Introduction: Themes and Literature

Crook's book has exerted little influence on most scholars of Roman law, who have still tended to treat their material as an ahistorical given only to be investigated and expounded dogmatically.

The Roman empire of the Romanist is still much the same orderly commonwealth that Mommsen imagined, a recognizably modern state grounded in the rule of law. But the Roman empire many contemporary Roman historians now imagine has evolved into something weaker, less rational, and more ad hoc: they see in Rome the deliberately arbitrary and enjoyably corrupt monarchies of the ancien regime, old Sicily rather than modern Zurich.^[4]

The work of Crook, however, has inspired a small number of (mainly) ancient historians to appreciate the value of a broader, more interdisciplinary, approach, which places the study of the law of the Roman Empire within various other academic disciplines such as legal history, ancient history, classics and patristic studies. Without slighting others, a few names may be mentioned. In 1980 Bruce Frier published Landlords and Tenants in Imperial Rome, a work that Peter Stein described as “emancipating the lawyers from �?the illusion of timelessness’ in the arguments of the Roman jurists”.^[5] With this work and his The Rise of the Roman Jurists: Studies in Cicero’s Pro Caecina (1985), Frier has, particularly in North America, raised the profile of this approach to Roman law in the ancient world. Frier’s pupils, Susan Martin, Dennis Kehoe and Thomas McGinn, have produced powerful and convincing studies utilising this approach. In particular, Martin and Kehoe have applied this method to the relationship between law and economics. In Investment, Profit, and Tenancy: The Jurists and the Roman Agrarian Economy (1997), Kehoe argues that Roman law had a strong foundation in economic needs that has hitherto been neglected.

In Italy, the works of Luigi Capogrossi Colognesi on property law such as Economic antiche e capitalismo moderno: la sfida di Max Weber (1990) have followed a similar approach. In the Netherlands the doctoral thesis of Boudewijn Sirks, Food for Rome: The Legal Structure of the Transporta­tion and Processing of Supplies for the Imperial Distributions in Rome and Constantinople (1991), could be cited as an example. Though innovatory, its publication in a series not widely distributed, meant that it has not always received as much publicity as it deserves. Elsewhere in Europe this approach has recently led to a number of important publications, such as, in 1994, Jean-Jacques Aubert's Business Managers in Ancient Rome - a Social and Economic History of Institores. Jean Andreau's work, translated as Banking and Business in the Roman World (1999), investigated a related economic theme; a rich and fascinating book, it examined the important Murecine archive of the Sulpicii and that of lucundus the moneylender. Influenced by these developments and innovations, and reflecting parallel concerns, ancient historians (mainly) in the United Kingdom have collaborated in research on the law codes of Late Antiquity. Jill Harries' work on the Theodosian Code may be singled out in particular, resulting in her publications Law and Empire in Late Antiquity (1999) and The Theodosian Code: Studies in the Imperial Law of Late Antiquity (1993) (edited with Ian Wood).

All of these have been specific and relatively narrowly focused programmes of research, but in 1999 David Johnston published Roman Law in Context. This synthesis was in many ways a shorter and more nuanced version of Crook's Law and Life of Rome, though considerably more focused on the Roman law.

Many of the American and European scholars interested in combining Roman law and ancient history this way came together in two edited collec­tions published in 2002: Speculum luris: Roman Law as a Reflection of Social and Economic Life in Antiquity, edited by Aubert and Sirks; and Thinking Like a Lawyer: Essays on Legal History and General History for John Crook on his Eightieth Birthday, edited by Paul McKechnie. As a Festschrift, the latter was very varied, ranging rather outwith the scope suggested by the tempting title; the former, however, had a definite programme. Before turning to that, it may be noted that, like Crook's Law and Life of Rome, it has received mixed reviews.^[7] Problems similar to those noticed by Spruit were evident: ancient historians sometimes did not fully appreciate the intri­cacies of the law and how it worked. Though invidious to single out any one contributor, it is nonetheless helpful here to indicate this by the example of David Cherry's paper “Gifts between husband and wife: the social origins of Roman law”. This basically speculative chapter not only promises far more than it can deliver, but is fundamentally misconceived, simply because the author does not realise that the main purpose of this rule was to prevent fraud. This is a point that our first-year law students instantly grasp. Paradoxi­cally, in Cherry's case, failure to understand the law in books results in failure to understand the social and economic purpose of the law.

The programme developed in Speculum luris can be inferred from the subtitle: Roman Law as a Reflection of Social and Economic Life in Antiquity. Scholars of Roman law have not traditionally approached their topic in this way, other than a few jejune remarks such as, for example, that the contents of the class of res mancipi reflect what was important in ancient agriculture, or that the development of contracts bonae fidei is somehow related to the economic expansion of Rome and the influx of foreigners. Given that the last significant ancient historian to have an impact on the study of Roman law was Theodor Mommsen, and indeed that, unconsciously or not, most scholars of Roman law very obviously still work within historical frameworks established by that great German scholar, the time is ripe for their reassessment.

