Bryn Mawr Classical Review 2000.09.04
J.M. Rainer, E. Herrmann-Otto, Prolegomena. Corpus der Römischen Rechtsquellen zur Antiken Sklaverei (CRRS) edited by J. Michael Rainer. Stuttgart: Franz Steiner Verlag, 1999. Pp. ix, 74. ISBN 3-515-07487-2.
H. Wieling, Teil I (CRRS): Die Begründung des Sklavenstatus nach Ius Gentium und Ius Civile. Stuttgart: Franz Steiner Verlag, 1999. Pp. xii, 167. ISBN 3-515-07488-0.
Reviewed by Bruce W. Frier, The University of Michigan
Word count: 1618 words
These are the first two volumes of a projected eleven aimed at amassing all the "legal sources" (Rechtsquellen) on Roman slavery.1 The work's plan is given in overview at the end of the Prolegomena (pp. 73-74) and discussed in more detail earlier (pp. 8-19), where it is clear that the volumes will deal chiefly with the slave as the subject and more frequently the object of legal rights. The organization is thus fairly rigidly dogmatic, from the beginning and end of slavery (parts 1-2), through the legal position of the slave in private, criminal, and sacred law (parts 3-6), to assorted subjects such as legal protections for slaves, particular types of slaves, false slaves (the bona fide serviens), and special types of slaves (parts 7-10). Why this material has been parceled out into a series of relatively brief volumes is unclear.
CRRS I can presumably serve as an example of how individual volumes will be organized. The basic subject matter of this volume -- the ways in which a person becomes a slave -- is sketched in a short introductory chapter (pp. 1-30), with the ways divided into those legally associated with the ius gentium (capture in war, birth, and occasionally sale of a free person) and those associated with the ius civile (enslavement by operation of Roman law).2 The remainder of the volume is given over to the eleven main sources. Except for Romano-Syrian texts, each source is quoted in the original language and then translated into a clear and serviceable German, followed by a very brief commentary that for the most part just points the reader back to the pertinent discussion in the introductory chapter. The book concludes with a full index of sources and a rather less adequate index of subject matter.
To be perfectly frank, after reading these two volumes, I have no idea what sort of readers the authors envisage, nor why they present their source material as they do. The Vorwort to the Prolegomena (p. vii-ix) offers the only clue: the intent was "to gather together the Roman legal sources on slavery ordered by subject and provided with a translation and commentary" (p. vii, my translation). Exactly why this was considered desirable is unclear. Not, of course, that there is anything wrong with collecting the legal sources on slavery into a more or less compact corpus; quite to the contrary. It's just that such collections can have numerous very different forms, depending above all on projected readership: say, either typical undergraduates with an interest in legal aspects of slavery, or advanced historians of Roman law, or social historians who are looking to familiarize themselves with legal sources.
My guess is that the work is slanted toward neophytes, but, if so, it is extremely user-unfriendly, for reasons I will explore further below. On the other hand, insofar as more experienced readers of any stripe are concerned, the work has next to nothing to offer to those even passingly familiar with such standard works as W.W. Buckland's The Roman Law of Slavery (Cambridge 1908, and often reprinted). My review copies of CRRS I'll keep on my shelf, I suppose; but I cannot conceive the circumstances that would lead me to consult this dry collection of excerpts in preference to the primary sources. Maybe the translations will be of some limited use; but in fact reliable German versions are far more readily accessible in the published volumes of the Corpus Iuris Civilis: Text und Übersetzung.3
Rechtsquellen are sources that active law-finders (such as judges) can legitimately use in determining law. In our legal system, for instance, Rechtsquellen are the Constitution, statutes, many administrative decrees, prior judicial decisions, and so on, but not newspaper editorials or scholarly writings even though these latter may have considerable indirect influence on legal outcomes. The Romans knew this distinction (e.g., Gaius, Inst. 1.1-7), and it is extremely useful within a living legal system. It is considerably less useful for legal historians, particularly, as with Roman law, where the Rechtsquellen survive highly imperfectly and historians are mainly interested in reconstructing the rules of a dead legal system.
This volume, however, with one exception sticks to the narrow concept of Rechtsquellen. The basic sources for Roman law, from the Institutes of Gaius through to the Novellae of Justinian, are excerpted in very rough chronological order, but, with one exception, no attention whatsoever is paid to literary or subliterary sources that might be relevant in establishing legal rules. The exception is the section devoted to the leges regiae and the Twelve Tables (pp. 31-33), where, bizarrely, the pertinent texts are cited merely according to the standard numeration of FIRA I; no citation is given of their actual source, which, of course, is often literary. For example, XII Tab. 8.14 comes from Gellius, NA 11.18.8; shouldn't readers know this?
And more important, if literary sources are relevant for the Twelve Tables, on what basis are they excluded for other purposes? The text of Gellius just cited states that, in the Twelve Tables, a freeman caught in the act of theft was "adjudged" (addictus) to the victim of the theft. But another well-known text of Gellius (NA 20.1.7) quotes the jurist Sextus Caecilius Africanus to the effect that "addiction" meant he was handed over into slavery (in servitutem tradit). The scheme of CRRS leaves no room for this second text even though it reports a pertinent juristic opinion; by contrast, Gaius' report (Inst. 3.189) is duly present and accounted for. Similarly, Cicero, De Or. 1.182, mentions what had been apud maiores nostros a vexing legal problem: can the citizen of a populus foederatus become a Roman slave? The source is "non-legal," and the dispute goes unnoted. But while sources such as these (and there are many of them) may not be true Rechtsquellen, on what rational basis should they not be esteemed as sources for law?
