Chapter 1 Sources and methods

It is a human trait to attempt to make sense out of seemingly random events. Nowhere is this more evident than in the study of the past which to many people seems little more than a random collection of battles, conquests and plagues.

Within the broad discipline of Roman studies, historians who specialise in specific aspects of Roman civilisation such as the law often employ their own system of periodisation.

This brief account of the periodisation commonly used by scholars of Roman law shows that it is driven by its own ideology. Its main aim is to demonstrate the intellectual ascendancy of Roman law during the classical period and its restoration in the Byzantine period during the reign of Justinian. The other periods are merely seen as either formative or transitory. Whether such assessments are correct is a matter for another book, but it is worth repeating that periodisations are modern preoccupations and open to revision.

This book will focus solely on the 'classical period' of Roman law. It is the period for which we have most evidence in the sources. But focusing on one period alone will not place Roman law in its broader context. To that end it is important to provide a potted history of the other periods in order to form a clearer picture of the law during the classical period.

The 'archaic' period (c. 753-250 BCE) covers the entire span of the Monarchy and the first two and a half centuries of the Republic. This period starts with the well-known tale of Aeneas and a group of Trojan refugees fleeing a burning Troy and ends with Rome in a battle with Carthage over trade routes in the Mediterranean. In the intervening period, Roman civilisation grew from an insignificant free city founded by the descendants of Aeneas into a formidable political presence on the Italian mainland. Much surrounding the founding of Rome by the twins Romulus and Remus is myth, but archaeological evidence shows that three powerful tribes, the Latins, Sabines and Etruscans, were present in the area surrounding the future site of the city of Rome during the eighth century BCE. It is likely that these three tribes, through conquest and intermarriage, were the true ancestors of the Romans. According to legend, Rome was ruled by seven elected kings until 510 BCE when, following a popular revolt, King Tarquin 'the haughty' was deposed. Later authors credited the kings, by virtue of their royal decrees, with the creation of many of the most revered institutions of the Roman state, such as the senate, the division of the populace into voting bodies known as comitiae and the patriarchal system based on paternal authority.

In 509 BCE, the Roman state was reorganised into a Republic, headed by two annually elected officials known as consuls and assisted in matters of state by the senate (a body of men drawn from the most prominent aristocratic families). In time, further offices were added to deal with certain aspects of state administration. These included the praetorship (in 367 BCE), an office created (according to some) to deal with the administration of justice. A number of important societal advances occurred during the first two centuries of the Republic. A written alphabet appeared and coined money was introduced. Some territorial expansion had occurred under the Monarchy and this policy was pursued further during the early years of the Republic. The consequence was that the citizens of Rome (mainly plebeians - the lower orders of society) were conscripted to fight in these territorial wars as Rome did not yet possess a professional standing army. In a largely agrarian society, the absence of the plebeians during times of war caused popular discontent and on more than one occasion the plebeians threatened to secede. These threats, collectively known as 'the struggle of the orders', were used with great effect to secure constitutional concessions at the expense of the patricians - the aristocratic section of Roman society. One of the most prominent of these concessions was the enactment of the Twelve Tables, the first piece of legislation aimed at making the law accessible to the entire populace. Another important piece of legislation was the Lex Hortensia in 287 BCE, which stated that decisions of the council of the plebs would henceforth bind the populace (not just the plebeians) without requiring ratification by the senate. Throughout the fourth and the third centuries BCE, territorial expansion continued so that by the end of this period, through a series of alliances and by the granting of citizenship to newly conquered tribes, the Romans had become the dominant force in Italy.

Knowledge of the law during this period is limited. It is generally assumed that, like many agrarian societies of the ancient world, 'archaic' Roman law consisted largely of unwritten customs which contained both legal and religious norms. Royal decrees, if they existed, must have been no more than additions to existing custom. The institutions reputed to have been created during the Monarchy, such as the senate and the popular assemblies (including the council of the plebeians in 471 BCE), had an important impact on the development of Roman law during the Republic (since only the latter could enact statute). Furthermore, the establishment of fundamental notions such as the distinction between plebeian and patrician, the system of clans and the patriarchal family structure would prove to have a significant impact on the development of Roman law. It is not clear whether the change in constitutional structure from Monarchy to Republic had an immediate impact on the state of Roman private law. Much of the law appears to have remained customary. One of the most important legal changes which occurred roughly sixty years after the fall of the Monarchy was the enactment of the Twelve Tables, a compilation of more controversial areas of Roman customary law (mainly concerning the family, property and succession). Much uncertainty prevails surrounding the enactment of this law. It is said to have been modelled on a Greek law code (that of Solon), but there is little evidence in the text of the law to support this. It may well be that the story about Greek influence was an attempt during the Hellenistic period to link the origins of Roman law with Greek philosophy. The truth of this account (and the connection between the first piece of Roman legislation and Greece) cannot be verified, but the Romans of subsequent generations believed it to be so, and this is perhaps more important than the factual accuracy of the claim.

Following the constitutional transformation from elected Monarchy to Republic, Royal decrees were replaced with statutes enacted by the voting assemblies (comitiae).

