13-15 December 2018
Royal Flemish Academy of Belgium for Sciences and the Arts (KVAB) and
Free University of Brussels (VUB)
International workshop of the Committee for Legal History (KVAB) and the International Research Network of the Flanders Research Foundation ‘Structural Determinants of Economic Performance in the Roman World’. Organised by Koenraad Verboven (UGent) and Paul Erdkamp (VUBrussel) Participation is free, but registration is required. Please notify your presence to Koen.Verboven@ugent.be. If you want to join us in the conference lunch on Friday, please let us know before 26 Nov. We will ask you for a contribution of 15 euro.
Formal or designed institutions and organisations constitute the visible forms of economic governance. They include laws and official regulations (institutions in the terminology of New Institutional Economics), and bodies (i.e. organisations) endowed with the authority to formulate, interpret and enforce these at local (e.g. cities) and supra-local (e.g. states and empires) levels, both in private contexts (e.g. guilds) and public ones (e.g. armies).
Legal systems, most of all Roman law, provided the most comprehensive and powerful formal regulatory frameworks for economic transactions in the Roman empire. Property law protected private holdings in varying degrees–as full ownership, possession, usufructs, and servitudes. The law of obligations stipulated how legitimate claims and dues could be created and extinguished. Inheritance law regulated the transmission of property rights, claims and obligations between generations. Procedural law provided ways to settle disputes and enforce agreements.
Scholars have debated the practical usefulness of Roman law for economic agents. Pre-roman legal systems—indigenous, ethnic (for instance Jewish), or Hellenistic—continued in use in the provinces until Roman citizenship was universalized with the Constitutio Antoniniana in 212 CE. Merchants and businessmen in the provinces were confronted with a mosaic of different legal frameworks and legal statuses. Some argue that the absence of state-provided protection of private property rights and the lack of state-provided contract enforcement implied that the law only provided a discursive and normative framework, while legal enforcement would have depended on the more or less voluntary submission by litigants, propped up by social pressures and self-help.
In this workshop we want to look closely at the actual legal processes that regulated economic activities and how they interrelated with social practice.
|Thursday 13 Dec. 2018
Royal Flemish Academy of Belgium for Science and Arts (http://www.kvab.be/en)
|13:30||Paul Erdkamp and Koenraad Verboven||Welcoming word and setting the scene: Legal institutions and economic performance|
|13:55||Dirk Heirbaut||Welcoming word on behalf of the Committee for Legal History|
|14:00||Stefania Gialdroni||Levin Goldschmidt: how and when commercial law history became important for lawyers|
|14:30||Dennis Kehoe||Private property rights and public claims on land in the Roman Empire|
|16:00||Alberto Dalla Rossa||Choosing the best exploitation model for an imperial property: regional, economic and political considerations|
|16:30||Marco Maiuro||The legal status and implications of the patrimonium Caesaris|
|17:00||Hernán González Bordas||New data about the imperial administration and land tenure in Roman Imperial Estates in North Africa|
|Friday 14 Dec. 2018
Royal Flemish Academy of Belgium for Science and Arts (http://www.kvab.be/en)
|9:30||Peter Candy||Rome’s Economic and Legal Transformation: The Development of Roman Maritime Law in the Late Republic.|
|10:00||Philip Kay||The effectiveness of the early Roman law of contract for bankers. An economic historian’s view|
|11:30||Boudewijn Sirks||The partes in the societates publicanorum: transferable?|
|The pretium in numerata pecunia controversy and Jewish debate over the acquisition of movables|
|14:00||Peter Sarris||Loans and Credit in the Novels of Justinian|
|14:30||Elisabeth Hermann-Otto||Legal regulations of manumission and the economic interests of patrons and heirs: correspondence and contrast|
|16:00||Emilia Mataix Ferrándiz||The Roman law of obligations and the scripta commercii. Confronting material and textual evidence|
|16:30||Lina Girdvainyte||Roman citizens in the legal economy of a Greek polis|
|Saturday 15 Dec. 2018
Free University of Brussels (VUB),
Humanities, Sciences & Engineering Campus, Pleinlaan 2, 1050 Brussel
Building E, Room E0.04 (click on link above for directions)
|10:00||Taco Terpstra||“The Law is the Public Conscience.” Social aspects of the efficacy of Roman Law|
|10:30||Sven Günther||Creating Socio-economic and Legal Frames – Cicero’s Pro Quinctio|
|11:00||Discussion and closing the workshop|
Stefania Gialdroni, Levin Goldschmidt: how and when commercial law history became important for lawyers
