Bryn Mawr Classical Review 95.10.17

Tony Honoré, Emperors and Lawyers. Oxford: Clarendon Press, 1994. 2nd edition. Pp. xvii + 252. $55.00. ISBN 0-19-825769-4.

Reviewed by Mark Gustafson, Calvin College.

We have all been warned to avoid judging a book by its cover. But on the dust jacket of Emperors and Lawyers (which was first published in 1981, generated a fair amount of controversy, and has now been completely revised) is a photograph of a portrait head of Diocletian looking serious, even grim, the battered veteran of much conflict and labor, staunchly standing his ground. The correlation of this image to the strikingly belligerent tone of this revision is remarkable, if not uncanny. The frequency with which Tony Honoré (hereafter H.) bristles and then angrily strikes back at his critics ultimately casts a pall over an interesting, valuable, and much improved book.

H. examines 2,609 imperial Latin rescripts from 193-305 C.E. (95% of which are found in the sixth-century Codex Iustinianus) in chronological order, a remarkable achievement in itself. Through stylistic analysis he identifies twenty-one periods of consistent style which reflect the work, not of emperors, but of lawyers (that is, imperial secretaries in the position of a libellis or, later, magister libellorum). Unfortunately, few of these individual lawyers are identifiable, and yet it is H.'s design that they collectively be considered a significant part of later Latin literature.

The first two chapters of this new edition, which is one-third longer than its predecessor, have been entirely rewritten, and the other two thoroughly revised. The most important new feature is a Palingenesia of all the rescripts in database form on an enclosed diskette. The intent is to allow the reader to follow along with H.'s stylistic analysis. Another important change from the first edition is that H. has "paid more attention ... to ideological factors" (xii). H. acknowledges his special debts to the work of Detlef Liebs, and to Fergus Millar, with whom he has agreed to disagree. Millar's objection, that H. previously presupposed too bureaucratic a model of the Roman government (see "A New Approach to the Roman Jurists," JRS 76 (1986): 272-80), has been accepted up to a point. H. says a bureaucratic model need not be implied, while persisting in his argument that lawyers had a recognized role in a government that was "not a pure autocracy" (xii). This book thus represents a variant on Millar's very influential model of imperial administration (set forth in The Emperor in the Roman World 31 BC - AD 337 [2nd ed., 1992]).

Chapter One (the title of which, in an apparent nod to Millar, has been changed from "The Emperor as Lawyer" to "The Emperor in the Legal World") "puts the case for the view that in substance rescripts were a type of legal opinion given by the lawyers who held the office of secretary" (1). H. says that, beginning in the Republic, lawyers were intellectuals who interpreted, rather than made, the law and who maintained this "independent function" (3) into the third century C.E. Most of the chapter is a summary of the emperors up to Diocletian and how they dealt with lawyers and legal opinion. H. admits that much of the emperor's activity was conducted orally, which serves to weaken his basic argument that rescripts were nearly always rulings by lawyers. As he reiterates his contention that rescripts reflect the lawyers (and their assistants) and their ideologies, rather than the emperors and theirs, he admits at the same time that Millar may be right about the emperors' greater involvement. This may appear indecisive, or it may seem that H. wants to have it both ways, but more likely it indicates the sensible middle ground between two views that need not be mutually exclusive. "Admittedly," H. says, "this is a subject on which further research could shed light" (32). Might we not expect this of a "completely revised" edition?

Chapter Two, "Rescripts: System and Style," considers how the rescript system functioned, how one went about getting a rescript, where rescripts are found, and lastly (and most problematically) how H. analyzes their style. H.'s discussion of procedure is "a possible rather than a generally accepted view" (43). The reader may find further cause for vigilance when learning that approximately one thousand of the texts which H. assumes to be rescripts may in fact be letters. The provisional nature of at least part of the foundation on which he builds his thesis is thus made plain.

