BMCR 2019.10.29

Les juristes écrivains de la Rome antique: les oeuvres des juristes comme litterature. Docet omnia

Dario Mantovani, Les juristes écrivains de la Rome antique: les oeuvres des juristes comme litterature. Docet omnia. Paris: Les Belles Lettres, 2018. 358. ISBN 9782251448138 €21,00 (pb).

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The historian of Roman law is born free, and everywhere he is in chains. Something like this Rousseauian reflection must have been on Mantovani’s mind when he conceived this book attempting to break the chains of ancient thraldom, of idées reçues, mostly of Germanic origin.

Writing about Roman law as literature might be seen as just another one of these modern, mostly Italian ideas to degrade the study of Roman law—traditionally one of the oldest, proudest and most influential academic disciplines of the Western world—into a minor province of ancient history or philology. Yet, this approach—whether it is a method will be discussed later—does not have as a consequence that law turns into littérature and jurists into hommes de lettres. Mantovani’s intention is rather to take a fresh look at old problems, an attitude which should not be condemned a priori as the fashion of the times but should be judged by its results: the proof of the pudding is in the eating.

Before turning to the book itself, it is helpful to differentiate Mantovani’s approach from similar phenomena. In his book, he reads the Roman jurists as literature, which does not imply, as the postmodern school would have it, that law is literature, a ‘text’ and nothing else; neither is Mantovani’s approach an example of the law and literature approach, which deals with legal aspects of belles lettres. He wants to have nothing of this but instead strives to apply a tested method, that of philology, to a body of writing to which it has never been applied hitherto.

Accordingly, the first chapter is dedicated to the fundamental question of whether Roman law can be considered literature. If this premise is granted, three literary aspects of legal writing emerge that are derived from the three dominant classical forms of prose: philosophy, history and rhetoric.

‘Literature’ is a modern rather than an ancient concept and one that is tied to the ideas of pure invention and the quest for beauty, in turn condemning other forms of writing as ‘utilitarian literature’. The ancients themselves, for instance Cicero ( Orat. 1, 62-68) and Quintilian (10, 1), considered three different forms of prose as literature insofar as they were suitable for the display of oratorical brilliance ( ornate dicere): philosophy, history and oratory. At first glance the iuris consultorum libri do not fit into this scheme. Yet they do comply with the most basic requirements: a sufficient quantity of writers, a language, a consistent body of texts and, last and certainly not least, a public (p. 17). We know of about 40 significant authors of juridical texts, an edition of which can be found in Lenel’s “Palingenesia Iuris Civilis”. The whole body of their writings, forming a pretty rigid canon (pp. 47 ss.), at the time of the compilation of the Digest (which consists of excerpts from these writings) was about twenty times the Digest ’s volume. The whole body of juridical writing, therefore, must have amounted to some forty volumes in folio. By quantitative standards this certainly constitutes a ‘literature’. For whom were these texts written? Who was their public? Was there a market for this production? The texts were written in the first instance for lawyers and are to a high degree ‘intertextual’ insofar as the authors themselves refer to their predecessors’ and colleagues’ works, as Mantovani shows with the help of Fr. Vat. 75, 3 on pp. 30 ss. But these libri were also written for, and bought by, juridical laymen, persons who had a professional interest in the law like orators of Cicero’s sort and young students like the son of Echion in Petronius’ Satyricon ( Sat. 46,7). Judging by other evidence, it was obviously normal for a ‘country gentleman’ to have a collection of these libri rubricati (pp. 42 s.), as they were called as a result of a tradition of writing the subheadings for legal texts in red, symbolized by a special form of capital letter R (pp. 17 ss, and 241 ss.).

There can be no doubt the jurists themselves as well as the general public considered these libri to constitute a distinct body of writing. But can we therefore conclude that they were also a literature? The fact that juristic writing does not belong to one of the three genera mentioned above is not decisive, for they are only those types of literature suitable for the display of rhetorical skill; juridical writing might be less rhetorical but can, even by ancient standards, still be considered literature.

Even if we applied the category of beauty to legal writing, it could stand up to the test of literature, which Mantovani illustrates with the help of an example where both Cicero and Ulpian, one of the last and most prominent legal writers, give a definition of arma (pp. 57 ss). For the modern reader Cicero is a bit bombastic, whereas Ulpian appeals to a taste schooled in functionality. Owing to its content and technicality, however, which Cicero dubbed obscuritas, Roman legal writing was in peril of being neglected among those who had no immediate interest in the law as such. But Mantovani’s verdict stands up to the test: the libri iuris consultorum form a literature, even if only for the ‘happy few’. In the final analysis it does not matter, though, if their writing were a literature: what matters is the question whether reading them as literature is rewarding or not (cf. p. 240).

The liberating productivity of Mantovani’s approach reveals itself immediately when he starts to discuss the philosophical aspect (pp. 79 ss.). The relationship between philosophy and Roman law has been for over a hundred years one of the most difficult and thorny fields of research. Is law an application of philosophy or does it have autonomy? If the former is right, the Greeks are the real masters of the law; if the latter, the Romans are.

