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Impearls: 2007-04-22 Archive

Earthdate 2007-04-28

Roman Law foibles in antiquity   by Paul Veyne

Disputants before a judge, over a broken oil amphora (Ostia, Archaeological Museum)

For its insights into antique society, we return to an old favorite read — Paul Veyne’s A History of Private Life: from Pagan Rome to Byzantium — on a topic different from “Sex in Antiquity” this time.  On this occasion, we’ll consider some peculiarities of Roman law and convention in antiquity, compared with what seems natural to us today. 1  (Then, too, one may also view Winston Churchill’s comments with regard to Roman vs. Common Law in the modern age.)

In normal times civil law accurately reflected Roman mores.  Law and morality were linked by an umbilical cord that was never really cut.  Although technically complex, Roman civil law was more verbal than conceptual, and scarcely deductive.  It afforded professional students plenty of opportunity to demonstrate their virtuosity.  Did it enable ordinary people to obtain justice, however?  Did it enforce respect for the rules when people violated them and oppressed their neighbors?  In a society as unequal and inegalitarian as the Roman, it is obvious that formal rights, however clear, had no reality, and that a weak man had little to gain by going to court against powerful enemies.  But even when the law was not simply violated, did it provide means of enforcing people’s rights?  One example will suffice, I think, to show that the public authorities did not so much supplant private vendettas as organize them.

Suppose I lend money to someone who decides not to pay me back.  Or, better still, suppose that all I own in the world is a small farm, to which I am attached because my ancestors lived there and the country is pleasant.  A powerful neighbor covets my property.  Leading an army of slaves, he invades my land, kills those of my slaves who try to defend me, beats me with clubs, drives me from my land, and seizes my farm.  What can I do?  A modern citizen might say, go to court (litis denuntiatio) to obtain justice and persuade the authorities to restore my property (manu militari).  And this was indeed what would have happened toward the end of antiquity, when provincial governors finally succeeded in imposing their idea of public coercion.  But in Italy in the first two centuries a.d. events would have taken a different turn.

For one thing, the aggression against me by my powerful neighbor would have been considered a strictly civil offense; it would not have been covered by a penal code.  It would have been up to me, as plaintiff, to see to it that the defendant appeared in court.  In other words, I would have had to snatch the defendant from the midst of his private army, arrest him, and hold him in chains in my private prison until the day of judgment.  Had this been beyond my power, the case could never have been heard (litis contestatio).  But suppose that I did manage to bring the defendant into court and, thanks to the intervention of a powerful man who had taken me on as client, succeeded in obtaining justice, meaning that the court declared the law to be on my side.  It then would have been up to me to enforce that judgment, if I could.  Was I obligated to recapture my ancestral farm by myself?  No.  By an inexplicable twist in the law, a judge could not sentence a defendant simply to restore what he had taken.  Leaving my farm to its fate, the judge would authorize me to seize my adversary’s chattels real and personal and sell them at auction, keeping a sum equal to the value placed on my farm by the court (aestimatio) and returning the surplus to my enemy.

Who would have considered recourse to a system of justice so little interested in punishing social transgressions?  Most likely two types of people.  When powerful, stubborn men quarreled over a piece of land, both parties wished to be judged to have the better case by the many Romans who followed trials in the courts because they found chicanery or legal eloquence to their taste.  Such men would have settled their dispute in the courts, as they might have settled it at other times in history in a duel before witnesses.  Or a creditor might bring suit against a debtor in default, who was scarcely in a position to put up a fight.  The creditor would already have seized the debtor, who might at first have attempted to hide.  Ulpian tells of one debtor who stayed away from the public market in order to avoid running into his creditor.  When he saw him, he quickly hid behind the columns of the courtyard or one of the many kiosks in the marketplace.  Recourse to the law was therefore just one of the many possible moves in the social game, and some people begged that it never be used against them  Juris consultis abesto, “No lawyers in this business!”

Apart from its strategic uses, the law formed part of the substance of the old Roman culture.  To have recourse to law, to make learned use of the ins and outs of civil law, was sophisticated behavior.  Consider the following example.  In theory, no Roman woman could take a case to court without a male representative (although this rule of law was honored mainly in the breach).  A non-Roman inhabitant of the Empire, a Greek or Egyptian woman, say, had even less right to take her case to court.  Yet the papyri tell us that many such women went to court anyway.  What was the rule?  We are obliged to admit that there was none.  And we discover, too, that many Roman women chose male representatives even though it was not strictly necessary.  Although there was no rule, there were elegant, or perhaps pedantic, ways of going about things.

Obscurely baffling, Roman law was marked by survivals of popular and private justice.  Even under the Empire it was not unusual to see justice meted out in the streets.  The simplest way to force a debtor to pay up was to surprise him at home and provide him with an “escort” (convicium).  The man was heaped with ridicule, and mocking songs were sung, with choruses demanding that the debt be paid.  The jurists required only that the debtor not be stripped naked and that the words of the songs not be obscene.  The sensibilities of the community, called to witness, had to be respected.  The debtor, for his part, sought to win the public’s pity.  He dressed in mourning garb and stopped cutting his hair as a sign of dereliction.

Fear of public opinion played a large role in private life, of which the public considered itself a legitimate judge.  In small towns anyone who braved public opinion was hounded and mocked.  He was seized, placed in a kind of hearse, and followed by a laughing and crying crowd of “mourners” before being allowed to escape.  Even the dead were insulted in this way if their wills did not meet with public approval.  Such greetings were also in store for stingy heirs who offended the crowd by not footing the bill for the gladiator fights expected when a notable died.  In one Ligurian town the plebs halted the funeral cortege of a former officer in the town square.  His family was able to take his body to the pyre only after promising to pay for a memorial spectacle.

The many, in other words, arrogated to themselves the right to judge the conduct of each individual.  Whether notable, plebian, or senator, no Roman was allowed an intimate life all his own.  Anyone could address anyone else and judge anyone else.  The least important citizen could address the “public,” which after all consisted of other citizens like himself.

UPDATE:  2007-07-10 11:30 UT:  Changed image hosting facility and re-hosted image after former site reported itself as being hacked and didn’t recover after a few days.

UPDATE:  2007-10-31 17:30 UT:  Changed image hosting facility again (to Flikr this time) after next host went down and stayed down for a few days.


1 Paul Veyne, “The Roman Empire,” Chapter 1 of From Pagan Rome to Byzantium, edited by Paul Veyne, translated by Arthur Goldhammer, volume I of A History of Private Life, the Belknap Press of Harvard University Press, Cambridge, Massachusetts, 1987; pp. 165-169.  Appreciation to the authors, book designers, and publishers for the image presented (p. 167).  Originally published as De l’Empire romain à l’an mil, volume I of Histoire de la vie Privée, Editions du Seuil, 1985.

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