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.

There was no idea in Rome of the “separation of church and state.” During the earliest period of the Roman government, certain priesthoods were the guardians and arbiters of the law. Even after this period, many priesthoods remained state offices; there were many public rituals; and public money was spent on religious buildings and the like. And many have noted the markedly legal cast of Roman religion itself. Rituals, prayers, and responses to prodigies had to take prescribed forms. The “pontiffs” who had originally been guardians of the law in general remained less “priests” in the modern sense than religious lawyers. Hence it is not surprising that religious law was one of the major subcategories of public law in Rome. But other factors limited the reach of religious law. First, on the legal side of things, is the mere fact that divine law was, after that archaic period, a subcategory of public law. The gods, apparently, did not have preferences in most mortal matters, and humans were left to their own devices in these areas. Second, on the divine side, religious authority was decentralized, and orthodoxy was not, in most respects, a Roman goal. Not even clearly religious activity in private homes, for instance, seems to have been of much interest to the authorities. There was some interest in preserving the existence of familial rites, perhaps especially the maintenance of ancestor worship, but there were no uniform regulations for the specific content.

As in most (probably all) ancient societies, women had no part in public law. They could not vote or hold public office. For essentially the same reason (if less obviously so), they could not serve as witnesses to formal legal acts or represent others in court. In private law, however, they had surprisingly broad rights. In fact, it has been noted that women were in many respects freer under Roman law than under some “modern” European systems of only a couple of centuries ago. At any rate, it is generally fair to say that the private law presumed that men and women were to be treated in the same way, unless specific exception was made in some specific circumstance. Women could own property, be held liable for crimes, make contracts, and go to court to sue and be sued. They could inherit property, which (as we noted in the previous chapter) was of great financial importance. This chapter will treat the circumstances in which women were treated differently. It will also mention a few areas of the law that have particular effect on women, but that in the end are driven more by the idea of “family” than by any views of gender. (Note also that a woman with a living father had no property rights, just as her brothers did not [see the previous chapter]. In this chapter, I will be speaking of women who are not in power unless explicitly specified.

A“contract” can be defined roughly as an agreement that can be enforced by the courts or other governmental mechanisms. Roman and Anglo-American law share this notion so far as it goes. An obvious question, however, is how to tell which agreements rise to the level of contracts. In common law, this is a fairly simple issue in principle. Roughly, any seriously intended “agreement, upon a sufficient consideration, to do or not to do a particular thing” counts. “Consideration” here means simply the thing(s) you get in return for fulfilling the agreement. In Roman law, things are more complicated. To be legally enforceable, an agreement had to meet the description of one of several pre-defined types of contract. There were more than ten types, and these were in turn divided into groups in different ways (e.g., on the basis of who was under obligation or how the agreement was to be interpreted). In the rest of this chapter I will simplify the situation by treating only five of the most important types of contract.

The most important distinction is between contracts defined by their formalities, on the one hand, and by their content, on the other. Formalities are special words or actions that might be required in the making of a contract, such as writing down an agreement, signing that agreement, shaking hands, registration in some central archive, or even using the word “contract.”

Any society with private property needs rules to determine how to distribute a person's things when he dies. In Rome, this need was particularly acute because inheritance was more important than it is today as a means of acquiring wealth. Business opportunities certainly existed, but they were relatively rare and risky. Fewer people “made” fortunes, and more were born into them. In principle, a Roman citizen was able to distribute his property to other Roman citizens after death in virtually any way he desired. This was done by leaving a document we call a “will” (and the Romans called a testamentum). Over time, certain limitations arose, some of which were then weakened or even rescinded. The writer of a will named one or more heirs to the whole estate (in potentially unequal shares), but also had the option of first giving specific items or amounts off the top as “legacies.” If someone failed to write a will, or if the will were judged invalid for failing to meet one of its many formal requirements, then the estate was distributed by a standardized set of rules. The general principle at all times was to give equal shares to the closest relatives, though the definition of “closest relative” shifted somewhat over time. At the same time, a device evolved that allowed some restrictions to be evaded (by instructing a beneficiary to pass on wealth).

Ibegan this book with one Roman's mixed feelings about the law. For him, Roman law was both one of the great and distinctive accomplishments of human civilization and a somewhat trivial game played by geeks for (at best) their own entertainment or (at worst) the legitimization of all kinds of mischief and even theft. The contexts in which Cicero was speaking suggest that both of his prejudices were widely held, at least in the elite circles in which he moved. He doesn't, that is, tell us about all Romans. In a sense, moreover, the texts I quoted there are largely theoretical. That is, one of them is entirely detached from any individual transaction or legal proceeding, and the other comes up only incidentally in the course of a trial on an unrelated matter. I want to conclude the book by briefly looking at the possibility of a similarly divided opinion of the law at more ordinary levels of society and in the heat of actual legal business.

The text I use to raise these questions for the sake of argument is a fairly simple contract, somewhat remarkably preserved, from the Netherlands ([25]). The underlying transaction is clear enough; one Stellus Reperius Boesus has sold a cow for cash to another man named Gargilius Secundus in front of witnesses. The striking thing for present purposes is the final formula before the date at the end. “Let this agreement be free from civil law (ius civile).”

