Bryn Mawr Classical Review

BMCR 2019.09.08 on the BMCR blog

Bryn Mawr Classical Review 2019.09.08

Dennis P. Kehoe, Thomas A. J. McGinn (ed.), Ancient Law, Ancient Society.   Ann Arbor:  University of Michigan Press, 2017.  Pp. vi, 216.  ISBN 9780472130436.  $70.00.  ISBN 9780472123025.  ebook.  


Reviewed by David M. Ratzan, New York University (david.ratzan@nyu.edu)

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[Authors and titles are listed at the end of the review.]

The editors and the University of Michigan Press have produced a neatly curated collection of essays in honor of Bruce Frier, now professor emeritus at the University of Michigan. The volume is organized chronologically, opening with a trio of essays on problems in Greek (mostly Athenian) law and society, followed by four chapters on law and justice in the Roman empire, and then a final chapter on the age of Justinian. In his afterword, Clifford Ando provides a thoughtful résumé of the contents as seen in the light of Frier’s work. That all but one of the contributors to this high-quality collection were, in one way or another, Frier’s students at Michigan is in and of itself a tribute to his career.

Beyond a broad engagement with Greek and Roman law and society, there is no overarching theme or problem connecting the individual contributions, each of which is followed by its own bibliography. Also, as is often the case with Festschriften, several contributions are in fact focused parts of larger projects (as noted by the authors). Indeed, several chapters are profitably read in connection with their companion publications elsewhere (e.g., those of Lanni, Kehoe, and McGinn). Interestingly, only McGinn explores a problem central to Frier’s own work. Otherwise, the most direct and sustained engagement with the honorand’s intellectual achievement comes at the end, with Ando’s encomiastic envoi. That said, there is a legacy that unites the essays: Frier’s interest in the application of modern theoretical models, particularly those deriving from anthropology, sociology, economics, political theory, and contemporary legal studies, to the study of ancient law. Indeed, the volume is something of a showcase for the variety of approaches now current in the landscape of ancient legal studies.

Economic analysis is particularly prominent in this collection, beginning with the first chapter by Adriaan Lanni. In her essay on the problem of collective sanctions in Athenian law, she seeks to open up an interpretive space between what she calls “cultural” approaches, which tend to see collective punishment through the Greek concept of pollution, and “functionalist” approaches, largely drawn from the field of law and economics and which attempt to understand the phenomenon as a rational response to the practical problems of deterrence or compensation (for example, one may hold a group liable in order to encourage self-policing). In the end, she argues cogently for a deeply historicized functionalism, rooting the sparing and strategic deployment of collective sanctions at Athens firmly in the political anxieties specific to its democratic culture and the practical limitations of its legal system.

Dennis Kehoe (Chapter 6) draws on a related body of theory with the aim of rehabilitating the Roman law contract of mandate as an economically significant institution. Mandate appears to us a distinctly odd contract, since it requires one party (the mandatarius) to obligate himself to another (the mandator) to perform a service both free of charge and solely in the mandator’s interest. Neoclassical contract theory, with its emphasis on the centrality of bargain, would not even see such a legal institution as a contract, given its lack of reciprocity (e.g., the increasingly outdated doctrine of consideration). Its apparent economic inefficiency would seem to explain why mandate, of the four consensual contracts to emerge in the second century BCE (i.e., emptio venditio [sale], locatio conductio [hire], societas [partnership], and mandatum), has garnered the least attention in recent studies, figuring most prominently in discussions of the social embeddedness of the Roman economy—an example of the triumph of amicitia and status over contract.1 Kehoe’s point of departure, however, is the well-defined set of complex economic transactions that seem routinely to have been structured as mandates, including loans, sureties, and real estate purchases. It is a commonplace that mandate did not establish true legal agency, since the mandatarius could not create a legal obligation between the principal (the mandator) and a third party; yet Kehoe seeks to demonstrate precisely how and why this contract, whatever its origins and ideological foundations, evolved into one of effective agency between free persons in a world of relational contracting. The bulk of the chapter is thus devoted to an illuminating discussion of how and why mandate was strategically deployed by a specific set of economic actors in the Roman world to accommodate complex models of agency, and how the jurists responded over time to the pushing of that legal envelope.

