Part 1: The emperor and justice

Much of the discussion centers, as one might expect, around the emperor, and we are well served in this regard by Stéphane Benoist and Anne Gangloff in their essay, “Culture politique impériale et pratique de la justice: Regards croisés sur la figure du prince ‘injuste’” (19–48).Footnote ¹ The authors take their point of departure from Cicero's famous definition of the res publica, examining this in the context of its relationship with political life, its institutions, and its ways of functioning, above all under the guidance of Cicero's ideal manager, the rector rei publicae. Of particular interest is the way in which Cicero's identification of the res publica as res populi implies a community of interests on the part of the populus, pursued as a “common good” in the context of a commonality of rights and institutions.Footnote ² Justice is a value so integral to the res publica that the latter cannot exist without it (20–21).

From there we move to a consideration of how the emperor functioned as a symbol and practitioner of justice. The authors split up their analysis in order to proceed along three separate but related tracks. The first examines the vocabulary of justice, meaning iustitia and related terms. The second surveys the role of emperors in a chronological arc extending from the 1st to the 3rd c. The third explores the ambiguity uncovered in the depictions of some key imperial figures, which range from representations of iustitia and indulgentia on the one hand to those of severitas and saevitas (sic) / crudelitas on the other. The result is a dense and stimulating analysis that is rich in detail and brimming with interesting observations. Here is required reading for anyone interested in this subject.

In the third chapter, “The Decreta and Imperiales Sententiae of Julius Paulus: Law and Justice in the Judicial Decisions of Septimius Severus” (49–67), Elsemieke Daalder confronts the reigning consensus that this collection (the two works are thought to derive from a single original) was designed to inform litigants, trial lawyers, and judges so they could rely on the content of these verdicts in cases pertaining directly to them. She argues instead that Paul's purpose is not legal but political in nature.Footnote ³ The jurist aims to demonstrate to a broader reading public the autocrat's dedication to seeking a just outcome in the cases that came before him, whether this meant adhering to the law or going beyond it. This portrait of a hard-working and fair-minded ruler as dispenser of justice expands on the image of the “good emperor as judge” delineated by Benoist and Gangloff in the essay that precedes it. Severus is shown by Paul both to be just and to act justly, in part by making himself accessible to litigants of varying backgrounds.

Next, in Chapter 4, Francesco Bono takes up an interesting facet of regime change and its impact on the rule of law in Late Antiquity, in “The Value of the Stability of the Law: A Perspective on the Role of the Emperor in Political Crises” (68–85). Usurpation of the imperial power was especially frequent in this period, often accompanied by the cancellation of a predecessor's name, image, and acts. This last had implications for legal certainty and stability, since the interests of a large number of private individuals might be affected who had nothing to do with the prior regime but whose own arrangements might be compromised by an absolute invalidation of its legal authority. The solution was for the victor to affirm the validity of the private legal acts associated with the preceding period of “tyranny,” while generally nullifying the measures undertaken by the now-vanquished claimant to the throne (rescissio actorum). This allowed the victor to assert his role as the defender of the legal order – which might be characterized to his credit in different ways – and as the avatar of justice.

Chapter 5, “Legal Education, Realpolitik, and the Propagation of the Emperor's Justice” (86–102) by Matthijs Wibier, examines how a collection of lecture notes – it is uncertain whether they were taken by the instructor or a student – contributes to our understanding of ideals of law and justice in the context of legal education. This is the Fragmenta Augustodunensia (FA), recovered at the end of the 19th c. from a library in the town of Autun, ancient Augustodunum. The work, surviving in the form of a palimpsest, elucidates the text of the famous Institutes, the 2nd-c. elementary textbook composed by the jurist Gaius. The FA itself appears to have been written in the period ranging from the second half of the 3rd to near the midpoint of the 4th c., at the very latest.Footnote ⁴

This fascinating discussion relies on a generous measure of conjecture, as is almost inevitable regarding the subject of legal education in Late Antiquity.Footnote ⁵ First in order of speculation is the notion that the FA was used primarily not in law schools but in schools of rhetoric. More important perhaps is the assertion that the text takes a radically different stance than does Gaius on the importance of the emperor as a source of law. The latter, in our author's analysis, takes the lex enacted by popular consent as “the ultimate source of legal authority” (93).

