In the third book of Tacitus’ Annals, the historian interrupts his account of Tiberius’ handling of his predecessor Augustus’ marriage legislation, in particular the Lex Papia Poppaea, to provide a broader perspective on the role of law in Roman society. He points out the vast number and variety of existing laws (hanc multitudinem infinitam uarietatem legum, 3.25.2), and argues that a fuller understanding of law’s origins (de principiis iuris) is required to understand the present situation.Footnote 1 In the digression that follows, he then provides a summary of Roman legal history, starting with the first humans, and ending in the Early Principate. The passage is strongly indicative of Tacitus’ profound interest in legal themes,Footnote 2 the presence of which is now increasingly commented upon,Footnote 3 but nevertheless remains worthy of further study. Traditionally, scholarship dealing with references to the law in Tacitus’ works has overwhelmingly been focussed on his value as a source for the technical workings of Roman law, or indeed the lack thereof,Footnote 4 and it has even been argued that ‘the historian Tacitus nowhere discloses any abnormal preoccupation with the science of jurisprudence’.Footnote 5 While this may be true in a strict sense (Tacitus seems to care more about the characters of famous Roman jurists than about their work),Footnote 6 there are nevertheless good reasons to take his legal thinking seriously. The law played an important role in Roman society both as an instrument of imperial power and in contemporary perceptions of civic identity,Footnote 7 and, like many Roman men of his social class, Tacitus likely acquired basic legal training as a child, as well as practical legal experience as a magistrate and prosecutor.Footnote 8 While this in all likelihood gave him a working knowledge of the law, it did not make him an expert in legal theory, let alone a professional jurist. In Tacitus’ surviving works, however, discussions of the law are still notably frequent and explicit. Law is often central to his evaluation of emperors’ reigns, and his writings abound with references to noteworthy trials,Footnote 9 the creation and enforcement of specific laws, and legal debates in the Senate—as well as the occasional theoretical reflection. His works, then, provide a fascinating entry point into Roman legal thinking beyond the sphere of the professional jurists, and allow us to investigate more closely how educated non-experts in the Imperial period could perceive, experience and discuss the law.
The digression on Roman legal history in Book 3 of the Annals is central to our understanding of this legal thinking and stands out as one of Tacitus’ most in-depth discussions of the subject, in which he explores the role of the law in Roman society from both a historical and a more theoretical perspective. In its attempt to cover the broad scope of Roman history in a highly condensed form, the passage touches on a great many events that were deeply embedded in Roman collective memory, and presents Tacitus’ own take on a well-established subject. It is therefore little wonder that a great deal of scholarly attention has been devoted to Tacitus’ use of earlier sources in the excursus and to the existing traditions on which he may have drawn. Although it has been argued that he borrowed crucial parts of his account from one of a number of possible specific predecessors, including a now-lost part of a legal commentary from the Early Principate and speeches by Emperor Claudius,Footnote 10 this idea is now commonly rejected, and possible points of inspiration within a wide range of sources (including the works of Livy, Cicero, Sallust and Seneca) have instead been posited.Footnote 11 The excursus in its totality, meanwhile, has widely been read as part of Tacitus’ broader political critique of imperial rule, and has in that context traditionally been described as a fairly straightforward narrative of legal decline—although recent analyses have served to complicate our understanding of the passage somewhat, and have suggested various points at which this perceived decline appears to be briefly interrupted.Footnote 12 The debate on the wider implications of this passage, then, is far from over, and it thus remains worthwhile to re-examine the passage in terms of Tacitus’ treatment of existing historiographical and cultural traditions, and of his wider attitudes towards the role of law in Roman society.
