has written a helpful introduction, in which he adumbrates the main lines of the individual chapters; however, there are no concluding remarks, which might have drawn out the book's broader implications (though there are some stimulating "concluding thoughts" offered by Philip Thomas). Nor do the authors of individual chapters remark on the potential affinities between their own findings and those of other contributors. Therefore, in what follows, I will fleetingly summarize the individual contributions, and will also try to suggest, albeit very briefly, some of the strands of thought that link these articles and that seem to me especially significant in terms of on-going efforts to tease out the varied give-and-take between law and society among the ancient Romans.

The chapters are organized under three rubrics: 1) perspectives on Roman legal thought, which "addresses issues of Roman juristic writing and its contexts" (p. 2); 2) interactions between legal theory and legal practice, this section exploring "Roman law as a working 'legal order'" (p. 3); 3) economic realities and law. A fourth part consists solely of Philip Thomas' concluding essay, which is "meant to provoke further thoughts on interdisciplinarity" (p. 4).

Part I. Perspectives on Roman Legal Thought

Joseph Howley begins with a fascinating piece on Aulus Gellius, asking just what that author's purpose might have been in consulting books about the law. It turns out that Gellius is not generally attempting to resolve legal quandaries via this literature. Rather, he invariably desires, "…insight into values and institutions, and the surprising and interesting material that lurks in the pages of Labeo, Capito, Sabinus and others. Juristic literature is [for Gellius]… a distinct and irreplaceable element of a larger intellectual lifestyle for the learned gentleman of Antonine Rome" (p. 29). In fine, legal literature helps Gellius to know about, e.g., etymology and philosophy, or assists him in mastering antiquarian lore. But, more importantly (to my taste), the reading of material on the law can help him, for example, to best his teacher, Sulpicius Apollinaris, in a matter of language usage. Thus, reading law books is especially worthwhile because this activity provides Gellius with various sorts of knowledge, and then because "…articulations of knowledge are also articulations of social power" (p. 24).¹

Olga Tellegen-Couperus and Jan Willem Tellegen next raise the issue of law and rhetoric. They sense that Roman law (i.e., legal writing, as opposed to forensic practice) is still mainly comprehended as a science, which putatively excludes the possibility of any rhetorical component. Their argument runs directly against such a stance, ultimately making the point "that Roman law was not a science in the modern sense and that law and rhetoric belonged together as two sides of the same coin: legal practice" (p. 32).²

Finally, in this part, Jill Harries discusses implementation of the SC Silanianum (AD 10). She stresses the fact that whenever senators, as opposed to emperors (who enjoyed expert and dispassionate legal advice), put this statute into effect, they tended to be driven "by waves of collective emotion, or even panic" (p. 69). In other words, a dire fear of slaves largely determined the way this SC was engaged; and this, abetted by the typical elite attitudes regarding those of lesser status, led to significant increases in judicial savagry. As Harries puts it (p. 69), "the effects [of senatorial behavior] were profound and not always salutary."

The first two articles should draw our attention to the nexus of juristic literature, rhetoric, knowledge, and then, social positioning. We might well want to think about how Roman juristic writing worked to ends other than establishing (positive) law – much, say, as scholars have begun to worry about the purpose of ancient 'handbook' literature.³ Harries then adds the dimension of elite angst about slaves riding roughshod over both positive and forensic law.

Part II. Interactions between Legal Theory and Legal Practice

Caroline Humfress opens by considering the way Roman law was (or was not) put into practice throughout the empire, especially after passage of the constitutio Antoniniana (ca. AD 212). She argues that even after most of the population had been granted citizenship, and hence the right to participate in the Roman legal system, something like a dialogue between local legal regimes and a centralized, Roman law persisted. People the empire-over simply decided, on the basis of economic, political, and/or social factors, whether to operate with the Roman or some other system of law in resolving their disputes. Humfress then suggests that future research might ask "…whether, how and why Rome's subjects, as individuals or as groups, availed themselves of the Roman legal system" (p. 93). In other words, even after Roman citizenship became universal, there remained a gap between legal theory (i.e., the fact that everyone now was entitled to use Roman law) and legal practice (far from everyone did).⁴

The other three chapters in Part II also investigate disjunctions, of one sort or another, between the letter of the law, one might say, and quotidian legal practice – though they do this from significantly differing angles. Saskia Roselaar makes a strong case for the privilege of conubium having been much less widely granted during the republican period than is generally assumed. Indeed, she suggests that the disadvantages thereby incurred may have impelled many an ally toward the Social War. Then, Éva Jakab, working from the evidence of the Sulpicii archive, asks whether "law in the books," regarding the potential of women to engage in business, represents "law in action." Her answer is, largely, that well-to-do women were likely to operate via agents (slaves or freedmen). This allowed them to engage in various business activities without appearing in public, and also "released women (in fact) from a guardian's authorization" (p. 148). Those of lesser means, however, might have to function with the approval, and even in the company, of their tutors. Thus, the convenient disjunction of substantive law and daily practice looks to have held for more elite individuals, but not for those of lesser means or status.⁵ Jakub Urbanik looks at some Byzantine papyri, to see how mock sales of properties (rather than pledges) were used to secure loans. One interesting conclusion is that, "…such securities must have safeguarded not just the repayment of the money but possibly the personal relationship between the parties involved" (p. 169).