In 1897, a few months after Levin Goldschmidt’s death, Ercole Vidari, the chair of commercial law at the University of Pavia for 45 years (1863-1908), defined him “il principe dei commercialisti moderni di ogni paese”. Some years later, in 1904, William Mitchell, publishing in Cambridge his Essay on the Early History of the Law Merchant, wrote: “My debt to previous writers (…) and above all Goldschmidt – is evident in every page”. In 1935, Guido Astuti, destined to become one of the leading Italian legal historians until his death in 1980, in reviewing the passionate defense of Goldschmidt’s legacy written by his scholar Wilhelm Silberschmidt, defined Goldschmidt’s best known work – the Universalgeschichte des Handelsrechts (1891) -, a matchless model of legal-historical studies. In 1998, Albrecht Cordes, the chair of medieval and modern legal history at the University of Frankfurt am Main, writing about late medieval company law within the framework of the Henseatic League, had to admit that Goldschmidt’s “universalist” program was still influential. It is a matter of fact that Levin Goldschmidt’s work has been for the whole 20th century the unavoidable starting point of any research in commercial law history well beyond the boundaries of Germany. This seems to be true even today.
The aim of this paper is to analyse the role played by Levin Goldschmidt in the establishment of commercial law as an autonomous field of study and legislation, as well as the importance he gave to the history of commercial law, with a particular focus on his personal interpretation of the Roman law legacy.
Dennis Kehoe, Private property rights and public claims on land in the Roman Empire
The status of land is of fundamental importance in the debate over the role of law in the economy of the Roman Empire. In the empire’s pre-dominantly agrarian economy, agriculture provided the bulk of the wealth for the Roman elite, and well as the most important source of revenues for the Roman imperial government. Indeed, the Roman imperial government fostered a political system that relied on local landowning elites to serve on city councils and to carry out basic governmental functions, especially those connected with the collection of taxes. From this perspective, the legal policies that the Roman government developed toward land had significant implications for the organization of the Roman economy and for the distribution of wealth across society. In a previous paper presented here in Brussels, I argued that the Roman government’s policy of extending and protecting private property rights in land contributed to increasing specialization in agriculture and the emergence of the class of elite landowners crucial to the governance of the empire, but that increasing stratification of wealth was to some degree countered by Roman administrative policies that had distributional consequences (“Property Rights over Land and Economic Growth in the Roman Empire,” in P. Erdkamp, K. Verboven, A. Zuiderhoek, eds., Land and Natural Resources in the Roman Empire. Oxford, 88-106).
In this paper, I refine this understanding of the Roman government’s policies toward land by considering the nature of the constraints that public policy placed on private property rights, and to explore the likely consequences of these policy constraints for the economy. These policies include the efforts of the Roman government’s struggle to accommodate private property rights in an agricultural economy dependent on local traditions of land tenure. In addition, Roman administrative policies increasingly imposed restrictions on the freedom that property owners had in disposing of their land.
Alberto Dalla Rossa, Choosing the best exploitation model for an imperial property: regional, economic and political considerations
The lease regulations of the Bagradas Valley in Africa show that conductores played a major role in the exploitation of imperial estates. As part of their contract, they probably provided the fiscus with a fixed yearly amount of cash or foodstuff and then collected from the coloni the share rent that was fixed by the imperial regulation, keeping from themselves any exceeding quota. In assessing the production of the coloni and collecting the rent, the conductores performed a complex supervision task that the imperial administration could do only with considerably greater personnel numbers than those of which it actually disposed. However, as shown by Dennis Kehoe in his numerous works on the subject, the interests of the conductores and those of the coloni diverged substantially and this situation led to a seemingly permanent conflict, as our sources seem to attest. Intervening to resolve the disputes, the emperors regularly took the side of the coloni against the demands of the conductores.
