Bryn Mawr Classical Review 2000.04.03
David Johnston, Roman Law in Context. Cambridge: Cambridge University Press, 1999. Pp. ix, 153. ISBN 0-521-63046-0 (hb). $54.95 (hb). ISBN 0-521-63961-1 (pb). $19.95 (pb).
Reviewed by James T. Chlup, University of Durham (J.T.Chlup@durham.ac.uk)
Word count: 2126 words
The last year has been good to those of us interested in Roman law, with three volumes coming from Cambridge University Press alone. The first two were Peter Stein's Roman Law in European History and Jill Harries' Law and Empire in Late Antiquity. The third is this book from David Johnston (hereafter J.). Each volume is remarkably different in terms of its approach to the law of ancient Rome, which says something about the fertile nature of this branch of classical studies. I confess that I was at first more intrigued by this work, trying to work out what exactly the author means by Roman law 'in context'. Fortunately, the meaning is spelt out for us right away in the book's preface: 'this book attempts to look at Roman law in its social and economic context'. J.'s starting point is John Crook's Law and Life of Rome (London, 1967), a similar treatment of the law published over thirty years before, although J. claims to be examining the issue from the other side (ix). The author provides a justification for returning to this topic: 'in the last thirty years there have been extraordinary finds of new evidence, especially inscriptions, and there have been remarkable developments in Roman social economic history' (ix). It is a fair argument with the recent important research into Roman society and the Roman economy (including Jean Andreau's Banking and Business in the Roman World [Cambridge, 1999] which was also published in the last year and appears in the same series). Moreover, in a sense J. has been down this path before, as his blurb on his The Roman Law of Trusts (Oxford, 1988) in the bibliography reveals.
Before looking at J's argument, we need to understand the 'context' of this book. It is the latest volume in Cambridge University Press' 'Key Themes in Ancient History' series, which declares its aims as follows: 'to provide readable, informed and original studies of various basic topics, designated in the first instance for students and teachers of Classics and Ancient History, but also for those engaged in related disciplines'. This tells us the general approach that we must take towards this volume: to read it as an exposition of an inquiry that in this case would appeal both to Classicists and those in law (although J. seems to prefer the former over the latter, and a specific subgroup at that: 'the book is aimed at historians rather than lawyers' [ix]). With Roman law, this seems to be a most difficult task to achieve, but to his credit J., in his introduction, works within these boundaries by confessing the limitations of his project (1).
Any person's first taste of Roman law can be very daunting, and the author understands the importance of not throwing the reader into the deep end of Roman legal scholarship, with warnings provided when the author believes the argument may become complicated - on ownership, for example (53). As an aid to the reader, then, and in keeping with the traditions of the series, it contains both a glossary of legal terms (137-39) and a bibliographic essay (140-45) that is both thorough and extremely up-to-date. In the latter I found only one unexpected omission: for the epilogue, I was surprised not to find Olivia Robinson et al., European Legal History (London, 2nd. ed., 1994), which I would have thought would be of use to this book's intended readership. Instead J. cites Stein's volume (which I mention above), which works well with this volume, and Franz Wieacker's A History of Private Law in Europe (Oxford, 1995), which is perhaps a little too advanced for this book's audience. To his credit the author does give a caveat of sorts by introducing it and two other like-minded works as 'rich and fascinating, detailed accounts' (145). The clarity of the writing is excellent and permits the reader to proceed through the text at a reasonable speed, even when the author comes to complicated issues (for example, interpolations [17-21]). Further, the reader has no opportunity to trip himself up over a surfeit of footnotes, an all too familiar and often lamentable habit of Roman legal scholarship. When a fuller discussion is available elsewhere, J. is happy to direct the reader to the relevant work. Likewise, references to ancient legal texts are present but they are controlled nicely to avoid disrupting the book's flow of thought. When introducing legal concepts, J. first employs the term in English, followed by the Latin in parentheses. Finally, as an illustrative tool, J. on occasion points out the differences between Roman and modern (that is, English Common) law (i.e., his comments on divorce  and remedies against neighbours ). These references are useful in highlighting the noticeable difference between the two legal cultures, and they are not used too often so as to disrupt the book's flow of thought.
Now to the book itself. First, there is the structure of the work, which J. divides into three parts: (i) the 'sources' of Roman law (chs. 1 and 2); (ii) the main aspects of the branches of Roman law that come under his topic (chs. 3, 4, and 5) (see below for my view on this selection); and (iii) litigation (ch. 6). In the first section, which covers two chapters, one on sources of law and another on 'sources and methodology', J. rapidly takes the reader through the basic information required from statutes to jurists to codes to Justinianic sources. In the process he covers in only twenty-eight pages what others have taken a book to do. Here he demonstrates his ability to guide the reader through difficult legal problems, in particular interpolation (17-21).
The key to demonstrating the success of the book is how effectively it treats Roman law in its social and economic 'context'. As an initial example, take his section on divorce. J. begins by explaining the legal position of marriage and divorce: 'the Roman notion of marriage was that of a continuing contract entered into by consent; the corollary was that when consent came to an end, so did the marriage' (35). This is then followed by a discussion of divorce's social aspects with the relevant legal points mentioned (36). As a way of varying the argument, sometimes he approaches a topic from the social end first, discussing society first followed by the relevant legal matters, such as his section on tutors (37-40).