Whereas some, above all Schulz in his seminal History of Roman Legal Science, hold that the law was ‘isolated’ from philosophy, many post-war authors made their careers by highlighting the influence of philosophical reasoning on the law. Even though he does not state it explicitly, Mantovani eventually supports Schulz. As he can show in all due detail (pp. 85 ss, and 285 ss.), philosophical notions and concepts help the jurists understand and explain the problem at hand, like the continuity of a court composed of several judges with the help of the philosophical concept of ‘identity’ (Alf. D. 5,1,76). But the jurists find their solution autonomously according to criteria proper to the law (p. 113). Whereas for the philosophers it is totally admissible to state that a person does not remain the same given the ‘fact’ that the component atoms change in the course of time, this theory is not viable for the law for reasons too trivial to relate. The example concerning the interpretation of species in the following text ( … Quapropter cuius rei species eadem consisteret, rem quoque eandem esse existimari.) illustrates clearly how dangerous it is to over-interpret these texts philosophically, as Talamanca may have done (Mario Talamanca, “Lo schema ‘genus – species’ nelle sistematiche dei giuristi romani,” in: Colloquio Italo-Francese “La filosofia greca e il diritto romano” II, Roma 1977). Being writers, the jurists make a writer’s use of philosophy and being jurists, they accept the help of philosophy but never give up their autonomy.

Most ‘Romanists’ are content with Schulz’s observation that Roman lawyers had no interest in the history of law—an assertion which was perhaps accepted without dispute because it is obviously counterproductive for legal history as an academic discipline. With the help of some fairly unknown sources Mantovani is able to show that jurists always had quite a strong interest in the history of their discipline (pp. 129 ss.). This does not take us by surprise given the fact that the law is by its nature historical. In the classical period of Roman jurisprudence, the Law of the Twelve Tables was more than 500 years old and still considered “the source of all law”. Gaius’ theoretical reflection on the advantage and disadvantage of legal history (D. 1,2,1; pp. 145 ss) and Julian’s dictum “Non omnium, quae a maioribus constituta sunt, ratio reddi potest” (D. 1,3,20) are obvious testimonies of their—functional—interest in history. Debunking Schulz’s theory on the matter is one of the book’s major achievements.

The third part deals with the “lawyers as teachers”, that is to say above all Gaius’ “Institutes” rather than rhetoric directly. Yet, Gaius’ Institutes, a ‘systematic textbook’ par excellence, are modelled on the manuals of rhetoric by the Greeks. Gaius’ Institutes are the single most important source and the most important topic of scholarly discussion in the field of Roman law in the last 200 years, given the fact that he is the only legal author of whom we possess a complete book (with the exception of the somewhat marginalised Epitome of Ulpian).

From a scholarly point of view the chapter on Gaius will be for many years to come the text of reference on this matter and it is certainly the climax of the book. The Institutes are so important for the study of Roman law that every trick one can imagine has been played with them in the past in order to diminish their importance or to push them in a certain direction. The author’s identity was put in doubt, the text’s authenticity was put in doubt, its significance was denied and so forth. Mantovani’s approach is, here again, basically conservative, “Gaius is Gaius is Gaius”, as one might sum him up. This literary approach not only helps to refute all the theories that try to play down Gaius, but it also helps to produce new insights.

If these writings are literature, they must have had introductions (qualified as ‘paratexts’). Given Roman literary standards, the “Institutes” start quite abruptly. Taking into account that the Verona manuscript, our main source for the Institutes, is somewhat leaner than the fragments from the Institutes found at the beginning of the 20 th century, we can conclude that the Verona Gaius had lost some of its content over the course of time. For this reason, it is legitimate to consider completing the Verona Gaius with the help of the Aurea or Res cottidianae (which are obviously some sort of extended version of the former) and the Institutiones Iustiniani which are some sort of updated version of Gaius’ original. This is the basis for concluding that I. 1, 1, 2 (not 1,1 pr. as Mantovani erroneously claims on p. 222) stood at the beginning of a more original or extended version of Gaius’ ‘Institutes’. In this text, the author announces that all legal subjects should first be expounded levi ac simplici and then diligentissima atque exactissima interpretatione. If this text is really by Gaius this will have far-reaching consequences for our perception of Gaius’ didactic intention.

Does reading legal writing as literature constitute a new method for the study of Roman law? That in turn depends on what else you could make of Mantovani’s approach. Every literature has its classics; the same holds true for the libri rubricati (Masurius Sabinus’ Libri tres iuris civilis is an example). What can we deduce from that? What other patterns can be laid bare from this perspective? Maybe it could even be possible to shed some new light on the old question regarding Serviani and Proculiani with this new method. Maybe they are textual traditions rather than “schools”. Another thing that suggests itself is the question of Fungibilität, in the sense of Savigny’s theory that the Roman jurists were ‘fungible’, i.e., that they did not differ much. Today this theory is fiercely contested by the approccio biografico, which derides Savigny’s opinion as unsubstantiated and even absurd. From a philological point of view the category of ‘literary genre’ could help to overcome this discussion. Any future editor of the Digest will need to take a decision on this matter, and a new edition of Digest (the last is by Mommsen from the 1860s) will need to adhere to the main consequence of Mantovani’s work: a sound critical edition of the “juristes écrivains”.

To sum up: Mantovani’s daring new look helps the discipline of Roman law to overcome some eternal debates in which everything had been said by everybody. But even more so, it charters new territory for philologists: the writings of the Roman jurists.