CRISIS IN (LEGAL) WRITING

Bernard Stolte - 9789047420903 Downloaded from Brill.com10/02/2021 01:22:37AM via free access A CRISIS OF JURISPRUDENCE? THE END OF LEGAL WRITING IN THE CLASSICAL TRADITION

Bernard H. Stolte

In traditional historiography, the ‘classical’ period of Roman law, when it is judged to have lived its nest hour, is placed between circa 50 B.C. and A.D. 250 at the latest. It is the period in which the clari cation and development of legal doctrine evolved through free discussion among iurisperiti, who thus contributed to the process on a case-by-case basis and who were not dependent on this activity for a living. That period is contrasted especially with that which followed, when these free discus- sions did not only appear to have come to an end, but the quality of legal scholarship was also perceived to show signs of decline. In any case the stream of legal writing in the classical tradition, testifying to these discussions, seems to dry up in the rst half of the third century. The same historiography has little appreciation for the following cen- turies: after classical come epi- and postclassical, then vulgar and one shudders to think of the next phase: byzantine. In this perspective, the history of Roman law is one of rise, ower- ing, decline and fall. The starting-point is the law of the Twelve Tables, the end Justinian’s codi cation, the latter not so much an event with its own importance in that history, but rather a fortunate occurrence which happens to have preserved the writings of the ‘classical’ jurists. The ‘fall’ of Roman law takes place already earlier and the Justinianic revival is seen as something odd, rarely judged on its own terms by legal historians, unless they happen to be byzantinists, who take it as a starting-point and then look at the centuries that follow. All this is, of course, a modern construct. As is well known, Tacitus saw only decline after the Twelve Tables.1 The Romans themselves did not re ect much on the development of their law in terms of quality, although there is no shortage of disparaging statements about law and lawyers. The idea that the best of Roman jurisprudence is to be found

1 Tacitus, Annales 3.27: duodecim tabulae, nis aequi iuris.

Bernard Stolte - 9789047420903 Downloaded from Brill.com10/02/2021 01:22:37AM via free access 356 bernard h. stolte between the rst century B.C. and the rst quarter of the third century A.D. is not found until the legal humanists of the early modern period began to occupy themselves with the historical dimension of legal texts.2 The vili cation of the Justinianic codi cation as the source of corruption of the original writings of Paul, Ulpian e tutti quanti is rst found in those quarters and reached the zenith of its popularity in the rst half of the 20th century; it has much contributed to the image of a ‘classical’ period followed by one of which not much is to be said in its favour. Although the established opinion now seems to be that Justinian’s Digest has preserved the original version of the ‘classical’ texts to a much greater extent than has been thought in the past, the word ‘classical’ has kept its traditional connotation.3 What brought about the end of the classical period? Indeed, one might also raise the question of what caused its beginning. It seems not to be overstating to say that the beginning of the classical period coincided with a turbulent period in Roman history. The civil wars and the end of the Roman Republic can hardly be considered to offer an ideal and quiet background for legal re ection. Yet, already before Augustus we nd great names such as Q. Mucius Scaevola and Ser. Sulpicius Rufus, to name but two.4 But it is to the end of the classical period that I should like to pay attention, and to the understandable inclination to connect the end of legal writing in the classical tradition with the idea of a crisis: a crisis of Roman society, a crisis of jurispru- dence, or a crisis of both. I am not advocating an entirely different opinion of the quality of Roman legal writing in the period traditionally called ‘classical’. Nor am I disputing that in the rst half of the third century this tradition was coming to an end. What I should like to do instead is to try and place this phenomenon in a wider context and to revalue what followed. In the rst Impact of Empire workshop of 2000 our ‘princeps’ Lukas de Blois gave a paper on “Roman jurists and the crisis of the third

2 For the humanists, see, e.g., H.E. Troje, Graeca leguntur (Cologne-Vienna 1971). 3 J.H.A. Lokin argues in favour of a very restricted scope for interpolations in the hands of Tribonian’s committee: The End of an Epoch. Epilegomena to a Century of Interpolation Criticism, in R. Feenstra et al. (eds.), Collatio iuris romani, Études dédiées à Hans Ankum à l’occasion de son 65e anniversaire (Amsterdam 1995), 261–273. 4 Fully recognizing the civil unrest, Bruce Frier even seems to value it as a positive factor in the creation of a Roman legal profession (B.W. Frier, The Rise of the Roman Jurists. Studies in Cicero’s Pro Caecina (Princeton 1985)), especially his conclusion, 269 ff.