The scarcity of evidence for law schools in the Late Antique western Roman empire makes the first conjecture tempting. The real difficulty, however, is that we are no better situated regarding information on the teaching of law in schools of rhetoric in that time and place.Footnote ⁶ All the more reason to side with the author when he resists the conclusion that the FA was used as a teaching text precisely in the town of Autun itself, where the proposed reestablishment of an important center of rhetorical instruction toward the end of the 3rd c. makes this an all too attractive inference.Footnote ⁷

The second argument also presents challenges. Unfortunately, the section of the FA that might have dealt with Gaius's famous discussion of the sources of law in the Institutes has not survived.Footnote ⁸ Wibier relies instead on a comparison between a passage in the latter where the corresponding part does appear in the text of the FA, in a form, however, that is notably longer than its “model.”Footnote ⁹ This text mentions the emperor several times without naming him, whereas Gaius specifically refers to the generation of a new rule by Hadrian.

Wibier argues that the differences between the two demonstrate the heightened importance of the emperor as a source of law in the later period. The cessation, toward the middle of the 3rd c., of the contributions to the development of law through contemporary juristic writing would seem to lend a certain plausibility to the argument. But this phenomenon does not mean the importance of such works as a source of law can be assumed to cease as well, or even to decline, especially in the context of legal pedagogy. The very existence of the FA, a text that is, for obvious reasons, highly dependent on Gaius, argues against such a conclusion. The study of juristic literature continued to enjoy pride of place in the legal instruction of Late Antiquity, as we can see both in the curriculum that preceded Justinian and in the changes he introduced in the wake of his codification. Regarding the first, he famously complains that the students scarcely had the opportunity to read imperial constitutions after four years of study, while even in his reform, scrutiny of these laws, now collected in his Codex, was still postponed to the fifth year.Footnote ¹⁰

A more serious objection to the author's position lies in the argument that Gaius does not in fact attempt to underscore the importance of the lex as the ultimate source of legal authority – let alone that of the jurists – but precisely that of the emperor, subordinating all other sources, including comitial laws, decrees of the senate, and the opinions of legal experts, to the will of the princeps.Footnote ¹¹ If this reasoning is accepted, it suggests that the true contrast would not lie between Gaius's Institutes and the FA, but between both of these works and the Enchiridion of Pomponius, which attempts to reaffirm the centrality of the jurists, if in a discreet manner.

My own view is that the lengthier exposition in the FA simply represents a more effusive style of teaching than that favored by Gaius, a style that may have been directed at, and even crafted for, a broader range of students than often assumed, while the particular importance of the emperor Hadrian's intervention adduced by the 2nd-c. jurist had evanesced with the passage of time.Footnote ¹² The state of the later text makes certainty in this instance impossible, it must be noted. Whatever perspective one favors in the end, the author deserves gratitude for drawing attention to this too-long neglected work.

Part 2: Justice in a dispersed empire

Hadrian is well known for his legal reforms, and Juan Manuel Cortés-Copete sheds light on a particularly interesting aspect of these in “Koinoi Nomoi: Hadrian and the Harmonization of Local Laws” (105–21). Older scholarship viewed the effects of the widespread grant of citizenship in 212 by the Constitutio Antoniniana (CA) as flattening the imperial legal landscape, while more recent approaches have stressed the continued existence of local laws in many places. Cortés-Copete argues that the matter was even more complicated than this revisionist school might suggest, citing the evidence of Aelius Aristides (the Roman Oration) and Menander Rhetor, who assert, respectively before and after the enactment of the CA, that the Romans had established common laws for all. How is this possible?

The author seeks a part of the answer to this question in Hadrian's interventions in the local laws of numerous Greek cities. He pursued a policy in this context that was paradoxical almost to the point of self-contradiction. While confirming or reinstating local rules, Hadrian tweaked them so that their content would conform better to standardized Roman practices.Footnote ¹³ Putting himself forward as the supreme lawgiver, he established the provincial governors and the imperial chancellery as the courts of appeal for judicial decisions that originated on the local level. The result was that Hadrian without doubt defended the ability of individual cities and other political units to use their own legal traditions. At the same time, he transformed these bodies of rules in a manner that rendered them consistent with his “common laws” in terms of both their contents and the mechanism of judicial review that exercised the ultimate authority in their enforcement. The result was a complex system of particularism and harmonization that must have required a larger number of legal experts than before at various levels for its successful management.

The two essays that follow nicely complement that by Cortés-Copete. In “Justice, Res Publica and Empire: Subsidiarity and Hierarchy in the Roman Empire” (122–37), Frédéric Hurlet discusses how these two principles shaped the operation of the imperial courts as a system. Under the first, local courts disposed of cases of lesser importance, while under the second, Roman law functioned as the superior legal authority available to resolve weightier matters, at least for those with the means to access these courts. Clifford Ando, in “Substantive Justice in Provincial and Roman Legal Argument” (138–56), shifts the focus to a contrast between substantive and procedural justice, as he defines the matter. He examines the implications of the choices confronting Roman courts when they accepted cases on appeal, especially those that compelled a decision between accepting the formally correct verdicts of local courts in application of their own rules and enforcing Roman standards of justice when these were in conflict. Like that of Cortés-Copete, Ando's discussion implies the need for a large and complex machinery of judicial administration overseen by a growing number of legally trained personnel. While the reign of Hadrian was a true turning point, it again formed part of a longer-running trend.

