ROMANS AND ROMAN LAW

Today the ancient Romans are probably best known for the dramatic and bloody parts of their world (say, gladiators and legions) or for the quaint details (think aristocrats wearing togas and carried in sedan chairs). But if we ask what their most important or most lasting mark on the world was, the answer would almost certainly be their legal system. Of course, many other ancient societies had legal codes, some long before the Romans'. A famous inscription now housed in Paris gives us the Code of Hammurabi, a set of nearly 300 legal rules from eighteenth-century b.c. Babylon. The five Old Testament books of the Torah offer us much Jewish law from rather later. The other great “classical” civilization, that of Greek Athens, has left us a substantial legacy of courtroom oratory. Yet over the course of centuries, the Romans developed something genuinely different. Their legal system was vastly larger, more encompassing, more systematic, and more general than anything else that existed at the time. Moreover (and through different routes) it returned to life even after the fall of the Roman Empire.

If someone says the word “law” to you, the first things likely to come to your mind will include “courts” and “trials.” Arguably, that is a distorting view, and the law has its greatest effect less directly – when people know how to follow the rules on their own without direct enforcement or judgment, as in a game of pick-up football. Still, even that situation probably could not exist without at least the possibility of formal trials, and courts are one of the most distinctive features of what we would recognize as a “legal” system. This chapter will discuss the procedure in what we usually call Rome's “civil” courts (the actual Latin word is “private”), where the vast majority of cases were heard. Criminal (literally “public”) procedure will be treated in Chapter 19. I will begin by discussing the set of rules used during most of our period: the so-called formulary procedure. Then I will treat more briefly its predecessor (the legis actiones) and a partial successor (called cognitio).

While this chapter is about procedural rules, not the substantive law discussed in most of the rest of this book, I should make one substantive point here. Since the civil and criminal courts operated under very different rules, I need to give a very brief description of the different jurisdictions here.

The family seems to be an important institution within all societies. So it is not surprising that societies, modern or Roman, with sophisticated legal systems have elaborate rules about those families. They regulate, for instance, eligibility for marriage or transfer of wealth by inheritance. But the general similarity can be misleading. While the importance of “family” may be universal, ideals and even the definition of that term can differ considerably. The Roman word familia, for instance, usually means “household” or even “the slaves of the household.” Latin does not have a word that clearly refers to what we today call the (nuclear) family. As a result, the shape of Roman family law can be surprisingly different from modern versions. For instance, it has very little to say about issues like grounds for divorce, alimony, child support, and child custody. In some instances this is because the Romans thought the questions were easier to answer than we do; in other cases, it is because they didn't ask the same questions in the first place. Other issues, such as the authority of a father over his adult children or treatment of dowry, loomed much larger in Rome than they do today. Over time, the shape of the Roman family (and of marriage in particular) changed. It was affected by several factors. One of the most dramatic of these was the rise of Christianity. The final section will look at the legal consequences of that transformation.

Roman and common law have similar ideas of a “wrongful act which does not involve a breach of contract and for which the injured party can recover damages in a civil action”; we call this a “tort,” and in Roman law the parallel category of acts is called “delict.” Delicts were tried according to private procedure, and the plaintiff, if successful, received money compensation for the damage but potentially also additional cash as a punishment of the wrongdoer. Thus delicts and torts are somewhere between crimes (very much the business of the state) and, say, contract disputes (primarily a matter between the parties alone). The main difference between tort and delict is that the Romans included under the heading of delict several offenses (theft, most assaults) that we routinely treat as crimes today. The following sections will treat three of the most important delicts, but I will begin by noting some features that are common to most or all of them. First, every delict required both an overt act and the intent to commit that act (even if not all the consequences were intended). Thus mere accident or bad intention alone could not give rise to a delict. These rules are shared with those for crimes (see the next chapter) as against, say, cases of contract law. Also (and again in common with the criminal law), not only the criminal himself was liable, but also persons who gave significant aid in planning or carrying out the action, so long as they too had the same intent, and all the participants in the act were individually liable for the full amount of damages.