Bernard Stolte - 9789047420903 Downloaded from Brill.com10/02/2021 01:22:37AM via free access a crisis of jurisprudence? 357 century A.D. in the Roman empire”. After outlining the process as he perceived it, he concluded: A consequence of the relative degradation of learned jurists within the imperial administration may have been that responsa and treatises of the great jurists, who during the rst decades of the century had obtained a place in the centre of power, now became classic, deriving their status not only from the outstanding qualities of the authors, but also from the high positions which those authors had held. This may have kept their successors from trying to emulate or surpass them, which in its turn may have ended the publication of learned juridical treatises.5 I do not doubt that this has contributed to the end of legal writing in the classical tradition. A similar line of reasoning had been followed by Detlef Liebs in a survey of Roman legal literature of this period for the Handbuch der Altertumswissenschaft, who also mentioned the “spätan- tike Hang zur Kanonisierung und Heiligenverehrung”, preventing the “Entfaltung neuer Literatur, bis auch die Fähigkeit dazu verküm- merte.”6 Other reasons listed by Liebs are also found in De Blois’s paper; although the argument is slightly different, the two would have no dif culty in agreeing. Interestingly, Liebs places the beginning of bureaucratization already in the reign of Claudius and sees a vigorous push in that of Hadrian; we must note that the owering of Roman jurisprudence hardly seems to have been affected. In 2005, volume 12 of the revised Cambridge Ancient History appeared, dealing with the ‘crisis of empire’. Two chapters deal with the law, the rst describing ‘high classical’, the second ‘epiclassical’ Roman law. Chapter 7a, by David Ibbetson, concludes with the following reasons for these writings to have to come to an end: High classical law was unsustainable on its own terms. It was also subject to external stresses. The subtlety of thought of Paul, Papinian and Ulpian demanded educational continuity if it was to be developed by the legal thinkers of the next generation; but legal education in Rome was utterly haphazard. A strong measure of imperial indulgence was necessary if legal doctrine was to continue to be elaborated by men who were impe- rial functionaries as well as private lawyers; but not all emperors were so indulgent to lawyers. And political quietude was essential if jurists

5 L. de Blois, Roman Jurists and the Crisis of the Third Century A.D. in the Roman Empire, in Id. (ed.), Administration, Prosopography and Appointment Policies in the Roman Empire (Impact of Empire 1) (Amsterdam 2001), 136–153, at 153. 6 D. Liebs in K. Sallmann (ed.), Handbuch der lateinischen Literatur der Antike 4: Die Literatur des Umbruchs. III. Jurisprudenz (Munich 1997), 217.

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were to have the professional leisure to think deeply about abstract and complex legal issues.7 The lack of political quietude, implied for the end of the classical period, is closely related to De Blois’s argument, who plausibly attributes the changing role of the jurists to the fact that military men were needed more and were therefore in a better position to establish themselves at the centre of power. It is the argument that emphatically draws on the perception of a crisis of the empire and connects it with a crisis of, or at least profound change in, jurisprudence. Ibbetson’s rst point is very interesting. It conjures up the image of a tottering pile of books, and the addition of yet another volume making the pile collapse under its own weight. But is it not the case that legal education in Rome had been haphazard from the beginning? And is it not also true that systematic legal education is a phenomenon of Late Antiquity, as is also noted by David Johnston, who wrote the next chapter in het CAH² 12, 7b, dealing with the period 235–300? Johnston sees ‘no sudden break or sharp discontinuity’ in what he has called ‘epiclassical’ Roman law.8 The imperial chancery became more prominent, as is witnessed by the rescript system, and we see attempts at creating order in chaos. The two ‘codi cations’ of the end of the third century, the Codices Gregorianus and Hermogenianus, collect imperial constitutions. Traditionally they have been seen as private enterprises rather than as ‘of cial’ compilations, though for no solid reason, as Johnston maintains.9 As to juristic writings, against a background of continuity there is the new phenomenon of the compilation.10 ‘The reign of Diocletian forms the natural terminus for discussion of the classical period of Roman law’.11 If we see the end of a tradition of producing commentaries on the Edict, collections of responsa, quaestiones and similar writings, this is rst of all the end of presenting legal opinion in the form of established genres. A different question, however, is whether the development of the substantive law also underwent change as a consequence of the changing garments in which legal opinion was being clothed. In fact,