If it is important for those who are specialists in ancient history and those who are specialists in Roman law to collaborate, debate with, and learn from each other, the present book makes a modest beginning. What is impor­tant is that it initiates and provokes debate over the Crookian approach, the gist of which is that in order to understand their purpose and efficacy legal rules should be examined in light of the society which produced them. This book does so by starting with a far-ranging chapter by Alan Watson, in which, taking into account the recent scholarship represented by Speculum luris, he presents his view that Roman law, once established, was further developed by the jurists with little regard for social and economic needs, and defends himself against the criticisms that his work has attracted.⁹ It must be remembered that Watson, as the distinguished pupil of David Daube, would

8 B Sirks, “Conclusion: some reflections”, in J-J Aubert and B Sirks (eds), Speculum luris: Roman Law as a Reflection of Social and Economic Life in Antiquity (2002) 169; J.-J. Aubert “Conclusion: a historian's point of view”, in J-J Aubert and B Sirks (eds), Speculum luris 182.

9 See, e.g., A Watson, The Spirit of Roman Law (1995).

always have agreed with the sentiments expressed by Daube in the quotation that serves as a motto for this book. In the rest of the volume both ancient historians and scholars of Roman law test and react to both Watson's position and the aim of seeing “Roman law as a reflection of social and economic life in antiquity”.

In such a collection of essays, general coverage is impossible. The present volume includes chapters within the following broad areas: provincial and customary law; law codes and codification; succession; commercial law; and civil and criminal procedure. These are of course rather legal classifications: alternatively, we can see discussions about divisions of power between centre and periphery, death and economic reality, dispute resolution, and commer­cial risk. The contributions do not group themselves around any particular period: like Watson's chapter, they range over much of Roman antiquity, if particularly from classical to late antiquity. This periodisation follows the primary interests traditional in British scholarship, whether of ancient historians or scholars of Roman law. Thus the chapters of Roger Rees and Harries are located in the current British concerns with late antiquity. Ernest Metzger's chapter on procedure is founded in lively debates, running power­fully through contemporary British scholarship, stimulated by the discovery and publication of the Lex Irnitana in the 1980s.^[8]

The chapters of Metzger and Meyer demonstrate the value of examining and re-examining the rare survival of legal documents from the Roman world. Metzger shows how the Murecine tablets permit fuller understanding of Roman procedure. Meyer's chapter on the Babatha archive allows us to see the penetration of the ways of Roman law into the periphery of the Empire, even among a group not likely to be sympathetic to Roman power. Andrew Lewis argues that a close reading of a letter of Pliny the Younger throws up insights, not only into the law on succession, but also legal practice in the area. Olivia Robinson's account of delators, based on legal and literary sources, illustrates how the development of imperial bureaucracy affected criminal procedure. Aubert's and Johnston's chapters focus on the economic aspects of law. While employing traditional Roman law scholarship, such as paying attention to the palingenesis of the texts, Aubert demonstrates how the law of jettison developed in relationship to locatio conductio. Johnston deals with the use of slaves in commerce and the protection measures open to the owner. Paul du Plessis considers why lease was heritable in law and practice. Kaius Tuori reminds the reader that scholars still rely considerably on nineteenth-century, often German, conceptions that now should be re­examined. Roman law not only has a history but a historiography.

As a whole, the chapters bring into focus what may be at issue in the debates over the value of considering the law in the light of social and economic practice. They suggest that, though there are undoubted differences of nuance and emphasis, there is not such a radical divide as is sometimes suggested. Rather, the absence of any meaningful collaboration between ancient histo­rians and scholars of Roman law has created a false division. Watson himself stresses that he realises the importance of context and social reality.¹¹ As the criticism of Crook suggests, what has often been dressed up as some sort of major scholarly dispute looks in fact rather more to be a tendency to identify mistakes as requiring condemnation of an entire enterprise. What this volume shows is that collaboration can produce useful results. Thus, study of legal documents such as the Murecine archive, or the lex Irnitana requires to take place against a background of law in books; the study of the law in books is also thereby enriched. But as with most joint ventures, there are perils. These can be summed up in Sirks' statement that one must be “aware of one's limita­tions in the other field” as “the main safeguard against mistakes”.¹² These are of course old debates, reaching back to at least the sixteenth century. For example, in 1823, the young French jurist Athanase Jourdan criticised the recent translation by Villemain of (the recently discovered) De republica of Cicero, in the form of a letter to David Irving, librarian of the Advocates Library in Edinburgh, because of the translator's ignorance of Roman law.¹³ Jourdan wished to emphasise to classicists, philologists and ancient historians that they neglected Roman law at their peril, just as jurists needed to be aware of history.¹⁴ The lesson is still apposite. The scholar of Roman law needs to maintain awareness of continuing and current research in ancient history and a willingness to move away from nineteenth-century, essentially German, conceptions of law. The ancient historian needs to respect law as a discipline, which may require detailed knowledge of rules, principles and concepts. The collaboration between law and history can thus produce fruitful results.

11 A Watson, “Law and Society”, below, 9.

12 Sirks, “Conclusion” (n 8) 179.

13 A Jourdan, “Lettre a M Irving sur la traduction de la Republique du Ciceron, par M Villemain” (1823) 5 Themis; ou bibliothegue du jurisconsulte 417.

14 On the context, see J W Cairns, “The influence of the German Historical School in nineteenth­century Edinburgh” (1994) 20 Syracuse Journal of International Law and Commerce 191, 194­199; J Bonnecasse, La Themis (1819-1831): Son fondateur, Athanasse Jourdan, 2nd edn (1914) 198-218; D R Kelley, Historians and the Law in Postrevolutionary France (1984) 85-92.