[Authors and titles are listed at the end of the review.]
[The author of the review apologizes for the delay.]
As an area of inquiry, lawmaking in the assemblies of republican Rome has long been shaped by current givens of Roman political, legal, and constitutional history. A top-down approach to lawmaking is encouraged by commentary from aristocrats like Cicero, at the top of Roman society, and the complex legal Latin of surviving public laws. Accordingly, studies of public lawmaking still mostly remain at the procedural level at the expense of the nuances of the process through which all public laws passed, while interest in public laws is generally focused on the regulatory or normative outcome of specific laws. A case in point is the comprehensive selection of papers on public lawmaking and public law in the 2010 conference organized by Jean-Louis Ferrary, published in 2012.1 But lost in the shuffle of language and law-driven research is the enduring question: what did their lawmaking tradition, requiring the participation and approval of the Roman people in a resoundingly open process, and the resulting public laws, mean to the Romans who were so fully engaged for so long? Public lawmaking and public laws were clearly the result of far more than routine partisan political action: any cursory examination suggests deep seated cultural habits and social understandings informing the behavior of Romans on all levels, for over 400 years, during the public process in which law was made.
The present contribution to the topic, Gesetzgebung und politische Kultur in der römischen Republik, ably presents some of the latest perspectives on lawmaking. Edited by Uwe Walter, Gesetzgebung is a collection of papers on the present state of research on the place of public lawmaking and public law in the political system of the Roman Republic. The papers grew out of a 2012 colloquium in Bielefeld, Germany, Gesetzgebung und Gesetze in der späten Republik—noch ein Thema? (“Public Lawmaking and Public Laws in the late Republic—Still an Issue?”), organized by Tassilio Schmitt of Bremen University and Uwe Walter of Bielefeld University. The participants in the colloquium—in addition to the organizers these were Jani Kirov, Detlef Liebs, Jan Timmer, Christoph Lundgreen, Marianne Elster, Wilfried Nippel and Bernhard Linke—were German academics or affiliated with a German university (Kirov is Bulgarian), and a mix of newer, more established and well-known scholars whose approaches to the topic are different with respect to methodology, focus and intent.
The aims of the colloquium were twofold. A first aim was to discuss directions in current research. These include the role of jurists in lawmaking, public laws in relation to other rules and norms, public laws as vehicles of political expression, the hierarchy of public laws, and the public lawmaking in relation to the erosion of political order in Rome. Second, the colloquium allowed Marianne Elster to present current work on public laws of the late Republic that follows her collection of public laws of the middle Republic.2 Publishing most of the papers from the colloquium, Gesetzgebung has largely similar aims.3
In his introduction, Uwe Walter begins by noting that recent research about the Roman republic between 340 and 30 BCE has only marginally examined the mode and the content of lawmaking as well as the laws themselves. Public lawmaking has been secondary to other areas of inquiry, in particular the debate over the character of Rome’s political system; examination of the historical context of Theodor Mommsen’s Römisches Staatsrecht; and the transition from Republic to Empire. With reference to the only two substantive books in the last 50 years on public lawmaking and public laws, Jochen Bleicken’s Lex Publica (1975) and my own Laws of the Roman People (2005), Walter’s most substantive comment is that Bleicken, though helpful, leaves unanswered questions.4 Instead of commentary, Walter cites reviews, then follows with a survey of the individual contributions in the volume.5 He ends with comments on the promise of the effort now underway, led by Jean-Louis Ferrary and Philippe Moreau, to replace the indispensable research tool, Giovanni Rotondi’s Leges Publicae Populi Romani (1912; 1966), with the new Leges Populi Romani ( LEPOR), an online research resource.6 Following his introduction, Walter adds an appendix (pp. 23-26) to expand on an earlier footnote 17, p.14 (misprinted as footnote 16 on p. 23) in which he discusses the more theoretical and philosophical Hellenistic traditions on law seen in Cicero’s writings. Turning to the chapters, I discuss them in the order presented in Gesetzgebung.
