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3. C.

Ando, Imperial Ideology and Provincial Loyalty in the Roman


Empire (Berkeley 2000), 2.
Bryn Mawr Classical Review 2000.04.03

David Johnston, Roman Law in Context. Cambridge: Cambridge
University Press, 1999. Pp. ix, 153. ISBN 0-521-63046-0
(hb). $54.95 (hb). ISBN 0-521-63961-1 (pb). $19.95 (pb).

Clifford Ando, Law, Language, and Empire in the Roman Tradition.
Empire and After. Philadelphia: University of Pennsylvania Press,
2011. Pp. xi, 168. ISBN 9780812243543. $49.95 (hb, ebook).

Reviewed by James T. Chlup, University of Durham
(J.T.Chlup@durham.ac.uk)
Word count: 2126 words
The last year has been good to those of us interested in Roman law, with three
volumes coming from Cambridge University Press alone. The first two were
Peter Stein's Roman Law in European History and Jill Harries' Law and Empire
in Late Antiquity. The third is this book from David Johnston (hereafter J.).
Each volume is remarkably different in terms of its approach to the law of
ancient Rome, which says something about the fertile nature of this branch of
classical studies. I confess that I was at first more intrigued by this work, trying
to work out what exactly the author means by Roman law 'in context'.
Fortunately, the meaning is spelt out for us right away in the book's preface:
'this book attempts to look at Roman law in its social and economic context'. J.'s
starting point is John Crook's Law and Life of Rome (London, 1967), a similar
treatment of the law published over thirty years before, although J. claims to be
examining the issue from the other side (ix). The author provides a justification
for returning to this topic: 'in the last thirty years there have been extraordinary
finds of new evidence, especially inscriptions, and there have been remarkable
developments in Roman social economic history' (ix). It is a fair argument with
the recent important research into Roman society and the Roman economy
(including Jean Andreau'sBanking and Business in the Roman
World [Cambridge, 1999] which was also published in the last year and appears
in the same series). Moreover, in a sense J. has been down this path before, as
his blurb on his The Roman Law of Trusts (Oxford, 1988) in the bibliography
reveals.
Before looking at J's argument, we need to understand the 'context' of this book.
It is the latest volume in Cambridge University Press' 'Key Themes in Ancient
History' series, which declares its aims as follows: 'to provide readable,
informed and original studies of various basic topics, designated in the first
instance for students and teachers of Classics and Ancient History, but also for
those engaged in related disciplines'. This tells us the general approach that we
must take towards this volume: to read it as an exposition of an inquiry that in
this case would appeal both to Classicists and those in law (although J. seems to
prefer the former over the latter, and a specific subgroup at that: 'the book is
aimed at historians rather than lawyers' [ix]). With Roman law, this seems to be
a most difficult task to achieve, but to his credit J., in his introduction, works
within these boundaries by confessing the limitations of his project (1).
Any person's first taste of Roman law can be very daunting, and the author
understands the importance of not throwing the reader into the deep end of
Roman legal scholarship, with warnings provided when the author believes the
argument may become complicated - on ownership, for example (53). As an aid
to the reader, then, and in keeping with the traditions of the series, it contains
both a glossary of legal terms (137-39) and a bibliographic essay (140-45) that
is both thorough and extremely up-to-date. In the latter I found only one
unexpected omission: for the epilogue, I was surprised not to find Olivia
Robinson et al., European Legal History (London, 2nd. ed., 1994), which I
would have thought would be of use to this book's intended readership. Instead
J. cites Stein's volume (which I mention above), which works well with this
volume, and Franz Wieacker's A History of Private Law in Europe (Oxford,
1995), which is perhaps a little too advanced for this book's audience. To his
credit the author does give a caveat of sorts by introducing it and two other like-
minded works as 'rich and fascinating, detailed accounts' (145). The clarity of
the writing is excellent and permits the reader to proceed through the text at a
reasonable speed, even when the author comes to complicated issues (for
example, interpolations [17-21]). Further, the reader has no opportunity to trip
himself up over a surfeit of footnotes, an all too familiar and often lamentable
habit of Roman legal scholarship. When a fuller discussion is available
elsewhere, J. is happy to direct the reader to the relevant work. Likewise,
references to ancient legal texts are present but they are controlled nicely to
avoid disrupting the book's flow of thought. When introducing legal concepts, J.
first employs the term in English, followed by the Latin in parentheses. Finally,
as an illustrative tool, J. on occasion points out the differences between Roman
and modern (that is, English Common) law (i.e., his comments on divorce [36]
and remedies against neighbours [71]). These references are useful in
highlighting the noticeable difference between the two legal cultures, and they
are not used too often so as to disrupt the book's flow of thought.
Now to the book itself. First, there is the structure of the work, which J. divides
into three parts: (i) the 'sources' of Roman law (chs. 1 and 2); (ii) the main
aspects of the branches of Roman law that come under his topic (chs. 3, 4, and
5) (see below for my view on this selection); and (iii) litigation (ch. 6). In the
first section, which covers two chapters, one on sources of law and another on
'sources and methodology', J. rapidly takes the reader through the basic
information required from statutes to jurists to codes to Justinianic sources. In
the process he covers in only twenty-eight pages what others have taken a book
to do. Here he demonstrates his ability to guide the reader through difficult legal
problems, in particular interpolation (17-21).
The key to demonstrating the success of the book is how effectively it treats
Roman law in its social and economic 'context'. As an initial example, take his
section on divorce. J. begins by explaining the legal position of marriage and
divorce: 'the Roman notion of marriage was that of a continuing contract
entered into by consent; the corollary was that when consent came to an end, so
did the marriage' (35). This is then followed by a discussion of divorce's social
aspects with the relevant legal points mentioned (36). As a way of varying the
argument, sometimes he approaches a topic from the social end first, discussing
society first followed by the relevant legal matters, such as his section on tutors
(37-40).
With the chapter on 'Property' (53-76), the two strands of the author's
investigation come together nicely, for this branch of the law has both a social
context (land, for example, where people live), and an economic context (the
exploitation of it). Especially noteworthy here is J.'s discussion of neighbours
and legal remedies against them, seen as part of the problems of urban life, with
Seneca's well-known letter about the disturbance from the bath-house below his
residence used an example (71). He then goes through the legal options that
Roman law affords (71-76).
The fifth chapter, the final one on the substantive law, 'Commerce' (77-111), is
the longest in the volume, as the author explains in his preface: 'partly because
of its intrinsic interest and because it (unlike family law) has apparently not yet
been much absorbed into the consciousness of historians' (ix). This chapter, I
feel, is the strongest, mainly because the greater length means J. has time to dig
a little deeper and he has the opportunity of building upon some of the work that
he has done previously in this particular area.1 As I stated previously, the book
is very thorough given its scope, as this chapter makes clear with sections
dealing with varied topics such as types of contracts, the notion of 'sale', lending
and borrowing, contracts of service, organisation of business, and insolvency.
Yet, despite this increased length and depth, the author is still mindful of his
readership, for the chapter begins with a good explanation of the nature of both
formal and informal contracts (77-79). With this chapter, J. (just as he does in
his article cited above) seeks to demonstrate through the richness of contract law
that the Roman economy was more sophisticated than previously believed. As
an example, take what he says about sale: 'the emergence of the consensual
contract of sale (emptio venditio) was a critical moment in the history of Roman
commerce' (79). As Roman law develops, so does the sophistication of the
economy, and vice versa. Thus with an assessment such as this, J. shows the
vital importance of looking at the law in its social and economic context and, for
example, it nicely complements Andreau's recent book, which I mention above.
After reaching the end of J.'s discussion on the substantive law, I could not help
but wish that he had gone on to talk about Roman criminal law in some way.
Although this would have brought private and public law into the same work,
something that is usually avoided, given the author's desire to talk about the
social and economical context of the law, this feels like an opportunity missed.
Crime and the people who commit crimes have a definite and sizeable impact
on society. A discussion of the legal aspects of it would have tied in with some
of the issues raised in Wilfried Nippel, Public Order in Ancient
Rome (Cambridge, 1995) in the same series as J.'s book, and Andrew Lintott's
re-release of his classic Violence in Republican Rome (Oxford, 2nd. ed., 1999).
The book concludes with a chapter on what we call the law in action, 'Litigation'
(112-132). Immediately he points out the primary problem here, that litigation is
important since having rights is one thing, enforcing them is quite another (112).
Again, the social context of the law comes through. Take for example his
treatment of 'Representation in court' (129-130). He draws attention to the
differences between ancient and modern once again, that it is not so much a
simple question of money (as is needed to fight modern day libel cases, for
instance), but one of how Roman society operated. With fees for neither
advocate nor jurist, the patron-client relationship that was such a powerful
feature of Roman culture comes into play, as J. notes: 'litigation meant
undertaking social obligations, which might be called upon in the future; it
meant entering upon the network of patron and client relationships' (130). It
would have been exciting had the author gone further with this point, but the
limitations of space obviously directed otherwise.
Finally, there is the epilogue of the book (133-36), where J. rapidly takes the
reader through the post-Roman life of Roman law. At first this may seem at
odds with a book that seeks to see Roman law through a specific and narrow
'context' (especially as J. defines his temporal span at the outset of the book as
31 BC to AD 235). But as we often see, it is something that legal scholars
acknowledge they must do. As another recent example, see Andrew Lintott's
final chapter in The Constitution of the Roman Republic (Oxford, 1999). The
law of Rome has, in fact, two lives: one firmly entrenched in the Roman world,
and another travelling and changing through European history (and where this
journey ends is presently up for debate). Scholars identify concentric circles,
geographical and temporal, leading out from Rome: the Enlightenment, the rise
of the nation state (mainly German), codification, and possibly ending with
European Union Law. All Roman legal scholars (J. included) understand this
and therefore he seeks to give the reader a glimpse of it. That Roman law should
have a post-Roman life may seem strange to a reader first approaching the
subject, and J. appreciates this: 'it may seem paradoxical that law developed for
the needs of a specific ancient society should have been found sufficiently
resilient to serve in societies quite remote and wholly disparate' (136). The
author's brevity here is good, for should the reader feel the need to explore this
issue further, there is Stein's volume (cited above).
To sum up briefly: J. has produced an attractive volume that effectively
balances the needs of the series in which it appears with the author's desire to
provide a fresh look at Roman law, even if it is but a preliminary glimpse. A
new group can now be exposed to the field without the drawbacks that deter so
many. The book will have an obvious audience amongst students of Roman
history or law who want or need a basic background in Roman law. Finally, we
understand the next step, to carry out a more in-depth investigation of the issue
(perhaps one where criminal law has a place). That the author has achieved both
these rather opposite results is strong praise for this book.

