Bryn Mawr Classical Review 2012.10.22
Olga Tellegen-Couperus (ed.), Law and Religion in the Roman Republic. Mnemosyne supplements. History and archaeology of classical antiquity, 336. Leiden; Boston: Brill, 2011. Pp. 229. ISBN 9789004218505. $136.00.
Reviewed by Roberta Stewart, Dartmouth College (Roberta.L.Stewart@dartmouth.edu)
Table of Contents
Law and Religion in the Roman Republic confronts the theme of the intersection of religious and legal institutions. The editor promises a rich perspective on the problem of law and religion in Rome, on the thinking of the law, on ritual institutions that regulated the activities of the Roman State, on ritual categories within the developed civil law (e.g. the regulation of tombs). The book displays the problem of coherence inherent in a multi- authored, purposefully fragmented approach to a problem, and individual papers raise interesting, at times provocative, issues that deserve a more systematic treatment and argumentation. Nevertheless the book delivers in illustrating the complexity of the problem.
L. ter Beek (“Divine law and the penalty of sacer esto in early Rome”) proposes to distinguish the secular and religious character of Roman law, historically and comparatively by comparing Roman law with other Mediterranean law and then with epigraphic evidence for early law in Italy. Comparison of the Twelve Tables with Exodus and Deuteronomy illustrates the casuistic character of Roman law defining a case and a course of action by contrast with the apodictic quality of the Torah recording “a direct command from God” (15). The code of Hammurabi is casuistic and reflects the king’s formulation of the virtues of “truth” and “correctness” that he receives from the god Shamash (16-17). Comparison reveals the composite nature of Roman law combining the secular and the religious as similar to the law of Ancient Near Eastern peoples, with Israel and Torah as the exception. Ter Beek then makes a brief argument about the religious laws concerning groves in the Roman Lapis Niger and two inscriptions from Spoletium and Luceria, and observes a mitigation of penalties over time and an evolution of penalties as sacer esto becomes a religious penalty for wrongs committed against citizens. The ideas are interesting and deserve more systematic treatment. But it is a useful discussion for the student, while the citation of primary sources will make it useful for the scholar.
In “Law and Divination in the late Roman Republic” F. Santangelo examines how religious and legal experts thought, with a focus on the “epistemological affinity” of Roman law and divination as intellectual discourses. He considers the language of conjecture and informed judgment, whether legal or religious: divinatio and divino signal difficulties of judgment; prudentia and prudens come to define a legal expert (Gaius Inst. 1.2). The topic is cutting edge (cf. Peter Struck’s work on divination); but the provocative contrast of language for conjecture and for expertise needs a fuller argument and comprehensive word studies.
In “The Curiate Law and the Religious Nature of the Power of Roman Magistrates” M. Humm revisits a classic conundrum, the significance of the lex curiata for the authority of elected officials. He attempts to reassess Magdelain’s argument (1968) on the three-step process of empowerment: election, curiate law, and ceremonial investiture. He suggests an historical evolution of the curiate law: the authority of the official “originated in the ‘religious system’ of the city” and the developed procedure “hindered the affirmation of a principle of sovereignty of the people, and the development of a true democracy at Rome” (p. 84). The attempt to recognize continuity and change in the procedures of government is salutary, even if the argument that the curiate law was introduced to validate the authority of officials during the Republic puts aside—without argument—evidence for a regal curiate law. But Humm also argues that the curiate law defined the precise functions of office. He thus undoes a fundamental observation of Magdelain, that no statute defined the powers of office of the regular magistrates (Loi curiate, 10). Three passages are crucial to Humm’s argument: Cicero Leg. Agr. 2.28 shows that the lex curiata “served to define the potestas integral to his magistracy” (p. 67). But Cicero says that the official would not have (habere) potestas (undefined, and probably defined by Rullus’ statute) without the curiate law—a different point. Tac. Ann. 11.22.4 shows that the “law had to define precisely a magistrate’s field of competence [potestas] like the contingent right to appoint quaestors” (p. 67). Tacitus proves that quaestors were mentioned in a curiate law concerning the consuls, not that the curiate law contained a clause permitting the consuls to select the quaestors. Festus p. 276 L. illustrates for Humm the auspices of departure by which “the general was subject to a divine addictio that conferred on him his titles and qualities” (79). Thus, the official got title of office from an electoral assembly; lex curiata defined his potestas, and departure auspices further defined his “qualities” (79). But the passage of Festus, which describes a pre-Republican procedure when Rome shared command of the combined Latin army with the Latin League, uses the language of the Republican provincial assignment, i.e. the separate, ritually defined process of allotment that assigned to each official a job for his term of office. This is a smart piece, even as it provokes fundamental disagreement.
In “Rationalizing Religious Practices: the Pontifical Calendar and the Law” Jörg Rüpke argues that the publication of the calendar in the late fourth century constructed time with profound consequences internally for the emergent patricio-plebeian elite and externally with their neighbors. For the undergraduate, the article offers an evocative description of the calendar and its ceremonies, a brief comparison of Roman, Italic, and Mediterranean time reckoning, and a consideration of the historical significance of the calendar published in 304. Rüpke argues that the lex Hortensia, in equating the votes of plebeian and regular assemblies, subordinated the plebeian assemblies to the strictures on dies comitiales thus regulating and reining in popular assemblies called by tribunes of the plebs. But the scholar will want the full citation of evidence and argument in Rüpke’s book on the calendar (The Roman Calendar from Numa to Constantine, 2011).
