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Aspects of Infamia Aspects of Infamia Tristan S Taylor BA(Hons, UTas) BA/LLB (Hons, UTas), MA (Yale). Submitted in Fulfilment of the Requirements for the Degree of Master of Arts University of Tasmania July, 2006 I Declaration of Originality This thesis contains no material which has been accepted for a degree or diploma by the University or any other institution, except by way of background information and duly acknowledged in the thesis, and to the best of the candidate‟s knowledge and belief no material previously published or written by another person except where due acknowledgment is made in the text of the thesis. Tristan Taylor 9 July 2006 Statement of Authority of Access This thesis may be made available for loan and limited copying in accordance with the Copyright Act 1968 (Cth). Tristan Taylor 9 July 2006 II Abstract This thesis examines the development of the legal concept of infamia in Roman law. The first chapter examines the legal sources for studying Roman law, in particular the Corpus Iuris Ciuilis in order to establish the degree to which they may be relied upon in establishing the law of earlier periods, in particular the period from the late Republic until the reign of Diocletian. A cautiously optimistic conclusion is drawn about the degree to which these sources may be used to establish classical law. A synchronic study is then undertaken of infamia as it appears in the Corpus Iuris Ciuilis, focusing on the terms used to describe persons who are infames and the consequences of infamia. The understanding of infamia gained from this examination is then compared with the concept of infamia that appears in the Codex Theodosianus and in the Roman law-based barbarian codes to provide some guide as to the degree to which Justinian‟s compilers may have altered the law. It is argued that, in fact, there is little evidence for doctrinal change under the law of Justinian. The final Chapter adopts a more diachronic approach and attempts to trace back the cases and consequences of infamia established through the synchronic examination of the Justinianic Corpus. It is argued that a „core‟ of people can be identified for the classical period who were continuously subjected to the same legal disabilities that under Justian were embraced by the term infamia. However, it is also argued that infamia as a positive legal concept was a later development. Instead of using an umbrella concept like infamia, late Republican and early Imperial legal documents tended to list exhaustively persons subject to legal disabilities and what those disabilities were. The earliest appearance of infamia or a cognate in the legal sources is as a descriptive term of art for people who undergo certain legal disabilities under the edict, though the term itself was not in the edict. It is tentatively suggested that the existence of a recurring „core‟ of persons undergoing similar legal disabilities encouraged the expansion of the use of this term, which eventually enabled its use as a positive legal concept in later legal sources. III Acknowledgements Thank you to my supervisors and mentors Associate Professor Peter Davis and Dr. Paul Gallivan for their continual support, encouragement and assistance throughout the long journey that this thesis has been. Thank you also to Dr. Paul Burton for reading the revised version of the thesis. A huge debt of gratitude is also owed to my family, especially my parents, Greg and Janne, for their ongoing support, sacrifices and just for putting up with me. A special thank you to my friends also, on both sides of the Pacific, Frankie, Jimena, Michael, Bek, Neil, Ian, Emma, John, Pramit, Ayelet, Damon, Richard, Ursula, Martin, Tansy, Sarah, Melanie, Phoebe, Jane H., Jane van Tienen, Amit, Adam, KW and KT and, of course, Aunty Sally. A special thanks also to Maggie (Mary) for putting me up so I could stay longer at the coal face. Thank you also to the library staff for their continual help. To the Team also, because they asked for it. Thank you also to Associate Professor McGinn for corresponding with me on this topic. IV Table of Contents Declaration of Originality and Copyright Statement ……………………….I Abstract ….……………………………………………………………………..II Acknowledgements ……………………………………………………………III Table of Contents ……………………………………………………………...IV Introduction ……………………………………………………………………...1 Preliminary: The Sources…………………………………………………….4 Chapter One: Sources and Methodology…………………………………….5 Part One: Infamia: The Final Concept ………………………………………47 Chapter Two: The Digesta and Institutiones …..