A roman facing a legal problem might be assisted by two different kinds of professionals (or, if not literally professionals, at least experts): an advocate, whose training and experience were primarily in public speaking, and a “jurist,” whose role was primarily in interpreting and explaining the law. The first section will sketch out the differences between the two (which changed somewhat over time). The second will discuss ways in which the two remained somewhat connected to each other. The last briefly treats a few other types of legal workers.

THE TWO PROFESSIONS

Aquilius Gallus, a legal expert of the mid first century bc, made himself available to answer legal questions from strangers. When asked about handling questions of fact that arose in particular cases, he is said to have answered: “That is not a question for the law; it is a question for Cicero.” While he framed the matter as a difference between persons (himself and Cicero), it is generally believed that he was pointing to a more general distinction between (to use the English terms) “jurists” and “advocates.”

In Latin, jurists could be referred to by a number of different phrases meaning roughly “expert in law.” According to a comment of Cicero's elsewhere, these experts made themselves useful through pleading, consulting (as Aquilius did with his visitors), and legal drafting. Pleading in court seems to have fallen away over time (though this can be disputed), but advice and even providing evidence in individual cases continued.

This book compares Thucydides' presentation of warfare and war materials in the narrative portions of his History to Pericles' statements about Athenian warfare and war materials in the History. It argues that Pericles is an historical character in Thucydides' History, and that Thucydides does not share his views, but composed Pericles' speeches to display Pericles' character and views to the reader; moreover, it argues that Thucydides carefully introduced and surrounded Pericles' speeches with contrasting narrative illustrations.

One important reason to review the relationship between the two is that Thucydides is frequently identified with Pericles' intransigent imperialism. Many scholars hold that Pericles speaks for Thucydides, or that Thucydides was dependent on Periclean ideas. Many hold that after Athens lost the Peloponnesian War, Thucydides rewrote his History to justify Pericles' policies. Others argue that the first part of the History displays devotion to Periclean imperialism, but that the latter part of the book shows disappointment with this ideal. All of these arguments condemn Thucydides to a longer or shorter association with Pericles' fundamental chauvinism: an attitude that Athens deserved to rule whatever lands and peoples she had won through acquisitive warfare. The ethical implications of this association have not gone unnoticed, and Thucydides has been associated not only with Pericles' imperialism, but also with his materialism. Well-known scholars argue that Thucydides' monetary interests in Thrace made him a partisan of Periclean politics, or more broadly, that Thucydides was a defender of Athenian greed.

For both Herodotus and Thucydides, acmes produced by men arise, exert force, and self-destruct. Both historians also show that nature exerts force that overwhelms human powers, and their account of natural facts and events serves to put men's ambitions in the context of the necessary and the possible. In Thucydides' account of the meeting of Athens and the plague, a man-made acme of wealth and population confronted a natural acme. As was inevitable, the force of the natural acme prevailed.

The following chapter will conclude the exposition of Pericles' speeches in narrative context by comparing the simultaneously idealized and evasive presentation of Athenian imperial rule in Pericles' last two speeches with Thucydides' inexorably precise descriptions of the war and the plague. Once again, the argument will not offer a comprehensive analysis of the speeches, but will highlight the differences between Pericles and Thucydides. It will conclude with a discussion of Thucydides' praise of Pericles in chapter 65 of book two. If Thucydides displays Pericles' failings to this extent, how can he praise him so highly?

Pericles and Thucydides on the Reality of the Athenian Empire

Besides representing the Athenian empire as a single entity, subordinate to Athens, Pericles frequently depicts Athens as ruling the sea, or the earth and the sea. His imagery contrasts sharply with Thucydides' description of Athens' imperial existence, which discusses collecting money and putting down particular revolts.

The argument of Thucydides' Archaeology has often been cited as evidence that Thucydides and his Pericles shared a positive evaluation of imperialistic warfare. It is certainly true that the Archaeology and Pericles' speeches treat many similar topics, warfare and imperialism among them. But is it equally true that Thucydides and Pericles agreed about these topics? Does the Archaeology, like Pericles in his speeches, display approval for imperial warfare and confidence in the value of imperialistic acquisition? In our approach to this question, we will pay close attention to the role of Thucydides' references to the tools of imperialism and warfare in the Archaeology.

At the same time, we will remain mindful that war materials are not the Archaeology's exclusive focus. Swords, money, ships, walls, and other materials necessary for warfare are prominent in the Archaeology, which is a history of continuous conflict. However, they are by no means the only material illustrations of Thucydides' analysis. This chapter will also attend to the evidence Thucydides brought forward to characterize the successive peoples of Greek history. This evidence is various, copious, and striking, ranging from loin clothes and golden hair brooches to the graves of Carian pirates and the (imagined) future ruins of Athens and Sparta.

The Archaeology is therefore a text rich in narrated materials. Furthermore, it offers guidance for assessing their role. The first and most important standard for judging the role of narrated materials in the Archaeology is offered by the lessons learned from Thucydides' account of ancient events.