7 A.K. Bowman, P. Garnsey and A. Cameron (eds.), CAH ² 12, The Crisis of Empire (Cambridge 2005), 198–199. 8 CAH ² 12, 200. 9 CAH ² 12, 202–203. 10 CAH ² 12, 203. 11 CAH ² 12, 207.

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Johnston’s statement that ‘continuity seems to be the leading charac- teristic’12 is a judgement also reached in 1971 by Franz Wieacker in a much-quoted paper dedicated to this problem. One of his main conclu- sions is that the third century is not a ‘post-classical’ period, but rather ‘un dernier stade de la jurisprudence du Haut-Empire, que justement nous nommons ‘classique’!’, and therefore, in view of the changed circumstance and the end of ‘le jeu spirituel de la libre discussion entre autorités personnelles et spirituelles’ – a game in which he had perceived signs of lassitude already at the accession of the Severi – he preferred the term ‘epiclassical’ for the third century, in which he is echoed by Johnston.13 Diocletian established a new order in many respects, but did not bring about an innovation of the law. For that to happen the Romans had to wait at least until Constantine, and not everybody agrees on the innovation that has been supposed to take place with the emancipation of Christianity.14 In short, it is doubtful that the unmistakable crisis of the third century should be re ected in the development of Roman law in other than outward characteristics. To be sure, there is a change in the position of the jurists, there is less brilliance to be admired in their writings, but, then, we have far fewer of those. Is all this a sign of decline? Should we read this as the natural consequence of a general decline observ- able in all respects, an observation responsable for a general image of deterioration, in short a negative image of Late Antiquity? Rather than questioning the ideas of classical, epiclassical and postclassical, I should like to offer a few observations on the third to sixth centuries. The fact remains that, as a monument to the ‘classi- cal’ period, there is Justinian’s Digest, eternalising the jurisprudence of that period to codify Roman law in a form he considered suitable for the sixth century. If Justinian composed his Digest from the writings of mainly second- and third-century jurists, still available to him in the sixth century, what, then, of the period between 250 and 525?

12 CAH ² 12, 205. 13 F. Wieacker, ‘Le droit romain de la mort d’Alexandre Sévère à l’avènement de Dioclétien (235–284 apr. J.-C.), Revue historique de droit français et étranger, 4e S. 49 (1971), 201–223; 222–223. 14 Cf. most recently C. Humfress, Civil Law and Social Life, in N. Lenski (ed.), The Cambridge Companion to the Age of Constantine (Cambridge 2006), 205–225, at 207–2088 with n. 8.

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It is not my aim to offer an incisive revaluation of the traditional historiography of Roman law. What I would like to attempt is point- ing out a number of factors which, in my opinion, must have played a role in the history of Roman law in the period concerned and have been insuf ciently taken into account by those who try to explain the changes in the third century.

Changing demands from the jurists by society

The depletion of traditional legal genres in the third century has been deplored by cultural pessimists and attributed to the lack of social stability: the crisis of the third century is supposed to have been the obstacle to a continued debate on the ner points of Roman private legal doctrine. While it is undisputed that the crisis of the third century has done precisely that, it was not the task of third-century society to enable the jurists to continue their debates. The law principally has to answer the questions of society: if social problems and needs change, inevitably the answers of the jurists will be to different questions as well. This has nothing to do with a possible decline of the law, but if your interest as a legal historian concerns private law – as indeed the main interest of romanists has traditionally done – the third century presents itself as the end of an epoch. This shift of focus of the Roman jurists, however, does not necessarily indicate a decline in legal thinking, but a change in society. Incidentally, historians are probably better served with legal sources of the third and later centuries as sources with which to answer their questions. In exaggeration, but in order to emphasise the point: what may present itself as a crisis in the eyes of the historian of Roman private law may make an impression of great ourishing on the social and economic historian.

