[Authors and titles are listed at the end of the review.]
The contributions presented in this volume emerge from two conferences held in Münster in May and June 2017. The participants discussed, as the title of the book indicates, the presentation and usage of senatus consulta by the iuris prudentes of the Roman imperial epoch. The contributions to the volume are arranged chronologically, taking as a starting point the works of Antistius Labeo and ending with the works of the ‘late-classical’ authors Callistratus, Aemilius Macer, Herennius Modestinus, and Claudius Tryphoninus. The volume is detail-focused throughout, with the various experts working their way through the passages in the sources in which ‘their’ authors interpret, quote, or cite senatus consulta. This approach leads to a finely structured pattern of presentation aimed at virtual completeness (leaving aside casual mentions of or general references to ‘the senatus consulta’). A primary focus of all contributors is on the methods that iuris consulti used when working on and interpreting the texts of senatus consulta. Before taking a look at some individual cases to illustrate the overall approach of the book, let it be stressed that there is almost no example handed down to us of a special interpretative technique used by the iurisprudentes when dealing with texts of senatus consulta. There is a hint in the famous definition of Gaius (Institutiones 1.4: Senatus consultum est, quod senatus iubet atque constituit; idque legis vicem optinet, quamvis fuerit quaesitum that the categorization of senatus consulta as de facto equivalent to leges was seriously disputed in times before Gaius wrote; but, if so, there are no traces left of this debate besides the remark quoted. Thus, it is not exactly known since when texts of senatus consulta were explicitly considered an integral part of ius civile and whether special criteria were applied to such texts in times before the definition of Gaius obtained. As is well known, Giuliano Crifò described normative aspects in senatus consulta of the late Republic already in 1968.[1] This does not settle the question, however, of when Roman jurists became willing to assess and cite senatus consulta like leges or the edictum praetoris. But, after all, this intensely discussed problem is a minor one. Thus, Paola Lambrini remarks (p. 19): “Labeone (…) commenta le parole testuali del senatoconsulto (id est Silaniano, AE), così come farebbe con una legge comiziale o con l’editto del pretore.” Consequently, the oft-quoted affirmation of Gaius does not mark a turning point but simply a recognition of a long-standing practice.
Thus far, some general observations; out of the wealth of subjects addressed in the volume under review I pick out a few that seem to me to be of special interest. A key theme in many contributions is—in the wake of David Daube[2]—nuance of expression, both in legislative texts and in the texts of their ancient interpreters. Thus, as Martin Avenarius demonstrates (pp. 176-79), the author (‘Pseudo-Ulpian’) of the liber singularis regularum differentiates in his use of language between censere, constituere or cavere when dealing with special aspects of the senate’s decision-making process. But terminological sophistication like this does not amount to methodological reflection and is, of course, not confined to the interpretation of senatus consulta. On the whole, individual methods of interpretation can be (and are) ascribed to individual Roman jurists; but, as it seems, there was no peculiar approach reserved for the working with texts of senatus consulta. Perhaps things would look different if we still could read the prooemium—or the prooemia?—to Pomponius’ five books ad senatus consulta?
