Law in Many Pieces

Law in Many PiecesAuthor(s): Ari Z. BryenSource: Classical Philology, Vol. 109, No. 4 (October 2014), pp. 346-365Published by: The University of Chicago PressStable URL: http://www.jstor.org/stable/10.1086/677860 .

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Classical Philology 109 (2014): 346–65[© 2014 by The University of Chicago. All rights reserved] 0009-837X/14/10904-0003$10.00

LAW IN MANY PIECES

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.



347lAw in mAny pieceS

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).



348 Ari Z. Bryen

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.




But the newest wave of studies is qualitatively and disciplinarily different from these more established approaches. These studies are in general not pri-marily interested in using legal sources as a window into everyday practices or as a way of assessing the effectiveness of state projects; they are interested instead in law itself. But here the interest is markedly different from the inter-est of the doctrinal lawyers. As noted above, their interests are anthropological or at least humanistic, in the sense that they are interested in law as a practice, a place where meaning is located and negotiated. Accordingly, these scholars’ disciplinary grounding is more in comparative literature and cultural studies than in the more empirical disciplines of institutional economics, sociology, and political science that have traditionally been the mainstays of the “law and society” movement. This disciplinary shift, in brief, is from structure to meaning: alongside studies of the functioning of the praetor’s court, we now see “Spaces of Justice”; alongside the organization of quaestiones perpetuae, “Crime and Community”; alongside Reichsrecht und Volksrecht, legal plural-ism; alongside Ulpian, Apuleius. 11 The list of recent works in this vein can be extended: studies of spectacle and subjectivity in provincial criminal law, on the interaction between formal and informal dispute resolution practices in Late Antiquity, on the interaction of state and subject in the administration of justice in everyday life, of petitions and litigation in Egypt, of the reception of legal culture and the construction of expertise in provincial communities, of law and mythology, and of the cognitive resources that enabled the Ro-man jurists to conceptualize the transformations of empire. 12 To this group of studies one can add now new histories of doctrine, but ones that rightly resist treating doctrine as something which emerges miraculously from a hermeti-cally sealed world populated only by jurists. 13 It is worth adding that nearly all of these new histories are at least somewhat conversant (many are downright fluent) in what most American academics would label as Critical Theory.

Like their doctrinal counterparts, these scholars tend to look at law as law, and like the socioeconomic historians, they insist on placing it in the broader context of social, economic, and political relations. Where they differ is in seeing law as more than doctrine, and more than a window into or a con-straint upon daily practice. Instead, they insist on seeing the legal “field” as a distinctive sphere of human practice, a space in which meaning is made and contested by a relatively broad social constituency (broader, that is, than jurists). In this field power is not so much applied to be obeyed or resisted but is instead dialogically negotiated. 14 What is more, ancient legal thinking is increasingly subject to the same sorts of anthropological techniques that have motivated other recent studies in the organization of knowledge in antiquity. 15

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.



350 Ari Z. Bryen

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?

* * * * *

We can begin with matters of definition. What should we count as a legal source, and by what criteria might we recognize it as legal?

We could take what might be called a statist or positivist position, and argue that legal sources are, first and foremost, sources that record the positive

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.



352 Ari Z. Bryen

For without narratives—actions in time and space arranged to make them intelligible—these other linguistic forms are not identifiable, to us or to our ancient subjects, as law. 21 Narrative provides the explanatory framework for who gets to make rules, why they get to make them, and what constitutes the boundaries of legitimacy. Without it, it is impossible to tell the difference between an authorized legal actor and a potential adversary, between someone who can easily be recognized as a legitimate third party capable of solving problems and a malignant interloper barking imperatives. Stories about who legal actors are, and explanations of why and how they have achieved the capacities they possess, allow actors to distinguish between the two and un-derstand the discrete “black letter” rules and their roles within a larger system. Narratives, in other words, are not just an ingredient in our legal histories that helps “frame” or background their developments; they are an inextricable element of the system itself. 22 What is more, we must not jump to the conclu-sion that the narrative of the emperor or jurist is the same as that of the “end user,” or that the effective functioning of a legal system is dependent upon the emperor’s narrative colonizing that of the end user. 23

