[Authors and chapter titles are listed at the end of the review]
The present volume, published in 2025, began as a symposium at the University of Sydney in 2017. One sees the issue of the passage of time immediately, even by the standards of conference proceedings. That is not to blame the editors—the difficulties which arose in the interim are extraordinary—but to clarify what gives this excellent book its uncertainty and thrill. The years between that symposium and the appearance of The Rule of Law in Ancient Rome (hereinafter RoL) have seen a global pandemic, unprecedented exercises of state authority in response to that pandemic, public backlash against the same, multiple wars on multiple continents, worldwide protests against unjustified state violence, and various instances of democratic backsliding and reformation. Each of these different developments could be described, and has often been described, as implicating the rule of law. That term has never been more contested in my lifetime than it is now, and I doubt I am the only person whose take on the subject has changed in the last decade.
Accordingly, RoL answers two distinct questions: what do some of the greatest Roman historians working on three continents have to say about the rule of law as an analytic category, and how has that conversation persisted through upheavals in social life? RoL asks whether rule-of-law theory can inform culturally specific history but also chronicles a generative sort of pessimism on the part of its authors towards Roman accounts of justice, fairness, and equality.
Let’s start with the first. “The rule of law” is one of those concepts that people like to throw around without really defining their terms, and Part I of RoL (“Framing Questions”) offers two complementary accounts of the state of play. First, legal philosopher Michael Sevel approaches the rule of law from an etic framework, trying to abstract common ideas from various rhetorical and jurisprudential approaches. Sevel takes the rule of law more seriously than do some of his interlocutors—a point to which I will return later—but offers an extremely helpful taxonomy of approaches to the “thought patterns” that can be most neatly identified with ‘rule of law talk’ across different times and places. By contrast, the historian Michael Peachin goes specific. His chapter, a lightly edited reprint of a 2017 Legal Roots article, considers distinctively Roman approaches to justice and argues that what Romans thought of as a ‘rule of law’ was culturally imbricated and idiosyncratic. The two pieces do not correspond directly but participate in an obvious dialogue; one casts the rule of law as a trans-societal feature of how people talk about states, the other as emerging from particular communities and their particular preferences.
The rest of the volume adopts Peachin’s approach and essentially functions as a series of case studies of Romans working with/against legal institutions in order to accomplish their goals. Chapters 3 through 8 address the (late) Republic. Kit Morrell’s chapter on the rule of law and the career of Cato the Younger highlights a paradox in Roman conceptions of the term; as Ennius put it, Rome rested not just on its ancient customs, but also its men.[1] A common theme in Latin literature is that just governance rests on a paradoxical combination of legal sovereignty and personal virtue—good laws rely on good people—and Morrell shows how Cato simultaneously advocated legal supremacy and “subordinat[ed] law to his interpretation of right and justice” (67). Next, Amy Russell considers a second-order rule of Roman constitutional thought: that law reflects the will of the populus. Russell argues that the relationship between popular enactment and legal stricture was an object of enormous contestation throughout the late Republic and draws our attention to a strand of populism that can be hard to see in our Cicero-dominated records of the period. From there, Catherine Steel asks whether Roman deference to augury—famously invoked by Bibulus—should be seen as separate from Roman legalism or as part of the ritual order on which Rome’s ‘rule of law’ is sometimes said to rest. Andrew Pettinger’s chapter is more technical and addresses the praetor’s edict. Recent work has pushed back against the conventional view of the Republican edict as fixed and unchanging,[2] and Pettinger argues that the natural instability of an edict that was reformed every year was held in check by the flexible governance of “operative roles of honour and disgrace within the community” (137). W. Jeffrey Tatum moves from edicta to leges, and specifically to the second-order rules that governed whether legal enactments should be taken as binding or annulled. Tatum argues that these rules were taken seriously and operate as an example of “proprieties intimately associated with the rule of law” (160) even in the chaotic first century BCE. Andrew Riggsby closes the Republican section of RoL by bringing to the forefront a theme latent in preceding chapters: the close identification between rule-of-law rhetoric and Ciceronian thought. Much of our surviving discussion of legal sovereignty in Latin literature was written by Cicero, and Riggsby shows how Cicero’s complex, sometimes-contradictory views on law and society have shaped our broader history of Roman legal thought.
