BMCR 2021.03.22

Law in the Roman provinces

, , Law in the Roman provinces. Oxford studies in Roman society and law. Oxford; New York: Oxford University Press, 2020. Pp. viii, 526. ISBN 9780198844082 $145.00.

Meret Strothmann collaborated with the editors of the volume.

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[The Table of Contents appears below.]

Law in the Roman Provinces (LRP) has no subtitle. This is an admirable act of restraint, but also an indication of the aspirations of the volume’s editors. Legal histories of the Roman Empire (at least ones that aspire to be more than superficial) tend to operate at the level of the local, the regional, or the provincial. The fragmentary and intractable nature of the evidence means that, to be adequately contextualized, many complicating factors demand to be taken into account: language, ethnicity, status (social, legal, political), urbanization, colonization – to say nothing of the particular historical entanglement of individual people or localities with Rome. Recognizing diversity and fragmentation has been productive: mastery of local detail, geography, and documentary culture has allowed scholars to make tremendous advances in understanding how precisely institutions worked (or didn’t), who peopled such institutions, how they changed, and where they sat in relation to other contexts of socialization. But regionalism and particularity offer temptations: they allow us to resist acts of synthesis. All becomes particular; similarity becomes contingency; fragments become their own reward, rather than demands upon a master narrative.

The tensions between the particular and the synthetic sit at the heart of this volume. We might begin with the particular. Nearly 500 pages long, LRP collects 21 discrete contributions, as well as an introduction by the editors and a brief “perspectives” as an envoi. The contributions are arranged geographically, with an equal number of papers in each section: Egypt and the Near East, Asia Minor and Greece, and Africa and the West. Within each section, regional approaches prevail, although some “regions” necessarily have to be broadly construed. This volume thus attempts to capture aspects of the law in the entirety of the world subject to Rome.

The goal of the editors is to use this wealth of detail to build up a more complex picture of institutions and the people who interact with them, and to use these individual contexts to put on display a series of dialectical relationships: the imperial and the local, agency and obligation, creativity and constraint, law as an ideal and law as a messy and frustrating practice. In that sense, the geographical focus of the volume might be understood as a dramatic background or a narrative framework: these tensions replicated themselves, in new and unpredictable ways, across the empire, again and again, at the level of the individual, the group, the town, the province. The tensions, and the creative interplay they evoke, just are the story. I shall return to this point, and to its implications for legal history and for Roman history more generally. But I should like to highlight, first, a few things that this volume does especially well.

One of the great virtues of this book is that people, rather than ideas or doctrines, play a leading role. People – sometimes named individuals, sometimes stand-ins for a cast that would be filled by different individuals over time – are frequently on display as they engage in practices of adaptation and negotiation, managing the constraints imposed upon them by their institutional and personal roles. We might name just a few of these characters. Such a list of dramatis personae is necessarily selective; it could well be extended, and it is another of the great virtues of this book that it gathers such a remarkable array of materials.

There is the Roman governor of Egypt, constrained by the geography of his province and the demands of his subjects, influenced not only by abstract considerations of the “constitutional” nature of his position, but by a circle of friends, including artists and intellectuals. There is Pliny, governing Bithynia-Pontus, actively and subtly shaping the stakes of the issues he periodically refers to Trajan. There are eirenarchs and paraphylakes, aristocrats of the Greek cities of Asia and immersed in the militaristic culture of their cities, who act both within and beyond their formal legal remit, making the best they can within the “structural dysfunctions” (180) posed by a system of criminal justice in which the capacity of the imperial state failed systematically to meet its ambitions, leaving great power in the hands of locals. We might contrast such men to the petty aristocrats of the North African cities who begin to emphasize that their civic valor consists not in tracking down bandits, but in arguing before the court of the provincial governor. They longed for a coveted place in the “bar” and eventually for a plum position as advocatus fisci. For such men this would be the start of a purely civil equestrian career: such a career would cement their and their children’s position, but without the potentially fatal risks that an equestrian career, normally military, might entail.