Two examples will help to make the problem more concrete. The first comes from the world of the jurists, in this case, from the first book of Pau-lus’ Decrees that was subsequently preserved in the Digest of Justinian. It deals with the circumstances under which a minor is capable of receiving “restoration to one’s previous status” (restitutio in integrum), a remedy given to people who had improperly been duped (because of youth), pressured, or otherwise inappropriately lured into entering into a transaction that caused them loss. In this case, a man named Aemilius Laurianus bought a tract of land from a man named Ovinius, but he bought it subject to a lex commis-soria, namely, a provision in the contract under which the seller, Ovinius, could rescind the purchase under certain circumstances: in this case, if half of the total price was not paid in the first two months after the sale or if the balance of the price was not paid within two months after that. Laurianus, however, died within the first two months, leaving his underage daughter (pupilla) as heiress. Because she was a minor, she was subject to tutores, or guardians. These tutores, however, neglected to hand over the requisite money to Ovinius, despite his frequent reminders that they pay up. Ovinius eventually sold the land to another man. At some point—we do not know how long thereafter—the daughter challenged this sale in court, asking for restitutio in integrum. Paulus continues: 24

Having lost the proceedings both before the praetor and the urban prefect, she appealed. I thought the judgment was correct because the contract had been made by her father and not by the pupilla herself. However, the emperor was swayed by the fact that the day on

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

25. Peachin 1996, 10–91.26. Liebs 2012, 167–74.27. Boyarin 2009; Wimpfheimer 2011. The story bears a certain structural similarity to the issues posed

by the famous “stove of Akhnai” passage from the Babylonian Talmud, Baba Mezia 59b (discussed by both Boyarin and Wimpfheimer, among many others). A comparison between the two might prove enlightening.



354 Ari Z. Bryen

here stands as the guardian of system. But juxtaposed to this rational—yet distinctly partisan—actor is the emperor, to whom the jurist is no less subject than the pupilla. In Paulus’ telling, the emperor was “moved” (motus est) to intervene in the case. But now we have a conflict between two actors and their normative and affective orientations. It is here that the story becomes problematic: one actor (the emperor, Severus) has power but not expertise; the other, expertise, but not power.

The result is legal cacophony: the emperor claims that the pupilla herself engaged in the transaction, because some part of it happened on her watch (dies committendi in tempus pupillae incidisset), and that because she had kept it from being carried out, that this was more or less the same as her having entered into it in the first place (eaque effecisset, ne pareretur legi venditionis). The reasoning is faulty; it is a parody of jurisprudence. But it is a parody that is matched by Paulus’ response. Realizing that power will prevail over system, Paulus quickly proffers a reason to conform to Severus’ understanding of justice: because the seller begged the tutors to conform to the terms of the agreement, the seller had in fact violated his own terms of the agreement. He would have done better, on this logic, to have simply sold the land off right away. In other words, any time a seller seeks to work with a buyer who owes part of a bill, the seller relinquishes his rights under the original arrangement. Paulus’ conclusion is a travesty of legal reasoning, and a threat, in its absurdity, to overturn basic notions of fair dealing. It is similar to saying that, when I ask a mugger to take the money but spare my life, that I’ve consented to giving away my money. 28 His solution promises that, in the future, the law will punish the basic inclinations to sociability that keep us from a state of nature. In its own way, it is a tit-for-tat with the emperor himself: it is a claim that imperial intervention, when it engages in faulty attempts at masquerading as juristic reason, will cause the jurists to shake the very foundations of good sense itself. It is a trump card that, due to their specialized knowledge, the jurists always hold, but due to their self-appointed role as “priests” of the law, they refuse to play. The result is an armed stand-off between juristic reason and imperial power. My hunch is that doctrinal scholars have failed to notice this because they are prone to think that Roman jurists, even when proffering a suboptimal solution, basically work in good faith. This assumption holds in most cases, I think, but it need not hold in all of them—at least, we are not entitled, as historians, to make this our a priori working assumption. 29

In the narrative of Paulus and the emperor (for it is no longer, on my reading, the “case” of the pupilla), the narrative eventually finds closure. The emperor merely is displeased by the lex commissoria (quia tamen lex commissoria displicebat ei); the girl’s tutores have been declared unquali-fied, as well, for not carefully overseeing the pupilla’s interests. This too displeases the emperor (movit etiam illud imperatorem, quod priores tutores,

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

30. SB IV 7464 (248 c.e.).31. Gai. Inst. 3.225.32. E.g., Dig. 22.5.3 (Callistratus De cognitionibus 4 = Lenel 1889, 1: col. 88); Meyer 2006, 172–73.