This is a particularly technical area of the law, and the extent of my simplification will be greater than usual. “Ownership” is, in general, the right (or a set of rights) to control a thing, a piece of property. While there are differences between Roman and common law in this area, it would be fair to say that the Romans had a notion of ownership, which they called dominium. (I will also sometimes use the alternative English term “title” as a synonym.) Since ownership is a matter of rights, the question of who “owns” something is necessarily a question about legal rules. Both Roman and common law also give some recognition to the notion of “possession.” At least initially, the question of who “possesses” something is a matter of fact, not of law, but over time both systems turn possession into something that is more like a lesser degree of ownership. The kind of “things” that can be owned in Roman law are quite varied, including movable property (money, tools), real estate (both land and buildings), living beings (livestock, pets, human slaves), and more abstract rights (the right to collect a debt, to extract clay from a piece of land, to file certain kinds of lawsuit). The first two sections of this chapter will treat the basic rules of ownership and possession, respectively. The third section will then discuss how the two notions were brought closer together over time.

At all times, but especially during the Republic, the Roman government lacked a police force and other bureaucracies that could check ordinary crime, much less control behavior that was less dangerous but still disfavored. Attempts have been made to find elements of the Roman government that might have taken on these functions, but the evidence has been lacking. No magistrate had a major responsibility in this area, nor did any have at his disposal the large number of dedicated employees that would have been required to police a city the size of Rome. In fact, it has recently been pointed out that police forces in general are actually a very recent invention. Rome was somewhat unusual for a premodern state in not allowing military forces into the city, which meant that they could not be used to enforce public order. (Presumably, they would not have been effective for less organized antisocial behavior anyway.) Still, the Romans found ways to try to use law to impose a certain degree of social control.

VIOLENCE

Early Roman law and tradition had, if not encouraged, at least accepted a fair amount of self-help in protecting one's own rights. We know of several forms of more or less ritualized protest and shaming that a wronged party might use to get justice from the supposed wrongdoer: harassing verses, appearing in public in mourning clothes, and simply calling out for aid.

I begin this chapter with three very general observations. (1) While Roman education took on mostly Greek forms, education in the law had no real Greek precedents. Formal legal education is thus generally thought of as Rome's great innovation in pedagogy. (2) While basic literacy was expected of women of the upper classes in Rome, and while a few even became quite learned on their own, they were cut off from most advanced education by custom. Moreover, they were banned from most courtroom activity by rule. Hence, the references below to “men,” “sons,” “he,” and so forth are meant to have their full, gendered force. (3) The evidence for Roman legal education is a little peculiar. We have essentially two snapshots of standard practices at two particular times – the late Republic and the later Empire – and a slightly broader but also less detailed view of what went on in the first two centuries of the Empire. We have virtually no information on the transitions between these phases. In what follows, I will simply treat the three phases in chronological order.

Before discussing Republican legal education, it is important first to know a few things about Republican education more generally. By the later part of the Republic (if not much before), the formal education of the Roman upper classes had become fairly standardized.

The roman courts divided cases into the “private” and “public” in something like the way we divide “civil” and “criminal.” One of the important differences is that in Roman law some of our main criminal offenses (most thefts and assaults, seemingly including murder) were in the private category for most of our period. The public offenses also attracted much less attention from the Roman jurists than private-law matters, and surviving speeches from actual prosecutions have surprisingly little to say about legal issues. The explanation for all these facts may be that the Romans had a very political understanding of the role of the public courts. This is not to say that they were “political” in a corrupt sense (though that might be true as well). Rather, they existed only to treat matters that were inherently political in that they affected the community as a whole (say, electoral bribery or abuse of office). An offense to an individual victim with no broader consequences, no matter how heinous, just was not the right kind of offense for these courts. Mere law and order were not sufficient grounds. And to the extent that the community was defending itself in these courts, the law was not acting as a fair or impartial third party settling disputes. Hence, lawyers were neither interested or interesting in these contexts.

Roman history is usually divided into three periods based on the form of the central government: the “monarchy” or “regal period,” when kings ruled; the “Republic,” a more democratic government; and the “Empire,” when (naturally) emperors ruled. (Note that Rome was an empire [small e] in the sense of “conquering power” centuries before emperors came to the throne. I will use the capitalized “Empire” to refer to the time and form of government.) These divisions are not necessarily as important for the legal system as they are for some other aspects of Roman life, but they do determine where law came from, and give a general background against which to set specifically legal developments. The first three sections of this chapter will give brief explanations of the forms of government that define these three periods. The fourth will mention a slightly different way of dividing things up that is more closely tied to legal history. The final one explains the history of a specific institution that is especially important for Roman law: Roman citizenship.