HUMANITY’S EARLIEST DAYS
Tacitus’ narrative opens at the very beginning of human history (uetustissimi mortalium, Ann. 3.26.1). Although the term is not used explicitly, he describes this period as a primordial Golden Age, during which the law was entirely unnecessary: people lived together in harmony, and as a result neither punishment (poena aut coercitionibus) nor reward (praemiis) was required. The motif is a common one throughout classical literature, and has been used and reused by a wide range of authors from Hesiod onwards at the very least.Footnote 13 While Tacitus’ handling of the theme is often described as an idealized starting point for a perceived narrative of decline,Footnote 14 when compared to other authors’ accounts of humanity’s earliest days, his version nevertheless reveals a number of interesting narrative choices that reveal a great deal about the intentions he had with the passage.Footnote 15
Golden-Age narratives, and narratives about the first humans more generally, became intertwined with reflections about the origins and purpose of the law from very early on.Footnote 16 Although the different versions of the motif presented by Tacitus’ Roman predecessors vary significantly, they nevertheless overwhelmingly suggest that the earliest humans originally had no need for laws, and adopted them only in response to crime, conflict and violence—or at the very least a lack of innate righteousness.Footnote 17 Nevertheless, laws are widely represented as ultimately positive in nature and as a potentially civilizing force that could, when applied properly, help to correct mankind’s immorality. This idea seems to be cautiously (if somewhat ambiguously)Footnote 18 expressed by Virgil, who alludes to the aforementioned idea that laws were originally unnecessary,Footnote 19 while also presenting law as a tool for civilization by suggesting that it could in fact be a significant factor in the creation of a Golden Age, and even representing Saturn as a lawgiver.Footnote 20 It becomes more explicit in the works of several other Roman authors. While Lucretius’ description of humanity’s earliest days is far from idealized, he nevertheless agrees that laws were initially absent,Footnote 21 and only emerged when people grew ‘tired of living in violence’ (5.1145). Voluntary submission to the law thus ensured that interpersonal relationships became much more peaceful and better regulated.Footnote 22 Seneca presents a distinctly positive view of the law, and includes the law in a series of innovations made by the wise.Footnote 23 While his description once again references the idea that laws became necessary because of a decline—here, the descent from kingship into tyranny—he thus also clearly presents them as a sign of civilization.Footnote 24 Sallust’s description of early Roman history (Cat. 1–13) likewise closely adheres to this established pattern.Footnote 25 Like the aforementioned authors, he starts out from a situation in which law was absent. Rather than describing this absence in positive terms, however, Sallust depicts this situation as changing with the arrival of the Trojans, which is described as instrumental to creating Roman civilization, and signals the start of its rise to greatness.Footnote 26 Only at this stage are the Roman people described as a ciuitas, which implies the presence of both the laws (leges) and the governance (imperium) that were originally absent.Footnote 27 Despite Rome prevailing owing to its morality rather than its laws (Cat. 9.1), the law thus still plays a positive role.
The perception of law as a civilizing force, then, was widely present at Tacitus’ time of writing. In the legal excursus, however, he notably departs from this line of thinking, and his representation of the role of law in society is markedly pessimistic from the outset. It is especially telling that Tacitus’ excursus, including his account of humanity’s earliest days, is part of a longer passage focussed on themes of legal overreach and the encroachment of the state into citizens’ private lives,Footnote 28 in which the law is presented primarily as a threat. As previously noted, the legal excursus is directly preceded by Tacitus’ discussion of the Lex Papia Poppaea, which he claims had not only proved to be ineffective but also led to people being informed on by their neighbours acting as delatores. Tacitus then connects his critique of this specific law to his thoughts about the law more generally, and notes that Rome now ‘suffered from its laws, as it had previously suffered from its vices’ (utque antehac flagitiis ita tunc legibus laborabatur, Ann. 3.25.1). Before he even starts his digression, then, the reader is primed to think of law as a potential tool of oppression, and is encouraged to look for the origins of this problem.
