3.C. Ando,Imperial Ideology and Provincial Loyalty in the Roman Empire(Berkeley 2000), 2.

Bryn Mawr Classical Review 2000.04.03

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

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

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

Notes:

1.David Johnston, 'Law and Commercial Life of Rome',PCPS1997, 53-65, although he does not cite this article in his bibliography. Section V of this chapter, 'the organization of business' touches on some of the issues in the paper cited here.

BMCR 2013.02.49on the BMCR blog

Bryn Mawr Classical Review 2013.02.49

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

Reviewed by Jean-Jacques Aubert, Universit de Neuchtel (Jean-Jacques.Aubert@unine.ch)PreviewPaul Du Plessiss latest book consists in a thorough review of classical Roman jurists opinions on the contract oflocatio conductio(especiallyDigest19.2 andCodex Iustinianus4.65), triggered by recent studies by Susan Martin (1989),1Dennis Kehoe (1997),2and Roberto Fiori (1999).3Du Plessiss contribution aims at studying various types of letting and hiring in their social and, to some extent, economic settings rather than focusing narrowly on legal rules. Thus Du Plessis contends (p. 5) that approaching Roman law in a pragmatic rather than dogmatic way yields results that can explain some of the idiosyncrasies of Roman jurisprudence collected in theDigest. Consequently the book focuses on legal thought while paying special attention to the legal practice evidenced by documents written and preserved on papyri and tablets. As a matter of fact, little attention is paid to papyrological evidence (e.g. pp. 70, 84, n. 104, 91, n. 133), and only slightly more to epigraphic material.The chosen chronological framework (27 BCE 284 CE) might be questioned as bothtermini post quemandante quemare meaningless. The bulk of the evidence, both legal and documentary, is dated to the late Republic and early Empire, and reflects classical Roman law and legal practice. However, the consensual, synallagmatic contract of letting and hiring was created in the context of the formulary procedure sometimes during the third or second century BCE (p. 9, n. 3), even though no extant evidence goes back to that time. In the same way, the Tetrarchy changed nothing either to the system or to the practice it reflects or generates, and both the juristic and epigraphic evidence thins out one or two generations earlier.The introduction (pp. 1-8) surveys the most significant contributions on the subject during the 20thcentury, in several modern languages. The author shows a good command of the bibliography, but is somewhat elliptic on the specifics of earlier scholarship aboutlocatio conductio. Unlike his predecessors, the author eschews discussing the manifold object of letting and hiring, but plans to examine the ideas underlying the legal concepts governing it. In general, his analysis of the mechanics of the contract is accurate, sophisticated and convincing.The first chapter (pp. 9-51) examines the terminology, history, and structure of the contract oflocatio conductio, before turning to the contractual process, i.e. the role of the parties with regard to the psychological element giving rise to the obligation (consensusvs.voluntas), the rights of using (uti) and enjoying (frui) the object of the contract, and the rent/salary (merces) to be paid as counterpart, as well as the nature and kind of litigation the contract could lead to, and the circumstances surrounding or causing it. The author renounces the threefold division of modern legal thought (locatio conductio rei/operarum/operis faciendi) for the twofold division betweenresandoperaeretained by R. Fiori (1999). In the same way, the basic concepts of risk and liability are abandoned in favor of a macro-narrative defining the history of these concepts to be integrated in the micro-narrative detailing them (pp. 25-26). The point is to test the macro-narrative against the textual evidence provided by the jurisprudence, to trace the development of liability throughdolus(pp. 27-32) orculpa(pp. 32-38), the flexibility of which defines the development of risk (periculum,vis maior,casus,vitium) (pp. 38-51).Chapter 2 (pp. 53-120) discusses a variety of contracts bearing on bothopusandoperae, following R. Fioris contention that the distinction between the two is foreign to Roman legal thought. While Du Plessis does not explain how the distinction can be ignored, sincemercesis being paid respectively and alternatively either by thelocatororconductor(p. 54), he identifies specific features of the contract of letting and hiring defined by the category of contract: the kind that involves the transformation of the property of one of the parties, such as the job of fullers and tailors (pp. 55-67), the hiring of apprentices (pp. 67-70), the work of goldsmiths and engravers (pp. 70-74), construction work (pp. 74-81); the kind that involves moving the property of one of the parties, such as carriage by land (pp. 82-84) or by water (pp. 84-92); the kinds traditionally labeledartes liberales(not a Roman category, p. 192), such as the trade of medical doctors (pp. 96-98), land- surveyors and architects (pp. 99-100), attorneys (pp. 100-101), and teachers and philosophers (pp. 102-103), ending with less respectable hired positions, such as scribes (pp. 104-105), actors (pp. 105-106), gladiators (106- 110), and miners (pp.110-113), and the letting of theoperaeof slaves and freedmen outside of thefamiliaas a commercial strategy (pp. 116-120). The list is not intended to be comprehensive, but adequately reflects the state of the evidence. I would question some arguments from silence (p. 56, on the likeliness of verbal contracts for lack of preserved written evidence), a few unwarranted assumptions (pp. 58-59, 83-84, 89, 102), some imprudent conclusion (p. 82, about the compared economic significance of water- and land-transport, and its alleged impact on classical jurisprudence), but the demonstration is acceptable and the overall picture quite cogent.The third and last chapter (pp. 121-189) deals with the letting and hiring of a thing (res), first movable property, such as storage jars (pp. 125-127), scales (pp. 127-128), vehicles and vessels (pp. 128-131), and slaves and animals (pp. 131-135); then immovable property, either in a rural setting, such asager(pp. 137-142),fundus(pp. 142-146),praedium(pp. 146-147), andvilla(pp. 147-148); or in an urban setting, such ascenaculum(pp. 153-154),insula(pp. 155-170),domus(pp. 170-171),taberna(pp. 171-172),balneum(pp. 172-173), andhorreum(pp. 173-189). The selection of the types of facilities and the different emphasis given to each of them are dictated by the examples used by classical jurists or in the inscriptional evidence (Pompeian tablets of the Sulpicii and other, mostly isolated texts). There is no doubt in my mind that Du Plessis is right in identifying some of these facilities (agri,fundi;insulae, andhorrea) as the most likely settings to have been leased out in the early imperial period. The coincidence between the jurists doctrine and the extant documentary evidence is not accidental. I am not totally convinced of the relevance of dismissing the traditional (modern) concepts of object and content of the obligation (p. 121), even though Du Plessis may be right in contending that Roman legal practitioners would rather have thought in terms of rights and duties of the respective parties to the contract. Again, the arrangement chosen by the author implies a desire to renounce a systematic or dogmatic approach to the law of contract; instead, it allows for the isolation and identification of specific problems and solutions attached to various types of contracts of letting and hiring. Little pearls emerge now and then, such as the analysis of the legal problems caused by the practice of subletting (pp. 156-170). Summoning evidence from the papyri would have probably shed more light on the practicality of the jurists opinions.A short conclusion (pp. 191-193) offers a summary of the content.Du Plessis conveniently cites the original Latin texts in footnotes and usually provides translations borrowed (p. xv) from Watsons edition (1985)4for theDigest, Blume (1920-1971/2009)5on-line for theJustinianic Code, Jones (2006)6for the Pompeian archive of the Sulpicii, or from Monro (1891)7for title 19.2 of theDigest. As some of these translations are occasionally problematic or somewhat obsolete, I wish the author had provided his own translations, which he does at times (pp. 22-23, 177, skipping the diacritical signs in the first paragraph! and 187, idem for the last paragraph!). The volume ends with a rich, up-to-date, multilingual bibliography (pp. 195-206), a list of texts cited (pp. 207-210, mostly legal, with a few literary sources and three inscriptions, with no reference to the Sulpicii archive or the Dacian or Lusitanian tablets), and an index of mostly Latin legal vocabulary (pp. 211-213).Last: the whole book is marred by numerous spelling mistakes and typos that make the Latin citations sometimes difficult to read and to use. For the price of the volumes published in this series, the publisher should have provided adequate copy-editing. This serious and quite readable book certainly deserved it.

