THE IMPORTANCE OF LAW

To turn to the specific theme of this volume. In 1996 there was a panel meeting of the American Philological Association that resulted in a book, Speculum luris (Ann Arbor 2002) edited by Jean-Jacques Aubert and Boudewijn Sirks.

Heroes of the book are John A Crook's Law and Life of Rome, 90 bc-ad 212 (1967) and David Johnston's Roman Law in Context (1999).^[45] But Crook's book evoked little enthusiasm from Roman law scholars precisely because his account of the legal rules is often just erroneous. Johnston's first paragraph reads:

To begin with what is not in this book may seem odd; but it will otherwise remain unknown until the end, which seems unsatisfactory. This is not a comprehensive account of Roman law, or even of Roman law in its social setting. It is highly selec­tive. There is nothing here about criminal law, and next to nothing about public or constitutional law. The focus is on the so-called classical period of Roman law, from about the end of the Roman republic in 31 BC until the death of the emperor Severus Alexander in AD 235.

But why this focus? Why nothing about criminal law? Why next to nothing about public or constitutional law? Why nothing about post-classical law? Are we facing only a quirk of Johnston's or is more going on? More is going on, and that should have given Johnston pause in writing a book entitled Roman Law in Context. And it should make readers think. And Johnston's account is not, as he believes and would have us believe, highly selective. Rome had criminal law, and administrative and constitutional law. But criminal law appears in Justinian's Institutes only in the final title of the final book (4.18) and in the Digest only in books 47 in part, 48 and 49. And administrative and constitutional law appear almost not at all. And Gaius' Institutes has nothing at all on these subjects. We deserve an answer to my questions if we are to discuss Roman law in context, or even any law in context. The answer is blindingly simple and extremely uncomfortable. The Roman Twelve Tables of the mid-fifth century BC contain almost no criminal law and no public law. This for political reasons particular to conditions of the time. And interpre­tation - only interpretation - was granted to the College of Pontiffs, whose direct successors were the great jurists. Hence, the dominant interest of the jurists in interpretation of private law, scarcely any in criminal law, even less in administrative or constitutional law. The starting-point was law in context, the finish-line was not so. The Roman jurists stopped writing around AD 235. Hence no post-classical law in the Digest. My point, often made but almost as often ignored, is not that the jurists were unaware of social reality. Of course they were; almost all were socially prominent and some were top imperial bureaucrats. But they had a style of interpretation that was inward-looking and not too geared to social engineering. Michael Peachin writes: “Clearly there were also times when this or that jurist produced a legal argument simply for the sake of its own elegantia.

(1) Senatus consultum Silanianum

My example here of law as the culture of the lawmakers can be chosen from the Roman juristic response to the decree of the senate known as senatus consultum Silanianum of AD 10. The senatus consultum provided inter alia that if an owner (dominus) was murdered, all the slaves who lived under his roof were to be questioned under torture and then executed; the opening of the will and acceptance of the inheritance were forbidden before the torturing and execution of the slaves (lest the slaves had become free as a result of being manumitted by the will); and a slave who revealed the killer of his master acquired his freedom by decree of the praetor.^[47] The jurist Ulpian explains the rationale: “Since otherwise no home can be safe unless slaves at the risk of their own lives are compelled to guard their masters both from members of their household and from outsiders.”^[48] The measure is harsh, but it is a brilliant legal solution to a fear that must bedevil all slave­owning societies. Yet, for individuals in the slave-owning class there could be drawbacks, however, if they were heirs to the murder victim and hence would be deprived of their new slaves or if their right in the slaves was less than full ownership.

In the present context the issue is the juristic response. It is horrifying that the jurists treat the senatus consultum with everyday interpretation, like any innocuous law, sometimes to further the purpose of the senatus consultum, sometimes according to standards fixed in other contexts and with no apparent concern for the purpose of the senatus consultum. It is this, juris- tically blinkered, second approach that is interesting as an example of law as legal culture. Thus, if there is a usufruct, life rent, in slaves and the owner is killed, the slaves are tortured and executed;^[49] if it is the usufructuary who is killed, the slaves are not tortured or executed.^[50] This second decision would seem to defeat the purpose of the senatus consultum because the issue is the usufructuary who is murdered in his own home and the slaves are resident with him. He deserves protection as much as the owner, but his right to the slaves is not ownership so he gets no protection. Nor should one feel that the usufructuary's economic interest in the slaves would be less than that of the bare owner; much would depend on the respective ages of usufructuary and owner and on the ages of the slaves.

