André Magdelain, De la Royauté et du Droit de Romulus à Sabinus. Rome: L'Erma di Bretschneider, 1995. ISBN 88-7062-881-7. L200.000.
C. M. C. Green
University of Iowa
André Magdelain, the distinguished French scholar of Roman law, died before he could revise the proofs of this, his final work. De la royauté et du droit de Romulus à Sabinus is therefore both the summation of a life-time's thought in an important area of Roman studies, yet at the same time work-in-progress. The latter fact is signalled most obviously by the substitution of a Table des abréviations bibliographiques for a proper bibliography, and the absence of an index. The absence of an index in particular will render the book less useful than it should be to scholars of law and students of Roman culture.
This is particularly regrettable since Magdelain was beginning an important discussion of an aspect of Roman culture found most clearly in Roman law, but of great significance for the shape and character of Roman society generally from the earliest time. The act of speaking, the performance of words, is central both to Roman law and to Roman religion. The praetor initiated civil law suits with the formula, do, dico, addico (from dicere, 'to say'). These same words define the calendar, a part of the religious organization of the community, which from the regal period indicated when the legal formula do, dico, addico, could , or could not, be spoken (dies fasti, dies nefasti from fare, to speak). Who speaks, where they speak, when they may speak, and what they may speak: such formulations are a fundamental element in the organization of Roman society. What is more, these speech acts are employed with astonishing flexibility over the centuries, reaching far beyond religious or legal contexts to define power and social relationships between citizens, as well as between citizens and non-citizens.
As Magdelain saw, centrality of speech is rooted in the earliest shaping of Roman identity, that is, during Rome's regal period. Hence the title of the first half of the volume, 'Le pouvoir et la parole active' (pp. 15-145). It is in these chapters that scholars of Roman culture will find most to interest them -- but also the most to argue with. The first chapter, 'Du pater patratus au rex' (pp. 15-66), lays out Magdelain's view of some very difficult and unresolved questions: the nature of the Agonalia (an old and mysterious Roman ritual); the relationship of Alba Longa to Rome; the growth of Rome; the relationship to Rome of the early League of Latin cities (meeting near Aricia but apparently led by Tusculum, as is recorded in a fragment of Cato); the nature of Roman kingship; the power of Rome within the circle of Latin cities both before and during the rule of the Etruscan kings; and the nature of the relationship between patricians and plebs. Unfortunately, Magdelain bases his account on the out-dated view of Rome as originally two communities, Latin and Sabine. In addition, most notably in his discussion of the Agonalia, he treats the development of Roman institutions as a discrete set of official acts, consciously organizing the community according to agreed-on precedents. Given his approach to Roman law, this is not surprising, but it remains misleading.
In his second chapter, 'Ius sacrum Ius civile XII Tabulae' (pp. 67-111), Magdelain begins to focus more specifically on legal issues. He argues for the formation of law from verba concepta, those formulaic pronouncements which define the legal decision (originally emanating from the rex), and on this basis arrives at a very interesting interpretation of the XII Tables. These he regards as a publication of the verba concepta, arguing that a great deal of leeway was allowed in the actual application of the latter's formulae. He appreciates the revolutionary significance of the publication of the XII Tables: this landmark transference from the spoken to the written word he well defines as the shift from mos to ius (p. 101). However, given his interpretation of 'la parole active' as central to the formation of law, he is obliged to pursue the argument further into that difficult territory where magic, prayer, and oaths intersect.
He turns then to the person who is responsible for the verba concepta, the formulaic words of law (Chapter 3, 'Iudex' pp. 113-145): originally the rex, then the praetor, and finally the iudex. This chapter of legal history also contains a fascinating discussion of the nature of the sacramentum, the sacrosanctity of the tribunes, and, underlying all the rest, of precisely what it means, legally, to be sacer.
The second half of the book, entitled 'De la parole à l'écrit' (pp. 149-213), is in two parts, devoted respectively to the historical development ('Naissance de la procédure formulaire', pp. 151-77), and the analysis of ipsum ius ('Ipsum Ius', pp. 179-213), and must constitute the core of the book for scholars of Roman law. In it, Magdelain sets out his argument concerning the historical development of the legis actio from the original oral tradition by means of verba concepta, wherein the legis actio is treated as a legal fiction: that is, the writing of words to be understood as said.
This reviewer, whose prime area of study is Roman religion, lacks expert knowledge in the history of Roman law, and so the final section of this book (admittedly that of greatest significance for the author himself) must be left to others to evaluate. Nevertheless, Magdelain's general arguments are of interest and concern to a much larger audience. As he well demonstrates, the study of early Rome desperately needs a far greater interdisciplinarity between the fields of law and those of religion, culture and history, while all of them need to pay far greater attention to the theoretical insights offered by speech act theory. Meanwhile social historians, students of religion, and those concerned with Roman culture in the widest sense should not be put off by Magdelain's legalistic framework: his arguments are dramatic, and his reassessments of that culture are often radical. There is much here to stimulate valuable discussion.