Information is scarce about courts and court procedure during the 'archaic' period. The Twelve Tables mentions a rudimentary court procedure (summons, trial and execution of the judgement) based on ritual 'actions-at-law', but does not elaborate on the composition of the court or its location. It is generally assumed that during the Monarchy (apart from family councils headed by the head of the household who presided over domestic jurisdiction by virtue of his paternal power) the king advised by the senate administered justice. Following the transition to a Republic, this function was initially taken over by the consuls until the office of praetor was created in 367 BCE. The oldest form of court procedure was based on the actions-at-law: five highly formal actions (i.e. rituals) which had to be employed with great care and precision to ensure success in litigation. Some of these actions-at-law were already in use before the Twelve Tables was enacted as law in 450 BCE. The earliest interpreters of the law or 'jurists' are said to have been members from the college of pontiffs, priests of Roman state religion. That these officials had both religious and legal functions is to be expected in a system where much of the law was unwritten custom and where a clear distinction between legal and religion norms was not maintained. Based on account by the Roman historian Livy, it is commonly said that these pontiffs, who were exclusively elected from the patrician class, exercised a monopoly over knowledge of the law (this forms part of the larger narrative about the 'struggle of the orders'). In time this is said to have caused popular discontent and may have been one of the factors which forced the patricians to submit to the creation of the Twelve Tables in which some of the more controversial aspects of Roman customary law were written down and displayed publicly for all to see. While this went some way to pleasing the plebeians, it seems clear that some areas of the law remained unclear and subject to pontifical interpretation. This may account for the existence of the popular tale of Appius Claudius, a clerk of one of these pontiffs, who stole a document containing details of the actions-at-law and published it. This broke the pontifical monopoly over the law (and presumably also over legal practice). In a related development, it is also towards the end of this period when the first 'jurist', Tiberius Coruncanius, emerges in Roman law. He is said to have been one of the first plebeian holders of the office of pontiff and was the first to provide members of the public with legal advice in public.

The pre-classical period of Roman law (c. 250-27 BCE) covers the remainder of the Roman Republic. It is a turbulent period in Roman history which opens with Rome's first attempts to expand her territories outside Italy and ends with the bloody feuding between great men and the fall of the Republic. The early years of this period were dominated by the First and Second Punic Wars against Carthage. The first of these led to the annexation of Sardinia and Corsica while the second ended with the comprehensive defeat of the Carthaginians and the destruction of their capital. The end of the Second Punic War (c. 201 BCE) not only gave Rome a much larger territory to govern, but also brought it into contact with various hostile forces abroad such as Alexander the Great and Mithridates. Domestically, social upheaval continued to dominate local politics, especially in relation to the struggle for property and wealth. This can be seen from the events surrounding the Gracchi brothers (c. 133-132 BCE) who attempted to obtain greater land rights for small farmers. For much of the second century BCE, civil strife continued within Roman territories, culminating in the Social War of 91-89 BCE. This period of strife is often referred to as 'the Roman revolution' (to use the phrase first coined by Ronald Syme in 1939). The main reason for this war lay in Rome's decision not to grant citizenship to all her allies as had been done in the past. The last century of the Roman Republic witnessed a number of important events. First, the senate became the most important legislative body even if only indirectly (by having a senate decision incorporated into a statute). Secondly, the army was transformed into a professional corps paid by the state. In a related development, the economy becomes increasingly sophisticated towards the end of the Republic with complex financial institutions such as banks emerging. The final period of the Republic, from Caesar's successes in Gaul to the Battle of Actium in 31 BCE is a well-known tale. The in-fighting of great men such as Caesar and Mark Anthony, supported by various political factions, could not be contained by temporary measures such as the creation of triumvirates, and the Republic ended.

As for the law during this period, there is a general movement away from unwritten custom towards statute law enacted initially by the council of the plebs and other comitiae, later through decisions of the senate. Although statute law played an important role in the second half of the Republic, few examples may be identified. It has been suggested that most of the statute law from this period was not preserved. This is perhaps an over-simplification of a more complex issue, since the transition from unwritten custom to written law does not necessarily presuppose the increased use of statute. It also fails to take account of the growing importance of praetorian law which, as will be discussed presently, came to be an important source of law during this period. Of the important legal events which occurred during this period, three deserve specific mention. First, the creation of a second praetorship in 242 BCE heralded an important change in Roman court procedure. Before, a single praetorship existed and this officer presided over courts which were exclusively available to Roman citizens and which applied Roman law using Roman procedure. By 242 BCE, a number of foreigners had settled in Roman territories and, since they were barred from using Roman law in Roman courts, a parallel system of courts evolved. This court, which was not constrained by the formalism of early Roman law and court procedure, proved so effective that by 150 BCE a Lex Aebutia was enacted which enabled Roman citizens to use this more flexible procedure also in Roman courts (though at first it may have been limited to certain areas of law). The enactment of this statute started a process which would eventually culminate in the replacement of the system of procedure in all Roman courts by the end of this period (the actions-at-law were specifically abolished by statute during the reign of Augustus). One of the other main legal developments which can be located in the late Republic is the actio Publiciana, a legal remedy introduced c 67 BCE to protect possessors of land who were on their way to acquiring ownership. It is plausible that this development is in some way related to the expansion of Roman territories.