THE MONARCHY

Roman legend has it that the city was ruled by kings from its founding (in perhaps 753 bc) until a coup which removed not only the last king but the kingship altogether (in 509 bc). Modern scholarship finds these dates (especially the one for the founding) highly suspect, and questions how and even whether the individual events happened.

The american declaration of Independence asserts that “all men are created equal.” Similar ideas have led most modern legal systems to the ideal (not always lived up to) of equal treatment by the law. Roman society, by contrast, took for granted the idea that different people had different value. Consequently, the Roman legal system recognized or created a variety of inequalities. Most of these are described elsewhere in this book (especially in Chapter 10), but a brief summary in one place will be in order. Women were under restrictions that did not apply to men. Younger and younger children had progressively fewer rights. For political reasons, some people were free (including ex-slaves) and some enslaved. Among the free people, different ones were citizens of different communities. All of these distinctions produced different sets of rights. The blind and the deaf were also restricted, as were the “insane.” The wealthy had explicit political privileges, though generally not legal ones. Magistrates did have some legal advantages. Starting from the first century ad, there was a more lenient bankruptcy procedure available to “notable” persons. There is even some evidence that the praetor might (sometimes) simply refuse to grant actions against a more powerful person by a less powerful one. But despite all this, Roman law remained surprisingly egalitarian in certain theoretical respects. To simplify the situation slightly, the factors just listed all affect what questions had to be answered in court, but should not affect a trial once under way.

Most of this book has assumed that the persons involved in its situations were Romans living in Rome (or perhaps their slaves). Roman law, however, was fairly sensitive both to the citizenship of individuals and to the location of a given legal dispute. (Since one's birth citizenship rarely changed, citizenship and location often do not line up.) Thus we need to think at least a little about several other situations: Romans interacting with each other abroad, Romans and aliens interacting (both in Rome and elsewhere), and two non-Romans interacting within an area of Roman rule.

CITIZENSHIP AND JURISDICTION

The central principle is what we today call the “personality principle.” That is, the law that governs you depends more on who you are than on where you are. Consider, for instance, an Athenian or Jewish couple living in Rome but without Roman citizenship. Were they legally married? What rights did they have against each other or any children? What happened to the property when one or the other died? The Roman law rules discussed earlier (Chapters 15 and 16) did not apply. Rather, the Romans left this up to Greek and Jewish law, respectively, to decide. (If there was no nearby court to decide these issues conveniently, that was not the Romans' problem.) Of course, there were exceptions to this principle, and these will be discussed later, but it is important to begin with one clarification. Limited jurisdiction is a legal concept, not a political one.

WHERE ARE THESE DOCUMENTS FROM?

The bulk of the documents presented here come from a single source, and so they can provide a certain amount of context for each other. They are written on a series of wax-covered tablets excavated at Muricine near ancient Pompeii (itself near modern Naples, but buried by a volcanic eruption in ad 79). Most of them involve the business affairs of a family called the Sulpicii. This gives them their (Latin) name, “Tabulae Pompeianae Sulpiciorum,” and the abbreviation commonly used to identify them – TPSulp. They date from the early to mid first century ad (as you will see, many of the individual documents give dates, sometimes including the year).

The other texts (following those from TPSulp) come from a wide variety of times and places and are recorded in various media: more wax tablets, inscribed marble, inscribed bronze, papyrus. Most of these are identified here by the numbers given them in a standard collection of Roman legal documents (S. Riccobono, Fontes Iuris Romani Anteiustiniani [Florence, 1940–3]). The last three come from miscellaneous other sources. All but [26] and parts of [14, 17] (in Greek) were originally written in Latin.

A NOTE ON NAMES

Male Roman citizens had three names, and they normally used all three in formal, legal contexts, like “Gaius Sulpicius Faustus” and “Lucius Faenius Eumenes” in the first document.

