Bryn Mawr Classical Review 2011.02.32
Serena Connolly, Lives behind the Laws: The World of the Codex Hermogenianus. Bloomington/Indianapolis: Indiana University Press, 2010. Pp. xxiv, 270. ISBN 9780253221476. $24.95 (pb).
Reviewed by Noel Lenski, University of Colorado, Boulder (email@example.com)
Between 293 and 324, a bureaucrat in Diocletian's court named Hermogenian produced a Codex in sixteen books containing around 970 imperial rescripts, most of them issued in the period when he was serving as magister libellorum in the East during the years 293-294. These were later excerpted and redeployed in various late imperial collections including the so-called Fragmenta Vaticana, the Consultatio veteris cuiusdam iurisconsulti, and above all the Codex Justinianus. Serena Connolly has made this collection of rescripts, the longest of its kind to survive from the Greco-Roman world, the focus of this extremely valuable book. Using a formidable knowledge of contemporary legal theory and a methodical examination of the every detail of these fascinating texts, she has been able to draw important new conclusions that will change the way we think about the system of petition and response.
Connolly begins with a sweeping introduction that covers the history of petitions beginning with ancient Mesopotamia, continuing through Pharaonic and Ptolemaic Egypt, outlining briefly the development of the Roman system, continuing through the Latin and Byzantine Middle Ages, and reaching up to the present. This gives the reader sufficient perspective to contextualize what lies ahead, for Connolly in no way claims that the Roman government was unique for having a system of petition and response but only that the abundant and circumstantial evidence of the Codex Hermogenianus (CH) affords a uniquely full understanding of such a system among pre-modern societies. Chapter 1, "Seeking Justice in the Roman World," lays out the method for petitioning. In order to explain the protocols involved, Connolly turns to a long third-century inscription from the Thracian city of Skaptopara which records a petition to Gordian III against the abusive requisitioning of food and lodging by soldiers and officials.1 This was a rampant problem throughout Roman history and generated numerous petitions,2 but the Skaptopara inscription is particularly useful because it preserves all the pieces of the original dossier: 1) a protocol recording the greeting, authentication, and delivery, in Latin 2) the petition itself, including exordium, narratio and preces, in Greek 3) an accompanying speech delivered by the petition's bearer, a soldier named Aurelius Pyrrus, in Greek; 4) and the subscription of Gordian III, in Latin. The Skaptopara text offers an especially detailed understanding of the original length and complexity of a petition and response,3 therefore it also provides some idea of the amount of information that has been lost from the CH texts in the process of editing and transmission. Together with papyri and other sources, it also affords some idea of the process that Pyrrus and others followed in submitting their petitions, retrieving the responses from public bulletin boards, and then transporting this material home again. Connolly's description is vivid and detailed, making the reader feel invested in this (fundamentally bureaucratic) process.
The second chapter, "The Rescript System," describes the process of producing responses as it was managed on a daily basis. Connolly opens by outlining the history of the CH, then turns to the rescripts and charts in tabular form the locations at which they were written or posted.4 Using this information, she is able to recreate Diocletian's itinerary for the period and to show that the imperial scrinium traveled an astonishing 2,500 miles in the two years during which it produced these texts. Connolly's careful reconstruction of this system allows her to conclude - very persuasively - that the emperor himself did not answer most of these petitions personally, nor even did his magister libellorum. Instead most were written by a staff of more than thirty scriniarii, leading Connolly to question the widely accepted theory of Fergus Millar that emperors alone composed or at least approved such responses, as well as the hypothesis of Tony Honoré that a prosopography of top legal officials can be constructed based on distinctive peculiarities of style. Connolly's palingenesia allows her to show further that there were seasonal shifts in productivity, with the December witnessing the heaviest rate, a fact she relates to attempts to complete business before the year's end, but which may just as well arise from the relative lack of travel in the deep winter months.
The third chapter, “The Rescript System in Context,” uses quantitative methods to produce an aggregate picture of the petitioners. These Connolly breaks into five groups: male citizens, female citizens, male and female slaves, and soldiers. She argues that most of these were united by shared status in a category she terms "the middling sort," an awkward but comprehensible expression that is central to her understanding of the relationship between petitioner and emperor. Nevertheless, she is able to show that less privileged groups had access to the system as well. Petitions from those claimed into slavery, for example, constitute around six percent of the total, which approaches their likely representation in the aggregate population. Nor were women excluded, for their petitions constitute twenty six percent of the total pool. While this was surely not commensurate with their overall demographic representation, it is significant enough to indicate an absence of widespread prejudice against their petitions. Connolly thus argues that legal principles rather than status were decisive in determining whether a petition received a response and was in turn published in the CH - two different things, as she makes clear. This helps explain why petitions from soldiers - who were surely among the most privileged of the "middling sort" - appear in only one percent of the CH’s rescripts. The chapter closes by examining subsets of rescripts from the cities of Sirmium,5 Heraclea, Byzantium, and Nicomedia and is able to show that these reflect the local culture of petitioners, for petitioners with Greek names increase the further one moves eastward. This confirms Connolly's contention that most petitions were submitted by locals as the emperor passed through their territory.