Tacitus’ phrasing likewise highlights the law’s oppressive potential: he describes the law in terms of punishment and restraint (poena aut coercitionibus, 3.26.1), and notes that, in the absence of laws, the earliest humans were ‘withheld from nothing by fear’ (nihil per metum uetabantur).Footnote 29 His insistence that rewards (praemia) would likewise have been absent serves a similar purpose: it alludes to the delatores mentioned in the preceding paragraph, who used accusations on the basis of oppressive laws to gain personal advantage.Footnote 30 delatores are a common theme in Tacitus’ work, and he discusses their destabilizing effects, and self-interested political trials more generally, with notable frequency throughout his works. The reference may thus remind the reader of this wider pattern of legal abuse.Footnote 31 Even when describing the paradisiacal peacefulness of humanity’s early years, then, Tacitus immediately primes the reader to see the law not just as a result of violence but also as a potential threat in itself. In this regard, his account most closely resembles that of Ovid. Ovid may discuss the emergence of laws as just one of many signs of humanity’s ‘fall from grace’, but, like Tacitus, he seems highly sceptical of their positive effects and similarly paints them as repressive.Footnote 32 Both authors describe the law as a source of poena and metus, and Ovid further expands on this by referencing the ‘threatening words’ (uerba minantia, Met. 1.91) of legal texts and the fear evoked by the judge in his ‘supplicants’ (supplex turba timebat iudicis ora sui, Met. 1.92–3).Footnote 33 Both, then, describe the law not as a regrettable, though ultimately corrective, force, but rather in negative terms that evoke the idea of repression and overreach. Violence becomes not just the cause of the law’s existence—it is implied to be present within the very concept itself.Footnote 34
This pessimistic perspective on the law appears not just in Tacitus’ legal excursus. In addition to the aforementioned theme of trials instigated by delatores, Tacitus likewise emphasizes the potentially harmful effects of the law in other parts of his work by including an important number of cases in which legal measures were created or adapted to suit particular political interests. A key example may be found in Tacitus’ description of the trial of Libo Drusus, who had been charged with treason. Tacitus describes how Tiberius managed to ensure Libo’s conviction by introducing a new measure that allowed his slaves to be sold to the state, thereby evading a Senatus Consultum banning the torture of enslaved people to compel them to testify against their dominus in capital cases (Ann. 2.30).Footnote 35 Tacitus also shows a particular interest in the law against maiestas, which is repeatedly adjusted to facilitate a wider range of accusations against those who had displeased the imperial authorities.Footnote 36 The idea that the law often served as a tool for repression, rather than protection, then, may be found throughout Tacitus’ works.Footnote 37
EARLY LAWS AND ROMAN KINGS
In the next part of his excursus, Tacitus likewise provides an interesting reworking of existing traditions. It is notable that he places the introduction of the first laws directly alongside the emergence of despotisms (dominationes), and presents both as a consequence of ambition and violence (ambitio et uis) and as the end of equality (aequalitas)—without giving any indication that either served as a solution to these problems (Ann. 3.26.2–3).Footnote 38 lex and dominatio, then, appear to be closely linked, and the close proximity of the two concepts further underscores the presentation of laws as repressive. Tacitus’ discussion of a number of famous lawgivers from the Greek world who created these earliest laws is equally telling. While it has been suggested that he paints these early law codes in a positive light, in a possible parallel to Seneca’s legislation of the wise,Footnote 39 his phrasing does not unequivocally support this idea. He describes the laws created by Minos and Lycurgus as simplex (‘simple’, 3.26.3), created in a time when people’s minds were rudis (‘unskilled’, ‘uncultivated’),Footnote 40 before turning to the ‘more elaborate and numerous’ (quaesitiores iam et plures) laws of Solon. This description, however, mirrors Tacitus’ disapproving description of the ‘infinite number and variety’ of laws under the Early Principate (3.25.2), and thus does not seem unambiguously positive,Footnote 41 while the good reputation of these lawgivers is attributed to fama (‘rumour’, ‘public opinion’) rather than his own estimation. His description of these revered figures, then, is in fact remarkably lacklustre.