Two further legal developments deserve mention. First, the office of the praetor, created in 367 BCE and augmented by the introduction of the office of the peregrine praetor in 242 BCE, in time came to have a profound impact on the development of law. Praetors, by virtue of their office, could produce edicts, statements of principle which would govern their term in office. From c. 150 BCE when the civil procedure used in Roman courts became less formalised, these edicts began to have a direct impact on legal change. While in theory, the old civil law of the Romans founded on ancient customs augmented by statute continued to exist, in practice legal developments introduced by the praetor through his edict increasingly came to 'aid, supplement and correct' the civil law according to Cicero. It is often said that during this period Roman law became a 'science' (evidence of this can be seen in the appearance of concepts such as natural law and the law of nations in Roman legal sources). To some extent, this must have occurred because of the influence of Greek philosophy which is known to have exerted a formative influence over much of Roman society, especially during the second century BCE. As far as the activities of the praetor is concerned, it is important to remember that this office did not act alone. Praetors (as political officers) were often assisted by men knowledgeable about the law - jurists. Initially, jurists were mostly men from the patrician order who followed in the footsteps of Tiberius Coruncanius by providing citizens with legal advice for free. Other notable jurists of the period include Sextus Aelius who is said to have attempted to systematise Roman law by dividing it into three parts, Quintus Mucius Scaevola who divided the law into categories, and Aquilius Gallus who wrote commentaries on the law. By the end of this period, there were many jurists in Rome and the provinces. These individuals were no longer solely from patrician stock. Rather, they came from a wide variety of social backgrounds and practised law in return for payment. Cicero commented on the activities of the jurists. Jurists wrote learned treatises on the law, taught students using an informal system of apprenticeship, and advised officials and clients regarding the law. Although jurists were important in the development of Roman law, it must be remembered that clients were not represented by jurists in court. They were represented by advocates like Cicero, individuals trained in rhetoric whose task it was to convince a lay judge of the truth of their client's case using the techniques of rhetoric.

Politically, the classical period (c. 27 BCE-284 CE) was one of consolidation when the eastern and western borders of Roman Empire assumed a regular form, although this did not end periodic skirmishes. The transition from Republic to Empire, chiefly owing to the efforts of Octavian (later renamed Augustus) is a master-class in political manoeuvring. While maintaining the notion of a Republic headed by 'the first among the equals', Augustus took great care to preserve much of the republican constitutional machinery such as the senate and the voting assemblies (to prevent stirring up the anti-monarchical feelings of the Roman populace). Under the successors of Augustus, collectively known as the Julio-Claudian dynasty, the final vestiges of republicanism were removed so that by the end of the first century CE there was little power left in the republican assemblies to challenge the position of the emperor. Under the successors to the Julian-Claudian dynasty, the Flavian dynasty, the emperor's power was consolidated further and greater links were forged between Rome and her provinces. The Severan emperors, successors to the Flavians, continued this work until c. 235 CE when the last of them, Alexander Severus, was murdered. This event triggered a period of great instability, commonly referred to as the crisis of the third century. Between 235 and 284 CE not only was Rome almost continuously involved in skirmishes with the Goths on the Danube frontier, but old hostilities between the Romans and the Parthians in Asia Minor flared up again. There was great economic upheaval, and taxes had to be raised to fund military spending. It was a time of many emperors and pretenders, all of whom reigned for short periods. Order was not restored until 284 CE with the accession of the Emperor Diocletian.

The classical period represents the high point of Roman legal development, but relatively few important statutes from this period can be identified. Of these, the majority date from the beginning of the period, which suggests that statute law (as approved and enacted by the old popular voting assemblies) declined as the emperor and his bureaucracy grew in importance as a direct source of law. The most noteworthy of these statutes were the Augustan marriage laws (Leges Iu/iae of 18-17 BCE; Lex Ae/ia Sentia and Lex Papia Poppaea of 4 CE) which set out to promote marriage by criminalising adultery and imposing various social and financial fines on cohabiters. This set of laws also curtailed the number of slaves an owner could free at any one time. Three further legal innovations deserve specific mention. In 52 CE a senatorial decree (the senatusconsu/tum C/audianum) determined the legal status of children born from a male slave and a freedwoman, while in 135 CE an imperial decree by order of Hadrian set in motion the codification of the Praetorian Edict. An imperial decree of 212 CE (the Constitutio Antoniniana) deserves specific mention. Issued by order of the Emperor Antoninus Pius, it granted Roman citizenship to most of the free inhabitants of the Roman Empire. The legal significance of this measure should not be underestimated. Whereas before, Roman citizenship determined whether a person was entitled to use Roman law in a Roman court, this edict extended the use of Roman law throughout the Empire. In parts of the Empire such as Egypt, where a sophisticated and well-developed legal culture had existed prior to the annexation by Rome, the effect of this decree must have been to intensify the existing legal pluralism.

Attempts by successive emperors to consolidate their own power at the expense of the existing republican constitutional assemblies had a noticeable effect on the law. Thus, from Augustus onwards, the importance of these assemblies waned to the extent that by 200 CE, the senate was little more than a sounding board for the wishes of the emperor. The other main sources of law, juristic writing and praetorian edicts were also affected by this development. The Praetorian Edict, which by the sta rt of this period was a sizeable document that incumbent praetors were expected to adopt without much alteration, was eventually redacted into its final form during the first half of the second century CE by order of the Emperor Hadrian. The demise of this source of law is not difficult to comprehend. First, it did not sit well with the increasing centralising tendencies of the emperor and his bureaucracy. Secondly, the Edict existed in the context of a specific type of court procedure, the formulary procedure which had originally evolved in the court of the peregrine praetor. With the advent of the Empire, the formulary procedure was increasingly being replaced by a more centralised, bureaucratic procedure developed in special imperial tribunals. Although the formulary procedure was not officially abolished until the mid-fourth century CE, its use was increasingly restricted both in imperial tribunals and in the provinces. This must have affected the way in which the Praetorian Edict was used as a source of law.

