With A Casebook on the Roman Law of Delict, published in 1989,1 Bruce Frier introduced Anglophone students of Roman law to the “case-law” approach developed by Herbert Hausmaninger at the University of Vienna. The present volume, co-authored with Thomas A. J. McGinn, extends this approach to Roman family law and the law of persons more generally. Both volumes have appeared under the auspices of the American Philological Association’s Classical Resources Series; the latter is patterned closely upon the former—so much so that the prefaces and the format of the two works are, mutatis mutandis, identical.
Like Hausmaninger’s own casebooks on Roman contract and property law,2 these volumes provide what amounts to a guided tour of key primary sources bearing upon the subjects they propose to treat. They are not to be confused with the general run of “sourcebooks,” which typically offer a selection of texts in translation that are arranged topically or thematically with a minimum amount of commentary. Neither are they Roman law “textbooks” in the tradition represented, in English, by the magisterial treatments of W. W. Buckland or Barry Nicholas and more recently by the ongoing work of Andrew Borkowski and Paul du Plessis,3 which offer systematic and synthetic accounts of the private law of Rome organized according to the scheme of Gaius’ Institutes.
Insofar as pedagogically a “sourcebook” is designed to be ancillary to the master narrative supplied by a “textbook,” the “casebook” might be said to overturn this relationship, if not to subvert it altogether. Here the primary sources, organized as “cases” and presented in both the original Latin and in translation, are foremost; authoritative guidance is provided mainly through the selection of sources and the order in which they are presented; commentary and analysis is advanced chiefly through a series of discussion questions, supplemented by explanatory material and references, included with each “case.”
In the words of Frier and McGinn (hereafter
In addition to the preface mentioned above (pp. v-x), the book opens with a chronological table of major jurists cited in the cases (xxi) and a brief introduction to Roman family law (3-10). Five chapters survey “Basic Concepts” (11-24), “Marriage” (25-187), “Patria Potestas” (189-319), “Succession” (321-421), and “Tutelage and the Status of Children and Women” (423-429). The volume concludes with an appendix containing brief biographical notes on the jurists, a glossary of technical terms, suggestions for further reading in English, a fuller bibliography on the Roman family, and an index locorum.
The longer chapters are divided into parts and sections, so that e.g. the chapter on patria potestas contains three parts (“Powers,” “Property and Obligations,” “Creation and Termination”) and the third part three sections (“Birth,” “Adrogation and Adoption,” “Emancipation”). Each subdivision typically opens with a brief introductory statement that orients the cases to be covered within the broader legal and social context. Thus the chapter on succession begins with a succinct mini-essay that stresses the momentous economic, emotional, and moral consequences attendant upon the death of a paterfamilias, accounts for the remarkable proportion of juristic literature devoted to the topic, and explains why the volume’s coverage of the topic is necessarily selective (321).
This superstructure supplies the expository framework within which the cases and the primary source citations they contain are arranged. The cases, 235 in all (compared to 171 in Frier [1989]), are intended to be read sequentially, and the work as a whole is extensively and impressively cross-referenced. Cases frequently contain more than one primary source citation; in addition to juristic material, there are a limited number of citations from literary authors, including Cicero, Quintilian, and Tacitus.
The cases themselves encourage close reading of the primary source material and the integration and assimilation of information from case to case. The reader is led by a sequence of questions and comments stemming from the citations to reconstruct the author’s reasoning, to interrogate it for inconsistencies, and to relate it to other evidence. General principles, fundamental concepts, and characteristic habits of thought emerge out of deep engagement in and sustained contact with the material, together with an appreciation of the polyvocal and sometimes equivocal nature of juristic interpretation (“ambiguity and misdirection are common features of law and legal thinking” [10]) and of distinctively Roman social attitudes and practices.
