Riggsby - Roman Law and the Legal World of the Romans

Andrew M. Riggsby

CAMBRIDGE UNIVERSITY PRESS

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Riggsby, Andrew M.

Roman law and the legal world of the Romans / Andrew M. Riggsby.

p. cm.

Includes bibliographical references and index.

ISBN 978-0-521-86751-1 (hardback)

1. Roman law Social aspects. I. Title.

KJA147.R544 2010

340.54 dc22 2010018287

ISBN 978-0-521-86751-1 Hardback

ISBN 978-0-521-68711-9 Paperback

Today the ancient Romans are probably best known for the dramatic and bloody parts of their world (say, gladiators and legions) or for the quaint details (think aristocrats wearing togas and carried in sedan chairs). But if we ask what their most important or most lasting mark on the world was, the answer would almost certainly be their legal system. Of course, many other ancient societies had legal codes, some long before the Romans. A famous inscription now housed in Paris gives us the Code of Hammurabi, a set of nearly 300 legal rules from eighteenth-century B.C. Babylon. The five Old Testament books of the Torah offer us much Jewish law from rather later. The other great classical civilization, that of Greek Athens, has left us a substantial legacy of courtroom oratory. Yet over the course of centuries, the Romans developed something genuinely different. Their legal system was vastly larger, more encompassing, more systematic, and more general than anything else that existed at the time. Moreover (and through different routes) it returned to life even after the fall of the Roman Empire. The written remains of Roman law became the fundamental source for the so-called civil law that governs most European countries, and it has had a significant (if less direct) effect on the common law of England and the United States. These kinds of facts, combined with a certain amount of prejudice, have come together as parts of a common stereotype of the two classical Mediterranean civilizations: the Greeks were artists, thinkers, and writers; Romans were more practical people: soldiers, engineers, and lawyers.

Like many such grand generalizations, this one contains a small kernel of truth, but that should not distract us, especially when we want to look at the world experienced by individual Romans. They didnt organize their entire lives to be the sober, methodical ones in contrast to the more creative Greeks for our convenience. In fact, their attitudes toward the law were more complicated than the sketch Ive just given might suggest, and in some respects were surprisingly modern. To get a clear view of this, we could do worse than to look at two texts written in the middle of the first century B.C. by the same person, but from two very different points of view. The person is Marcus Tullius Cicero, a politician, orator, and amateur expert on the law, and he will reappear throughout this book. The first text is a eulogy he delivered in 43 B.C. for the even greater legal expert Servius Sulpicius Rufus. It reads in part:

The law is a noble, honorable calling. It settles disputes rather than creating them, and in general makes life better. Servius is the opposite of the lawyer as shark in the first joke just quoted.

The second is a bit of a speech delivered in late 63 B.C. At that time, Cicero was one of the two consuls (chief executives of the Roman government), but he was simultaneously acting as an advocate for a man who was on trial for (allegedly) using bribery in the election to succeed Cicero in office. Cicero argued (among other things) that his client didnt need to bribe anyone since he was obviously going to win anyway the defendant was a war hero, while his opponent was a lawyer. While parts of the speech have a serious tone, this part works by using humor, and humor of a type more than a little familiar today. Ciceros weapon of choice is, in so many words, the lawyer joke. His point is not that lawyers are vicious (as in the shark joke), but that they obscure the issues behind clouds of artificial detail and complexity (as with the lightbulb example):

From there he goes on to play out all the technical moves and responses required to actually bring a case to trial. Imagine a modern document full of legal phrases like party of the first part and collateral estoppal; this is the Roman version. In one sense, Ciceros mockery is fair. Most of the legal language he quotes is well attested in reality (see [20] for the roundabout way of naming a piece of property). But it is less clear that the bits of legalese he has made up are just a wordier translation of the simple Latin he started with. In the real world, and especially in trials in which the other side may try to pick apart the language being used, those extra words may actually be necessary for clarity and precision.