Despite these recurring difficulties, it does not seem that the imperial administration ever decided to directly extract the share rent from the tenants of this province. We do however have some hints at the fact that the fiscus tried to reduce in certain cases his dependence from the conductores, thus creating firmer rights for the tenants. As the new edition of the Lella Drebblia inscription by González Bordas & France confirms, the coloni bringing new land under cultivation under the prescriptions of the lex Hadriana de rudibus agris would pay a rent to the conductores for the first five years only; after that period, the payments were due directly to the imperial fiscus (rationi Caesaris nostri), which therefore collected it with its agents.
The aim of this paper will be to determine if and in what measure we can identify a tendency by the imperial administration to bypass conductores or other types of wealthy middlemen in the exploitation of properties belonging to the patrimonium Caesaris, comparing sources from other provinces (Asia, Egypt) and for different economic activities (marble extraction). We will explore the possibility that, at least on some imperial estates in Asia in the first half of the third century, coloni paid a fixed amount of money/foodstuff instead that a share of the production and that conductores were not employed. The example of Hadrian’s organizational reform of the marble extraction at the site of Dokimeion shows that wealthy middlemen were not deemed necessary to grant a steady production. Economic, regional and political factors, however, did not allow for any reduction of the role of these wealthy member of the local élite in other provinces or in other instances.
Marco Maiuro, The legal status and implications of the patrimonium Caesaris
It is well known that the Severan period brought about a few major changes in the way the landed estates of the Emperors were managed and exploited. A time-honoured theory takes for granted that Septimius Severus created a new administrative branch of the fisc, the res privata, and severan jurists and imperial provisions developed a sophisticated set of rules to legally protect imperial assets (the so called ius fisci). Even more important is the supposed quantitative leap in the sheer dimension of the appurtenances of the imperial fisc. This paper tries to test such traditional views in light of evidence recently published. The picture we can draw from it is more nuanced, and shows how the severan period brought to completion some important reforms that had taken inception in previous periods. Moreover, the fundamental role the imperial estates seem to have played within the imperial budget from the severan period onward, might be the combined and cumulative effect of enhanced management, dimensional aggrandizement and overall changed economic and productive conditions after the antonine plague.
Hernán González Bordas, New data about the imperial axdministration and land tenure in Roman Imperial Estates in North Africa
During the 20th century the studies on the Roman sharecropping colonate have mainly depended on six monuments found around the Medjerda Valley (northern Tunisia), and known as the Great African Agrarian Inscriptions. Within this corpus, were to be found different documents, as the agreement of the Sermo procuratorum, and parts or mentions of the lex Manciana and of the lex Hadriana as well as petitions of the coloni, and rescripts from the emperor.
In the last years, the number of these inscriptions has been increased, on one side, through the new edition of the Lella Derbblia inscription (JRA 2017) and, as a consequence of it, of the sermo procuratorum (CahGlotz 2017), and, on the other side, through the discovery of the Henchir Hnich inscription (a preliminary paper will appear in ZPE 2018), that is to say, the Lex Hadriana de agris rudibus. These documents provide information on several subjects but my paper will focus on the imperial administration and the land tenure by the coloni.
The sharecropping coloni of the Roman Imperial Estates in North Africa in the second century AD are known to having acquired possession of lots in the imperial land through the lex Manciana and the Lex Hadriana but, since we only have some excerpts of both these arrangements, we ignore many details of this right to possess. On this point we will shed some light on the evolution of this right and on the possibility of alienation of the land by the coloni. Secondly, we would like to put the accent on how multifaceted the condition of these estate farmers living in neighbouring estates can be, as we have noticed new differences about the share of the crops in every region of estates. These differences depended not only on the diversity of the arrangements but also on the characteristics of every Imperial Estate. In fact, the idea -forced by the precedent editors since Jérôme Carcopino- that the two leges, Manciana and Hadriana, where directly interconnected has made the historians think that the shares of the crops followed a kind of canonic mancian standard.
The new edition of the Sermo procuratorum lets us go beyond this idea, since it has shown the ability of the Fiscus to adapt the legislation to the different kinds of saltus which formed the Imperial Estates. This adaptation must have been executed with a more intensive control than what we have thought until now, since we have found in the Lella Derbblia inscription the first mention of adiutores procuratorum for this context. They may have had tasks in some (parts?) of the saltus in the regio Thuggensis, but the text doesn’t allow me to understand which ones. For that reason, I would like to submit this point openly to the opinion of the community in the workshop.