Notes:

1.Susan D. Martins,The Roman Jurists and the Organisation of Private Building in the Late Republic and Early Empire(Brussels: Latomus, 1989).2.Dennis P. Kehoe,Investment, Profit and Tenancy: The Roman Jurists and the Roman Agrarian Economy(Ann Arbor, MI: University of Michigan Press, 1997), as well as his previous books based on Latin inscriptions from Roman Africa and Greek papyri from Graeco-Roman Egypt as evidence for rural tenancy.3.Roberto Fiori,La definizione della locatio conductio: giurisprudenza romana e tradizione romanistica(Naples: Jovene, 1999).4.Alan Watson (ed.),The Digest of Justinian(Philadelphia, PA: University of Pennsylvania Press, 1985), revised ed. in 1998, reprinted in 2009.5.F. H. Blume,Annotated Justinian Code(http://uwacadweb.uwyo.edu/blume&justinian/) (Unpublished: 1920-1971/2009), 2nded. by T. Kearley (University of Wyoming).6.David Jones,The Bankers of Puteoli. Finance, Trade and Industry in the Roman World(Stroud: Tempus, 2006).7.C. H. Monro,Digest XIX.2. Locati conducti, translated with notes(Cambridge: Cambridge University Press, 1891).

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lassical Review 2005.07.14

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

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

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

Notes:

1.E.g. Law and Family in Late Antiquity: The Emperor Constantine's Legislation on Marriage, Oxford 1995.2.Cf. p. xiv. Besides the works of Gardner and Arjava, noted in the bibliography, Grubbs refers to Mary Lefkowitz, Maureen Fant (edd.), Women's Life in Greek and Roma, 2nd ed. Baltimore 1992 (3rd ed. London 2005), and Jane Rowlandson (ed.), Women and Society in Greek and Roman Egypt, Cambridge 1998