Roman law and the Constitutio Antoniniana

When in 212 Roman citizenship was extended to the population of the Roman empire at large – I skip the ner details, but so much has generally been accepted – the position of Roman law changed at the same time. For a very long time students of Roman law have taken this to mean that from now on all inhabitants of the empire had to follow Roman law rather than their own tribal law; consequently, cases in

Bernard Stolte - 9789047420903 Downloaded from Brill.com10/02/2021 01:22:37AM via free access a crisis of jurisprudence? 361 which this did not seem to happen were taken as instances of defective application of Roman law, along the road of inevitable romanisation of the law. The problem of “Reichsrecht und Volksrecht” has been seen largely in that light.15 While there is undoubtedly some truth in this, there are also other aspects which have increasingly received attention in more recent years. Of course, if one sees the results of the increased interaction of Roman law and local law exclusively in the light of ‘pure’ Roman law and from an expectation of that law being applied, the result cannot be other than disappointing. A rather negative valuation of the ‘law of the papyri’ – the term itself is signi cant – would be a logical outcome, as indeed has been the outcome in certain quarters.16 The Constitutio Antoniniana was issued in the same period in which traditional legal writing comes to an end; one wonders whether there is a connec- tion. Naturally, once the traditional sources are no longer available, the focus of scholarly attention shifts to other sources, among which papyri are prominent, thus perhaps only compounding the problem. It seems reasonable to admit to the possibility that the effect the extension of the franchise had on the law was not merely a one-way process.

One legal system or two? ‘Western’ and ‘Eastern’ Roman law

The emphasis on the end of ‘classical’ legal writing in traditional historiography of Roman law has been unduly strengthened by the – understandably – Latin perspective of scholars, and the predominant approach from Latin has only increased in recent times. The division of the Roman empire has contributed to the existence of separate Latin and Greek perspectives, although, from a technical legal point of view, there has always been the undivided nature of the concept of imperium and the question of the binding force of constitutions of one emperor in the other half of the empire. In the meantime there can be no doubt that the constitutional changes of the late third century also effected the position of the jurists: the existence of two centres of power created the possibility of diverging legal traditions in different languages. Although

15 After L. Mitteis, Reichsrecht und Volksrecht in den östlichen Provinzen des römischen Kaiser- reichs (Leizig 1891). 16 For a more balanced view, see now J. Beaucamp, ‘L’histoire du droit byzantin face à la papyrologie juridique. Bilan et perspectives, in L. Burgmann (ed.), Fontes Minores XI (Frankfurt 2005), 5–55.

Bernard Stolte - 9789047420903 Downloaded from Brill.com10/02/2021 01:22:37AM via free access 362 bernard h. stolte the distinction between Western and Eastern Roman law lacks a formal basis, the reality of the incipient diverging traditions cannot be denied. From there, it is but a small step to study just one of the two, losing sight of contemporaneous development in the other.

One legal system or more? ‘Reichsrecht’ and ‘Volksrecht’ or ‘Volksrechte’

The temptation to treat West and East separately is reinforced by the existence of the papyri. Legal papyri – legal in the wider sense – give rise to two problems: rst, they do not, as a rule, con rm the appli- cation of ‘of cial’ Roman law, even when they are written in Latin, and second, by the nature of the writing material, they all have been preserved in the dry and hot desert conditions in the Eastern half of the empire, and are obviously predominantly in Greek. Even leaving aside the problem of ‘Reichsrecht’ and ‘Volksrecht’ existing side by side, the question then arises whether the answers for the (Greek-speaking) East may be extrapolated to the Latin West.17

From West to East, from Latin to Greek

As has already been alluded to above during the third century the centre of gravity of the Roman empire was moving towards the East, culminating in the inauguration of Constantinople as a capital in 330. While the empire did not, of course, become Greek rather than Latin overnight, the event con rmed a tendency which could be observed for a longer time already, also where the law is concerned. Certainly, the language of the law remained Latin, and the law was to hold out as a stronghold for Latin longer than anything else, but the phenomenon deserves closer attention. The Digest con rms the impression of an all-Latin legal world. All jurists are writing in Latin, even Modestinus, whose treatise on excusatio from duties as a tutor and curator is the best-known exception, and whose captatio benevolentiae at its beginning, that there was no Greek legal terminology to deal with Roman legal concepts, has been quoted