In his essay “Zwischen Theorie und Wirklichkeit: Römische Sicherheitsgesetze und ihre Realisierung” (157–73), Peter Herz turns our attention to the maintenance of public order, drawing a major distinction, as his title suggests, between theory and reality. He views the former as crystallized in the Roman Oration of Aelius Aristides, with its famous panegyric of imperial order, peace, and the rule of law, while locating the latter in a series of literary and legal texts that might appear to suggest a robust experience of violence and disorder. The premise that Aristides idealizes, if not exaggerates, contemporary conditions seems plausible at first glance but turns out to be difficult to prove. Nor does the evidence allow us to gauge the degree of disjuncture between the orator's assertions and lived experience. Herz begins by citing epigraphical and juristic sources that indicate local authorities were responsible for their own security, but this in itself hardly guarantees dysfunctionality. It is true that authors such as Tacitus and Suetonius offer vivid accounts portraying a breakdown of order on the local level, but the examples Herz cites depict episodes from the time of the Julio-Claudian dynasty, whose typicality even for that period remains far from clear. Plenty of legal evidence testifies to the repression of violence in various forms, but this seems even less on point.

It is not just, or mainly, that these sources are later in date than the Roman Oration – not surprisingly, Herz cites such Severan jurists as Ulpian, Marcian, and Paul – but that some of these norms in fact predate the speech. In other words, their authority reflects a process of rule formation that ranges over a long stretch of time. While there is some general overlap with the period described by the panegyrist, this does not necessarily mean that they address problems that were rampant in his day. What complicates the burden of proof is that the evidence on which our author relies is strictly normative and not descriptive in nature. In other words, neither the definition of violent offenses nor the severity of the penalties threatened can by themselves prove how frequently such crimes were committed. But even if we are unable to take the measure of the gap between “theory” and “reality” that Herz postulates, his assertion that the alleged Golden Age was not all that golden retains a certain plausibility.

Part 3: Justice for all?

The status and role of women raise obvious challenges for the modern interpreter in the context of a patriarchal society that made no secret of the high value it placed on male privilege. For the Romans, men constituted not just the stronger but the better sex. From the start, we are confronted with an ideal and practice of “justice” so radically at variance with our own – if by “our own” we mean the contemporary West – that a high degree of dissonance seems inevitable. Two essays grapple with this problem, the first through what amounts to a case study on the lex Voconia, the second by means of an ambitious survey of women and the law.

The first of these contributions, “Geschlechterrollen im römischen Erbrecht im Spiegel des zeitgenössischen Gerechtigkeitsverständnisses und am Beispiel der lex Voconia” (177–95), by Elena Köstner, offers much on the subject of this statute that will be familiar to experts.Footnote ¹⁴ This statute, passed in 169 BCE, contained, in the modern scholarly consensus, two provisions. One prohibited testators who were officially registered in the first census class from instituting a female heir. The other forbade any legacy or gift mortis causa from being larger than the amount left to the heir or heirs, at all levels of society. The author focuses on the first rule, though the second is hardly irrelevant to the situation of women and girls, since it would prevent them (as well as males of course) from receiving more than half an estate through a legacy or gift mortis causa, a deprivation perhaps felt most keenly by those who were also subject to the provision excluding them as heirs. Thus the law closed off some work-arounds, though it did allow others.

Scholars have long recognized that the passage of the lex Voconia is very likely grounded in the perceived and actual consequences of male losses, through death and long-term absence, in warfare. At this point, Rome had concluded a pair of wars with both Carthage and Macedonia and initiated yet one more with the latter, which in 169 was not proceeding especially well. One goal of the legislation was to hinder the accumulation of wealth in the hands of women, who might seem unduly to profit from their status as survivors, at the expense of males. The latter, as one might expect in such a patriarchal society, enjoyed a superior moral claim to such assets as taxpayers, soldiers, and voters. Female heirs, like males, would benefit from any failure by co-heirs to claim their shares. Their role in executing legacies, trusts, and other bequests, manumitting slaves, as well as paying and/or collecting debts connected with the estate might not simply elevate their social profile but come uncomfortably close to defining it in male terms, especially for the wealthier and more prominent among them.