Tacitus makes similarly noteworthy choices in his discussion of the Roman kings (3.26.4). He opens by describing Romulus not as a lawgiver but rather as someone who ruled ‘as he pleased’ (ut libitum), despite the fact that Romulus is described as a key figure in Roman legal history in numerous other sources.Footnote 42 Livy in particular describes Romulus as a creator of laws (iura dedit, 1.8.1),Footnote 43 as do Virgil (Remo cum fratre Quirinus | iura dabunt, Aen. 1.293–4) and Ovid (Romule, iura dabas and reddentemque suo iam regia iura Quiriti | … Iliaden, Met. 14.806 and 14.823–4).Footnote 44 Romulus is also the only king described as a lawgiver in the surviving account of Roman legal history by the jurist Pomponius, who was active shortly after Tacitus.Footnote 45 Although a parallel tradition that did not see Romulus as a lawgiver certainly existed,Footnote 46 it is none the less clear that he was widely understood in Tacitus’ time to have been involved in the creation of Rome’s earliest laws, and Tacitus’ choice to exclude Romulus from this role thus remains interesting.Footnote 47
The intentions underlying this portrayal of Romulus may be further elucidated by comparing it to Tacitus’ subsequent depictions of the later kings. He in turn refers to Numa Pompilius, Tullus Hostilius and Ancus Marcius,Footnote 48 all of whom he presents as having made laws, without glorifying these legislative activities. Tellingly, he describes Numa as having ‘bound’ the Roman people with the law (deuinxit, 3.26.4). Although Tacitus links these legal innovations to Numa’s similarly foundational role in establishing Roman religious practices (religionibus et diuino iure),Footnote 49 this phrasing within the broader context of the legal excursus seems to hint again at the law’s oppressive potential, and has a notably different flavour than Virgil’s description of Numa as a founder of the city through law (qui legibus urbem | fundabit, Aen. 6.810–11).Footnote 50 He also notes that the kings themselves only became subjected to the law during the reign of Servius Tullius, which strongly suggests that earlier kings used laws in their own interests without themselves being constrained by them. While shedding a dim light on the kings before him, Tullius’ reign itself thus becomes a notable bright spot: rulers were no longer above the law, which meant that their subjects could now expect legal protection against their actions. Although other sources likewise regard Tullius as a foundational legal figure,Footnote 51 Tacitus’ description of him as the foremost sanctified ordainer of laws (praecipuus … sanctor legum, 3.26.4) nevertheless stands out, and Tullius is not commonly discussed in similarly exalted terms in earlier known accounts of the period.Footnote 52 Immediately afterwards, however, Tacitus references the expulsion of Tarquinius Superbus (pulso Tarquinio, 3.27.1). He thereby juxtaposes the idea of kings obeying the laws they created with an allusion to a king whose family was remembered for having done the exact opposite, implying that the subjection of the kings to the law would not, ultimately, last long.Footnote 53
Within just a few lines, then, Tacitus’ phrasing and his reworking of tradition draw the reader’s attention to the very different relationships the Roman kings could have with the law, and how they could use it both to protect and to repress their subjects. In this, Tacitus differs from accounts such as the opening of Sallust’s Bellum Catilinae, to which the excursus is often compared. There, the reigns of the various Roman kings are described collectively as having been founded on law (imperium legitumum, nomen imperi regium habebant, Cat. 6.6), thus depicting kings as both lawgivers and legitimate rulers. Tacitus’ account, meanwhile, does not present the kings as a monolith: he uses them to concisely showcase different ways of dealing with the law, from the idealized to the disastrous. While readers are still primed to think of the law as a potential tool of oppression by the fact that the legal actions of the Roman kings are strongly hinted to have been largely self-serving, they are now also introduced to specific circumstances under which the law could conceivably be used for good—rare as these instances may be. The reference to laws serving as a protective device by limiting the powers of the king thus not only provides a glimpse of what Tacitus believes the role of law in society ought to be—it also suggests that, far from being a straightforward narrative of decline, the legal excursus is instead presenting a more complex and nuanced set of ideas. Indeed, this approach fits well with Tacitus’ handling of legal themes elsewhere in his work. While, as previously noted, the mishandling of the law is a particularly prevalent topic, the law is not always a force for ill. The detrimental effects of the law’s absence are discussed in the opening paragraphs of the Annals, which describe both the relief felt by the inhabitants of the provinces when Augustus restored the legal protection that had disappeared during the Civil War (inualido legum auxilio, 1.2.2) and the similar sentiments of at least some of Rome’s ‘prudent people’ (prudentis, 1.9.3), who saw the emperor’s reign as the return of ius after a period in which there was no space for leges. While Tacitus takes care to note that this good opinion of Augustus’ reign was not universally shared (1.10), it is none the less telling that he highlights these sentiments, and carefully avoids dismissing the law’s usefulness altogether by ascribing them to the more insightful members of society. Elsewhere, too, he occasionally references the law in a more positive context, thus once again showing that he does not disapprove of legal measures in general: indeed, they can be highly valuable, so long as they serve the interest of the inhabitants of the Roman empire, and protect them against those in power.Footnote 54
