CONCLUSION

The so-called lex Rhodia de iactu amounts to something more than just the topic of a misplaced appendix within a late Roman compilation, the making of which had both salutary and devastating effects upon the conservation of the works of classical jurists.

It represents above all the possible leftover of a set of very old maritime customs going back to pre-Roman times as a practical response to the consequences of many a storm.^[313] It probably developed in Eastern Mediterranean harbour cities, if the collective memory of ancient writers is to be trusted. It provided the framework within which legal arrangements based on good faith were devised among economic agents who were unlikely to be familiar with courts of law. It also reflects a culture that was too formalistic to allow for the concept of direct agency to arise, or to recognise contracts made without the explicit consent of the parties. As a matter of fact, the lex Rhodia de iactu may be one of the most disputed topics of Roman private law, although the problems raised by the texts which have been preserved tend to be more historical than juristic. This is due, of course, to the nature and importance of the economic context (sea trade) within which the rather complex system described in those ten excerpts collected in D 14.2 developed. The propensity of the legal arrangement referred to as contributio to further expand and adjust to new conditions and circumstances unavoidably constitutes a key factor in explaining its success as an institution and its subsequent notoriousness among legal and economic historians.^[314]

Because of the heterogeneous, elliptic, though somewhat redundant nature of the texts preserved in D 14.2, ancient and modern commentators have looked for opportunities to reconstruct the system of contributio as a whole and to identify how it was practically applied in various circumstances.

The alleged, reconstructed origin and history of the legal arrangement naturally bear on this double quest. There is no doubt that classical and post- classical jurists, as well as the Justinianic compilers, could count on a better textual basis than modern legal historians do, both in quantitative and qualiВtative terms, mostly because the excerpts which survived could still be read in context in Antiquity. It is quite possible, too, that documents dealing with, or reflecting, practical situations in which the provisions of the lex Rhodia de iactu as lex contractus applied could be found in Antiquity. One would have to look for them among contracts, riders, judicial reports or individual petitions such as Eudaimon of Nicomedia's, as it was seemingly unearthed by Volusius Maecianus for the sake of his argument.^[315] Until further notice, it seems that nothing of the documentary evidence of this kind has survived or has yet been discovered. Consequently, legal historians have no choice but to focus on the theoretical aspects of the system, the coherence, or nearВcoherence, of which may be postulated - at one time, at least. Alternatively, it is tempting to infer from the reconstruction of the whole system the way it was applied in real life, by rephrasing as precisely and accurately as can be the issues that the jurists were trying to address through a casuistic approach. The former pursuit deals with the history of ideas, the latter with economic and social history. In either case, the result is the making of a model.

Every excerpt raises a question or a set of questions, and the sheer length of some of these excerpts ensures that these questions are often tricky, not to say somewhat marginal, and that is precisely what makes them so interВesting. However, text criticism and analysis remains a necessary, preliminary step. The traditional philological approach, whether it leads to a hunt for interpolations or heeds and favours the lectio difficilior, can and should be topped off with a more literary examination: in so far as biblical scholars have learned to read the Bible as literature, endowed with its own aesthetics and conventions, legal historians and classicists should try to look at the Digest, the Codes, and all remaining legal compendia as literary works in themselves, belonging to the genre of technical literature, with their own internal organiВsation, to be identified in one way or another.

D 14.2 on the lex Rhodia de iactu should be viewed as a necessary, complementary component for the transition between D 14.1 on the actio exercitoria and D 14.3 on the actio institoria, within the larger issue of indirect agency reflected by the praetoВrian remedies called actiones adiecticiae qualitatis. Such a reading implies some level of trust on the part of the reader in the logic of the compilers. It also compels the same reader to justify rationally the seeming inconsistency of the sequence (D 14.1-2-3).

The present interpretation of D 14.2 mainly rests upon intratextual, and to a lesser extent intertextual, considerations. Speculation has little part in it, and the conclusion to be reached is rather positive, in that it seems to be possible to account for every single piece of information of historical nature transmitted by the texts, and to fit it into the larger picture of ancient maritime law, without resorting to textual hypercriticism or to a negative evaluation of the work of classical jurists or late antique compilers. Let us hope that the model proposed here - for it is just a model - can hold water.

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Source: Cairns J.W., Plessis P.J. du. (eds.). Beyond Dogmatics: Law and Society in the Roman World. Edinburgh University Press,2007. - 236 p.. 2007

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