The preceding chapters have sketched an account of Athenian legal practice which departs from most traditional theoretical and historical understandings of the nature and development of the judicial process. Rather than viewing litigation as encompassed within and defined by an autonomous judicial sphere, this account seeks to anchor the conceptualization of litigation in the broader context of agonistic social practices and a field of values organized around notions of honor, competition, hierarchy, and equality. In methodology the approach has been two-pronged. First, I have read Athenian litigation against a variety of contemporary attempts to theorize the judicial process. This theoretical perspective is largely the task of Part I, which also examines in some detail Athenian theoretical accounts of law, conflict, and society. Using such a theoretical approach to frame a study of violence, conflict, and litigation in Athens is important not only because it helps us better to understand the Athenian material. Rather, it has also been a fundamental aim of this study to use the Athenian material as the basis of a critique of certain modern theoretical positions discussed in Chapter I and to provide support for the alternative perspective advanced there. Social history should aim, in my view, not merely at expanding our understanding of the past, but also at engaging the theoretical concerns of the present through which, implicitly or explicitly, such understandings are necessarily shaped.

Hubris has recurred as a theme throughout the past three chapters. Its employment in orations like Against Meidias and Against Conon has indicated its intimate connection to the nexus of honor, insult, humiliation, and revenge. Although we do not know how often cases for hubris were brought, the wealth of rhetorical uses to which speakers put this emotionally laden concept indicates that it loomed large in the Athenian consciousness. Offenses against honor are no longer an important part of modern legal culture, but in agonistic societies like Greece or Rome honor was the basis of social identity, and hubris and iniuria were important legal categories. Indeed, Aristotle (Pol. 1267b39) reports that Hippodamus' theory of law embraced only three categories, death, damage, and hubris, because he considered these the only three things about which men litigate. In the cases discussed in Chapter 6, hubris chiefly occurred in contexts of insults involving physical violence and verbal abuse, though in a number of cases it appeared to be aimed at sexual honor as well. This was the case with violent intrusions into the house and into the presence of the female members of the family (Against Meidias, Against Simon), with sexual insults against female family members (Against Teisis), with coercive sexual intercourse (Against Simon), and with physical violence involving a degradation of the sexual integrity appropriate to a citizen (Against Conon).

Stasis, the disintegration of a political community into rival warring factions, was the specter which haunted classical Greek political theory. Although Thucydides' principal focus was the war between states which convulsed the Greek world for the last thirty years of the fifth century, he also carefully analyzed the way in which the pressure of this external conflict intensified the tensions inherent within the polis and undermined the institutions responsible for maintaining social cohesion.

NEW DIMENSIONS OF POPULAR PROTEST

During the sixties and the fifties of the first century BC, Rome saw waves of political violence which could no longer be controlled. This was partly because government was paralysed by power struggles within the nobility; thus in 59, for example, Caesar forced the passage of his agrarian law against the opposition of his consular colleague Bibulus. In addition, however, the post-Sullan era witnessed the development of new methods of organizing the plebs and articulating social protest. In the end, the Republican system of maintaining law and order collapsed.

Clodius and the plebs urbana

These developments are especially associated with the role played by P. Clodius Pulcher, who obviously profited from the repeated deadlocks in the power struggle between Pompey, Caesar and Crassus and the Senate. He was surely neither the first nor the only person to mobilize parts of the urban populace, but by employing every available means in so concentrated and unscrupulous a way over a considerable period of time he opened up new dimensions of politics. What matters is not his personal motives and ultimate aims (if, indeed, he had clearly formulated any) but that he was able to present himself as the People's champion and to represent his personal cause against Cicero as an issue of the People's liberty.

THE CITY OF ROME

For Augustus, restoring political and social order meant integrating the relevant social groups. Whereas the senators were won over by the so-called restoration of the Republic, the plebs urbana had to be approached in ways which demonstrated the emperor's concern for both their material and their cultural demands.