As far as the works of the jurists are concerned, the thriving independent legal culture of the late Republic was replaced by a culture of regulation (the ius respondendi). Augustus introduced a system of official regulation whereby some jurists were granted the right to give authoritative responses. It is not known what criteria were employed for the award of this privilege: it has been suggested that it may have been given as token of political allegiance. Whatever the criteria may have been, the granting of this right gave a jurist more prestige and it also gave such an opinion more weight in law during litigation. In fact, if all jurists who had this right and who were consulted on a point of law were in agreement, the court was bound to follow it. Although the jurists continued their activities as outlined by Cicero, they began to be organised into factions or schools. Legal texts mention at least two schools, the Proculians and Sabinians, who held different views (sometimes inspired by philosophy) on points of law. Apart from the established activities, jurists also increasingly began to be appointed to imperial councils advising the emperor on matters of law. One may also assume that they were increasingly employed in the imperial bureaucracy and that this ultimately led to the demise of the profession of the jurist. The Emperor Hadrian ended the practice of granting the right to give authoritative responses to individual jurists and began to give imperial enactments in his own name. This led to a decline in the profession; and no named jurist is known after 284 CE, presumably because they were all subsumed into the imperial bureaucracy.

Compared to their republican counterparts, much more is known about the jurists of the classical period. The reasons for this are twofold. First, the works of thirty-eight of the most prominent jurists who held the right to give authoritative responses were anthologised in the Digest, a legal encyclopaedia which formed part of the compilation of Roman law by order of the sixth-century Emperor Justinian. Secondly, one of these classical works by an otherwise unknown jurist called Gaius was rediscovered largely intact as a palimpsest during the course of the nineteenth century. This book is unique. Not only is it the only largely intact work from the classical period which has been preserved, but it also provides a unique glimpse into a teaching manual of the classical period. Gaius was also clearly interested in legal history as much of the law discussed by him is placed in its historical context.

After the death of the Emperor Alexander Severus in 235 CE, the Roman Empire was virtually constantly under attack from the Parthians in Asia Minor and the Germanic tribes on the Rhine and Danube frontiers for a period of fifty years. This had various consequences. Emperors tended to reign for short periods and were quickly deposed, often by their own armies who found them to be ineffectual. Increased military expenditure caused economic decline, higher taxes and inflation. Prolonged warfare led to food shortages and caused popular unrest. It was also during this period (owing to military threats from all sides) that the seat of the Roman Empire started to shift eastward. The decline was partially arrested by the promotion of Diocletian to the imperial throne in 284 CE. Diocletian had in fact been involved in imperial politics for some time, but it was only after he became sole emperor in 284 CE that he began to implement significant changes. An able military tactician and bureaucrat, Diocletian addressed the problem of the size of the Empire by dividing it into two administrative units each governed by a co-emperor and assisted by his deputy. This constitutional division, the Tetrarchy, solved many of the practical problems created by the size of the Empire. It is also conventionally seen as the start of the Dominate, an increasingly bureaucratic period in Roman history characterised by a large state, in which the emperor and his bureaucracy became the sole lawgiver.

Although the succession to the imperial throne after Diocletian was troubled, one figure, Constantine, emerged victorious. Constantine's reign is noteworthy for a number of reasons. An able administrator like his predecessor, Constantine continued the programme of bureaucratic reforms to stabilise the Empire. Since by this time the position of the emperor at the head of the Roman state had been firmly established, the civil service was expanded and the role of the senate was downgraded. Arguably the most notable achievement for which Constantine has become known to posterity is his attempt to end the persecution of Christians which had begun during the first century CE. Thus, in 313 CE, through the Edict of Milan, Constantine decreed an end to the official state- sanctioned prosecution of Christians. Much has been written about Constantine's own conversion to Christianity, but it is not clear whether an Empire-wide conversion occurred during his reign. Certainly by 391 CE, during the reign of Theodosius I, Christianity had become the official religion of the Roman Empire. Constantine also tried to improve relations between church and state and to preserve unity within the church by calling together the main church leaders to the council of Nicea in 325 CE. His other notable achievement was the capital investment in the city of Constantinople (later Byzantium) on the Bosphorus, another indication of the decline in the importance of Rome. Following the death of Constantine in 337 CE, two years of strife over his succession followed. This was eventually resolved by the election of Theodosius I. During his reign other cities such as Milan and Ravenna became increasingly important.

The Dominate, as the term suggests, is characterised by a centralised approach to government and the law. All other sources of law declined in importance compared to the imperial bureaucracy and the emperor as the primary source of law. This reflects the changing nature of the emperor as the head of the Roman state. He is no longer seen as first among equals, but as the sole anointed ruler of the Roman Empire by divine right. Evidence of the decline of other sources of law in favour of imperial law is visible in a number of areas. Although the formulary procedure was still technically available to litigants in Roman courts, it had long since been abandoned for (or merged into) a more bureaucratic form of procedure known as the cognitio in which judges were salaried officials in the employment of the state. The formulary process was not officially abolished until 342 CE, but it must be assumed that it had fallen into disuse well before that time. Another way in which the emperor asserted his authority over the administration of justice was through the formalisation of a system of appeals (and thus also a hierarchy of courts). One further point deserves mention. After the conversion to Christianity, bishops slowly acquired jurisdiction over certain aspects of (mostly family) law. This led to the rise of bishop's courts and the slow fragmentation of state jurisdiction into secular and religious spheres.