Notes:

1. David Johnston, 'Law and Commercial Life of Rome', PCPS 1997, 53-65,
although he does not cite this article in his bibliography. Section V of this
chapter, 'the organization of business' touches on some of the issues in the paper
cited here.

BMCR 2013.02.49 on the BMCR blog


Bryn Mawr Classical Review 2013.02.49

Paul J. Du Plessis, Letting and Hiring in Roman Legal
Thought: 27 BCE-284 CE. Mnemosyne Supplements. History
and Archaeology of Classical Antiquity, 340. Leiden;
Boston: Brill, 2012. Pp. xvi, 213. ISBN
9789004219595. $140.00.

Reviewed by Jean-Jacques Aubert, Universit de Neuchtel (Jean-
Jacques.Aubert@unine.ch)
Preview
Paul Du Plessiss latest book consists in a thorough review of classical
Roman jurists opinions on the contract of locatio
conductio (especially Digest 19.2 and Codex Iustinianus4.65), triggered
by recent studies by Susan Martin (1989),1 Dennis Kehoe (1997),2 and
Roberto Fiori (1999).3 Du Plessiss contribution aims at studying
various types of letting and hiring in their social and, to some extent,
economic settings rather than focusing narrowly on legal rules. Thus
Du Plessis contends (p. 5) that approaching Roman law in a pragmatic
rather than dogmatic way yields results that can explain some of the
idiosyncrasies of Roman jurisprudence collected in the Digest.
Consequently the book focuses on legal thought while paying special
attention to the legal practice evidenced by documents written and
preserved on papyri and tablets. As a matter of fact, little attention is
paid to papyrological evidence (e.g. pp. 70, 84, n. 104, 91, n. 133), and
only slightly more to epigraphic material.
The chosen chronological framework (27 BCE 284 CE) might be
questioned as both termini post quem and ante quem are meaningless.
The bulk of the evidence, both legal and documentary, is dated to the
late Republic and early Empire, and reflects classical Roman law and
legal practice. However, the consensual, synallagmatic contract of
letting and hiring was created in the context of the formulary procedure
sometimes during the third or second century BCE (p. 9, n. 3), even
though no extant evidence goes back to that time. In the same way, the
Tetrarchy changed nothing either to the system or to the practice it
reflects or generates, and both the juristic and epigraphic evidence thins
out one or two generations earlier.
The introduction (pp. 1-8) surveys the most significant contributions on
the subject during the 20
th
century, in several modern languages. The
author shows a good command of the bibliography, but is somewhat
elliptic on the specifics of earlier scholarship about locatio conductio.
Unlike his predecessors, the author eschews discussing the manifold
object of letting and hiring, but plans to examine the ideas underlying
the legal concepts governing it. In general, his analysis of the
mechanics of the contract is accurate, sophisticated and convincing.
The first chapter (pp. 9-51) examines the terminology, history, and
structure of the contract of locatio conductio, before turning to the
contractual process, i.e. the role of the parties with regard to the
psychological element giving rise to the obligation
(consensus vs. voluntas), the rights of using (uti) and enjoying (frui) the
object of the contract, and the rent/salary (merces) to be paid as
counterpart, as well as the nature and kind of litigation the contract
could lead to, and the circumstances surrounding or causing it. The
author renounces the threefold division of modern legal thought
(locatio conductio rei/operarum/operis faciendi) for the twofold
division between res and operae retained by R. Fiori (1999). In the
same way, the basic concepts of risk and liability are abandoned in
favor of a macro-narrative defining the history of these concepts to
be integrated in the micro-narrative detailing them (pp. 25-26). The
point is to test the macro-narrative against the textual evidence
provided by the jurisprudence, to trace the development of liability
through dolus (pp. 27-32) or culpa (pp. 32-38), the flexibility of which
defines the development of risk (periculum, vis maior, casus, vitium)
(pp. 38-51).
Chapter 2 (pp. 53-120) discusses a variety of contracts bearing on
both opus and operae, following R. Fioris contention that the
distinction between the two is foreign to Roman legal thought. While
Du Plessis does not explain how the distinction can be ignored,
since merces is being paid respectively and alternatively either by
the locator orconductor (p. 54), he identifies specific features of the
contract of letting and hiring defined by the category of contract: the
kind that involves the transformation of the property of one of the
parties, such as the job of fullers and tailors (pp. 55-67), the hiring of
apprentices (pp. 67-70), the work of goldsmiths and engravers (pp. 70-
74), construction work (pp. 74-81); the kind that involves moving the
property of one of the parties, such as carriage by land (pp. 82-84) or
by water (pp. 84-92); the kinds traditionally labeledartes liberales (not
a Roman category, p. 192), such as the trade of medical doctors (pp.
96-98), land- surveyors and architects (pp. 99-100), attorneys (pp. 100-
101), and teachers and philosophers (pp. 102-103), ending with less
respectable hired positions, such as scribes (pp. 104-105), actors (pp.
105-106), gladiators (106- 110), and miners (pp.110-113), and the
letting of the operae of slaves and freedmen outside of the familia as a
commercial strategy (pp. 116-120). The list is not intended to be
comprehensive, but adequately reflects the state of the evidence. I
would question some arguments from silence (p. 56, on the likeliness
of verbal contracts for lack of preserved written evidence), a few
unwarranted assumptions (pp. 58-59, 83-84, 89, 102), some imprudent
conclusion (p. 82, about the compared economic significance of water-
and land-transport, and its alleged impact on classical jurisprudence),
but the demonstration is acceptable and the overall picture quite cogent.
The third and last chapter (pp. 121-189) deals with the letting and
hiring of a thing (res), first movable property, such as storage jars (pp.
125-127), scales (pp. 127-128), vehicles and vessels (pp. 128-131), and
slaves and animals (pp. 131-135); then immovable property, either in a
rural setting, such as ager (pp. 137-142), fundus (pp. 142-
146), praedium (pp. 146-147), and villa (pp. 147-148); or in an urban
setting, such as cenaculum (pp. 153-154), insula (pp. 155-
170), domus (pp. 170-171), taberna (pp. 171-172), balneum (pp. 172-
173), and horreum (pp. 173-189). The selection of the types of facilities
and the different emphasis given to each of them are dictated by the
examples used by classical jurists or in the inscriptional evidence
(Pompeian tablets of the Sulpicii and other, mostly isolated texts).
There is no doubt in my mind that Du Plessis is right in identifying
some of these facilities (agri, fundi; insulae, and horrea) as the most
likely settings to have been leased out in the early imperial period. The
coincidence between the jurists doctrine and the extant documentary
evidence is not accidental. I am not totally convinced of the relevance
of dismissing the traditional (modern) concepts of object and
content of the obligation (p. 121), even though Du Plessis may be
right in contending that Roman legal practitioners would rather have
thought in terms of rights and duties of the respective parties to the
contract. Again, the arrangement chosen by the author implies a desire
to renounce a systematic or dogmatic approach to the law of contract;
instead, it allows for the isolation and identification of specific
problems and solutions attached to various types of contracts of letting
and hiring. Little pearls emerge now and then, such as the analysis of
the legal problems caused by the practice of subletting (pp. 156-170).
Summoning evidence from the papyri would have probably shed more
light on the practicality of the jurists opinions.
A short conclusion (pp. 191-193) offers a summary of the content.
Du Plessis conveniently cites the original Latin texts in footnotes and
usually provides translations borrowed (p. xv) from Watsons edition
(1985)4 for the Digest, Blume (1920-1971/2009)5 on-line for
the Justinianic Code, Jones (2006)6 for the Pompeian archive of the
Sulpicii, or from Monro (1891)7 for title 19.2 of the Digest. As some of
these translations are occasionally problematic or somewhat obsolete, I
wish the author had provided his own translations, which he does at
times (pp. 22-23, 177, skipping the diacritical signs in the first
paragraph! and 187, idem for the last paragraph!). The volume ends
with a rich, up-to-date, multilingual bibliography (pp. 195-206), a list
of texts cited (pp. 207-210, mostly legal, with a few literary sources and
three inscriptions, with no reference to the Sulpicii archive or the
Dacian or Lusitanian tablets), and an index of mostly Latin legal
vocabulary (pp. 211-213).
Last: the whole book is marred by numerous spelling mistakes and
typos that make the Latin citations sometimes difficult to read and to
use. For the price of the volumes published in this series, the publisher
should have provided adequate copy-editing. This serious and quite
readable book certainly deserved it.

