Chapter 1 Introduction

Paul J. du Plessis

In the introduction to Law and Life of Rome (1967), John Crook described the aim of his book as follows:

This is not quite a book about Roman law, on which there already exist any number of excellent treatises.

As an ancient historian with a keen interest in Roman law, Crook must have been aware that he was courting controversy with this statement which essentially called for a broadening of disciplinary horizons and greater col­laboration between both ‘spheres of discourse’. Not only did this approach expect historians to take greater account of Roman law, but it also expected legal scholars to look beyond the then prevailing dogmatic approach to the study of Roman law practised by most.^[2] It was perhaps owing to an aware­ness of the complexity of what Crook was advocating, since the crossing of disciplinary boundaries is never easy, that he took great care to explain what he meant by a ‘law and society’ approach to the study of Roman law. While Crook was undoubtedly influenced by contemporary debates in juris­prudence regarding the relationship between law and society, he was also aware that these debates had limited use in the study of ancient Rome.^[3] The study of Roman law could not be subjected to a sociological enquiry in the contemporary sense, since too much of the empirical data required for such an enquiry was lacking.^[4] Furthermore, as Crook pointed out, controversies surrounding the meaning of concepts such as ‘Roman society’, ‘Roman law’ and the fact that both law and society change with time also complicate mat­ters.^[5] Nevertheless, Crook maintained that since some relationship between law and society existed, it was possible to provide a broader context for Roman law using elements of social and economic history.^[6]

[L]aw is certainly some reflection of society (usually of its more conservative aspects, because of the law’s function as a guarantor of stability), and not only a reflection, but also in some degree an influence upon it (usually a brake, providing only cautiously and tardily the mechanisms to fulfil the changing desires of society as a whole, but sometimes an accelerator, a tool in the hands of a particular section of the community such as an intelligentsia for achieving new ends that people in general do not actively want but will not positively oppose).^[7]

It is not the aim of this introduction to engage once more with the critics of Crook’s approach as this debate has been comprehensively explored recently elsewhere.^[8] Studies such as those by Cairns and du Plessis have shown that Alan Watson’s view on ‘law and society’ in the Roman world, sometimes cited as being in opposition to that of Crook, is in fact complementary and that new insights can be achieved, provided that scholars are sufficiently sen­sitive to the methods, perspectives and legitimacy of the conclusions of the other ‘sphere of discourse’.^[9]

Since the ground rules for interdisciplinary collaboration have now been established, further exploration of the emergent field of research relating to ‘law and society’ in the Roman world has become possible.

The first theme explored in this book, ‘perspectives on Roman legal thought’, addresses issues of Roman juristic writing and its contexts. The chapter by Howley, which introduces this theme, examines the place of Roman juristic writing within the broader context of Roman society using the work of Aulus Gellius as his example. By investigating the way in which Gellius used juristic writing when compiling his own works, Howley pro­vides a fascinating external perspective on the way in which these works were perceived and utilised by the Roman educated classes at large. In doing so, Howley demonstrates that Roman juristic writing formed part of the broader intellectual culture of the Roman world and was used by the elite for a variety of different purposes, apart from merely as juristic authority. The theme is continued by Tellegen-Couperus and Tellegen on the relationship between law and rhetoric. Their elegant chapter explores the extent to which Roman juristic thought as recorded in the works of the jurists was doctrinal and thus removed from the demands of legal practice dominated by orators trained in rhetoric. The authors argue that the prevailing orthodoxy whereby Roman juristic thought is said to be removed from legal practice in the courts based on rhetoric is incorrect and should be abandoned in favour of a more integrated assessment whereby Roman juristic thought and rhetoric are seen as two sides of the same coin. The last chapter on this theme is that of Harries who, using a controversial senatorial decree relating to slavery as an example, argues in favour of a greater appreciation of the context in which law was created and developed and the interest groups which drove the enactment of a law.

The second theme, ‘interactions between legal theory and legal practice’, explores Roman law as a working ‘legal order’.

The last theme explored in this book is ‘economic realities and law’. Three chapters examine the interplay between law and economic considera­tions in the context of the Roman world. Kehoe uses a ‘law and economics’ approach to investigate the law of agency. He argues that in developing the Roman law of agency, the jurists and the Imperial bureaucracy were aware of and driven by the economic implications of law. The remaining two chap­ters explore related issues. Aubert focuses on the liability of slave agents for debts incurred in relation to their peculium and argues that the legal rules in this area of law cannot be fully understood without an appreciation of the economic realities in which commercial transactions by a slave operated. Bannon’s account of fixtures and fittings in relation to the sale of property demonstrates that the jurists were aware of the commercial reality of such sales and factored these into their legal thought.

The final chapter by Thomas is meant to provoke further thoughts on interdisciplinarity. Thomas explores a topical theme in modern historical scholarship, namely plurality of perspective, which has yet to make a signifi­cant impact on traditional Roman-law scholarship.^[11] He argues that it is pos­sible to look at Roman legal texts from different angles to appreciate the full complexity of their different layers of meaning. In a certain sense, Thomas’s chapter represents the very essence of the approach of this book. When read as a whole, the themes explored in this book demonstrate that it is possible, to paraphrase John Crook, to ask ‘new questions about Roman law’.^[12] These are the new frontiers of ‘law and society’ in the Roman world.

BIBLIOGRAPHY

Aubert, J.-J. and Sirks, A. J. B. (eds), Speculum luris: Roman Law as a Reflection of Social and Economic Life in Antiquity (2002).

Cairns, J. W. and du Plessis, P. J. (eds), Beyond Dogmatics: Law and Society in the Roman World (2007).

Cotterrell, R., Law, Culture and Society (2006).

Crook, J. A., ‘Legal history and general history', BICS, 41, 1996, p. 31.

Crook, J. A., Law and Life of Rome: 90 B.C.-A.D. 212 (1967).

Ernst, W. and Jakab, E. (eds), Usus Antiquus luris Romani (2005).

Sarat, A. (ed.), The Blackwell Companion to Law and Society (2004). Southgate, B., History: What and Why? 2nd edn (2001).

Travers, M., Understanding Law and Society (2010).

Treggiari, S., Roman Social History (2002).

Tuori, K., Ancient Roman Lawyers and Modern Legal Ideals (2006).