In recent years scholars have focused increasing interest on the role of law in ancient societies. The two volumes reviewed here address this broad question from two quite different but complementary perspectives.Footnote ¹ The collection of essays edited by Ando et al. represents the first volume in a four-part series of The Cambridge History of Rights. As outlined by the editors in the introduction (pp. 1–18), the volume explores the degree to which ancient societies had concepts of rights comparable to what the contemporary world understands as human rights, founded on a recognition of the basic dignity of people irrespective of their race, gender or place in society. The volume thus responds to a widely held view that such concepts only emerged during the medieval period. The second volume grapples with the issue how the law was conceived and functioned in Rome at various periods in its history, studying the broad question whether Rome was a ‘rule of law society’, one in which, as the editors state in the introduction, ‘Roman institutions and political norms protected citizens against the arbitrary exercise of power’ (p. 1).

The essays in The Cambridge History of Rights all confront the issue whether ancient societies conceived of people as having ‘subjective rights’, defined by the general editors of the series as belonging ‘to persons qua persons’, and ‘objective rights’, ones that ‘belong to persons as members of a just legal order’ (p. xvi). Objective rights are commonly established by legislation or even by broadly recognised norms. The essays find ample evidence for subjective rights in ancient societies, even if the articulation of such rights did not result in a recognition of universal human rights. At the same time, ancient philosophical and legal traditions sometimes engaged with the terms of universal human values. The essays are all informed by the concept of rights outlined by W. Hohfeld’s authoritative analysis (‘Some Fundamental Legal Conceptions as Applied in Judicial Reasoning’, Yale Law Journal 23 [1913], 16–59).

In the first essay S. Richardson emphasises that the law collection of Hammurabi (LH, c. 1750 bce) represents an element of a centuries-old tradition in which Mesopotamian kings proclaimed their role in bringing justice to humankind as part of a divinely sanctioned order. The LH is not a code of laws, but a series of ‘exemplary wise judgments’ (p. 23) that provide principles on the basis of which people could make legal claims. The LH essentially celebrates the rights that the king grants to the people under his rule to make legal claims (p. 44). A different understanding of what can be interpreted as rights is found in M. Sim’s chapter on Confucianism. Sim’s general thesis is that philosophers in the early Confucian tradition, in particular Confucius and Mincius (Mingzi), articulate concepts comparable to modern human rights. Confucianism emphasises the individual’s duty to the community, and its concept of rights does not start with the interests of the individual person, but with the individual person’s concern for the community. Rulers have a comparable duty towards their subjects, to provide the conditions that make it possible for people to pursue virtue. The Hebrew Bible, in which championing of the oppressed is a major theme, can be associated with the development of human rights, even if there is no such term for them in the Pentateuch. Rights in the Hebrew Bible, according to S. Jacobs’s analysis, as in Confucianism, stem from the duty of individuals towards others, such as the duty to be generous to the poor, as in the requirement of farmers to leave behind gleanings for the poor, rather than from the rights of the poor to an adequate supply of food. This concept would also apply to the patriarchal household, for which the law establishes the duties of its various members towards one another.

Three essays focus on rights in classical and Hellenistic Greek society. Canevaro and L. Rocchi focus on literary sources such as Thucydides and the Athenian orators, for whom rights in Greek society depend on one’s status as a free person and a citizen. P. Campeggiani finds a similar concept in Aristotle. The concepts of ἀξία and τιμή are fundamental, the former denoting a person’s civic excellence, on which a claim for a privilege would depend, and the latter indicating a person’s status in society, which would establish the extent to which that person could participate in the political decisions of the community. Campeggiani argues that Aristotle provides fertile ground for investigating rights. In a survey of Hellenistic philosophy J. Miller sees some glimmerings of modern concepts of rights. For the Epicureans justice results from a social compact that imposes duties on people by virtue of their membership in a community. The Stoics also conceive of rights as resulting from duties, but these duties arise from one’s obligation to live in accordance with nature. For Ptolemaic Egypt N. Grotkamp’s essay shows how the claims of the Ptolemaic king to dispense justice, as with other monarchs in the ancient world, created rights to pursue claims through the various courts that the monarchy maintained.

