The last three or four decades have shown an increasing eagerness among Roman historians to use the evidence of legal texts, both to address questions of a specifically legal nature, and to enrich the general understanding of the character of Roman society. John Crook’s Law and Life of Rome, headed by the wry epigraph ‘‘luris consultus abesto’’ (‘‘Jurisconsults Keep Off!’’), appeared in 1967 and was quite explicit in its aim ‘‘to strengthen the bridge between two spheres of discourse about ancient Rome by using the institutions of the law to enlarge understanding of the society and bringing the evidence of social and economic facts to bear on the rules of law’’ (Crook 1967: 7). Since then has appeared a great number of studies representing the same way of thinking, on topics to which the legal evidence contributes - social and legal privilege, the status and duties of town councilors, marriage and the position of women, sexuality and prostitution, the food supply and commerce, city administration, the agrarian economy, landowners and tenants, the origin and character of the jurists themselves - not to mention those more specifically legal issues, such as crime and punishment, the Roman citizenship, testamentary succession, slavery and manumission, and others, for which the legal evidence has always been understood to be central. This work has been complemented by books in which specialists in Roman law have explained without compromise the technical character of issues in their field to a more general audience.
The single most important development in making Roman law accessible to the wider constituency of Roman historians is however the translation, by a team of translators assembled by Alan Watson, of the Digest, the most substantial of the four works that make up the Corpus Juris Civilis of Justinian. This book, a still more massive achievement than the translation of the Theodosian Code produced by Clyde Pharr and a team of collaborators 50 years ago, should in time have a similar effect on Roman studies.
The Digest is one of the most important intellectual legacies of the ancient world, in bulk and variety exceeding most of them (perhaps only the Hebrew Bible and its legal commentaries contain so much of interest on so many different things). It was produced in 533 after a mere four years of work, a true reflection of the astonishing burst of energy that marks the early years of the reign of Justinian (Honore 1978:138-86). It was accomplished under the guidance of the great jurist (and hated politician) Tribonian, by editorial committees who reduced to a mere 150,000 lines a total of 3 million lines of text contained in nearly 2,000 books ( libri, in the sense of an ancient book division). At the head of their text the editors listed the 204 works of the 38 jurists they had read, including 13 by Gaius, 23 by Ulpian, and 71 by Paul. These works could be very substantial in their own right; Ulpian’s and Paul’s Commentaries on the Edict, for example (on which see below), consisted of 83 and 80 books respectively. To give some sense of proportion, the combined lengths of these two works alone easily exceed the original number of 142 books into which Livy - the Patavine historian, as Syme described him, ‘‘sunk by his bulk’’ - divided his history. Despite the scale of reduction, the emperor, no doubt giving voice to Tribonian’s opinion, remarked that the completed work seemed to contain more law than anyone knew existed (Const. ‘‘Tanta,’’ 17). Like other ventures at consolidation, the Digest put paid to the specialist works from which it was derived and it was the Digest, not the works of the jurists themselves, that was the foundation of the rediscovery of Roman law in the eleventh-century schools of Bologna.
The majority of the jurists whose names occur in the Digest lived in the later second and early third centuries, with outliers such as Q. Mucius Scaevola and P. Alfenus Varus from the republican period and Hermogenianus and Aurelius Arcadius Char-isius from the late third and early fourth century of the empire. It is ironic that the period of the jurists coincides with one that, apart from ecclesiastical writers in the shape of Tertullian and Cyprian, has left hardly any Latin literature. The Cambridge
History of Latin Literature produces no significant author between Fronto, Aulus Gellius, and Apuleius in the second century and the fourth century, and is totally silent on jurists. Yet jurists were invariably men of a literary education, which was the foundation of a legal education and always preceded it; they frequently rise to eloquence even in the excerpted form in which we have them, and their writings are in play in dictionaries of the Latin language. It is not obvious why juristic culture should have less of a presence in a history of Latin literature than an astrologer and the author of a handbook on military science.