Peter Candy, Rome’s Economic and Legal Transformation: The Development of Roman Maritime Law in the Late Republic.
The aim of this paper is to show that the development of Roman maritime law coincided with the rapid increase in the volume of Roman maritime traffic during the late Republic. By comparing the chronological distribution of Roman shipwrecks with the likely date ranges for the introduction of maritime legal rules, I show that the most prolific period of praetorian and juristic innovation coincided with the period during which the volume of maritime traffic was increasing at its greatest pace. The coincidence of legal innovation with the intensification of economic activity invites the question as to the relationship, if any, between these parallel developments. On the one hand, the evidence for the intimate connection between the personalities responsible for legal change and those engaged in, and benefiting from, overseas trade provides a tangible link between commercial activity and legal innovation. On the other hand, the potential economic impact of legal change can be theoretically established by the application of the New Institutional Economics. NIE holds that by influencing the cost of transacting, changes in the availability and application of legal remedies have the potential to affect the intensity of transactional activity. In the context described above, it may have been the case that the development of Roman maritime law reduced the cost of conducting long-distance transactions, and so facilitated the increase in the volume of maritime traffic seen in the same (or succeeding) period. If this is true, then the results of this research may lend further insights into broader questions, such as the contribution of institutional change to economic development in the ancient world, and the relationship between legal, economic, and social change in that environment over time.
Philip Kay, The effectiveness of the early Roman law of contract for bankers. An economic historian’s view
Livy, Varro and Pliny the Elder suggest that bankers were operating in Rome from the end of the fourth century BC. Some have doubted the veracity of these reports, but the plays of Plautus, from the end of the third and beginning of the second centuries BC, present a monetised world in which bankers are active and in which the use of banking terminology suggests that deposit banking was already well established as part of everyday Roman life.
At the same time, those modern studies that have adopted an approach based on new institutional economics have often cited a common system of law, particularly commercial law, as one of the factors which promoted economic efficiency throughout the Roman Empire under the Principate. But as Peter Bang has said: ‘Law is almost inevitably seen as increasing efficiency; but few institutions have only beneficial effects’. We therefore take a critical look at the Roman law of obligations in the middle Republic to examine the extent to which, given the importance of ‘judicial security’ in the financial world, the ius civile at that time provided practical and effective mechanisms for bankers and their depositors to make contracts with each other and to seek remedies when monies were not repaid.
Matters are complicated by the fact that it is often difficult to pin down the precise modalities of the law of obligations and litigation procedure during this period due to the limited sources that have survived. We are reliant principally on a few fragments of the Twelve Tables, transmitted by later authors, on Gaius’s Institutes, (a work written four hundred years later) and on the redacted juristic opinions in Justinian’s Digest of the sixth century AD. Even the few passages from Cicero that might have a bearing on this period come after two centuries of change, development and juristic interpretation.
Having said that, it is reasonably clear that any banker in Rome between the late fourth and early second centuries BC would have been operating in a society in which contract law was largely oral or performative, the legis actio procedure was still dominant, and, on conventional dating, the ius honorarium was at best embryonic. There is some evidence for written records, but we have little idea of their legal force, and there is no hint of the kind of written document of practice found, for example, in the first century AD archive of the Sulpicii. A further consideration is that it is not entirely clear whether the gradual development of the ius honorarium from the late third century BC onwards had any significant influence on the main elements of the law of obligations as it affected bankers.
In order to help gauge the practical effectiveness of the Roman system of contract law in the middle Republic, we go on to examine how Roman legal mechanisms compare with those of Athenian contract law. This provides a useful comparator because evidence for its language and formulation comes mainly from the body of forensic oratory between around 400 and 320 BC and is therefore only a generation or so earlier than the period we are discussing. Demosthenes’ speeches are especially relevant because the cases they cover often relate to interest-bearing loans. Overall, what we find in this body of evidence is a juridically simple conceptualisation of commercial legal obligations. In particular, the use of everyday rather than technical language, a seeming absence of legal prescription and the written form in which they are couched differ radically from the Roman approach.