Notes:

1. Susan D. Martins, The Roman Jurists and the Organisation of
Private Building in the Late Republic and Early Empire (Brussels:
Latomus, 1989).
2. Dennis P. Kehoe, Investment, Profit and Tenancy: The Roman
Jurists and the Roman Agrarian Economy (Ann Arbor, MI: University
of Michigan Press, 1997), as well as his previous books based on Latin
inscriptions from Roman Africa and Greek papyri from Graeco-Roman
Egypt as evidence for rural tenancy.
3. Roberto Fiori, La definizione della locatio conductio:
giurisprudenza romana e tradizione romanistica (Naples: Jovene,
1999).
4. Alan Watson (ed.), The Digest of Justinian (Philadelphia, PA:
University of Pennsylvania Press, 1985), revised ed. in 1998, reprinted
in 2009.
5. F. H. Blume, Annotated Justinian
Code (http://uwacadweb.uwyo.edu/blume&justinian/) (Unpublished:
1920-1971/2009), 2
nd
ed. by T. Kearley (University of Wyoming).
6. David Jones, The Bankers of Puteoli. Finance, Trade and Industry
in the Roman World (Stroud: Tempus, 2006).
7. C. H. Monro, Digest XIX.2. Locati conducti, translated with
notes (Cambridge: Cambridge University Press, 1891).
Read comments on this review or add a comment on the BMCR
lassical Review 2005.07.14

Judith Evans Grubbs, Women and Law in the Roman Empire. A
Sourcebook on Marriage, Divorce and Widowhood. London and New
York: Routledge, 2002. Pp. xxiv, 349. ISBN 0-415-15240-2. $115.00
(hb). ISBN 0-415-15241-0. $36.95 (pb).


Reviewed by Marcus Sigismund, Bergische Universitt Wuppertal
(sigismun@uni-wuppertal.de)
Word count: 908 words


In this volume, Prof. J. Evans Grubbs, who is an acknowledged expert on laws
affecting women,1 presents a remarkable collection of ancient sources from the
Roman imperial period illustrating the rights women held under Roman law. As
indicated in the book-title, the subjects of marriage, divorce and widowhood
are centre-stage. The sourcebook draws heavily on the major legal texts of the
Roman Empire (the Digest, the Institutes of Gaius, the Code of Justinian and
the Theodosian Code) but also includes the Spanish Lex Irnitana and several
non-legal documentary sources like various papyri and some literary Christian
sources, which are less familiar or accessible to the general reader.
As Grubbs points out in the preface, the book is intended primarily for students
and teachers in the fields of women's studies, classics, ancient and medieval
history and history of the family. Regarding this, Grubbs did an excellent job.
Also, contra Grubbs' opinion (cf. p. xiv), specialists in Roman law will derive
benefit from the book, since the material is not only well arranged but the
commentary and the annotations also contain many details which should be of
interest even to some professional researchers.
The book begins with a preface, where the chronological limitation and the
selection of the sources are explained with good care. The following glossary
of Latin legal terms is rather small, but very useful for non-specialists. In the
introduction the reader will find a compact but thorough summary of the legal
sources and the connection between the social structure and the legal system of
Rome.
The source-material is divided into five sections:
In section 1, The status of Women in Roman law, Grubbs first provides sources
which describe forms of legal power within the Roman familia. Then examples
of stereotypes of women's abilities and behavior are offered. After that, sources
on restrictions, rights and responsibilities of women in court and in public life
are provided in subsections.
Sections 2, 3 and 4 are divided into two major subsections defined by period
(classical and late Roman law). Sections 2 and 4 also contain a third subsection,
documenting sources from Egypt or the Near East. Each major subsection is
divided into several subthemes.
Section 2, Marriage in Roman law and society, first deals with the purpose and
nature of marriage After that the Augustan marriage legislation is documented.
Further subjects are the preliminaries of marriage: age, betrothal and consent as
well as the aspects of dowry, gifts and property. The following subsection
(marriage in late Roman law) focuses on the repeal of the Augustan penalties
on celibacy, on the aspect of paternal power as well as gifts and dowries in late
Roman law. Section 2 is completed by an interesting collection of marriage
contracts and agreements from Roman Egypt, the Babatha archive at the Dead
Sea and Dura Europos.
The sources in section 3, Prohibited and non-legal unions, show the different
types of and the various reasons for prohibitions. A second main subject of this
section is non-marital unions and their social background. Additionally the
aspect of forced marriages is dealt with.
Section 4, Divorce and its consequences, lists several aspects, giving a survey
of the legal background and the procedure of divorce. While the subsection on
divorce in late Roman law is rather short, several sources from Egypt and the
Near East in the third subsection complete the picture of divorce in the Roman
Empire.
After providing material on the subject of remarriage, section 5, widows and
their children, focuses mainly on the problem of the legal status of widows and
on their rights and restrictions regarding the guardianship of their children.
Parallel to the Near Eastern sources, another subsection contains texts from the
Greek East on the topic of children and their children. The whole section closes
with a study of the legal status of pregnant widows and their unborn children.
All sources are presented in clear and up to date English translations and
supplied with unobtrusive, learned and well focused linking commentaries,
which highlight the substantial aspects of the texts without being redundant.
Additionally, each section begins with a brief introduction to the subject.
After a bibliography, the sourcebook ends with a very helpful source index and
a (rather brief) general index, which make it easy to find one's way to special
sources or topics.
All in all it is hard to find quibbles. Of course one could criticize that Grubbs
left out the riches of Cicero's Republic and Justinian's Novellae, or that she
excluded Syriac, Coptic and Aramaic sources when focussing on Egypt and the
ancient Near East. One could also comment that the sourcebook does not cover
women in business and how business law might impact on their activities and
social roles. But that would all be beyond the scope of this book, which is
defined in the subtitle as a sourcebook on marriage, divorce and widowhood,
and which explicitly wants to serve as a complement to existing sourcebooks
and the works of Jane Gardner and Antti Arjava.2 And within this scope, the
volume fits very well.
To sum it up: Women and Law in the Roman Empire is an interesting
anthology for anybody interested in the history of the Roman family and a boon
for scholars and students alike. Exceptionally useful as a core text as well as a
reference guide it will be a valuable part of all teaching and research collections
devoted of the study of women and the family in antiquity.

Notes:

1. E.g. Law and Family in Late Antiquity: The Emperor Constantine's
Legislation on Marriage, Oxford 1995.
2. Cf. p. xiv. Besides the works of Gardner and Arjava, noted in the
bibliography, Grubbs refers to Mary Lefkowitz, Maureen Fant (edd.), Women's
Life in Greek and Roma, 2nd ed. Baltimore 1992 (3rd ed. London 2005), and
Jane Rowlandson (ed.), Women and Society in Greek and Roman Egypt,
Cambridge 1998

Olga Tellegen-Couperus (ed.), Law and Religion in the Roman Republic.
Mnemosyne supplements. History and archaeology of classical antiquity,
336. Leiden; Boston: Brill, 2011. Pp. 229. ISBN
9789004218505. $136.00.


