Beruflich Dokumente
Kultur Dokumente
Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at .
http://www.jstor.org/page/info/about/policies/terms.jsp
.
JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of
content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms
of scholarship. For more information about JSTOR, please contact support@jstor.org.
The University of Chicago Press is collaborating with JSTOR to digitize, preserve and extend access to
Classical Philology.
http://www.jstor.org
ari z. bryen
A
fter decades of being specialist territory, Roman law has recently
begun to reemerge as a lively field of historical study: an increasing
number of monographs and edited volumes concerned with socio-
legal history are being produced, and at least one new monograph series
is devoted to ancient legal history exclusively; large-scale handbooks and
comparative works are underway; specialized panels and conferences devoted
to socio-legal matters have been held; a research group has been founded
that devotes itself exclusively to legal documents. Interests in Roman law
extend even to the classroom, graduate as well as undergraduate: new text-
books—written from various perspectives—have recently been published,
and a survey of undergraduate Roman law courses is underway. 1 This flurry
of scholarly activity is consequential, not least because it has quietly but effec-
tively fractured a number of old assumptions relevant to how we should write
the history of law and legal institutions. It bears adding that these new trends
in the writing of legal history are also of broader consequence to scholars of
Roman antiquity more generally.
What follows proceeds in three parts. First I provide an overview of the
field of Roman legal studies as a whole and highlight some important shifts
in the conceptual and theoretical underpinnings of the main subgenres of
ancient legal history. A shift to more humanistic modes of understanding law,
I argue, has suggested that law was an open field of meaningful practice in the
Roman world. What is more, recent work has compiled evidence that more
people (and more types of people) were participating in the creation of the
This article is a much-revised version of a lecture presented at the conference, “Legal Regimes and Legal
Change in Antiquity” (Berkeley, 2010), co-organized by myself and Lisa Eberle. I thank the participants for
their feedback. In revising, I have benefited from support from the American Bar Foundation, West Virginia
University (in particular, a Faculty Senate Research Grant), and West Virginia Humanities Council Grant no.
13011. I thank the anonymous readers and Kimberly Welch for their helpful suggestions. My title echoes the
conclusion of Benton 2010, which should be required comparative reading for students of the Roman world.
1. Conferences and panels: e.g., “Justice on the Margins of the Ancient World,” University of Western
Ontario, 2010; “Enactment, Promulgation & Revision of Law in the Ancient World,” American Historical As-
sociation, 2013; the research group Legal Documents in Ancient Societies (www.ldas-conf.com) was founded
in 2008 and has since run five conferences, and the Wiener Kolloquien zur Antiken Rechtsgeschichte has run
two; book series: Law and Society in the Ancient Word, University of Michigan Press (https://www.press.
umich.edu/browse/series/UMLSAW?subject=law). Underway are a Cambridge Companion to Roman Law, an
Oxford Handbook of Roman Law and Society, and another multi-author project, the Cambridge Comparative
History of Ancient Law. The author is a contributor to the latter two. Textbooks: Riggsby 2010; du Plessis
2010; Hausmaninger and Gamauf 2012. Hausmaninger’s textbook supplements the already popular textbooks
of Frier 1989 and Frier and McGinn 2004. Thomas McGinn of Vanderbilt University is conducting the survey
of undergraduate Roman law courses.
346
Roman legal order writ large. As a consequence, however, our world of legal
sources has potentially grown exponentially. The next section suggests one
way of redefining our criteria for determining what makes a source “legal.”
Specifically, I argue for the importance of seeking out the underlying narra-
tives that made legal practice intelligible to ancient people as legal practice
(rather than something else). By turning our attention not only to rules, but
also to stories that explain rules and the identity of rule-makers, we uncover
a wealth of interpretive activity that at times aligned with official narratives,
but at times did not. Finally I offer one way of finding these narratives, intro-
ducing the category of legal commentaries as a way of defining the practice
whereby people throughout the Roman world animated legal rules, ideas, and
institutions with their vernacular narratives and suggesting a way in which
these discursive dynamics might shed light on the diachronic development of
a particular legal practice, criminal law.
* * * * *
Of course, my suggestion that that the study of Roman law has recently re-
emerged will probably raise some eyebrows. Roman law has never really
gone away. Faculties of Roman law remain in continental Europe; the study
of ancient legal doctrine proceeds; scholars with juristic interests who concern
themselves primarily with epigraphic and papyrological sources continue to
publish learned commentaries on, and restorations of, relevant papyri and
inscriptions as well as a (perhaps decreasing) number of palingenesiae of
individual juristic works. Nor have Roman historians, in the last few decades,
neglected legal texts: in some fields where the writing of history depends
on them (such as the political history of the Roman Republic or the history
of social life in Late Antiquity) they have played feature roles and continue
to do so. 2 Nonetheless, we should not conclude that things have remained
substantially the same, or that “the field” has simply “developed” according
to its own internal dynamics.