Finally we comment on what these investigations might tell us about the progress of the Roman economy during the last three centuries of the Republic.
Boudewijn Sirks, The partes in the societates publicanorum: transferable?
The few references to partes in the societates publicanorum, suggesting that they could be transferred have led to roughly two positions in the commentaries. One is, that it is impossible to transfer one’s participation in a societas (e.g., Fleckner), the other that it was possible and even that there was a market in these participations (Malmendier). How we have to imagine such a market remains a mistery, though. That a socius could not simply be replaced by another person is certain. The nature of the contract opposed this, be it that there were exceptions out of necessity (death of a socius in a societas publicanorum) and even then with restrictions. These views have focused on the contract of societas but not on the property consequences of this. From an analysis of these legal aspects of the societas it would follow that the transfer of a financial interest to a third party, without this party becoming involved in the societas as consensual contract, yet with becoming involved in the structure of the societas, might have been possible.
Emilia Mataix Ferrándiz, The Roman law of obligations and the scripta commercii. Confronting material and textual evidence
This paper aims to explore the consolidation of the concept of obligation through the evidence of the epigraphy of merchandise and legal texts. This communication will highlight the main changes in contractual practices and the material record associated with them during the high Empire (1st to 3rd cent. AD). To that aim, I will merge ancient legal sources and the archaeological record in order to understand if there was a relation within the rulings established by law and the materials and structures used in the practice. This study bridges the gap between legal theory and the daily commercial practices. Therefore, this paper indirectly intends to understand what kind of communication was established between jurists and merchants, to be respectively aware of the current law and the trading customs of merchants.
Therefore, this communication will be focused upon two main elements. On the one hand, I will address the study of the epigraphy of merchandise, and concretely on the writings that I have labelled as scripta commercii. These consisted of inscriptions reflecting the diverse commercial procedures in which the merchandize (e.g. amphorae, barrels) was involved since the moment of purchase (e.g. kiln, estate) and until it arrived to its destination (e.g. port, market). The inscriptions refer to data such as the name of the merchant, weight, indications of control or destination, and reveal different details about the distribution process. The repetition of certain patterns on the writings and the elements written on the inscriptions, allowed me to understand that there were some patterns or formulae used recurrently on containers, which referred to the contracts agreed by the parties in trade. Thus, these scripta were closely associated with Roman legal practices, such as the contracts of sale or lease and hire, because they reflected the features of the agreements.
On the other hand, I would link that material evidence with the Roman concept of contractual obligation. The latter was a conception that implied a legal tie binding the parties involved in a contract (Inst. Iust. 3.13; G. 3.88) to give (dare) something, to do (facere) or to perform (praestare) something (D. 44.7.3). The Roman expansion in the Mediterranean (3rd cent BC) had as a result an increase in trade and the development of diverse mechanisms to organise it and regulate the relations held between citizens and foreigners. Despite the fact that at that time several contracts such as mandate were shaped, these agreements could just be enforced through the specific actio enabled for each contract and specific bargains. The later development of the process per formulas was a key moment to frame the Roman concept of obligation, providing greater dynamism in the protection of the rights of the parties.
Along that legal phenomenon, there was also the stability provided by the imperial institutions, leading to an increase of long-distance trade performed by different subjects who were part of the Empire. The latter had a reflection on the material structures of many ports, which suffered great changes on their constructions. In relation with that, I will focus upon particular material examples of merchandise to evidence the development of the concept of obligation and its influence in the commercial practice.
This paper aims to illustrate three axis of research: the relationship between the material evidence of Roman trade and the legal sources linked with commerce (I), the evolution of the juridical treatment of obligations and its reflection in the material record (II), the mechanisms of creation of law and transmission of knowledge (III). The approach is resolutely interdisciplinary since it combines epigraphy, legal exegesis and examination of archaeological contexts. This paper provides an insight on the human and cultural framework in which these artefacts were employed. Thus, I will address these main research questions: (1) How did the changes in the law of obligations had a reflection in the artefacts and infrastructures used in commercial daily life? (2) Was Roman law designed for traders and inspired by them? Conversely, (3) were traders aware of all the particularities of Roman trade law? These questions relate to other fields of research, such as the role that political authorities played in the changes in the law.
