O. F. Robinson - The Sources of Roman Law: Problems and Methods for Ancient Historians

The notion and understanding of law penetrated society in Ancient Rome to a degree unparalleled in modern times. The poet Juvenal, for instance, described the virtuous man as a good soldier, faithful guardian, incorruptible judge and honest witness.

This book is concerned with four central questions: Who made law? Where did a Roman go to discover what the law was? How has the law survived to be known to us today? And what procedures were there for putting the law into effect? In The Sources ofRoman Law, the origins of law and their relative weight are described in the light of developing Roman history. This is a topic that appeals to a wide range of readers. The law student will find illumination for the study of the substantive law. The student of history will be guided into an appreciation of what Roman law means, as well as its value for the understanding and interpretation of Roman history. Both will find invaluable the description of how the sources have survived to inform our legal system and pose their problems for us.

O.F.Robinson, Reader in Law at the University of Glasgow, is a Roman lawyer and legal historian. She has published widely on Roman criminal and administrative law and is the author of Ancient Rome: City Planning and Administration (1992) and The Criminal Law of Ancient Rome (1995).

Approaching the Ancient World

Series editor: Richard Stoneman

The sources for the study of the Greek and Roman world are diffuse, diverse, and often complex, and special training is needed in order to use them to the best advantage in constructing a historical picture.

The books in this series provide an introduction to the problems and methods involved in the study of ancient history. The topics covered will range from the use of literary sources for Greek history and for Roman history, through numismatics, epigraphy, and dirt archaeology, to the use of legal evidence and of art and artefacts in chronology. There will also be books on statistical and comparative method, and on feminist approaches.

First published in 1997
by Routledge
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This edition published in the Taylor & Francis e-Library, 2006.

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1997 O.F. Robinson

All rights reserved. No part of this book may be reprinted or reproduced or utilized in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers.

British Library Cataloguing in Publication Data
A catalogue record for this book is available from the British Library

Library of Congress Cataloguing in Publication Data
Robinson, O. F.
The sources of Roman law: problems and methods for ancient historians / O.F. Robinson
p. cm (Approaching the ancient world)
Includes bibliographical references and index.
1. Roman lawSources. I. Title. II. Series.
KJA190.R63 1997
340.54dc20967551
CIP
ISBN 0-203-03259-4 Master e-book ISBN
ISBN 0-203-17806-8 (Adobe eReader Format)
ISBN 0-415-08994-8 (Print Edition)
0-415-08995-6 (pbk)

This book attempts to explain the nature of the sources of Roman law, and to discuss their use both then and now. The first chapter gives an outline history of Roman law, designed to show the authority of those responsible for the different forms taken by the sources; it also shows the changing balance between them. Then, in the second chapter, the sources are looked at with a lawyers definition: where does one go to discover what the law is. Here the different forms, and their relationship with each other, are considered. In the third chapter the focus is on the sources as the information on law available to a modern romanist, and the ways in which the sources have survived. The fourth chapter deals with the mechanisms by which the law was put into effect; how was a source made effective, how in practice did the sources blend, or provide room for conflict. Since so much of the development of Roman law was predicated on forms of process, the sources are difficult to understand without some knowledge of procedure. The fifth chapter looks at the problems of the sources, and the hazards of using them for writing history, even legal history, but far more for social or political history. I hope that students of both Roman history and Roman law will find it useful.

The focus of this book is on private law (the ius civile of the Middle Ages). This is largely because private law was the chief interest of the most creative makers of law, the jurists, but partly too because the later influence of Roman law has been predominantly in this field. This means that, inevitably, some institutions of the private law are mentioned, and there is, in general, not space to explain them. The reader who needs help should turn to Berger (1953) for a definition, or to one of the elementary treatises on Roman law such as Borkowski (1994), Lee (1956), Nicholas (1962), Thomas (1976), or Watson (1970); Buckland (1963) remains the standard textbook in English. (There is, incidentally, a deliberate bias towards the English language in the sources cited.) The Oxford Classical Dictionary gives basic information about the major historical events and figures, including the emperors.

Since this is an introduction to the sources of Roman law, it is concerned with the ancient world, whether that be taken to mean the Twelve Tables of the early Republic or Justinian. It therefore does not investigate the Romano-Germanic laws, which for the purposes of this book are only of interest as the path by which other, truly Roman, sources were transmitted to the modern world. Similarly it does not deal with the eastern history of Justinians law, Byzantine law.

Dates are all AD, unless otherwise specified. Quotations from the Digest are taken from the Watson translation, with some modifications, those from the Theodosian Code from Pharrs. The remaining translations are mostly my own.

I owe a considerable debt to Professor Dieter Nrr who, whether or not he realizes it, gave me the idea of how I should shape this book, which came to fruition in Mainz when I should have been thinking of other things. I owe an enormous debt to Professor Alan Watson, with whom I by no means always agree, but who has stimulated my thinking all my Roman law life. I am grateful to him, to Professor Michael Rainer, and to Dr Robert Frakes for reading the whole draft, and making valuable suggestions. I make the usual but truthful disclaimer that they are not responsible for my errors and omissions. Professors Michael Hoeflich and Hagith Sawan also made helpful comments while I was spending a very enjoyable and fruitful semester in the University of Kansas.