Bryn Mawr Classical Review 2002.05.28
Kaj Sandberg, Magistrates and Assemblies: a Study of Legislative Practices in Republican Rome, Institutum Romanum Finlandiae. 2001. Pp. v, 213. ISBN 952-5323-01-3.
Reviewed by Randall S. Howarth, Mercyhurst College (firstname.lastname@example.org)
Word count: 1461 words
Sandberg here publishes the culmination of "two academic theses and a couple of published articles" (iii). The purview of this book is straightforwardly set forth in the title. The main parameters of the study are the period from about 367 to 86. These limits represent respectively the threshold of relative source reliability on the one hand and the dramatic legislative innovations sponsored by Sulla on the other. The rationale for the study is the observation by the author (henceforth KS) that "widely held views on Republican legislation are ... incompatible with the testimony of the evidence" (8). The central issue is the respective legislative competences of the tribal and centuriate assemblies and their corresponding magistrates. The propositions under attack are these: that curule magistrates were ordinarily concerned with initiating legislation and that the tribal assembly and the council of plebs were at any time separate entities. KS believes, and this reviewer agrees, that both of these propositions result more from the weight of scholarly conjecture than they do from a close reliance on the evidence.
The main conclusions of the book are these: the evidence for the years 367-86 is overwhelmingly consistent in showing that tribunes and tribunes alone were ordinarily responsible for putting questions of law to a vote, and this vote always took place in the assembly of tribes (105). Evidence cited to the contrary is not evidence at all, but actually conjecture founded on the frequently tentative association of curule magistrates' names with specific pieces of legislation (94-96). KS notes that the actions denoted in the Latin promulgare and rogare are almost exclusively associated with tribunes (97ff.) and cites all relevant examples. Where these actions and their corresponding agents are not specified in the sources, they have been interpolated by scholars making unwarranted conclusions based on weak assumptions of authorship. In any case, KS argues that the authorship of law ought not be conflated with legislative initiative. Apparent exceptions to the rule noted above are shown to be a separate category of initiatives all, of which were put to the assembly of centuries whose competence is limited to elections of curule magistrates, questions of war and peace, and capital trials (94). The respective purviews of these two assemblies, as well as their physical locations, correspond to their geographic relevance; the tribes legislate inside the pomerium on matters relevant to the community and its domestic concerns. The centuries act outside the pomerium on external concerns. References to a supposed concilium plebis, are in fact casual references to the plebeian tribal assembly (110). Finally, the authority of the Tribal assembly continued to expand throughout the Republic, subsuming first that of the Curiate assembly, and was in the process of subsuming that of the Centuriate assembly during the late Republic.
By way of method, KS purports to rescue structural detail from the narrative elaboration in which it is embedded. He is wary of the unconscious retrojection of our sources' contemporaneous reality, a problem with which, of course, all scholars of Roman history before the first century BC must grapple. KS builds the argument on a solid foundation: he lists all known laws from the Republic, the magistrates associated with those laws and the precise relationship of those laws with the names as actually stated in the sources. This last is critical as he aptly demonstrates that much of what we think we know concerning the agency of legislative initiative is founded on the thinnest of assumptions. KS must and does proceed carefully as the assumptions here attacked are at the heart of all conventional analyses of Roman institutions. KS restricts his search to Latin sources because "Greek authors do not provide adequate equivalents to Latin technical terms" (45).
The book is organized in five main chapters and two appendices. Chapters one and two survey the sources generally, their problems, the standard scholarship, and the weaknesses therein (1-40). Chapter three presents the relevant data (41-96). It lists all known laws, relevant technical distinctions, and the individual magistrates associated with their authorship and/or enactment. KS offers some preliminary conclusions here, but the main presentation of argument concerning the years 367-86 follows in chapter four (97-113). Chapter five does several things: it offers some speculation concerning the period preceding 367 (116-118). It establishes the sacred boundary of the city as the boundary delimiting the proveniences of the respective assemblies and eliminates the centuries altogether as a body concerned with civil legislation (119-131). Finally, it develops his thesis of an encroaching plebeian assembly (132-144). This is followed by a brief conclusion wherein all the above is summarized. Appendix I lists all attested rogatores and promulgatores of Roman statutes in Latin sources; this is a remarkably short list, containing only 91 names and 14 anonymous individuals. Appendix II lists all references in Latin literature to the individual laws. This is a much longer list, running to 21 pages. This is followed by a list of abbreviations and concordances, a useful bibliography that runs to 23 pages, and an index of ancient names.
The study is somewhat daring as it attempts to undermine an edifice on top of which is piled a mountain of scholarship. On the other hand, KS is not alone in his conclusions and gives appropriate credit to those scholars who have already doubted the assumptions he here attacks. Most notably, KS frequently cites Mitchell Patricians and Plebeians (1990), whose conclusions intersect his own. (I must mention here that Richard was my thesis advisor--U of Illinois, 1997--and that my own work is in the same area.) On the other hand, KS departs pointedly from Mitchell's radical conclusion, that there was no "Struggle of the Orders" (42 n.5; 116 n.2). In what seems a gratuitous attempt at establishing conservative credentials, KS repeats without argument the most conservative tenet of scholarly opinion concerning the Republic: "there is no reason to doubt that the plebeian organization owed its origins to political and social discord [or that it was] ... a revolutionary organization" (114-115). On this method then, KS feels that Mitchell is right on the details but not on the big picture. All of this would hardly be worth mentioning except for KS's earlier promise, mentioned above, to disengage structural detail from narrative elaboration. I can certainly understand KS's reluctance to go all the way with Mitchell -- only a small but growing number do -- but KS's main conclusions stand much better without reference to the assumed dichotomy of the patricians and plebeians.
Nevertheless, KS proceeds to make conclusions derivative of his adopted position on the struggle of the orders at the expense of the evidence he has carefully cultivated: "[The absence of evidence for curule legislative initiative after 367] does not, I think, indicate that they were not entitled to legislate, only that they usually did not" (116). For the period before 367, for which the much more problematic sources more routinely associate consuls with legislation, he posits a transition. After first arguing that the centuries had no relevant authority, he asserts that curule officials originally used the archaic curiate assembly in civil matters. "Admittedly [KS says] this is a mere assumption, but it is the only alternative to the view that the comitia centuriata was used for routine legislation in the Early Republic ..." (135). All of this is without doubt the weakest part of the whole presentation. Curiate authority was, according to him, gradually yielded to the revolutionary plebs in their tribes. Successful in that subsumption, the plebeians in their tribes now proceeded to slowly encroach on the purview of the centuries during the period 367-86. In illustration of this latter process, KS lists relevant examples where the tribes occasionally acted in matters of war and extensions of imperium (137-141). There was a thread of continuity throughout in that the division of competence existed as a function of the pomerium. That is, matters relevant to war were always considered outside that boundary, even when the tribes were the acting assembly (141).
In conclusion, Kaj Sandberg has done a service by comprehensively presenting and analyzing the Latin evidence for who presents what laws to which assembly when. I think however that the corollary argument in the Greek sources should have been made, the vagueness of Greek technical equivalents notwithstanding. I am obviously disappointed by what KS does not do, namely to more confidently assume that his conclusions for the period for which there is good evidence are useful to gainsay contrary but substantially weaker evidence for the earlier period. But that in no way takes away from what he has accomplished, namely, that he has systematically demolished the assumption that it was normal practice in the Roman Republic for curule officials to initiate civil legislation. Only the most stubborn will maintain to the contrary.