Similarly, a slave under the control of a bona fide possessor will not be executed. But a possessor in good faith is someone who received the slave thinking in good faith that he was receiving ownership. Again, if a son under paternal power is killed, he is to be considered (for this purpose) as the dominus.^ss If he has been freed from paternal power, Marcellus is doubtful but Ulpian thinks he ought to be treated as dominus,^{[51] [52] but not if he had been given in adoption.[53] Likewise, the senatus consultum does not apply if the murdered person was a foster child.[54] But in all these instances the killing would have occurred in the home of the paterfamilias, the head of the family (so there was no breach of affection between, say, father and the grown-up son given in adoption).}

If a disinherited son was murdered before the inheritance of his father was accepted [i.e., under the will], the case is to be looked at according to how the facts turned out, so that if the inheritance was accepted the slaves are considered as if they belonged to someone else; but if the will has been voided, because they would have been his [i.e. the son's] if he had lived, everything is done as if he were owner.

In Roman law, an heir under a will who was neither a slave of the deceased nor a free person in the deceased's power who became sui iuris on his death became owner of the inheritance only when he made a formal acceptance. If he refused to accept the inheritance, the will was voided and the inheritance descended according to the rules of intestate succession. If there was intes­tacy or a will and the nearest heir was a direct descendant of the deceased who became sui iuris, such as a son, he became heir at the moment of death (unless he abstained from the estate).

In the case decided by Paul a father died leaving a will in which he appointed an outsider to the family as heir and disinherited his son. Then the son was murdered, apparently in the paternal home. What was to happen to the slaves? Paul's opinion was that one should adopt a wait and see approach. If the heir under the will accepted the inheritance, nothing was to happen to the slaves. Their ownership was in suspense between the testator's death and the acceptance of the inheritance. If the testamentary heir refused the inheritance, the will failed, the disinherited son would be regarded as heir on intestacy from the moment of the father's death, and the slaves would be treated as if they were his from that time and hence at the moment of his murder.

As a final instance of the power of juristic thinking, remote from other concerns, on this senatus consultum we should note that its context in the edict was the law of succession. With other topics it was placed under the general rubric “Those whose testaments are not opened”, and there it was sandwiched between “If someone, having been passed over in a will, possesses an inheritance on intestacy” and “Legacies”.^[55] In Justinian's Digest, the relevant book 29.5, is headed “Senatus consultum Silanianum and Claudi­anum: Those whose testaments are not opened” and lies between 29.4 “If someone having passed over a will possesses an inheritance on intestacy or in some other way” and 29.6 “If someone has prohibited anyone from making a will or compelled him to”.

But reality could intrude. Thus, child slaves were not put to death (D 29.5.1.32), nor were slaves whose owner was killed by the spouse in the bedroom (D 29.5.3.2). Still, even when reality was emphasised by the public, law could still be law. Tacitus records^[56] that when a slave killed his owner, the prefect of the city, either when the slave was refused his freedom after he had paid the agreed price or because his owner was his rival in love, the populace rioted against the execution of the four hundred slaves who lived in the household. The famous jurist, Cassius, argued successfully in the senate in favour of the executions.

There are several lessons to be drawn from the senatus consultum Silanianum even taken by itself.

First, law can survive for a very long time in very different social circum­stances. A rule of pagan Rome in AD 10 was still the law in Christian Constan­tinople in AD 533.

Secondly, in particular circumstances legal culture may dominate inter­pretation of the law despite social realities. The law is the law. Yet social circumstances are not always excluded.

Thirdly, cruelty is not always absent from the law.

Fourthly, legislators are often not interested in law reform. Once the senatus consultum was introduced it was not altered by governmental inter­vention. Its scope was determined by juristic interpretation, and the jurists played by their own “rules of the game”.

Fifthly, for what it is worth, the senatus consultum Silanianum was not accepted in any part of the Americas, and was the only institution of Roman slave law to have no impact. Abhorrence of cruelty is not the explanation. Slaves in America could be very cruelly treated, even in accordance with the law and common custom, especially in Spanish and Portuguese colonies and in Dutch Surinam.^[57] Were social and economic circumstances in this respect in America so very different from ancient Rome and Orthodox Christian Byzantium?