In “The Jurisdiction of the Pontiff” J. Hendrik Valgaeren—arguing from a doctoral dissertation that rather oddly and damagingly remains uncited—offers a careful discussion of the publication of the legis actiones in 304, but the repeated assertion that the pontifices supervised litigation until 200 BCE when “they were probably taken over by the praetor” (114) remains undocumented and speculative. Even though Valgaeren argues from authority for his premise (citing co-author Tellegen Couperus 2006, who herself cites Brennan 2000, who makes an argument largely from silence), the function of the pontifices as legal experts—a role ascribed to them in Pomponius’ history of Roman law—is attractive but emerges as very difficult to document. No text before Pomponius—excepting one passage of Cicero (De Leg. 2, 47)—defines the pontifex as one who is necessarily an expert in the law. Instead, the texts list the priesthood among a cluster of attributes defining the public persona of the elite citizen who is asked for legal help.
In “The Longevity of the Fetial College” L. Zollschan offers a richly documented discussion of the roles of the fetials in treaty making and declarations of war and the rituals associated with Jupiter Feretrius. Zollschan identifies the work of the fetials in the oaths that accompanied Roman treaties in the second and first centuries BCE. A chart of datable inscriptions commemorating fetial priests summarizes the data for imperial priesthood and reflects “the rise and fall of the epigraphic habit” rather than any proof of the priesthood’s relative (un)importance (p. 141). Zollschan identifies a temple figured on a denarius in 78 BCE (RRC 385) as that of Jupiter Feretrius and thus inserts his cult within the regular cycle of games at Rome; but the identification must remain speculative, as Zollschan does not consider the Roman predilection to represent non-existent buildings on coins and represent architecture schematically. Her survey of fetial roles in declaring war and monitoring treatment of foreign ambassadors in the period 200-32 BCE has a lacuna: the fetial consultation for declaring war on Philip V in 200. Nevertheless fetial religion emerges as crucial to Roman militarism during the Republic, vibrant throughout Roman history, and Augustus’ revival of the fetials emerges as no real revival. For anyone interested in Roman militarism, priesthood, or Augustus’ religious policies Zollschan’s work offers an important new collation of evidence.
In “Sacred Law and Civil Law” Tellegen-Couperus reprises and develops an idea she has advanced before, that Roman law secularized very late and was developed by the pontifices. She dissects a piece of an argument of John Scheid, that Roman religious writing was not priestly writing but scholarly writing about religious practice.3 Instead, Tellegen-Couperus begins from a rule that allowed piaculum for unwitting religious offense (Varro Lat. 6.30) and the principle of noxal surrender (noxae deditio), in order to argue that civil and pontifical law were two different categories of law even though “they were created by the same persons using the same methods” (164). The correlation between the pontiffs and the development of Roman law is attractive, but Tellegen-Couperus assumes (158-63) that Scaevola Pontifex made the rule and that he made a casuistic rule in the context of a consultation on an immediate legal problem. There is no argument for this. Given the goal to compare the logic of priestly and legal thinking and their evolution, Frier’s argument (1985, cf. 1989) on the evolution of Roman legal thinking in the late second and first century BCE should be consulted.4
In “Control of the Sacred in Roman Law” J. Rives “excavates” (p. 166) the meanings of sacer, sanctus, and religiosus in the Roman legal tradition to reveal “an ongoing attempt by the elite…to exercise control over the category of the sacred in Roman society” (165). He outlines the categories: res sacrae designated sacred space defined and controlled by public authority; res sanctae constituted property “altered by a formal ceremony conducted by a public official” and supervised by the augurs; res religiosae represented a category “marked off by religious scruple” (172-76). Rives then shows how the term sacer/sakros went from a perception of “inherent connection with the divine” (179) to a category controlled by the elite through the political and religious institutions of the state. The development of the jurisdictions of the priesthoods and of ideas of sacred space thus becomes part of the process of Roman state formation.
In “The Immortality of the Soul and Roman Law” J. Tellegen studies the fideicommissum, whereby a testator in his/her will enjoined the heirs to administer his/her funeral, as a window into Roman views on the immortality of the soul. Grave inscriptions and literary evidence show that proper burial, the construction of a monument, and tendance of the grave guaranteed the enduring memory of the deceased and so immortality. Pliny the Younger and two inscriptions purporting to reproduce the will of the deceased show how the will and the fideicommissum regulating burial became part of the burial monument. Finally Tellegen looks at three jurists (Scaevola, Pomponius, Alfenus) who weighed in on the fideicommissum: the jurists define obligations to the fideicommissum in proportion to the amount of inheritance. But Tellegen also reveals the crux of the fideicommissum that relied not on a legal sanction (the testator was dead and could not sue) but the “dutifulness” of the heirs (p. 200). His argument parallels Suzanne Dixon’s study of the lex Voconia that showed Roman fathers similarly relying on the fideicommissum to guarantee generous inheritances for their daughters.5
1. A. Magdelain, Recherches sur l’”Imperium,” la loi Curiate et les auspices d'investiture, Paris, 1968.
2. O. Tellegen-Couperus, “Pontiff, praetor, and iurisdictio in the Roman republic,” Tijdschrift voor Rechtsgeschiedenis 74 (2006) 31-44. T. Corey Brennan., The Praetorship in the Roman Republic, Oxford, 2000.
3. John Scheid, “Oral tradition and written tradition in the formation of sacred law in Rome,” in C. Ando and J. Rüpke, eds., Religion and Law in Classical and Christian Rome, Stuttgart, 2006, 14-33.
4. B.W. Frier., The Rise of the Roman Jurists, Princeton, 1985; A Casebook on the Roman Law of Delict, Atlanta, 1989.
5. S. Dixon, “Breaking the Law to Do the Right Thing,” Adelaide Law Review 9 (1983/85) 519-34.