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

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

Table of ContentsLaw and Religion in the Roman Republicconfronts the theme of the intersection of religious and legal institutions. The editor promises a rich perspective on the problem of law and religion in Rome, on the thinking of the law, on ritual institutions that regulated the activities of the Roman State, on ritual categories within the developed civil law (e.g. the regulation of tombs). The book displays the problem of coherence inherent in a multi- authored, purposefully fragmented approach to a problem, and individual papers raise interesting, at times provocative, issues that deserve a more systematic treatment and argumentation. Nevertheless the book delivers in illustrating the complexity of the problem.L. ter Beek (Divine law and the penalty ofsacer estoin early Rome) proposes to distinguish the secular and religious character of Roman law, historically and comparatively by comparing Roman law with other Mediterranean law and then with epigraphic evidence for early law in Italy. Comparison of the Twelve Tables with Exodus and Deuteronomy illustrates the casuistic character of Roman law defining a case and a course of action by contrast with the apodictic quality of the Torah recording a direct command from God (15). The code of Hammurabi is casuistic and reflects the kings formulation of the virtues of truth and correctness that he receives from the god Shamash (16-17). Comparison reveals the composite nature of Roman law combining the secular and the religious as similar to the law of Ancient Near Eastern peoples, with Israel and Torah as the exception. Ter Beek then makes a brief argument about the religious laws concerning groves in the Roman Lapis Niger and two inscriptions from Spoletium and Luceria, and observes a mitigation of penalties over time and an evolution of penalties assacer estobecomes a religious penalty for wrongs committed against citizens. The ideas are interesting and deserve more systematic treatment. But it is a useful discussion for the student, while the citation of primary sources will make it useful for the scholar.In Law and Divination in the late Roman Republic F. Santangelo examines how religious and legal experts thought, with a focus on the epistemological affinity of Roman law and divination as intellectual discourses. He considers the language of conjecture and informed judgment, whether legal or religious:divinatioanddivinosignal difficulties of judgment;prudentiaandprudenscome to define a legal expert (GaiusInst.1.2). The topic is cutting edge (cf. Peter Strucks work on divination); but the provocative contrast of language for conjecture and for expertise needs a fuller argument and comprehensive word studies.In The Curiate Law and the Religious Nature of the Power of Roman Magistrates M. Humm revisits a classic conundrum, the significance of thelex curiatafor the authority of elected officials. He attempts to reassess Magdelains argument (1968) on the three-step process of empowerment: election, curiate law, and ceremonial investiture. He suggests an historical evolution of the curiate law: the authority of the official originated in the religious system of the city and the developed procedure hindered the affirmation of a principle of sovereignty of the people, and the development of a true democracy at Rome (p. 84). The attempt to recognize continuity and change in the procedures of government is salutary, even if the argument that the curiate law was introduced to validate the authority of officials during the Republic puts asidewithout argumentevidence for a regal curiate law. But Humm also argues that the curiate law defined the precise functions of office. He thus undoes a fundamental observation of Magdelain, that no statute defined the powers of office of the regular magistrates (Loi curiate, 10). Three passages are crucial to Humms argument: CiceroLeg. Agr.2.28 shows that thelex curiataserved to define thepotestasintegral to his magistracy (p. 67). But Cicero says that the official would not have (habere)potestas(undefined, and probably defined by Rullus statute) without the curiate lawa different point. Tac.Ann.11.22.4 shows that the law had to define precisely a magistrates field of competence [potestas] like the contingent right to appoint quaestors (p. 67). Tacitus proves that quaestors were mentioned in a curiate law concerning the consuls, not that the curiate law contained a clause permitting the consuls to select the quaestors. Festus p. 276 L. illustrates for Humm the auspices of departure by which the general was subject to a divineaddictiothat conferred on him his titles and qualities (79). Thus, the official got title of office from an electoral assembly;lex curiatadefined hispotestas, and departure auspices further defined his qualities (79). But the passage of Festus, which describes a pre-Republican procedure when Rome shared command of the combined Latin army with the Latin League, uses the language of the Republican provincial assignment, i.e. the separate, ritually defined process of allotment that assigned to each official a job for his term of office. This is a smart piece, even as it provokes fundamental disagreement.In Rationalizing Religious Practices: the Pontifical Calendar and the Law Jrg Rpke argues that the publication of the calendar in the late fourth century constructed time with profound consequences internally for the emergent patricio-plebeian elite and externally with their neighbors. For the undergraduate, the article offers an evocative description of the calendar and its ceremonies, a brief comparison of Roman, Italic, and Mediterranean time reckoning, and a consideration of the historical significance of the calendar published in 304. Rpke argues that thelex Hortensia, in equating the votes of plebeian and regular assemblies, subordinated the plebeian assemblies to