(2) The concerns of the jurists

To turn to a very different issue. In Speculum Iuris we are told on page v:

Legal scholars in the early twentieth century spent much energy hunting for inter­polations and found far too many. Nowadays, the trend in Roman law studies has swung back from a hypercritical approach to a more nuanced one, whereby the substance of legal texts, if not their form, is considered genuine unless proved otherwise with overwhelming arguments or evidence.^[58]

I happily agree since I myself have argued that in Justinian's Digest inter­polations as to substance are restricted to a small number of easily recogni­sable categories.^[59] The Preface reasonably continues: “... legal scholars can capitalize on the thus restored trust in the texts to reconstruct classical and postclassical law”. Quite so. But here my problems begin in understanding approaches to issues of law in context, and not just for Roman law.

Let us agree that classical texts in Justinian's Digest tell us what the law was in the era before jurists stopped writing law books around AD 235. But did this law actually operate and how? How far did it reflect the values of society or of any part of it? If the idea of law in context is valuable - and I firmly believe it is - then how are we to explain the continuance of this law of the pagan Roman Empire up to the third century in the Christian Byzan­tium of the sixth century? The Empire had undergone great economic and political changes, the hub of Empire had moved from Latin Rome to Greek Constantinople, and religious attitudes were vastly different. Was law still in context? Of course, it may be argued that the law was still in context; only the Digest gave only a partial view of the law. But then, if much of the substance has been excised, how can we recover the context?

A first part of the problem is that the Roman jurists do not seem much interested in recording when and why particular rules were introduced. Thus, to begin with two examples discussed in Speculum Iuris:

1. Sulla's lex Cornelia sumptuaria of 82-81 BC fixed the maximum price at which luxury goods could be sold. But why? Jurists give no explanation. Macrobius, Saturnalia 3.17.11 and Plutarch, Sulla 35.3 give explanations similar to one another but leave modern scholars very puzzled.^[60]

2. Moribus, “by custom”, gifts were forbidden between husband and wife. The rule emerged in the late Republic but the date when it appeared cannot be established though it cannot be earlier than 204 BC.^[61] The rule was much discussed by the jurists and limitations on it were imposed. Modern scholars proffer various explanations of its origins, but none has won approval.

To continue with a few examples not discussed in Speculum Iuris.

3. The lex Aquilia is the most important private law statute after the Twelve Tables. Chapter One provided that if a slave or four-footed herd animal was wrongfully killed the killer had to pay the owner the highest value the slave or animal had had in the previous year. Chapter Three dealt with the wounding of slaves and these animals and with the destruction or injury to other animals and inanimate objects with damages or penalty somehow connected with thirty days. But what was the rationale of the statute's systems of recom­pense? When was the statute introduced? Was it passed in one stage or in two (or more)? Why is Chapter Two on an unimportant point of contract law sandwiched in between? None of the questions, not one, with a minor exception, is attended to in the juristic texts in Justinian's Digest or in Gaius' Institutes. There is complete silence which must reflect a lack of interest on the part of the jurists. How is one to set this most important law in context except for the banal point that somehow owners are to be recompensed for wrongful injury to their property? The only clue - with one minor excep­tion, and it is outside of literary sources and of the Corpus luris Civilis - is in Theophilus' Paraphrasis 4.3.15. The minor exception is from Ulpian in D 9.2.1.1: “This lex Aquilia is a plebiscite because its enactment by the plebs was procured by Aquilius, tribune of the plebs.” Ulpian is confirmed in J Inst 4.3.15. Thus, we know that the lex Aquilia was relatively early. Theophilus takes us one step further and tells us that the law was passed at a time of dissension between the patricians and plebeians. Dissension is usually taken as secession - not necessarily correct - and the law is dated around 287 BC by most but not by all scholars. We need not at this point be more precise. What matters is our lack of information from the jurists. Was the killing, etc of slaves and herd animals an issue of the plebeians against the patricians? Had the struggle lasted for a year? Or, as has been suggested, is Theophilus' refer­ence to dissension simply a mistake? In the present context I do not want to investigate the solutions proffered (though elsewhere I have expressed my own).

(3) Christianity in the Corpus luris Civilis

To end this part on a very different note. We all know that early Byzantium was a hotbed of Christian debate. How is religion treated in the Corpus luris Civilis?