Reviewed by Roberta Stewart, Dartmouth College
(Roberta.L.Stewart@dartmouth.edu)

Table of Contents
Law and Religion in the Roman Republic confronts the theme of the
intersection of religious and legal institutions. The editor promises a rich
perspective on the problem of law and religion in Rome, on the thinking of the
law, on ritual institutions that regulated the activities of the Roman State, on
ritual categories within the developed civil law (e.g. the regulation of tombs).
The book displays the problem of coherence inherent in a multi- authored,
purposefully fragmented approach to a problem, and individual papers raise
interesting, at times provocative, issues that deserve a more systematic
treatment and argumentation. Nevertheless the book delivers in illustrating the
complexity of the problem.
L. ter Beek (Divine law and the penalty of sacer esto in early Rome)
proposes to distinguish the secular and religious character of Roman law,
historically and comparatively by comparing Roman law with other
Mediterranean law and then with epigraphic evidence for early law in Italy.
Comparison of the Twelve Tables with Exodus and Deuteronomy illustrates the
casuistic character of Roman law defining a case and a course of action by
contrast with the apodictic quality of the Torah recording a direct command
from God (15). The code of Hammurabi is casuistic and reflects the kings
formulation of the virtues of truth and correctness that he receives from the
god Shamash (16-17). Comparison reveals the composite nature of Roman law
combining the secular and the religious as similar to the law of Ancient Near
Eastern peoples, with Israel and Torah as the exception. Ter Beek then makes a
brief argument about the religious laws concerning groves in the Roman Lapis
Niger and two inscriptions from Spoletium and Luceria, and observes a
mitigation of penalties over time and an evolution of penalties as sacer
estobecomes a religious penalty for wrongs committed against citizens. The
ideas are interesting and deserve more systematic treatment. But it is a useful
discussion for the student, while the citation of primary sources will make it
useful for the scholar.
In Law and Divination in the late Roman Republic F. Santangelo examines
how religious and legal experts thought, with a focus on the epistemological
affinity of Roman law and divination as intellectual discourses. He considers
the language of conjecture and informed judgment, whether legal or
religious: divinatio and divino signal difficulties of
judgment; prudentia and prudens come to define a legal expert
(Gaius Inst. 1.2). The topic is cutting edge (cf. Peter Strucks work on
divination); but the provocative contrast of language for conjecture and for
expertise needs a fuller argument and comprehensive word studies.
In The Curiate Law and the Religious Nature of the Power of Roman
Magistrates M. Humm revisits a classic conundrum, the significance of the lex
curiata for the authority of elected officials. He attempts to reassess
Magdelains argument (1968) on the three-step process of empowerment:
election, curiate law, and ceremonial investiture. He suggests an historical
evolution of the curiate law: the authority of the official originated in the
religious system of the city and the developed procedure hindered the
affirmation of a principle of sovereignty of the people, and the development of
a true democracy at Rome (p. 84). The attempt to recognize continuity and
change in the procedures of government is salutary, even if the argument that
the curiate law was introduced to validate the authority of officials during the
Republic puts asidewithout argumentevidence for a regal curiate law. But
Humm also argues that the curiate law defined the precise functions of office.
He thus undoes a fundamental observation of Magdelain, that no statute defined
the powers of office of the regular magistrates (Loi curiate, 10). Three passages
are crucial to Humms argument: Cicero Leg. Agr. 2.28 shows that the lex
curiata served to define the potestas integral to his magistracy (p. 67). But
Cicero says that the official would not have (habere)potestas (undefined, and
probably defined by Rullus statute) without the curiate lawa different point.
Tac. Ann. 11.22.4 shows that the law had to define precisely a magistrates
field of competence [potestas] like the contingent right to appoint quaestors
(p. 67). Tacitus proves that quaestors were mentioned in a curiate law
concerning the consuls, not that the curiate law contained a clause permitting
the consuls to select the quaestors. Festus p. 276 L. illustrates for Humm the
auspices of departure by which the general was subject to a
divine addictio that conferred on him his titles and qualities (79). Thus, the
official got title of office from an electoral assembly; lex curiata defined
his potestas, and departure auspices further defined his qualities (79). But the
passage of Festus, which describes a pre-Republican procedure when Rome
shared command of the combined Latin army with the Latin League, uses the
language of the Republican provincial assignment, i.e. the separate, ritually
defined process of allotment that assigned to each official a job for his term of
office. This is a smart piece, even as it provokes fundamental disagreement.
In Rationalizing Religious Practices: the Pontifical Calendar and the Law
Jrg Rpke argues that the publication of the calendar in the late fourth century
constructed time with profound consequences internally for the emergent
patricio-plebeian elite and externally with their neighbors. For the
undergraduate, the article offers an evocative description of the calendar and its
ceremonies, a brief comparison of Roman, Italic, and Mediterranean time
reckoning, and a consideration of the historical significance of the calendar
published in 304. Rpke argues that the lex Hortensia, in equating the votes of
plebeian and regular assemblies, subordinated the plebeian assemblies to the
strictures on dies comitiales thus regulating and reining in popular assemblies
called by tribunes of the plebs. But the scholar will want the full citation of
evidence and argument in Rpkes book on the calendar (The Roman Calendar
from Numa to Constantine, 2011).
In The Jurisdiction of the Pontiff J. Hendrik Valgaerenarguing from a
doctoral dissertation that rather oddly and damagingly remains uncitedoffers
a careful discussion of the publication of the legis actiones in 304, but the
repeated assertion that the pontifices supervised litigation until 200 BCE when
they were probably taken over by the praetor (114) remains undocumented
and speculative. Even though Valgaeren argues from authority for his premise
(citing co-author Tellegen Couperus 2006, who herself cites Brennan 2000,
who makes an argument largely from silence), the function of the pontifices as
legal expertsa role ascribed to them in Pomponius history of Roman lawis
attractive but emerges as very difficult to document. No text before
Pomponiusexcepting one passage of Cicero (De Leg. 2, 47)defines
the pontifex as one who is necessarily an expert in the law. Instead, the texts list
the priesthood among a cluster of attributes defining the public persona of the
elite citizen who is asked for legal help.
In The Longevity of the Fetial College L. Zollschan offers a richly
documented discussion of the roles of the fetials in treaty making and
declarations of war and the rituals associated with Jupiter Feretrius. Zollschan
identifies the work of the fetials in the oaths that accompanied Roman treaties
in the second and first centuries BCE. A chart of datable inscriptions
commemorating fetial priests summarizes the data for imperial priesthood and
reflects the rise and fall of the epigraphic habit rather than any proof of the
priesthoods relative (un)importance (p. 141). Zollschan identifies a temple
figured on a denarius in 78 BCE (RRC 385) as that of Jupiter Feretrius and thus
inserts his cult within the regular cycle of games at Rome; but the identification
must remain speculative, as Zollschan does not consider the Roman
predilection to represent non-existent buildings on coins and represent
architecture schematically. Her survey of fetial roles in declaring war and
monitoring treatment of foreign ambassadors in the period 200-32 BCE has a
lacuna: the fetial consultation for declaring war on Philip V in 200.
Nevertheless fetial religion emerges as crucial to Roman militarism during the
Republic, vibrant throughout Roman history, and Augustus revival of the
fetials emerges as no real revival. For anyone interested in Roman militarism,
priesthood, or Augustus religious policies Zollschans work offers an
important new collation of evidence.
In Sacred Law and Civil Law Tellegen-Couperus reprises and develops an
idea she has advanced before, that Roman law secularized very late and was
developed by the pontifices. She dissects a piece of an argument of John
Scheid, that Roman religious writing was not priestly writing but scholarly
writing about religious practice.3 Instead, Tellegen-Couperus begins from a
rule that allowed piaculum for unwitting religious offense (Varro Lat. 6.30) and
the principle of noxal surrender (noxae deditio), in order to argue that civil and
pontifical law were two different categories of law even though they were
created by the same persons using the same methods (164). The correlation
between the pontiffs and the development of Roman law is attractive, but
Tellegen-Couperus assumes (158-63) that Scaevola Pontifex made the rule and
that he made a casuistic rule in the context of a consultation on an immediate
legal problem. There is no argument for this. Given the goal to compare the
logic of priestly and legal thinking and their evolution, Friers argument (1985,
cf. 1989) on the evolution of Roman legal thinking in the late second and first
century BCE should be consulted.4
In Control of the Sacred in Roman Law J. Rives excavates (p. 166) the
meanings of sacer, sanctus, and religiosus in the Roman legal tradition to
reveal an ongoing attempt by the eliteto exercise control over the category
of the sacred in Roman society (165). He outlines the categories: res
sacrae designated sacred space defined and controlled by public authority; res
sanctaeconstituted property altered by a formal ceremony conducted by a
public official and supervised by the augurs; res religiosae represented a
category marked off by religious scruple (172-76). Rives then shows how the
term sacer/sakros went from a perception of inherent connection with the
divine (179) to a category controlled by the elite through the political and
religious institutions of the state. The development of the jurisdictions of the
priesthoods and of ideas of sacred space thus becomes part of the process of
Roman state formation.
In The Immortality of the Soul and Roman Law J. Tellegen studies
the fideicommissum, whereby a testator in his/her will enjoined the heirs to
administer his/her funeral, as a window into Roman views on the immortality
of the soul. Grave inscriptions and literary evidence show that proper burial, the
construction of a monument, and tendance of the grave guaranteed the enduring
memory of the deceased and so immortality. Pliny the Younger and two
inscriptions purporting to reproduce the will of the deceased show how the will
and the fideicommissum regulating burial became part of the burial monument.
Finally Tellegen looks at three jurists (Scaevola, Pomponius, Alfenus) who
weighed in on the fideicommissum: the jurists define obligations to
the fideicommissum in proportion to the amount of inheritance. But Tellegen
also reveals the crux of the fideicommissum that relied not on a legal sanction
(the testator was dead and could not sue) but the dutifulness of the heirs (p.
200). His argument parallels Suzanne Dixons study of the lex Voconia that
showed Roman fathers similarly relying on the fideicommissum to guarantee
generous inheritances for their daughters.5