Finally, the artefacts chosen will be studied considering them as an evidence of the interaction within subjects from different legal backgrounds, and access to justice. Thus, taking a cue from more recent work on legal pluralism in the Roman Empire (Tuori: 2007; Humfress: 2013; Czajkowski: 2017), we should rather employ an anthropological approach by looking at the law from the ground up and asking “what did the parties to a contract think they were doing”. Perhaps the time has come to look at the Roman law of sea transport, not as a legal transplant or as the “international law” of the Mediterranean, but rather as an open system affected by the legal choices made by the individual actors involved in it.
Peter Sarris, Loans and Credit in the Novels of Justinian
The Novels of the Emperor Justinian reveal both how legislation was lobbied for on behalf of pressure groups and petitioners in the sixth century and how the imperial authorities responded to their requests. This paper will examine a series of connected laws relating to credit and loans contained within the Novels, which cast interesting insights into the sophistication of the Byzantine commercial economy in late antiquity.
Merav Haklai (in absentia), The pretium in numerata pecunia controversy and Jewish debate over the acquisition of movables
This paper concentrates on legal debates during the second and third centuries CE concerning the nature of the contract of sale in Roman law and in Jewish legal sources. In both legal traditions, the juristic definition of sale and the debates as to which transactions fall under this category had crucial implications. It affected procedural aspects of conducting transactions, it determined the legal aid available in case of dispute, and it dictated the conceptual categorisation of the objects transferred in such a transaction.
In Roman Law, the issue of pretium in numerata pecunia stood at the heart of one of the most celebrated controversies between the two schools of Classical Roman Law, the Proculians and the Sabinians. The school controversy regarding the pecuniary nature of a purchase-price is known mainly from a paragraph in Gaius’ Institutiones, 3.141, and two fragments of Paul’s Ad Edictum preserved in Justinian’s Digest, Paul. Dig. 184.108.40.206 (33 ad ed.) and Paul. Dig. 19.4.1.pr. (32 ad ed.). The debate concerning the nature of pretium was neither purely theoretical, nor a case of interpretatio doctrinalis. A requirement that a purchase-price be defined in monetary terms had crucial implications for the legal aid provided to each of the parties involved, hence also the conduct of sale transactions at large. At the end of the debate the triumphal Proculian stance dictated that a contract of sale (emptio venditio) is contracted by agreement over two issues merx and pretium, and that the latter is to be stated in monetary terms, in numerata pecunia.
In Jewish law, contracts of sale fall under a larger category of dinei mamonot, literally Property Laws, and are dictated by a central notion in Jewish law: qinyan. Qinyan generally stands for ‘possessions’ or ‘property’, but can mean also ‘a formal mode of acquiring or conveying property or creating an obligation’ as well as ‘ownership’ and ‘contract’. A valid Jewish contract of sale required a consent of both parties, and a modus acquirendi termed by Jewish sages ma‘aseh qinyan, i.e. a deed of acquisition. Valid deeds of acquisition varied in accordance with the details of the transaction, the prevailing custom, and the opinion of different sages. The present paper concerns one type of a deed of acquisition called Acquisition by Pulling or Drawing (qinyan meshikhah), which could be applied to movables and is a mode of acquisition in which ownership is acquired not upon payment but only when actual possession is taken. The paper observes refinements in Acquisition by Drawing which appear in a paragraph from the Mishnah tractate Bava Metzi’a 4:1 and its commentaries in the Palestinian and Babylonian Talmuds. The paragraph raised the interest of scholars due to the relation it describes between different metals and between metal and coinage. This paper, however, focuses on the legal institutionalisation at the background of the sages’ discussions. It centres on the legal problem at hand and the types of categorisation that created the need for this ruling to begin with.
The paper argues that the Jewish legal debate can be understood properly only when contextualised within the larger conceptual consequences of the Roman pretium in numerata pecunia controversy. Even though both the notion of a sale and the legal measures for making an act of sale have completely different structure, internal logics, and practical procedures in Jewish legal tradition compared with Roman law, an in-depth examination of contemporary juristic debates exhibits that both were shaped by a superior notional status quo which regulated economic reality.