Chapter four, "Using the System", moves from quantitative to analytical methods. Rather than yielding sweeping conclusions like those discussed earlier, this approach tends to show the kaleidoscopic variety of problems presented by petitioners. Here Connolly does a good job of pulling the various shards of information into a coherent picture by organizing her discussion using the theory of Patricia Ewick and Susan Silbey that modern Americans approach the law by: 1) aligning themselves with it, 2) putting themselves before it, or 3) acting against it. In an otherwise excellent book, this chapter is somewhat disappointing because of less than crisp readings of the rescripts. In fairness to Connolly, the phrasing of these texts is painfully terse, their periods convoluted, and their lexicon challenging. This means that even tiny errors can mar the broader understanding of a given text. To take just three examples of how this occurs, at p. 123 regarding CJ 7.16.17, Connolly mistakenly construes "eundem" with "quaestionem" and thus misses the fact that this pronoun refers to a third party whom the rescript permits simultaneously to claim a woman's two brothers as his slaves while not bringing an action against her freedom. She, the plaintiff, had thought that this man's acknowledgement of her own freeborn status presumed his recognition of that of her brothers, but she failed to understand that the brothers could have undergone capitis deminutio) in subsequent years, an interpretation at variance with Connolly's. At p. 128 regarding CJ 7.14.4, the participle "distractum" is rendered "torn away" rather than "sold," its usual meaning in legal texts. Connolly thus does not see that the victim of the Palmyrene attack discussed in the text had not only been captured but also sold away (one would guess to Saracens), which explains the relevance of postliminium, that so bothers Connolly, to the case. Finally, at pp. 114-7 in her discussion of a long rescript (CJ 2.19.9 + 2.20.6 + 2.31.2 + 4.44.8), imprecision results in a less productive reading than might be desired. The petitioner (Aurelia Evodia) is trying to recover an estate she had owned that was sold by her son on her authority. The scriniarius makes it clear that she has brought actions which she simply cannot prove, for intimidation (metus) and fraud (dolus malus). If she wants the property back, the scriniarius advises, she might pursue a restitutio in integrum, since her son was underage, but the scriniarius also remonstrates with Evodia for simply souring on the deal because the boy got a lower price than she wanted. By Connolly's reading it is the son's property rather than the mother's, and the intimidation and fraud were real rather than a mere pretext of the mother. Yet the rescript says plainly that the estate belonged to the petitioner (fundum tuum), and the discussion of iactationibus tantum vel contestationibus at the beginning prove that the scriniarius felt the charges of intimidation and fraud were baseless. Connolly thus misses the way the scriniarius coaxes his petitioner into a more realistic and legally defensible approach to the suit even while not upbraiding her for overreaching.6
The final chapter discusses "The Emperor and his Petitioners" in order to show how the system of rescripts was used to advertise the regal diligence and legal authority of the throne. Connolly brings in recent work by Peter Brown to argue that all of the petitioners were united around the quality of vulnerability: they were "poor" in the sense of “needy” of support from the emperor. By responding to them, the emperor was able to project himself as a font of beneficent justice and thus to augment his power vis à vis his subjects. Here again, Connolly's work represents a step forward from old orthodoxies, which had argued that petitions were aimed primarily at disseminating new laws or enforcing existing ones at the provincial level. While Connolly acknowledges both functions, she points out that the system was relatively inefficient at realizing these goals but went a long way toward generating goodwill and harmony among the masses.
Lives behind the Laws joins a broader spectrum of recent work that is drawing into question the so-called Millar thesis that the Roman government achieved legal progress almost exclusively by reacting or responding to the requests of its subjects. While not denying the central importance of petition and response, Connolly – and the others – are beginning to show that petition and response was not generally a method of legislating and that other methods were used which do show occasional but unmistakable initiative on the part of the imperial court.7 This is truly a fine book, as readable and engaging as it is insightful. At its low price, it should surely be on the shelves of every Roman social and legal historian.
1. The chapter is supplemented by Appendix 1, which helpfully reprints the inscription following the edition of K. Hallof, "Die Inschrift von Skaptopara. Neue Dokumente und Neue Lesungen," Chiron 24 (1994) 405-41 and offers an English translation.
2. E.g. OGIS 519; cf. SEG XLVI 1620 = AE (1996) 1414.
3. Connolly might also have included discussion of D. Feissel, “Un rescrit de Justinien découvert à Didymes (1er avil 533),” Chiron 14 (2004) 285-65, which adds new details about the transmission and recording of rescripts.
4. This subject is examined in considerable detail in Appendix 2, a tour de force of careful scholarship.
5. At p. 85 Connolly asserts that Sirmium was not the capital of the province of Pannonia Inferior without examining the question of when Diocletian divided this province and actually made Sirmium capital of the new Pannonia II, cf. J. Fitz, L’administration des provinces pannoniennes sous le bas-empire romain (Brussels, 1983) 11-19.
6. I would recommend further corrections at p. 106, CJ 4.25.4, "ex contractibus eius", best translated, "from his (i.e. magistri navis) contracts"; p. 112, CJ 4.2.10, "periculum vini mutati," properly "the risk of the wine spoiling"; at p. 125, CJ 7.16.13, "si vero" best rendered adversatively, "but if"; p. 127-8, CJ 3.32.4, "postliminio reverso", surely "for a person (dat.) having returned through postliminium"; p. 130, CJ 1.18.9, "a vobis velut a liberis", should be understood to mean that Gaius and Anthemius had borrowed money not from "an unnamed party" but from Samus himself, who believed them to be free; p. 132, CJ 7.16.38, "rei publicae nomine," must be "in the name of the municipality", i.e. Philoserapis was a servus publicus.
7. Here in addition to the studies Connolly cites by Corcoran and Peachin, one could add the excellent work of S. Schmidt-Hofner, Reagieren und Gestalten. Der Regierungsstil des spätrömischen Kaisers am Beispiel der Gesetzgebung Valentenians I (Munich, 2008) and soon J.N. Dillon, The Justice of Constantine the Great (Ann Arbor, forthcoming).