There are also those further down the social scale. There are the members of the collegium of centonarii – textile producers – in Noricum, who prevailed upon their patron to help oust from their ranks a number of local heavies who had joined the collegium illegitimately, to benefit from the collegium’s immunity from municipal obligations. The centonariithank their patron, because his action ensured that the producers could carry on their obligations without the state interference that corrupt practices inevitably bring. There are two women of Dura Europus, Gaia Aurelia and Amaththabeile, who stitch together a cento of Roman legal formulae on papyrus, with the goal of making certain that their deposit or loan of 100 denarii is on the firmest legal ground imaginable, even at the expense of coherence in the contract itself.  And there is perhaps the loneliest character: an unnamed broker in Vindolanda who makes a “loan” of gruel and some eggs to a soldier named Felicio – an odd transaction on its face, but one that makes sense if one remembers the prohibition on selling military goods.

People also sit behind the discussions of things that might, at first blush, seem to be mere abstractions or depersonalized institutions. Municipal legislation would appear to be something that primarily constrains. But it emerges, in this volume, as a source of local pride, on display in the centers of towns – each town displaying its own code, a series of points on a map that speaks to the pride towns cultivated in their local particularity, albeit with a relatively limited menu of options for what could go in the text. Such a process, moreover, took place in the context of broader demographic shifts, as a steady stream of retired veterans spread out across the landscape, their discharge bonuses catapulting them into ranks of the municipal elite. People and their activities similarly explain why it is that commercial activities in Egypt continue even when they might not be permissible by the formal law of the state: such transactions persist because the system in which they took place just worked well, and no one thought disrupting it worthwhile. Even things that might, at first blush, seem of minor consequence are deftly re-contextualized as the result of processes of negotiation and impression management: thus the boundary stones erected in the second century AD by the city of the Bragylioi might harken back to the age of Philip II, evoking a (fictive?) legal history whereby the institutions of the polis were imagined as being continuous over the course of an otherwise turbulent period. Roman domination was thereby naturalized and normalized as a logical, predictable continuation of a pre-existing condition. Institutions, on the account of LRP, have to be explained as social processes – they constrained, yes, but they are only properly contextualized when seen as part of a vibrant world of social action enabled by the language of law.

That these and similar acts were repeated across a vast and varied geography is similarly an important, if at times implicit, argument of this book. The legal histories of “the west” and “the east” have often been cleaved from one another. Though recent scholarship, e.g., on Roman colonies in the east has complicated this picture,[1] the numerous examples of more granular transactions that LRP compiles makes such a position harder still to sustain. Those who seek to restrict their claims to one half of the empire or another will now have the burden of presenting a more substantial justification.

The emphasis on law as action, done by people, who act with the hope of creating meaning in their context, is hugely valuable. Many of the individual essays set the standard for future empirical research. LRP is thus an important contribution, and one that deserves rich discussion. In that vein, I offer two sets of thoughts on the contribution and method of the volume as a whole. The issues that I raise in what follows might just be taken as a complement to the larger project of writing a history of law in the Roman provinces (rather than as a critique of Law in the Roman Provinces).

There are two challenges that might be addressed in future work. One relates to the larger consequences of structuring this particular contribution as a story of tensions, while the other emerges from a concern about the methods privileged by the authors and the editors. I shall begin with the question of tensions. The emphasis on tensions – and their replication throughout the landscape – is most welcome. But it also raises a set of questions. Many of the essays in this volume offer stories of both continuity and change. But there is very little hint about what shape a narrative of law in the Roman provinces might take in the wake of LRP. I make this critique or even suggestion most guardedly. Surely there is nothing wrong with writing synchronically, or with bringing together a series of studies that might serve as a map or a set of guidelines for how to better ask the larger scholarly questions. And it is possible that the editors do not think that there is, or that there should be, a single master-narrative of Roman legal history, provincial or otherwise. (Or that we are not on firm enough ground for such a narrative to emerge just yet.) But given that this book does have chronological parameters, and that these parameters largely exclude Late Antiquity, we might be justified in asking, What changes? Do the modes through which people interact with law in Late Antiquity change, and if so, how and why?

