Alan Watson, The State, Law and Religion: Pagan Rome. University of Georgia Press, 1992. Pp. xv +136. ISBN 0-8203-1387-4.
Reviewed by Gary Forsythe, Institute for Advanced Study.
In this most recent book from the prolific pen of Alan Watson the author has attempted to ascertain the origin, history, extent, nature, and longterm consequences of the interaction between Roman law and religion from earliest to imperial times. Although the study is wide ranging chronologically and with respect to the topics treated, it centers primarily on the law of the Twelve Tables and the role of the pontiffs in the development of Roman private law. Many modern scholars of Roman history, religion, and law generally agree that Roman legal formalism resulted from an origin in pontifical law, characterized by the precise performance of prescribed rituals and/or the utterance of efficacious certa verba. W., however, sees only tenuous links between Roman state religion and private law, which in his view resulted almost accidentally from the peculiar circumstances surrounding the promulgation of the Twelve Tables. In his view stipulatio is the only feature of early Roman private law that bears traces of religious influence (33-4 and 39-43). He agrees with several other eminent scholars of Roman private law in seeing the secular nature of the law of the Twelve Tables as marking an important landmark, when compared with the motley mixture of public, private, and sacred elements found in earlier known Roman enactments, the so-called Leges Regiae (21-9 and 87-90).
W. accepts uncritically the historical accounts of Livy and Dionysius of Halicarnassus concerning the decemviral codification. According to W. the lawcode was the product of plebeian demands to limit consular power and the patricians' willingness to put in writing only those matters in which the patricians were prepared to concede legal equality to the plebs (1-3, 19-26, 53-4, and 73-8). This latter circumstance is supposed to have produced a lawcode whose provisions merely concerned matters of private law, which in turn inadvertently created a distinction between public and private law, a distinction that ultimately became important to later legal history both for Rome and for early modern Europe (92). In addition, the particular circumstances surrounding the codification, its secular nature, and its focus on private law account for what W. regards as a paradox (1 and 73): namely, that this legal system, devoid of religious features, was developed by the pontiffs for the Roman people, reputed to have been the most religious nation of the ancient world (a claim, be it noted, derived from the Romans themselves). He explains the pontifical role in the development of Roman private law by accepting Pomponius' statement (Digest I.2.2.6) that after the decemviral codification the duty of interpreting the law was given to the pontiffs (26). The author thinks that the pontiffs received this task due to their already existing expertise in interpreting sacred law and because they enjoyed the trust of the senate (27 and 63).
W. is at his best when analyzing more subtle points of private law, and he is careful to take account of both literary and epigraphical evidence. In addition to trotting out the standard commonplaces on Roman state religion in the book's first chapter, "Prolegomena on Roman Religion," W. makes some interesting observations on the legalistic form of pontifical decisions on matters of religion (7-9). Similarly enlightening are chapters 8 and 10. The former contains a lucid treatment of res sacrae and res religiosae (55-7). In the latter W. skillfully argues that peculiar modes of pontifical thinking continued to be employed by jurists long after the pontiffs were involved in interpreting private law (63-72). In his discussion of Gaius IV.11, the well known story of the man who lost his case under the legis actio procedure by substituting 'vines' in place of 'trees', W. rightly concludes that it does not constitute evidence of early Roman law having been pervaded by the religious notion of vitium (36-7, cf. 13). From Varro Ling. Lat. VI.30 the author deduces that praetors were sometimes unfamiliar with the official calendar and unwittingly presided over legal proceedings on dies nefasti (81).
Of particular interest is what the author terms "second best in the law." This concept explains the role of oaths in legal procedure during later historical times. In certain well defined cases in which the presiding magistrate was at a loss to arrive at an informed decision, Roman law, rather than admit defeat and thereby lower the prestige of the court, allowed recourse to an oath as the second best solution (48-50). W. employs this principle (interestingly but not successfully in my view) to explain the origin of dies fasti and dies nefasti. He argues that since magistrates were unable for practical reasons to hold court everyday, some plausible guiding principle was needed to justify the fact that litigation could proceed only on certain days. Accordingly, religion was pressed into service in order to provide an acceptable rationale (82).
W. contrasts the exacting formalism of Roman religious state rituals with the informality of many practices in the civil law, such as depositum and traditio (32-8), but he fails to pursue an equally interesting possibility: how the habit of legalistic qualification, probably developed first by the pontiffs for the civil law, was later applied by them to sacred law. Other legal systems have developed this same characteristic, derived from the law's attempt to encompass all possible eventualities. Such legalistic overkill has neither the same origin nor goal as the flawless execution of religious rituals. It is therefore likely that the pontiffs' habit of legalistic qualification originated in the civil law, whence it was carried over into official votive language, thus giving many moderns the erroneous impression that Roman state religion was little more than a kind of divine contract law. The degree to which the civil law had come to dominate the duties of the pontiffs is seen from P. Mucius Scaevola' s famous remark that no one was a good pontiff unless he knew the civil law (Cicero De Legibus II.47).