Ancient rome, whether represented today in popular movies or in scholarly books, often looks like a world full of writing. Written texts can outlive their mortal writers, and the effect is multiplied when multiple copies are made of one author's work. And clearly the Romans had a fascination with some forms of writing, such as inscriptions on stone. Yet most scholars agree that the average Roman was poorly or not at all literate. In such a world, it is perhaps not surprising that writing had an important but limited role in the law. The simplest illustration of this is provided by the Edict. The very name of this core set of rules points to the world of speech; the word literally means an order “spoken out” by the magistrate. At the same time, a citizen actually encountering the Edict would almost certainly have come across it in the form of an “album” – a wooden board whitewashed and written on with black ink. To examine the whole of the relationship between writing and the law, however, we will need to consider several different variables. What differences were there between the treatment of the laws proper and that of individual legal instruments (e.g., contracts)? Were all forms or media of writing equivalent? When did writing have a practical value (as external memory or evidence, for instance), and when did it become part of the law itself? As I suggested earlier, Roman attitudes contain some self-contradiction.

Ownership and possession are both standardized sets or packages of rights over pieces of property, but Roman law also allowed the packages to be broken up in other ways. The owner could retain his title to an item but transfer control over it (for a time), or retain both title and control while granting specific rights (say, the right to walk across his land). This greater flexibility was of commercial value, since it gave owners a variety of ways to exploit their property and allowed them to deal with a variety of other business partners. But, as we will see, these partial rights were also useful for other reasons. The first section of this chapter treats temporary but near-total transfers of rights (usus and usufructus); the second treats a set of more limited rights (called “servitudes”) that could be traded. The third section treats rights a neighbor could claim over next-door property. The last one will cover the limitations produced by joint ownership.

USUS AND USUFRUCT

These are the rights to the use of an object with (usufruct) or without (usus) the right to keep the “fruits” of the property (e.g., fruit from an orchard or ore from a mine, rental income, offspring of livestock). The combination package, usufruct, is more common, and, since the rules for this and for usus by itself are largely the same, I will speak only of usufruct in what follows.

To find out today's law on a given topic, there are many resources available. The governmental agencies that make the laws have standard places in which to publish them. Commercial publishers collect and distribute the same material (with or without additional information), both on paper and now on-line. Libraries, some general-purpose and others specializing in law, collect these materials. Enthusiastic amateurs and, increasingly, search engines make the texts even more broadly available. To discover Roman law is often a more difficult matter. The bulk of this chapter will discuss the main sources available to us, but it will be worthwhile to begin by noting the kinds of problems we face.

The first and most important problem is one that affects historians asking virtually any question about the Roman world. Most of the evidence available, even to the Romans themselves, was in the form of documents written on paperlike materials. But these typically do not survive the centuries needed to come into our hands. In a few lucky cases, texts were popular enough to be copied and recopied through the ages, but this is rare and still leaves other problems (to be discussed later). A second problem has to do with the sources initially available. Ancient governments did not necessarily make arrangements for wide publication of their laws in the way that modern ones do, nor were there private institutions to publish, circulate, or even centralize legal documents.

In certain respects, Roman law could be surprisingly egalitarian. Once a case came to trial, particularly, the court was supposed to decide between one case and the other, not one person and the other (at least in theory; for the practice, see Chapter 7). Still, Roman society was one in which it could be openly asserted that some people were simply better than others, and the law recognized some of these hierarchies (e.g., free persons vs. slaves). Other status differences might be claimed to exist in natural fact (minors vs. full adults) or on political rather than personal grounds (e.g., citizenship). The most complex and important of these issues have to do with gender, and the position of women in Roman law will get its own chapter (Chapter 16). This chapter will treat all the other distinctions of status just mentioned.

FREEDOM AND SLAVERY

Many societies have some form or another of “involuntary servitude” (as the American Constitution describes it) or compulsory labor. Rome (in common with the American South) had the rarer and stronger institution of “chattel” slavery. That is, not only were some human beings compelled to labor or follow the orders of others, but they were actually subject to the laws that governed property of other types. In principle, parts of the law of persons could have been applied at the same time. In fact, as we will see, the “thing”ness of Roman slaves stayed constant over the centuries, but their “person”ness varied.