by Jill Harries
This book presents a solid academic analysis of the handling of crime in Roman law. My purpose in reading it was simple: to determine the degree to which logic pervaded Roman legal practice. What I found is that there was definitely an evolutionary process. By Justinian’s time, when he ordered a complete clean-up of the whole mass of Roman law, notions of completeness and consistency were central to Roman legal thinking. However, this was certainly not the case in the late Republic or early Empire. My overall appreciation of the evolution of Roman law goes something like this:
In the early years after the founding of Rome, there simply was no law to speak of. Each household had an alpha male who decided everything, including matters of life and death, within the household. Relationships between households were usually decided by a code of vengeance, but the Roman king could intervene, or one of the two alpha males might appeal to the king for resolution of a dispute. There was no written law; the king made an individual decision in each case.
This approach could not survive the growth of Rome; once the population passed a certain threshold, people were stepping on each other’s toes more often, and the number of disputes rose dramatically. This led to the standard solution used in all societies: the appointment of local magistrates to deal with all the petty disputes that cropped up, referring bigger or trickier cases to the king. It didn’t take long for this system to evolve multiple tiers, with various layers of magistrates.
The first Roman law was the Twelve Tables, published around 450 BCE. They weren’t much as laws go — mostly just if-then statements addressing some of the most common legal issues. We can’t be sure because we don’t have the entire content of the Twelve Tables, and what we do have has been stitched together fragment by fragment. Still, the impression I get from the Twelve Tables is that they weren’t rules per se, but more like guidelines for magistrates, who were afforded considerable leeway in applying them. For example, breaking a bone earned a fine of 300 sesterces; lesser injuries cost 25 sesterces. I’d guess that magistrates had license to apply intermediate values for intermediate injuries.
The Twelve Tables were obviously inadequate to the legal issues facing the Roman people, and so they were supplemented with individual laws as the need arose. For example, only a few decades after the publication of the Twelve Tables, the Lex Papiria Julia made payment of fines in bronze mandatory — apparently people were trying to pay fines in junk coinage. There were approximately a hundred of these laws, and there were often conflicts among these laws. A large secondary literature of case law arose, in which Roman legal scholars could mine to support almost any legal conclusion they wanted. However, with the passage of time, the inconsistencies and conflicts between various law induced Roman emperors to clean up some portion of the mess. In particular (and apropos to my research), Roman legal scholars began to worry more about the definitions of various legal terms, and began nailing down exactly what each term meant. Precise definition is crucial to a logical legal structure. Finally Justinian came along and had the whole pile overhauled, cleaned up, and clarified.
It is clear from this evolution that logic was slowly seeping into the Roman mind. They realized that some problems could not be resolved without logical precision, and as legal representatives grew cleverer, the need for precision in law became more pressing. So there was definitely a steady growth of respect for logic in Roman law. It did not, however, seem to have spread outside of the sphere of legal thought.