CONTENTS
Preface ix-xii, Chapter I: What Can We Know and How Can We Know It? (1-20), Chapter II: Ambitus and the Varieties of Economy. (21-49), Chapter III: Murder (and How to Spot It). (50-78), Chapter IV: Vis: A Plague on the State. (79-119), Chapter V: Criminals Abroad. (120-150), Chapter VII: The Iudicia Publica in Roman State and Society. (151-171), Appendix A: Summary of Cicero’s Cases. (173-177), Appendix B: Published vs. Delivered Speeches. (178-184), Appendix C: Some Nontrials. (185-186), Notes (187-230), Bibliography (231-242), General Index (243-245), Index Locorum (247-249).
Riggsby’s study gives us a twofold look at the Roman criminal courts, focusing first, in a series of preliminary studies (chapters 2-5), on the way the Romans thought about the four crimes of ambitus, murder, vis, and repetundae. His aim in these initial studies is to discover the attitudes of the politically active segment of Roman society by asking what criteria, or “judgment paradigms” Rome’s equivalent of 12 Angry Men were expected—or asked, or induced — to follow in rendering a verdict. The results of these studies are combined in a final synthetic chapter in which he argues that the Roman criminal courts were highly politicized by nature (as opposed, for example, to being politicized for the purely expedient motives of political infighting), that the Romans did not have an abstract understanding of Crime (with a capital ‘C’) and that the quaestiones were not intended to check crime in any meaningful sense.
These are useful results, to say the least; but I think that the book is equally important for presenting the very different ideas the Romans had about the courts, crime, and criminal law in a manner accessible to a general audience and undergraduates.
R. develops his picture mostly from Cicero’s extant forensic speeches (2), with auxiliary evidence brought in from Cicero’s rhetorical works and a variety of juristic and historical sources. Unsurprisingly, the state of our extant evidence means that Cicero dominates the discussion and R.’s title is honest in its limitation to Ciceronian Rome. R. is honest throughout his presentation, straightforwardly confronting the slenderness of our evidence (especially that beyond Cicero) in a first chapter on method. R. investigates only those offenses for which two or more speeches survive in the hope that comparison might prevent matters peculiar to a single case from skewing the general analysis of each offense. One byproduct of this method is that the in Verrem is the only speech for the prosecution R. looks at closely; comparison of the strategies adopted in the in Verrem with those in Cicero’s several surviving defenses on the same charge persuades R. that both prosecution and defense addressed the same basic issues (“there is reason to think they were not simply talking past each other” 4).
Another possible problem can be expressed as a question which cannot be answered in the present state of our knowledge: does R.’s study tell us more about Cicero himself than about Ciceronian Rome? R.’s study is valuable in either case, since his detailed analysis of Cicero’s tactics show with great force that, like Frank Lloyd Wright, the orator brilliantly erects a structure which is uniquely tailored to its setting in each case (for a good example, see R.’s discussion of the pro Caelio, pp. 103-105). To continue the Wright analogy, it is like calling Wright’s practice exemplary of his day without having much knowledge of Sullivan, Pope, Mies and the rest. R. addresses this problem, concluding that (3): “… Cicero’s genius in this respect should not be seen as a matter of unfettered creativity and originality in the Romantic fashion. Rather, it is a matter of being able to articulate and/or exploit broadly held prejudices.” The further problem that Cicero’s published speeches might diverge, for political or other reasons, from what he originally said in court is the subject of R.’s Appendix B, which presents the evidence that the texts we have are substantially the same as the orally delivered versions. Some scholars will probably not be happy about the leaps of faith over the gaps in our knowledge, but R.’s honesty ensures that no one will be lured astray unwittingly, and the explanatory power of his results is frequently very persuasive.
After explaining his method, R. asks two very important questions (5-14): 1) did the Romans take their courts seriously (which he had already treated in part in Rhetorica 15.3 (1997) 235-51), and 2) were criminal trials intended to prosecute offenders against certain well-defined laws or were they just political struggles in the course of invidious élite competition speciously garbed in cloaks of legal contests? So, for example, R. would argue that comic obfuscation in the pro Caelio need not be mere amphigory giving an apparent substance to a contest which in reality would be decided on grounds other than the merits of the case; instead, the obfuscation served a specific tactical purpose within a trial where the merits of the case did count and needed to be disarmed (see 100-105). The Roman court system was not an empty show, and, while Cicero’s tactics veer into (to be blunt) dishonest territory, they also show how seriously he took that system.