17 See also above and the general discussion in R.S. Bagnall, Reading Papyri, Writing Ancient History (London 1995).

Bernard Stolte - 9789047420903 Downloaded from Brill.com10/02/2021 01:22:37AM via free access a crisis of jurisprudence? 363 ad nauseam. This should not obscure the provenance of the jurists: Ulpian came from Syria, Modestinus from northern Asia Minor. Papinian may have hailed from Africa, in which case he will have been a native speaker of Latin, but Syria is at least as probable, just as Gaius probably came from a hellenistic province. Paul’s origin is unknown, but “[a]us altem italischem Blut stammte er also nicht”, to quote Kunkel.18 These examples may serve to show that, pace Modestinus, there must have been many jurists who, though competent in Latin, will have spoken, and perhaps also thought, in Greek. A remarkable dossier of inscriptions concerning a jurist, born in the East and having a ‘Roman’ career in the rst half of the third cen- tury, has been collected and studied by Fergus Millar.19 M.Cn. Licinius Ru nus, known from the Digest as the author of Regulae,20 was born in Thyatira in Lydia. One of his early posts was that of ab epistulis Graecis, and later in life he rose to prominence in the entourage of the emperor as amicus Caesaris. As iuris peritus he had to know Latin, of course, as he did, but that does not mean that he was no longer ‘Greek’. “Becoming Roman, staying Greek”, as Greg Woolf,21 must have applied to Licinius Ru nus and to the many jurists from the East generally. That these jurists knew and used Latin should not be taken as a move from Greek to Latin; rather the underlying current must have been a shift towards Greek as the language of the law. We have a clear picture of the end of this development. In Justinian’s time jurists were trained to acquire, in an ideal case, a good passive knowledge of Latin to enable them to work with the new legislation, which essentially was an anthology of existing Latin sources. The leading jurists were bilingual, but the great majority undoubtedly thought, spoke and wrote in Greek. The language of Justinian’s Novellae demonstrates that the ction of Latin as the language of the law was given up during

18 On all these see W. Kunkel, Herkunft und soziale Stellung der römischen Juristen (Weimar 1952), 45; more recently Liebs 1997, op. cit. (n. 6): III. Jurisprudenz, who advocates Africa as the birth-place of Papinian (117–118). But we should remember that Papinian even wrote in Greek an astunomikos monobiblos. 19 F. Millar, The Greek East and Roman Law: the Dossier of M.Cn. Licinius Ru nus, Journal of Roman Studies 89 (1999), 90–108. 20 O. Lenel, Palingenesia iuris civilis (Leipzig 1889), vol. i, cols. 559–562. 21 G. Woolf, Becoming Roman, staying Greek: Culture, Identity and the Civilizing Process in the Roman East, Proceedings of the Cambridge Philological Society 40 (1994), 116–143.

Bernard Stolte - 9789047420903 Downloaded from Brill.com10/02/2021 01:22:37AM via free access 364 bernard h. stolte his reign. The nal outcome, as I have stated on various occasions, was the birth of Byzantine law. This process of transformation did not happen within one single generation. The abandonment of Rome as the centre of power must have been conducive to a more prominent role of Greek as a work- ing-language of the law. It is my rm conviction that, for the period between the Constitutio Antoniniana and the death of Justinian, we must reckon with a Latino-Greek legal culture developing into a Graeco- Latin one in the eastern half of the empire. The Fragmenta Sinaitica are a witness of that process; they date to the years between 439 and 529 and discuss Roman law in the same way as the law professors of the Justinianic age.22 From the third century onwards, in the East, which, as we have seen, already was contributing many of the leading jurists, the discussions of the jurists must have been evolving less and less in Latin.23 If this development has played a part in the end of classical legal writing in Latin, the question arises why this tradition should not have continued in Greek. Here, I would suggest, the strong Latin tradition of the law may have prevented a smooth transition, although this can- not have been the only reason. Retrospectively, in any case, we must conclude that there never was to be an equally creative Roman legal culture in the Greek language.

