B. ROMAN LAW AND THE PROVINCES

§ 179 In 1891 Ludwig Mitteis published a scholarly exposition of the position of Roman law in the eastern provinces of the Roman Empire, particularly during the period of the Principate.¹ He recognized that the preceding decades had afforded sufficient source material, in inscriptions, papyri, the Syrian-Roman Law Book, besides other legal and literary sources, to permit a determination, in the eastern provinces at least, how far the indigenous legal institutions - the peoples law (Volksrecht), or local law, perhaps the better term in English - were valid in Roman times.

19. Schulz, History 187 ff., 242 ff., 252 ff.

20. A full historiography of the concept by Riccobono, Jr., 'II problema del ius novum (extraordinarium) nella dottrina romanistica del secoto XIX e XX*, Cir. Gittr., as. 20 (1949) 162-96.

21. Dulckeit-Schwarz, Frezza, Kunkel.

22. Kaser, Jtom. Privatrecht 1 199 n.7, 209 and n.31: ‘The imperial law of the time of the Principate was dearly not termed ius novum' (translation of the author); cf. Guarino, Ordinamento 175-85, particularly 179 ff.

23. Grosso, Problems 79-82.

24. Seidl, Rechtsgeschichte 70; d’Ors. Derecho priv. rom 56, 136, 268; Gordon, Class. Aev.. n.s. 24(1974) 161 f.

I. Mittels, Reichsrecht und Volksrecht in den ostlichen Provinzendes romischen Kaiserreichs (1891).

§ 179 private law institutions in the local laws by a discussion of the reception of Greek legal institutions in the Hellenistic East?and an epoch-making treat­ment of the reception and integration of the Roman law into the individual local legal systems? Specific legal institutions, such as dowry, intestacy (in the Syrian-Roman Law Book), slavery and manumission, and the role of the written instrument (syngraphe), all of which in the local law differed drasti­cally from the analogous situations in the Roman law, were expounded - particularly as they affected the growth of the later Roman law-inthe major portion of the volume.^{[1271] [1272] [1273] [1274] [1275] [1276] [1277] This remarkable performance has stimulated research, in the decades that followed, into the interaction of Roman law and the legal systems of the subject peoples, and remains the foundation of endeavors in the field to this day?}

Among later notable contributions are those of Schonbauer, one of which expounded the concept of‘Provincial law’ as a complement to Empire law and Local law? The term serves to designate the measures directed to a single province or to a particular segment of the population therein, by legislative or administrative enactments through imperial rescripts or gov­ernors edicts?

The policy of the central government with respect to the provinces from the earliest days of the Principate was in sharp contrast to that practiced during the republic; instead of exploitation approaching pillage, the Empire substituted fiscal measures which to a considerable extent redounded to the benefit of the province, e.g..

was fully respected. In an extended presentation, Modrzejewski has empha­sized the continuity of legal institutions in Egypt from Ptolemaic times through the period of Roman rule, giving way only to the recognized super­iority of Roman transactions, or to occasional modifications by legislative fiat.* The same is true for local laws throughout the eastern provinces. In a recent survey Volterra has called attention to the fact that discoveries of papyrus documents at Murabba’at reveal that the local law in the province of Palestine persisted well into the era of Roman rule, and bears resemblance to doctrines set forth in the Talmud.^{[1278] [1279] [1280]}

Empire law, in contrast to provincial law, signifies the Roman law appli­cable, first of all, to the Roman citizens resident in the provinces.¹¹ An instruction-book for the finance officer of the imperial fisc in Egypt, the so- called Gnomon of the Idios Logos, contains a number of provisions which reflect Roman law, if not always an exact replica thereof.^{[1281] [1282] Members of communities or individuals among the subject peoples who were granted Roman citizenship were - to an extent disputed by scholars - also afforded the opportunity of utilizing Roman legal institutions. ” In addition, the high courts in the provinces were wont to express their decisions in the frame­work of the Roman law.[1283] [1284] That the imperial bureaus, in directing answers to petitioners who were non-Romans, likewiseemployed principles of Roman law is manifestly apparent from a number of the apokrimata (imperial deci­sions) set forth in a Columbia papyrus (P.}

The provincial law, the law directed to a single province or number of provinces,^[1285] or to specific groups therein, is among the most interesting developments in the law of the provinces. For Egypt we have a survey by Kupiszewski of a series of institutions developed by the provincial law, such as registration of property, long term prescriptive rights, priority claims of the fisc, or of a surviving wife to the dowry against the fisc.” The last- named right, for instance, stems from an edict of the governor Tiberius lulius Alexander;¹* in fact, many of the provisions of provincial law derive from the edicts of the provincial governors. Whether the decisions of the higher provincial courts contribute to what may be considered provincial law is a matter of dispute,^{[1286] [1287] [1288] [1289] [1290] [1291] [1292] [1293] [1294] It has been pointed out by Modrzejewski that at times provincial legal norms attempted to introduce rules conformable to solutions properly Roman into the provinces?0 Thus, imperial constitu­tions directed to Egypt confirm the privileges of veterans, grant restitution to status quo to minors, etc. But the governor of Egypt and other high officials of the province can, at other times, give official (and thus Roman) sanction to norms of the local law by their judicial and administrative decisions?'}

From the point of view of the Romanist the question of prime interest is to what extent the Roman law penetrated into the local law of the prov­inces during the period of the Principate. The answer for the western, Latin speaking provinces appears relatively simple, though the evidence is sparse. These provinces were to a large extent settled by Roman colonists who brought Roman law with them, and the legal systems in force in pre­Roman times do not seem to have had the strength to resist the superiority of the Roman law?¹ Polay, for example, has revealed how doctrines of the Roman ius civile, such as mancipatio (formal transfer of property), and provisions of the edict of the ediles penetrated into the legal practice in Dacia, and not as empire law, but conceived as local law.“ The situation was quite different in the provinces of the east where the local legal systems were firmly entrenched when Rome took over?⁴ Romanization of the law did occur, as indicated above, by reason of the decisions of Roman courts in the provinces, by edicts of the governors, and by rescripts issued by the imperial bureaus.” During the first two centuries of the Principate the

Romanization of the local law was also in great part due to the voluntary reception of Roman legal institutions, including documentary forms, on the part of notaries, local jurists and even lower local courts, by reason of the recognition of the superiority of the Roman law.²⁴ In time Roman forms and institutions became commonplace throughout the Empire.