Although the author's analysis is of the highest quality when concerned with the later period of classical Roman jurisprudence, his study of early Roman law is seriously flawed by an insufficiently critical assessment of the historical and legal evidence. In the very beginning of the book W. opines that there is more scholarly agreement on early Roman law than there is concerning early Roman religion (4) -- a debatable statement. Throughout the book W. exhibits considerable confidence concerning early Roman private law and legal procedure. Thus, on matters of early religion he is too willing to embrace agnosticism, which discourages him from pursuing issues too deeply; whereas in the area of law his confidence should be tempered by a much more critical historical approach. The simple fact is that our knowledge of early Roman practices and institutions, both religious and legal, is severely hampered by the nature of the sources, and both religious and legal evidence must undergo the same careful scrutiny for anachronism and later ancient bias or misinterpretation. Comparative material may also be helpful in raising new questions and in eliminating competing hypotheses. For example, in his analysis of sacramentum and of the role of the oath in later Roman classical law, involving the principle of "second best," the author correctly concludes that the law attached no religious or supernatural significance to the oath, but he is unwilling to entertain the possibility that the situation was far different in early times (44-5 and 85-6). Our only detailed description of sacramentum comes from Gaius (IV.13-7), who wrote ca.150 A.D. and was probably drawing his information from late republican jurists. Thus, Gaius' sacramentum is doubtless the form of the legal procedure employed during the late republic when the legis actio had been fully secularized after centuries of evolution. Varro (Ling. Lat. V.180) indicates that even during his day the litigants deposited their money "ad pontem," certainly referring to the Pons Sublicius, Rome's primitive wooden bridge over the Tiber, from which the pontiffs originally derived their priestly title.
Given the centrality of the decemviral legislation in W.'s study, this review would be remiss if it passed this and related matters by in silence. The book's principal thesis rests upon an uncritical acceptance of the struggle of the orders, an invention of the later annalists designed to give dramatic and thematic unity to a series of disconnected major domestic events and institutional innovations in Rome's early history. Since the law of the Twelve Tables survived into historical times, many modern scholars fall into the trap of thinking that the ancient historical tradition concerning the circumstances of its promulgation must be, in large measure, authentic as well. Yet, as can be deduced from extant Greek and Roman epigraphical laws, when the lawcode was inscribed, it would not have contained a preamble that described in detail the circumstances which lay behind the codification. Thus, the ancient historical tradition must not be allowed to go unchallenged. In describing the initial proposal to codify the law Livy (III.9.5) says that a commission was to be appointed "for writing laws concerning consular power" (legibus de imperio consulari scribendis). Ogilvie rightly observed that this phrase is a later annalist's distortion of the decemvirs' title, "decemviri imperio consulari de legibus scribendis."1
W. argues cogently that given the wide variety of ancient authors from whose works we derive our knowledge of the Twelve Tables, there is no survival bias in the extant provisions (14-8). W. then proceeds to draw sweeping conclusions from the fact that these provisions are almost entirely concerned with matters of private law. On the one hand, he sees the lawcode as a defeat for the plebs since they did not attain their original goal of circumscribing consular power; and on the other hand, he regards the codification in terms of the patricians granting the plebs equality only in the civil law (hence, the absence of public and sacred law). In his view the patricians deliberately devised a body of law which related merely to the private concerns of the peasantry. Consequently, the particular historical situation is alleged to have been responsible for the code's supposedly unique distinction between public and private law. One analogy, however, drawn from the contemporary Greek world, casts serious doubt on this interpretation. The famous lawcode of Gortyn in Crete, dating to ca. 450 B.C. and inscribed in twelve columns on the inner face of a circular wall, similarly concerned itself exclusively with private law. The decemviral legislation should be seen in the larger historical context of ancient city-states placing their activities and institutions upon rational bases. During the archaic and early classical period Greek city-states rationalized their affairs by establishing annually elected magistrates with defined competences, by devising lawcodes, by organizing and imposing uniform military service upon a hoplite class, and by instituting coinage and methods of taxation. Rome ca. 450 B.C. was engaged in a similar process of institutional rationalization. Although social and economic conditions may have played an important role in driving this process, the nature of the ancient evidence does not permit us to know precisely what they were.
In chapter 7, "The Pontiffs and the Family," W. builds upon a conclusion already reached in his Rome of the Twelve Tables (Princeton, 1975 pp.9-11) concerning provisions on marriage in the decemviral legislation. In the earlier volume W. had plausibly conjectured on the basis of a careful analysis of several key ancient texts that all three ways of creating manus (usus, confarreatio, and coemptio) were mentioned in the Twelve Tables. In the present work W. further conjectures that these forms of marriage were included in a section that was concerned with various modes of longterm use, and that usus was the only form of marriage actually spelled out in the lawcode, whereas the other two forms of creating manus were mentioned only incidentally (52). W.' s initial conjecture is very attractive and should be given more attention by historians of early Rome, but his secondary deduction in this book is much less convincing because, unlike treatises written by learned jurists, official lawcodes tend not to mention things in an incidental fashion. More plausible to my mind is the possibility that the decemviral legislation treated all three forms of marriage cum manu, and that the infamous prohibition of intermarriage between the plebs and patres was a later misinterpretation of confarreatio for priests.2
As already noted, W. accepts the veracity of Pomponius' implication in the Digest I.2.2.6 that the pontiffs were not involved in interpreting the civil law before the decemviral codification. This extract from Pomponius is probably the single most important text on Roman legal history. Although it contains much valuable information, a careful reading reveals numerous minor inaccuracies, especially with respect to chronology. As a result, this statement concerning the pontiffs should not be taken too literally. Perhaps all that can be surmised from it is that the pontiffs became the developers and interpreters of the civil law at a very early date. I personally prefer to date this involvement before the decemviral legislation. If so, the transition between the Leges Regiae and the Twelve Tables may have been marked by a lengthy and fertile period of pontifical jurisprudence. Consequently, there is no need, as W. does, to incorporate Pomponius' remark into the annalistic explanation for the law of the Twelve Tables in terms of the struggle of the orders.