Turning to Rome, V. Arena argues that notions about rights are ubiquitous in Roman Republican writings. In Arena’s view, the Stoic idea of personhood, as elaborated in Cicero’s De Officiis, provides insight into how observers in the late Republic understood Rome’s struggle of the orders. The plebeians continually asserted what can be interpreted as subjective rights, namely, certain basic rights as free citizens, the most important of which was their bodily integrity. The ultimate expression of bodily integrity was the right to appeal a capital sentence to the people. The key to enforcing these laws was a subjective right vested in the tribunes, who, by virtue of their office, could not be impeded in their efforts to come to the aid of a citizen. In private law the pater familias enjoyed subjective rights over those in his power, although the exercise of this power was constrained by social expectations. C. Donahue analyses how the Roman jurists interpret the term ius; in his assessment the jurists link subjective rights with property, since the people holding property could defend their interests through the various remedies, or actiones, created in Roman law.

If the classical Roman jurists never formulate a theory of fundamental human rights, both K. Harper and N. Lenski see precursors to modern concepts of human rights in the growing influence of Christianity in late antiquity. This influence led to profound questions about the nature of human dignity, a process with political and social implications. Both Harper and Lenski discuss how the Christian mandate to love one’s neighbour established duties on the part of the wealthy to be generous to the poor. As Lenski analyses, some Christian authorities, in particular Gregory of Nyssa and Gregory of Nazianzus, took the fundamental step of questioning the legitimacy of slavery, seeing social divisions within society not as part of God’s creation, but the product of humanity’s fall. In Lenski’s view perhaps the clearest assertion of an inherent right for all people is the proclamation of freedom of worship in the Edict of Milan, promulgated by Constantine and Licinius in 313 ce. The Edict of Milan went further than the previous edicts of Galerius and Maximinus Daza, which simply ended the persecution of Christians. Although the religious freedom proclaimed in the Edict of Milan was not achieved, even by Constantine, the assertion of religious freedom is remarkable.

The developments in Roman thinking on rights find parallels in Rabbinic Judaism, particularly in the Palestinian Talmud of the fifth century ce and the Babylonian Talmud of the seventh century, as discussed by A.M. Gray. The Rabbinic authorities certainly recognise claims arising from property that the holder can enforce against another person. Rights, or rather entitlements, extended beyond the ownership of property: poor persons had claims to agricultural produce left behind in the fields when someone died, and there was the general expectation that the poor were entitled to the gleanings left behind after the harvest. But Rabbinic law placed limits on property rights, restricting steps a creditor could take in enforcing a debt, and defining the mutual obligations of employers and workers; underlying these rules is an understanding of the basic dignity of Israelites. In family law the Rabbinic courts privileged the husband, but also imposed obligations on him, such as providing for the support of his wife and his unmarried daughters after his death.

Finally, as M. Macuch discusses, the task of reconstructing the law of the Sasanian Empire (224–651 ce) is complicated, because there are no surviving law codes comparable to those of the Roman world; the only similar text is a collection of legal decisions involving complex cases from the late Sasanian period. Sasanian law was formally distinct from Zoroastrian religious law, although it was very much influenced by Zoroastrianism, particularly in the organisation of society. The one fundamental right that all Mazdeans (as opposed to non-believers in the empire, primarily Christians and Jews) enjoyed was to be judged by the Divine Judge Rašn on their merits to achieve salvation. In family law Sasanian law created subjective rights in ways comparable to Roman law and Rabbinic Judaism, with duties and entitlements within the family carefully defined to achieve an overall goal of assuring their continuity.