Since the approach of the volume is mainly doxographic and since there exists a vast literature on most of the subjects treated one will not expect many brand new findings.[3] With the contribution of Emanuele Stolfi (pp. 93-100), we see that a peculiar point of view is taken by Pomponius in his historical overview of the development of Roman law in which a special role is assigned to the senate as a designer of the constitution stepping in at decisive junctures of history. It would, however, create a false impression if Pomponius were credited with the idea of portraying the senate as pacemaker of institutional change. Rather, the leading actor was necessitas ipsa (as is pointed out in the Pomponian Enchiridion as quoted in D. 1.2.2.9), the dynamics of which the senate aimed to answer by adjusting the constitution (necessitas ipsa curam rei publicae ad senatum deduxit; see Stolfi, p. 95). In other words, Pomponius treats the senate as a legislative body from the early republic onwards (the consulta of which he calls the ius of the senate). This was, as is pointed out above, not normally done by the jurists of the imperial epoch, the above quoted statement of Gaius being the first handed down to us that states in so many words that senatus consulta were (regarding their general applicability) equivalents to leges. As Carla Masi Doria notes (p. 50), this was already implicitly presupposed in the Digesta Iulianii, the second part of which was dedicated to leges et senatus consulta. And as noted by Paola Lambrini (p. 19), setting ancient theory apart, the actual use and interpretation of senatus consulta as if they were leges started with Antistius Labeo and his work on the Silanianum (10 BC) at the latest. Again from the Digesta of Salvius Iulianus (Lenel 842), Carla Masi Doria shows that ‘everything which has been decided upon before’—meaning: regardless whether leges, senatus consulta or another source of law—was principally subject to the interpretatio principis (p. 51).
Sometimes jurists refer to ‘the senatus consulta’ as a corpus of texts that is supposed to be well known, as for instance Pomponius in his epistulae (D. 49.14.35: idque senatus consultis expressum est). Emanuele Stolfi (p. 102), comments: “Più complesso, se non impossibile, è decifrare il generico richiamo ai senatus consulta …”). One may suspect these generic references to be the work of the Justinian compilatores, but that the senatus consulta of the first and second centuries CE were looked upon as forming some kind of a corpus is clear from the fact that Pomponius wrote a commentary ad senatus consulta (mentioned above; and note the phrasing secundum senatus consulta ad eas causas pertinentia as in D. 40.5.20). This might lead to the question whether there were subjects typically dealt with by the senate as a legislative body (the favor libertatis or questions of fideicommissae heredidates come to mind), but this must be reserved for further research.
Among the basic methodological alternatives to be found in the texts of the iurisprudentes dealing with senatus consulta the following ones may be mentioned: a strict orientation to the wording of the legal sources versus a stronger weighting of the (assumed) intent of the acting persons—like the drafters of wills. An important example is the way Pomponius treats the interpretatio Iuliana of the Trebellianum in his liber epistularum (D. 40.5.20), conveniently summarized by Emanuele Stolfi (p. 117): “…l’operatività stessa del Trebelliano è disinnescata (sc. by the interpretatio Pomponiana) dalla diversa configurazione giuridica dei fatti (e dal peso determinante attribuito alla volontà del testatore)”. Likewise, a fundamental methodological decision was imposed on the jurists in the event that the wording of laws collided with senatus consulta in terms of content. In such a case, as shown by Ulrike Babusiaux (pp. 196-98), Papinian did not formulate his decision on the basis of a hierarchy of Rechtsquellentypologie but with regard to the individual aequitas in question. Also, a basic distinction is made between id, quod scriptum est, et id, quod incertum est (…) (Quintilian 7.8.3). The second element of the alternative (quod incertum est) is a kind of shorthand for ‘creation of ius by analogy’, quod, quoniam ratione colligitur, ratiocinativus [sc. status] dicitur (Quintilian, ibid.). To give one example among those adduced by Ulrike Babusiaux from Papinian’s libri responsorum, the passage referred to concerns his interpretatio of the sc Libonianum (16 CE) that regulated the criminal liability of persons who benefited themselves in another’s will. Papinian extended the prohibition contained in the senatus consultum to the self-appointment as tutor of a ward (by interpreting the assumption of a guardianship as emolumentum: D. 26.2.29; see Ulrike Babusiaux, p. 202).