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alone it would seem reasonable to count this as a legal document: it is passed to authoritative parties, it follows a form that those authoritative parties will consider valid, it can be slotted into a preexisting legal category (iniuria/hybris), it asks for a binding judicial verdict. 33 As a document that does not claim any sort of broader validity, we might well class it as a document that “reflects” the law as it existed in Egypt in the middle of the third century.

But at the same time, his complaint is filled with words and concepts that speak volumes. It is perverse to dismiss this as mere captatio benevolentiae, simply “rhetoric” that has leaked into or wrapped itself around “law” (again, because it is precisely the ontological priority and distinctiveness of these categories that we should be concerned with). With this papyrus we are in fact in similar territory as with the passage concerning Severus and Paulus above. When Sarapion loads his complaint with what we might deem rhetor-ical language he is making a claim about the responsibility of institutional mechanisms of punishment and authority to align themselves to his affective state—of pain, indignation, and humiliation—and the normative universe that makes those affective states possible. His claim is in fact stronger than that of Severus, because Severus is at least minimally committed to finding a way to translate his desire to help the pupilla into the language of jurisprudence. One may of course argue that in the case of Sarapion we are in well-charted legal territory (and all that matters is the question of “fact”), whereas in the case of the pupilla one is at the margins of a legal concept, and here the law needs clarification. This is a reasonable argument, and one that will appeal to doctrinal thinkers who are most concerned with the rational integrity of “law” as a distinct ontological entity. I would guess it matters little or not at all to Sarapion, who sees law not as an entity that is primarily acted upon, but rather as one that is itself an actor—one that might physically intercede to protect him from his violent neighbor. But there is more: if we follow Sarapion’s logic, the law only exists so far as people recognize it (for Julius beats him “as if the laws didn’t exist” [ὡς οὐκ ὄντων νόμων]). In other words, when Julius decides that the laws do not exist, he exits the normative universe that the residents of Philadelphia are required to share, and this exit from a shared legal culture is what marks him as susceptible to punishment. In contrast, Sarapion’s stubborn insistence on the existence of the laws and the shared culture that enables their acting in the world is precisely what guarantees the inviolability of his body.

Both of these texts seek to make sense of the world around them, the sources of right decisions, and the conditions of imperial legitimacy. One is the work of an expert with a privileged, albeit tense, relationship to sovereign power. The other is the work of an end user. The first one was (eventually) encoded by Justinian’s compilers as having legal force (to the deliberate ex-clusion of other things); the other went into the dossier of the centurion, and was maybe passed along the chain of officialdom. But if we had to judge their importance in terms of their social impact, I would suggest that the cumulative impact of narratives such as Sarapion’s was greater. And here we

33. On hybris, see Bryen 2013.




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

* * * * *

To return, then, to my question of definition: what should we count as a legal source, that is, a source that will have some bearing on the writing of a legal history of the Roman world? On my reading, we have to account not only for what was perceived or claimed to be (by always partial actors) a rule (for both Paulus and Sarapion are deeply invested in the existence of rules). We must also account for the conscious processes and normative orienta-tions—the narratives—that allowed ancient actors to render a rule meaningful in the first place. 37 These narratives, however, are not always immediately

34. E.g., Crook 1967, 8.35. Walzer 1987.36. Cf. Humfress 2013a.37. I draw heavily here on Ewald 1995.



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apprehensible. Ancient people were neither required nor expected to tell a story about law and legitimacy every time they wished to sell a donkey. Even the jurists mostly kept their attention trained on the specifics of the case at hand, so much so that they can give the impression of being entirely isolated from their surrounding social and political milieu. To find these narratives, then, we must often look for traces of conscious interpretive activity, and reassemble the narrative on the basis of these hints. We might locate our traces through what we might call (only slightly tongue-in-cheek) legal com-mentaries. We should expect to find them in diverse places.

We can count as a commentary any attempt to elucidate a legal text (or even a legal idea) and to animate it with meaning. This is, unsurprisingly, what the Roman jurists were doing when they wrote books about the law, and a good reason that their texts should be prized by legal historians (as well as doctrinal scholars who care about juristic method as well as juristic content). 38 But Sarapion was likewise commenting on law when he (or the scribe with whom he collaborated) wrote his petition. It is what scholars in Egypt did when they annotated juristic texts, but it is also what Christian, Jewish, and pagan writers did when they narrated martyr acts. 39 It is similarly what authors of the Greek and Roman novels provided when they wove trials scenes into their narratives and what elite writers of the high empire did when they wrote personified descriptions of justice. 40