As an example selected very nearly at random, consider Case 8, “The ability to procreate” (29-30). Citing Justinian’s Digest (D. 23.3.39.1, Ulpian in the thirty-third book on the Edict), the case examines whether a woman can validly marry a eunuch ( spado, more generally a sterile or impotent male, as the authors point out on p. 363) and whether the latter may therefore receive a dowry. Ulpian distinguishes those whose infertility has been caused by castration, on one hand, from those whose condition results from unspecified (presumably natural) causes, on the other. The former cannot marry, concludes the jurist without further elaboration, but the latter can.
Ulpian’s reasoning in this instance is elusive, to say the least. F/M describe the distinction as “odd,” but point out that it is operative in other instances as well. Apparently there is some stigma attaching to castration, and not to infertility in general, that raises a bar to marriage. F/M ask: is Ulpian’s objection founded upon morality? “Does Ulpian presume that the eunuch’s castration was deliberate, not accidental? And if deliberate, who bears the blame?”
My own experiences in discussing this and comparable material with undergraduates suggest that the topic of deliberate castration in antiquity offers fodder for wide-ranging, if not always well-focused, discussions about cultural difference. F/M direct their reader instead to a topic of great cross-cultural interest and considerable contemporary political, legal, and social topicality: “in the Roman world, as in many other past and present societies, a strong tradition linked marriage to the procreation of children[…]. Nonetheless, as this Case shows, inability to beget children was not in itself necessarily a bar to marriage.” To what extent does this concession undermine constructions of “traditional” marriages and families? Granting that the sources cannot definitively answer the question one way or other, F/M invite their reader to consider how a proposal to recognize same-sex marriage might fare in the hands of the Roman jurists: “are Roman policies linking marriage and procreation enough to make same-sex marriage impossible?”
While the approach of the cases as a whole in the volume is less hypothetical and speculative than this single instance might suggest, this case does illustrate the extent to which volume as a whole is conceived as an introduction to, and an exercise in, legal reasoning in general as well as Roman family law in particular. The authors suggest that to encounter this law is to encounter social and historical difference in a manner that challenges “the tacit presumptions of modern family life” and problematizes the claim of any particular family formation to be “authentically ‘traditional,'” and they note the extent to which family relationships and the claims of nontraditional families have become subject to legal scrutiny in recent decades (3). At the same time, the reader is warned that the juristic sources “must always be appreciated as a set of primarily legal institutions, not as an anthropological description of actual Roman family life” (11) and that they concern themselves largely with the needs and interests of a landed elite (6).
The great merit of this casebook, like its predecessor, is not only that it makes accessible to a non-specialist audience a collection of sources that are forbidding and largely unknown even to most classicists, but also that it presents avenues for exploring ways in which the discourse of law reacts to, engages with, and problematically reflects and refracts social attitudes and experience. Those who elect to construct a course in Roman law along the lines suggested by F/M have been richly equipped to do so. There are many others who will want to own this book (and its predecessor on delict) and to include it on their syllabi as a resource for legal and social history. Beyond this, insofar as the case-law approach offers a student-centered, inquiry-based pedagogy that focuses upon primary sources (insert additional ed-school buzzwords and catchphrases here), it merits scrutiny as an attractive classroom model.
Notes
1. Bruce W. Frier, A Casebook on the Roman Law of Delict, American Philological Association Classical Resources Series no. 2 (Atlanta: Scholars Press, 1989).
2. Herbert Hausmaninger, Casebook zum römischen Sachenrecht (1st ed. 1974), 10th ed., with Richard Gamauf (Vienna: Manz Verlag, 2003); idem, Casebook zum römischen Vertragsrecht (1st ed. 1978), 6th ed. (Vienna: Manz Verlag, 2002).
3. W. W. Buckland, A Text-Book of Roman Law from Augustus to Justinian, 3rd ed., rev. Peter Stein (Cambridge, UK: Cambridge University Press, 1963). Barry Nicholas, An Introduction to Roman Law (Oxford: Clarendon Press, 1962). Andrew Borkowski, Textbook on Roman Law, 2nd ed. (London: Blackstone Press, 1997). I have not yet seen the third edition of this work, co-authored with Paul du Plessis, forthcoming from Oxford University Press.