Bryn Mawr Classical Review 95.10.11


Traianos Gagos and Peter van Minnen, Settling a Dispute: Towards a Legal Anthropology of Late Antique Egypt. Ann Arbor: University of Michigan Press, 1994. (New Texts from Ancient Cultures 1.) Pp. x + 150, 5 plates. $44.50. ISBN 0-472-09590-0 (hb). $24.95. ISBN 0-472-06590-4 (pb).


Reviewed by Roger S. Bagnall, Columbia University (bagnall@columbia.edu).

The title announces one of the two linked elements that Gagos and van Minnen give us in this book: a general discussion of dispute processing in Egypt from the late third to mid-seventh century as reflected in Greek papyri (a list of 41 settlements of disputes is given on pp. 121-27). The other part is the hook on which this discussion is hung, the full publication of a long papyrus of the sixth century in which the settlement of a property dispute is recorded in detail. Both parts make substantial contributions to our understanding of late antique Egypt and of the social context of law in the later Roman world. For reasons to which we shall return, however, the two elements are not really very closely connected. The volume is the first in a welcome new series from the University of Michigan Press, providing a local venue for publication of papyri and other new texts, something Michigan has not had since the disappearance of the Humanistic Series of the University of Michigan Studies.

The document is certainly an impressive and interesting one, complete except for probably three lines lost at the start (containing the date, alas; Gagos and van Minnen argue for ca. 537)1 and a few largely abraded lines at the end of the signatures of the witnesses. Otherwise only small holes -- rarely difficult to fill -- interrupt the majestic flow of 113 lines of notarial Greek. The first 24 lines, preserved in the Vatican Library, were published in 1980 by R. Pintaudi as P.Vat.Aphrod. 10; they are given here in an improved text. The rest were discovered when a roll in Michigan was opened more recently. The papyrus belongs to the archive of the poet, notary, and landowner Dioskoros of Aphrodito, one of the central figures of the documentation and study of sixth-century Egypt. A good introduction to the archive and its setting -- not at all a typical village of its time, the editors rightly note -- is given here (pp. 8-23); it continues to be a lively area of research.2 This roll evidently came into Dioskoros' hands as part of the papers of his father Apollos, who represented the parties to whom it is addressed.

The principals on his side were Phoibammon son of Triadelphos and his wife Anastasia alias Tekrompia. Phoibammon is a well-known figure, studied in a classic article by J. G. Keenan3; he was a landowner, middleman, and lender in the village of Aphrodito, important because he shows that in economic relations between villagers and urbanites the villagers were not always the ones who lost their land. The present papyrus allows us to see that his wife was a cousin of Dioskoros, the daughter of a sister of Apollos. The other party is one Nikantinoos, otherwise unknown, who is, although originally from Aphrodito, now living in Antinoopolis.

The dispute concerned a piece of property, probably a vineyard, in Aphrodito, which had belonged to Nikantinoos' parents. They had mortgaged it to an unnamed couple who drew the mortgage up to the benefit of their son Joseph.4 After the parents' death, Nikantinoos' nieces and nephews (named Eudoxia, Antonia, and Kollouthos) sold the property to Phoibammon and Anastasia; the mortgage, however, has been paid off by Nikantinoos. In the settlement, Phoibammon and Anastasia pay Nikantinoos a substantial sum -- 7 solidi plus 20 artabas of wheat, or roughly the equivalent of four years' income for an ordinary worker -- and Nikantinoos renounces any claim to the property, turning the paid-off mortgage document over to Phoibammon and Anastasia.

So much is clear; but the settlement is interested in preventing future litigation, not in giving a precise account of the past dispute. So we do not learn why Nikantinoos is a party to this dispute: Was he a partial heir? Gagos and van Minnen suggest that the three sellers were left the property, Nikantinoos the debt, but there is no evidence for this. We know nothing of the terms of his parents' will, nor if Nikantinoos' sibling (and parent of the trio)5 is still alive. Why are Phoibammon and Anastasia willing to pay such a large sum to Nikantinoos? Who initiated the dispute? Gagos and van Minnen assume (e.g., on p. 123) that it was the buyers, but there is again no evidence for this view.