the strictures ondies comitialesthus regulating and reining in popular assemblies called by tribunes of the plebs. But the scholar will want the full citation of evidence and argument in Rpkes book on the calendar (The Roman Calendar from Numa to Constantine, 2011).In The Jurisdiction of the Pontiff J. Hendrik Valgaerenarguing from a doctoral dissertation that rather oddly and damagingly remains uncitedoffers a careful discussion of the publication of thelegis actionesin 304, but the repeated assertion that the pontifices supervised litigation until 200 BCE when they were probably taken over by the praetor (114) remains undocumented and speculative. Even though Valgaeren argues from authority for his premise (citing co-author Tellegen Couperus 2006, who herself cites Brennan 2000, who makes an argument largely from silence), the function of thepontificesas legal expertsa role ascribed to them in Pomponius history of Roman lawis attractive but emerges as very difficult to document. No text before Pomponiusexcepting one passage of Cicero (De Leg.2, 47)defines thepontifexas one who is necessarily an expert in the law. Instead, the texts list the priesthood among a cluster of attributes defining the public persona of the elite citizen who is asked for legal help.In The Longevity of the Fetial College L. Zollschan offers a richly documented discussion of the roles of the fetials in treaty making and declarations of war and the rituals associated with Jupiter Feretrius. Zollschan identifies the work of the fetials in the oaths that accompanied Roman treaties in the second and first centuries BCE. A chart of datable inscriptions commemorating fetial priests summarizes the data for imperial priesthood and reflects the rise and fall of the epigraphic habit rather than any proof of the priesthoods relative (un)importance (p. 141). Zollschan identifies a temple figured on a denarius in 78 BCE (RRC385) as that of Jupiter Feretrius and thus inserts his cult within the regular cycle of games at Rome; but the identification must remain speculative, as Zollschan does not consider the Roman predilection to represent non-existent buildings on coins and represent architecture schematically. Her survey of fetial roles in declaring war and monitoring treatment of foreign ambassadors in the period 200-32 BCE has a lacuna: the fetial consultation for declaring war on Philip V in 200. Nevertheless fetial religion emerges as crucial to Roman militarism during the Republic, vibrant throughout Roman history, and Augustus revival of the fetials emerges as no real revival. For anyone interested in Roman militarism, priesthood, or Augustus religious policies Zollschans work offers an important new collation of evidence.In Sacred Law and Civil Law Tellegen-Couperus reprises and develops an idea she has advanced before, that Roman law secularized very late and was developed by thepontifices. She dissects a piece of an argument of John Scheid, that Roman religious writing was not priestly writing but scholarly writing about religious practice.3Instead, Tellegen-Couperus begins from a rule that allowedpiaculumfor unwitting religious offense (VarroLat.6.30) and the principle of noxal surrender (noxae deditio), in order to argue that civil and pontifical law were two different categories of law even though they were created by the same persons using the same methods (164). The correlation between the pontiffs and the development of Roman law is attractive, but Tellegen-Couperus assumes (158-63) that Scaevola Pontifex made the rule and that he made a casuistic rule in the context of a consultation on an immediate legal problem. There is no argument for this. Given the goal to compare the logic of priestly and legal thinking and their evolution, Friers argument (1985, cf. 1989) on the evolution of Roman legal thinking in the late second and first century BCE should be consulted.4In Control of the Sacred in Roman Law J. Rives excavates (p. 166) the meanings ofsacer,sanctus, andreligiosusin the Roman legal tradition to reveal an ongoing attempt by the eliteto exercise control over the category of the sacred in Roman society (165). He outlines the categories:res sacraedesignated sacred space defined and controlled by public authority;res sanctaeconstituted property altered by a formal ceremony conducted by a public official and supervised by the augurs;res religiosaerepresented a category marked off by religious scruple (172-76). Rives then shows how the termsacer/sakroswent from a perception of inherent connection with the divine (179) to a category controlled by the elite through the political and religious institutions of the state. The development of the jurisdictions of the priesthoods and of ideas of sacred space thus becomes part of the process of Roman state formation.In The Immortality of the Soul and Roman Law J. Tellegen studies thefideicommissum, whereby a testator in his/her will enjoined the heirs to administer his/her funeral, as a window into Roman views on the immortality of the soul. Grave inscriptions and literary evidence show that proper burial, the construction of a monument, and tendance of the grave guaranteed the enduring memory of the deceased and so immortality. Pliny the Younger and two inscriptions purporting to reproduce the will of the deceased show how the will and thefideicommissumregulating burial became part of the burial monument. Finally Tellegen looks at three jurists (Scaevola, Pomponius, Alfenus) who weighed in on thefideicommissum: the jurists define obligations to thefideicommissumin proportion to the amount of inheritance. But Tellegen also reveals the crux of thefideicommissumthat relied not on a legal sanction (the testator was dead and could not sue) but the dutifulness of the heirs (p. 200). His argument parallels Suzanne Dixons study of thelex Voconiathat showed Roman fathers similarly relying on thefideicommissumto guarantee generous inheritances for their daughters.5