Kirov, an interdisciplinary researcher in Roman legal history and modern legal systems of Eastern Europe, begins with an informative critique of the pervasive dismissal by Roman lawyers (Romanists), and Roman legal historians of public lawmaking and public law as a worthwhile topic of inquiry in the broader study of Roman law. With their narrow focus on the language of the law and on juristic writings, they view lawmaking as a small part of legal development. Among the reasons is the tendency of Romanists to overlook the society in which the law operates. I was reminded of the reaction to my 1984 dissertation on lawmaking by a Roman lawyer, who told me somewhat grandly “your interests are not the interests of Roman lawyers.” Kirov rightly concludes that maintaining the blinkered view of lawyers cannot do justice either to our understanding of the Romans’ public law or indeed to Roman law.
Turning in the next paper to Rome’s legal specialists, the well-known Roman legal historian and Roman lawyer Liebs surveys advances in Roman law made by jurists of the middle and late Republic. Placing a welcome emphasis on the real-world concerns of the day, he notes that republican jurists were more than just interpreters, writers and advisors on civil law. They gave opinions providing legal grounds for change or action, mostly in the arena of private law but in a few instances also in that of public law (in the broader sense of law as between citizens and the state). In a useful listing Liebs identifies the legal advances of specific jurists. In effect, he argues, such work by jurists served to help keep the Roman system stable. Though his paper is not a direct reflection on public lawmaking, Liebs observes astutely that of all sources of Roman law, jurist law was closest to public law.
Moving away from the conventional research methods of Roman scholars, Timmer pursues the sociological concept of Konsenssystem (consensus system) to call attention to future avenues of inquiry into the public lawmaking process. Consensus theory, as introduced by Egon Flaig to the continuing debate about the nature of Rome’s political culture, speaks to agreement within Rome’s leadership, not within society as a whole, and builds on his association of popular sovereignty with majority rule and the inherent social imbalance in Rome’s voting assemblies.7 Timmer offers a useful discussion of current consensus theory and its bearing on the dynamic between the Roman people and their political leaders. He concludes by looking at the implications of all this for future avenues of inquiry in the production of law. In keeping with the idea that the Roman people were not a part of maintaining consensus, his suggestions mostly involve e.g. the debate over public law proposals in the Roman senate. Clearly this is not the first or the last word on the topic.
Lundgreen examines on a procedural level the normative constraints on statutes in a state with other formal rules. His paper is conveniently structured by topic, introduced by a section on defining public law from a sociological standpoint. This is followed by discussion on the conflict among statutes, including for comparison discussion of the hierarchy of laws observed in the Federal Republic of Germany; the limitations on public law; the tension between popular sovereignty and the authority of the senate; and modern legal theory. The final section, both prospect and conclusion, notes that the investigation of public law alone is not enough to answer questions regarding Rome’s legal and political system.
In the next paper, Walter offers a close reading of Cicero’s presentation of the land distribution proposal of Servilius Rullus of 63 BCE in his speeches de Lege agraria 2 and 3, to dissuade the people from voting for it. Basing his argument on the speeches, Walter develops the thesis that the techniques of publicly debating such a complex legal text in the late Republic intentionally twisted a proposal into something quite different. He concludes that in the absence of any effective language of debate or public political expression from 63 BCE onwards, the passage of laws in Rome was possible only through violence, or under the direction of those political leaders with singularly granted authority like Pompey as sole consul in 52, the dictator Julius Caesar, and the triumvirs of 43 BCE.
In another text-based contribution, Elster presents a cogent analysis of citizenship laws from the period of the Gracchi to Sulla, 133 BCE to 80 BCE. Drawn from her forthcoming work, the discussion begins with lawmakers known by name, then examines legislative efforts before and consequent on the Social War. Elster includes a list of the ancient sources for each known statute. On the basis of this preview, we can anticipate another useful collection of public laws in her forthcoming catalogue of statutes of the late Republic, which will doubtless become a standard research tool while we wait for the eventual completion of LEPOR.
The volume ends with the most literary of the papers, Schmitt’s sophisticated reading of the historian Tacitus’s representation of Pompey as the ‘maker and breaker of his own laws’ as consul in 52 BCE ( suarum legum idem auctor ac subversor) in Annales 3.25-28. Commencing with a convincing explication of the literary techniques with which Tacitus here (in a depiction of debate in the senate) obliquely compares Augustus to Pompey, Schmitt launches into a much deeper analysis of Pompey’s contemporary reputation as lawmaker in 52 BCE and in later tradition. Dissonant when applied to Pompey, the phrase legum subversor was understood by Tacitus’s contemporaries as a convoluted criticism of the politically erosive lawmaking activity of Augustus and later emperors, who can enact statutes but observe them or not as they will.
