Introduction

At the beginning of the twentieth century it would have been surprising to find a Roman historian who did not possess some knowledge of Roman law. If this is so, it was a legacy of the great historian Theodor Mommsen, whose last project, an edition of the Theodosian Code, was published in 1905, two years after Mommsen’s death at the grand old age of 85. This late masterpiece complemented the edition of Justinian’s Corpus Juris Civilis which, in collaboration with Paul Kruger, began to appear in 1876. The Theodosian Code, and especially its commentary by James Godefroy (Gothofredus), had already been among the most important influences in the reading, and later on the writing, of Edward Gibbon. Gibbon recalled this in his fascinating Memoirs of My Life, where, however, he described it as a ‘‘work of history, rather than Jurisprudence,’’ evidence above all for the political state of the empire in the fourth and fifth centuries (Gibbon 1966: 147). In due course, Gibbon included as chapter 44 of The Decline and Fall of the Roman Empire a description of the work of Justinian in legal codification, incorporating a long account of the principles of Roman law (beginning with a waspish complaint about the arcane system of reference employed by ‘‘the civilians of the darker ages’’) (Gibbon 1994: 2: 778-844). He had done the same, on a smaller scale, in chapter 38, with an account of the legal enterprises of the barbarian kings of the fifth and early sixth centuries, with the strange result that we read about the law of the barbarian territories of the west in an earlier chapter - originally in an earlier volume - than we read about the Roman law from which it partly derived (Gibbon 1994: 2: 472-85). But there is a vast difference between Gibbon’s and Mommsen’s approaches to the subject. Gibbon had made no use of the Digest (or Pandects, as he referred to this part of the Corpus Juris Civilis) to illuminate the history of the period to which its assembled texts actually referred, and his description of the principles of Roman law derives not from the Digest but from the textbook account of Justinian’s Institutes (his catalogues list only a volume on ante-Justinianic law and an edition of Justinian’s Institutes - followed by six editions or translations of Juvenal [Keynes 1940: 164-5]). Gibbon made no attempt to integrate the subject with the history of the Roman Empire as a whole, and his treatment of Roman law has only a shadow of the impact of his great digressions, for example on the Germans and Persians, or on the early history of Christianity and its treatment by the Roman state.

The gulf between Gibbon and Mommsen is not only one of times and temperaments, but between different assumptions about the nature of research and the academic environment. Gibbon was a gentleman of private means, a self-educated man, whose university education had notoriously little influence on his intellectual formation. He was a genius, whose work still impresses us for its accuracy of judgment, its sustained intelligence, its breadth of learning, and its respect for the learning of others. A German review of Decline and Fall, however, already noted its undeveloped sense of source criticism, a response that expresses the different academic traditions of continental Europe (Momigliano 1966a: 40). There, historians were professionals trained in techniques, who did not just read and respond to texts, but analyzed them. The learning of Mommsen, as of his historian predecessor Niebuhr, and, in literary studies, the Homeric scholar Friedrich August Wolf, was founded on research and teaching based in public institutions, on scholarly collaboration and systematic publication, and a syllabus of study designed to train the skills of criticism. For these scholars, the study of ancient culture was based on the analysis of the sources on which it was based. It was also focused on the institutions of Roman society as much as on its narrative history, and this led them to an interest in Roman law even if they did not, like Mommsen, consider themselves primarily students of law rather than Classics; already in his doctoral dissertation, Mommsen, with all the intellectual arrogance that would serve him so well later, pronounced that the study of Greek was essentially philological, that of Latin essentially legal (Wiedemann 1996a: 40). Among Mommsen’s earliest writings, which arose from his studies at Kiel University (where Niebuhr too had studied), were dissertations on the Roman collegia (trade associations), on the citizen tribes, and on certain minor magistracies (the doctoral dissertation just referred to). It was Niebuhr, already the author of a published history of Rome and editor of the second-century writer Fronto, and the future founder of the academic journal Rheinisches Museum (from 1827), who discovered at Verona and published the text of Gaius’ Institutes, to which we will return below. In the special field of Roman law, Friedrich Bluhme, whose research produced the still fundamental analysis of the mode of preparation of Justinian’s Digest, published his work in 1818 (Kunkel 1973: 158-9; Honore 1978: 150-70).

Two other elements strengthened Mommsen’s interest in Roman law and the history of Roman institutions. The first was his early involvement in the discovery and publication of inscriptions. These were important because they presented an alternative to the literary sources, and because they offered an approach to the institutional patterns in Roman society, which in turn generated a new, and already modern way of approaching its history - through the description of its social and political order rather than the narrative of its events. The second element was the movement, in Germany as elsewhere in Europe, towards unification around a national identity, to be implemented not by the hereditary monarchies but by a strong leader who would give political expression, like Mommsen’s hero Julius Caesar, to the institutional and social changes that were taking place. Along with this movement went a complex debate about the relations between law and political reform, one strand of which concerned the relations between the Roman law, enshrined in the Digest, that had been inherited from the Middle Ages, and the European codes of the early nineteenth century (Whitman 1990: 212-28). There was an issue of jurisprudence at stake in this debate: whether the law should be codified in the interests of clarity and consistency, or left in its natural state, in order to be more sensitive to the needs of individuals and unforeseen situations. Mommsen’s belief in law as an instrument of change has an obvious bearing on the politics of the nineteenth century, and, no less obviously, on his view of the Roman Empire.