Notes:

1.A. Magdelain,Recherches sur lImperium, la loi Curiate et les auspices d'investiture, Paris, 1968.2.O. Tellegen-Couperus, Pontiff, praetor, and iurisdictio in the Roman republic,Tijdschrift voor Rechtsgeschiedenis74 (2006) 31-44. T. Corey Brennan.,The Praetorship in the Roman Republic, Oxford, 2000.3.John Scheid, Oral tradition and written tradition in the formation of sacred law in Rome, in C. Ando and J. Rpke, eds.,Religion and Law in Classical and Christian Rome, Stuttgart, 2006, 14-33.4.B.W. Frier.,The Rise of the Roman Jurists, Princeton, 1985;A Casebook on the Roman Law of Delict, Atlanta, 1989.5.S. Dixon, Breaking the Law to Do the Right Thing,Adelaide Law Review9 (1983/85) 519-34.

Bryn Mawr Classical Review 2013.09.36

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

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

Notes:

1.Cf. A. Wallace-Hadrill,Romes Cultural Revolution(Cambridge 2008) 253-254. There is room for more discussion of how knowledge of the law served, or did not, to cement aristocratic status.2.Their argument is forcefully paralleled by the findings of U. Babusiaux,Papinians Quaestiones: zur rhetorischen Methode eines sptklassischen Juristen(Munich 2011). Note also that Bannon, in this volume (p. 211), talks of an opinion of Celsus, which may at first seem extreme, perhaps because of its rhetorical flourish.3.Compare, for example, H.F. Jolowicz and B. Nicholas,Historical Introduction to the Study of Roman Law3rded. (Cambridge 1972) 380: The least unsatisfactory conjecture is perhaps that the famous schools [Sabinian and Proculian] were rather more in the nature of aristocratic clubs formed for the discussion of legal matters and centring round a distinguished jurist. Not schools of law, but schools of thought about law. On handbook literature, see esp. T. Fgen,Wissen, Kommunikation und Selbstdarstellung. Zur Struktur und Charakteristik rmischer Fachtexte der frhen Kaiserzeit(Munich 2009).4.Essential for all of this is K. Buraselis,.Das gttlich-kaiserliche Geschenk. Studien zur Politik der Severer und zur constitutio Antoniniana(Vienna 2007) 120 ff.5.That Roman private law was altogether designed with the interests of the rich in mind has long been noted. So, for example, F. Schulz,Classical Roman Law(Oxford 1951) 545: The lawyers wrote and worked [re law of hire] for the class of thebeati possidentesto which they themselves belonged and their social sense was ill developed.6.It might well be worth thinking of this with regard to record-keeping at the public level, on which (e.g.): S. Demougin (ed.),La mmoire perdue. A la recherch des archives oublies, publiques et prives, de la Rome antique(Paris 1994); R. Haensch (ed.),Selbstdarstellung und Kommunikation. Die Verffentlichung staatlicher Urkunden auf Stein und Bronze in der Rmischen Welt(Munich 2009).

Judy E. Gaughan,Murder Was Not a Crime: Homicide and Power in the Roman Republic. Austin: University of Texas Press, 2010. Pp. xviii, 194. ISBN 9780292721111. $50.00.

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

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

Notes:

1.p. 6.2.J. Gaughan, 'Killing and the King: Numa's Murder Law and the Nature of Monarchic Authority'Continuity and Change18.3 (2003), 329-343.3.Cf. R. Girard (1972) 'La Violence et le Sacr' (Paris)4.p. 74.5.In particular, see M. Dickie,Magic and the Magicians in the Greco-Roman World(Oxford, 2001), 145-9; J. Rives, 'Magic, Religion, and Law: The Case of thelex Cornelia de sicariis et veneficiis' in C. Ando and J. Rpke (eds.),Religion and Law in Classical and Christian Rome(Stuttgart, 2006), 47-67.6.Cf. Sen.Controv.9.2.22.ugh Lindsay,Adoption in the Roman World. Cambridge/New York: Cambridge University Press, 2009. Pp. xiv, 241. ISBN 9780521760508. $95.00.