Part III. Economic Realities and Law

Building upon some of his earlier work, Dennis Kehoe investigates the matter of guardians looking after the property of their wards. Having proposed to view these tutors effectively as agents, working for their pupils, he then finds that both social and legal mechanisms worked to constrain guardians (p. 181). Furthermore, he persuasively argues that social concerns, i.e., maintaining the pupil's social standing, and thus, the wealth necessary to that end, rather than a desire to maximize profits, drove the creation of the law that regulated these matters. And then, given the probably great number of such ward-guardian situations, Kehoe suggests that this particular socio-legal institution – i.e., the immensely conservative approach to managing a ward's property – must have limited significantly the expansion of the agrarian economy.

Next, Jean-Jacques Aubert considers the complexities that could arise when a business situation, in which a slave functioning in some professional capacity was involved, went bad. What remedies did the plaintiff have against the slave's peculium, or master or both—and indeed, what might the master recover from his own slave's peculium in, say, the case of a bankruptcy of the slave's business? One of Aubert's chief points here has to do with record-keeping. Since there was no legal obligation in this regard, there must have been real problems with the nature, regularity, location, accuracy, even the legibility of any records perhaps kept by slaves engaged in business. Here, the reach of the law must have been constrained by the realities of ancient record-keeping.⁶

The last article is by Cynthia Bannon. She traces a problem raised in Dig. 19.1.38.2 (Cels. 8 Dig.). When a building was sold, were buried water pipes an integral part of that structure, like things bound and fixed to it (vincta fixaque), and thus now automatically the property of the buyer, or were those pipes like things dug up or cut out (ruta caesa)—for example, sand, or gravel—and therefore, subject to negotiation in so far as their ownership was concerned? Bannon shows how Celsus and Ulpian presumed that the simple realities of buying and selling would result in purchasers not necessarily knowing the particulars of a building's plumbing, and that therefore, it would be better always to consider such underground pipes as an integral part of the property. That is, economic realities largely determined the line taken by the jurists here.

A last article, which comprises Part IV, is offered by Philip Thomas. Thomas allows Jacques Barzun's theory of aspect to guide him in considering divergent issues in Roman law. He shows that the matters raised (e.g., how to interpret the XII Tables) can be approached from multiple perspectives; and hence, can reveal different things to differently attuned investigators and audiences. This all leads to the proposition that, "a third life of Roman law as a methodological and philosophical instrument in legal education could promote independent and nuanced thought" (p. 242). And precisely because Roman law is so useful "to learn to think," it well merits a place, even today, in university legal curricula.

As du Plessis points out in his introduction, "In a certain sense, Thomas's chapter represents the very essence of the approach of this book. When read as a whole, the themes explored in this book demonstrate that it is possible…to ask new questions about Roman law" (p. 4). While it would have been useful to have these new questions (and any answers to them) delineated more thoroughly and explicitly, they are here to be found, and they are well worth searching out.

1.   Cf. A. Wallace-Hadrill, Rome's Cultural Revolution (Cambridge 2008) 253-254. There is room for more discussion of how knowledge of the law served, or did not, to cement aristocratic status.
2.   Their argument is forcefully paralleled by the findings of U. Babusiaux, Papinians Quaestiones: zur rhetorischen Methode eines spätklassischen Juristen (Munich 2011). Note also that Bannon, in this volume (p. 211), talks of an opinion of Celsus, which "may at first seem extreme, perhaps because of its rhetorical flourish."
3.   Compare, for example, H.F. Jolowicz and B. Nicholas, Historical Introduction to the Study of Roman Law 3^rd ed. (Cambridge 1972) 380: "The least unsatisfactory conjecture is perhaps that the famous 'schools' [Sabinian and Proculian] were rather more in the nature of aristocratic clubs formed for the discussion of legal matters and centring round a distinguished jurist." Not schools of law, but schools of thought about law. On handbook literature, see esp. T. Fögen, Wissen, Kommunikation und Selbstdarstellung. Zur Struktur und Charakteristik römischer Fachtexte der frühen Kaiserzeit (Munich 2009).
4.   Essential for all of this is K. Buraselis, ΘΕΙΑ ΔΩΡΕΑ. Das göttlich-kaiserliche Geschenk. Studien zur Politik der Severer und zur constitutio Antoniniana (Vienna 2007) 120 ff.
5.   That Roman private law was altogether designed with the interests of the rich in mind has long been noted. So, for example, F. Schulz, Classical Roman Law (Oxford 1951) 545: "The lawyers wrote and worked [re law of hire] for the class of the beati possidentes to which they themselves belonged and their social sense was ill developed."
6.   It might well be worth thinking of this with regard to record-keeping at the public level, on which (e.g.): S. Demougin (ed.), La mémoire perdue. A la recherché des archives oubliées, publiques et privées, de la Rome antique (Paris 1994); R. Haensch (ed.), Selbstdarstellung und Kommunikation. Die Veröffentlichung staatlicher Urkunden auf Stein und Bronze in der Römischen Welt (Munich 2009).