One might identify two main points of divergence. First, whereas tradi-
tional scholarship on Roman law was overwhelmingly written in German and
Italian, the most intellectually daring work now tends to be in English. This
is more than just the creeping linguistic hegemony of the anglophone world;
these linguistic differences encode disciplinary priorities. Legal scholarship
has traditionally valued the study of legal doctrine as a discrete concern. It
was generally composed in—or in conversation with—a continental European
milieu in which practicing lawyers might still be interested in Roman legal
2. For Late Antiquity, much work has been done on the Codex Theodosianus: Wood and Harries 1993;
Matthews 2000; Aubert and Blanchard 2009. Less has been done on other late antique texts: a recent exception
is Frakes 2011. A new edition and translation of the Codex Justinianus by Bruce Frier will soon be published
by Cambridge University Press; its arrival will be sure to spur a new wave of scholarly interest. Republican
Roman law tends to be dominated by studies of public, or constitutional law: e.g., Nicolet 1980; Lintott 1999.
Exemplary as a textual publication is Crawford 1996. Crawford’s Project Volterra is likewise important for
the study of Late Antiquity. The early to mid-Empire tends to be dominated by collections of constitutiones
and senatus consulta: important is Oliver 1989, now supplemented by the more comprehensive survey of
Gianfranco Purpura (http://www.archaeogate.org/storage/343_article_168_1.pdf).
history, either because the results of Roman choices were at times live issues
or because Rome offered one precedent for a united Europe. 3 To be sure,
there are anglophone scholars writing in the continental tradition (partially the
result of the diaspora of a number of German-Jewish Romanists in the wake
of Nazi persecution), 4 as well as a sui generis anglophone doctrinal tradition
in Scotland. 5 But the newer generation of scholars is less interested in such
practical questions. They are overwhelmingly scholars whose main point of
reference is the common law—rather than civil law or Scots law—tradition.
They therefore tend not to feel politically invested in answers to particular
doctrinal questions. For them, Roman law and legal traditions can accordingly
be accorded primarily anthropological, rather than normative legal interest.
Second, although the interest of the newer generation of scholars is histor-
ical, it is distinct from other historical traditions that have used legal texts.
There remain, among historians, long-standing and generally productive
traditions of using legal sources in the project of historical reconstruction,
especially in the reconstruction of large institutions such as the annona or the
systems of provincial administration. 6 Similarly well established is the tradi-
tion of using legal sources to write the social history of populations that might
otherwise escape notice in the literary sources (such as peasants or merchants
and tradesmen) or of social practices that can only be reconstructed by re-
course to legal texts. 7 Additionally, legal sources have traditionally also been
marshaled by scholars to show how legal institutions might have worked in
the everyday world. Thus there exists, for example, a relatively large literature
that measures the effectiveness of legal institutions in the Roman world: for
instance, whether imperial policies were conducive to economic success, or
whether litigants could have hoped to have a dispute resolved. 8 These stud-
ies draw their inspiration from the “law and society” movement prevalent in
American law schools in the mid- to late twentieth century, 9 a movement that
emphasized the aggregation of large amounts of empirical data to mark points
of divergence between law-in-the-books and law-in-action, with the goal of
understanding how well the state actualized its goals, or what factors blocked
it from so doing. 10
3. Reinhard Zimmerman might be taken as an exemplum of this genre. See Zimmermann 2007, or his
immensely learned treatise on obligations, Zimmermann 1996. For historical context, see Thomas 1984; Whit-
man 1990; Stein 1999; Tuori 2007. A helpful introduction to the disciplinary priorities of traditional continen-
tal legal scholarship can be found in Merryman and Pérez-Perdomo 2007.
4. Beatson and Zimmerman 2004.
5. This tradition is fairly represented by those who occupied the Douglas Chair in Civil/Roman Law at
the University of Glasgow: Alan Watson, Olivia Robinson, and (currently) Ernest Metzger; Edinburgh simi-
larly has an important tradition.
6. Annona: Sirks 1991; provincial administration: recently Fournier 2010; Kantor forthcoming.
7. Classic is Jones 1964; commerce: Minaud 2011; social institutions: Treggiari 1991; McGinn 1998;
Champlin 1991 (despite its title, Służewska and Urbanik 2005 is mostly concerned with doctrinal questions);
imperial legislation: Evans-Grubbs 1995; Dillon 2012.
8. Economic institutions: see esp. Kehoe 2007; dispute processing: Hobson 1993; Harries 1999; Frakes
2001.
9. Crook 1967; more recently, Johnston 1999; Aubert and Sirks 2002; Cairns and du Plessis 2007; du
Plessis 2013. A helpful survey of historians’ methodology can be found in Matthews 2006. The “law and
society” tradition has long roots in papyrology: Keenan 1975; Lewis 1983 (and his collected essays, Lewis
1995); Bagnall 1993; 1995; Gagos and van Minnen 1994; Keenan et al. 2014.
10. For overview and critique, Sarat 1985.
11. De Angelis 2010; Riggsby 1999; Humfress 2013b (see also Humfress 2007); Rives 2008 (see also
Rives [2003] 2009; Noreña in progress).
12. Gleason 1999; Shaw 2003; Harries 1999; Connolly 2010; Kelly 2010; Bryen 2013; Hezser 2003; Cohn
2009; Fögen 2002; Ando 2011. Other recent highlights: Meyer 2004; Bablitz 2007; Bannon 2009; Grey 2011;
Dillon 2012. These recent studies had important antecedents in Frier 1985.
13. Harries 2006; Schiavone 2012.
14. I borrow the term “field” from two seminal studies in the “law and society” tradition: Moore 1973;
Bourdieu 1987.