Notes:

1. A. Magdelain, Recherches sur lImperium, la loi Curiate et les auspices
d'investiture, Paris, 1968.
2. O. Tellegen-Couperus, Pontiff, praetor, and iurisdictio in the Roman
republic, Tijdschrift voor Rechtsgeschiedenis 74 (2006) 31-44. T. Corey
Brennan., The Praetorship in the Roman Republic, Oxford, 2000.
3. John Scheid, Oral tradition and written tradition in the formation of sacred
law in Rome, in C. Ando and J. Rpke, eds., Religion and Law in Classical
and Christian Rome, Stuttgart, 2006, 14-33.
4. B.W. Frier., The Rise of the Roman Jurists, Princeton, 1985; A Casebook on
the Roman Law of Delict, Atlanta, 1989.
5. S. Dixon, Breaking the Law to Do the Right Thing, Adelaide Law
Review 9 (1983/85) 519-34.

Bryn Mawr Classical Review 2013.09.36

Paul J. du Plessis (ed.), New Frontiers: Law and Society in
the Roman World. Edinburgh: Edinburgh University
Press, 2013. Pp. ix, 246. ISBN 9780748668175. $105.00.

Reviewed by Michael Peachin, New York University
(mp8@nyu.edu)
Preview
At the inception of this valuable book, Paul du Plessis reminds us that,
the ground rules for interdisciplinary collaboration have now been
established (p. 2), and that, therefore, we may proceed apace proceed
apace examining the interplay of Roman law and Roman society. The
present volume is meant to be read as an integrated whole, and the
chapters are arranged in a specific order to form a cumulative picture
(p. 2). Du Plessis has written a helpful introduction, in which he
adumbrates the main lines of the individual chapters; however, there
are no concluding remarks, which might have drawn out the books
broader implications (though there are some stimulating concluding
thoughts offered by Philip Thomas). Nor do the authors of individual
chapters remark on the potential affinities between their own findings
and those of other contributors. Therefore, in what follows, I will
fleetingly summarize the individual contributions, and will also try to
suggest, albeit very briefly, some of the strands of thought that link
these articles and that seem to me especially significant in terms of on-
going efforts to tease out the varied give-and-take between law and
society among the ancient Romans.
The chapters are organized under three rubrics: 1) perspectives on
Roman legal thought, which addresses issues of Roman juristic
writing and its contexts (p. 2); 2) interactions between legal theory and
legal practice, this section exploring Roman law as a working legal
order (p. 3); 3) economic realities and law. A fourth part consists
solely of Philip Thomas concluding essay, which is meant to provoke
further thoughts on interdisciplinarity (p. 4).
Part I. Perspectives on Roman Legal Thought
Joseph Howley begins with a fascinating piece on Aulus Gellius,
asking just what that authors purpose might have been in consulting
books about the law. It turns out that Gellius is not generally attempting
to resolve legal quandaries via this literature. Rather, he invariably
desires, insight into values and institutions, and the surprising and
interesting material that lurks in the pages of Labeo, Capito, Sabinus
and others. Juristic literature is [for Gellius] a distinct and
irreplaceable element of a larger intellectual lifestyle for the learned
gentleman of Antonine Rome (p. 29). In fine, legal literature helps
Gellius to know about, e.g., etymology and philosophy, or assists him
in mastering antiquarian lore. But, more importantly (to my taste), the
reading of material on the law can help him, for example, to best his
teacher, Sulpicius Apollinaris, in a matter of language usage. Thus,
reading law books is especially worthwhile because this activity
provides Gellius with various sorts of knowledge, and then because
articulations of knowledge are also articulations of social power
(p. 24).1
Olga Tellegen-Couperus and Jan Willem Tellegen next raise the issue
of law and rhetoric. They sense that Roman law (i.e., legal writing, as
opposed to forensic practice) is still mainly comprehended as a science,
which putatively excludes the possibility of any rhetorical component.
Their argument runs directly against such a stance, ultimately making
the point that Roman law was not a science in the modern sense and
that law and rhetoric belonged together as two sides of the same coin:
legal practice (p. 32).2
Finally, in this part, Jill Harries discusses implementation of the SC
Silanianum (AD 10). She stresses the fact that whenever senators, as
opposed to emperors (who enjoyed expert and dispassionate legal
advice), put this statute into effect, they tended to be driven by waves
of collective emotion, or even panic (p. 69). In other words, a dire fear
of slaves largely determined the way this SC was engaged; and this,
abetted by the typical elite attitudes regarding those of lesser status, led
to significant increases in judicial savagry. As Harries puts it (p. 69),
the effects [of senatorial behavior] were profound and not always
salutary.
The first two articles should draw our attention to the nexus of juristic
literature, rhetoric, knowledge, and then, social positioning. We might
well want to think about how Roman juristic writing worked to ends
other than establishing (positive) law much, say, as scholars have
begun to worry about the purpose of ancient handbook
literature.3 Harries then adds the dimension of elite angst about slaves
riding roughshod over both positive and forensic law.
Part II. Interactions between Legal Theory and Legal Practice
Caroline Humfress opens by considering the way Roman law was (or
was not) put into practice throughout the empire, especially after
passage of the constitutio Antoniniana(ca. AD 212). She argues that
even after most of the population had been granted citizenship, and
hence the right to participate in the Roman legal system, something like
a dialogue between local legal regimes and a centralized, Roman law
persisted. People the empire-over simply decided, on the basis of
economic, political, and/or social factors, whether to operate with the
Roman or some other system of law in resolving their disputes.
Humfress then suggests that future research might ask whether, how
and why Romes subjects, as individuals or as groups, availed
themselves of the Roman legal system (p. 93). In other words, even
after Roman citizenship became universal, there remained a gap
between legal theory (i.e., the fact that everyone now was entitled to
use Roman law) and legal practice (far from everyone did).4
The other three chapters in Part II also investigate disjunctions, of one
sort or another, between the letter of the law, one might say, and
quotidian legal practice though they do this from significantly
differing angles. Saskia Roselaar makes a strong case for the privilege
of conubium having been much less widely granted during the
republican period than is generally assumed. Indeed, she suggests that
the disadvantages thereby incurred may have impelled many an ally
toward the Social War. Then, va Jakab, working from the evidence of
the Sulpicii archive, asks whether law in the books, regarding the
potential of women to engage in business, represents law in action.
Her answer is, largely, that well-to-do women were likely to operate via
agents (slaves or freedmen). This allowed them to engage in various
business activities without appearing in public, and also released
women (in fact) from a guardians authorization (p. 148). Those of
lesser means, however, might have to function with the approval, and
even in the company, of their tutors. Thus, the convenient disjunction
of substantive law and daily practice looks to have held for more elite
individuals, but not for those of lesser means or status.5 Jakub Urbanik
looks at some Byzantine papyri, to see how mock sales of properties
(rather than pledges) were used to secure loans. One interesting
conclusion is that, such securities must have safeguarded not just
the repayment of the money but possibly the personal relationship
between the parties involved (p. 169).
Part III. Economic Realities and Law
Building upon some of his earlier work, Dennis Kehoe investigates the
matter of guardians looking after the property of their wards. Having
proposed to view these tutors effectively as agents, working for their
pupils, he then finds that both social and legal mechanisms worked to
constrain guardians (p. 181). Furthermore, he persuasively argues that
social concerns, i.e., maintaining the pupils social standing, and thus,
the wealth necessary to that end, rather than a desire to maximize
profits, drove the creation of the law that regulated these matters. And
then, given the probably great number of such ward-guardian
situations, Kehoe suggests that this particular socio-legal institution
i.e., the immensely conservative approach to managing a wards
property must have limited significantly the expansion of the agrarian
economy.
Next, Jean-Jacques Aubert considers the complexities that could arise
when a business situation, in which a slave functioning in some
professional capacity was involved, went bad. What remedies did the
plaintiff have against the slaves peculium, or master or bothand
indeed, what might the master recover from his own
slaves peculium in, say, the case of a bankruptcy of the slaves
business? One of Auberts chief points here has to do with record-
keeping. Since there was no legal obligation in this regard, there must
have been real problems with the nature, regularity, location, accuracy,
even the legibility of any records perhaps kept by slaves engaged in
business. Here, the reach of the law must have been constrained by the
realities of ancient record-keeping.6
The last article is by Cynthia Bannon. She traces a problem raised
in Dig. 19.1.38.2 (Cels. 8 Dig.). When a building was sold, were buried
water pipes an integral part of that structure, like things bound and
fixed to it (vincta fixaque), and thus now automatically the property of
the buyer, or were those pipes like things dug up or cut out (ruta
caesa)for example, sand, or graveland therefore, subject to
negotiation in so far as their ownership was concerned? Bannon shows
how Celsus and Ulpian presumed that the simple realities of buying and
selling would result in purchasers not necessarily knowing the
particulars of a buildings plumbing, and that therefore, it would be
better always to consider such underground pipes as an integral part of
the property. That is, economic realities largely determined the line
taken by the jurists here.
A last article, which comprises Part IV, is offered by Philip Thomas.
Thomas allows Jacques Barzuns theory of aspect to guide him in
considering divergent issues in Roman law. He shows that the matters
raised (e.g., how to interpret the XII Tables) can be approached from
multiple perspectives; and hence, can reveal different things to
differently attuned investigators and audiences. This all leads to the
proposition that, a third life of Roman law as a methodological and
philosophical instrument in legal education could promote independent
and nuanced thought (p. 242). And precisely because Roman law is so
useful to learn to think, it well merits a place, even today, in
university legal curricula.
As du Plessis points out in his introduction, In a certain sense,
Thomass chapter represents the very essence of the approach of this
book. When read as a whole, the themes explored in this book
demonstrate that it is possibleto ask new questions about Roman
law (p. 4). While it would have been useful to have these new
questions (and any answers to them) delineated more thoroughly and
explicitly, they are here to be found, and they are well worth searching
out.