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

Some interesting facts lie scattered through this otherwise rather unambitious book. Did you know, for instance, that adoption--the full legal absorption of one person into the family of another--only became possible in Britain in 1926, as a result of the Adoption Act (p. 25)? Presumably this resulted from enduring British concern about pure blood lines. But even in the United States adoption was legally permitted only from the 1850s onward (p. 23), and only in the twentieth century did adoption assume its full modern form, as a device for protecting orphaned or abandoned children, within the broader protective structure of contemporary welfare states.1What this suggests is that considerable care is required in approaching adoption in ancient or pre-modern societies. Unfortunately, while Hugh Lindsay's heart is plainly in the right place, his rambling presentation does little to clarify things. The "rambling" part is exceptionally vexatious: long excursions into, for instance, adoption in the ancient Near East, India, Oceania, Japan, and China (pp. 5-21), the Gortyn Code (pp. 38-40), the Athenian law of adoption (pp. 40-60), Roman nomenclature (pp. 87-95), the theory and reality ofpatria potestas(pp. 97-100), the basic Roman law of succession (pp. 100-103), and so on, and on--all of which, truth be told, might have been of some real assistance had they been (as they are not) folded within a convincing analytical design. As it is, Lindsay makes no real effort at integration until his perfunctory "Conclusion" (pp. 217-220)--which, however, a reader might profitably peruse not last but first, in order to get at least an inkling of where the book is supposed to be going.The classical institution of adoption can be approached from a number of directions, including literary references and patterns of nomenclature on inscriptions and elsewhere.2But pride of place goes to legal sources, which not only describe the institution itself, but also, through hypothetical problems the jurists develop, give some inkling of how adoption was actually used in the Roman world. Here Jane Gardner'sFamily and Familiais of particular importance.3Gardner had, especially, the eminent good sense to associate adoptio closely with its institutional Doppelgnger emancipation, as part of a legal "tool box" that the Roman paterfamilias had on hand for reshaping the contours of his familia. This was a real advance in our understanding, but one requiring intimate knowledge of the basic source material.Lindsay's book is of lesser caliber. He describes it as having "some common ground" with Gardner's, "although it is on the whole less legal, and more concerned with the practical operation of adoption in different situations" (p. ix). But much in the book suggests that Lindsay is actually rather uncomfortable with legal sources, even fairly simple ones. When, for instance, he is obliged to describe the institutional structure of adoption, his discussion wanders inexplicably, and he often resorts simply to quoting the jurists without even the semblance of critical treatment. A salient example is on pp. 114-115, discussing the rule whereby an adopted person lost his right of succession within his family of origin. "This is articulated as follows in theDigest:"; and there follow 25 lines of small print translation of texts from Paul, Ulpian, and Modestinus (the name of this last is omitted), with the original text provided in footnotes.4NoInterpolationskritik, of course; but also no bibliography of any kind, no further commentary. And certainly no exertion, even the slightest, to reach underlying principles and conceptions.For such lassitude, the explanation is perhaps impatience, or perhaps not. But whatever the cause, it makes the crucial middle chapters of this book (on the adoption procedure, testamentary adoption, Roman nomenclature after adoption, and adoption in the law of succession) something of a dispiriting slog, which is helped along not at all by the book's chaotic organization. (E.g., the fundamental distinction betweenadoptioandadrogatiois introduced only on pp. 74-75: after rather than before the discussion of other procedural aspects of adoption.) On the whole, W.W. Buckland provides not only a much clearer and more concise narrative of this law, but also (mirabile dictu) a more interesting one.5In any case, neglecting the law was a major error in strategy, for adoption, like all historical institutions of family law no matter how "natural" they may seem to us, are notoriously protean over time, and the "practical operation" of Roman adoption, in particular, takes some strange turns. The welfare of a child is not normally paramount in Roman law, although it may have been given marginal attention; Justinian, for instance, mentions an "old rule" (ius vetus), otherwise unknown, whereby children could obstruct adoption by objecting openly (C. 8.47.10 pr., cf. 11; both of 530 CE). As foradrogatioof minor