The emperor and his people

The most important issue was, of course, the capital's corn supply. The people's demand for a stable supply guaranteed by the ruler himself could not be ignored, and in 22 BC Augustus took the opportunity of a famine both to accept the cura annonae, which in 43 had been abolished as unconstitutional (Dio Cass. 46.39.3), and to reject the dictatorship that the people were pressing on him (Dio Cass. 54.1.1–5; Suet. Aug. 52; Vell. Pat. 2.89.5; Res gestae 5). Thereafter the corn supply remained the responsibility of the emperor (see Tac. Ann. 3.54.4–5), symbolizing his role as the great patron of the plebs frumentaria. Those registered for the corn distribution were also entitled to receive occasional gifts of money; not necessarily the very poor, they tended to represent a relatively well-off segment (Van Berchem 1939; Nicolet 1985: 828–33; Virlouvet 1991). The living conditions of the urban population were, furthermore, considerably improved by measures regulating the water supply, sewers, maintenance of the banks of the Tiber, public works, etc., for which services a number of boards headed by senior senators were established (Ramage 1983; Scobie 1986; Schneider 1986; Bruun 1991; Robinson 1992).

The foregoing discussion of public order in the cities and provinces of the Roman Empire suggests that in general governmental intervention was limited. Protection of property and personal security were the responsibility of citizens themselves and involved reliance on the help of kin and neighbours, access to patrons and/or command over social inferiors. Enforcement of general rules of law and order was the business of local authorities, and, dependent as they were on the support of the community, they tended to act in accordance with its expressed or supposed wishes unless the higher authorities were alerted. This meant selectivity of law enforcement, on the one hand, and self-help which under certain circumstances might extend to lynchings and pogroms, on the other. The maintenance of public order concentrated on basic rules. There was apparently (even under Christian emperors) no comprehensive policy for disciplining the lower orders of society.

Uncertainty with respect to a number of questions remains because of the inevitable limitations of our sources. My general approach here has been to avoid assuming modern standards of policing; some comparative considerations may lend support. It is of course extremely hazardous to generalize about the societies of medieval and early modern Western Europe, but it does seem reasonable to argue that state intervention concentrated on cases which were considered a direct threat to the political and social order.

This book is about the maintenance of public order in ancient Rome, with special reference to the period of the Republic. It deals with the methods by which the rules designed to secure peace in the community were enforced. It elucidates the characteristic Roman responses to issues of public order, such as arose in the case of rule-infringements which could not simply be left for settlement (of whatever kind) between the parties concerned or to the decision of a court that one of the parties could call upon, but had to be dealt with through communal means of enforcement.

Scholars who have investigated problems of law and order in the Late Republic have often argued that the lack of a strong and politically impartial police force was a serious, structural weakness in Roman society. It turns out that the Roman Imperial period, with its new governmental agencies, did not remedy the alleged deficiency. Moreover, the same point could be made at the expense of virtually all pre-modern societies. The establishment of a police force in the sense of a specialized and impartial law-enforcement agency was an innovation of the eighteenth and nineteenth centuries. It was the product of fundamental changes in individual and societal attitudes towards, and demands for, public order.

RIOTS AND RIOT CONTROL

Breaches of public order, though always exceptional, became a more significant feature of politics over time. Apart from the conflicts associated with the Struggle of the Orders, disturbances intended to influence decisions of the assembly were recorded in some instances during the Middle Republic: the violent obstruction of a trial by tax-farmers (publicani) in 212 (Livy 25.3.12–19) and the besieging of the houses of the tribunes by a crowd including even respectable married women (matronae), to press them to reverse their veto of the abrogation of a sumptuary law in 195 (Livy 34.1.5, 8.1–3). Turbulence at elections is recorded for 185 (Livy 39.32.10–13).