W. likewise accepts, in large measure, the ancient tradition concerning the pontiffs' control of the civil law during the early republic, as well as the reported activities of Cn. Flavius and Ti. Coruncanius (81-4). According to tradition, the patrician pontiffs kept secret the forms of legal procedure (legis actiones) and the official calendar that listed dies fasti and dies nefasti. Finally, in 304 B.C. a freedman's son, Cn. Flavius, who had been working as a public scribe, was elected curule aedile and allegedly broke the pontifical code of secrecy by publishing the legis actiones and by setting up a text of the calendar in the Forum. As W. himself has shown elsewhere concerning the Lex Aebutia and the introduction of the formulary procedure, posterity often exaggerates and distorts supposed major landmarks in legal history.3 Such has been the fate of the so-called Ius Flavianum. The later Roman view of early pontifical concealment of the law makes no sense. The notion probably grew out of a misinterpretation of the gradual change from orality to literacy in legal matters. In very early times, when the calendar was still determined by the moon's phases, the pontiffs announced the beginning of each month as soon as they observed the appearance of a new moon. A few days later, at the time of the first quarter (corresponding to the nones in the later calendar), the rex sacrorum orally proclaimed to the assembled people the official calendar for that month. Since the growth of the early Roman state must have soon rendered this parochial practice unsuitable, at some relatively early date a minor concession was probably made by having the priest's oral proclamation entrusted to writing on a whitened wooden, monthly notice board. By 304 B.C. Rome was rapidly emerging as the hegemonial power in the Italian peninsula, and the utility of the monthly notice boards was outgrown by Rome's extensive territory and its citizen inhabitants. What Flavius did was merely to take the last two logical steps in moving from an oral to a written legal system. The legis actiones, were probably included in written form in his aedilician edict, and the temporary monthly notice boards were superseded by Rome's first public display of the entire calendar, recorded permanently on stone. It is significant that these antiquated legal habits of the aristocratic pontiffs were abolished by a public scribe, who was doubtless well versed in Roman legal traditions, and by a freedman's son, who was not indoctrinated into the pontiffs' traditional ways but, as an outsider, could see more clearly how the legal needs of the burgeoning populace could best be served.
Lastly, W.'s assessment of Ti. Coruncanius' place in the pontifical development of the civil law is in accordance with the notion of the struggle of the orders and of the plebs gradually acquiring full access to the law. Pomponius (Digest I.2.2.35 and 38) states that Coruncanius was the first jurist to profess publicly, and that before his time legal experts merely offered their services to those who sought their advice. On the basis of this information some moderns have concluded that Coruncanius was the first real teacher of Roman private law. Although W. remains properly agnostic concerning these statements of Pomponius, he nevertheless regards as highly significant the fact that Coruncanius was the first plebeian pontifex maximus (254-243 B.C.). In my view, however, the later Roman idea that Coruncanius was the first instructor of the civil law resulted merely from the fact that he was the earliest jurist whose responsa survived into later times (see Cicero Brutus 55 and Pliny NH VIII.206).
Despite these criticisms, scholars interested in the question of the interaction between Roman law and religion will find this book thought provoking and beneficial in elucidating various points and issues. The text is well annotated, so that even if the reader may not agree with W.'s reasoning or conclusions, he may nevertheless derive enlightenment from the references in the notes. In his preface W. indicates that it is his intention to write a similar study concerning the interaction between later Roman law and Christianity. W.'s past work and the content of this volume suggest that the projected sequel will be of considerable interest to students of late antiquity.
 R. M. Ogilvie, A Commentary on Livy Books 1-5 (Oxford, 1965).  For the argument that the patres in early Rome were priests see Richard E. Mitchell, "The Definition of Patres and Plebs: An End to the Struggle of the Orders," pp.130-74 of Social Struggles in Archaic Rome, New Perspectives on the Conflict of the Orders, ed. by Kurt A. Raaflaub (Berkeley, 1986). Mitchell incorporates the same idea much less convincingly into other aspects of Roman republican history in his Patricians and Plebeians, The Origin of the Roman State (Ithaca N.Y., 1990).  Alan Watson, "Consensual Societas between Romans and the Introduction of Formularies," Extrait de la Revue Internationale des Droits de l'Antiquité 3 Serie, Tome 9 (1962) 431-6.