This book attempts to look at Roman law in its social and economic context. To do so is to court criticism from both historians and lawyers. The attempt, though arduous, is not quite doomed to failure: just over thirty years ago John Crook's deservedly successful Law and Life of Rome (1967) appealed to both camps. What need is there for anything more? Two points arise. First, if Law and Life of Rome aimed to illustrate the social and economic life of Rome through its law, the concern of the present book is more to understand the law in the light of the society and its economy.

Second, in the last thirty years there have been extraordinary finds of new evidence, especially inscriptions, and there have been remarkable developments in Roman social and economic history. A book which took proper account of all of this would be a good one. Unfortunately, this is not that book. To reflect all the new material would require a much longer treatment, and many years of painstaking composition.

This book therefore presents only a sketch, which may perhaps conjure up a faint image of what would be possible if the final work itself were ever to be executed. The book is aimed at historians rather than lawyers, and the choice of topics, emphasis in discussion, and bibliographical references all reflect that. The topic of commercial law is discussed more fully than the rest, partly because of its intrinsic interest and partly because it (unlike family law) has apparently not yet been much absorbed into the consciousness of historians.

WHAT IS NOT IN THIS BOOK

To begin with what is not in this book may seem odd; but it will otherwise remain unknown until the end, which seems unsatisfactory. This is not a comprehensive account of Roman law, or even of Roman law in its social setting. It is highly selective. There is nothing here about criminal law, and next to nothing about public or constitutional law. The focus is on the so-called classical period of Roman law, from about the end of the Roman republic in 31 BC until the death of the emperor Sever us Alexander in AD 235. There is nothing here about post-classical law; and there is almost nothing about pre-classical law.

The warning about non-comprehensiveness is seriously intended. Law does not consist in generalities, and it is often said that the devil is in the detail. Undoubtedly that is right. But for present purposes it has been necessary to focus only on details which seem germane to the exploration at hand, of law and society. Many other details are glossed over, so anyone wanting a full account of the rules must look at one of the textbooks on the law. They are cited in the bibliographical essay at the end.

This chapter gives a rapid outline of the sources of Roman law, essentially for the purpose of making the ensuing discussion of substantive law comprehensible (fuller discussion may be found in Jolowicz and Nicholas 1972:86–101, 353–94).

This chapter deals with the main legal issues which arise in connexion with Roman commerce: contract in general; the main commercial contracts: sale, contracts of loan and for security; contracts for services, such as carriage of goods and building contracts. It then moves on to deal with how Roman businesses may have been organized: what sort of labour they used; and how they attempted to limit their liability. It concludes with the la w of insolvency.

CONTRACTS FORMAL AND INFORMAL

Contracts in Roman law can be divided into two main categories, formal and informal. First, there was the formal contract of stipulatio, which was made orally, not in writing. It was concluded by question and answer, which had to be in formal terms and had to correspond with one another. The promisee (or stipulator) would ask, for example, ‘do you promise to pay 1,000 sesterces?’, and the promisor must reply ‘I promise to pay 1,000 sesterces.’ The exact correspondence between question and answer created an obligation binding on the promisor; but, if the two did not correspond exactly, no obligation came into being. There is much to be said for this insistence on exact correspondence, since it leaves it absolutely clear which verbal exchanges create binding obligations and which do not. The high classical jurists tolerated no discrepancy between question and answer; later this came to be watered down, so that a request for 1,000 sesterces and a promise for 500 sesterces might be held good for the lesser amount, on the basis that the lesser was included within the greater.

The classical period of Roman law is conventionally taken to have ended in AD 235 with the death of the emperor Sever us Alexander. It is true that the line of independent classical jurists breaks off there. But this was not a collapse but a change of direction. The leading jurists increasingly became involved in the process of imperial law-making; and their works were the constitutions they composed in the name of their emperor. The constitutions of Diocletian in particular (AD 284–305) show that half a century after the end of the classical period the standards of classical jurisprudence had been maintained. But this was not a period in which new original juristic work appeared; instead the trend was towards the production of anthologies or epitomes of leading classical works. It therefore seems appropriate to refer to the period from about AD 235 to 305 as the ‘epiclassical’ period of Roman law and to date the decisive break between the classical and the post-classical to about AD 300 (Wieacker 1971).

Yet the culmination of the classical tradition of Roman law was still to come. It came in the shape of the classical revival which took place during the reign of the emperor Justinian, and whose leading event was the compilation of the various parts of the Corpus iuris civilis. But by this time the western half of the Roman empire had long since fallen to barbarian invasion. Although during his reign Justinian succeeded in reconquering Italy as well as north Africa and Spain, these gains were soon reversed.

This chapter gives a sketch of the Roman family, slaves, and succession.

THE FAMILY

Paternal power

Roman law divided free citizens into two classes: those who were independent (sui iuris) and those who were dependent on another (alieni iuris). The Roman family was patriarchal: all power was vested in the paterfamilias, who was the senior male ascendant. So a child (at least as long as he or she was legitimate) was subject to the power of his or her paterfamilias, whether father, grandfather or great-grandfather. Paternal power (patria potestas) was in principle lifelong, so that in principle a man who had already become a grandfather might still be subject to his father's power, and become independent only late in life.

It is true (as we shall see below) that there were ways of mitigating the consequences of the fact that all power was vested in a (possibly) elderly male. None the less, this was power of an extraordinary degree, and for those subject to it represented impotence of an extraordinary degree. Patria potestas goes back at least to the Twelve Tables (c. 450 BC), and it is clear that in the early republic the powers of the paterfamilias were extreme: a power of life and death over those in the family; power to decide whether newborn babies should be accepted into the family or exposed; power to sell surplus children. Even by the later republic such primitive barbarisms no longer survived. But paternal power remained significant because of two much more practical considerations: the paterfamilias owned all the family property, and none of his dependants could own anything; everything acquired by them automatically vested in the paterfamilias.