15. König and Whitmarsh 2007; Gill et al. 2009; Lehoux 2012.
The cumulative result of all this recent scholarly activity is that a number
of our working assumptions about Roman law no longer hold. Roman law
is beginning to look less like ratio scripta; or at the very least the interests
of a legal ratio and its relations to disciplined writing and the institutional
frameworks that legitimate such writing are being questioned in new and
interesting ways. The legal order as a whole is appearing more complex than
statutes or imperatives, than the lists of the “sources of law” famously pro-
posed by Cicero, Gaius, or Pomponius. As a result, statist or decisionistic
frameworks—the idea that law is essentially a state practice whose aim is
primarily the processing of disputes and the deciding of conflicts—have be-
come harder to defend. 16 The idea that law is a reflection of a given society’s
history and character seems increasingly problematic. When law is no longer
an expression of authentic or ideal modes of social organization, it no longer
makes sense to speak of legal change as vulgarization or hybridization, at
least not in the sense that it has been, namely, as a proxy for cultural change.
In writing histories of Roman law and legal institutions it no longer seems
methodologically defensible to begin with the outline proposed by our only
ancient narrative history of Roman law, Pomponius’ Enchiridion, or even to
raise his account to anything more than the partial account of a specialized
insider designed to police his disciplinary boundaries. But when the history of
law can no longer be equated with the history of the quality of jurisprudence,
the traditional periodizations of pre-classical, classical, and post-classical/
epi-classical law are revealed for what they are—the aesthetic judgments of
lawyers—and made decreasingly tenable as a priori categories of historical
analysis.
But if the traditional analytical moves now seem problematic, then we are
left with a package of methodological questions. Where should we be look-
ing for legal sources? What should we (or could we) count as being a legal
source, that is, a source that should have bearing on the ways in which we
write a history of law as a contested practice? Can we be satisfied with the
standard collections of legal sources? If we can, why, and if we cannot, then
why not, and with what should they be supplemented or replaced? Where, in
other words, should we go looking for law, and what criteria will enable us
to know when we have found it? Second, if we are now to think of law as
a meaningful practice, then how are we to give accounts of the dynamics of
legal institutions? If we jettison the old narratives of pre-classical, classical,
and epi-classical (or post-classical), then with what should we replace them?
What might a new framework for writing Roman legal history look like?
* * * * *
16. Cic. Top. 28; Gai. Inst. 1.2; Dig. 1.2.2.12 (Pomponius Enchiridion = Lenel 1889, 2: col. 46).
commands of those who are allowed to make rules for others. A collection
of statutes (a term I use in its broadest possible sense) would show us the
moments where legitimate power sought to intervene in other people’s lives:
defining a valid agreement here, providing a remedy there, defining the status
of people and attaching rights to some while removing rights from others,
and so on. In the Roman case we would probably have to add that, at a
certain point in Roman history, and for certain purposes, legal sources also
consisted of the authoritative interpretations of those expert jurists who, either
by formal or customary mechanisms, were regarded as privileged interpreters
of legal rules. 17
This is not a bad formulation. To those who subscribe to a statist/positiv-
istic framework (and it bears reminding that statist/postivistic frameworks
are not ipso facto problematic), it could cover the bulk of what we generally
recognize as authoritative legal materials. We can join to this the assumption
that, when coupled with reliable enforcement mechanisms, positive law will
tend to incentivize compliance on the part of law’s end users (the great mass
of population whose duty it is to follow official rules or suffer withdrawal of
state protection, if not state violence). This assumption would seem reason-
able, especially considering that large numbers of documents recording pri-
vate law transactions tend to conform, at least outwardly and in the broadest
sense, with the dictates of the positive law. 18 This combination of statute and
evidence of compliance might then produce a relatively broad spectrum of
evidence for legal behavior. These criteria for finding legal sources, moreover,
would have another advantage: they are recognizable to most Roman legal
historians. They could easily be deduced from the outline of one of the most
famous modern collections of Roman legal materials. 19
But while such a definition might not be internally problematic, it is sub-
stantially incomplete. Most importantly, by reducing “law” to mere scripts
to be executed, it occludes the totality of legal context, and in particular,
the totality of the narrative materials that animate legal rules and make them
meaningful in any particular historical context. 20 I mean this not only in the
weak sense, namely, that the proper study of legal systems involves placing
them within their social, economic, and political “frames” and analyzing them
accordingly. I mean this too, of course, but the claim is intended in a stronger
sense as well: that our criteria for recognizing a legal text are, in the statist
formation, restricted to finding linguistically identifiable moments where the
state or its authorized representatives make a declaration, use an imperative,
or present an authoritative “if-then” statement. But we cannot understand the
location of sovereign power, its claims to legitimacy, or its regulatory author-
ity without understanding what it is or where its boundaries lie. For this we
need not limp “context,” but robust narrative.
17. On the position of the jurists and their reception in modern historiography, see Tuori 2007, 71–134.
18. See Meyer 2007 for the diplomatics of documents from the Judaean desert; compare the relative rapid-
ity of legal changes—at least at the level of diplomatic formality—that follow in the wake of the Constitutio
Antoniniana: e.g., Gilliam 1965, with more recent developments summarized in Hekster 2008, 45–55; Ando
2012, 76–99.
