PRELIMINARIES

In Graeco-Roman society, there was a large gulf between the haute cuisine of the few and the frugal menus of the mass of the population, rural and urban. Haute cuisine Greek- and Roman-style was marked by variety of foods (home-produced and imported), elaboration, novelty, professionalism and luxury. The diet of the poor and lowly was basic and repetitive, built around the staples of cereals and dry legumes, with simple and cheap additions (in the Greek, opson).

PRELIMINARIES

Ceremonial eating and drinking are a conspicuous feature of ancient society. They brought together families and their guests, patrons and their dependants, politicians and their friends, aristocratic youth, members of occupational groups, social clubs, religious brotherhoods, the soldiery, the citizenry, the population of a town. Large or small, these displays of commensality or collective consumption carried significance well beyond the nutritional function of the meal that was consumed. In the domestic setting, they might demonstrate, as in the act of hospitality shown by Baucis and Philemon to two strangers (who happened to be gods) the moral integrity of the simple peasant household; or they might celebrate rites de passage, a funeral, or the acceptance of a neonate into the family, in classical Athens, the Amphidromia:

Outside the home, commensality demonstrated and confirmed the membership and solidarity of the group, paraded the status of the group vis-à-vis outsiders, and set out the hierarchies that existed both in the society at large and within the group itself.

Greeks and Romans, rich or poor, were obsessed with food. For most people, life was a perpetual struggle for survival. Among the well-off minority, there developed an elaborate haute cuisine, and, in reaction, a rhetoric (and in certain contexts, a practice) of rejection or continence, in the service of politics, morality, philosophy, religion or health.

This book presents food as a biocultural phenomenon. Food is at once nutrition, needed by the body for its survival, and cultural object, with various non-food uses and associations. Food functions as a sign or means of communication. It governs human relationships at all levels. Food serves to bind together people linked by blood, religion or citizenship; conversely, it is divisive, being distributed and consumed in accordance with existing hierarchies.

Historians and archaeologists have long been interested in the material aspects of food in classical antiquity. They have traced the origins, diffusion and evolution of particular foodstuffs and catalogued and discussed what was eaten, from where it came, how it was produced and distributed, how it was processed and cooked. Their findings form part of the background of my research, and to some extent I have followed in their footsteps. Some of the early chapters of this book reflect my previous work on systems of production and distribution, and patterns of consumption during times of both relative normality and stress. But I go on here to pose the question of food-availability.

PRELIMINARIES

People can consume only such food as is available. Availability is determined by the physical environment and the economic, social and political structures. It is not a straightforward matter to separate out the economic factor. By one influential view associated especially with Moses Finley, the economy of early or simple societies was embedded in society and politics. Economic relations were an extension of social and political relations; they were governed by the value system of homo politicus rather than homo economicus. The dependence of the economy on the polis or state structures is symbolised in a lacuna in the works of Aristotle. Aristotle was a prolific writer, but he did not write a book about economics. If he had composed a book with the title Oikonomia (or following Xenophon, Oikonomikos), it would have been about household management, for that is what oikonomia means. In the absence of ‘an enormous conglomeration of interdependent markets’ and the spirit of economic rationality that such a market system engenders, ancient thinkers simply had not conceptualised the economy.

The problems involved in disentangling economics from politics are exemplified in the area of distribution and trade. The essence of trade is market exchange. One can easily misclassify as trade a lot of commodity movement and transference which is politically directed and controlled, and does not involve exchange in the market. Yet market exchange did exist in antiquity, even if it was less important than it is today, and the distribution of surplus food does have an economic dimension. It can certainly be legitimately talked about, alongside the production and processing of food, in a discussion of the economic aspects of food.

In the 380s, a Christian writer at Rome of modest literary attainments consoled himself for the bad state of things in this world with the contemplation of their reversal in the next. Why, he asked, did people flout the Law of God and get away with it?

The rhetoric of the passage is familiar: the villains are the powerful, the unworthy rulers, the greedy – and the corrupt judge. Similar generalisations were made by another Italian, Maximus of Turin (c. 400), who warned his congregation that they should not make false accusations, yet ‘the abuse has grown to such an extent that the laws are sold, statutes corrupted and verdicts habitually venal’, while Zeno of Verona attacked the greedy, including, among others, judges who gained money by gratia.

Interpreting the history of Late Antiquity from its laws is an enterprise fraught with risk. The legal texts which survived through the imperial codes are extracts, largely divorced from the context in which they were created and the rhetoric by which they were justified. Each ‘general law’, despite the generality of its application, may originally have been evoked by a single incident; they are, therefore, for the historian, no more than a form of anecdotal evidence, and are no guide to the extent or severity of the problem addressed. Even repeated laws do not demonstrate that a difficulty was serious, still less that previous legislation was ineffective; frequency of evocation establishes that citizens were interested in knowing about and, probably, enforcing legislation on that matter. Repeated laws were laws that worked.

