“PUBLIC” CODES AND “PRIVATE” SYSTEMS

Tidy as the distinction between public/official on the one hand and private/ unofficial on the other may appear, it has limited usefulness, because it fails to take account of the importance of auctoritas as a means by which private individuals could direct public policy.

And what are we to make of the “official” status, or not, of the Codes of Gregorius and Hermogenian (see Roger Rees' chapter in this volume) of respectively AD 292 and 295? The latter passed through several later editions and was “continued” well into the fourth century, because it was an authori­tative point of reference, and its status was recognised, in retrospect, by the authors of the Theodosian Code, whose project was set out “to resemble” the earlier compilation^[179]. The “official” status of the CG and CH is unknown, and that may be for very good reason. Perhaps we are asking the wrong question, and our assumptions on “public” versus “private” may be as unhelpful as our proposed contrast between official and otherwise.

When Alan Watson writes elsewhere in this volume that the Roman jurists “drew a remarkably sharp distinction between private law and public law”,^[180] the question of the application of this insight to Roman legal culture in general is worth a pause. For if the Romans blurred the public/private distinction in common discourse, while the jurists rigorously maintained it, Watson's case for legal isolationism, advanced by him consistently over many years, would receive a further boost. However, Roman perceptions of public and private were in many respects distinctive; forensic rhetoric, for example, tied private character to public behaviour; and the houses of the rich were designed as little law courts or places of business as well as private dwellings. Might the Romans' understanding of the “public” and “private” in law also be peculiar to them?

Early in the third century AD, Ulpian's Institutes^[181] declared the existence of two categories of law: the “public”, which applied to religious law and the res publica, and the “private”, which concerned the affairs of individuals and could be considered under the headings of natural law, the ius gentium and the ius civile. The problem, potentially, for Watson's case is that Ulpian and the “classical jurists” were writing under the Roman Empire. Even if the difference between public and private law (in our terms) could be clearly understood in the early third century, the distinction may not always have been observed in the same terms. If it was not, then we may also see highlighted a problem posed by codification for all historians of law, the imposing, in retrospect, of ways of thought and systems applicable at the time of writing but not earlier.

One area, where Ulpian's public/private distinction is problematic, when applied anachronistically, is family law, specifically the laws of succession, testaments and adoption, and its Republican context in (public) religious law.

The law of succession is usually assumed to be part of “private” law; certainly the jurists of all periods had a lot to say about it and the wording of wills was a favourite topic among the Republican jurists and their successors. However, under the Republic, the familia and its sacra had a public dimension, and the law applying to certain parts of its activities was under the direction of the (public) religious authority of the pontifices. As Cicero claimed, adjusting pontifical law to the ius civile was both hard and contentious. In his view, the Scaevolae, by over-complicating matters, damaged both pontifical law and the organisation of funeral arrangements (to be conducted by the new holder of the family sacra).¹⁹ In their religious context, wills could require public sanction, and as late as the third century AD Papinian stated that wills were part of public law;²⁰ guardianships also were a “public” duty. In addition, all adrogationes, because they affected familia continuity, were scrutinised by the Pontifex Maximus and submitted for approval to an assembly convened for the purpose, the comitia curiata.

In the late Republic, the boundary between public and “private” was porous in other respects. Procedures we might define as private, such as those applied to delicts, entailing penal compensation, were translated into the setting up of the first standing public quaestio, established by the lex Calpurnia de repetundis in 149 BC.²¹ As the res publica was reshaped by the principate of Augustus and his successors, the meaning of “public” also changed. The praetorian quaestiones, initially courts of investigation, which supplemented the popular courts (iudicia populi), were quietly transformed into the publica iudicia of Augustus and after, and the ancient iudicia populi ceased to be, along with the popular legislative and electoral assemblies. And when Augustus took over the title of Pontifex Maximus on the death of the previous holder of the office in 12 BC, the process of subsuming religious law under the responsibilities of the imperial legislator was well under way; adrogatio, once under the control of the Pontifex Maximus, is, in the Digest, an alternative form of adoption to be scrutinised by the “courts”.²² The terminological and conceptual sleights of hand involved and connived at by

18 Cf Aulus Gellius, Noctes Atticae 5.19.6.

19 Cicero, De legibus 2.47-2.49, 2.52-2.53

20 D 28.3.1 (Papinian, Definitions 1).

21 J S Richardson, “The purpose of the lex Calpurnia de Repetundis” (1987) 77 JRS 1.

22 D 1.1.7 (Papinian, Definition 2).

not only Augustus but, one suspects, the elite in general is a silent testament to the exercise of aristocratic self-interest at the expense of both popular and religious traditions.

Thus far it is clear that to define codification in a “real sense” is more problematic than might appear. Law codes had authority, but not necessarily that of the state; it could derive from the personal auctoritas of the codifier, his circumstances, and the context in which the code emerged. It was also possible for “codes” to be created in retrospect. The content of codes was not confined to statutes, but to any authoritative collection of legal pronounce­ments, including the interpretations of the jurists, whose auctoritas was renewed over the centuries through their citation in the courts. And just as the concept of auctoritas bridged the public and private domain, so too the public and private dimensions of law were less easily separated in the time of Cicero and Augustus than might appear from the tidy categories favoured by classical jurisprudence and the codifications of Late Antiquity.

D.