And even inside the charmed circle of Rechtsquellen, there are major problems. For each excerpted work, fragments are simply quoted in the order of their occurrence, D. 20.3.5 just after D. 11.7.36 and just before D. 18.104.22.168, a monotonous and largely incoherent stream. But look more closely. Each text has its own individual history, largely obscured in the CRRS presentation, which emphasizes periodic stages of legal history over details of legal development. For the most part, sources are presented with no apparatus criticus (the text is usually just appropriated from a single unindicated source), no indication of possible interpolations, no analysis of variance between types of sources, and no discussion of how law changed within broad periods.4 This is legal history drained of its blood. Perhaps in an effort to give the corpse some vitality, CRRS cites a selection of relevant scholarship, but without explaining the substance of scholarly debates.5
Finally, readers need to be warned that this collection of sources is by no means complete. The main sources are here, but many less obvious ones go missing. For example, Tryphoninus, D. 1.5.15, deals with the case of a slavewoman named Arecusa whose owner's will frees her on the condition that she give birth to three (slave) children; she gives birth to one child, and then to triplets. The discussion of Arecusa's case continues in Ulpian, D. 1.5.16, which is omitted. Again, Ulpian, D. 22.214.171.124, deals with the enslavement of a person condemned to capital punishment (a servus poenae); this fragment is included, but fragment 7, on the same subject, is not. And so on. I counted dozens of missing texts, and undoubtedly there are many more. The Basilica, an immensely informative Byzantine commentary on the Justinianic corpus, is ignored completely. Nor (even in a series such as this) is there any discernible effort to integrate law with pertinent literary texts. Thus, at p. 27 on exposure of newborns, the point is made that in classical law exposure does not diminish slavery or patria potestas; reference is to a well known text of Cervidius Scaevola (D. 40.4.29), but not to Suetonius (Gramm. 7, 21) or Pliny the Younger (Ep. 10 65-66), which are arguably more informative.
The sorts of problems I have been describing all interrelate, as becomes clear when one looks at particular sections. As an example, take the pages on the sale of children (pp. 15-17). In classical Roman law, a father could not sell his offspring into slavery nor use them as security for loans. CRRS picks up the really important legal texts (Paul, Sent. 5.1.1, and D. 20.3.5), as well as a number of confirming constitutions; but it misses several others, including especially significant ones from Diocletian (C. 7.16.37; 8.16.1, 6) and Constantine (C.Th. 11.27.2).
The problem, of course, is that CRRS I concerns itself with the outset of slavery, and, when it comes to texts where slavery does not certainly arise, the compilers suffer from tunnel vision. But just as ancient historians have found it difficult to isolate Roman slavery from more general social and economic history, so too the law of slavery is deeply embedded in more general Roman law, with the result that the borders of the subject are far fuzzier than CRRS indicates.
On the whole, therefore, I'd stick with Buckland, along with, at least for beginners, Alan Watson's more impressionistic Roman Slave Law (Baltimore, 1987)--both now out of print, unfortunately, but both also far broader in their vision than this new series. The Prolegomena (p. 43) states that one aim of CRRS is to encourage the revival of systematic handling of Roman slave law. The aim is admirable. But it is difficult, if not impossible, to see how a work like this could have such an effect. Both in its conception and its execution, the entire project is deeply disappointing.
1. The entire of CRRS is, in turn, one Beiheft in the Forschungen zur Antiken Sklaverei, many volumes of which deal usefully with narrower legal issues.
2. This volume's title is misleading; a few sources do deal with the legal "basis" or "justification" (Begründung) for slave status, but most only consider how individuals actually become slaves. More accurate is the title in the original plan: Die Entstehung der Sklaverei.
3. The Corpus is edited and translated by O. Behrends, R. Knütel, B. Kupisch, and H.H. Seiler. Thus far three volumes have appeared, covering Justinian's Institutes and Digest 1-20 (C.F. Müller Verlag; Heidelberg, 1997-1999); they are well worth the hefty price. The CRRS I text and translations for the Institutes and Digest 1-10 are taken from the Corpus.
4. To illustrate, this is a portion of the discussion on servi poenae, persons who become slaves because of criminal conviction (p. 19): "Das Vermögen des Strafsklaven wird eingezogen und fällt an den Fiskus, Texte 59, 109, 264. Er verliert die väterliche Gewalt über seine Kinder, Text 172. Zur Mitgift einer zum Tod verurteilten Frau vgl. Text 110." A fairly typical passage.
5. Again, just to illustrate, on page 9 the ius postliminii is introduced; footnote 25 then catalogues twenty scholarly references (starting "Vgl. dazu Chotard 20 ff.; Karlowa II 115 ff.; Sertorio 107 ff.; Kreller, RE XXII 1, 863 ff.;" and so on), with no indication of content or relative importance. The Prolegomena has a more extended general discussion of secondary literature (pp. 31-43), but without substantial criticism.