Bryn Mawr Classical Review 2012.02.47
Benjamin Kelly, Petitions, Litigation, and Social Control in Roman Egypt. Oxford Studies in Ancient Documents. Oxford; New York: Oxford University Press, 2011. Pp. xix, 427. ISBN 9780199599615. $150.00.
Reviewed by Georgy Kantor, New College, University of Oxford (firstname.lastname@example.org)
Interest in the social history of provincial Roman law and in the reasons for which the provincials decided to resolve their disputes through Roman courts has been steadily growing in the last decade. Kelly’s monograph on the social history of litigation and dispute resolution in early imperial Egypt brings the debate back to its origins in juristic papyrology and is a major contribution to the subject. His main achievement, hard to overestimate, has been to produce, for the first time, a study based not on a small and relatively random sample of legal petitions and court minutes, but on the whole body of the published material: 568 petitions, catalogued in Appendix I, and 227 reports of proceedings, catalogued in Appendix III (Appendix II provides a checklist of petitions which did not involve dispute resolution). For all his prudent admission (p. 332) that the ‘aim of the social historian of ancient law should be typological, not cliometric’ Kelly comes incomparably closer to producing genuine (if rough) statistics than any of his predecessors. Kelly’s approach is informed by wide reading in social theory and anthropology, but he is never in thrall of theoretical approaches from outside the discipline and engages with models based on other pre-modern societies independently and fruitfully.
The first two chapters are introductory, presenting the argument of the book, a very brief sketch of Roman Egypt and a useful discussion of difficulties in using petitions for writing social history, aimed largely at an audience unfamiliar with papyrology. Chapter 3 deals with the organisation of the legal system and its efficiency in achieving its aims. Kelly's statement (qualified by a reference to SB XII 10929) that ‘there was no question of some officials having criminal and others civil jurisdiction’ (p. 82) does not fully convince. For Roman law the key distinction was between capital and non-capital (rather than criminal and civil) cases, and there is nothing to show that jurisdiction in capital cases was not restricted. Furthermore, we need to distinguish more clearly between jurisdiction and adjudication. The prefect still had the former in the cases he habitually delegated. None of this, however, vitiates the vivid picture of a chaotic way in which judicial hierarchy worked (pp. 79–86), which is what mattered for a common litigant. All-inclusive prefectural jurisdiction may have even exacerbated that. In other respects, however, the system is shown as more efficient than one could expect. In particular, Kelly demonstrates (pp. 92–4) that initial processing of petitions was normally very rapid, sometimes even within the same day. His opinion of the ‘quality of final decisions’ (p. 112) is high and he makes an interesting assessment of administrative culture behind them. Although Kelly concludes that the manpower of the Roman administration was insufficient and there should have been a high attrition rate of cases going through the system, this is mostly based on general considerations. One wonders, on the basis of his own data, whether Roman justice was not more efficient than he allows within its own terms of reference. Kelly’s definition of its aims, ‘to bring an end to disputes or to punish wrongs through an adjudicative act’, in common with ‘most legal systems’ (p. 75), takes too much for granted.
It is noteworthy that only one petition out of 568 (P.Coll.Youtie II 66) is addressed to an emperor (p. 79).1 This seems to reflect a wider pattern: of a dozen epigraphic petitions to emperors in the principate, an overwhelming majority come from communities, whilst out of 118 fifth- to seventh-century papyrus petitions just six are addressed to emperors (ChLA XI 469; P.Cair.Masp. I 67019 verso; III 67283; III 67352 descr.; III 67354; SB XX 14606) and only the first of those is concerned with a private dispute.2 Should we assume that the measures for restricting access of common litigants to the emperor when he was not visiting their province, helped by the unwillingness of judges to allow it, were efficient?3 A seminal study of the backgrounds of petitioners in the rescripts of tetrarchic emperors characterises them as ‘people with enough financial interest to make litigation worthwhile’,4 and these figures suggest that the bar of such interest could be rather high. This would have significant implications for our view of rescripts to private individuals, which formed such an important part of late Roman law-codes and (in Sir Fergus Millar’s influential interpretation) of the average emperor’s workload, and of the ways in which the emperor was ‘screened from needless routine and paperwork’.5
The social profile of petitioners within Egypt, and reasons for their use of legal system, are dealt with in Chapter 4. Kelly demonstrates, perhaps unsurprisingly, but on much wider evidence than available before, that, for all the variety of backgrounds, which he carefully documents, ‘people of the very lowest social strata tended not to petition’ (p. 159), and literacy rate seen in signed petitions, at ca. 50%, is much higher than in census returns (pp. 150–3). His analysis of consequent limitations on the use of legal system as a tool of social control is penetrating. I am less convinced by the suggestion that ethnicity did not matter in approaching the courts. This is shown for the Greeks and Egyptians, but surely the fact that on Kelly’s count only two petitions (Corpus Papyrorum Judaicarum II 151; III 455) were presented by Jews cannot be explained just by the absence of papyri from Alexandria. The theme is picked up in Chapter 6, with an account of petitions by occupational and family groups, for whom litigation provided a context for maintaining group solidarity, and of women’s engagement with the justice system, seen as ‘relatively low’ (p. 229). If petitioning the emperor was as unusual as Kelly’s data suggest, this might explain why, at 14.2%, the percentage of women petitioners is lower than the figures for imperial private rescripts (19% in the early third century, rising to 29–31% in the tetrarchic period).6 Higher class women capable of petitioning the emperor would surely more often come from Kelly’s second ‘ideal type’ of female petitioner, holding property in her own right.