The editors' view of the matter is most fully set out on pp. 23-26, although they do not consider why if, as they believe, the purchasers' position was vulnerable, they did not proceed against the sellers for having sold them an encumbered property. The sale no doubt contained a guarantee of freedom from such encumbrance and an undertaking to repel all comers. What case could the buyers have against Nikantinoos?

Although I cannot argue the case in detail here, it seems worth considering the possibility that it was Nikantinoos who launched the litigation. If he inherited a share of ownership in the vineyard, along with a brother or sister, and if the survivors of the sibling sold their share, he might well find his position intolerable, faced with co-owners he did not want and a debt burden ignored by the new co-owners. We cannot know the details, but this settlement would then be an outcome in which he was fully extricated from the entanglement and probably made whole or something close to it.6 After all, it would be most remarkable for Phoibammon and Anastasia to initiate litigation if their case was so weak that it led to a substantial payment.

The skepticism about the editors' reconstruction that I have expressed does not in the least detract from a fine professional job of editing: a sound text7 and apparatus, a good translation (occasionally marred by unidiomatic English or the importation of too free an interpretive rendering), and an excellent commentary, amply documented with parallels and bibliography. The plates at the end, although small, make it possible to check most readings.8

The general discussion of dispute processing occupies sections 9-10 (pp. 30-46) of the introduction. Gagos and van Minnen argue that mediation and arbitration are forms of social discourse and not only of legal action. They point out acutely that Dioskoros owned a manuscript of Menander's Epitrepontes, with its arbitration scene; more generally they see the use of settlements as part of the Romanization of Egypt. Moving on to propose an anthropological approach to legal aspects of developed society, they try to understand the role of consensual settlements in late antique Egypt.

I have no doubt that they are right in their invocation of the parties' existing relationship as a key consideration, along with the object of controversy, in the manner of conducting the disputing process. That the restoration of social relations is an essential part of the resolution of such a situation is hardly a new idea, even for Egypt,9 but Gagos and van Minnen give a sensible discussion of the point. Their concluding expression of "hope to have shown that a satisfactory picture of settling disputes in late antique Egypt is only possible if we take the social context into account" (p. 47) is almost poignant when one considers our inability to do just that for the papyrus they publish here.10 If we knew who Nikantinoos' family were and how they were connected to the power elite of Aphrodito -- in which Apollos as protokometes was a key figure -- it would be much easier to approach some of the unanswered questions that this settlement poses.

Gagos and van Minnen also try to come to grips with the question of why settlement documents are so numerous in late antique Egypt. They suggest that the growing complexity, cost, and duration of litigation drove people to use arbitration and mediation more extensively; but the growing difficulty of litigation is only postulated, and the notion that this could be a "byproduct of the codification of Roman law" (p. 40) is more than a little paradoxical. It is not as if it was easier to determine the law before codification, after all. And with the subdivision of the province of Egypt by Diocletian, the ultimate appellate court for a province would have been closer at hand than it ever had been for most Egyptians. The hostility of Christian thinking to litigation among believers (evoked pp. 44-45) may be a more promising candidate, but then how to explain the revival of the use of the courts by Christians after the Arab conquest (p. 42)?11

All of the above makes it clear that we should take seriously the word "toward" in the subtitle. The authors make no pretense of having offered such a legal anthropology. What they have done, and done with imagination, intelligence, and zest, is to sketch out the approach they favor. That they cannot realize their project for the papyrus they publish is symptomatic of the difficulties that stand in the path. But we are much indebted to them for both their edition of this enigmatic papyrus and a formidable challenge.