Elisabeth Hermann-Otto, Legal regulations of manumission and the economic interests of patrons and heirs: correspondence and contrast
Lina Girdvainyte, Roman citizens in the legal economy of a Greek polis: The case of private donations and endowments
This paper will focus on the phenomenon of private donations and endowments – in other words, money or property donated by private citizens to the benefit of their places of residence in mainland Greece of the Roman period.
Attested in the Greek world since the fourth century BCE, funds acquired in this way contributed substantially to the income of the Greek cities, either by covering a specific public expense, or by generating regular income over the years, upon investment of the capital and accumulation of interest. The practice continues to be observed in the imperial period, particularly over the second century CE, and is often taken to indicate the increased dependence of the Greek poleis’ economic stability on private benefactions.
Ranging, in purpose, from more personal to entirely public concerns, transfers of funds or property from private persons to civic institutions, attested on a number of public inscriptions, were normally accompanied by legal conditions as well as penal clauses to come into effect in the event of non-compliance. My focus here will be precisely on these legal conditions attached to private donations and endowments of the sort, some even modifying local rules of legal standing. I will look into the underlying mechanisms which allowed for such modification, and will argue that any conditions attached to these transactions should be evaluated with regard to their economic viability.
Finally, I will discuss the implications of occasional involvement of provincial and central authorities in authorising or confirming transfers of funds between the cities and private individuals, the vast majority of whom were Roman citizens of local origin. As legal transactions, closely tied with social practices (euergetism, or munificence), and intended to convey economic benefit, these documents make a particularly interesting case study for the broader topic of ‘law and economic performance’ in the Roman world.
Taco Terpstra, “The Law is the Public Conscience.” Social aspects of the efficacy of Roman Law
It is often uncritically assumed that the Roman state enforced private property rights. Ancient historians here look to the work of Douglass North, who defined a state as “an organization with a comparative advantage in violence, extending over a geographic area whose boundaries are determined by its power to tax constituents,” continuing that “an organization which has a comparative advantage in violence is in the position to specify and enforce property rights” (1981: 21). A prominent example is provided by Elio Lo Cascio, who argued that an “analysis of the state … becomes central, in so far as it is the state that, through what North calls its ‘comparative advantage in violence,’ can define and enforce the ‘rules of the game,’ in particular exclusive property rights” (2006: 219).
But how exactly do we suppose the Roman state did this? Undeniable it had a comparative advantage in violence. Yet it did not employ it to “enforce agreements such that the offending party always had to compensate the injured party to a degree that made it costly to violate the contract.” Even North admitted that the conditions for such state behavior “are seldom, if ever, met in the real world” (1990: 58).
In search of publicly administered coercion, some scholars have pointed to the importance of infamia as a legal penalty; indeed, I have done so myself (Terpstra 2008). But the efficacy of “infamy” relied on mechanisms of reputation and social control, and thus ultimately on collective action of a private-order nature. One can also question how much “infamy” played a role in Rome’s lived historical reality, especially outside aristocratic circles. From an extensive analysis of petitions concerning violations of persons and property addressed to officials in Roman Egypt, Barbara Anagnostou-Canas concluded: “in almost all documents, civil blends with criminal, and sentences settle questions of procedure rather than substance; rare are any references to penalties following this type of offense” (1991: 126-27).
In my view the discourse on the efficacy of Roman law suffers from a confusion: enforcement is not distinguished from adjudication. Generally speaking, states can assume some variation of the latter task without necessarily assuming the first, operating along a continuum from least forceful to most forceful. That continuum is cogently captured in a framework of “dispute settlement mechanisms,” developed by Beth Yarbrough and Robert Yarbrough (1997). It consists of four prototypical categories:
1. Third-party information gathering on alleged violations, and dissemination of that information, followed by group retaliation, potentially ending in ostracism.
2. Non-binding third-party adjudication resulting in a recommended remedy, potentially followed by multilateral retaliation; no third-party enforcement.
3. Binding third-party adjudication without third-party enforcement; retaliation by the aggrieved party, but permitted only if a violation has been confirmed.
4. Binding third-party adjudication and enforcement; no private retaliation allowed. The potential benefits of the state assuming the task of both arbiter and enforcer in a reliable, unbiased way are obvious. Yet adjudication without enforcement can still be beneficial for economic performance, depending on the state’s level of impartiality, the quality of its arbitration and the sophistication of its legal framework. Conversely, if the state’s legal institutions are poor, adjudication with full enforcement can be harmful for economic development.