Legal texts are multi-layered and contain within them some cultural tension. All imperial laws, whether complete or, as is the case with most, excerpted are an uneasy merger of statute with imperial political broadcast. They are the expression of two cultures, the legal and the imperial. The rhetoric of the laws may distract from, but seldom entirely submerges, a long legal tradition, which shaped the distinctive intellectual discipline, of which the great Severan jurists were the most eminent exponents. The priorities of emperors and lawyers were not the same. The latter sought (ideally) to expound, discuss, educate; it was not, usually, their job to tell people what to do.

Much of law was concerned with how the state regulated disputes between its citizensand punished those who offended against social norms. Readers of Late Antique law-codes would have come early to regulations on civil litigation, much of it based on the codified Praetorian Edictum Perpetuum; they would have had to wait rather longer before reaching he criminal provisions set out in Books 9 of the Theodosian and Justinianic Codes, and Books 47–8, the so-called ‘Libri Terribiles’ of the Digest. How litigants went about conducting lawsuits in civil, and in criminal cases is not easily envisaged, as ancient authors were, on the whole, not given to literary descriptions of trials from the inception of the suit to its final outcome. Even the apparent exceptions, such as martyr-acts, are selective in their presentation, and take what was common procedure at the time for granted. Most revealing of what happened in the hearing itself are a small selection of verbatim court records, from Africa (on the Donatists) and Egypt, which show judge, advocates, witnesses and litigants boisterously engaged inverbal disputes, requiring, on the part of the advocates, a knowledge of the law and prompt reactions to the devices of opponents.

Late Roman justice was, and is, commonly assumed to have been weighted in favour of the rich, who could afford better legal representation and perhaps also the services of more influential friends.

Resort to law was one among several methods of handling or settling disputes between individuals or groups. Although it has come to be recognised that disputes in early mediaeval Europe were settled in a variety of extra-legal ways, alternative means of dispute handling and resolution under the Later Roman Empire have received little systematic attention. Yet a number of methods for ‘finishing’ disputes existed, of which the law took limited, or no, cognisance. These may be listed as force, arbitration, and mediation or negotiation. In cases of public violence, the agencies of law-enforcement became involved only when the situation got so out of hand that the imperial majesty itself was threatened. Formal arbitration involved the law to the extent that a settlement might require enforcement through the state's courts, in the event of a breach of the terms by one or more of the parties, and rules were laid down for some aspects of arbitration, because ‘the praetor’ was required to ensure that the decisions of an arbiter were honoured. Arbitration, however, could also consist of an informal agreement brokered by an adjudicator, without introducing the legal formalities required of a formal process (although legal redress might then be harder to come by). Settling a dispute through mediation by a third party or negotiation between the parties themselves was, by definition, extra-legal. The written law is, naturally, silent on informal and legally unenforceable agreements. This did not, in practice, mean that informal agreements were less binding.

Law was, in theory, the ‘art of the good and the fair’. Many citizens of the Roman Empire thought otherwise. As so much of what was written about the operation of law derived from a discourse about law, which confused perceptions, tendentious rhetoric and fact, some sense of the framework of the contemporary debate is required. The terms were cogently set out by Priscus of Panium, the Greek classicising historian, who, in 448, was sent with others on a delicate mission to Attila the Hun. In his History, Priscus recalled an encounter with a Greek-speaking former citizen of the Roman Empire, who had been taken prisoner and settled with the barbarian. One reason for the latter's dislike of Roman rule was the iniquities of the legal system. His criticism focussed especially on the system in operation. The laws did not apply equally and if a wrongdoer came from the wealthy classes, then he might escape punishment, whereas a poor man, because of his ignorance of how to conduct such matters, would undergo the penalty prescribed by the law – if he did not die before the case was concluded, after protracted delays and much expense. The worst thing of all, he said, was that what should have been obtainable from the law could be acquired only by paying money.

In his defence of the Roman system, Priscus emphasised the ideal of law, rather than its malfunctions in practice.

What is a tree? For lawyers, and litigants with trees on their land, this question could be important. ‘Most of the ancients’, according to the Severan legal commentator, Ulpian, thought that vines were trees, likewise ivies, reeds and willows. A plant could not be a tree unless it had developed roots and ‘that also is deemed to be a tree, the roots of which have ceased to live’ or which, if uprooted, could be put back again or transplanted. The stock of an olive was also a tree, whether or not it yet had roots. The roots were not included in the term ‘tree’.

Ulpian was a learned and prolific jurist, an expert commentator on law whose interpretations carried authority. His discussion of what a tree was is extracted from a work, not on arboriculture, but on detailed matters of law. The object of the discussion was to ascertain when, or in what circumstances, an action for the secret felling of trees could be brought. In order to define the office, legal experts had to deliberate about what a tree was, how ‘felling’ should be defined (that was, not bark-stripping, cutting with a saw or pulling up by the roots), who was liable, what was due to the owner(s), what was meant by ‘secret’ and whether or not an alternative action, for theft, could also be brought.