As far as private law based on statutes and the writings of jurists are concerned, there is evidence of the 'vulgarisation' of the law. Since independent juristic activity seems to have ceased during the third century CE, it became necessary for the courts to evolve a doctrine to deal with the existing body of jurists' writings. This is to be found in the so-called Law of Citations of 426 CE, a piece of legislation regulating the use of the sources of the classical period in a court of law. The works of five of the greatest jurists of the classical period (Gaius, Ulpian, Paulus, Papinian and Modestinus) were seen as sources, and these were applied according to rules laid down in the statute. This mechanical application of juristic authority is a far cry from the intellectual vibrancy of the classical period. On the other hand, perhaps it was merely a pragmatic solution to the thorny issue of legal authority in late antiquity. Given the absence of independent juristic activity and the increasing bureaucratisation of the law, attempts at codification were inevitable. The product of this process was the Theodosian Code of 438 CE, compiled by order of the Emperor Theodosius II. An incomplete version of the text has been preserved from which it has been concluded that the Theodosian Code was based on two earlier unofficial codes of law known as the Codes of Gregorian and Hermogenian respectively. These have not been preserved and their content is unknown except for an index page. The Theodosian Code is largely concerned with imperial law from the reign of Hadrian until Theodosius II. It deals with public law and, although reference is made to a proposed future project on private law, this was never undertaken.

The later history of the Roman Empire is inextricably linked to that of the advent of the middle ages in Western Europe. In 476 CE the puppet emperor of the Western Empire, Romulus Augustulus, was deposed by a 'barbarian' chieftain, Odoacer. This event, although hardly significant in its own right, signalled the end of the Roman Empire in Western Europe. Except for a brief period of reconquest during the reign of the Byzantine Emperor Justinian, Italy became the home of the Ostrogoths (later defeated by the Lombards), one of the Germanic tribes against which the Roman had fought for so long. In the east, the boundaries established by Diocletian between the Eastern and Western Roman Empire now became the formal boundary between the Byzantine Empire and the 'barbarian' West. As the successor to the Roman Empire, the Byzantine Empire would in time produce one of the greatest figures of late antiquity, the Emperor Justinian, whose attempts to restore the glory of Roman law through an ambitious project of compilation would have a long-lasting influence of the laws of Europe. Byzantine civilisation proved remarkably resilient, its empire lasting until it was defeated by the Ottomans in 1453.

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The potted history of Roman law set out above demonstrates that for each period under discussion the law was said to derive from certain sources (custom, statute, writings of the jurists). In this respect, Roman law is no different from a modern legal system in which the law may also be said to be derived from a finite number of agreed sources (in civil-law systems mostly statute and in some also precedent, i.e. decided court cases). As mentioned above in relation to the classical period, the main sources of Roman law during this period were (in no specific order) statute law, the Praetorian Edict, the writings of the jurists and, towards the end of this period, imperial law. Let us look at each of these in turn.

With a few exceptions, Roman statutes tend to deal with specific issues rather than as a general restatement of the law. Statute law is more prevalent during the Republic than during the Empire (when the emperor and his bureaucracy became the dominant source of law), but many of the republican statutes remained in force and therefore need to be taken into account when constructing the law of the classical period. It is also important to consider who could make statute law and the nature of the legislative process. Most Roman statutes attested in literary or epigraphic form have been collected in C.G. Bruns, Fontes Iuris Romani Antiqui, 5th edn, ed. Th. Mommsen (Freiburg in Breisgau 1887), augmented by S. Riccobono et al. (eds) Fontes Iuris Romani Anteiustiniani, 3 vols (Florence 1941-3). The most recent work on Roman statutes is M. Crawford (ed.) Roman Statutes, 2 vols (London 1996), which contains a thorough text-critical analysis of many statutes along with detailed commentary. Since the publication of Crawford's book, a number of new statutes have come to light, such as the Lex Irnitana (a town charter from Spain) and the Lex Rivi Hiberiensis (an irrigation decree also from Spain). These have been edited and published in the Journal of Roman Studies and may be accessed there.

Roman statutes tend to contain highly formalised language. Take the following example from the Lex Iulia de maritandis ordinibus from the reign of Augustus. The aim of this piece of legislation was to prohibit marriages between people of different (read: unsuitable) classes:

Whoever is a senator or whoever is or shall be a son of any of them or a grandson through a son or a great-grandson through born to a son, none

of them, knowingly with wrongful deceit, is to have as fiancee or wife a freedwoman who herself is or shall have been an actress or whose father or mother is or shall have been an actor or actress.... [translation: Crawford II, 807]

The drafters of this passage were influenced by the idea of patriarchy descending through the male line (agnatio), an important principle in the law of persons. Furthermore, the law was designed to catch a wide category of potential unsuitable marriages by extending the ban to the third-generation descendants of senators (i.e. families of a certain standing). The law set to punish only those who had contravened it on purpose ('knowingly or with wrongful deceit⁷). Finally, it is worth noting that the class of unsuitables included both former slaves since freed as well as those who practised professions that upper-class Romans regarded as vulgar, such as acting.