orphans, older law forbade it altogether; only latterly, through imperial constitution, was this permitted, but then only to the child's close relatives, apparently in an effort to prevent child abuse (pp. 69-70). (Sancta simplicitas!) Still, there may have been a slowly rising concern for child welfare, as manifested in imperial dispensations allowing women to adopt (pp. 71-73).Nonetheless, as Lindsay often and rightly insists (e.g., p. xii), the chief purpose ofadoptio, in ordinary life, was the continuity of thefamiliain three important respects:nomen,pecunia, andsacra(so Cicero,de Domo35): that is, the onward passage, from one generation to the next, of the family name, the family property, and the family religious rites. The Romans paid a steep price for their dogmatic commitment in this matter, since it seemed to militate against the adoption of juvenile orphans (with the attendant destruction of an independentfamilia); thus,adrogatiowas deliberately preserved as a truly cumbersome public procedure, and one that remained so even when the archaiclex curiatawas finally abandoned in favor of adoption through rescript (pp. 76-77).Emphasis on intergenerational continuity lent Roman adoption an unexpected but decidedly deliberate connection to the law of succession (pp. 97-122)--what we might think of, broadly, as family planning for a time when apaterfamiliaswould no longer be alive. Some of the oddest aspects ofadoptiospring from this notion: for instance, the requirement of a substantial age difference between adopter and adoptee, in order to mimic nature, and the more controverted requirement that the adopter be of an age unlikely to result in issue of his own (pp. 66-68). From close study of reported cases, it is also clear that adoptions often involved a strong preference for fairly close blood relatives (cognati), adoption thereby providing "a method for the wealthy to keep estates closely held within the extended family" (p. 159, cf. 146-168).When adoptioninter vivoshad not been effected, a testator could resort to the more fragile institution of testamentary "adoption": inheritance accompanied by a requirement that the heir assume the decedent'snomen(pp. 79-86). Here it seems clear above all from Gaius (2Fideic.), D. 36.1.65.10 (citing Julian),6that an heir might avoid this condition when the testator's family name was infamous or debased, and that indeed, through a procedural sleight of hand (gotta love those jurists!), he might even avoid the condition altogether if he so chose. In any case, it is more than doubtful, although the point is still controverted, that testamentary adoption constituted a true adoption--which may help to explain why Octavian insisted on both his testamentary adoption by Julius Caesar and a more formal, if highly irregular, procedure for apost mortemadoption (pp. 182-189).It is this concentration on "familia-scaping" that drives Roman adoption law in a truly bizarre direction: toward redesign of thefamiliafrom within. A number of legal sources, which may perhaps be paralleled by famous sources like Pliny, Ep. 8.18, on the brothers Domitii, speak of extraordinary efforts bypatresin this regard. For instance, a father might emancipate his son, then adopt him as a grandson alongside the son's own son (Ulpian, D. 38.6.1.7); or adopt the emancipated son as a grandson and then re-emancipate him (Ulpian, D. 37.4.1.7). Or a man with two grandsons might emancipate one and then adopt him as a son, either with or without potential power over the other grandson (Ulpian, D. 37.4.3.1-2). Or a man with a son and a grandson by that son might emancipate the grandson and adopt him as a son alongside his father (ibid. 3). And so on. These texts, spasmodically considered by Lindsay but more fully appreciated by Gardner,7reveal a certain restlessness within the staid Romanfamilia, an anxiety that law was ill designed to channel. We do not even know what "adoption" means in contexts such as these; why notadrogatio?In his final substantive chapters, Lindsay turns to another subject: the use of adoption for political purposes, either interfamily alliances or the creation of fictive dynasties. This field is previously well tilled, and things go rather better. Modern studies have established "that adoption was a significant tool employed in the service of the amalgamation of the plebeian and patrician aristocracy" (p. 192); this pattern is discovered not only in Rome, but also in Pompeii and Ostia. Sporadic late Republican political adoptions (such as of Clodius or Octavian) evolve in the Empire into systematic attempts to establish successors--once again, adoption adapted, so to speak. Lindsay presents what is largely the research of others, but in fairly clear form.On the whole, however, this book gives little value added. Christiane Kunst's 2005 book, although unduly speculative in part, is a considerably more valuable contribution, and as to the general social uses of adoption the best book to read, if you're reading only one.