Notes:

1. Cf. A. Wallace-Hadrill, Romes Cultural Revolution (Cambridge
2008) 253-254. There is room for more discussion of how knowledge
of the law served, or did not, to cement aristocratic status.
2. Their argument is forcefully paralleled by the findings of U.
Babusiaux, Papinians Quaestiones: zur rhetorischen Methode eines
sptklassischen Juristen (Munich 2011). Note also that Bannon, in this
volume (p. 211), talks of an opinion of Celsus, which may at first
seem extreme, perhaps because of its rhetorical flourish.
3. Compare, for example, H.F. Jolowicz and B. Nicholas, Historical
Introduction to the Study of Roman Law 3
rd
ed. (Cambridge 1972) 380:
The least unsatisfactory conjecture is perhaps that the famous
schools [Sabinian and Proculian] were rather more in the nature of
aristocratic clubs formed for the discussion of legal matters and
centring round a distinguished jurist. Not schools of law, but schools
of thought about law. On handbook literature, see esp. T.
Fgen, Wissen, Kommunikation und Selbstdarstellung. Zur Struktur
und Charakteristik rmischer Fachtexte der frhen Kaiserzeit (Munich
2009).
4. Essential for all of this is K. Buraselis, . Das gttlich-
kaiserliche Geschenk. Studien zur Politik der Severer und zur
constitutio Antoniniana (Vienna 2007) 120 ff.
5. That Roman private law was altogether designed with the interests
of the rich in mind has long been noted. So, for example, F.
Schulz, Classical Roman Law (Oxford 1951) 545: The lawyers wrote
and worked [re law of hire] for the class of the beati possidentes to
which they themselves belonged and their social sense was ill
developed.
6. It might well be worth thinking of this with regard to record-
keeping at the public level, on which (e.g.): S. Demougin (ed.), La
mmoire perdue. A la recherch des archives oublies, publiques et
prives, de la Rome antique (Paris 1994); R. Haensch
(ed.), Selbstdarstellung und Kommunikation. Die Verffentlichung
staatlicher Urkunden auf Stein und Bronze in der Rmischen
Welt (Munich 2009).
Judy E. Gaughan, Murder Was Not a Crime: Homicide and Power in the
Roman Republic. Austin: University of Texas Press, 2010. Pp. xviii,
194. ISBN 9780292721111. $50.00.


Reviewed by Jack Lennon, University of Nottingham
(abxjl1@nottingham.ac.uk)