Köstner's contribution is to postulate a core connection between this statute and the lex Oppia, enacted in 215 BCE and repealed in 195. While there is no good reason to doubt that the two laws arose from a similar set of concerns, linked to the long absence or outright loss of men in war, they address very different aspects of the impact of these phenomena on the behavior and role of women. The lex Oppia attempted to limit what was regarded as the misuse of material assets, especially, it seems, in the service of women's appearance in public, behavior that at worst registered as an inappropriate expression of their traditional role, while the lex Voconia sought to impede them from usurping prerogatives that were ideally male. This is why it was possible to repeal, albeit with difficulty, the first about two decades after its enactment, while the second, which addressed a far more serious threat, retained its force for much longer. The question remains as to whether either law compromised, or simply reaffirmed, Roman ideals of justice.

In the next chapter, “La femme: objet et sujet de la justice romaine” (196–211), Pilar Pavón sets herself the task, in my view an impossible one, of surveying women's status under Roman law in fewer than 16 pages. Did this depend on perceptions of women's nature, elite male cultural values, or both? Analysis is pretty much beside the point when there is no space to discuss the ancient sources, so that, not surprisingly, no clear answers emerge to these questions. The author revives the chestnut, which depends on a literal reading of some blatantly misogynistic sources, that in the reign of Tiberius multiple women declared themselves prostitutes as a form of protest in defiance of the Augustan adultery law (209). Again, the central question remains without an adequate answer. The differential treatment of women under the law doubtless seems unfair to many modern observers, but did it violate Roman social norms that were thoroughly – and openly – grounded in a hierarchy of gender?

In the final essay, “The Spectacle of Justice in the Roman Empire” (212–33), Margherita Carucci examines a small group of mosaics from Roman North Africa that appear to depict the execution of criminals in the arena. There are at most three examples, a very small base of evidence on which to construct an argument.Footnote ¹⁵ Legal and literary sources, including Christian authors, are rapidly noticed in the abstract (215) but just as quickly dismissed as lacking in usefulness. Secondary sources tend to be cited in the notes in their entirety, in the style of a bibliography, rather than with reference to particular discussions over a specific range of pages.Footnote ¹⁶ We are left to skim the surface at best.

In evaluating the question of justice, Carucci seems at first to adopt an explicitly modernizing perspective, but later warns against viewing the ancients through “our ideological lenses” (217; cf. 214). On one page she argues that spectators at executions of criminals in the arena experienced “physical and emotional detachment” from the spectacle (229) but on the next postulates their active engagement (230). The author's opinion on the status of the criminals in question seems to waver between imagining them as captured enemies or as lower-status Romans.Footnote ¹⁷ For Carucci, “[t]he punishment of an elite member [sic] through his physical removal from the community, either in the form of exile or forced suicide, was visualised in his physical absence and in the removal of anything he could be remembered by (damnatio memoriae).” The conclusion is that such punishments “functioned equally as visual modalities in the enactment of justice” with public executions of criminals in the arena (231). This is difficult to comprehend, let alone accept.Footnote ¹⁸ Compared with some previous contributions, not least Kathleen Coleman's essay on the staging of executions as mythological enactments,Footnote ¹⁹ the article is not as innovative as one might have wished.

There is no conclusion, and the volume ends with a desultory series of indices: “nominum,” “locorum,” and “of legal texts” (235–37).

No one should be surprised that in a collection of essays some emerge as more successful than others. More disappointing perhaps is the fact that the book does not make greater progress along the lines laid down by the editors in their introduction. They promise to examine “what was considered just in various groups of Roman subjects” (2), whereas the approaches taken tend to offer perspectives that are top down and emanate from the center. Also rather imperfectly realized is the pledge that “[w]e have avoided imposing modern notions on what is just or not on the ancient material” (2).

It is a pity that so many of the essays are grounded in thin evidence and/or speculation. This represents an opportunity cost, given the presence of some very viable alternatives. The problem of to what extent differentials in wealth and social position might affect the realization of justice, especially as crystallized in the theme of judicial corruption, is barely touched upon. Values are without doubt of supreme importance in any serious discussion of iustitia, but some more practical problems merit consideration as well. There are various factors that can impede a society's attempts to realize its values through its legal system. In concrete terms, these can include not just differences between litigants in terms of social rank and economic resources, but challenges with various types of evidence, the biases of judicial officials and finders of fact, and other structural aspects of the system of adjudication, such as delays in resolving lawsuits. In any society, there are, to adopt a common metaphor, various potholes to be found on the great superhighway of justice. Future examinations of the subject in Roman antiquity might attempt to map a few more of them.