Kelly provides valuable statistics for the types of accusations in petitions and reports of proceedings (p. 163) and shows that the vast majority of them were connected with property or private obligations. By far the most common torts were theft and violence, the latter in more than half of the cases connected with economic disputes, whereas sexual assault, magic, and presumably other capital crimes for which no numbers are provided, were very rare, in some cases almost or wholly absent. Kelly stresses elsewhere (p. 184) the scarcity of our evidence for prefect’s capital jurisdiction, but nonetheless suggests that ‘there was a cultural preference towards using the legal system mainly to deal with the disputes with an economic element’ (p. 163). If Kelly’s suggestion is correct, this may not be as different from comparable societies as he assumes. According to a study of the New England small towns in the colonial period, ‘the rate of crime as we think of it—murder, rape, theft—was surprisingly low; instead most legal actions rose out of debts and such interpersonal matters as slander, trespass, and battery, the results of feuds, animosity, and quarrel’, while in the Russian town of Bezhetsk near Tver between 1700–75 only three murders happened, of which just one was premeditated (for the population of ca. 2,500), though theft, violence and insults in connection with property and personal conflicts remained relatively common.7 This picture is remarkably close to the one which Kelly draws here and in Chapter 8 (where he shows that delation was for the most part limited to cases involving interests of the idios logos or priestly misconduct).
Chapter 5 is devoted to ‘beliefs, ideas, and symbols through which people interpret the state’ (p. 168), as seen through legal documents. It is prefaced by a valuable discussion of the public setting of judicial proceedings and responses to petitions (pp. 170–77). Topics on which Kelly concentrates are the authority of the court and expectations concerning rational ‘rule of law’ and governmental euergetism on one side, and fiscal oppression and self-interest (an important, but little-studied dimension) on the other (he stresses parallels between petitions threatening anachoresis and literary criticisms of Roman rule).
In Chapter 7 Kelly deals with the relationship between resolution of disputes through the legal system and through other means, which is, as he stresses, ‘unlikely to be documented systematically’ (p. 245). Of central importance is his successful demolition of the model of litigation as a ‘last resort’, advanced by D.W. Hobson in an influential article.8 As Kelly demonstrates, the vast majority of petitions for which this can be established were filed within a month of the offence, commonly within the first seven days (pp. 271–2). He proposes instead a much more convincing model of litigation ‘as a tactic to force settlement’ (p. 276). This is followed in Chapter 8 by an account of ‘vexatious and vexing litigation’, used in furtherance of private feuds and often in parallel with violent means. He concludes that such uses of litigation made no contribution to social control and there is ‘no reason to believe that the bringing of a matter before the courts prompted disputing parties to turn their backs on violence’ (p. 326). It is inherently likely, however, that ‘the shadow of the law’ (which, as Kelly shows, could be used quite efficiently as a threat) did sometimes restrain parties from violence, and from the administrative point of view it surely made a difference that a judge got a chance to apply coercion. What Kelly has proved so far is that this often did not work in case of feuds, not that there was no effect at all.
This is a wide-ranging, thought-provoking and clearly written monograph, with implications far beyond its immediate field. No student of related subjects can afford to neglect it.
1. Add a subscriptio of Pius in P.Harr. I 67. Kelly is surely right to treat the Severan apokrimata, issued when the emperors were in Alexandria, as being in a different category to responses sent from Rome.
2. Epigraphic petitions: T. Hauken, Petition and Response: An Epigraphic Study of Petitions to Roman Emperors, 181–249, Bergen 1998, 1–168, and SEG LIII 1517; comparative evidence from the late antique period: J.-L. Fournet and J. Gascou, ‘Liste des pétitions sur papyrus des Ve-VIIe siècles’, in D. Feissel and J. Gascou (eds.), La pétition à Byzance, Paris 2004, 141–96. D. Feissel, ‘Pétitions aux empereurs et formes du rescrit’, ibid., 45–49, in a checklist of 44 fourth- to sixth-century petitions to emperors from non-legal sources, adds three fourth-century texts concerning disputes: P.Ryl. 617 (a complaint about over- taxation); 618; 621 (inheritance disputes).
3. Security of 2,500 denarii for appeals to the emperor in Asia: M. Segre, Iscr. Cos. ED43, ll. 9–10; rescript of Severus Alexander on attempts to hinder appeals to the emperor: Dig. 49.1.25; P.Oxy. XVII 2104; XLIII 3106. A subscriptio of Antoninus Pius was published, among other reasons, because of ‘the eminence of the petitioner’ (P.Harr. I 67, col. II, l. 15, tr. J.E. Powell).
4. S. Corcoran, The Empire of the Tetrarchs: Imperial Pronouncements and Government, AD 284–324, Oxford 2000, 95–122, quotation from p. 113.
5. N. Lewis, ‘Notationes legentis, 36’, BASP 13, 1976, 163.
6. Corcoran, op. cit., 105–6.
7. R. Lingeman, Small Town America: A Narrative History 1620 – The Present, New York 1980, 56; A.B. Kamensky, Povsednevnost’ russkikh gorodskikh obyvatelej, Moscow 2006, 194. I am grateful to Dmitry Godkin for these references.
8. D.W. Hobson, ‘The Impact of Law on Village Life in Roman Egypt’, in B. Halpern and D.W. Hobson (eds.), Law, Politics and Society in the Ancient Mediterranean World, Sheffield 1993, 193–219.