Preview
Murder was not a Crime: Homicide and Power in the Roman Republic, aims
right from the start to demonstrate that the word 'murder' is problematic and out
of place in modern discourses on republican law. Gaughan argues that at no
point in this period did the government concern itself with private acts of
violence that did not threaten the stability of the res publica. This attitude was
shaped by the nature and focus of power (particularly the right to kill) in
Roman society before, during, and after the republic. The argument is not
without its potential stumbling blocks, yet the author is careful to highlight and
answer them throughout. The result is an interesting reinterpretation of the
various republican laws and magistracies that may be thought to deal with the
crime of 'murder'. While Gaughan acknowledges that much of the book focuses
on Roman law, the wider implications of her arguments mean that it will be
useful for scholars interested in the changing nature of political power and
social relations across the republic, as well as those concerned with issues in
ancient law.
The introduction sets out some preliminary considerations regarding the
republican vocabulary of killing, noting that words such as caedere, interficere,
and necare cannot be translated as 'murder', since they may refer to both
justified and unjustified acts of homicide. The various sources under
consideration are listed, as well as the nature of 'crime' in the Roman republic.
Gaughan states that where homicide appears in the ancient texts, it was
"peripheral to offences that required direct government involvement in part
because the act of homicide did not directly affect the government or those
governing."1
Chapter 1, "Killing and the King", is based on an earlier publication by the
author from 2003.2 The chapter begins with the law against murder attributed
to Numa concerning deliberate homicide, which was punishable by death, and
unintentional homicide, in which a scapegoat might be offered in the place of
the killer. The author sees the law as an indication that the king regulated cases
of homicide and that the right to take life belonged to the king alone. This is
demonstrated by reference to the leges regiae and the myth of P. Horatius.
While reasonable justification is put forward for the authenticity and dating of
the leges regiae, the reliance on Livy and Dionysius as evidence for Horatius
remains problematic. Following Livy's assertion that after killing his sister,
Horatius was charged with treason (perduellio), Gaughan suggests the
possibility that the offence lay in Horatius' infringement of the king's right to
take life, raising the issue of how much power was held by the
Roman pater under the monarchy. In addition to the social issues raised here,
Gaughan proposes a religious dimension, whereby the king was tasked with
maintaining the pax deorum, and so had to ensure expiation for acts of
homicide within the community. Controlling the original act of killing ensured
this. Finally, the author notes that in a system where a single figure held
supreme power, a single act of homicide could potentially threaten the stability
of the state, demonstrating why the murder law may more logically be dated to
the period of the monarchy.
Chapter 2, "Power of Life and Death", proceeds to demonstrate that under the
republic the authority of the king was disseminated amongst the Roman patres,
and so homicide was no longer an issue for the government. The family is
viewed as a microcosm of the republic, with each pater familias expected to
protect the state and control those under his influence by his exercise ofvitae
necisque potestas, which is examined in considerable detail. Gaughan discusses
the role of gender in defining this power, sons being punishable for public acts
while daughters were frequently (but not exclusively) killed to punish sexual
misconduct or protect their virtue, as in the case of Verginia. It is implied that
the nature of paternal power developed over time, and fluctuated in reaction to
expansion in the territory and power of the empire. Although public institutions
began to encroach on the power of the Roman father, it is argued that this
authority was never 'replaced' under the republic. The actions of senatorial
fathers against their sons during the conspiracy of Catiline demonstrate the
lingering importance of this power as late as 63 B.C. The state might have
influence in cases of vitae necisque potestas, but this was not to the detriment
of the father, who could not be denied his rights and duties as a Roman pater.
Chapter 3, "Killing and the Law, 509-450 B.C.E.", examines the dissemination
of power in the aftermath of the expulsion of the kings, focussing on the
limiting of magisterial power to execute citizens. This limitation begins with
the popular assembly asserting its right to condemn a citizen as homo sacer via
plebiscite, an act which removed culpability for the homicide demanded by the
verdict; this was followed by the institution of the right of appeal, which
protected all classes from abuses of temporary magisterial imperium. From here
Gaughan considers the presence of laws on justifiable/unintentional homicide
in the Twelve Tables, while noting that these do not presuppose the presence of
a murder law. The tradition of the scapegoat as representing a blood-offering in
payment for unintentional homicide is discussed, although sadly without
reference to Ren Girard's extensive work on the subject.3 The death of a ram
in payment for unintentional homicide is interpreted as indicating that the death
of the culprit was demanded for malicious homicide, although Gaughan is
reluctant to state the extent to which the government was involved in meting
out punishment.
Chapter 4, "Murder was not a Crime, 449-81 B.C.E.", discusses certain forms
of actionable homicide under the republic, specifically kin-murder, poisoning,
or the killing of government officials, as well as acts of homicide that might
involve charges of treason or of being a 'dagger-wielder' (sicarius). Each of
these is linked to the disruption of social order or endangering the city, and thus
merited government intervention. In particular, the author stresses that
"the sicarius was not necessarily a killer, and the quaestio inter sicarios was
not necessarily a homicide court."4 Incidents of parricide are considered in
both their social and religious contexts, demonstrating that it caused greater
damage to the social fabric than ordinary murder, whether through weakening
the absolute authority of the pater familias, or through the threat of divine
vengeance upon the community. This was expiated via the highly ritualised
method of execution.
Although mentioned briefly, the notion of harmful magic as an offshoot of
poisoning (veneficium) would have profited from further discussion, as it feeds
well into the author's theory on the socially harmful and subversive nature of
these particular forms of homicide.5
Chapter 5, "Capital Jurisdiction, 449-81 B.C.E.", monitors the gradual
accumulation of power by the government throughout the republican period.
The creation and roles of the quaestores parricidii and the tresviri capitales are
examined here (not in chapter four, as is stated in the introduction), with the
former being viewed as advisory bodies who decided whether cases of
homicide were justified or accidental, and the latter as supervisors who oversaw
the execution of citizens, but did not pass judgement on them. However, while
certain methods of public execution (crucifixion, the sack, and strangulation)
are discussed, the use of state executioners receives strikingly little attention.
On whose authority did they act? What are we to make of the executioner's
order 'age lege'?6
We see an increasing move towards government involvement in cases of wider
public interest, such as the Bacchanalia scandal and its aftermath, but once
again it is the safety of the res publicathat is at issue, not individual acts of
murder. The creation of permanent courts was a cause of friction, however, as
they began to encroach on the power of Roman families. The reaction against
this encroachment appears in the tribunate of Gaius Gracchus, as his limitations
on the powers of the senate to act without reference to the people far outlasted
his own life.
Chapter 6, "License to Kill", focuses on the deeply ambivalent status of
the senatus consultum ultimum and its use against the Gracchi, the tribune
Saturninus and, later, the followers of Catiline. The ambivalence is visible in
the subsequent treatment of those magistrates who used it. This is viewed as
indicative of a rising empire responding to new threats and developments,
while still clinging to its most fundamental principles. Again, the relationship
between homicide and power is seen as the heart of the issue, since it was not
the act of homicide that mattered, but the position of the person or institution
executing it. It was not acceptable, but neither was it wholly condemned.
Gaughan notes the curious lack of legislation against acts of political
assassination, despite the string of prominent homicides that constituted
precisely this.
Chapter 7, "Centralization of Power and Sullan Ambiguity", is the final
chapter; it deals with the actions of Lucius Cornelius Sulla, in particular the
declaration of his personal enemies as hostesand his use of proscriptions. Here
Gaughan considers the role of the lex Cornelia de sicariis et veneficiis and the
acts it sought to curtail. For a brief period the enemies of Sulla were
transformed into the enemies of the republic, and the populace was essentially
forced to carry out the removal of his enemies. Following this period, however,
order had to be restored and this, Gaughan argues, is the key to understanding
the lex Cornelia de sicariis et veneficiis. The law was not innovative in content,
but it did reaffirm established values (discussed earlier in the book), signalling
an end to the conflict that had preceded it. Nevertheless, by temporarily
consolidating power, which had been divided throughout the republic, around a
single individual, Sulla paved the way for those who would follow him. Even at
this stage, however, Rome could not fully conceive of the idea that murder
harmed the state, and thus there could be no murder law until the advent of the
Principate.
Gaughan's argument is persuasive, despite occasionally being vulnerable to
criticism from more sceptical readers for her treatment of late republican
sources and the evidence they offer for fifth and fourth century legal
developments. The work is well structured and signposted with translations of
ancient and modern sources provided throughout. The few criticisms I have
listed refer more to areas where the author's ideas might be widened, as
opposed to serious flaws or omissions. Overall, this is an enjoyable and well-
researched work, which offers an interesting hypothesis that I hope will be a
useful addition to the wider debate on Roman law. As stated above, however,
one of its greatest strengths is its consideration of the wider implications of
homicide in Roman society. Accordingly, it sheds a fascinating new light on
the wider issues of power in the republican period and beyond.

Notes:

1. p. 6.
2. J. Gaughan, 'Killing and the King: Numa's Murder Law and the Nature of
Monarchic Authority' Continuity and Change 18.3 (2003), 329-343.
3. Cf. R. Girard (1972) 'La Violence et le Sacr' (Paris)
4. p. 74.
5. In particular, see M. Dickie, Magic and the Magicians in the Greco-Roman
World (Oxford, 2001), 145-9; J. Rives, 'Magic, Religion, and Law: The Case of
the lex Cornelia de sicariis et veneficiis' in C. Ando and J. Rpke
(eds.), Religion and Law in Classical and Christian Rome (Stuttgart, 2006), 47-
67.
6. Cf. Sen. Controv. 9.2.22.
ugh Lindsay, Adoption in the Roman World. Cambridge/New
York: Cambridge University Press, 2009. Pp. xiv, 241. ISBN
9780521760508. $95.00.


Reviewed by Bruce W. Frier, University of Michigan
(bwfrier@umich.edu)