The last three chapters have been concerned with substantive law: the rules which governed everyday life and its transactions. But, in the end, the question whether a person enjoys a particular right comes down to whether he or she is able to enforce it in practice. This is where the issue of procedure, of litigation, is important. The first section of this chapter gives a sketch of the workings of the various Roman civil procedures in the classical period; to a large extent this is confined to the bare facts. The second section then attempts to draw out the significance of the procedural rules for the vindication of rights in practice, and also deals briefly with access to the courts and legal representation.

CIVIL PROCEDURE IN THE CLASSICAL PERIOD

Formulary procedure

The standard classical civil procedure is known as the formulary system, for reasons which will become obvious. It was neither the first nor the last of the Roman civil procedural systems, but it held sway for most of the classical period; the writings of the leading jurists were written in connexion with it; and to some degree they depend on understanding it.

Characteristic of formulary procedure is that it took place in two stages, the first before the praetor, the magistrate charged with the administration of justice, and the second before a judge. To initiate civil litigation a plaintiff had to obtain a formula from the praetor, which encapsulated the essence of the dispute. This could be done only in the presence of the intended defendant, since the defendant too had to have some say in what was included in the formula.

Religious involvement of women and men at various stages during the life cycle generally resulted not from individual choices but from social expectations. For example, ephebes had certain religious functions prescribed for them by the assembly, and at marriages brides and grooms (and their families) performed fixed traditional rituals. Households were expected to have their cults of Zeus Ktesios. Participation by individuals in the regular cycle of civic festivals was also a matter of social expectation. Citizens were supposed to be present at the major festivals; women were appointed to perform the Thesmophoria.

Choices, however, did also exist within the framework of civic cults. Parents must have chosen to put forward their children to serve in particular cults. Individuals also chose to make dedications in civic sanctuaries, or to consult oracles. And women and men could decide to seek initiation at the Eleusinian Mysteries. Such choices may have been the result of greater or lesser levels of interest in the cults of one's own or other cities. Some no doubt had a fairly distant relationship to ordinary cults, like the bad-tempered man in Menander's play who (according to the prologue, spoken by Pan) has never opened a conversation with anyone. ‘Except that, being my neighbour, he will speak in passing to me, Pan, because he's obliged to; but I'm sure that a moment later he wishes he hadn't.’

Greek religion was certainly not a formality affecting only the public life of the community, but rather it was embedded in all aspects of ancient life. This does not mean, however, that it gave all these aspects an allembracing religious significance. It is also a mistake to imagine that areas which possess such a significance for Christianity today can be assigned their ancient equivalents. The modern Christian services for birth, marriage and death have no exact ancient equivalent. Furthermore, it is unhelpful to search for ‘the religion of the Greek household’ as the prime locus of Greek religiosity. Archaeologically Greek houses had no separate room for a household shrine and rarely had special permanent altars. And the literary evidence, by its silence on this subject, also suggests strongly that the family is not the basic ideological unit of Greek religion. Rather one should see the individual as a basic unit operating within the overall framework of the private and public worship of the gods. This chapter will therefore focus on the individual citizen from birth to death, distinguishing throughout between the rituals appropriate for males and those for females.

CHILDREN

The birth of a child was not marked by a formal religious service, like modern christenings. Though our evidence is meagre and mainly poor in quality, it seems that (so long as the father had agreed the child should be reared) the five-day-old child was carried around the hearth, the symbolic centre of the house, perhaps by its parents and that five days later a party was held to celebrate the birth.

Greek temples are among the most familiar surviving objects of antiquity. Thousands of visitors a year gaze at the Parthenon, and the influence of the temples, direct or indirect, is visible all the way from the White House in Washington DC to the Opera House in Ulan Bator, Mongolia. In antiquity too they were prestigious buildings. Architects around the Greek world rivalled one another in building bigger and finer temples, and cities were extremely proud of their religious architecture. Herodotos, who was fond of Samos, includes the temple of Hera there among the three architectural wonders that justified his writing at length about the Samians (the other two were an aqueduct one kilometre long through a mountain, and a harbour mole) (3.60). This temple of Hera on Samos was planned in the earlier sixth century bc on a colossal scale and, a generation later, probably because of marshy conditions, rebuilt on a similar scale. Work continued for the next five hundred years until hope of actually completing the temple was abandoned, but the temple was still an impressive sight. Bronze coins produced by Greek cities in the Roman period often feature their temples as matters of local pride; for example, coins of Samos from the first to the mid-third centuries ad proudly display the ancient cult statue of Hera in its temple.

I have written the sort of book that I myself would have found useful when I started to work on this subject. Rather than treating religion as an abstract and self-contained system, I have examined the interplay between local and Panhellenic practices and ideas: the plural ‘religions’ of my title is designed to suggest the resulting variety, in both space and time. I have also tried to look outwards from religion to other contexts. I have tried to avoid the pigeon-holing which places Attic tragedies in ‘literature’, archaic statues from the Athenian Akropolis in ‘art’, and Socrates in ‘philosophy’, and I have therefore tried to draw connections between material that is too often treated separately. In writing about the archaic and classical periods I have focused on evidence from these periods. Because this book goes right down to the Roman period, I have cited Pausanias (for example) not as evidence for the classical period, but as evidence for his own day. I have also included explicit discussion in the last chapter of the reactions of Romans, Jews and Christians to Greek religions

I am most grateful to the editors of this series, Paul Cartledge and Peter Garnsey for commissioning this book, and then helping me to bring it forth. I was lucky to be able to write the first draft in the Ward Chipman Library of the University of New Brunswick at Saint John, where the staff were indulgent of my demands on the system.