CEDANT[679] AND THE TWELVE TABLES

The University of Pavia has facilitated access to new research with the launch of the Collegio di Diritto Romano, a series of seminars giving Romanists and classicists the opportunity to interact with the leading researchers in their disciplines.

The topic in 2003 was the Twelve Tables and the contributions published in a volume offered new faces of the code.^[680] Michel Humbert reviewed the old, more fanciful theories, such as a complete law reform based on a Greek model, the revelation of religious secrets, and equality in law as the result of the threats of the proletarian masses.^[681] He concludes that textual authority is lacking for the underlying hypotheses, and offers an alternative objective of the statute, namely placing the administration of justice on an exhaustive legislative basis in order to eliminate the discretion of the holders of imperium in this field.^[682] In his analysis of the political events, he redefined the concepts plebs and patres from about 450 BCE and the nature of their conflict. The traditional description of the plebeians as the marginalised, poor masses without political rights clamouring for equality and economic benefits is replaced by the view of the plebs as a political movement of rich citizens opposed to the ruling oligarchy.^[683] He views the struggle between plebs and patres as not for power, nor for equality of law, but for equality before the law, to be effected by controlling the administration of justice or, in other words, the imperium of the consuls.^[684] In this interpretation, the collaboration by the priests was an absolute necessity and Humbert considers the priests the intellectual fathers of the codification.^[685] He argues that an analysis of the text of the Twelve Tables shows that the code does not provide the general public with access to the law, but necessitates learned assistance by an expert.^[686]

The text of the Twelve Tables,^[687] or in particular the order thereof, is questioned by Diliberto,^[688] whose argument that it is highly improbable that the decemviri would have applied a system, which was developed centuries afterwards, is rather suggestive.

The paucity of solid beacons indicating the place of various fragments^[689] gives the argument a smack of deconstruction in spite of Diliberto’s argument that the fourth book of Gaius holds the key.^[690] He proposes an alternative non-dogmatic arrangement of the texts on the basis of the interests protected. Diliberto applied the methodology first suggested and tried by Bona^[691] to the Noctes Attici,^[692] but the development of a theory for an alternative sequence of the verses is fraught with disappointments, as was illustrated by the attempt of Agnati^[693] to test the application of the law of Lindsay against the rhetorical tradition in the form of Cicero, De inventione and the Rhetorica ad Herrenium in respect of the position of the furiosus text in Table 5.^[694]

The theory of aspect which holds that the perspective from which an event is approached to a large degree determines its importance and meaning is corroborated by the different socio-economic interpretations. Several authors have described how the picture of Roman society during the fifth century BCE has been blurred by later sources, starting with Polybius’ Historiae and Cicero’s De re publica, which projected the problems of their own time - for example, land reform - or political theories back into reconstructions of the events revolving around the codification.^[695] Thus the desire to illustrate an evolutionary model coupled with the desire to actualise the past as well as the unavoidability of anachronisms all play a role in the theory of aspect.

Dieter Norr^[696] delved into his encyclopaedic knowledge to depict another view, which replaces the traditional description of Rome of the Twelve Tables as the market town of an isolated group of primitive agrarians, with an interpretation integrating pre-Twelve-Tables Rome into a Mediterranean world of shipping and commerce. The first treaty between Carthage and Rome^[697] indicates that the Romans also participated in international relations.^[698] Norr analyses this treaty and proposes that Rome of the Twelve Tables was already a maritime power and opts for a Rome with ships and international traders, a commercial centre, placed by him in a wide historical context.

Such a socio-economic landscape inevitably leads to new interpretations of the Twelve Tables. David Kremer^[699] argues that the foedus Cassianum^[700] granted reciprocal commercium^[701] to citizens of the signatories. This would permit foreigners to participate in negotia per aes et libram, to acquire ownership ex iure Quiritium, and access to the legis actiones.^[702] In terms of the foedus Cassianum, contractual litigation was to be conducted, and concluded within ten days, in the city where the contract had been entered into.^[703] Thus, the decemviri were obliged to take this provision of the treaty into account, which resulted in the redaction of verses 2.2 and 6.4. Litigation with a hostis^[704] received priority in terms of verse 2.2, which introduced an excusatio for a Roman party and/or judge.^[705] Verse 6.4 is another consequence of the foedus Cassianum, namely the granting of the duty of legal assistance for a period without defined limit.^[706] This matter is also addressed by Michel Humbert in his discussion of the homogeneity of usus in the codification.^[707] He offers a coherent and convincing hypothesis^[708] restricting the meaning of usus in the code to the exercise of the right of ownership or patria potestas and to be distinguished from usucapio.^[709] Humbert argues that usus and auctoritas, the obligation placed by the mancipatio on the transferor to assist the recipient against a reivindicatio, are inextricably linked.^[710] Thus aeterna auctoritas is a non-defined period during which the obligation to provide assistance rests on the mancipio dans where the transferee had been a foreigner with commercium. ^[711] Selling by mancipatio to a foreigner incurred the duty to provide legal assistance for an unknown period, whether in Tibur, Rome or Praeneste, or wherever the buyer is threatened with eviction. This is the logical consequence of international trade and the treaties accommodating the same by extension of commercium. However, the reciprocity provided for in the foedus Cassianum gave the Roman citizen who had bought a slave in Tibur dominium ex iure Quiritium in Rome.^[712]

Although our present knowledge is built upon the results of our predecessors, the theory of aspect encourages revisiting old sights from a different angle and explains why the demise of religion, the fall of communism and the advent of globalisation may change our views on Rome anno 450 BCE. The second application of the theory of aspect relates to some well known texts from the Corpus luris Civilis. Included for dogmatic reasons and interpreted as such, an interpretation from a different perspective - namely, the world of usury - is proposed.

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Source: Plessis P.J. du. (ed.). New Frontiers: Law and Society in the Roman World. Edinburgh University Press,2013. — 256 p.. 2013

CEDANT[679] AND THE TWELVE TABLES

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