NOTES

  • [1] The basis is shaky. On p. 23 the editors establish the range as 527 (accession of Justinian, mentioned in the oath formula) to 538 (Apollos leaves secular life to found a monastery and becomes Apa Apollos). They then (pp. 110-11) argue for 537 specifically because the one precise parallel to the oath formula falls in that year. That seems, even if true, hardly adequate to support a speculation; and it is not true. In the article on oath formulas by K. A. Worp cited on p. 110, we find that SB V 8029 does not give "the exact wording of this oath formula," and there are another four documents without precise dates that have the same formula as SB V 8029. It is hardly likely that all date from 537.
  • [2] A long discussion (pp. 10-15) treats P.Cair.Masp. III 67283, a petition to the empress Theodora dating to 547/8, which bears the signatures of the power elite of Aphrodito. The claim that the petition was signed at "a general meeting of the adult male inhabitants of Aphrodito to discuss the petition" (p. 13) is hardly likely to be right; there is no evidence for such town meetings. A similar idea of village institutions can be found in the same authors' article, "Documenting the Rural Economy of Byzantine Egypt: Three Papyri from Alabastrine," Journal of Roman Archaeology 5 (1992) 186-202.
  • [3] "Aurelius Phoibammon, Son of Triadelphus: A Byzantine Egyptian Land Entrepreneur," BASP 17 (1980) 145-54.
  • [4] Joseph, as things stand, is nowhere given a fuller identification. This leads the editors (p. 86) to suppose that "the identity of Iosephius is not really important in this text." I think that it is impossible to have introduced his name in such a cavalier fashion in a formal legal document. Gagos and van Minnen reject the idea of restoring a patronymic -- the minimum legal identification -- in line 12, because "the space is too short," and they restore UI(OU= there instead. But there are four-letter patronymics in common use, like *BHSA= or *MHNA=, so this argument is unconvincing, and UI(OU= is in any case redundant (even by the standards of this prolix notary).
  • [5] Who are not inheriting from an aunt and uncle, as the editors say on p. 88, but from grandparents.
  • [6] Note that in lines 57-61 it is Nikantinoos who is renouncing the possibility of future legal action. It is of course possible that another dialysis was drawn up by/for Phoibammon and Anastasia.
  • [7] I am referring to the "transcription" (pp. 67-73), which is a traditional papyrological text with annotation. The "reading text" given opposite the translation (pp. 50-63) has its attractions, and in a papyrus with few restorations it is not seriously misleading. But the absence of brackets means that restorations are presented on the same footing as preserved text, and with most papyri this would be a disastrous practice.
  • [8] A few technical grumbles may be registered here. Though a full publication, this has no volume number in the Michigan Papyri, no serial number for the papyrus, and no abbreviation proposed by the editors. The insistent Latinization of proper names in transliteration produces "Muses" (p. 61) for *MOUSH=S, which is for *MWUSH=S, Moses. On p. 118 there is twice a cross-reference to an apparently nonexistent note to lines 108-110.
  • [9] E.g., D. W. Hobson, "The Impact of Law on Village Life in Roman Egypt," Law, Politics and Society in the Ancient Mediterranean World, edd. B. Halpern and D. W. Hobson (Sheffield 1993) 193-219; R. S. Bagnall, "Official and Private Violence in Roman Egypt," BASP 26 (1989) 201-16, both cited in the bibliography of this volume.
  • [10] For that matter, even deciding if this is an arbitration or a mediation seems problematic, despite the clear distinction drawn on pp. 30-31, where they opt for mediation. So too pp. 26 and 123; but in the paragraphing of the reading text, translation, and commentary, they describe lines 17-28 as an arbitration. The latter is right, I think: the friends decide (E)DIKAI/WSAN -- as the editors note, p. 91, a legal term) what is to happen, and the decisions are referred to later as KRI/SIS (line 30) and TA\ DO/CANTA (lines 36, 54, 73, 100), the language of decree, not mediation.
  • [11] On the other hand, Gagos and van Minnen are surely right to reject intra-Christian confessional differences as an explanation, p. 43.