THE TWELVE TABLES
The circumstances under which the law could play a positive societal role are further expanded upon in Tacitus’ discussion of the Twelve Tables. Tacitus suggests that they were intended to safeguard liberty and strengthen concord (tuendae libertatis et firmandae concordiae, 3.27.1), and incorporated the best aspects of a number of foreign law codes (accitis quae usquam egregia). When compared to other accounts of the Tables’ creation, it is notable that a significant number of sources, including Livy, make a distinction between the first ten Tables and the last two: while the first group is widely favourably regarded, the last two Tables are often said to have been implemented by a second group of corrupt decemuiri, who used them to limit the rights of the people.Footnote 55 Even Pomponius, whose account as we know it leaves out the corruption of the decemuiri (Dig. 1.2.2.3–4), still describes the creation of the Tables in two separate steps, as opposed to Tacitus’ one, and notes that the first set of laws was found to be deficient. Tacitus’ much shorter, more linear approach to the subject, then, remains unusual, and stands out for its unequivocal positivity. This is likely to have deviated sufficiently from established historiographical tradition to have drawn the reader’s attention, and it is therefore likely that he intended to use the Tables to highlight what he saw as the proper role of law in Roman society. Their aforementioned glowing description may be taken to imply, fairly explicitly, that the law is ideally supposed to protect the liberties of the people, and to safeguard the unity and harmony between different societal groups—and therefore the stability of the state. This focus on the protection of liberty fits well with Tacitus’ favourable views on Servius Tullius, whose efforts to ensure that kings themselves were also subject to the law likewise served to protect the Roman people and its interests.
It is telling, in this regard, that Tacitus does not blindly favour the senatorial class, but instead presents the Tables as having been created by the Roman populus as a means of protection against the intrigues (factiones) of the patres (Ann. 3.27.1).Footnote 56 This suggests that the law was not just, as is specifically mentioned in the text, intended to promote liberty and concord, but also had the added benefit of safeguarding equality (aequalitas), which Tacitus previously characterized as a foundational part of the Golden Age (3.26.2). Tacitus’ description of the Twelve Tables as the finis aequi iuris (3.27.1) therefore underscores the special status he ascribes to these laws, and highlights what he believed the role of law ought to be.Footnote 57 His explicit references to equality, liberty and concord in this context suggest that the law should work to protect the common good, rather than specific personal or factional interests—only then can it avoid becoming repressive.
DECLINE?
The Twelve Tables, however, appear to be a rare specimen for Tacitus, and legal abuse once again becomes a central theme in his description of the period that followed. It has therefore been suggested that Tacitus used the term finis to express that the Tables marked the end of all equitable legislation, and that all laws issued afterwards were indicative of a decline.Footnote 58 It seems more plausible, however, that the phrase should be interpreted as ‘culmination’ rather than ‘end’.Footnote 59 While Tacitus is certainly effusive in his praise of the Twelve Tables, the passage suggests that he does not see them simply as the turning point between a time of legal stability and one of legal deterioration. First, the circumstances that preceded the creation of the Tables are described in very similar terms to the period that followed them. According to Tacitus, the Tables were a response to destabilizing partisan groups of patrician senators (patrum factiones),Footnote 60 and this reference to political chaos and factionalism is closely echoed in his description of the later Republican period, when laws were often carried through violence (per uim) in the midst of class dissension (dissensione ordinum, 3.27.1).Footnote 61 Although these phrases refer to different periods and historical events, they none the less describe strikingly similar situations, and the fact that they function as bookends for Tacitus’ discussion of the Twelve Tables therefore suggests that these periods are not meant to be seen as direct opposites. In addition, not all laws introduced after the Twelve Tables are considered entirely without value, and Tacitus qualifies his bleak description by noting that some laws were still aimed at offenders in response to some crime (aliquando in maleficos ex delicto, 3.27.1),Footnote 62 even if they were more often (saepius) created for less defensible ends. This juxtaposition suggests that the difference between the two periods is one of degree, not of essence. The same happens again later in the same chapter, where Tacitus refers to laws being passed not only (non modo) in general terms (in commune) but also against individual people (in singulos homines, 3.27.3), thus once again suggesting that more sound laws continued to exist.
