Ernest Metzger (ed.), Companion to Justinian's Institutes. Duckworth: London, 1998. Pp. xvii + 283. ISBN 0-7156-2830-5. UK14.95.
Faculty of Law, University of New South Wales
This collection of essays is the latest of a number of valuable contributions by Scottish universities to the defence of Roman law, threatened as it is by the march--mainly in the Anglophone groves of Academe--of the barbarians. The work is designed as a companion to the indispensable translation of the Institutes by Peter Birks and Grant McLeod.[] The collection offers seven essays by members of the Universities of Aberdeen and Glasgow, covering 'Sources', 'Persons', 'Property', 'Succession', 'Obligations', 'Actions', and 'Criminal Trials'.
The work is fully documented and is essentially a contribution to black-letter law for the use of students and researchers in the field. In this review it is proposed to address a question not raised in the work itself. How far does the collection cater for interests other than those of lawyers? Given the growing realisation today that Roman law should be seen not only as a narrow technical discipline, but also as source of illumination for the history, sociology, economics, oratory, philosophy and literature of Ancient Rome, to what extent does the collection satisfy those criteria?
We may conveniently begin with O.F. Robinson's 'Criminal Trials' (pp. 229-42). This is a topic that confronts ancient historians at every turn. The pages of Cicero, Livy, Tacitus and Pliny demand some understanding of the Roman criminal process. Robinson covers an Introduction, Capital and Non-Capital Crimes (Banishment, Upper and Lower Classes, Penal Slavery, Lesser Penalties), Specific Offences, Criminal Courts, Procedural Changes, and a Summary. The essay puts the reader in touch with the main outlines reasonably well, although it does not purport to be more than a sketch. It is a moot point whether the author is wise to follow Justinian's own policy of giving in Book Four of the Institutes no more than 'a first contact equivalent to flicking through the pages with one's forefinger' (Inst. 4.18.12). Especially on specific offences, the paucity of citations of Digest 48.4-15 is something of a problem. Even if, as the author suggests, Tribonian included criminal law in the Institutes more as an appendix than as an integral part of the work, the modern reader would be better served by a more detailed overview.
On the specific question of extra-legal, general interests, the essay certainly provides the non- lawyer with a basic picture of the technicalities of the criminal law. But for any broader perspective the reader is obliged to consult other works. This does not unduly inconvenience the legal specialist; it is simply a matter of seeking out more of the same. But the non-specialists have a problem: they are obliged to build their own models. The author provides some guidance in the select bibliography and notes, but the recommended reading does not always give the uninitiated much assistance. For example, the important question of tbe human rights of provincials should not have been left solely in the hands of J.S. Richardson's eccentric interpretation of the lex Calpurnia de repetundis (p. 241 n. 37).[] And on such matters of general interest as banishment, upper and lower classes, and criminal courts there is recent material which is not listed.[]
Robinson is also the author of Chapter Two, 'Persons' (pp. 18-41). The non-specialist fares better here, being given enough information to form a constructive view of a topic that ranks with the criminal law in non-specialist importance. Robinson writes about Slavery, Family Authority, Marriage, Emergence from Family Authority, and Guardianship and Supervision. The very titles of these rubrics are a useful innovation: it is clear at a glance just what technical terms like patria potestas, iustae nuptiae, manus, emancipatio, capitis deminutio, and tutela are about. Here, as indeed throughout the book, the Glossary and the English-Latin Word List (pp. 245-59) are most helpful. Robinson opens her discussion of Persons with slavery; the clarity and cogency there displayed are maintained throughout the chapter. Special mention must be made of the material on paternal power, in regard to which the author provides a number of signposts from which the non-specialist will easily deduce the patriarchal character of Roman society. The discussion might have included a note on the essential link between power over a slave, power over a child, and power over a wife. However, all the material for inferring such a link is supplied by the author, who plainly enjoys broader vision than that of some contemporary writers on the Roman family.
Geoffrey MacCormack's chapter, 'Sources' (pp. 1-17), covers an Introduction, The Three Components of Private Law, Sources of Written Law, Custom, and Divisions of Private Law. The author's denial of a human rights connotation to Dig. 1.1.10 pr. and Inst. 1.1 pr. would be more convincing if he had dealt as rigorously with modern human rights legislation. Human rights could also have been usefully explored in the context of Greek law's distinction between public and private law. Natural law is well presented, offering a degree of clarity that the philosophers would do well to emulate. The author's acceptance of the lex de imperio Vespasiani as the source of the emperor's normative power (pp. 8f.) hopefully signals the end of a debate that is long past its shelf date. But the normative efficacy of juristic opinion is not well handled, largely because notice is not taken of recent work on the ius respondendi.