19. Riccobono et al. 1940. More inclusive (while still positivistic) is Wenger 1953.
20. Cover 1992 is essential, as is Ewald 1995, 1939–43, 1986–87. Compare Richland 2008, 115–45.
21. My understanding of narratives here bears some resemblance to the concept of the “rule of recogni-
tion” advanced by Hart 1961. But it is important to differentiate a narrative from a rule, even a rule of recogni-
tion: a narrative is not transcendent or, to use Hart’s terminology, “ultimate.” It is also not abstract, but instead
links events in time and space to a normative understanding of the world. In the case of a narrative about law, it
similarly links law and legal authority to other spheres of human practice. See further Cover 1992.
22. See esp. Fögen 2002, 78.
23. Cf. Ando 2000, 73–130.
24. Dig. 4.4.38.praef. (Paulus 1 Decretorum = Lenel 1889, 1: col. 960), trans. Watson (1988) 2009.
which the sale might be rescinded fell in the time of the pupilla [that is, after her father’s
death], and she had brought it about that that the conditions of the sale were not observed.
I said that a better reason for granting restitutio would be that the seller, by giving a warn-
ing after the day on which it had been agreed that the sale might be rescinded and by seek-
ing the price, is held to have departed from his own condition. I also said that I was not
concerned by the fact that the time had run out after the death of the father, any more than
if a creditor had sold a pledge when the day for payment had passed after the death of the
debtor. Nevertheless, because the lex commissoria displeased him, the emperor awarded
restitutio in integrum. He was also influenced by the fact that the former tutors who had
not sought restitutio had been declared suspect.
This story can be read as a “leading case” that bears on the development of
a distinct branch of law relating to the rights of minors. Read in this way, it
might provide an example of how the emperor served as a court of last resort
for the desperate, overruling the strictness of the laws and creating bonds of
reciprocal dependency with his subjects. 25 It may also serve as a case that
generates a precedent, wherein the emperor proclaims, through his verdict,
that he will intervene to overturn legal transactions with minors even in cases
where restitution was not previously possible. This is how it was read recently
by Detlef Liebs, who did not fail to point out that this was something of a
problematic decision, one that placed intolerable pressure on the seller of
the land. 26 In this style of reading, the legal principles at stake (“the law”) is
abstracted from “the fact pattern” (the sum total of relevant interactions be-
tween Ovinius, Laurianus, the unnamed pupilla, and her tutors), which is then
processed by multiple, authoritative interpretive actors (the praetor, the urban
prefect, Paulus, and the emperor). These actors then render a series of deci-
sions to either follow or apply the law as currently constituted, or to change
or expand the rules of restitutio to encompass this and other similar cases.
The result is that the law, at the end of the day, has been shifted slightly, and
sellers, perhaps unfairly, would do well to take notice when contemplating the
inclusion of leges commissoriae in transactions with buyers who might soon
die leaving young children. One practical result of such a situation would be
that the costs of engaging in such transactions would rise.
There is another way to read this story. Here, we have both a case on resti-
tutio, as well as a small opera—a legal narrative with normative social force.
We have, in other words, what students of Talmud might call an aggadah—a
conscious narrative reflection—on the problems posed by a system in which
an emperor and a jurist might together serve, albeit with asymmetric power
and knowledge, as a court of last resort for the young and the possibly fool-
ish. 27 In this mini-drama, we have the pupilla and her story, a limit case for
evoking imperial pathos, for, as Paulus informs us, he feels the case was
rightly decided (putabam bene iudicatam)—restitution only being available
for cases in which the minor him- or herself engaged in the transaction. Paulus
28. Those who doubt that such reasoning poses a threat to legal systems because it could be held to be
formally valid would do well to look at the case of Joel Rene Valdez.
29. Compare Cuomo 2007, 226.
qui non restitui desiderassent, suspecti pronuntiati erant). Notice that here the
standoff has ended: the emperor no longer engages in jurisprudence, but is
instead reinstated in his proper role as a primarily affective actor who polices
community morality and protects the weak. This is not to say, of course, that
he cannot contribute to the body of jurisprudence, but only that he cannot
contribute unreasonably. He cannot make a contribution that a jurist himself
would not be able to naturalize within the system. The narrative, in other
words, reinstates a delicate balance, with both characters saving face; to boot,
the pupilla receives justice.
Such a story turns on the recognition of loci of power in society, and how
those loci fall apart when confronted with an example of unfairness. It is a
story that explains who gets to make rules and under what circumstances, as
well as how to recognize the sources of those rules. Without it, we cannot
recognize the distinction between legal actors; every decision made will seem
partial and positivistic in the worst sense of the word: as arbitrary, as existing
only because a powerful actor at a particular moment succeeded in imposing
his will upon another. With it, the world can have a normative anchor: with
it, law can serve its function of repair between the pupilla, her tutores, and
the seller, as well as between an emperor and an expert.