Overwhelmingly, however, this part of the legal excursus resumes the darker themes of its opening paragraphs, thereby providing the reader with a more in-depth view of how Tacitus believes the law has repeatedly worked to Rome’s detriment. He is critical of laws that are not passed through proper procedures, as is highlighted by his comments about laws being carried amongst violence and class dissension. His primary focus, however, is on legal measures that are used to advance particular, often political, interests—a theme that is also frequently foregrounded elsewhere in his work, as, for instance, in the aforementioned repeated expansions of the law on maiestas, which allowed the imperial authorities to target their political opponents.Footnote 63 While Tacitus’ historical references are often rather abstract, he specifically points to laws that were created to open the way to an unconceded office (inlicitos honores, 3.27.1), which may allude to politicians such as Gaius Gracchus and Marius being elected multiple times in direct succession despite this being officially prohibited,Footnote 64 or perhaps to Pompey’s election as consul sine collega in 52 b.c.e. Tacitus is likewise critical of laws that were created specifically to banish distinguished men (claros uiros, 3.27.1; almost certainly a reference to Cicero’s exile),Footnote 65 which once again suggests that he particularly objects to the use of the law to further political or private interests. This is reinforced by his later mention of laws being passed in singulos homines (3.27.3): while this very likely once again refers to Cicero’s banishment by tribune Clodius Pulcher in the wake of the Catilinarian conspiracy, which violated the ban on laws against specific individuals,Footnote 66 Tacitus’ subsequent use of the phrase in commune also seems to evoke the idea that these laws were no longer being passed for the common good.Footnote 67
When Tacitus’ references to the Republican past become more explicit, we get a clearer view on whom he holds responsible for this misuse of the law. He initially points to the Gracchi and Lucius Saturninus, who stirred up the Roman plebs (turbatores plebis, 3.27.2). While this has been interpreted as a sign of anti-plebeian prejudice on Tacitus’ part,Footnote 68 it remains telling that he, as discussed, is overtly positive about the role of the Roman plebs in creating the Twelve Tables. Immediately afterwards, Tacitus furthermore references M. Livius Drusus, who he says was equally disruptive on behalf of the Senate (nec minor largitor nomine senatus, 3.27.2).Footnote 69 Interestingly, he also names Rome’s Italian allies as a major source of unrest. While they were not in a position to create legal measures themselves at the time, the socii were a significant object of political conflict and legislative activity during the period,Footnote 70 and Tacitus seems to imply that unscrupulous politicians attempted to issue these measures to gain political support. The legal danger, then, was coming at Rome from multiple sides, and Tacitus seems less concerned with pointing out a single guilty party than with arguing that laws soon become deeply problematic when they promote particular interests, either those of individuals or those of larger social groups, over the stability of the state.Footnote 71
In disparaging the legal proceedings of the Civil Wars, however, Tacitus is not simply criticizing the perversion of what is in essence a good institution. It is important to think back to the beginning of the excursus, and to keep in mind that it opened by wondering how Rome had ended up with ‘this infinite number and variety of laws’ (3.25.2). This focus on the frequency with which laws were enacted and their often contradictory nature appears again in Tacitus’ account of the Late Republic, where he notes that ‘not even during the Italian War and later during the Civil War did many conflicting laws cease to be