In his first speech, Pericles created oppositions between Athens' profitable and powerful sea empire and Spartan agricultural poverty. The opening narrative of book two offers a contrasting point of view. In the story of the defeat of the Theban invasion of Plataea, Thucydides opposes Pericles' disqualifications of landed ways with a detailed depiction of the formidable strengths of an agricultural community. Where Pericles had assessed the significance of a campaign according to the profit of money and territory it brought to the aggressor, the ineluctable consequences of this small event make it significant for Thucydides, for whom the profit of warfare is just one potentially problematic result among many of waging war on Greek neighbors.

This chapter will therefore begin by discussing the story of the Theban attack on Plataea. After this, it will briefly review Thucydides' account of the pan-Hellenic preparations for war (2.7–8), and take up Archidamus' address to the Peloponnesian captains before settling in to an analysis of Pericles' speech at 2.13. Pericles' speech in indirect discourse responds to Archidamus' speech in direct discourse: Archidamus is afraid that the Spartans' very large forces will cause overconfidence on campaign, and spends most of his speech arguing for restraint. Pericles does the opposite, cataloguing Athenian wealth with the aim of bolstering Athenian confidence. After discussing Pericles' speech in detail, the chapter will close with an analysis of Thucydides' contrasting history of Attica at 2.14–17.

Important scholars blame Thucydides for his presentation of Pericles, arguing that no balanced report could have excluded a fuller representation of Pericles' responsibility for Athenian policy in the period before the Peloponnesian War began. Thucydides' selection of material for book one of the History is, from their point of view, fundamentally flawed, even dishonest.

The previous chapters have suggested that we have overlooked some significant reasons why Thucydides constructed book one in the way he did. Part of his aim was to create the material acmes of the prewar period in the narrative. Thucydides announces at 1.23.6 that Spartan fear of Athenian size was the deeper cause of the war. The first sections of the book show the problem with the kind of “size” Athens possesses, illustrating the ease with which naval acmes cause wars and the unreliability of these acmes, once deployed (Corcyra and Potideia). The following sections show, among many other things, the psychological force the unprecedented Athenian acme was exerting on all relevant actors (the meetings at Athens and Sparta), and then further that the Athenian acme really existed with the size and aggressive potential Athens' enemies feared (the Pentekontaetia). The result of this size and potential was that men as intelligent and farsighted as Pericles perceived the Athenian acme as glorious and reliable, and felt confident to urge a war with Sparta (Pericles' first speech).

In Chapter 2, we saw that Corcyra's acme of wealth and war materials was a root cause of the war between Corcyra and Corinth. This chapter continues to discuss the narrative setting of the war, and will focus on the representation of Athens' corresponding acme of wealth and war materials in Thucydides' accounts of the Spartan War Congress (1.68–88) and the Pentekontaetia (1.89–118), Thucydides' history of the fifty years between the Persian and Peloponnesian Wars.

Thucydides records four of the speeches held at the Spartan War Congress in 432: the speeches of the Corinthians, Athenians, and of two named Spartan speakers, Archidamus, King of Sparta, and Sthenelaidas, a Spartan ephor. For each of these speeches, the Athenian acme is an important topic.

For example, both the Corinthians and the Athenians argue that human beings are subject to the desire for rule and the drive to acquisition that produce accumulations of wealth and war materials. The Corinthians once again suppress mention of their own imperial practices and try to limit this trait to the Athenians, arguing that it is an aspect of the Athenian character. By contrast, the Athenians argue that the drive to empire is characteristic of all human beings, who necessarily seek their own advantage (1.76.2). Their speech aims to deter a Spartan attack, and they do not hide but rather advertise their war materials and military power.

Archidamus, King of Sparta, does not directly comment on the Athenian view that acquisitive behavior is inevitable.

Chapters 2 and 3 of this analysis study the role of war materials in selected sections of book one of the History. Chapter 3 discusses the war materials referenced in the speeches made at the Spartan Congress and in the Pentekontaetia. Overall, it argues that one goal of Thucydides' depiction of this prewar period was to show the size, character, and influence upon events of Athens' acme of wealth and war materials. The present chapter offers a detailed study of Thucydides' account of the conflict between Corcyra and Corinth.

Thucydides' story of this struggle constitutes not only a detailed presentation of the kind of naval conflict – that is, between coastal powers fighting over defenseless properties – he had introduced in the Archaeology, but also an introduction to the Greeks of this wealthiest period of Greek history. His characterization of the Modern Age is at first unexpected: throughout this initial episode of the History, Thucydides typifies the Corcyraeans and Corinthians as rich, angry, and incompetent. However, it becomes clear that their wealth and weapons support and even partially create these character traits, since they give the combatants the means to fulfill their passions quickly and impressively with warfare.

Thucydides' account of their warfare vividly depicts the wasteful fighting that results. His story of the intensifying passions and growing accumulation of weapons that lead to the murderous battle of Sybota once again confutes the glorification of an acme of war materials by displaying the reality of its deployment, and in this way, as well as in many others, introduces us to the world of the Peloponnesian War.