Paulus’ narrative is a legal source both because it seeks to explain the con-
tent of a particular rule and because it provides a narrative explanation of the
conditions for rule-activating. To his piece of juristic drama we can juxtapose
another, somewhat grubbier, drama, and ask similar questions: 30
To Aurelius Marcianus, centurion, from Aurelius Sarapion, son of Paseis, from the town
of Philadelphia. There is nothing more horrid and miserable than violence [ὕβρεως οὐδὲν
οὔτε δεινότερον οὔτε χαλεπώτερον]. I have made it to this age—over eighty!—blamelessly
serving as Arab archer. One of my daughter’s piglets wandered off in the town. It was said
to have ended up with Julius, a soldier. I went to him and asked him to swear an oath [that
he did not have it]. But he grabbed me, though I am an old man, in the middle of the day
and in public, as if the laws didn’t exist [ὡς οὐκ ὄντων νόμων], and abused me with blows
in the presence of Nepotianus the procurator of the most eminent Valerius Titianus, and
Mauros and Ammonios, the Arab archers. These men, scandalized that I was being beaten,
tried to separate us, and I barely escaped the attempt on my life. Therefore of necessity I
submit this petition, asking that he be brought up so that his offenses receive fitting punish-
ment and that my account remain on file. Farewell. Sarapion, roughly 84 years old, with a
scar on his right leg. Year 6, Imperatores Caesares Marci Julii Philippi Pii Felices Augusti,
Hathyr 26.
This story too can be read as a “case”: a man and his neighbor, in the course
of a quarrel, ended up in a fistfight, and the plaintiff got the worst of it. Here it
might be relevant that they are mismatched in age and rank, since, according
to Roman law, iniuria (here, hybris) is counted as more problematic when it is
done across a wide social gap, as well as when it is done in a public place. 31
We might note as well that the petitioner provides the names of witnesses,
men who will be deemed especially credible by their rank. 32 On these criteria
reach a point of tension: if one were to ask, as I did for the Digest passage,
what are the sources of rule-making and the loci of power and authority in
this case, we would have to grant that Sarapion and his narrative have at least
some sort of role in this process. But once we do this—once we are opened
to possibility that actors on the ground are not only reflecting the law but are
similarly contributing to it by persuading others to accept their narratives—we
have to then concede that the power of legal interpretation was much more
widespread throughout Roman society than we have previously granted, and
the power to define the network of terms and stories through which law could
have meaning was neither monopolized by the state, nor even convincing
because it emerged from state-authorized actors.
Here it bears emphasizing that I am not making a claim about “legal con-
sciousness”—the question of whether or not actors like Sarapion “knew” the
law. At some level this debate has become tired: yes, actors in the Roman
Empire knew what rules governed them, at least in some places and to a
certain degree. 34 More to the point, the question is badly phrased, for two
reasons. First, it reduces “consciousness” to a simple “yes” or “no” matter,
which seems intolerable in light of the numerous critiques of consciousness
that have been produced by philosophers in the modern age. Second, even if
we can tolerate “legal consciousness” as philosophically defensible just for
heuristic purposes, the question nevertheless puts the cart before the horse,
granting ontological priority to a “law” that the state creates, jurists expand,
and everybody else can only become conscious of or not. To make this grant a
priori, though, is problematic, when we concede that the kinds of interpretive
capacities we are concerned with are by necessity spread throughout society. 35
In other words, the consequence of the last decade’s new work in Roman legal
history is that we now have to accept that the legal order as a whole was the
product of the participation of many more actors than previous generations of
scholars had been prepared to account for, and that these actors’ participation
in creating a legal culture was not necessarily predicated on their somehow
consciously replicating official narratives, which were themselves often shift-
ing and inchoate. 36
* * * * *
people (maiestas)—because the harm that such acts caused was distributed
unevenly throughout society, rather than being directed against a specific per-
son. It similarly consisted in the creation of institutions and procedures that
could solve the problem of how to prosecute such a malefactor—in this case,
the introduction and continuous reorganization of standing criminal courts.
This burst of activity continues through the triumvirate and into the reign of
Augustus, and might be said to end roughly with Augustus’ lex Julia iudicia-
ria, which restricted the creation of new legal categories to the praetor, as well
as by his laws on marriage and the family. These latter laws, while unique in
their reach, represent a swing backward by adding to the criminal law acts that
could otherwise easily have been accommodated by existing private law prin-
ciples and procedures. 46 The next major burst of attention, this time largely
by emperors, might be said to begin with the legislation of Constantine. To
be sure, juristic treatises on criminal matters (largely pertaining to procedure,
which had been modified by imperial intervention) were periodically written
in the third century, 47 and the Julian laws on adultery continued to receive
juristic attention. 48 But these discussions are markedly distinct from the new
body of criminal laws that emerge from Constantine and his successors, which
feature increasingly complex typologies of malefactors and punishments
which continually are mapped and re-mapped upon one another. 49
But this does not mean that people were not punishing or that no attention
was given to criminal matters. It is rather that we find that as the state stops
showing creative interest in criminal law, discourse about criminality, punish-
ment, and the exclusion of members of society emerges in other venues: in
the historians, who supply much of our information about the trials that deci-
mated the senatorial elite in the first and second centuries; in novelistic texts,
whether Christian texts like the Acts of the Apostles and the Acts of Thekla, or
pagan ones like Apuleius’ Metamorphoses and Achilles Tatius’ Leukippe and
Kleitophon; in biographical texts, such as in the dénouements of Philostratus’
highbrow Vita Apollonii or the anonymous lowbrow Life of Aesop; as the
subject of critique among the Christian apologists and as an unfortunate fact
of life best avoided in the discourses of elite pagan intellectuals; in the Acta
martyrum and the Acta Alexandrinorum; in the discussions of the Rabbis on
the Sanhedrin. 50 It bears adding that these many voices were in competition
with one another, that they did not write from the same normative standpoint,
46. Although similar things might be said for the Lex Cornelia de iniuriis, which is an outlier among the
new criminal offenses of the late Republic.