Conclusion

These ve points together are, in my opinion, essential to be taken into account when the end of legal writing in the ‘classical’ tradition is discussed. The political crisis of the third century is part of the explana- tion why it should have come to an end about 250 at the latest, but it is by no means the only explanation. If the turbulent last decades of the Republic are an unlikely period to explain suf ciently why it was

22 Easiest accessible in Fontes Iuris Romani Antejustiniani II (Florence 1968²), 637–651. The original papyri have been lost. H.J. Scheltema dates them after 472 without offer- ing his reasons and postulates between these fragments and the Justinianic age a sharp decline in the knowledge of Latin: (Subseciva X.) Die Fragmenta Sinaitica, Tijdschrift voor Rechtsgeschiedenis 31 (1963), 100 = Idem, Opera minora (Groningen 2004), 132. 23 F. Millar, The Greek Roman Empire. Power and Belief under Theodosius II (408–450) (Berkeley, Los Angeles and London 2006), appeared too late for me to be taken into account here.

Bernard Stolte - 9789047420903 Downloaded from Brill.com10/02/2021 01:22:37AM via free access a crisis of jurisprudence? 365 precisely at that point in time that the greatest period of Roman law should have begun, the crisis, or at least unrest, of the rst half of the third century A.D. should not have prevented its continuance. Other factors must have played at least as important a role. Among these, the shift towards Greek seems to me to have been underestimated. It has been pointed out by others that there is not much reason to speak of a falling of legal standards before the end of the century. As far as jurisprudence is concerned, there are changes, certainly, but there is no crisis. Apparently we have to be careful in assuming a direct causal relation between lack of political quietude and a deterioration of jurisprudence. Should we not admit that it was not just the political crisis, but rather the effects of all sorts of changes that rang the death- knell for ‘classical’ jurisprudence? A nal word on ‘classical’. The word, of course, implies an idealised image of a certain stage in the development of jurisprudence. The ques- tion, then, remains whether it belonged to an ideal period in antique culture generally. The rst edition of the Cambridge Ancient History stopped at A.D. 324; there is not much room for decline between 225 and 325, and decline was in fact taken to have started much earlier. In that view, the rise, owering and fall of Roman civilisation apparently did not coincide with the rise, owering and fall of Roman jurisprudence. In that view, the jurists were late and must have seemed singularly out of touch with the times. Unless we postulate a serious distortion in our sources, the owering of the jurists was later than that, or managed to persist much longer. Gibbon’s enthusiasm for Antonine times is more convenient for legal historians. Many of them would have no problem in recognizing the greater part of the second century of our era as the most felicitous decades of Roman jurisprudence. But what, then, of the unmistakable quality of the successors of the second-century jurists? Gibbon fully recognizes their greatness. In his division of the history of Roman law between the Twelve Tables and Justinian into “three periods of almost equal duration”, he sketches the following image: In the third period, between the reigns of Alexander and Justinian, the oracles of jurisprudence were almost mute. The measure of curiosity had been lled; the throne was occupied by tyrants and Barbarians; the active spirits were diverted by religious disputes; and the professors of Rome, Constantinople, and Berytus, were humbly content to repeat the lessons of their more enlightened predecessors.

Bernard Stolte - 9789047420903 Downloaded from Brill.com10/02/2021 01:22:37AM via free access 366 bernard h. stolte and continues in what seems to be his conclusion: “From the slow advances and rapid decay of these legal studies, it may be inferred that they require a state of peace and re nement.” The modern established opinion, then, is not different from Gibbon’s view.24 One might also point out that we have abandoned the traditional negative view of Late Antiquity, and, in contrast, nowadays even allow for a ourishing economy and culture in that period. While this helps to see something positive in later Roman law, in Latin or in Greek, it does not change the fact that legal writing in the classical tradition came to an end in the rst half of the third century. We should not worry too much about a possible lack of conformity of the life-cycle of Roman jurisprudence with that of Roman civilisa- tion. The end of a certain tradition in the practice of Roman law and Roman legal writing does not signify the end of Roman law itself. It is more pro table to study what came to replace the traditional genres. There is no reason to infer, from the crisis of the third century, a crisis of jurisprudence.

Groningen, October 2006

24 Quotations from the famous 44th chapter of Gibbon’s Decline and Fall (Idea of Roman Jurisprudence) taken from the World’s Classics edition of 1904, volume 4, 541.

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