Although dirigiste in its language, imperial general law was in fact more often negotiated than imposed. No law was formulated in a political or juristic vacuum. Its content was determined by precedent, current policy, the state of the information available and pressures from interest groups with access to the consistory. Although laws were advertised as intended to endure ‘in perpetuity’, in practice they could be, and were, modified in the light of experience and further representations from those who operated the law or were affected by it.

To whom was any given law to apply? When, in November 426, the emperors Theodosius II and Valentinian III (then aged 5) addressed their oratio to the Roman Senate setting out some principles of government and law, they discussed what ‘general laws’ (leges generales) were, how they were brought into being and how they were to be recognised. Laws could be created either by the emperor's own initiative (‘spontaneus motus’) or in response to a plea or request (precatio), a report or referral (relatio), or a legal controversy arising from a lawsuit (lis mota) They were ‘general’ if addressed to the Senate as an oratio or labelled as an edict. As they were like edicts they would be publicised throughout the Empire through the offices of the governors, and they would be ‘general’ also if the emperors declared explicitly that the decision taken on a particular matter would also apply in analogous cases – or, of course, if they were called ‘leges generales’ and made applicable to all.

Ancient lawyers and modern historians alike have found episcopal hearings difficult to categorise. Because Constantine influenced the course of the history of Christianity in so many ways, the temptation has been, from Late Antiquity onwards, to ascribe especial importance to all aspects of his legislation, as it affected the Church, in particular to his two surviving laws on episcopalis audientia, which appear to give to bishops as judges powers superior to those of their secular counterparts, in that there could be no appeal from a bishop's verdict. But bishops were not only judges, who resembled their secular counterparts in that they tried to adjudicate in accordance with Roman law; they were arbitrators and mediators as well. Constantine's lack of sensitivity to the internal dynamics of Christian communities, as evidenced in other spheres, such as his failure to deal with schism and heresy, was, it will be argued, equally apparent in his infliction on bishops of powers, which it would have been a social embarrassment to wield in the crudely authoritarian fashion envisaged by his laws, and for which, in their extreme form – the imposition of an inappellate verdict on reluctant litigants – there is no significant evidence in the sources at all.

At no period in their history were the Romans known for leniency towards the condemned. Despite the wide availability of the right of appeal, access to it on the part of condemned criminals merely seeking to delay their inevitable punishment was severely restricted. Given the reputation of Late Antiquity for cruel and inhumane treatment of those on the wrong side of the law, we would expect evidence of increased ingenuity in the use of public punishment, especially of those condemned on a capital charge. However,as we have seen, the barbarous treatment of people imprisoned on remand and the subjection of the innocent to torture were both publicly questioned, and the high profile given, for various reasons, to judicial torture may signal, not necessarily a greater intensity of use but a profounder questioning, at least in some quarters, of the implications of the quaestio procedure. In the area of punishment, changes occurred in Late Antiquity which suggest that more humane values had a real impact, and the variety of public penalties, to which the guilty were liable decreased. At the same time, more is heard of arguments against the death penalty on theological grounds. The Christian insistence on greater humanity in punishment, within limits, is, as we shall see, representative of a society still conditioned to accept state cruelty and individual suffering, but also increasingly prone to exploit the rhetoric of pain to question and, where possible modify, the assumptions inherited from the Early Empire, on which Roman penal practice was based.

In 370, the local senate at Oxyrhynchus assembled to debate a routine matter. After ‘the acclamations’ (euphemiai), they turned to business. One of their number had lodged a complaint against his appointment as administrator of soldiers’ woollen clothing, on the grounds that, as one of the twenty-four chief decurions, he was exempt, by a regulation of ‘our lord, the most illustrious Tatianus’, Praetorian Prefect of the East. The surviving minutes of the meeting record each casting his vote in turn in favour of their colleague, excusing the nomination on grounds of ignorance, and indulging in extravagant assertions of the rightness of the laws. Having affirmed in unison the validity of the tablet of law, statements were offered by individuals, evoking the authority of Tatianus and the whole senate, then Tatianus, plus his referral of the matter to the emperors and the Praetorian Prefecture, then, finally, ‘what has been approved by the masters of the world and by the lords, the most illustrious prefects’.

The written record was designed to stand as proof, if proof were needed, of the loyalty of this relatively insignificant Egyptian council to its rulers. The effect of the language used in the meeting, which would have been employed regularly, with variations, on such occasions, was to create a tie between the councillors and the far-off emperor, whose attention could be claimed even by so minor a matter as soldiers’ woollens. By invoking the authority (auctoritas) of the emperor, the council gave legitimacy to its own proceedings.