47. Treatises: Callistratus Cognitionibus (= Lenel 1889, 1: cols. 81–94), with Harries 2007, 32; Aemilius
Macer, Iudiciis publicis (= Lenel 1889, 1: cols. 565–70); Aelius Marcianus Delatoribus (= Lenel 1889, 1: cols.
640–44), Iudiciis publicis (= Lenel 1889, 1: 675–80); Herennius Modestinus Poenis (= Lenel 1889, 1: cols.
728–31); none are earlier than the Severan period.
48. These discussions are perhaps the best example in the Digest of what Chaim Saiman has called “non-
applied law”—legal discussions that not only are not applied in practice, but are never meant to be applied in
practice. See Saiman forthcoming.
49. E.g., Cod. Iust. 9.18.7 = Cod. Theod. 9.16.8; on the harshness of late antique punishments, Garnsey
1968; MacMullen 1990; on the rhetoric regarding heresy in Cod. Theod. XVI, Escribano Paño 2009; on Con-
stantine’s legislation concerning officials, Dillon 2012, 156–91.
50. See, inter alia, Riess 2001; Berkowitz 2006; Kurke 2011; Bryen forthcoming a. The Acta Alexandrino-
rum are currently being re-edited by Chris Rodriguez, and will soon be published in the supplement series of
the Journal of Juristic Papyrology.
but that their competing claims nonetheless informed one another. 51 Simi-
larly, it is in this period that bandits become popular and contested signs for
thinking about the boundaries and capacities of state power. 52 There was, in
other words, a vibrant set of conversations about criminal law by non-state ac-
tors that emerged at the chronological horizon where official discourse left off.
One way to interpret this mass of material is imagine that evidence for
criminal law simply is located in distinct places in society at different times.
We would know much less about republican criminal law, for example, were it
not for Cicero, and even less about the criminal law of Late Antiquity were it
not for the Theodosian and Justinianic attempts at codification. We have a fair
amount of juristic writing from the second century, more from the third, and
little from the fourth onward. Given the uneven distribution of evidence, we
might imagine that “best practices” would mean collecting all the available
material, regardless of the kind of source, and squinting through the sources
to divine the development of doctrinal thinking on criminal law, or the ways
in which it was applied. 53
No reasonable person would argue that, given the vagaries of preserva-
tion, we have a completely representative diachronic record of all of ancient
thinking on a particular topic. But jumping to the opposite conclusion—that
the preservation of evidence for an institution is totally random, while the
institution develops according to its own internal dynamics—is perhaps a
greater error. We should thus entertain the possibility that the distribution of
evidence might to some degree be the result of shifting interests on the part
of different imperial populations—that the meaningfulness of discourses of
criminality slides from state to non-state actors and back. In this sense, the
evidence we have is not an accident of preservation, but rather an index,
albeit an imperfect one, of the competing ways that an institution comes to be
meaningful; a politics of punishment, played out at the level of both impera-
tive and commentary, unfolding over time, that seeks to locate and negotiate
the boundaries and content of legitimate authority.
I pose this example purely for heuristic purposes, as an example of what
a legal history might look like that accepts a broad array of participants and
commitments. It is wildly incomplete as a proper legal history. But if it lacks
flesh on its bones, one reason might be that we still lack, as historians, a rich
explanatory language for understanding the reasons why, and the institutional
or cultural mechanics by which, a matter of law might come to move from the
commentaries of one group to those of another. We especially lack tools for
explaining the ways in which legal ideas, narratives, and normative commit-
ments might move across a landscape sectioned not only by differential de-
grees of official (and unofficial) power, but also across languages and cultures
and religions, across disparate geographies over which authorities exercised
shifting degrees of control, and through which communications and knowl-
edge flowed at uneven rates. 54 We might find, moreover, that we lack even
LITERATURE CITED
Ammirati, Serena. 2012. The Latin Book of Legal Content: A Significant Typology in the History
of the Book. In Actes du 26e Congrès international de papyrologie (Genève 2010), ed. Paul
Schubert, 19–25. Geneva.
Ando, Clifford. 2000. Imperial Ideology and Provincial Loyalty in the Roman Empire. Berkeley
and Los Angeles.
. 2011. Law, Language, and Empire in the Roman Tradition. Philadelphia.
. 2012. Imperial Rome, ad 193–284: The Critical Century. Edinburgh.
Aubert, Jean-Jacques, and A. J. B. Sirks, eds. 2002. Speculum Iuris: Roman Law as a Reflection
of Social and Economic Life in Antiquity. Ann Arbor, Mich.
Aubert, Jean-Jacques, and Philippe Blanchard, eds. 2009. Droit, religion, et société dans le Code
Théodosien. Geneva.
Bablitz, Leanne. 2007. Actors and Audience in the Roman Courtroom. London.
Bagnall, Roger S. 1993. Egypt in Late Antiquity. Princeton, N.J.
. 1995. Women, Law and Social Realities in Late Antiquity: A Review Article. BASP
32: 65–86.
Bannon, Cynthia. 2009. Gardens and Neighbors: Private Water Rights in Roman Italy. Ann
Arbor, Mich.