Justinian's empire was a hotbed of debate on Christian theology.^[62] But the Roman jurists were all pagans. Justinian did not add to their texts. The result is that in the body of the Digest there is not a single reference to Jesus or to his apostles or saints. No legal arguments are drawn from the Bible or from fathers of the church.

Just as significant, there are only eight texts that contain the word deus, “god”. The texts are survivors. They once referred to “a god”, some pagan deity, now to “the God” of the Christians. The texts reveal nothing of the characteristics of pagan religion or of Christianity. They exist only because they are so antiseptic.

Prime examples of this can be chosen from judicial oaths, which were a device to shorten lawsuits. At any point one party to a dispute could tender an oath to the other on a disputed matter. If that party swore the oath, the issue was regarded as settled in his favour. If he refused, the issue was settled against him. The oath would state by whom or through whom or by what it was sworn. Normally the oath would be sworn by a god, though this is not often expressed in the texts in the relevant Digest title, 12.2.^[63] One text, however, does mention swearing on the spirit of the emperor (per genium principis),^[64] and two mention swearing by a god (or God). One of these, D 12.2.33, may thus be translated: “One who swears by his own personal safety [per salutem suam], although he is regarded as swearing by a god (for he thus swears with regard to a divine spirit) is nonetheless not regarded as having sworn if the oath was not tendered to him in these express terms. Hence it is necessary to swear from the beginning in solemn form.” I have translated the text as would be appropriate for its original author, the pagan jurist Ulpian. The notion Salus was personified as the deity of public safety, or the safety of the emperor, and every individual would have his or her own protective spirit of “safety”. The legal issue in the text is that if the person to whom the oath is put swears “per salutem suam”, and if that wording does not correspond to the form in which the oath was put to him, then even though he was swearing by a divinity, the oath was void. The judicial oath must be sworn in the form in which it is proffered.^[65] The text is retained precisely because in the Christian world it would have a new meaning, demanding a different translation: “One who swears by his own salvation, although he is regarded as swearing by God (for he thus swears with regard to the divine spirit).”

Other texts more clearly betray their pagan origin but can be understood in a Christian way. Thus D 24.1.5.12:

So even if a husband gives to his wife as an offering to a god [ad oblationem dei] or land on which she had promised to erect a public building or dedicate a public temple [aedem publicam] the land will become sacred. But even if he gives something to her that the gift be given to a god or be consecrated, there is no doubt that it ought to be valid. Therefore if he placed oil on her behalf in a sacred temple, the gift is valid.

The background of this text of Ulpian is that gifts between husband and wife were in general void. Ulpian allows gifts by a husband to be valid as excep­tions where the purpose is for the wife to use them as a religious offering.

Only one more text of Ulpian, D 48.13.7(6), need be quoted in this connec­tion:

The proconsul ought to impose the penalty for sacrilege more severely or more mildly depending on the quality of the person, on the nature of the property and the time, and on the age or sex. I know indeed that many have been condemned to the wild beasts for sacrilege, some even burned alive, others hanged on the cross. But the penalty should be tempered to restrict condemnation to the beasts to those who formed a gang and broke into a temple and took away by night offer­ings to a god.⁷⁰

It is very obvious that texts treated in this way, wrenched out of their context, assigned a different meaning, can give us little indication of the importance of Christianity in early Byzantium, of the status of leading clerics, and of the violence of schisms. But the present text itself could be of enormous impor­tance - not obvious on its face and perhaps not intended - because of the hatred of heretics. The behaviour of heretics, even of leading ecclesiastics, could readily be construed as sacrilege.

To come now to Christianity in Justinian's Institutes. In the body of the work there is no Jesus. There is no mention of apostles, saints or fathers of the church. The word deus, god, appears once only with no indication of whether this is the Christian God or a pagan deity. The text on criminal law, J Inst 4.18.12, concludes the work:

But this we have set forth on criminal legal actions that it may be possible for you to touch them with your fingertip, and as if through an index finger. The knowl­edge of these matters will come to you otherwise more carefully from the fuller books of the Digest or Pandects, god willing.

Thus, for Byzantine first-year law students of the Institutes, no Christianity; for second, third and fourth-year students of the Digest likewise no Christianity. For the fifth-year students of the Code some Christianity. But there is a twist. The first four years of study were compulsory, the fifth year was an optional extra. Anyway, by the fifth year of study law students' minds are fixed.

To understand the relationship between law in books and law in society we must know the nature of the law in books that has come down to us.

G.