Bryn Mawr Classical Review

Bryn Mawr Classical Review 1999.07.12

Felice Mercogliano, Tituli ex corpore Ulpiani: Storia di un testo.   Naples:  Jovene Editore, 1997.  Pp. xii, 121.  ISBN 88-243-1239-X.  



Reviewed by Michael Peachin, New York University (mp8@is.nyu.edu)
Word count: 1477 words

At some point in the years between A.D. 320 and perhaps 342, a juristic text was produced.1 It became attached, probably in the sixth century A.D., to the Breviarium Alaricianum (i.e., the Lex Romana Visigothorum). In about the early tenth century, a copyist, working possibly at Fleury, transcribed part of the fourth-century tractate -- he apparently did not have the first part, and both beginning and end are no longer extant -- together with various other, later legal works. This scribe introduced the text with the words incipiunt tituli ex corpore Ulpiani, providing no other no title. His efforts had no known resonance during the medieval period. In 1549, though, Jean du Tillet produced a first modern edition of these purported extracts from Ulpian. His edition was based on the one manuscript he could discover, which then disappeared for some years, ultimately to resurface as Codex Vaticanus Reginensis latinus 1128 (fol. 190v-202v contain our text). The Vatican ms. reveals, in fact, the tenth-century copyist.2 As a result of this, something like two thirds of the fourth-century composition is still available.3

There is, however, a problem. The fourth-century jurist was copying something; we do not know what. Theories, as is often the case in such situations, have flourished.4 Without going into any detail, I list the chief suppositions: a Liber singularis regularum, which is attributed by passages in the Digest and the Collatio legum Mosaicarum et Romanarum to Ulpian, was what the fourth-century jurist excerpted; he was copying a document thus titled, but its author was not really Ulpian; the text before him was neither Ulpian nor Pseudo-Ulpian but, instead, a second edition of Gaius' Institutes; he did not excerpt one document but made, rather, a pastiche of various earlier texts, including Gaius and Ulpian (or Pseudo-Ulpian); he was copying an epitome of Pseudo-Ulpian's Liber singularis regularum, itself made in the later third century, and which had added some Gaius; the text of the Vatican ms. is an abstract of an earlier, larger corpus of excerpts from several genuine works of Ulpian.

With the present book, Felice Mercogliano undertakes a review of the situation and offers a solution, a project which Edoardo Volterra had planned but could not finish within his lifetime. Professor Mercogliano is to be thanked for providing us with an excellent presentation of a complicated subject.

Chapters I and II treat the history of the text and then the history of the scholarly debate regarding that which stands behind it. Mercogliano gives the best account available regarding the modern editions, starting with Du Tillet, though a glance at Schulz' introduction to the Vatican ms. would be still probably worthwhile. Mercogliano's tour through the labyrinthine scholarship generated by this perplexing document provides an essential basis for using or commenting further on these tituli. A brief third chapter (pp. 39-45) demonstrates again (see already Schulz, Epitome 14-17) that at least one of the sources behind Cod. Vat. 1128 must be the work called Liber singularis regularum and attributed in both the Collatio and the Digest to Ulpian. The fourth chapter, which is the longest (pp. 49-87), deals with the supposition that some form of Gaius' Institutes was a (or even the primary) source behind the Vatican document. Mercogliano largely follows Nelson here, though he presents the case much more fully. In short, we have with this Vatican ms. a work that generally parallels the outline of Gaius' Institutes.5 Beyond this, however, it seems pretty clear that Gaius was not a direct source, and it may well be that even the similar layout is due to both having followed an older juristic school tradition. A very brief (pp. 91-97) fifth chapter deals with several passages which have parallels in Gaius but even nearer links to texts of Ulpian in the Digest. So again, we do not need Gaius as a source. A final, concluding chapter, which too is very brief (pp. 101-105), argues as follows. A book of legal regulae will have demanded a particular style, one different from a text like, e.g., Gaius' Institutes. The necessary style is more bureaucratic, intended to allow quick and easy learning. This was needed because in the Severan period, knowledge of the law had become a kind of "porta d'ingresso" to government offices. Ulpian's legal skill, in any case, opened doors for him. And before his death, in 223, Ulpian can easily have written a legal manual, as Mercogliano puts it (p. 105), "... una trattazione essenziale di diritto privato romano in un latino semplice, preciso e sicuro tecnicamente."

