Bryn Mawr Classical Review 2012.06.16
Aldo Schiavone, The Invention of Law in the West. (Translated by Jeremy Carden and Antony Shugaar; first published in Italian, 2005). Cambridge, MA; London: Belknap Press of Harvard University Press, 2012. Pp. viii, 624. ISBN 9780674047334. $49.95.
Reviewed by Ari Z. Bryen, University of California, Berkeley (firstname.lastname@example.org)
The volume under review is a translation of Aldo Schiavone’s Ius: L’Invenzione del Diritto in Occidente (2005). It is a big, provocative, important work: an attempt to trace a peculiarly western genealogy of “law” from its origins in archaic Rome through its emergence as a systematic discourse in the Roman Republic and Principate, and to chart a path for law’s transformations from the high-empire through Justinian’s codifications, and indeed into modernity. In so doing, Schiavone attempts to find the “deep structures” of juristic thought, and to place such thought in a richer historical context than is customary in our histories of Roman jurisprudence. The jurists, Schiavone argues, are too often treated as a “fungible” series of individuals who gradually traced the outlines of Roman private law and who provided elegant answers to complex cases by “calculating with their concepts” (in the language of Friedrich Carl von Savigny). Schiavone focuses instead on the origins of juristic thinking, and argues that the history of this style of thinking was in fact the product of deeply contested intellectual and political struggles. The end result of these struggles was an achievement with major repercussions for the subsequent history of the West: the projection, by the jurists, of legal abstractions as a comprehensive ontological schema, capable of subsequent rationalization on the basis of internal principles alone (and thus capable of autopoiesis); and more importantly, through this ontological projection, capable of claiming independence from other competing realms of human interaction (such as politics). This achievement is, for Schiavone, properly called “law” (ius), and its historical genesis is in Rome.
The idea that Roman jurists invented “law” deserves explication, lest Schiavone be suspected as partaking of a crude Eurocentrism or of denying to pre-Roman or non-Roman peoples any form of legal ordering. Schiavone is well aware that other societies have sovereigns who make rules or follow procedures for processing disputes. His aim is genealogical, not evaluative. He describes the procedures that a scholar who proposes to write, for example, a history of Greek, Egyptian, or Maori law, would have to execute to recognize certain behaviors as law; and furthermore explains why such a history needs recourse to certain organizing concepts, unless one were merely to collect pieces of legislation together in an anthology – which is not a history. Such a hypothetical history would involve presenting under a series of organizing concepts the empirical behavior of individuals: translating dung receipts into concepts of “contract,” donkeys and farms into concepts of “property”; translating, in other words, “what they do” into master concepts of “what their law is” – and by so doing, making those master concepts somehow real (that is, claiming that sale is an actual entity which begins in this way and ends in that and activates a series of other concepts in the process – a series of hypostasizations that Felix Cohen famous labeled “Transcendental Nonsense”). 1 Within these headings “what they do” could then be evaluated as sophisticated or inconsistent, developed or developing, depending, e.g., on the degree to which the principles reflected in the contract for transporting dung mirrored those in the contract for hire of donkeys, or whether a generalizable reason might be found for why they did not. It was, for Schiavone, the Roman jurists who invented this method whereby scholars define law by reference to such master concepts which subsume practice within a structure capable of rationalization, and the employment of the jurists’ methods of conceptual analysis distinguishes our hypothetical scholar’s Studies in the Ptolemaic Law of Dung from the much less “legal” Dung and Society in the Hellenistic Age or, heaven forefend, The Politics of Dung in an Egyptian Village.
Schiavone traces the process by which law attained this status to archaic Rome. He argues for a deep “morphological” link between two forms of cosmic ordering in the archaic period: along a vertical axis (fas) which regulates relations between men and gods, and along a horizontal axis (ius) which orders relations between men and other men. This link (ius/fas) is central: by positing a connection between these two forms of ordering, Schiavone gives a plausible explanation of two features of early law: the close-attention to formality and detail, and the system of knowledge (sapientia) that emerges to regulate actions subject to it. It also serves to explain why, early in its history, law (ius) remained conceptually distinct from both ethics and legislation. This system, however, came under pressure during the revolutions following the end of the monarchy, which saw the passage of the XII Tables, an event which brought the oral, apolitical knowledge of the pontifices into conflict with the written, political commands of legislation. There would emerge a tension between ius and lex, but the proto-jurists were nevertheless able to retain some control over the interpretation of leges, providing “the social disciplining of the city” (133) and preventing popular juries from taking over this function.