To conclude: what the volume offers is a routine and detailed survey of the thematically relevant passages of the Roman juristic literature up to the Severan jurists. What is somewhat lacking are overarching problems and viewpoints. This is also reflected in the summary remarks of Martin Schermaier, who confesses to being “somewhat perplexed” (p. 362: “etwas ratlos”) in view of his task. Seeing the contributions to the conferences as a mere “Anfang in einem großen Vorhaben” (p. 370) he does not hesitate to assign some homework to the participants for further research. A few examples may be mentioned here. Schermaier assumes that the principes were inclined to solicit senatus consulta in such cases in which the praetorian legislation—because the balance of interests between important socio-economic forces or the interest of the state was concerned—did not seem to convey sufficient authority (p. 366). As a consequence of this, the author suggests that a relatively greater proportion of the senatus consulta cited by the Roman jurists falls within the realm of ius publicum (to which matters like guardianships, manumissions or testaments tended to be attributed to, at least in the eyes of the iurisprudentes of the Severan age). However, the sources having gone through the selection work of the Tribonian commission, the verification of such a thesis will encounter considerable difficulties. Some contributors endeavored to come to grips with the methodologically demanding problems of quantitative analysis under these circumstances (as Thomas Finkenauer and Emmanuelle Chevreau, cited by Martin Schermaier pp. 367, 368), but here once more much work remains to be done.
Finally, assuming that future research will help to solve these and other remaining problems the role of the imperial senate as a legislative body may be one day focused on from a wider historical perspective. Did the senate as a legislative body pursue some line of politics, class-based or other (at least as long as it was not a mere registry of principis orationes)? Is it viable to assume that the senate had an inherent—never really called upon—constitutional potency? Can the senate then be understood as a precursor of those early modern parliaments from which representative legislatures developed? And if so, what prevented a corresponding development to take place in the Roman imperial period?
These are questions coming to a historian’s mind. But first, it is his duty to thank the contributors to the volume for having brought order to a vast material under the special perspective of the juridical interpretation of the senatus consulta. Due to the carefully made Quellenregister, the volume will permanently maintain its value as a reference work.
Authors and Titles
Pierangelo Buongiorno, Rappresentazione e uso dei senatoconsulti nella letteratura giurisprudenziale. Un’introduzione
Paola Lambrini, Senatus consulta e interpretazione giurisprudenziale da Augusto all’avvento dell’età Antonina
Carla Masi Doria, I senatus consulta nei giuristi adrianei. Giuliano e Africano
Emanuele Stolfi, Il ruolo dei senatus consulta nella produzione di Pomponio
Fabian Klinck, Senatus consulta in den Institutionen des Gaius
Wolfram Buchwitz, Darstellung und Gebrauch der senatus consulta in den kleineren Schriften von Gaius
Martin Avenarius, Senatus consulta und ihre Darstellung im ps.-ulpianischen liber singularis regularum
Ulrike Babusiaux, Ex sententia senatus consulti. Zu Auslegung und Anwendung von Senatsbeschlüssen bei Papinian
Emmanuelle Chevreau, L’utilisation des sénatus-consultes dans l’oeuvre de Marcien
Thomas Rüfner, ,,Ait senatus …“ Senatsbeschlüsse in Ulpians Großkommentar zum Edikt
Philipp Scheibelreiter, Senatus consulta. Die Normen und ihre Auslegung beim Juristen Ulpian
Sebastian Lohsse, Überlieferung, Darstellung und Gebrauch von Senatsbeschlüssen in den Werken des Paulus
Thomas Finkenauer, Senatusconsulta im Werk von Callistratus, Macer, Modestin und Tryphonin
Martin J. Schermaier, Schlussbetrachtungen
Notes
[1] ‘Attività normative del senato in età repubblicano’, Milano 1968.
[2] ‘Forms of Roman Legislation’, Oxford 1956.
[3] The source material is conveniently collected by Edoardo Volterra, ‘senatus consulta’, Novissimo Digesto Italiano 16, Turin 1969, pp. 1047-1078 and again with a valuable introduction by Richard Talbert, ‘The Senate of Imperial Rome’, Princeton 1984, ch. 15: Senatorial Legislation (pp. 431-459). See also Abraham Arthur Schiller, Roman Law, Mechanisms of Development, The Hague—Paris—New York 1978, pp. 442-462.