More particularly: in compiling this story of tensions, do we emerge, at the other end, with something of a better understanding of the structural features of the Roman Empire? That is, are these sorts of tensions a fundamental feature of imperial rule, Roman or otherwise? Were there alternative ways of imagining or constructing legality, and if there were, under what circumstances did people avail themselves of them? Or do the tensions never resolve? If they do not, I think there is something of a larger matter at stake: if law does not provide a mechanism for people to successfully negotiate their place in the world, then LRP proposes, without explicitly defending, a potentially important thesis about law more generally: that it lacks the potential to be liberatory – even if it was a discourse or a set of institutions in which subjects took pride. This sort of claim has important implications for the ways in which we imagine, for example, the history of citizenship (Roman or otherwise), and it deserves to be placed more fully to the front.

I turn, finally, to a concern about method. A central assumption shared by nearly all the papers in this volume – and by the editors, and indeed by numerous others in the field who engage this sort of material – is that legal behaviors are essentially straightforward matters of negotiating the tensions I outlined above. That is, they posit that scholars can, with a relatively constrained anthropological vocabulary, make sense of the particular strategies of actors “on the ground.” We might take as an example of what I mean the sharp and thoughtful analysis that Czajkowski gives of P.Dura 29 (AD 251, pp. 120-23). I mentioned the contents of the document earlier: it is a contract between two women concerning a deposit of money. In it, Aurelia Gaia acknowledges that Amaththabeile has given her the sum of 100 denarii; she agrees to return the money when asked. The contract is, from the perspective of normative Roman law, unusual: it takes the form of a stipulation (a stricti iuris contract), but evokes the principle of contractual good faith; further departing from normative Roman law, it is in form a notionally unilateral agreement, whereas good-faith contracts are normatively bilateral. It closes with an imperial oath, which also seems otiose, considering the form of the contract.

These sorts of departures from what we might expect, given our reading of metropolitan texts of jurisprudence, are fairly standard stuff in the world of the provinces.

Czajkowski’s analysis, however, breaks important new ground in emphasizing that such departures from normative practice ought to be explained by social context, rather than as mere vulgarization. “These particular individuals therefore seem to be piling on these nicely Roman sounding clauses in their documentation in the third century, in a way that…had not happened before.” Moreover, “what we have in this contract…is a seemingly willing uptake of Roman legal forms in ways that are redundant, but are put into practice in a fashion highly influenced by local conditions.” The imperial oath, on this reading, is a “flourish”; Roman legal forms were taken up, by some residents, “with gusto,” whereas others approached them with greater skepticism. Without a powerful state forcing standardization, “[l]ocals appear to have been able to choose which elements they wish[ed] to adop[t] from the imperial legal order” (122-23). This creative adaptation was essentially a locally-inflected act of performance or poiesis through which the contracting parties inscribe themselves symbolically within the imperial legal system, and the legal and political order more generally.

Czajkowksi may well be correct in taking this line of interpretation. Since we cannot ask Gaia or Amaththabeile (and even if we could, we might not get a useful answer), we may as well posit that P.Dura 29 ought to be explained as the result of particular choices, freely made – or even of particular choices made within a system of constraints. But when we do this, we are making a claim that is, in essence, anthropological, and the particular anthropology posited here (as in many of these essays) is never explicitly defended. On what grounds might it be reasonable to think that marginal people, in a marginal land, ought to have their behaviors explained by recourse to the language of choice? Were there other options on the menu? Alternatively, might the transaction be just as readily explained by invoking the language of fear? After all, the piling on of decontextualized formulae might betray a structural similarity to the world of magical papyri and curse tablets. If that is the case, might it not be enlightening to understand how, in this world, subjects might imagine that law and magic to be analogous practices of binding or of transforming the status of people and their relationships?