This process became entangled with a different set of concerns in the Republic – in particular, the development, by elected magistrates (the praetors), of a body of procedures for giving judgment. The tension between ius and iuris dictio, however, was fundamentally productive, leading to the development of a number of core attributes that would characterize later developments: the decoupling of ius/fas and its replacement with ius/aequum, a shift that mapped a transition from a system concerned with form to one concerned with substance. Ideas of bona fides were developed to deal with the emergence of a cosmopolitan society that felt a need to distinguish its mores from a broader “Mediterranean mercantile cunning” (146). The introduction of this new praetorian rationality and the rise of complexity contributed to early attempts, by Q. Mucius Scaevola in particular, to “establish” (constituere) the ius civile – critically, to establish it in genera – by establishing abstract categories and divisions of genus and species that structured broad headings (capita) into which the responsa of previous times were fit. This move by Mucius is, for Schiavone, decisive: the emphasis on writing systematic treatises in which case-law was subsumed into categories began “a new way of conceiving law,” one by “which it would from that time on always be potentially possible to establish a distance between ‘juridical’ regulation and naked acts of will on the part of constituted powers…” (186). The power of the abstractions that structured this revolution were such that they enabled law to emerge as something capable of looking past the “needs, conflicts, power-relationships” particular to a given case, and seeing only abstract relationships of credit, sale, or contract. In this process jurisprudence likewise attained a distinct internal logic. That said, such a system was always in tension with the demands of ethical thought, a tension that would not be resolved – at least formally – until the Severan period.
This system, however, came under pressure in the late Republic, and required rethinking in the Principate. The notional independence of the jurists was challenged initially by Caesar’s revolution (here Schiavone makes much of Servius Sulpicius Rufus’ rather callous letter to Cicero, Ad Fam. 4.5), and again by the centralizing tendencies of the early Principate. The ways in which jurists coped with this transformation were complex. Schiavone explains a number of them by reference to the ways in which Labeo developed his understanding of contracts as a way of coping with the limitation, by the Lex Iulia iudiciaria, of the development of new forms of contractual flexibility. Labeo’s “discovery” of an organizational principle for contract – ultro citroque obligatio – allowed jurists a (nonetheless limited) degree of flexibility in thinking of ways for ius to accommodate relations that were not strictly present in the text of the praetorian edict, and a model for continuing to build law along traditional (that is, Republican) lines, in ways that preserved juristic independence from the encroachments of a princeps who was increasingly a legislator. In so doing, Labeo was able to recuperate a particular historical past and link it to legal developments in an increasingly consolidated world.
Labeo’s path forward, however, would be controversial, and other jurists would prove more tentative. The links to the past would be contested, as would be juristic independence from a princeps. Such a tension is evident from the famous “sources of law” passages in Pomponius (Dig. 18.104.22.168) and Gaius (Inst. 1.2). In an elegant close reading, Schiavone distinguishes the ways in which these jurists understood their practice as being either a condition of ethical imperial governance or subordinated to it, respectively. Gaius’ view ultimately prevailed in the Severan period (in which Schiavone sees only creeping autocracy), a world characterized by a central state in which the princeps legislated at a furious pace and in which there was no need for serious jurisprudence, only bureaucratic functionaries, but which nevertheless needed a legitimizing link (via the jurists) to the past. Ulpian is the clay-footed hero of this period: in spite of his tremendous output, Ulpian’s main success was to claim for ius an ethical status – no longer merely regulating relations between men, but regulating the justice of imperial actions. But the post-Severan world had no use for such legitimation, and could merely misunderstand Ulpian’s project, subsuming his writings within a single code, not as jurisprudence, but as legislation.
These are big ideas, and their consequences should be felt for some time. As with any project of this length and depth, however, there are sources of frustration. Most pressing is that, in spite of Schiavone's attempts to locate the jurists in a richer historical landscape, history here is largely restricted to attributing causal force to large structures: the growth of trade, the persistence of slavery, the rise of autocracy. There is little granularity. This would not be a problem per se but that, on Schiavone’s own evidence, the Roman jurists were not only abstract thinkers: think only of Scaevola’s provincial edict, or that Labeo spent half of his time giving responsa, and the other half in study. The result is a study of law without any attention to the challenges of governance, without municipalization, without a Constitutio Antoniniana – without, one is left feeling, some account of the diversity of challenges and cross-pollinations that having an empire creates for jurisprudence. If the jurists were really able to insulate themselves from such challenges, what then should we make of Sabinus contemplating whether to enforce a stipulation in Greek or in Punic – that is, a situation in which others within a Roman community imitated Roman forms (Dig. 22.214.171.124)? Or Gaius’ consideration of the topic, in which he balances the elements of universality and particularity, insisting that a certain form of the stipulation was limited to Roman citizens, but that others could behave analogously (Inst. 3.92)? As Latour reminds us, it is just as much these kinds of small, frustrating problems as it is broad structural shifts that force legal systems to re-think their boundaries and priorities.2
The above is intended merely as one possible response to a rich, provocative book. The author deserves thanks for tackling such problems in an engaging way. It is a boon that such a book on the Roman jurists has appeared in English, and the press is similarly to be thanked for a well-produced volume. The translation is elegant and engaging. More importantly, given its length, the price is remarkably fair. Scholars of ancient law and western political thought, among others, will benefit much from coming to terms with Schiavone’s arguments.
1. Felix S. Cohen, “Transcendental Nonsense and the Functional Approach,” Columbia Law Review 35 (1935): 809-49.
2. Bruno Latour, The Making of Law: An Ethnography of the Conseil d’État, trans. M. Brilman and A. Pottage (Cambridge/Malden, 2010). For a recent attempt to address the challenges of Roman pluralism, see Clifford Ando, Law, Language, and Empire in the Roman Tradition (Philadelphia, 2011).