A commentary need not be identified by the explicit adding of words: we can identify the process of commenting in the assembling of legal texts and in the ways in which such texts come to be framed. Thus, scholars have posited the processes of collation behind the so-called Apokrimata papyrus, recording a number of decisions of Septimius Severus; the unofficial copying and posting of imperial decisions and decrees is no different. 41 Similarly, a legal codex in the Berlin collection features a number of (reworked?) judicial scenes, supposedly from the court of the prefect; as the author compiled them, he (presumably) added to them (at least) one magical text concerning court-rooms. 42 This too is a commentary, both in the material that surrounds the courtroom scenes and in their reworking or fabrication. So too is Justinian’s Corpus iuris civilis. The list could be extended; indeed it should be.

Such a category is methodologically advantageous for several reasons. First, it honors key elements of local understanding—namely, that there is such a thing as law—even while leaving open the likelihood that the par-ties who are invested in its existence would likely disagree over both its boundaries and its content. While it is of course embedded in a universe of social relations, it remains capacious enough that different actors, regard-less of their institutional position, can approach it and fight over its constitu-tion, boundaries, and content. It is, in Bourdieu’s terminology, a field: a site for the production of value and therefore for struggle. The advantage to the

38. Classic is Frier 1982–83.39. On legal texts on papyrus, see McNamee 2007, 122–24, 493–513 (for annotations); Ammirati 2012.40. Schwartz 2010; Dio Chrys. Or. 1.75.41. E.g., Katzoff 1981; Millar 1977, 260.42. Poethke et al. 2012.




Bourdieuian perspective here is that it avoids reducing law to just another manifestation of “culture,” or a register of discourse that enables communica-tion. It can be both of these things, but only when certain assumptions and institutional arrangements align; the task of historians is to understand better what these assumptions and arrangements are, and to locate more precisely when and why they make it reasonable to identify one’s culture with one’s laws, and under what circumstances people at differing places on the social hierarchy can communicate through the language of law. 43

Second, defining the universe of source material in this way preserves a role for the state. For while interpretive capacities might be spread throughout society, not all capacities are equally powerful. Statute (taken in its broadest sense of attempts of an authorized individual or body to impose a binding regulation on another) must remain important because, even when it attempts to restrain social change or reign in common but undesirable practices, it represents a conscious attempt to intervene authoritatively in the world as it is currently constituted. It too is the product of a narrative. Likewise, the Roman state, and especially executive actors in it, periodically invested much time, energy, and money in attempting to enforce its particular narrative frame: hence the emergence, in the high Empire, of attempts to standardize and codify law. At times the state was successful, but at other times it was not, or simply was not interested. 44 Historians only err when they make the state the sole actor or attribute change to the internal dynamics of bureaucratic development, rather than locating its causes in the struggle over meanings that emerges when competing normative visions of “what is law” pressed against each other in consequential ways. 45

The kind of history that might result from this would imagine a diverse, unequal, conversation playing out historically, in many genres of speech, with complex and varying relations to a discourse that claims official or even tran-scendent status. Such an analysis can be carried out at the micro-level, as in my examples above, but it can also be carried out on the macro-level. One of the liberating features of shifting from the history of statute and jurisprudence to a more inclusive history is that it becomes easier to plot the movement of legal ideas across differing social strata.

One example will suffice: there are two great periods of creativity in the production of Roman criminal law: the late Republic and early Empire (from roughly the mid-second century B.c.e. through the early first century c.e.), and Late Antiquity (from the early fourth century c.e. through to the age of Justinian). The late Republic saw significant amounts of attention paid to the creation of new categories by which people might be punished. The creativ-ity inherent in this came through the recognition of new categories of harm that could not be accommodated by traditional private law—categories such as provincial extortion (repetundae), forgery (falsum), electoral corruption (ambitus), political violence (vis publica), or harm to the dignity of the Roman

43. See esp. Humfress 2013a.44. Compare Fournier 2010, 392–95.45. Bryen forthcoming b.



360 Ari Z. Bryen

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

51. Boyarin 1999.52. Shaw 1984; see further Riess 2001; Brélaz 2005.53. E.g., Robinson 2006.54. Compare Benton 2010.



362 Ari Z. Bryen

the requisite language to explain the ways in which official power—always heterogeneous and fractal—at times tried to define itself as unitary. To create such a language is the challenge going forward.

West Virginia University

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Law in Many Pieces

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