In the Late Republic disturbances occurred more often (see catalogue of cases from 78 to 49 in Vanderbroeck 1987: 218–67), generally as concomitants of the regular processes of decision-making at times when tendencies to sociopolitical disintegration contributed to a disregard for fundamental constitutional conventions. In particular, the emergence of a new type of popular politics led again and again to clashes within the assembly and made informal meetings (contiones) of the plebs the starting-point for riotous rallies (Cic. Clu. 93). The composition of the assembly was different every time; the supporters of a particular proposal were likely to appear in numbers, with the result that the tribune taking the initiative had a very good chance of obtaining the majority of the tribes' votes.

Societies differ both in their perception of public order and in the methods of its enforcement that they consider appropriate, and, of course, both may change over time in any given society. Modern societies have become accustomed to specialized law enforcement agencies called police that are authorized to regulate social conflicts, if need be, by employing physical force. They represent the state's claim to the ‘monopoly of legitimate physical violence’ (Weber 1972: 29, 183, 516) with respect to internal relations, whereas the army does the same with respect to the outside world. The establishment of a police apparatus that is supposed to guarantee impartial enforcement of the rules of public order and become functionally differentiated from the military forces is, however, a rather recent achievement from the perspective of universal history. The breakthrough to this solution during the eighteenth and nineteenth centuries arose out of new demands on public order but met with considerable objections as to the political dangers and the repercussions upon societal self-regulation that it would imply.

One of the leading proponents of police reform in late-eighteenth-century England, Patrick Colquhoun, called ‘police in this country … a new science; the properties of which consist not in the Judicial Powers which lead to punishment, and which belong to Magistrates alone, but in the prevention and detection of crimes, and in those functions which relate to internal regulations for the well ordering and comfort of Civil Society’.

THE DISPLAY OF MAGISTERIAL AUTHORITY

In the political order of Republican Rome, the higher magistrates, because of their overall responsibility for the res publica, had at their disposal means of enforcement that were only to a limited extent available to the magistrates specifically entrusted with particular police duties. Furthermore, a fundamental principle of the Republican constitution was the distinction between the city and the world outside (Rüpke 1990: 29–51). The sacred boundary (pomerium) constituted the city of Rome (urbs) as a pacified sphere from which military power was excluded (Gell. Noctes Atticae 10.15.4; 15.27.5; Varro, De re rustica 3.2.4); the auspicia taken for the field became invalid once the returning magistrate had crossed the pomerium. Keeping the army out of the city was understood as an aspect of political freedom (Cic. Philippicae 5.21). Thus the higher magistrates, although possessing both civil and military responsibility, were not allowed to use military means to maintain law and order within the city. In this the Roman Republic was fundamentally different from many other pre-modern states, which, although lacking a police force in the strict sense, could still mobilize military force as a last resort (Finley 1983: 18–23).

Rome in fact had no standing army, only a militia that (probably until the mid-second century BC) was dissolved and newly recruited annually (Gschnitzer 1981).

Among the most memorable scenes in the history of Roman persecution of the early Church is that crowd of zealous Christians pleading with Arrius Antoninus, a proconsul of Asia in the second century, to put them to death as martyrs. His bemused and anguished response directed these eager souls to the nearest available ropes and cliffs. Similar enthusiasm for martyrdom was no less apparent among some who, when condemned to die, betrayed impatience in waiting for their ultimate dissolution. In the narrative of the Martyrdom of Polycarp, we hear of the most noble Germanicus, who, when condemned to fight with wild beasts, rebuked the emperor who tried to dissuade him from self-destruction by dragging an animal directly on top of himself. In this way, says the writer, the noble Germanicus chose to be liberated all the more quickly from an unjust and lawless life. In an early version of the Martyrdom of Agathonike, the martyr takes off her clothes and throws herself voluntarily upon the pyre.

Such enthusiasm for martyrdom is mirrored in the frequent reports of radiant joy, smiles, and even laughter among the Christians on their way to a martyr's death. During the interrogation of Pionios, his companion Sabina smiled when Pionios said that it was far worse to burn after death than to be burned alive.