Some interesting facts lie scattered through this otherwise rather unambitious
book. Did you know, for instance, that adoption--the full legal absorption of
one person into the family of another--only became possible in Britain in 1926,
as a result of the Adoption Act (p. 25)? Presumably this resulted from enduring
British concern about pure blood lines. But even in the United States adoption
was legally permitted only from the 1850s onward (p. 23), and only in the
twentieth century did adoption assume its full modern form, as a device for
protecting orphaned or abandoned children, within the broader protective
structure of contemporary welfare states.1
What this suggests is that considerable care is required in approaching adoption
in ancient or pre-modern societies. Unfortunately, while Hugh Lindsay's heart
is plainly in the right place, his rambling presentation does little to clarify
things. The "rambling" part is exceptionally vexatious: long excursions into, for
instance, adoption in the ancient Near East, India, Oceania, Japan, and China
(pp. 5-21), the Gortyn Code (pp. 38-40), the Athenian law of adoption (pp. 40-
60), Roman nomenclature (pp. 87-95), the theory and reality of patria
potestas (pp. 97-100), the basic Roman law of succession (pp. 100-103), and so
on, and on--all of which, truth be told, might have been of some real assistance
had they been (as they are not) folded within a convincing analytical design. As
it is, Lindsay makes no real effort at integration until his perfunctory
"Conclusion" (pp. 217-220)--which, however, a reader might profitably peruse
not last but first, in order to get at least an inkling of where the book is
supposed to be going.
The classical institution of adoption can be approached from a number of
directions, including literary references and patterns of nomenclature on
inscriptions and elsewhere.2 But pride of place goes to legal sources, which not
only describe the institution itself, but also, through hypothetical problems the
jurists develop, give some inkling of how adoption was actually used in the
Roman world. Here Jane Gardner's Family and Familia is of particular
importance.3 Gardner had, especially, the eminent good sense to associate
adoptio closely with its institutional Doppelgnger emancipation, as part of a
legal "tool box" that the Roman paterfamilias had on hand for reshaping the
contours of his familia. This was a real advance in our understanding, but one
requiring intimate knowledge of the basic source material.
Lindsay's book is of lesser caliber. He describes it as having "some common
ground" with Gardner's, "although it is on the whole less legal, and more
concerned with the practical operation of adoption in different situations" (p.
ix). But much in the book suggests that Lindsay is actually rather
uncomfortable with legal sources, even fairly simple ones. When, for instance,
he is obliged to describe the institutional structure of adoption, his discussion
wanders inexplicably, and he often resorts simply to quoting the jurists without
even the semblance of critical treatment. A salient example is on pp. 114-115,
discussing the rule whereby an adopted person lost his right of succession
within his family of origin. "This is articulated as follows in the Digest:"; and
there follow 25 lines of small print translation of texts from Paul, Ulpian, and
Modestinus (the name of this last is omitted), with the original text provided in
footnotes.4 No Interpolationskritik, of course; but also no bibliography of any
kind, no further commentary. And certainly no exertion, even the slightest, to
reach underlying principles and conceptions.
For such lassitude, the explanation is perhaps impatience, or perhaps not. But
whatever the cause, it makes the crucial middle chapters of this book (on the
adoption procedure, testamentary adoption, Roman nomenclature after
adoption, and adoption in the law of succession) something of a dispiriting
slog, which is helped along not at all by the book's chaotic organization. (E.g.,
the fundamental distinction between adoptio and adrogatio is introduced only
on pp. 74-75: after rather than before the discussion of other procedural aspects
of adoption.) On the whole, W.W. Buckland provides not only a much clearer
and more concise narrative of this law, but also (mirabile dictu) a more
interesting one.5
In any case, neglecting the law was a major error in strategy, for adoption, like
all historical institutions of family law no matter how "natural" they may seem
to us, are notoriously protean over time, and the "practical operation" of Roman
adoption, in particular, takes some strange turns. The welfare of a child is not
normally paramount in Roman law, although it may have been given marginal
attention; Justinian, for instance, mentions an "old rule" (ius vetus), otherwise
unknown, whereby children could obstruct adoption by objecting openly (C.
8.47.10 pr., cf. 11; both of 530 CE). As for adrogatio of minor orphans, older
law forbade it altogether; only latterly, through imperial constitution, was this
permitted, but then only to the child's close relatives, apparently in an effort to
prevent child abuse (pp. 69-70). (Sancta simplicitas!) Still, there may have been
a slowly rising concern for child welfare, as manifested in imperial
dispensations allowing women to adopt (pp. 71-73).
Nonetheless, as Lindsay often and rightly insists (e.g., p. xii), the chief purpose
of adoptio, in ordinary life, was the continuity of the familia in three important
respects: nomen, pecunia, andsacra (so Cicero, de Domo 35): that is, the
onward passage, from one generation to the next, of the family name, the
family property, and the family religious rites. The Romans paid a steep price
for their dogmatic commitment in this matter, since it seemed to militate
against the adoption of juvenile orphans (with the attendant destruction of an
independent familia); thus, adrogatiowas deliberately preserved as a truly
cumbersome public procedure, and one that remained so even when the
archaic lex curiata was finally abandoned in favor of adoption through rescript
(pp. 76-77).
Emphasis on intergenerational continuity lent Roman adoption an unexpected
but decidedly deliberate connection to the law of succession (pp. 97-122)--what
we might think of, broadly, as family planning for a time when
a paterfamilias would no longer be alive. Some of the oddest aspects
of adoptio spring from this notion: for instance, the requirement of a substantial
age difference between adopter and adoptee, in order to mimic nature, and the
more controverted requirement that the adopter be of an age unlikely to result
in issue of his own (pp. 66-68). From close study of reported cases, it is also
clear that adoptions often involved a strong preference for fairly close blood
relatives (cognati), adoption thereby providing "a method for the wealthy to
keep estates closely held within the extended family" (p. 159, cf. 146-168).
When adoption inter vivos had not been effected, a testator could resort to the
more fragile institution of testamentary "adoption": inheritance accompanied by
a requirement that the heir assume the decedent's nomen (pp. 79-86). Here it
seems clear above all from Gaius (2 Fideic.), D. 36.1.65.10 (citing
Julian),6 that an heir might avoid this condition when the testator's family name
was infamous or debased, and that indeed, through a procedural sleight of hand
(gotta love those jurists!), he might even avoid the condition altogether if he so
chose. In any case, it is more than doubtful, although the point is still
controverted, that testamentary adoption constituted a true adoption--which
may help to explain why Octavian insisted on both his testamentary adoption
by Julius Caesar and a more formal, if highly irregular, procedure for a post
mortem adoption (pp. 182-189).
It is this concentration on "familia-scaping" that drives Roman adoption law in
a truly bizarre direction: toward redesign of the familia from within. A number
of legal sources, which may perhaps be paralleled by famous sources like Pliny,
Ep. 8.18, on the brothers Domitii, speak of extraordinary efforts by patres in
this regard. For instance, a father might emancipate his son, then adopt him as a
grandson alongside the son's own son (Ulpian, D. 38.6.1.7); or adopt the
emancipated son as a grandson and then re-emancipate him (Ulpian, D.
37.4.1.7). Or a man with two grandsons might emancipate one and then adopt
him as a son, either with or without potential power over the other grandson
(Ulpian, D. 37.4.3.1-2). Or a man with a son and a grandson by that son might
emancipate the grandson and adopt him as a son alongside his father (ibid. 3).
And so on. These texts, spasmodically considered by Lindsay but more fully
appreciated by Gardner,7 reveal a certain restlessness within the staid
Roman familia, an anxiety that law was ill designed to channel. We do not even
know what "adoption" means in contexts such as these; why not adrogatio?
In his final substantive chapters, Lindsay turns to another subject: the use of
adoption for political purposes, either interfamily alliances or the creation of
fictive dynasties. This field is previously well tilled, and things go rather better.
Modern studies have established "that adoption was a significant tool employed
in the service of the amalgamation of the plebeian and patrician aristocracy" (p.
192); this pattern is discovered not only in Rome, but also in Pompeii and
Ostia. Sporadic late Republican political adoptions (such as of Clodius or
Octavian) evolve in the Empire into systematic attempts to establish
successors--once again, adoption adapted, so to speak. Lindsay presents what is
largely the research of others, but in fairly clear form.
On the whole, however, this book gives little value added. Christiane Kunst's
2005 book, although unduly speculative in part, is a considerably more
valuable contribution, and as to the general social uses of adoption the best
book to read, if you're reading only one.

Notes:

1. Ellen Herman, Kinship by Design: A History of Adoption in the Modern
United States (2008). Because of Roman law, adoption had long since been
possible in Civil Law jurisdictions, although often with restrictions that had
accompanied the Roman rules. However, in practice it was actively
discouraged by the Catholic Church. See Kristin Elizabeth Gager, Blood Ties
and Fictive Ties: Adoption and Family Life in Early Modern France (1996).
2. The non-legal bibliography has become extensive. See, e.g., Mireille
Corbier, "Divorce and Adoption as Roman Familial Strategies," in Beryl
Rawson (ed.), Marriage, Divorce and Children in Ancient Rome (1991) 47-78,
and (as ed.) Adoption et 'Fosterage' (1999); Olli Salomies, Adoptive and
Polyonomous Nomenclature in the Roman Empire (1992); and especially
Christiane Kunst, Rmische Adoption: Zur Strategie einer
Familienorganisation (2005).
3. Jane F. Gardner, Family and Familia in Roman Law and Life (Oxford:
Clarendon Press, 1998). See the review by Marilyn Skinner (1999.02.10).
4. The translations are lightly adapted from Alan Watson's translation.
Comparable is the 24-line citation on pp. 69-71, also without discussion.
5. W.W. Buckland, A Text-Book of Roman Law (3rd ed. Peter Stein; 1966)
121-128, and, with Arnold D. McNair, Roman Law and Common Law: A
Comparison in Outline (2nd ed. ed. F.H. Lawson; 1965) 41-46. From there,
graduate to Carmela Russo Ruggeri, La Datio in Adoptionem vols. 1-2 (1990,
1995).
6. Cf. p. 83, where the text is truncated; I refer to the full text.
7. Gardner, Family 190-199.
https://www.youtube.com/watch?v=-v3-F08Nu0k