This broad survey hardly does justice to the rich and fascinating discussion of rights in the individual chapters, but a major discovery is that all societies had concepts of subjective rights, ones that attached to a person by virtue of their station in society. Most societies also found a basis for thinking about fundamental rights that all persons might enjoy, even if, as was especially the case in Christianity and Judaism, such rights were conceived as duties imposed on persons in their treatment of others. The various ways in which societies understood rights points to the importance of the status that individuals held within a society, which affected how they might be treated in the law.

The Rule of Law in Ancient Rome complements this survey of rights and represents an important contribution to the ongoing lively debate on the role of law in the Roman world.

In the introduction to this volume the editors draw on modern theoretical discussions about the concept of a ‘rule of law state’. Such a state would offer equal protection of the law and legal institutions to all citizens, regardless of their status in society. The history of this concept, as Sevel points out in his contribution, which sets out the basic issues in the debate about the rule of law, goes back to Plato and Aristotle, who saw law as constraining the exercise of political power. With reference to the Roman Empire, as the editors note in the introduction (pp. 1–2), the administration of law, one of the principal functions of the Roman emperor, represented perhaps the most important way in which the emperor communicated with the empire’s broader population. As Sevel comments, it is uncertain to what extent any society can achieve the ideals of the rule of law. Even so, the ‘rule of law’ perspective provides valuable insights in analysing both public and private law in the Roman world.

In a wide-ranging paper M. Peachin is sceptical whether there could be a genuine rule of law in the Roman world. Despite the ideology of the empire that asserted this, Peachin questions the degree to which people had access to meaningful legal protection. In addition, Peachin sees the work of the classical jurists, who essentially developed the Roman law transmitted to future generations through the Digest of Justinian, as far removed from the experience of law that most people in the Roman Empire had. However, Romans certainly devoted considerable effort to develop and support legal institutions in the empire. One of the basic tasks of the emperor (or an office acting in his name) was to respond to petitions on legal issues from people across the empire. And, to cite one example of an emperor who took the administration of justice seriously, as J.N. Dillon shows (The Justice of Constantine [2012]), Constantine sought to define his rule by reforming the administration of law throughout the empire. From another perspective, many scholars see the jurists as very much engaged with society’s needs as they developed the law; B. Frier (Landlords and Tenants in Imperial Rome [1980]) and T. McGinn (Prostitution, Sexuality, and the Law in Ancient Rome [1998]) demonstrate the jurists’ social engagement in diverse areas of the law such as urban tenancy and prostitution.

Arena’s discussion of rights in the Roman Republic provides important background for understanding crises in the authority of public law in the Republic. Theoretically, as A. Russell explores, whatever the Roman people ordered had the force of law; this ideology is expressed by Livy in several passages (e.g. 7.12.12). But the political instability of the late Republic led to a debate about the authority of the law and how it was to be enforced. Morrell examines how M. Porcius Cato, a champion of the rule of law, faced crises in which the personal integrity of key people in the government would have to prevail over apparently weak or inadequate public laws. The choice that Cato faced can be seen in his support for Pompey’s formally illegal sole consulship in 52 bce. The sole consulship represented a pragmatic solution to avert a greater threat, the establishment of a dictatorship. To return to Russell’s essay, Cicero mistrusted the principle that the people should be the ultimate source of law, since they could be inconsistent and arbitrary. The conflicts with which Cicero was concerned are most apparent in his defence of Rabirius Postumus in 63 bce, as A.M. Riggsby deftly argues. Rabirius Postumus was tried for treason, perduellio, for his role in killing the tribune Saturninus in 100 bce, on the authority of the senatus consultum ultimum. As Riggsby argues, in Cicero’s conception of the rule of law, the highest authority should be in the senate, whose decisions would be guided by people with an informed understanding of the law. The killing of Saturninus may have violated statutes, but the threat that he posed to the state justified his killing. C. Steel carefully analyses how the rule of law broke down when Caesar aimed to pass his legislative programme in 59 bce over the opposition of his fellow consul Bibulus. Among other stratagems, Bibulus sought to block this legislation by using vetoes by tribunes and then by relying on the senate’s authority in interpreting religious questions to determine whether laws had been appropriately enacted. The senate’s power in this respect was limited, as W.J. Tatum discusses. At the very least, Sulla’s measures against the tribune P. Sulpicius Rufus in 88 bce notwithstanding, the senate was wary of directly challenging the principle that the people were the ultimate source of the law.