The last part of the second chapter forms an important prelude to the final two chapters, and is a vast overhaul of the first edition. H.'s controversial contention is that a reading of the third century rescripts in chronological order will indicate changes of style which normally do not coincide with changes on the throne. Hence H.'s argument that the emperor did not write rescripts, and his identification of twenty-one coherent periods of style. H. admits that his conclusions follow only if his thesis is correct, but to this apparent hesitancy he adds the comment that a "competent scholar who reads the text chronologically" will come to the same conclusions as he has (57). This signal for all incompetent scholars to beware is H.'s petulant challenge at the weakest point in his argument, because the demarcation of stylistic periods, at least according to H.'s methods of analysis, is an inexact science at best. And now it becomes clear that the real bee in H.'s bonnet is Alan Watson, whose scathing criticism of the first edition (Tijdschrift voor Rechtsgeschiedenis 50 [1982]: 409-14), especially with regard to H.'s "subjectivity," stings the most.

H. lays out his methods of analysis, based on "carefully scrutinizing striking words, turns of speech, and modes of thought" (57). He also considers the length of rescripts, their logical structure, syntax, word order, and vocabulary. This allows H. (and all other competent scholars, presumably) to notice qualities of "self-confidence" and "directness" (60), and to "cultivate a feeling for the general colour of a man's style" (61). Fingerspitzengefühl is required, and this is surely not out of line with systematic textual criticism. And yet, given the various and inescapable difficulties -- the brevity of the rescripts; our inability to identify all of them as such; the likelihood that the lawyers' assistants (who, while they surely existed, are even more obscure) sometimes had a hand in composition; the lawyers' putting on of "airs" (74); and the frequent necessity of positing an "overlap" between periods, during which the new lawyer composed rescripts in his predecessor's style --, the at least partially subjective nature of H.'s efforts is both necessary and undeniable. The limitations of the evidence can not be fully overcome, no matter how sure one's instinct.

Even more difficult than the demarcation of periods of style is the task of identifying secretaries. Here H. admits to an "over-ambitious" aim. But, he declares, "I think I have a good sense of style, and one that has led to discoveries worth sharing with others" (70). To this touchy and self-conscious statement, which only intrudes and invites further misgivings, he adds: "Those who disagree with the premise will no doubt disregard the conclusions" (70). This, one would hope, goes without saying.

Chapter Three covers the period 193-282, in which H. finds fifteen periods of office. He feels certain of these, but adds "there must in reality have been many more" (71). "The main problem my method presents is to detect changes in drafting style" (75). Forthright and unapologetic statements such as these are welcome. One wishes H. might, more consistently and as gracefully as this, shoulder the responsibility for conjecture and subjective judgments. How else does one explain why H. has decided that no word or phrase may be counted as an indicator of style "unless it occurs four times as frequently in the given tenure as in the others" (75)? (Compare the slightly different guidelines on p. 144.) There follows a lengthy discussion of the individual secretaries and their distinguishing characteristics. Two secretaries from this period, Papinian and Ulpian, are identified with certainty; four possible identifications are made; the rest are unknown.

Chapter Four identifies two and possibly three more. It was Diocletian, as H. says, who "exploited and transformed the rescript system" (139). Secretary no. 20, Hermogenianus, to whom H. ascribes 918 rescripts, far more than those ascribed to any other, is an especially impressive figure. H.'s discussion of him and his important place in the history of law is appropriately expansive. And then, as H. shows, it was the new codes (Codex Gregorianus and Codex Hermogenianus) that served to undermine the rescript system, since new rescripts "no longer contributed to the evolution of the law" (185). From this point, lawyers could create new laws only in the imperial consistory.

H. handily succeeds in his aim of illuminating the significant role of lawyers in the rescript system. While many of the details are debatable, the overall picture must be inserted somehow into Millar's broader view of the functioning of the imperial administration. Less successful, but inevitably so, are H.'s efforts to identify stylistic periods and individual secretaries. The adjustments made here since the first edition are indicative of the provisional nature of the evidence and its interpretation. With the addition of the diskette, this book's convenience as the site of the corpus of third-century rescripts, with limited commentary, is enormously valuable. Finally, it must be said that, had H. been more comfortable with the vigorous debate generated by this material and his methods, this second edition would have been more impressive. The best response to criticism is in the newly bolstered argument; blatant antagonism is better left to other arenas.