Notes:

1.Ellen Herman,Kinship by Design: A History of Adoption in the Modern United States(2008). Because of Roman law, adoption had long since been possible in Civil Law jurisdictions, although often with restrictions that had accompanied the Roman rules. However, in practice it was actively discouraged by the Catholic Church. See Kristin Elizabeth Gager,Blood Ties and Fictive Ties: Adoption and Family Life in Early Modern France(1996).2.The non-legal bibliography has become extensive. See, e.g., Mireille Corbier, "Divorce and Adoption as Roman Familial Strategies," in Beryl Rawson (ed.),Marriage, Divorce and Children in Ancient Rome(1991) 47-78, and (as ed.)Adoption et 'Fosterage'(1999); Olli Salomies,Adoptive and Polyonomous Nomenclature in the Roman Empire(1992); and especially Christiane Kunst,Rmische Adoption: Zur Strategie einer Familienorganisation(2005).3.Jane F. Gardner,Family and Familia in Roman Law and Life(Oxford: Clarendon Press, 1998). See the review by Marilyn Skinner (1999.02.10).4.The translations are lightly adapted from Alan Watson's translation. Comparable is the 24-line citation on pp. 69-71, also without discussion.5.W.W. Buckland,A Text-Book of Roman Law(3rd ed. Peter Stein; 1966) 121-128, and, with Arnold D. McNair,Roman Law and Common Law: A Comparison in Outline(2nd ed. ed. F.H. Lawson; 1965) 41-46. From there, graduate to Carmela Russo Ruggeri,La Datio in Adoptionemvols. 1-2 (1990, 1995).6.Cf. p. 83, where the text is truncated; I refer to the full text.7.Gardner,Family190-199.https://www.youtube.com/watch?v=-v3-F08Nu0k