A few comments. Mercogliano inclines to see Ulpian as author of the Liber singularis regularum, the book which then will have been directly epitomized by our fourth-century jurist.6 In taking this stance, he aligns himself with (principally) Nelson.7 However, simultaneously with Mercogliano's book appeared Detlef Liebs' section on the Liber singularis regularum in the Handbuch der Altertumswissenschaften. Liebs, who had in an earlier article pleaded for a Pseudo-Ulpian, writing ca. 211/212, maintains this position.8 So, while Mercogliano has pretty well laid to rest the notion that Gaius may loom large behind the text of the Vatican ms., he will probably not persuade everyone that a book by Ulpian himself is its origin. The problem, of course, is that the arguments all depend on questions of style. Thus, for example, what one person considers the style particular and appropriate to a Liber regularum, another finds to be simply atypical of Ulpian and resultantly proof that he did not compose the work in question. It seems unlikely that there will ever be a consensus universorum on this matter, unless more evidence of some kind appears.

What are we to call this tractate (it will be noticed that I have been trying to avoid giving it a title)? Perhaps Mercogliano is right in choosing Tituli ex corpore Ulpiani, asserting that this is the title least burdened by preconceptions of what the text's origins are. On the other hand, this can hardly have been the title actually used by the original author, and we do otherwise have an attested Liber singularis regularum, some of whose passages appear verbatim also in the Vatican text.9 Here too, consensus will surely be elusive. In particular, those who think that there was not just one original document excerpted by the fourth-century jurist, may even be uneasy with both of these titles.

Let us, then, return to the question of that which ultimately lies behind Cod. Vat. 1128. One point raised by Schulz seems to me still problematic.10 There are several passages from Modestinus' Libri XII pandectarum which are paralleled (in places all but verbatim) in the Vatican text. Schulz presumed that the Vatican text was borrowing from Modestinus. Honoré calls these "striking parallels" (Ulpian 109) but does not offer further explanation. Nelson also takes up these passages very briefly (Überlieferung 83-84), only to say that he does not find the parallels so striking. Now, those convinced by Nelson will not worry further about this. On the other hand, those who do find the passages in question significantly similar will still need to think about who is copying whom. In any case, Mercogliano does not grapple with this problem (having accepted Nelson's position); hence, it still probably deserves further attention, though here too, the various uncertainties involved (in particular the question of the relative chronology of the two works) will probably preclude agreement.11

In the last chapter, as mentioned above, Mercogliano argues for a kind of increasing bureaucratization of the Roman central administration in the late second and early third centuries, which in turn will have given rise to legal handbooks like the here in question. Now, while I would plead for more caution regarding the place of legal expertise as a "porta d'ingresso" to the governmental ranks, the appearance of guidebooks for administrators is, I think, something worth attention. It is just at this moment, for example, that the various books de officio, these produced by jurists, were published.12 One might also think of the Gnomon of the Idiologus, a later second-century administrative guidebook, probably written for the members of the idiologus' staff, in roughly the same vein. As its author asserts, the compactness of presentation is intended as an aid to memory.13 In any case, what looks like the appearance of an administrative handbook literature in the late second and early third centuries deserves further attention.14 I would guess that this does not mirror a thoroughgoing bureaucratization of the administration but indicates, rather, a growing realization that slightly more organization and definition than had previously existed in this realm were perhaps desirable.

In the end, many questions regarding the text preserved by Cod. Vat. 1128 remain open. Nor do I suspect that they will easily be resolved. Nonetheless, this book by Felice Mercogliano greatly facilitates dealing with this document, and will surely be essential to all further discussion of it.


