The book under review is a study about the edictum de incendio ruina naufragio rate nave expugnata, to which title 47.9 of Justinian's Digest is dedicated. In the introduction M.F. makes clear her intention to approach the subject by adopting the theory of ‘maritime cultural landscape’, borrowed from maritime archaeology, which suggests looking at the sea not simply as a space for human activity, but as an entity with agency, interacting with human society. For such an approach the study of this edictum could be significant because shipwrecks can be seen as ‘events that establish a bridge between sea and land’ (p. 3), and in Roman law there would exist a gap between the law governing the land, called ius civile, and the law governing the sea, that is ius gentium and ius naturale: following the transformation of Rome from a local and land-based economy to a world empire open to trade, the Roman jurists tried to extend their institutions to ‘a space free from the rule of Roman civil law’ (p. 6).
Chapter 1 deals with the origin and chronology of the edict. It was issued to replace the archaic Mediterranean practice of taking possession of the remains of a shipwreck, and it should probably be dated before the arising of the actio vi bonorum raptorum (71 bce), since the latter encompasses the same wrongful conduct. The praetor granted an action against those who had stolen or knowingly accepted anything from a fire, a collapsed building, a wreck, a stormed raft or ship, or had inflicted damage on such things.
Chapter 2 is dedicated to an examination of the nature of the edict. According to M.F., it should be stressed ‘that the actio de naufragio is a civil action, and therefore belongs to the realm of the law of the land’, extended to cover conduct at sea (p. 47). This was possible, regarding Roman citizens, thanks to the personality principle, which allowed the praetor to provide civil law remedies at sea, that is, in an area outside the law of the Romans; regarding foreigners, by using the legal fiction of citizenship (fictio civitatis), which made it possible to grant them actions based on Roman statutes. In addition, the chapter deals with issues such as the spatial application of the edict and the relevant procedure.
Chapter 3 addresses the consequences of the application of the edict on ownership and tackles many different topics: the fate of things lost in a wreck and possibly recovered; institutes such as derelictio and deperditio, iactus mercium, direptio; the interference between the edictum and delicts such as furtum and rapina; the legal definitions of landscapes in contact with watery spaces like seas or rivers.
Chapter 4 is focused on wrongful damage caused by or derived from shipwrecks. M.F. aims to demonstrate that, thanks to the edictum, similar solutions were applied to events taking place on land and at sea, showing the adaptability of Roman law. She therefore compares the protection granted by the edict with other remedies, like those provided by the lex Aquilia de damno and the edictum de turba, and the specific situation of naufragium with other events dealt with by the edict that happen on land, that is, the collapse of a building (ruina) and fire (incendium).
Chapter 5 is dedicated to intentional causes of harm: piracy, deceitful acts committed by fishermen to induce shipwrecks, stealing on board during an attack, causing the wreck or fraudulently concealing the ship to prevent help. Again, M.F. claims that these provisions are the extensions of land-based remedies to events taking place at sea or, in any case, connected to navigation.
In the concluding chapter M.F. summarises the results of her research. The Romans perceived the sea not only as a space, but also as a cultural category. Traditionally, it was considered an area beyond human control and, therefore, beyond the law created by humans. Still, due to its importance, it became the subject of numerous legal solutions to control violence at sea and create a safe space for trade, navigation and political domination. The legal division between the land, governed by the ius civile, and the sea, the realm of ius gentium, was overcome thanks to a series of juridical expedients – analogies, abstractions, fictions –, which made it possible to adapt the traditional rules to the new frontier of the marine space.
The book stresses the importance of focusing on the cultural perception of the relationship between land and sea, and consequently on the categories used by jurists in dealing with such a relationship. Still, one of the central themes of the work, i.e. the alleged juridical separation between land and sea that would be reflected in the distinction between ius civile and ius gentium, although an interesting proposal, may have required a more thorough demonstration.
Theoretical definitions of ius civile, ius gentium and ius naturale in Roman jurisprudence are influenced by Greek philosophical thought, and only an accurate analysis can prevent them from generating confusion when contrasted with the actual working of these notions in Roman law. Considering this second perspective, what emerges from the sources is that ius civile encompasses both the law reserved to Roman citizens (ius Quiritium) and the law also open to foreigners (ius gentium): for example, the actions that protect private property and the contract of sale are both actiones civiles, although the dominium is ex iure Quiritium and emptio venditio is a contract iuris gentium. Indeed, the expression ius civile is sometimes used as a synonym of ius Quiritium, but properly speaking it is opposed not to the ius gentium, which is a part of it, but to the ius honorarium, i.e. to the set of remedies provided by the magistrate endowed with iurisdictio on the basis of his imperium. This system does not consider where the juridical relationship between the parties occurs, since an institution belongs to one or the other spheres of law because of its nature, not on a spatial basis. The damage ex lege Aquilia caused in Athens is no less ‘Roman’ than the same damage that occurred in Rome, because in both places the institute is accessible only to Romans (for foreigners, a fictio civitatis would be needed in a trial). Similarly, a contract of carriage qualifies as a locatio conductio and follows the same rules regardless of being related to a land or a sea journey; it can involve both Roman citizens and foreigners, because it belongs to the ius gentium. In substantive private law, the only area in which the spatial element is essential is probably Land law, because the type of property belonging to the most ancient Roman law, the dominium ex iure Quiritium, is allowed only within the borders of Italy: but what comes into play here is the dichotomy between Italy and the provinces, not between land and sea. On the other hand, it must be considered that the edictum de incendio ruina naufragio rate nave expugnata belongs neither to the ius Quiritium nor to the ius gentium, but to the ius honorarium: this means that the edict can be applied regardless of whether the event involves citizens or foreigners, because praetorian law is per se open to both categories of subjects. The idea of a law that depends on national borders is induced by the modern concept of positive law and of the political community as a State: the Romans regarded ius as only partially at the disposal of humans, believing it to reflect the nature of things and therefore to be virtually universal.
The edictum de incendio ruina naufragio rate nave expugnata has not been studied much, notwithstanding its being a good example of the general change that took place in Roman law from the third century bce onwards, after the political conquests in the Mediterranean and the resulting transformation of Roman economy and society. The book tackles the subject from an original point of view, in the more general context of the role played by the sea in the legal policy of republican and imperial Rome; even though some topics may have deserved further study, it is an interesting approach that may provoke discussion.