…………………………..48 Chapter Three: The Codex Iustinianus ……………………………………134 Chapter Four: Infamia the Final Conception ……………………………...172 Chapter Five: Infamia in the Codex Theodosianus, Constitutiones Sirmondianae and Novellae ………………………………………………..183 Chapter Six: Between the Codes …………………………………………197 Part 2: The Development of Infamia ………………………………………203 Chapter Seven: The Development of Infamia ……………………………204 Conclusion ……………………………………………………………………301 Bibliography ………………………………………………………………….305 Introduction 1 Introduction: Infamia the Legal Concept John Crook wrote of infamia that „the subject is complicated‟,1 and indeed it is, and there are many aspects upon which one could focus. The aim of this thesis is to focus on only three of these aspects, but perhaps three of the most fundamental ones: who were the infames, what were the consequences of infamia and when is it proper to speak of a legal concept of infamia. The thesis receives its stimulus from the discussion of the „core‟ of infamia argued for by Thomas McGinn,2 with the hope of examining what made up this „core‟, both in terms of persons and disabilities suffered pursuant to infamia. As is well known, the main problem with attempting to reconstruct Roman law in the period of the Principate and late Republic is the fact that we are largely dependent upon the post-classical codification of Justinian, the Corpus Iuris Ciuilis, for much of our source material, and this source material was modified in the process of codification. In Chapter One of this thesis, the age-old „interpolation‟ problem will again be examined, and a case will be made for a cautiously optimistic approach to establishing classical law from the Corpus. Following the preliminary examination of the source material, a two stage methodology will be adopted, the first stage involving a synchronic understanding of infamia at the time of the two great post-classical attempts at legal codification, the aforementioned Corpus of Justinian, and the Codex Theodosianus. By examining first the Corpus to establish the „final‟ conception of infamia, issues of interpolation can be ignored. The understanding of infamia gathered from this 1 J. A. Crook, Law and Life of Rome (London, Thames and Hudson, 1967) 83. 2 See T. A. McGinn, Prostitution, Sexuality and the Law in Ancient Rome (Oxford, Oxford Uni. Press, 1998) 65-9. Introduction 2 examination will then be compared with the concept of infamia as contained in the Codex Theodosianus in order to establish to what extent the Justinianic concept differs, and therefore to what extent Justinian‟s compilers may have altered the law. As extra comparanda, the barbarian codes that draw on the Roman legal tradition, yet are external to the Justinianic tradition, will also be compared with the conception of infamia uncovered by the initial synchronic examination. Part Two, has a more diachronic approach, and traces back through the Principate and late Republic both the fundamental categories of person who are infames in Justinian‟s law and the consequences said to flow from infamia in Justinian‟s law. In so doing, it is argued that there was indeed a core of persons who were infames in accordance with Justinian‟s law. However, the actual terms infamis, infamia and cognates were alien to classical law as a unitary positive legal concept. They perhaps have their initial genesis as a useful descriptive term for a recurring group of persons and consequences. The subtle stages of the evolution of the concept have been largely lost to us. In carrying out this examination, there are several large questions that will not be examined for reasons of space and time. One is the issue of the actual motivation behind subjecting various persons to the multiple legal and civic disabilities that eventually became known as infamia.3 Another issue not addressed is the actual impact of legal infamia upon those who underwent it.4 These issues remain for 3 A recent interesting discussion in relation to actors, prostitutes and gladiators is found in C. Edwards, „Unspeakable Professions: Public Performance and Prostitution in Ancient Rome‟ in J. Hallett and M. Skinner (eds.), Roman Sexualities (Princeton, Princeton Uni. Press, 1997) 66-95. 4 On this see, J. Gardner, Being a Roman Citizen (London, Routledge, 1993) Chapter 5. Introduction 3 consideration at a later date. These same constraints on space and time have also necessitated limiting consideration almost exclusively to legal sources. Due to some difficulties in obtaining the document on inter-library loan, I have unfortunately been unable to consult Levy‟s work „Zur Infamie in römischen Strafrecht‟ [1932] 2 Studi Riccobono 79-100 in preparation of this thesis. Chapter 1: Sources and Methodology 4 Preliminary: The Sources Chapter 1: Sources and Methodology 5 Chapter One: Sources and Methodology An outline of the evidentiary problems pertaining to both diachronic and synchronic examinations of Roman law is a necessary precursor to a discussion of infamia. The central problems are essentially related to the fact that most of the main literary sources were written or compiled at a time far removed from the period of time for which they are our main source: the first three centuries of the Empire. The evidentiary sources for Roman law during the Empire can be conveniently divided into two groups: those in the 6th century Corpus Iuris Ciuilis compiled under the auspices of Justinian, and those sources outside this Corpus. Late Republican sources consist of essentially the forensic speeches of Cicero, inscriptions and scattered references in other literary sources.
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