Michael Lease’s essay on the social and economic calculations immanent in classical Greek marriage strategies (Chapter 2) touches on law only indirectly. However, his mode of analysis has much in common with that of Lanni and Kehoe. He aims to demonstrate that embeddedness is a two-way street, with marriage serving as a case study in the dynamic intertwining of the social and the economic. It is hardly a shocking discovery that Greeks, and particularly aristocratic or wealthy ones, married for money, or that status was an important factor in élite marriage alliances. Lease’s contribution, however, is in his careful mapping of the strategic accumulation, investment, exchange, and conversion of social and economic capital in ancient Greece through the institutional framework of marriage. He concludes that “consumptive expenditures with seemingly no productive use” (e.g., sponsoring an Olympic chariot) “could be transformed into financial capital” in the form of a large dowry, and thus “open up otherwise inaccessible and potentially more lucrative opportunities for economic gain that traditionally ‘productive’ activity in the market [e.g., banking or trading] could not” (44). Gary Becker, the pioneer of the formal economic modelling of the modern American family, would have found much grist for his mill in Lease’s economic interpretation of the ancient Greek “marriage market.”2

T. A. J. McGinn’s essay (Chapter 7) represents a methodological shift from the economic analysis of legal institutions (i.e., law and economic approaches) to a law-and-society investigation of the basic political economy of Roman law. He revisits a fundamental question: was Roman law an élite parlor game of indifferent, if elegant, casuistry, or was it a practical institution that responded to social and economic problems, and if so, whose problems and how? To these questions, McGinn adds “why?,” as he explores whose interests the Roman jurists served, and for what reasons. After adumbrating the possible theoretical positions and the real limitations of our sources to answer such questions, he finds that “Roman private law is surprisingly evenhanded, especially given the mix of interests it accommodated” (148), and further that “the consumers of Roman private law appear to have been members of what we might call describe as the lower levels of the elite and the upper reaches of the subelite” (158). Roman law was not, therefore, an instrument of class warfare or social engineering; on the contrary, in McGinn’s vision it is best understood as an institutional expression of a Roman imperial ideology of noblesse oblige. For those who work at the sharp end of the Roman administrative and judicial spear in the provinces, where in practice we often find the Romans meeting the lower levels of the élite and the upper reaches of the subélite, McGinn’s essay should hold great interest. This chapter is a particularly fitting tribute to Frier, since one of his great achievements was to show how the (admittedly overstated) fork with which this paragraph begins is a fundamentally false one: his work reveals the vital ways in which Roman law was the complex product of the dialectic between a sophisticated legal method and social practice.

In the volume’s most traditionally “legal” essay on Roman law, Cynthia Bannon (Chapter 4) unpacks the meaning of a mysterious ius proprium in an imperial constitution of Marcus Aurelius and Lucius Verus (Dig. 8.3.17) meant to settle a dispute over the apportionment of water for irrigation from a public river. Drawing on her earlier work in Gardens and Neighbors, she argues that the interpretation of this ius proprium as some sort of unparalleled Roman law property right or servitude is impossible: public rivers in the second century were open to all under Roman law, and so there can be no question of property rights or servitudes.3 Instead, she finds here the validation, if not reception, by Roman jurists of a provincial legal and economic practice essentially foreign to Roman law. For Bannon, this rescript thus reveals the exploitation of natural resources as a locus of “Romanization,” or a productive point of mediation between local cultural practice and Roman imperialism. An interest in the interplay between provincial and Roman law has itself a long history: 19th- and early 20th-century scholars typically saw such influence as evidence of “vulgarization” and “decline” in Roman law from some classical ideal. More recently it has been interpreted as part of an inherent dynamic of negotiation in the multivalent project of Roman imperial rule. While Bannon’s analysis of the instant ius proprium is convincing, her framing of “Romanization” here comes off as somewhat underdeveloped for such a complex and controverted phenomenon.4

David Phillips in Chapter 3 offers an essay, like Bannon’s, grounded in careful legal analysis. He argues that an implicit doctrine of the assumption of risk underlies and unites the various exceptions listed in Draco’s homicide law (i.e., the unintentional killing of highway robbers, combatants, adulterers, etc.). This proposition Phillips argues in short order before turning to several Athenian rhetorical and forensic texts. Through these texts, he shows how this doctrine was complicated in application and undermined over time by countervailing notions of contributory negligence and proportional response. This interesting discussion would have benefited from a formal conclusion that drew together its various threads and contextualized the core insights in a wider framework, perhaps particularly the growing body of work on the concept of, and strategies for dealing with, risk in the ancient world.