When assessing statutes such as this one, two points need to be borne in mind. First, Roman statutes had a very narrow purpose, namely to change the law on a specific point. It is therefore always good to establish what the law on this point stated prior to the enactment of the legislation and to attempt to work out (using literary and other evidence) what the motivation for the change was. Secondly, the Romans tended to interpret statutes conservatively. Since it is likely that the Roman jurists would have commented on this piece of legislation, a good strategy is to establish which jurists wrote specifically on this law (this can be ascertained using F. Schulz, Roman Legal Science (Oxford 1954)) and to ascertain whether any of these works (or sections from them) were incorporated into the Digest of Justinian. By looking at juristic writing on this legislation, it is possible to obtain a sense, not only of juristic thought on the law, but also of its engagement with legal practice.

Our second main source of law for the classical period is the Praetorian Edict. As mentioned above, praetors (who were in charge of the administration of justice in Rome) produced an annual edict in which they set out the new legal grounds on which they were prepared to grant legal relief. By the advent of the Principate, successive praetors had been following this tradition for a century and a half, and it had been established that praetors were bound by the Edict (possibly owing to the transgressions of Verres) since the first century BCE. The Edict contained a list of formulae of actions created by successive praetors who, through custom, had come to adopt the edicts of their predecessors while weeding out failed remedies. It also contained the formulae for other forms of summary relief such as interdicts. By studying the structure of the Edict as redacted into its final form during the reign of the Emperor Hadrian, it is possible to ascertain when certain remedies were introduced by the praetor into Roman law and possibly also in response to which factors. A reconstruction of the Edict has been attempted by O. Lenel, Das Edictum Perpetuum, 2nd improved edn (Leipzig 1907). Let us take an example. The formula of the action on letting and hiring (actio locati) states:

Whereas Aulus Agerius [the plaintiff] let to Numerius Negidius [the defendant] the plot of land in question which is the object of the lawsuit, whatever on those grounds the defendant ought to do or give to the plaintiff in accordance with good faith, I instruct you, oh judge, to condemn the defendant or if it cannot be proven to acquit him. [translation: mine, from Lenel §111]

Letting and hiring is one of a group of four contracts known as 'consensual', because they could be created purely by the consent of the parties on a certain range of issues. As we can see from this formula, good faith was an important principle in assessing the amount of the condemnation. We will return to this issue in our discussion of actions in Chapter 4.

Since the Praetorian Edict was a public document which was displayed in the forum, this formula would have been visible to potential litigants wishing to sue on the basis of a breach of contract in letting and hiring. It provided the framework in which the parties had to state their claim in law. During the first stage of the lawsuit, in front of the praetor, this formula would be adapted to take account of the specific case of the parties. Both parties would have an opportunity to add claims and defences to the formula until such time as they (and the praetor) were content that all the legal issues had been set out in the claim. It was usually in advance of this stage that the parties would have sought advice from jurists. Once both the parties and the praetor were content about the formula, a judge could be appointed and the lawsuit could progress to the second stage.

The Praetorian Edict is a useful source for reconstructing classical Roman law. Not only does it show the technicalities of the formulary procedure, but it also demonstrates the relationship between legal theory and legal practice. The praetorship was a political office and many of the holders of this office had no legal expertise. It must therefore be assumed that the technical nature of the formulae contained in the Edict was created by the jurists who advised the praetor. This, in turn, raises interesting questions about the relationship between the jurists and legal practice and the Roman conception of 'law', since the praetor was not technically a lawmaker who could change the ius civile. Furthermore, many of the jurists wrote commentaries on the Edict (Ulpian, for one) (F. Schulz, Roman Legal Science (Oxford 1954) provides a good overview). By studying their comments on specific aspects of the Edict, it is possible to gain some insight into their methods of analysis as well as their interpretation of these formulae during the classical period.

By far the most abundant source of information about the classical period comes from the works of the Roman jurists. Let us first look at the most complete example of such a work, the Institutes of Gaius. This textbook for law students written during the second half of the second century CE by an unknown jurist from the eastern provinces of the Roman Empire is the only (nearly) complete example of juristic writing from the classical period. As an example of juristic writing, it stands squarely within the tradition of Roman legal writing in which the jurists of this period excelled. The book has a number of interesting features. First, it is conceptually divided into three sections, namely, persons, things and actions (a threefold division much discussed by modern Romanists owing to its lasting impact on Western jurisprudence). Secondly, since it was written before the widespread grant of Roman citizenship to nearly all free inhabitants living within the boundaries of the Empire in 212 CE, it has a specific focus and only really deals with Roman law, in the sense of the ius civile, available to Roman citizens. Gaius pays little attention to the legal position of non-citizens living in Roman territories and who did not have access to Roman civil law. Furthermore, it is clear from the content of the work that Gaius was interested in the history of Roman law. He frequently mentions institutions and rituals which, by his time, must have long fallen into disuse. Thus the Institutes can also be used to gain insights into earlier periods of Roman legal history. Finally, it is known that Gaius was a follower of the Sabinian school of jurists. During the course of the classical period, most Roman jurists had begun to affiliate themselves with one of two 'schools', the Proculians or the Sabinians. The difference between them is not altogether clear, with some modern scholars arguing that the differences were philosophical while others think that one 'school' had republican sympathies and the other imperial sympathies. Be that as it may, Gaius, who is known to have been a follower of the Sabinian school, nearly always sides with them in matters of legal controversy. Since we have more evidence of Gaius' reasoning in these matters than that of the other Roman jurists, he provides us with useful information on the differences between these two 'schools'.