With the chapter on 'Property' (53-76), the two strands of the author's investigation come together nicely, for this branch of the law has both a social context (land, for example, where people live), and an economic context (the exploitation of it). Especially noteworthy here is J.'s discussion of neighbours and legal remedies against them, seen as part of the problems of urban life, with Seneca's well-known letter about the disturbance from the bath-house below his residence used an example (71). He then goes through the legal options that Roman law affords (71-76).
The fifth chapter, the final one on the substantive law, 'Commerce' (77-111), is the longest in the volume, as the author explains in his preface: 'partly because of its intrinsic interest and because it (unlike family law) has apparently not yet been much absorbed into the consciousness of historians' (ix). This chapter, I feel, is the strongest, mainly because the greater length means J. has time to dig a little deeper and he has the opportunity of building upon some of the work that he has done previously in this particular area.1 As I stated previously, the book is very thorough given its scope, as this chapter makes clear with sections dealing with varied topics such as types of contracts, the notion of 'sale', lending and borrowing, contracts of service, organisation of business, and insolvency. Yet, despite this increased length and depth, the author is still mindful of his readership, for the chapter begins with a good explanation of the nature of both formal and informal contracts (77-79). With this chapter, J. (just as he does in his article cited above) seeks to demonstrate through the richness of contract law that the Roman economy was more sophisticated than previously believed. As an example, take what he says about sale: 'the emergence of the consensual contract of sale (emptio venditio) was a critical moment in the history of Roman commerce' (79). As Roman law develops, so does the sophistication of the economy, and vice versa. Thus with an assessment such as this, J. shows the vital importance of looking at the law in its social and economic context and, for example, it nicely complements Andreau's recent book, which I mention above.
After reaching the end of J.'s discussion on the substantive law, I could not help but wish that he had gone on to talk about Roman criminal law in some way. Although this would have brought private and public law into the same work, something that is usually avoided, given the author's desire to talk about the social and economical context of the law, this feels like an opportunity missed. Crime and the people who commit crimes have a definite and sizeable impact on society. A discussion of the legal aspects of it would have tied in with some of the issues raised in Wilfried Nippel, Public Order in Ancient Rome (Cambridge, 1995) in the same series as J.'s book, and Andrew Lintott's re-release of his classic Violence in Republican Rome (Oxford, 2nd. ed., 1999).
The book concludes with a chapter on what we call the law in action, 'Litigation' (112-132). Immediately he points out the primary problem here, that litigation is important since having rights is one thing, enforcing them is quite another (112). Again, the social context of the law comes through. Take for example his treatment of 'Representation in court' (129-130). He draws attention to the differences between ancient and modern once again, that it is not so much a simple question of money (as is needed to fight modern day libel cases, for instance), but one of how Roman society operated. With fees for neither advocate nor jurist, the patron-client relationship that was such a powerful feature of Roman culture comes into play, as J. notes: 'litigation meant undertaking social obligations, which might be called upon in the future; it meant entering upon the network of patron and client relationships' (130). It would have been exciting had the author gone further with this point, but the limitations of space obviously directed otherwise.
Finally, there is the epilogue of the book (133-36), where J. rapidly takes the reader through the post-Roman life of Roman law. At first this may seem at odds with a book that seeks to see Roman law through a specific and narrow 'context' (especially as J. defines his temporal span at the outset of the book as 31 BC to AD 235). But as we often see, it is something that legal scholars acknowledge they must do. As another recent example, see Andrew Lintott's final chapter in The Constitution of the Roman Republic (Oxford, 1999). The law of Rome has, in fact, two lives: one firmly entrenched in the Roman world, and another travelling and changing through European history (and where this journey ends is presently up for debate). Scholars identify concentric circles, geographical and temporal, leading out from Rome: the Enlightenment, the rise of the nation state (mainly German), codification, and possibly ending with European Union Law. All Roman legal scholars (J. included) understand this and therefore he seeks to give the reader a glimpse of it. That Roman law should have a post-Roman life may seem strange to a reader first approaching the subject, and J. appreciates this: 'it may seem paradoxical that law developed for the needs of a specific ancient society should have been found sufficiently resilient to serve in societies quite remote and wholly disparate' (136). The author's brevity here is good, for should the reader feel the need to explore this issue further, there is Stein's volume (cited above).
To sum up briefly: J. has produced an attractive volume that effectively balances the needs of the series in which it appears with the author's desire to provide a fresh look at Roman law, even if it is but a preliminary glimpse. A new group can now be exposed to the field without the drawbacks that deter so many. The book will have an obvious audience amongst students of Roman history or law who want or need a basic background in Roman law. Finally, we understand the next step, to carry out a more in-depth investigation of the issue (perhaps one where criminal law has a place). That the author has achieved both these rather opposite results is strong praise for this book.
1. David Johnston, 'Law and Commercial Life of Rome', PCPS 1997, 53-65, although he does not cite this article in his bibliography. Section V of this chapter, 'the organization of business' touches on some of the issues in the paper cited here.