enacted’ (3.27.2). This insistence that laws continued to be created even during war notably contradicts the common idea that the law is often disregarded in times of crisis,Footnote 72 which is most famously vocalized in Cicero’s ‘among arms, the laws are silent’ (silent enim leges inter arma, Mil. 11).Footnote 73 A similar point is made by Sallust, who describes how Rome’s emerging vices were initially at least punished, but later went entirely unchecked, thereby presenting the law as the last safeguard against immoral behaviour (Cat. 10.6). To Tacitus, however, law is not necessarily absent in times of crisis. Instead, he suggests that the political chaos of the Social and Civil Wars was accompanied by significant legal activity, thus strengthening the idea that the law can all too easily be used as a tool for repression and self-interest—as is emphasized by his assertion that, ‘when the state was most corrupt, laws were most abundant’ (corruptissima re publica plurimae leges, 3.27.3).Footnote 74
While this part of the digression is often seen as the absolute low point in Tacitus’ presumed account of legal decline, his narrative choices once again complicate this interpretation. He interrupts his description of the Late Republic’s extensive legal activity by noting that Sulla was able to briefly halt the general legal confusion (3.27.2),Footnote 75 thereby contradicting Sallust’s account of the same period, which describes the dictator as a major contributing factor to the Republic’s downfall.Footnote 76 Instead, he presents Sulla’s rule as a return to legal coherence after the contradictory nature of the preceding legal activities, which was achieved by abolishing or converting previous laws, and by adding many new ones (abolitis uel conuersis prioribus, cum plura addidisset, 3.27.2).Footnote 77 The absence of internal contradictions within the law seems to have been essential to proper handling of the law for Tacitus, and would likely have contributed to the legal equality that he elsewhere describes as essential. Tacitus, then, does not seem to have been opposed to legal innovations altogether, so long they were clear and consistent. This does not mean, however, that he depicts Sulla as a straightforward hero. In particular, his description of Sulla as introducing many new laws himself serves to compare him to Augustus,Footnote 78 and suggests that he was still complicit in the legal expansion that Tacitus previously criticized. Tacitus’ compliment, then, is a dubious one. The reprieve Sulla offers is furthermore ultimately a brief one, which is quickly broken by M. Aemilius Lepidus (cos. 78 b.c.e.). Nevertheless, the inclusion of Sulla’s reordering of the law shows that, from Tacitus’ perspective, there were indeed ways for the legal situation to improve even during the Late Republic.
A similar point of nuance emerges in his description of Pompey: Tacitus initially highlights the law’s repressive power by describing his enactments as ‘more severe’ than the crimes they were supposed to punish (grauior remediis quam delicta, 3.28.1), but in the same breath criticizes him for abolishing his own laws, once again showing his abhorrence of legal inconsistency.Footnote 79 Immediately afterwards, he furthermore re-emphasizes the harmful effects of societal discord (discordia, 3.28.1), which is here specifically linked to lawlessness: the twenty years of non mos, non ius that followed are likewise presented as deeply destructive.Footnote 80 In order to get this point across, he appears to deliberately omit Julius Caesar’s legislative programme,Footnote 81 and in doing so suggests that in the absence of the inherent morality that governed the Golden Age neither the presence nor the absence of laws is a safe option. Within a few sentences, then, Tacitus is able to draw his readers’ attention to a number of vastly different ways in which a society’s way of handling the law can work to its detriment.