Such motivation and emphasis lead more strongly to the study of public than of private law, as can certainly be said of Mommsen’s two late masterpieces on Roman law. ROmisches Staatsrecht (Roman Public Law), published over the years 1870/88, traced the sources and processes of public law and administration as they led the transition from republican to imperial government; and Romisches Strafrecht, of 1899, was about the criminal law of Rome. This does not mean that private law was not studied, far from it. Roman private law remained an essential component of the curriculum of law schools, not only in continental Europe, where the Roman model was relevant to modern practice (Mommsen’s dissertation on the Roman trade guilds qualified him to practice law), but in Great Britain, where it was not. Even there, Roman law ceased to be a compulsory discipline in the syllabuses of university law faculties only within the last few decades.

Twentieth-century Roman historians writing in English, who unlike their European counterparts were never deeply involved in Roman legal studies (political debates in nineteenth-century Britain were very unlike their counterparts in continental Europe), moved away from Mommsen’s concern for public law as the foundation of political institutions. This detachment was underlined by the experience of their own times. Two world wars, and the rise of dictatorships in the interwar years, showed how the institutions of a society could be manipulated by those who seized power, and how the law could as easily be made to support tyranny as to offer protection against it. The real issue, emerging one might say from the unsentimental, disillusioned tradition of Thucydides, Sallust, and Tacitus, concerned the nature of power and its manipulation by propaganda and deception. The Roman Empire, presented by Mommsen as a system of law, was really a system of power, which emerged through the murderous rivalries of dynasts (the term of the historian Appian), not the least of them Octavian who later became Augustus. One only has to read some of the chapter titles in Ronald Syme’s The Roman Revolution of 1939, to hear the march of the fascist dictators of the 1920s and 1930s: ‘‘Dux,’’ ‘‘Crisis in Party and State,’’ ‘‘The National Programme,’’ ‘‘The Organization of Opinion.’’ The eloquent but fruitless political philosophy of Cicero, sponsoring conservatism under the guise of unity, left stranded by the flow of events from Pompey to Julius Caesar and surrendered by Octavian to the revenge of Mark Antony, is dismissed in a phrase: ‘‘Political Catchwords.’’ Yet it was Mommsen’s hero Julius Caesar, practical as well as brilliant, who planned the codification of Roman law, and one of whose supporters wrote the first detailed commentary on the Praetor’s Edict (Suet. Jul. 44.3, with D.1.2.2.44 on Aulus Ofilius, Caesari familiarissimus).

Another influence in twentieth-century historical writing, emerging from a different strand in nineteenth-century thought, was an interest in social history, and in the experience of the ordinary people of the Roman Empire. This was not just a curious antiquarianism but part of a search for a historical dialectic built upon on socioeconomic determinants, that would correspond to the logic of development inherent in biological studies - it is not just a coincidence that Marx’s Preface to a Contribution to the Critique of Political Economy and Darwin’s Origin of Species were published in the same year, 1859. This severe philosophical quest combined however with the discovery of new materials in the form of archaeology, inscriptions, and in due course papyri, to produce a practical appreciation of the diversities of life in the regions of the Roman world. The central chapters of Rostovtzeff’s Social and Economic History of the Roman Empire (1957) are arranged, not around the central organization of the empire, but under its regions, under the general theme of town and country and the gulf of economic standing and privilege that divided them. Some texts of the Digest are cited in the source indexes of that great work, and Roman law (or rather, individual laws) are discussed from time to time, but the texts are concentrated on specific issues such as agrarian, commercial, and maritime law, the organization of town councils and the preservation of peace in the cities and countryside. Inscriptions and papyri are many times more numerous, and the legal texts do not form a central theme. The realization of just how far the populations of the empire, including the vast majority who lived in the country, might have been in terms of distance and culture from the city-based central authorities, might well encourage a sense that the resources of Roman law were peripheral to all but a minority of the people, and therefore to Roman history itself, as it was now understood. Yet the tendency to isolation is not all on one side. There is no shortage of textbooks and monographs on Roman law from which the physical realities of the Roman Empire seem no less remote than is the law from the pages of Rostovtzeff. This is not in all cases an outcome of neglect, but of a principled debate among legal historians themselves as to the nature of the connection between Roman law and the realities of Roman society. Alan Watson is the most recent to argue that the development of Roman law is to be understood from within the juristic tradition itself, without reference to an everyday society with which it had little connection (Watson 1995). It is an austere view, which does not seem at present to be the prevailing one among legal historians (Johnston 1999: 9-11; Frier 2000a). In any case, the argument would apply to juristic thinking rather than to the many primary texts that clearly relate to real conditions in the empire (see below, section 5).