As mentioned above, the second through fifth chapters each cover an offense recognized by one of the quaestiones of the late republic, limited to four because of the limitations on our evidence. These four chapters are careful studies of Cicero’s rhetorical strategies in the speeches relevant to the charges under discussion, with a special view to discovering the operative prejudices (or principles, on a positive view) of the jurors in the expectation that they reflect those of élite Roman society as a whole. Each study is preceded by a brief history of the court in question up to Cicero’s time, with a special emphasis on what can be reconstructed of the laws governing the courts. Since the four studies always have the final synthetic discussion in sight, some of the analysis is repetitive, and common threads run through all four chapters. Often, thought provoking interpretations do stand out as excellent contributions to our knowledge of Cicero and the courts. Discussion of a few, for the sake of brevity, follows.
The second chapter on electoral corruption ( ambitus) is the best of the four studies, for R. has usefully imported political economic theories of gift and market exchange as a new coordinate system on which to plot Roman definitions of ambitus (24-27, with references to antecedent studies). If R.’s model is valid, the Roman conception of what constituted bribery (or venality) was governed by distinctions analogous to those found by sociologists in ‘gift-exchange’ economies in the modern world. Romans (especially aristocrats with disposable wealth) could ethically engage in long term, repeated exchange of goods, money, or services, and this formed, as we all know, a part of the bonds of amicitia and patrocinium, whereas ad hoc cash subsidies or ‘market exchanges’ with no precedent relationship between the parties involved were much more likely to be seen as ambitus in an electoral context. To us it seems like a double standard, partly because we tend to see gift exchange as a source of conflict of interest, but this sort of exchange economy is perfectly understandable in the upper class of a society which placed great emphasis on noblesse oblige and honor. It is consistent with what we know about relations among the Roman upper class, going back to Gelzer, and R. has done us a great service in clearly and sensibly applying the model to ambitus, explaining at least some seeming inconsistencies in Cicero’s views on the crime along the way (see esp. 44-45). R. does not argue that Cicero’s ambitus cases are free from sophistries, of course.
In the third chapter, focussing on murder, what I found most thought-provoking was R.’s observation (also made elsewhere in the book) that Cicero repeatedly uses a defensive tactic of ostentatiously assuming the full burden of demonstrating his client’s innocence at the outset (56, 59, 66-67), only to throw the burden of proving the defendant’s guilt onto the prosecution in the course of the speech. It’s a smart tactic, and the ambiguity of the matter in the evident absence of a clearly enunciated principle of ‘innocent until proven guilty’ (or vice versa) is striking. R. interprets Cicero’s comment in the pro Roscio 68: “I would almost say that the jurors must see hands splattered with a father’s blood before they believe so great, so monstrous, and so terrible a crime” probably to mean (64) “the prosecution need not prove that the defendant is guilty, only that this is the better possibility.” This is genuinely interesting, in that the basis for conviction is not in the realm of crisp Aristotelian ‘guilty’ or ‘not guilty’ which is the target in our criminal courts but in a gray zone of fuzzy logic (reflected also in the sophisticated option of guilty/not guilty/not clear open to Roman jurors) akin to the lesser burden in our civil courts. Had we such a system, the O.J. Simpson criminal case might have had the same result with as many as 4 votes of ‘not clear’, and not provoked confusion when compared with the subsequent finding of liability for civil penalties. Legal experts can explain our system and justify the perhaps artificial distinction we must make between ‘not guilty’ and ‘innocent’, but it is useful to be reminded that workable alternatives exist (see R. 14-20).
