This collection of essays was inspired by a colloquium honouring Bruce Frier. The editors appeal to Frier's scholarship to justify the collection's application of contemporary methods of inquiry, drawn especially from the social sciences, to deepen our understanding of ancient law and society. While few scholars would deny that the law changes together with a society's values, many (notably A. Watson) see the law as inherently so conservative that its development is due more to historical, judicial and juristic precedent than to contemporary social pressures.
The ancient Athenians established collective punishments for three domestic crimes: failure to pay debts owed to the state; serious crimes against the state (subverting the democracy, bribery, embezzlement of public funds); malfeasance by boards of magistrates. In ‘Collective Sanctions in Classical Athens’ A. Lanni examines collective punishment in Athens both from a traditional anthropological approach and from a sociological or functionalist perspective. Informed by the utilitarianism of the functionalists, Lanni shows that the Athenians directly deterred treasonous and corrupt behaviour that threatened to undermine the state. A traitor would think twice about his actions if he knew that his innocent family members would suffer atimia due to his behaviour. Arguing against E.R. Dodds and others, Lanni demonstrates that there is nothing ‘primitive or irrational’ about this collective sanction imposed by the Athenian demos (p. 29). However, in collectively punishing boards of magistrates for failure to perform their duties, the Athenians indirectly deterred the corrupt behaviour of their fellow citizens. To her credit, Lanni shows how the functionalist approach is helpful in understanding the ‘indirect or delegated’ (p. 23) deterrent effect implicit in punishing all the members of a corrupt board of magistrates, but that it is less helpful in explaining the direct deterrence of treasonous behaviour. Modern functionalists focus on delegated deterrence as the key factor in explaining the point of collective punishment, but we should proceed cautiously when applying this model to the ancient world, which had very little interest in the concept of deterrence.
In ‘An Economic Perspective on Marriage Alliances in Ancient Greece’ M. Leese informs us that marriage was the most important economic decision made by most Greeks and a dowry was the largest single acquisition of wealth in a man's life (pp. 32–4). But, since in Athens (and in Rome) the dowry remained the property of the wife and the husband could keep only the profits from its investment, its impact on a husband's financial status would have been significantly less than Leese maintains (though no doubt significant in some cases). The essay splits its focus between super-elites and the less-elite wealthy class, but the latter group is not well defined or developed. The core of the chapter is dedicated to consideration of several famous arranged marriages of the super-elite, for example, Alcibiades, Callias, Cimon and Megacles. Leese argues that these marriages at the highest levels of society cemented relations between families and did not necessarily create any immediate financial profit for the groom, but provided cultural capital for securing future familial prosperity. The appeal in the conclusion to K. Polanyi's concept of economic embeddedness (‘the idea that premodern economies were embedded in social relations and did not constitute a separate conceptual realm of activity’, p. 33) adds little to the argument. Leese's conclusion is not especially groundbreaking: ‘the social relations that were created by marriage alliances were heavily influenced by economic interests’ (p. 43).
In ‘Assumption of Risk in Athenian Law’ D. Phillips is interested in identifying a unifying principle that could encompass all the different types of killings that were tried in the Delphinion. L. Gernet has suggested that all these killings can be classified as ‘excusable’, while E. Carawan sees them as potentially ‘justifiable’ (p. 47). Finding these unifying principles lacking, Phillips wants to identify the modern tort principle of ‘assumption of risk’ as operative in the ancient Athenian treatment of these justifiable killings, for example, an athlete killed accidently while competing, an adulterer found in flagrante. He himself admits that his criterion does not fit all types of killings in this category, in particular the thorny situation of a soldier killed by friendly fire, who surely cannot be considered as assuming the risk of dying at the hands of one of his comrades-in-arms (p. 50). In connecting these Delphinion crimes with the well-established concepts of negligence in ancient Roman and modern tort law, Phillips provides an interesting survey of the topic, but does not leave us with a better unifying principle than those offered by Gernet and Carawan.
In ‘Rivers, Rights and Romanization’ C. Bannon focuses on two provincial inscriptions regulating the use of irrigation water in Spain (lex rivi Hiberiensis) and North Africa (Lamasba decree). In this engaging presentation of water rights in the Roman world, Bannon offers some interesting information regarding the interplay of centre and periphery in the empire. But the sparse nature of the evidence does not allow for the grand conclusion attempted by Bannon, especially her claim that the phrase proprio iure, which appears in a rescript penned by Marcus Aurelius and Varus but not in her two provincial inscriptions, must surely refer to water rights enjoyed by provincials and not citizens living in Italy. Bannon sees this as an example of provincial practices influencing legal thought in the imperial chancery. But iure proprio is a common enough legal phrase and could well be applied to the individual rights inherent in Dig. 8.3.35 or 8.6.16 (cited by Bannon), irrigation disputes located in Italy, not the provinces.