D.L. Carey Miller on 'Property' (pp. 42-79) offers an Introduction, Ownership and Possession, Acquisition of Ownership, and Lesser Real Rights. This is black- letter law at its darkest. The essay, informative and well-organised though it is, does not offer the non- specialist much, but one topic that might have inspired general interest is Ownership and Possession. This could have taken in areas that had a significant impact on the parameters of ownership, despite being virtually ignored in the legal texts. Examples are agrarian reform and mandatory munera. In the Gracchan period the head-on collision between the state's resumption of its property and the praetor's interdicts for the protection of possession raised acute constitutional and social issues. Also, the legal dodges used by the great possessors to give their rights a colour of ownership tell us more about dominium than is generally realised. Later on came mandatory munera, exemplified by the law saddling decurions with personal responsibility for shortfalls in tax collections. This munus was made an incident of ownership that could only be evaded by surrendering the property. As a despairing municipal councillor wrote to the local governor: 'Take my property but leave me my life!' Examples like these show that it was not only Lesser Real Rights that restricted the theoretically unfettered Roman dominium.
William M. Gordon on 'Succession' (pp. 80-126) covers an Introduction (Universal Succession, The Heir, The Heir as Executor, Testate and Intestate Succession), Testate Succession on Death (Types of Will, Capacity to Make a Will, Disinheriting, Appointment of Heirs and Substitute Heirs, Invalidation of Wills, Types of Heir, Legacies, Trusts and Codicils), Intestate Succession on Death, and Other Cases of Universal Succession. The thoroughness of this well-crafted essay is a fair reflection of the Roman jurists' interest in one of the most technical topics of all. It certainly has a more general side, but the very wealth of case material (especially in the Digest) militates against concise treatment. One might have liked, however, to inspect universal succession within the larger context of the concept of universitas as a whole, not only taking in the author's interesting remarks on hereditas and juristic personality but also addressing seemingly remote entities like the res publica. Also, a few words on the modern will's debt to Rome (even in common law countries) would not have gone amiss. Mention might also have been made of the Flavian emperors' treatment of succcession to the throne as, in effect, a fideicommissum.
'Obligations', by Robin Evans-Jones and Geoffrey MacCormack (pp. 127-207), is not surprisingly the longest piece in the collection. It covers Obligations, Obligations Contracted by Conduct (Introduction, Mutuum, Commodatum, Deposit, Real Security), Obligations by Words and their Applications (Stipulations, Multi-party Stipulations, Stipulations Taken by Slaves, Classification of Stipulations, Ineffective Stipulations, Guarantors), Obligations by Writing, Obligations by Agreement (Sale, Hire, Partnership, Mandate), Innominate Contracts and Pacts, Obligations as though from Contract, Obligations Acquired through Others, Discharge of Obligations, Obligations from Delict (Introduction, Theft, Things Taken by Force, The Aquilian Act, Contempt, Praetorian Delicts), and Obligations as though from Delict. The rubrics devised by the authors are not symmetrical between contract and delict. The keynote should be Justinian's classic definition of an obligation as 'A tie of law by which we are necessarily constrained to render something according to the laws of our state' (Inst. 3.13.pr.). Both contract and delict fall equally under this definition, and it is only at a later point that a differentiation between the types of obligation is made: 'Obligations are divided into four categories, depending on whether they arise out of contract or quasi-contract or out of wrongdoing (ex maleficio) or quasi-wrongdoing' (Inst. 3.13.2).[] This basic symmetry is lost in the divisions adopted by the authors. Moreover, Obligations Contracted by Conduct (Mutuum etc.) obscures the fact that conduct is the sole basis of delictual liability.
Most of the contracts discussed could have inspired useful observations on social (mutuum, commodatum), linguistic (stipulatio) and economic (the consensual contracts) aspects. It is only in the case of the last-mentioned that some approach to these objectives is achieved (pp. 150- 68). The innominate contract of aestimatum could have thrown some lurid light on slavery, while permutatio has an interesting link with law in Homer. Matters of general interest are more abundant in delict than in contract. For example, damage to property under the lex Aquilia could be usefully inspected in the context of the turbulence of the early third century BC culminating in the equalisation of leges and plebiscita. 'Contempt' (the authors' not entirely happy equivalent for iniuria) might have correlated the civil and criminal sides, including thought control. And the considerable amount of space devoted to theft (pp. 175-82) could usefully have speculated about the (probably social) reasons for this category's persistent retention in the field of private law.
Finally, Ernest Metzger's 'Actions' (pp. 208-28) could have relieved its austerity by tracing the rise of communal control over the vendetta.
The aforegoing suggestions are offered only as possible embellishments of a work that succeeds admirably in its declared purpose. With the Birks- McLeod translation and its companion built into the rampart, the task of iuris civilis conservandi is in good hands.
[] Peter Birks and Grant McLeod, Justinian's Institutes (London 1987, repr. 1994).
[] J.S. Richardson, 'The purpose of the lex Calpurnia de repetundis', JRS 77 (1987) 1- 12.
[] See this reviewer's Human Rights in Ancient Rome (London 2000).
[] On the primitive undifferentiated Urdelikt see this reviewer's 'The interface of Greek and Roman Law: Contract, Delict and Crime', RIDA 43 (1996) 39-62.