Stabilising private law was also a major issue in the late Republic. Pettinger explores this problem in a chapter on the Praetor’s Edict, which, in its ultimate redaction under Hadrian, included basic elements of Roman private law, from rules on intestate succession to the consensual contracts that were a basic aspect of Roman commercial life. During the Republic there could be uncertainty about the precise rules included in the edict from one year to the next. There were some efforts at reform, including the Lex Cornelia of 67 bce, which apparently compelled praetors to dispense justice in accordance with their edicts, as well as other efforts to make sure that the edicts were appropriately published. The development of the Praetor’s Edict, moreover, is to be understood in the broader context in which the Roman jurists were establishing their own authority in interpreting the law, a function that Augustus officially recognised when he accorded some jurists the ius respondendi.

If Augustus transformed public institutions in establishing the principate, his reign was also fundamental in laying the groundwork for the legal culture that would characterise the Roman Empire. Cowan explores Augustus’ treatment of the law from the perspective of establishing the rule of law in post-conflict societies in the modern world. In terms of public law, Augustus experimented with varying solutions, as can be seen especially in his constitutional settlements in 27 and 23 bce, the latter of which established tribunicia potestas and maius imperium as the formal definitions of the emperor’s virtually unlimited authority over the institutions of the state.

As Cowan emphasises, Augustus helped to establish the long-enduring legal culture of the Roman Empire, in which the emperor was expected to observe the law, even if he was not formally bound to do so. T.S. Taylor explores this legal culture in an essay focused on the degree to which the emperor was bound by the law. Emperors formally had the power to modify the law, which they frequently did when responding to petitions, but they generally acted within basic if evolving legal norms. Taylor emphasises that emperors had little capacity to impose a ‘legal absolutism’ (pp. 203–4) on a vast empire. The administration of the law involved not just governors but also numerous local courts. The emperor could only exercise limited control over this extensive system of justice. In this connection C. Cascione focuses on the efforts of the Roman legal authorities to make the law as stable and predictable as possible, and much of this effort depended on creating an appropriate legal culture. For example, Quintilian (Inst. 1, pr. 10) emphasises how it is the duty of Roman administrators to learn how to rule the cities across the empire with law. But the law was not to be rigid, and Cascione cites the jurist Julian for the possibility of revoking outdated laws by tacit consent.

Finally, the essay of K. Tuori, on the emperor’s role as judge, links this volume with the volume on rights, in that Tuori traces the emperor’s role as judge to the claims of Hellenistic kings to provide justice for their subjects. As the essay of Richardson demonstrates, this claim goes back to much earlier times. However, the role of the Roman emperor was complicated because he stood at the top of a complex legal system that involved local courts and provincial courts, with diverse legal traditions, including Roman law, various forms of Greek law and Graeco-Egyptian law. Tuori convincingly argues that a genuine system to administer the law had emerged by the Antonines. In the Severan period the leading jurists also served in prominent roles in imperial administration. But the emperor had long since become the empire’s ‘supreme court’ (p. 222). The approach of this volume complements, as far as the principate is concerned, the essays in K. Czajkowski and B. Eckhardt (edd.), Law in the Roman Provinces (2020), a collection that provides a rich discussion of the interplay between Roman and local legal traditions across the empire.

These two volumes are each groundbreaking and complementary in their areas of investigation, and the individual essays in each offer readers far more that can be summarised in a review.