My point here is not that one mode of explanation is right and the other wrong, or even that both might be right, but that we have no place to stand such that we might know. My point is that both sets of explanations posit subjects acting within a world of symbols, assumptions, and connections. We come up short in explaining their behaviors if we presume that these are fundamentally transparent to us.[2] A second text, not discussed in LRP, might make this point more clearly. It comes from the Sifra, a commentary on Leviticus (in this case, on Lev. 18:3) from roughly the same chronological era:

“And in their statutes (bihuqutekhem) you shall not walk”: What did Scripture leave unsaid (that this need be stated)? Is it not already written (Deut. 18:10-11), “There shall not be found among you one who passes his son or daughter through fire…and casts spells, etc.”? What, then, is the intent of “and in their statutes you shall not walk”? In their customs (nimosot) – those things that are inscribed for them – such as theatres (tiyatrot), circuses (qirqusot), and arenas (hasteryot). R. Meir says: These are “the ways of the Amorites,” which the sages enumerated. R. Yehudah b. Betheira says: that you not preen yourself, and not cultivate locks, and not wear the hair qomi. And lest you say: “They have statutes and we have no statutes” – It is, therefore, written (18:9) “My judgments shall you do and My statutes you shall heed to walk in them; I am the Lord your God.” – But there is still “hope” for the evil instinct to reflect and say “But theirs are more beautiful than ours!” – It is, therefore, written (Deut. 4:6) “And you shall heed and you shall do. For this is your wisdom and your understanding.”[3]

To make sense of the biblical text, the authors of the Sifra seek to understand the nature of “statutes”: what does it mean that one must not “walk” in them? A separate biblical prohibition had already covered religious acts: child sacrifice, augury, and the casting of spells. So as not to replicate this prohibition, the authors perform an act of redefinition: statutes are not just written prohibitions, but rather customs – things that suffuse daily life and serve to define communities. These foreign customs are flagged through the use of loan words: to avoid “walking” in “their statutes,” one must avoid theatres, circuses, and arenas;[4] one must similarly avoid certain types of personal grooming (avoiding wearing one’s hair qomi – presumably from κόμη, i.e., “like a Greek”). For Rabbi Meir, these things taken together are the ways of the Amorites; they ought to evoke disgust or revulsion.

Law, on the Sifra’s reading, is more than sets of formulae from which one might willingly choose: it encompasses architecture and urban space, hairstyle and dress. The things that make them them are the things that we must avoid; since the Sifra posits a we that is constituted by statutes (by Torah), so by deduction there must also be a they, similarly constituted. (It ought be added that the we posited by the Sifra is a rhetorical construct, and one with only a tenuous relationship to the realities of third century Palestine.) But the Sifra goes farther: it posits an erotic relationship between the law of the metropolis and the inhabitants of a local community. Subjects long for the culture of the dominant, preening themselves and fussing with their hair, noting an absence in their own culture (“They have statutes and we have no statutes”), and judging alien practices to be aesthetically superior (“But theirs are more beautiful than ours!”). Thus the reference to the “evil instinct,” the yetzer ha-ra‘: the desire for the laws of others here is imagined as a sort of base, even sexualized yearning – far indeed from the language of choice or creative re-appropriation.

The Sifra is useful, I would argue, because it makes the stakes of explaining behaviors so clear: one cannot understand this particular attitude towards legality without evoking a particular set of local histories, texts, or affective and symbolic touchstones – things that operate to make Rabbinic thinking feel to us so very foreign and distant. Yet the instinct of many Roman historians, and particularly historians of law, is to feel the opposite: as if our non-Rabbinic subjects are rather nearer to us, more similar in their behaviors and desires. But I doubt that this is so, and I doubt that the mental framework – the complex historical imaginary, the unusual system of desire and longing, the anxieties about the line between self and other – of the Rabbis is something unique to them, in the sense that I doubt that other populations did not have similarly complex historical imaginaries that need to be taken into account anthropologically. Put simply, I doubt that Gaia and Amaththabeile are so readily explained but that Rabbinic Jews are not. I worry, further, that this feeling that we share a basic rationality with our subjects is an illusion induced by longstanding claims about the genealogy of law, and our sense of “ourselves” (always a problematic term, I know) as sitting within that genealogy. We are comfortable emphasizing the otherness of – that is, dealing anthropologically with – those who sit outside of this privileged western genealogy of law. But why privilege the insiders? Why not self-consciously put anthropology and phenomenology on equal footing with social and institutional history? If we want to understand law in the Roman provinces (no subtitle), we will have to confront this challenge directly.