The Institutes of Gaius is conventionally cited in the form Inst.Gai.III, 4 (= book III, paragraph 4). W.M. Gordon and O.F. Robinson's The Institutes of Gaius (London 1988) is a modern critical edition of the Latin text together with an English translation. Let us take an example:

Wills properly made may be invalidated if the testator changes his mind. But it is clear that a will does not become invalid merely because the testator wants to rescind it. Why, even if he cuts the thread holding it together it is still valid by state law [read civil law]. Indeed, even if he destroys or burns the will, what was written in it is no less valid, although proof of what that was may be difficult (Inst.Gai.II, 151) [translation: Gordon/Robinson]

This passage is concerned with the law of testate succession (i.e. inheritance based on a valid will in which the final wishes of the deceased have been recorded), which we will discuss in greater detail in Chapter 3. To the Romans, this branch of law was classified as forming part of the law of 'things', inheritance being the way in which one acquired ownership of 'things'. This passage contains a number of interesting points. It provides us with some information about the physical make-up of Roman wills (a scroll containing writing and sealed with a thread to preserve the confidentiality of the contents). However, the main legal point Gaius makes here is that a testator is entitled to change his mind after the will has been made. Notice that the 'rule of law' which Gaius explains to his students here is one that has grown organically out of Roman civil law. Its authority does not lie in any statute, but has grown out of Roman legal custom augmented by legal practice. No doubt the examples of the invalidation of a will have also arisen out of practice. How do we know that Gaius' view on this matter accurately represents the law at the time when the Institutes was produced? First, there is no indication from the passage that he is discussing law which has been altered. Secondly, by comparing this passage to others from the classical period as well as to examples of legal practice which have been preserved, it becomes possible to draw conclusions about whether the law expressed here is current.

Our second category of juristic works is not in the same format as that of Gaius. The reason for this is that they were anthologised during the sixth century CE by the compilers of Justinian's great

project to create a manageable corpus of Roman law. The work into which these books were redacted is called the Digest. It contains our main source of information on juristic literature, not only of the 'classical' period, but also of the state of the law during the reign of Justinian (an English translation may be found in A. Watson (ed.) The Digest of Justinian, rev. edn, 4 vols (Philadelphia 2008)). Let us consider how the Digest was put together. A commission of seventeen men was instructed to review the books of thirty-eight jurists of the classical period. These were the most important jurists of their day, awarded the ius respondent (the right to give authoritative responses) during their lifetime. Gaius was one of them. Two thousand books by these thirty-eight jurists were reviewed by the commission and redacted into thematic titles (e.g. on sale, on marriage). Within each title, snippets of texts from these original books were arranged in an order that reflected the working practices of the commission. Let us take an example:

D.23.2.31 Ulpian, Lex Julia et Papia, book 6. Where a senator is given imperial permission to marry a freedwoman, she will be his lawful wife. [translation: A. Watson]

This snippet of text, which in the Digest may be found in the title 'formation of marriage' (D.23.2) was taken from a volume on the Lex Julia et Papia (book 6) by a jurist called Ulpian. The compilers of the Digest included the provenance of every text snippet and it is therefore possible to attribute every text to a specific author (of the thirty-eight jurists whose work make up the Digest) as well as to a specific work by that author. These facts are particularly important for at least two reasons. First, by identifying the author, it allows us to place the snippet in time. Ulpian, a frequently cited jurist in the Digest, lived during the third century CE. Knowing that this statement came from the third century CE permits us to draw conclusions about the state of the law during that period. Secondly, by identifying the book from which this was taken, it is possible to draw further conclusions about the law.

This text was taken from a work by Ulpian on the Lex Iu/ia et Papia. Jurists wrote many different kinds of works: commentaries on statutes, collections of legal advice, theoretical works (for an account of the different types, see F. Schulz, Roman Legal Science (Oxford 1954)). Given the title of this work, it was most likely a commentary on the above-mentioned statute. We have come across this statute before in our discussion of statute law, where we saw that its aim was to ban intermarriage between 'unsuitable' and suitable people. Knowing this, we may therefore conclude, looking at this statement by Ulpian, that the effect of the statute could be avoided by obtaining permission from the emperor to marry a freedwoman. This also gives us some information about the relationship between the existing law and imperial innovation. Finally, given that not only the title of the original book from which the snippet was taken has been included, but also the book from which it was taken, it would theoretically be possible to reconstruct the original works from the snippets in the Digest. These reconstructions may prove useful in assessing the original context in which a statement was made (by looking at the paragraph above and below it). An attempt at reconstructing these works have been made by Otto Lenel in a multi-volume work entitled Pa/ingenesia luris Civi/is (Leipzig 1899).

Two complications surrounding these texts remain. First, the format of these works by the classical jurists (which by the time of the compilation of the Digest must already have been nearly three centuries old) and whether they had been standardised by the time of the compilation are unknown. In second place, the compilers made certain changes to the texts in order to reflect the law of the Justinianic period (i.e. the scored out references to institutions which had become obsolete), but it is generally assumed that most of these changes were largely cosmetic.