Beatson, Jack, and Reinhard Zimmerman, eds. 2004. Jurists Uprooted: German-speaking Emigre
Lawyers in Twentieth-century Britain. Oxford.
Benton, Lauren A. 2010. A Search for Sovereignty: Law and Geography in European Empires,
1400–1900. Cambridge.
Berkowitz, Beth A. 2006. Execution and Invention: Death Penalty Discourse in Early Rabbinic
and Christian Cultures. Oxford.
Bourdieu, Pierre. 1987. The Force of Law: Towards a Sociology of the Juridical Field. Hastings
Law Journal 38: 814–53.
Boyarin, Daniel. 1999. Dying for God: Martyrdom and the Making of Christianity and Judaism.
Stanford, Calif.
. 2009. Socrates and the Fat Rabbis. Chicago.
Brélaz, Cédric. 2005. La securité publique en Asie Mineure sous le Principat (Ier–IIIème s. ap.
J.-C.): Institutions municipales et institutions impériales dans l’Orient romain. Basel.
Bryen, Ari Z. 2013. Violence in Roman Egypt: A Study in Legal Interpretation. Philadelphia.
. Forthcoming a. Martyrdom, Rhetoric, and the Politics of Procedure. ClAnt 33.
. Forthcoming b. Tradition, Precedent, and Power in Roman Egypt. In Official Episto-
lography and the Language(s) of Power, ed. Lucian Reinfandt and Sven Tost. Vienna.
Cairns, John W., and Paul J. du Plessis, eds. 2007. Beyond Dogmatics: Law and Society in the
Roman World. Edinburgh.
Champlin, Edward. 1991. Final Judgments: Duty and Emotion in Roman Wills, 200 b.c.–a.d.
250. Berkeley and Los Angeles.
Cohn, Naftali S. 2009. Rabbis as Jurists: On the Representation of Past and Present Legal Institu-
tions in the Mishnah. JJS 60: 245–63.
Connolly, Serena. 2010. Lives behind the Laws: The World of the “Codex Hermogenianus.”
Bloomington, Ind.
Cover, Robert M. 1992. Narrative, Violence, and the Law. Ann Arbor, Mich.
. 2013b. Thinking through Legal Pluralism: “Forum Shopping” in the Later Roman
Empire. In Law and Empire: Ideas, Practices, Actors, ed. J. Duindam et al., 225–50. Leiden.
Johnston, D. 1999. Roman Law in Context. Cambridge.
Jones, A. H. M. 1964. The Later Roman Empire, 284–602: A Social Economic and Administra-
tive Survey. Norman.
Kantor, Georgy. Forthcoming. Law in Roman Asia Minor (133 bc–ad 212). Oxford.
Katzoff, Ranon. 1981. On the Intended Use of P.Col. 123. In Proceedings of the XVI International
Congress of Papyrology, ed. Roger S. Bagnall, 559–73. Chico, Calif.
Keenan, James G. 1975. On Law and Society in Late Roman Egypt. ZPE 17: 237–50.
Keenan, James G., Joseph G. Manning, and Uri Yiftach-Firanko, eds. 2014. Law and Legal
Practice in Egypt from Alexander to the Arab Conquest. Cambridge.
Kehoe, Dennis P. 2007. Law and the Rural Economy in the Roman Empire. Ann Arbor, Mich.
Kelly, Benjamin. 2010. Petitions, Litigation, and Social Control in Roman Egypt. Oxford.
König, Jason, and Tim Whitmarsh, eds. 2007. Ordering Knowledge in the Roman Empire.
Cambridge.
Kurke, Leslie. 2011. Aesopic Conversations: Popular Tradition, Cultural Dialogue, and the
Invention of Greek Prose. Princeton, N.J.
Lehoux, Daryn. 2012. What Did the Romans Know? An Inquiry into Science and Worldmaking.
Chicago.
Lenel, Otto. 1889. Palingenesia iuris civilis. 2 vols. Leipzig (repr. Aalen, 2000).
Lewis, Naphtali. 1983. Life in Egypt under Roman Rule. Oxford and New York.
. 1995. On Government and Law in Roman Egypt: Collected Papers of Naphtali
Lewis. Atlanta.
Liebs, Detlef. 2012. Summoned to the Roman Courts: Famous Trials from Antiquity. Berkeley
and Los Angeles.
Lintott, A. W. 1999. The Constitution of the Roman Republic. Oxford.
MacMullen, Ramsay. 1990. Judicial Savagery in the Roman Empire. In Changes in the Roman
Empire: Essays in the Ordinary, 204–17. Princeton, N.J.
Matthews, John. 2000. Laying Down the Law: A Study of the Theodosian Code. New Haven,
Conn.
. 2006. Roman Law and Roman History. In A Companion to the Roman Empire, ed.
David S. Potter, 477–91. Malden, Mass.
McGinn, Thomas A. J. 1998. Prostitution, Sexuality, and the Law in Ancient Rome. Oxford.
McNamee, Kathleen. 2007. Annotations in Greek and Latin Texts from Egypt. Chico, Calif.
Merryman, J. H., and R. Pérez-Perdomo. 2007. The Civil Law Tradition. Stanford.
Meyer, Elizabeth A. 2004. Legitimacy and Law in the Roman World: Tabulae in Roman Belief
and Practice. Cambridge.