Table of Contents

Kimberley Czajkowski and Benedikt Eckhardt, Introduction (1-15)
Andrea Jördens, Aequum et iustum: On Dealing with the Law in the Province of Egypt (19-31)
Uri Yiftach, Order and Chaos in Roman Administrative Terminology (32-43)
José Luis Alonso, The Constitutio Antoniniana and Private Legal Practice in the Eastern Empire (44-64)
Anna Plisecka, The Decision of Septimius Severus and Caracalla on longi temporis praescriptio (BGU 267 and P.Strass. 22) (65-83)
Kimberley Czajkowski, Law and Romanization in Judaea (84-100)
Tiziana J. Chiusi, Legal Interactions in the Archive of Babatha: P. Yadin 21 and 22 (101-14)
Kimberley Czajkowski, Law and Administration at the Edges of Empire: The Case of Dura-Europos (115-33)
Ulrich Huttner, Latin Law in Greek Cities: Knowledge of Law and Latin in Imperial Asia Minor (137-56)
Cédric Brélaz, Local Understandings of Roman Criminal Law and Procedure in Asia Minor (157-84)
Georgy Kantor, Navigating Roman Law and Local Privileges in Pontus-Bithynia (185-209)
Lina Girdvainyte, Law and Citizenship in Roman Achaia: Continuity and Change (210-42)
Ioannis Tzamtzis, The Integration and Perception of the Rule of Law in Roman Crete: From the Roman Conquest to the End of the Principate (67 BCE-235 CE) (243-66)
Athina Dimopoulou, Lesbos in the Roman Empire: Treaties, Legal Institutions, and Local Sentiment towards Roman Rule (267-83)
Ilias N. Arnaoutoglou, An Outline of Legal Norms and Practices in Roman Macedonia (167 BCE-212 CE) (284-312)
Werner Eck, The leges municipales as a Means of Legal and Social Romanization of the Provinces of the Roman Empire (315-31)
Meret Strothmann, Roman City-Laws of Spain and their Modelling of the Religious Landscape (332-45)
Clifford Ando, Public Law in Roman North Africa (346-57)
Anna Dolganov, Nutricula causidicorum: Legal Practitioners in Roman North Africa (358-416)
Benedikt Eckhardt, Law, Empire, and Identity between West and East: The Danubian Provinces (417-35)
Paul du Plessis, ‘Provincial Law’ in Britannia (436-61)
Matthijs Wibier, Legal Education and Legal Culture in Gaul during the Principate (462-85)
Giovanna D. Merola, Perspectives (486-94)

Notes

[1] E.g., Cédric Brélaz (ed.), L’héritage grec des colonies romaines d’Orient : interactions culturelles dans les provinces hellénophones de l’empire romain (Paris: Éditions De Boccard, 2017).

[2] One might take as exemplary in raising these sorts of questions Catherine Michael Chin and Moulie Vidas (eds.), Late Ancient Knowing: Explorations in Intellectual History (Oakland: University of California Press, 2015).

[3] Sifra, Akharei Mot 13, trans. sefaria.org with modifications based on the discussion of Natalie B. Dohrmann, “The Boundaries of the Law and the Problem of Jurisdiction in an Early Palestinian Midrash,” 83-103 in Catherine Heszer (ed.), Rabbinic Law in its Roman and Near Eastern Context (Tübingen: Mohr Siebeck, 2003).

[4] The odd third category of prohibited urban space – translated here as “arenas” – similarly seems to be a loan word, of uncertain definition. See M. Jastrow, A Dictionary of the Targumim, the Talmud Babli and Yerushlami, and the Midrashic Literature (London: W.C. Luzac, 1903), I:92.