In the fourth chapter, covering vis, or violence contra rem publicam, as R. defines it (79-80), R. picks up an argument begun in the study of ambitus, noting (39-40) that the jurors in the pro Murena were urged with a straight face to absolve the defendant for the benefit of the res publica : Cicero needed a colleague loyal to the state in anticipation of trouble with Catiline. R. argues that the structure of the speech shows Cicero thought it “his best, but not his only, argument” (40). R. concludes that “A crime against the state is by nature a political crime and thus subject to a political defense”, a way of viewing the situation which takes on added implications in the final chapter with its argument that all crime at Rome was political. Returning to vis, few will be surprised to read that Cicero portrays “individuals of proper political leanings” (read ‘ boni’) as incapable “by definition” (92-3) of being guilty. The trick here is to see that Cicero is not simply playing with definitions to get his client off on a technicality. Rather, he exploits a preexisting expectation among the jurors that the courts exist to serve and protect the state rather than just to punish men whose actions outwardly conform to the technical definition of vis (or ambitus). This line of argument looks directly to the last chapter, to which I now turn.
In the sixth and final chapter, after summarizing the preliminary studies of individual charges, R. combines the results in support of an interesting thesis (157-158): “At Rome there were no crimes that were not political crimes. The courts existed not for the sake of justice in the abstract (which serves no one in particular) but for the good of the Roman people as a whole… The public courts are those where the community protects itself, its property, and its rights. This idea, if not always in the front of the minds of the jurors, is one they can be led to accept. Hence a higher political good may on occasion be used to preempt the issue of guilt or innocence.” R.’s acknowledgment that trials of “ordinary citizens” did occur (161) shows that the formulation above is too rigid; but such an interpretation, when duly softened, explains the use of naked political expediency and ethical arguments in persuading juries in criminal cases and helps explain why ordinary theft never found its way out of the civil law and into the criminal. This is much better than throwing up our hands and seeing the whole process as hopelessly interested or corrupt. Some readers will not accept the validity of R.’s brief argument for the politicization of charges like falsum and adulterium (158), but a good theory does not have to be universal to be useful, as long as we are careful where we apply it.
At the very end, R. wonders “whether, for the Romans, there was such a thing as “crime”” (163). To judge from his note affixed to this speculation he was led to it by analogy with the Foucaldian notion that “not sex or sexual acts but ‘sexuality’ (an object of discourse and formant of identity) is a localized historical construct” (226 n. 33): i.e., thinking of “crime” categorically is not an inevitable step but just something we do for convenience and ought not be heedlessly projected onto the Romans. It is always good to strip an anachronism from our view of the ancients, and R.’s idea makes a lot of sense even starting from the basics of what we know about Roman society. The class of Romans who wrote the laws and carried out justice naturally thought concretely, in exempla. Sallust is typical when he has Caesar imply ( BC 51.27) that the senatorial motion to execute the Catilinarians without due process is a bad precedent, a malum exemplum. He does not invoke abstract concepts, and it is unsurprising that the Roman criminal courts should be ad hoc concrete responses to actions Romans had seen in the past which endangered the state or its stability (158). In maintaining that the Romans had no notion of “crime” as an abstract category, however, R. can argue only from silence. R.’s search through the surviving sources where he expects to find abstract language used or ideas expressed turns up nothing, and he concludes (170) that “[“crime”] never became a distinctly articulated topic of discourse or area of action.” A second conclusion follows (170): “the courts were not about the ‘repression of crime’.” We should probably expect this in a society which characteristically reacted to precedent and did not think proactively. It makes much more sense to think of the courts as publicly disavowing or invalidating mala exempla rather than as frightening potential wrongdoers with the threat of prosecution.
The book grew out of R.’s Berkeley dissertation and despite careful proofreading it retains traces of dissertationese, some infelicities of style, and a few typos. A short list of minor problems as a subsidium for a second edition (the corrections are self-evident): hypoth|esi (10); “you can and do buy and sell from total strangers” (25); square brackets in reference (48); Latin extract left in text (51); distracting assonance (57: “One interesting twist in the midst of this repetition is this”); missing hyphen in ‘accomplish’ (84); “liteness” (R.’s quotation marks) for levitas — deliberate humor? (88, 132); Rabiro (120, 177); no boldface print in General Index as advertised (243); perfunctory Index Locorum omits ( i.a.) Greek authors as a class.