As for the relevance of this theory to Roman economic history, I suggest that we need to ask ourselves on the one hand what tasks the Roman state assumed, and on the other who performed the tasks it did not assume. Because of the large amount of technical Roman legal writing it is all too tempting a priori to assume that Roman law had a positive economic impact. But doing so begs all the interesting question about the social dimension that determined the law’s efficacy.
I contend that the Roman state fell roughly in category 3 in the framework of Yarbrough and Yarbrough, and that we therefore need to determine what enforcement mechanisms underpinned its legal system. As a first step of doing so I propose that we should consider the witness lists attached to contracts. As shown long ago by Jean Andreau (1974), witness lists followed a status ranking from highest to lowest. I argue that this way of ranking witnesses made contracts “socially embedded,” which increased their enforceability. Signing contracts provided witnesses with an opportunity to display, maintain and potentially enhance their social standing, which to a large degree was determined by the civic order created by the state. Officeholding, imperial-cult priesthoods and citizenship – acquired by birth or manumission – were the determining factors in the rankings. This social dimension of contracts more than the finer points of their legal phrasing is what we should be considering in determining the efficacy of Roman civil law in everyday economic life. “The Law,” in other words, “is the Public Conscience” (Thomas Hobbes, Leviathan 29.7).
- Anagnostou-Canas, Barbara. 1991. Juge et sentence dans l’Égypte romaine . Paris: Éditions L’Harmattan.
- Andreau, Jean. 1974. Les affaires de monsieur Jucundus . Rome: École française de Rome.
- Lo Cascio, Elio. 2006. “The Role of the State in the Roman Economy: Making Use of the New Institutional Economics.” In Ancient Economies, Modern Methodologies: Archaeology, Comparative History, Models and Institutions , edited by Peter F. Bang, Mamoru Ikeguchi and Hartmut G. Ziche. Bari: Edipuglia. 215-34.
- North, Douglass C. 1981. Structure and Change in Economic History . New York, London: W.W. Norton & Company.
- North, Douglass C. 1990. Institutions, Institutional Change and Economic Performance . Cambridge: Cambridge University Press.
- Terpstra, Taco T. 2008. “Roman Law, Transaction Costs and the Roman Economy: Evidence from the Sulpicii Archive.” In Pistoi dia tèn technèn: Bankers, Loans and Archives in the Ancient World: Studies in Honour of Raymond Bogaert , edited by Koenraad Verboven, Katelijn Vandorpe and Véronique Chankowski. Leuven: Peeters. 345-69.
- Yarbrough, Beth V., and Robert M. Yarbrough. 1997. “Dispute Settlement in International Trade: Regionalism and Procedural Coordination.” In The Political Economy of Regionalism, edited by Edward D. Mansfield and Helen V. Milner. New York: Columbia University Press. 134-63.
Sven Günther, Creating Socio-economic and Legal Frames – Cicero’s Pro Quinctio
Only until recently, Cicero was judged to be an “outsider” of Roman law due to his advocate profession, thereby using mainly rhetorical skills and devices instead of a profound legal argument. However, with the “cultural turn” the discourse and practice of law in a broader framework of “legal culture” has clearly changed the view on Cicero and his legal frames (see esp. du Plessis 2016, with overview of recent scholarship in the “Introduction,” 1-7). Notwithstanding the new emphasis on the legal practice for creating the Late Roman Republican “law,” the question of how the communication between the orator Cicero and its audience has functioned, remains a crucial one to examine to what extent one can really speak of a common Roman “legal culture,” particularly in the economic sector. The paper will address this research question by looking at Cicero’s earliest extant speech Pro Quinctio. Therein, the legal and economic performance of the parties as well as their presentation by Cicero the advocate play a crucial role, revealing important details of how business affairs were conducted, and framed, by law of procedure, particularly the praetorian edict and its formulae. However, it shall be shown that these legal frames in economic affairs were only one part of the public story: socio-political, socio-economic and moral frames were added by Cicero at weak “legal” points, thus forming a net of frames to convince the audience, particularly the judge(s), of the right of his client.
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