Notes:


1.   The termini depend on CTh 8.16.1 (31 January 320), which the text's author apparently knew, and CTh 3.12.1 (31 March 342), which seems not to have been known to him. This was clarified by F. Schulz, Die Epitome Ulpiani des Codex Vaticanus Reginae 1128 (Bonn 1926) 9. The later date is, obviously, not so strong as the earlier. So T. Honoré, Ulpian (Oxford 1982) 107. D. Liebs, in R. Herzog and P.L. Schmidt (eds.), Handbuch der lateinischen Literatur der Antike. Vierter Band. Die Literatur des Umbruchs. Von der römischen zur christlichen Literatur (117-284 n. Chr.) (Munich 1997) 208 dates the book "um 330."
2.   All this was succinctly laid out by Schulz, Die Epitome 1-10.
3.   For an estimate of the amount remaining, see (e.g.) H.L.W. Nelson, Überlieferung, Aufbau und Stil von Gai Institutiones (Leiden 1981) 84.
4.   There is a good case to be made for dating the predecessor, whatever exactly it was, to the period between 211 and 262. On this, see Nelson, Überlieferung 88-92, who repeats the arguments made earlier by E. Schönbauer, "Tituli ex corpore Ulpiani in neuer Analyse" in Studi in onore di P. de Francisci (Milan 1956) III 303-334, and id., "Die Ergebnisse der Textstufenforschung und ihre Methode" Iura 12 (1961) 145-158, a review of F. Wieacker, Textstufen klassischer Juristen (Göttingen 1960).
5.   For very useful outlines of Gaius and the Vatican text presented in parallel columns, see Nelson, Überlieferung 339-354.
6.   Note also, though, that on p. 26, in dealing with Schulz' argument for a "Zwischenquelle" (between the original Lib. sing. reg. and the fourth-century epitomator), Mercogliano mentions a suggestion made by M. Galdi, L'Epitome nella letteratura latina (Naples 1922), namely, that Ulpian himself perhaps wrote an epitome, in one book, of his own seven-book tractate called Regulae. The idea is not pursued by Mercogliano, and seems anyhow unlikely.
7.   Nelson, Überlieferung 91-92 and more recently, id., "Der Stil eines Kurzlehrbuches. Ulpiani liber singularis regularum" in Der Stilbegriff in den Altertumswissenschaften (Rostock 1993) 81-87.
8.   Liebs, in Handbuch der lateinischen Literatur der Antike 207-208. Note that Liebs is aware of, but obviously not convinced by, Nelson's most recent stance (see above n. 7). Liebs' position was initially set out in his, "Ulpiani Regulae -- Zwei Pseudepigrafa" in G. Wirth (ed.), Romanitas - Christianitas. Untersuchungen zur Geschichte und Literatur der römischen Kaiserzeit. Johannes Straub zum 70. Geburtstag am 18. Oktober 1982 gewidmet (Berlin & New York 1982) 282-287. Cf. also his review of Nelson, Überlieferung in Gnomon 55 (1983) 121. Note further that Liebs' arguments complement, and appeared simultaneously with, those of Honoré, Ulpian 107-111.
9.   For the passages in question, see Schulz, Epitome 15-16. Cf. also Liebs, in Romanitas - Christianitas 283.
10.   Schulz, Epitome 17. This had already been noticed by E. Albertario, "Tituli ex corpore Ulpiani" BIDR 32 (1922) 82ff. = id., Studi di diritto romano (Milan 1937) V 503 ff.
11.   For the date of Modestinus' Lib. XII pand., see now Liebs, in Handbuch der lateinischen Literatur der Antike 199.
12.   On this genre of legal literature, see A. Dell'Oro, I libri de officio nella giurisprudenza romana (Milan 1960).
13.   See P.M. Meyer, Juristische Papyri. Erklärung von Urkunden zur Einführung in die juristische Papyruskunde (Berlin 1920) 316-317.
14.   The two earlier works which might be thought to belong to this genre, do not, I think, fit the bill. I hope soon to have in print an argument against the perception of Frontinus' De aquis as an administrative handbook of the sort here under discussion. See already, though, J. DeLaine, "De aquis suis?: The commentarius of Frontinus" in C. Nicolet (ed.), Les littératures techniques dans l'antiquité romaine. Statut, public et destination, tradition. Entretiens sur l'antiquité classique XLII (Geneva 1996) 117-141. For the more traditional sort of view, see G.B. Conte, Latin Literature. A History (Baltimore 1994) 503, "... a good, concrete treatment of the problems of Rome's water supply..." Nor does Suetonius' De institutione officiorum look to have been anything like these later books. See the perceptive remarks of A. Wallace-Hadrill, Suetonius. The Scholar and his Caesars (London 1983) 75-78.

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