As promised, Gesetzgebung showcases new directions and approaches to the study of public lawmaking in Republican Rome. The papers are uniformly informative. The volume also provides an index of the state of research on Roman public lawmaking, albeit a somewhat localized one. It makes for specialized reading, but I would not hesitate to use it in a graduate class, with a demurral. Walter is correct in noting that the availability of such research tools as LEPOR in particular and the compilations of Elster will expand scholarly interest in the study of public laws and lawmaking. That said, the same kinds of information were compiled almost 20 years earlier and formed the basis of the analysis in Laws of the Roman People. The lack of acknowledgment of this fact is regrettable.8
A final observation about method and the future trajectory of research. To understand Roman public lawmaking, a central process in facilitating the development of Roman society, it has to be situated where it belonged, in a Rome- dominated Italian landscape during the Romans’ most vibrant period of state-formation. Computerized databases, which allow for the aggregation and analysis of large amounts of information but which also rely on a priori decisions about what counts as information,9 can provide significant insights into cultural, administrative and legal attitudes that were clearly central to the cohesion and expansion of Rome. But the adoption of quantitative tools to facilitate this exercise is not, in my view, an end in itself, despite the level of public attention and financial support such tools now receive; it is only a beginning. It remains to join the quantitative results with analysis of the powerful loyalties and emotions characteristic of public lawmaking.
Meanwhile Gesetzgebung effectively shows current ways of investigating public law. As such the volume underscores the complexity of the issues confronted in any attempt to make sense of public law in the Roman experience, and confirms the validity of present broad scale international efforts to understand this central process in Roman political life.
Authors and Titles
Uwe Walter, Einleitung
Jani Kirov, Römische Gesetzgebung in der späten Republik: (wieder) ein Thema für Romanisten?
Detlev Liebs, Rechtsfortbildung durch römische Juristen der späten Republik
Jan Timmer, Gesetzgebung im Konsens? Überlegungen zu den Grundlagen eines Konzeptes und seinen Folgen
Christoph Lundgreen, Gesetze und die Grenzen ihrer Geltung: leges und konkurrierende Normen in der römischen Republik
Uwe Walter, Lex incognita.Vom ′Übersetzen′ der feindlichen rogatio in Ciceros Rede De lege agraria II
Marianne Elster, Die römischen leges de civitate von den Gracchen bis zu Sulla
Tassilo Schmitt, Die Gesetzgebung des Pompeius im Jahr 52
1. J.-L. Ferrary, ed., Leges publicae: la legge nell’esperienza giuridica romana (Pavia, 2012)
2. M. Elster, Gesetze der mittleren römischen Republik. Text und Kommentar (Darmstadt, 2003)
3. Contributions by Nippel and Linke were not included in the volume, though Walter does survey their contributions in the introduction.
4. J. Bleicken, Lex Publica. Gesetz und Recht in der römischen Republik (Berlin and New York, 1975), and C. Williamson, The Laws of the Roman People. Public Law in the Expansion and Decline of the Roman Republic (Ann Arbor, MI, 2005; paperback expected 2016).
5. Among the reviews of my book Walter omits are: Gruen, JIH 37.2 (2006) 265-67; Hoeflich, LHR 25 (2007) 645-46, and Kirov, RG 10 (2007) 211-12.
7. My own views on Roman voting, and on the tribes and property classes are found in Laws of the Roman People pp. 100-28 and 212-27.
8. It is of some personal satisfaction that to date not a single substantive error has been uncovered by any critic in my legal database or in my processing of information about laws, lawmakers, assemblies and so forth derived from Rotondi. The more so, I might add, since my own project was undertaken without university support or funding during my years on the faculty at Indiana University. It is my understanding that Marianne Elster’s work, too, has been unfunded.
9. For reflections on my own work in this regard see Laws of the Roman People, pp. 437-50.