The Digest is such a monumental book as to defy summary, beyond saying that it is divided into 50 long books, that it covers the full range of public and private law, and that in translation it fills two very large volumes in fine print. Not that it is entirely unknown, for a privileged few texts have long been in play for their contribution to specific topics and have entered into the general literature on them. No one would address such fundamental questions in political philosophy as the definition and purpose of law, or the distinctions between ‘‘civil law,’’ ‘‘the law of nations,’’ and ‘‘natural law,’’ without studying the first chapter of the Digest and the related definitions at the beginning of Justinian’s Institutes. Also in the first book of the Digest is a passage from Pomponius’ ‘‘Manual in One Book,’’ which is a plausible elementary guide to the historical development of Roman law (1.2.2). A substantial extract from Ulpian’s ‘‘On the Duties of a Proconsul’’ explains very carefully how a governor should treat his province, to the extent of advising him that he may take his wife though it is preferable for him not to, asking him to ensure that he enters his province by the most important city (mentioning Ephesus, the metropolis of Asia), reminding him that he must listen patiently to endless speeches of welcome since the provincials expect it of him, and warning him to be careful to strike a balance between accepting too many gifts and seeming offhand through refusing them. On this last point a letter of the emperor Caracalla is quoted, expressing his opinion with an apt Greek proverb. In any discussion of provincial life in its relations with the ruling power, this text is essential reading (1.16.4, 1.16.6-7, 1.16.9-10). So too in the matter of demographic trends is the ‘‘life-table’’ cited by the jurist Aemilius Macer from Ulpian, giving figures for life expectancy from various base points, from birth to 60, in order to calculate the tax consequences that arise for the future in the case of usufructs and annuities received as inheritances (35.2.68). It is a complicated law, much debated by scholars, but on any account is an essential component in any discussion oflife expectancy in the Roman Empire (Frier 1982; Parkin 1992: 27-41). A ruling, again by Ulpian, that fideicommissa might be expressed in any language, whether Latin or Greek, ‘‘Gallic’’ (that is, Celtic), Punic, or ‘‘Assyrian’’ (which we know as Syriac), or ‘‘any other language,’’ so long as it was understood by the participants, through an interpreter if necessary, has an obvious bearing on the use of the non-Classical languages in the Roman provinces (32.11 or 45.1.1), as, on the broad question of literacy, does his opinion as to the length of time, physical conditions, and language in which a notice must be displayed to allow it to come to public attention (14.3.11). We learn too from the Digest that it was common practice in dispute settlement to avoid litigation by taking oaths, on the basis that ‘‘the taking of an oath is a species of settlement and has greater authority than a judgment,’’ and that ‘‘it is an indication of manifest wickedness and an admission, to refuse to swear or to counter-tender’’ (Paul D. 12.2.2.38). If widely practiced, this custom would have a great impact on our understanding of the conduct of law in the Roman Empire, and on the law itself.
To such texts as these, we may add the endless individual circumstances, real or imagined, that arise in the course of legal discussion. What are we to make of the slave fishermen who ‘‘attended a testator and followed him everywhere’’ (the question arose because at the time of the testator’s death the slaves were not on his farm and so did not seem to be part of his property)? Are plant pots full of earth and containing plants part of the house? (They are, provided they are fastened to the house permanently.) This whole title of the Digest (33.7), on farms and their equipment or instrumenta, reads like a physical archaeology of the rural household; another, with a similar variety in the situations found or imagined, considers the uses of and damage caused by rain, ditches and water channels, rivers and standing water (39.3). The Roman Empire, and not just the life of its richest classes, comes to life in these pages. Some of the circumstances that arise would not be out of place in Petronius or Apuleius (to which it is worth adding that the Dinner of Trimalchio contains an informative parody of a Roman will, and that Apuleius’ Apology is the best example that we have of a Roman lawsuit in the provinces). One text considers the value of a slave with a mental rather than a physical defect, such as being ‘‘addicted to watching the games or studying works of art or lying’’ (21.1.65); another considers the consequences that arise when two carts being pushed up the slopes of the Capitol run out of control back down the hill and knock down a slave boy belonging to someone else (9.1.52.2); another asked what would happen if freedom had been given to two slaves on condition that they had painted a room and built a ship, and one completed his task but the other not (40.4.13). Whether real, or imagined in order to illustrate points of law, such situations are part of the thought-world of the writers, and so part of the history of their society.
Behind the whole question of the nature of legal texts and the way in which they can be used by historians is that of the legal procedures from which they arise. This is another way of putting the question of the sources of law, and it is to this that we turn next.
World History