In ‘Justice in Aelian's Miscellaneous History’ L. Caldwell offers a literary analysis of four of Aelian's anecdotes to identify ‘a coherent message about nature, law, and justice’ (p. 86). The main intersection with Roman law comes in Aelian's allusion, via a story about the Persian father Rhacoces, to the paterfamilias’ power of life and death over his family. Like his contemporaries Ulpian, Paul and Papinian, Aelian is seen by Caldwell as urging fathers to treat their children mercifully (p. 98). We could add that this is part of a larger trend during the Principate that also curbed the paterfamilias’ ability to wantonly abuse slaves.
In ‘Agency, Roman Law and Roman Social Values’ Kehoe examines ‘the extent to which the Roman legal authorities responded to social needs in formulating rules for mandate and unauthorized administration’ (p. 109). Citing evidence from the Digest, Kehoe presents the rights and responsibilities of both mandators and their agents, especially procurators of distant estates. Informed by modern economic theories, he speculates about the relative financial advantages and disadvantages for an agent or for someone contracting to buy or sell with such an agent. Roman law insisted that the mandator not suffer financially at the hands of his agent, even allowing a sale to be undone if to his detriment. Hence, anyone doing business with an agent should be wary and demand indemnification from the agent (via stipulation) if a contract be unwound. Moreover, the procurator himself would be at financial and legal (infamia) risk if he did not adhere strictly to his mandated instructions. So why would anyone (often a freedman) agree to act as a procurator of a mandator's estate? Kehoe does not directly address this question, though he repeatedly mentions the risks involved in acting as a procurator. He suggests that an agent and mandator would be in a mutually beneficial circle of reciprocity, whereby an agent would be willing to accept some risks in order to ingratiate himself with a mandator, from whom he could in turn ask for a favour based on the upper-class values of fides and officium (p. 129). Hence, the contract of mandate as developed by the jurists fits neatly within the realm of Roman aristocratic social relations.
In ‘Cui Bono? The True Beneficiaries of Roman Private Law’ McGinn critiques the views of scholars in the critical legal studies movement, who argue that ‘legal systems as a rule serve the interests of the wealthy and powerful’ (p. 133). Of course, it is hard to disagree with this general assertion, but McGinn shows that those for whom the legal system provided an advantage were a significantly larger percentage of the populace than commonly assumed, and that Roman society at large indirectly benefited from the operation of Roman law. McGinn cites a number of examples of the law favouring the weaker litigant, often tenants, in disputes with their social superiors, often landowners. Moreover, the emperor and his chancery would be ever-conscious of their posturing as protectors of the downtrodden. Finally, the lack of big-money lawsuits mentioned in Justinian's Codex and Digest suggests that the wealthy would prefer to settle their civil disputes privately outside of court to ensure discretion. McGinn offers a wide-ranging and balanced summary of modern scholarship regarding the use of private law by the more middling elements of Roman society, for example, craftsmen, shop owners, veterans (pp. 146–58). Though this group of sub-elites is notoriously hard to identify or quantify, recent scholarship suggests that it is larger than hitherto believed and surely of interest to the jurists. By upholding the civil law rights of this middling group, Roman law assured that the elites too would flourish under the jurists’ protection.
On 17 November, ad 533, Justinian issued an innovative constitution stipulating that a free woman who consorts with a non-free man does not endanger her own liberty or that of any children produced by such a union. In ‘Libertas and “Mixed Marriages” in Late Antiquity’ C. Pazdernik tries to argue that issuing this constitution is ‘a key component’ of the legislative activity that took place in late 533, which included the promulgation of Justinian's Institutes and Digest (p. 176). Although this constitution was consequential in that it reduced the number of indentured adscripticii available for landowners, we should be cautious about putting it on a par with the two grand tomes of the Corpus Iuris Civilis. Pazdernik argues more successfully that Justinian issued the constitution as part of a campaign to promote the ‘protection of freedom as a leitmotif of [his] reign’ (p. 179).
The collection is rounded off with an afterword by C. Ando, who summarises Frier's significant contributions to Roman socio-historical and legal studies. These are not essays for the uninitiated, rather specialised studies for those with a working knowledge of Greek and Roman law. The volume is attractively presented and very well edited (I found no errata). Each essay is presented with its own bibliography; the volume concludes with indexes of sources, persons and topics. All in all, it is a fitting homage to the remarkable legacy of Bruce Frier.