Our other main source of Roman law of the classical period is imperial 'constitutions' collected in another part of Justinian's compilation of Roman law, the Codex lustinianus (the best English- language translation is the one by Fred Blume available online via the website of the George W. Hopper Library of the University of Wyoming). To understand this form of law and its effect on existing law, a few observations about the changing nature of law during the Principate is required. During the Republic, statutory convention dictated that a statute could only be passed once a certain legislative procedure had been concluded in the voting assemblies. The decisions of the senate did not have the force of statute unless they were incorporated in a statute. With the advent of the Principate, the enactment of statute law by the voting assemblies slowly declined in favour of new forms of legislation. From the reign of Hadrian the decisions of the senate had the force of law, a state of affairs which continued until the Dominate; thereafter the 'constitutions' of the emperor, made via his bureaucracy, increasingly came to have the force of law. The exact basis for the emperor's legislative ability is unclear, but it stands to reason that as the position of the emperor as head of the Roman state grew stronger it became easier to justify the legislative basis of these 'constitutions'. This term is used as a collective to describe three forms of imperial law. The first of these, edicts, referred to the emperor's ability, as a supreme magistrate, to issue legally binding directives (or edicts). These were in theory perpetual until altered by a later emperor. The second were missives to imperial governors and other officials. They were known as mandata and there is some debate as to whether they count as law or not. In theory they applied only as long as the emperor was in office. The final form appeared in two versions. Imperial decrees (decreta) were instances in which the emperor ruled in a legal dispute brought before him. Such rulings were perpetually binding and changed the law. The other version, rescripta, is most commonly found in the Codex lustinianus. They were written answers on points of law given in response to petitions from individuals or legal officials. They were binding and changed the law. Let us take an example.

C.4.65.3 The Emperor Antoninus to Flavius Callimorphus. You should not be expelled, against your will, from the room which you say you hired, if you pay the rent to the

owner of an apartment house, unless such owner proves that it is necessary for his own use, or that he wants to improve it, or that you conducted yourself badly in the rented room. (6 January 214 CE) [translation: F. Blume]

Like the Digest, these 'constitutions' were organised into titles by subject (this one is taken from the title on letting and hiring) (C.4.65). Within each title, they were arranged chronologically from earliest to latest. The text provides the name of the author and the name of the petitioner (often an unknown person) as well as the date and often also the place of promulgation. These snippets of information are important because they allow us to date the fragment and thus enable us to draw more general conclusions about the development of the law. When dealing with imperial 'constitutions' these need to be compared to juristic law on any given point to see whether the law was changed by the emperor acting through his bureaucracy.

Two further sources of Roman law may be mentioned. The first of these are negotia, written records of legal practice preserved on papyrus or wax tablets (most of which are recorded in Riccobono (ed.), vol. 3). In the last fifty years, a number of these have come to light, providing us with exciting new information about legal practice. Take the following example from the Sulpicii archive, a collection of financial documents belonging to the Sulpicii banker family found in Puteoli.

TPSulp. 45. I, Diognetus, slave of Gaius Novius Cypaerus, have written: By order of my master Cypaerus and in his presence I have leased to Hesychus, slave of Tiberius lulius Evenus, imperial freedman, Bunker No. 12 on the middle level of the publicly-owned Bassian warehouses in Puteoli,... [translation: Jones, p. 95]

At face value this document records a contract of letting and hiring. Its importance, however, lies in the fact that slaves are transacting on behalf of their masters. Diognetus 'with authorisation and... in his presence' is clearly intending to bind his master fully to the agreement. Thus, by looking at these documents, it is possible to form a better appreciation of law in action and how the abstract rules of Roman law discussed by the jurists in their works applied to real-life situations. Apart from these, there are a vast number of papyri which record legal transactions from the period of the Roman occupation of North Africa. Although these are a fascinating source, it should be borne in mind that Roman provinces like Egypt already had a sophisticated indigenous legal system before they were annexed by the Romans and that in many cases the Roman authorities were content to allow a form of legal pluralism to exist whereby local courts were left to apply local laws. Thus, in assessing whether the law as described in these documents may be said to be 'Roman' one needs to take account of the existence of local laws.

Apart from these, there also exists a vast body of Latin literature spanning the classical period which could be used to draw conclusions about Roman law. Authors like Horace, Cicero, Pliny the Elder, Pliny the Younger, Quintilian and Celsus are well known to scholars of Roman law for the information their writings provide (most Latin works may be found in standardised form in the Loeb series and Greek works in the Teubner series). Two things need to be borne in mind when evaluating statements from Latin literature. First, each of these authors wrote in a specific genre (philosophical treatises, historical works, moralistic works) and their statements about the law therefore have to be seen in context of the type of work. Thus, when Cicero comments that law is a discipline with which you occupy yourself in old age, we should not take this at face value, but merely as a quip about the usefulness of the law to a professional advocate. In second place, it should not be forgotten that these authors were not professional jurists with a scientific interest in the law. Thus their statements are sometimes incomplete or incorrect and show only an aspect of the law that they wished to reveal in the larger context of their narrative.

Suggested further reading

The following works contain useful overviews of Roman legal history. They may be used to obtain more detailed information about the main developments outlined above.

Frier, B.W. The Rise of the Roman Jurists (Princeton NJ 1985) Mousourakis, G. A Legal History of Rome (London 2007)

Riggsby, A. Roman Law and the Legal World of the Romans (Cambridge 2010)

Robinson, O.F. The Sources of Roman Law: Problems and Methods for Ancient Historians (London 1997)

Tellegen-Couperus, O.E. A Short History of Roman Law (London 1993)

Watson, A. Lawmaking in the Later Roman Republic (Oxford 1974)