Lauren Caldwell’s essay (Chapter 5) on justice in Aelian’s work stands out for not treating any legal institution at all. Drawing on recent theoretical approaches to reading Roman imperial miscellanies, she interprets Aelian’s Varia Historia 1.31-34 and 2.14 as forming a sort of mini-Königsspeigel. Although she links the theme of imperial paternalism in Aelian to contemporaneous juristic discussions of and developments in patria potestas, any substantive connection between the legal and literary realms of Severan Rome is left unexplored. All in all, her essay is an interesting companion to chapter 9 of Steven Smith’s Man and Animal in Severan Rome.5

The final chapter is a polished gem of refined historical analysis sifted from the rich and complicated deposits of Justinian’s Codex. Charles Pazdernik, the only contributor who was not Frier’s student, but a colleague and collaborator (along with Kehoe and McGinn) on Frier’s recent edition of the Codex, reads five fragments of an imperial constitution preserved in the Codex for what they can tell us about the nexus of law, politics and ideology in 533 CE. With this constitution Justinian annulled the Senatus Consultum Claudianum of 52 CE in order to change the status relations created by the marriages of free women married to bound adscripticii. This policy, promulgated with much fanfare, was ill-considered and quickly walked back in the face of élite discontent. But why was this law drafted in the first place and published on November 17, 533? Pazdernick masterfully links its promulgation to Justinian’s politics of libertas, restoration, and order on the eve of the invasion of Africa and the publication of major parts of the Corpus Iuris Civile.

Frier’s ability to combine the technical mastery of a traditional Romanist with new theoretical approaches and a sweeping historical vision makes his brand of scholarship a particularly daunting act for anyone to follow. His students are to be commended for assembling such a worthy collection of essays that pay tribute, severally and together, to what he has taught a generation of historians and lawyers about how to study ancient law and ancient society.

Authors and titles

Introduction. Ancient Law and Ancient Society (Dennis P. Kehoe and Thomas A. J. McGinn)
Chapter 1. Collective Sanctions in Classical Athens (Adriaan Lanni)
Chapter 2. An Economic Perspective on Marriage Alliances in Ancient Greece (Michael Leese)
Chapter 3. Assumption of Risk in Athenian Law (David D. Phillips)
Chapter 4. Rivers, Rights, and “Romanization” (Cynthia J. Bannon)
Chapter 5. Justice in Aelian’s Miscellaneous History (Lauren Caldwell)
Chapter 6. Agency, Roman Law, and Roman Social Values (Dennis P. Kehoe)
Chapter 7. Cui Bono? The True Beneficiaries of Roman Private Law (Thomas A. J. McGinn)
Chapter 8. Libertas and “Mixed Marriages” in Late Antiquity: Law, Labor, and Politics in Justinianic Reform Legislation (Charles Pazdernik)
Afterword. Clifford Ando

Notes:


1.   E.g., Verboven, K. The Economy of Friends. Economic Aspects of Amicitia and Patronage in the Late Republic. Collection Latomus 269. Bruxelles, 2002.
2.   Becker, G. A Treatise on the Family. Enlarged ed. Cambridge, MA, 1991.
3.   Bannon, C. J. Gardens and Neighbors: Private Water Rights in Roman Italy. Ann Arbor, 2009.
4.   For a recent approach to “Romanization” as a way of understanding one of Bannon’s core documents, the lex rivi Hiberiensis, see Johnston, A. C. The Sons of Remus. Cambridge, MA, 2017, pp. 72-80.
5.   S. D. Smith, Man and Animal in Severan Rome: The Literary Imagination of Claudius Aelianus. Cambridge University Press, 2014.

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