The legal chaos and the lack of legal oversight of the late Civil Wars are ultimately ended by Augustus, but Tacitus emphasizes that he did so by imposing ‘tighter fetters’ (acriora ex eo uincla, 3.28.3) under the guise of establishing peace,Footnote 82 thereby returning to the subject of the Lex Papia Poppaea. Tacitus once again describes how Augustan marriage laws were used to increase the power and wealth of the state and of private accusers (custodes), and how many citizens were attacked by deeply invasive legislation (altius penetrabant; corripuerant). The primary focus of the digression, then, remains the law’s oppressive potential, but the narrative ends on an unexpectedly positive note. Tiberius, whose handling of the law Tacitus otherwise frequently criticizes, is tellingly presented as providing a remedy to Augustus’ legal overreach (remedio, 3.28.4), and disentangling the many legal knots (plerique legis nexus) that his predecessor had created.Footnote 83 Legal improvement, then, remained a distinct possibility for Tacitus. Elsewhere, he notably echoes his own description of the Golden Age by suggesting that ‘new men’, including Emperor Vespasian, did away with the need for sumptuary laws and the punishment and fear they brought with them (poena ex legibus et metus, 3.55.4) by setting a moral example.Footnote 84 Not everything was better in the past (nec omnia apud priores meliora, 3.55.5), and the reigns of Nerva and Trajan in particular are described as happy times (Agr. 3.1)—in contrast to the repressive policies of their predecessors.Footnote 85
CONCLUSION
Tacitus’ legal excursus is an excellent example of the author’s deep interest in legal themes, and from the very start helps to crystalize the legal thinking found elsewhere in his work, encouraging the reader to carefully consider the role of law in Roman society. Throughout his account of Rome’s legal history, Tacitus engages with well-established narrative traditions on the subject in noteworthy ways. He makes several narrative choices that draw attention to the different ways in which the law can be used, and the role it has historically played. In his view, it becomes clear that the law is not simply a tool for good, or even an unfortunate but necessary corrective to violence and disorder. Instead, Tacitus repeatedly demonstrates that the law is all too easily, and often, used as a tool of oppression, and his analysis stands out for its deeply critical perspective. In particular, the way in which he presents humanity’s earliest days serves to highlight the law’s oppressive potential, and the same idea is reflected in his discussion of the different ways in which the Roman kings handled the law, as well as his analysis of the Civil Wars and the later years of the Republic. This idea that the law posed a threat to societal stability and security does not just appear in the legal excursus but is instead a running theme throughout Tacitus’ works. The Lex Papia Poppaea, which provides the inciting incident for the digression, is presented as a deeply destabilizing measure, which was not just a transparent attempt to fill the imperial coffers, but also encouraged opportunistic delatores attempting to benefit from accusations on the basis of repressive laws (3.25 and 3.28). As discussed, these delatores recur frequently in Tacitus’ writings, as do pointed descriptions of other cases in which different legal actors created or adapted particular legal measures to best suit their own interests—particularly in trials involving maiestas.
This does not, however, mean that Tacitus’ views on the law lack nuance, and it would indeed be overly simplistic to maintain that the legal excursus amounts to little more than a narrative of decline. On the one hand, the idea that the law can be used in oppressive, self-interested and destructive ways is present from the very beginning rather than emerging gradually over time, and Tacitus furthermore repeatedly used strategic ‘bright spots’ to illustrate how the law could on occasion be appropriately handled—while also highlighting that its absence, or inconsistency, could be equally disastrous. These references to ways in which the law can be used for good, both in the legal excursus and in the rest of Tacitus’ works, furthermore serve to counter the idea that Tacitus perceives Rome to have undergone a legal decline from which there is no return—as do a number of notable references to emperors correcting the mistakes of their predecessors. While it remains telling that these bright spots are often linked to the removal of the repressive laws that had previously caused injustice and legal confusion, rather than the creation of new measures, they do confirm that Tacitus believed that legal matters had been handled well at various points in Roman history and could be handled appropriately again in the future.Footnote 86
Tacitus’ evaluation of individual legal actions, then, appears to have strongly depended on how they were used in practice, and the coexistence of beneficial and harmful uses of the law in his writings seems to underscore his belief that the law should be handled with great care and consideration. In particular, the legal excursus shows that laws, in Tacitus’ view, should serve the collective interests and stability of Roman society rather than any particular ends—whether those of smaller societal groups or specific individuals—and should protect the Roman people against those in power. Laws that protect liberty and concord, and actually punish crimes, can indeed serve a valuable purpose in society. So long as these criteria are observed, correct handling of the law is not necessarily reserved for a single societal group or institution: Tacitus is critical of both the Senate and the plebs, as well as the emperors, and thus seems to avoid depicting either of them as fully responsible for either legal malfeasance or, by contrast, admirable and beneficial legal behaviour. This, however, is also the central warning contained in the legal excursus: when the law is mishandled, it becomes a danger that can come at Rome from any number of angles, and proper handling of the law thus becomes a collective responsibility. Through his particular handling of the traditions established by his predecessors, Tacitus thus challenges the reader to think carefully about the role of law in Roman society, and to see its beneficial use not as self-evident but instead as aspirational. Indeed, a more proper, less damaging way of handling the law is still possible—but it is something that has to be carefully worked for, and closely guarded.
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