. 2006. The Justice of the Roman Governor and the Performance of Prestige. In
Herrschaftsstrukturen und Herrschaftspraxis: Konzepte, Prinzipien, und Strategien der Ad-
ministration im römischen Kaiserreich, ed. Anne Kolb, 167–80. Berlin.
. 2007. Diplomatics, Law, and Romanisation in the Documents from the Judean Des-
ert. In Cairns and du Plessis 2007, 53–82.
Millar, Fergus. 1977. The Emperor in the Roman World, 31 bc–ad 337. Ithaca, N.Y.
Minaud, Gérard. 2011. Les gens de commerce et le droit à Rome. Aix en Provence.
Moore, S. F. 1973. Law and Social Change: The Semi-Autonomous Social Field as an Appropri-
ate Subject of Study. Law and Society Review 7: 719–46.
Nicolet, Claude. 1980. The World of the Citizen in Republican Rome. Trans. P. S. Falla. Berkeley
and Los Angeles.
Noreña, Carlos. In progress. Authority and Subjectivity in Apuleius’ Apology.
Oliver, James Henry. 1989. Greek Constitutions of Early Roman Emperors from Inscriptions
and Papyri. Philadelphia.
Peachin, Michael. 1996. Iudex vice Caesaris: Deputy Emperors and the Administration of Justice
during the Principate. Stuttgart.
Poethke, Günter, Sebastian Prignitz, and Veit Vaelske. 2012. Das Aktenbuch des Aurelios Philam-
mon: Prozessberichte, Annona Militaris und Magie in BGU IV 1024–1027. Berlin.
Riccobono, Salvatore, et al., eds. 1940. Fontes iuris romani anteiustiniani. 3 vols. Florence.
Richland, Justin B. 2008. Arguing with Tradition: The Language of Law in Hopi Tribal Court.
Chicago.
Riess, Werner. 2001. Apuleius und die Räuber: Ein Beitrag zu historischen K
riminalitätsforschung.
Stuttgart.
Riggsby, Andrew M. 1999. Crime and Community in Ciceronian Rome. Austin.
. 2010. Roman Law and the Legal World of the Romans. Cambridge.
Rives, James B. 2008. Legal Strategy and Learned Display in Apuleius’ Apology. In Paideia at
Play: Learning and Wit in Apuleius, ed. Werner Riess, 17–49. Groningen.
. 2009. Magic in Roman Law: The Reconstruction of a Crime. In The Religious His-
tory of the Roman Empire: Pagans, Jews, and Christians, ed. J. A. North and S. R. F. Price,
71–108. Oxford.
Robinson, O. F. 2006. Penal Practice and Penal Policy in Ancient Rome. Oxford.
Saiman, Chaim. Forthcoming. Halakhah: The Rabbinic Ideal of Law. Princeton, N.J.
Sarat, Austin. 1985. Legal Effectiveness and Social Studies of Law: On the Unfortunate Persis-
tence of a Research Tradition. Legal Studies Forum 9: 23–31.
Schiavone, Aldo. 2012. The Invention of Law in the West. Trans. Jeremy Carden and Antony
Shugaar. Cambridge, Mass.
Schwartz, Saundra. 2010. Chronotopes of Justice in the Greek Novel. In Spaces of Justice in the
Roman World, ed. Francesco de Angelis, 331–56. Leiden.
Shaw, Brent D. 1984. Bandits in the Roman Empire. PastPres 105: 3–52.
. 2003. Judicial Nightmares and Christian Memory. JECS 11: 533–63.
Sirks, A. J. B. 1991. Food for Rome: The Legal Structure of the Transportation and Processing
of Supplies for the Imperial Distributions in Rome and Constantinople. Amsterdam.
Służewska, Zuzanna, and Jakub Urbanik, eds. 2005. Marriage: Ideal—Law—Practice; Proceed-
ings of a Conference Held in Memory of Henryk Kupiszewski. Warsaw.
Stein, Peter. 1999. Roman Law in European History. Cambridge.
Thomas, Yan. 1984. Mommsen et “l’Isolierung” du droit (Rome, l’Allemagne et l’État). Paris.
Treggiari, Susan. 1991. Roman Marriage: Iusti coniuges from the Time of Cicero to the Time
of Ulpian. Oxford.
Tuori, Kaius. 2007. Ancient Roman Lawyers and Modern Legal Ideals: Studies on the Impact
of Contemporary Concerns in the Interpretation of Ancient Roman Legal History. Frankfurt.
Walzer, Michael. 1987. Interpretation and Social Criticism. Cambridge, Mass.
Watson, A. (1988) 2009. The Digest of Justinian. Philadelphia.
Wenger, Leopold. 1953. Die Quellen des römischen Rechts. Vienna.
Whitman, James Q. 1990. The Legacy of Roman Law in the German Romantic Era: Historical
Vision and Legal Change. Princeton, N.J.
Wimpfheimer, Barry Scott. 2011. Narrating the Law: A Poetics of Talmudic Legal Stories.
Philadelphia.
Wood, Ian, and Jill Harries, eds. 1993. The Theodosian Code: Studies in the Imperial Law of
Late Antiquity. London.
Zimmermann, Reinhard. 1996. The Law of Obligations: Roman Foundations of the Civilian
Tradition. Oxford.
. 2007. Roman Law and European Culture. New Zealand Law Review: 341–72.