The final four chapters consider the imperial period and the fact that nearly all of our surviving Roman legal texts were produced under an autocracy. First, Eleanor Cowan recasts the latent social unrest of the Augustan period through twin lenses. Cowan employs insights from contemporary conflict studies to explore “the rule of law as both an aspiration and a concrete marker away from progress and towards peace,” (183), showing how elite desire for law in the Augustan period responded to the violence and trauma of the decades before. Tristan Taylor takes on the autocracy problem most directly, asking what it meant, or did not mean, for an emperor to be “freed from the laws” (legibus solutus) within a political framework that took law as seriously as did imperial Rome’s. Taylor, like many of the authors in RoL, locates Roman order not in legal sovereignty as traditionally understood but in a “culture of legality” (212) that expected elite Romans (like emperors) to perform legal boundedness even in the absence of real constraint. Kaius Tuori then moves from emperor-as-legal-subject to emperor-as-judge, arguing that Romans came to view the emperor as the center of a legal system that had previously offered him no place at all. The late Cosimo Cascione concludes the volume with a nod towards the Continental tradition of Roman legal history, looking closely at the relationship between juristic controversy and written legal enactments at the heart of our surviving Roman legal archives.
As I hope I have made clear, RoL makes for great reading. Its chapters are lucid, well-argued and organized, and they offer a compelling vision of law in Roman culture. But the book is, at times, productively disorienting. Nearly every chapter presents itself as a complication, pushing back against a conventional view; each author explains why rule-of-law theory is an awkward fit with their particular account. By the end, RoL struck me as having disproven its own thesis—the vision of Roman legal sovereignty that emerges here is obviously not that of a modern Rechtsstaat, but it is also not particularly trying to be one, nor is it particularly amenable to analysis in the terms such a framework would dictate. Roman legalism is ethical; hyperpersonalist, even in the absence of personalist rule; unpredictable; rhetorically charged; and still very much a working legal system in spite of all that. Romans looked to law for different public goods and would not have necessarily seen the basket of attributes implied by modern rule-of-law theory as a desideratum. That point is not shocking—Adriaan Lanni has shown something similar for classical Athens[3]—but makes ‘the rule of law,’ in particular, an awkward frame to use for this kind of granular cultural history.
In his prefatory chapter, Sevel acknowledges branches of jurisprudence that have expressed doubts about the rule of law on similar grounds, questioning its transcultural value or meaning as more than a rhetorical tendency, before dismissing them in favor of a more “constructive” (13) approach. Ironically, RoL shows just how constructive other kinds of frames can be for historical—as opposed to jurisprudential—analysis; it deepens and complicates set narratives about both Rome and the rule of law.
To end this review where it began: one suspects that the dissonance at the heart of RoL reflects modern, rather than ancient, developments. Authors who came together in 2017 to apply one analytical lens to Roman history have applied a different one today; the resulting volume treats law not as a straightforward transhistorical institution, but as a discursive constraint and rhetorical strategy that different people handled differently in the high-stakes fights that defined Roman civil war and autocratic peace. In doing so, RoL powerfully critiques legal anachronism, and shows how good history can still unsettle us. This book will make you think, and it might make you nervous.
Authors and Titles
Introduction
- The Rule of Law: A Thought Pattern (Michael Sevel)
- In Search of a Roman Rule of Law (Michael Peachin)
- Cato and the Rule of Law (Kit Morrell)
- The Populus and the Rule of Law (Amy Russell)
- ‘Rule of Law’ and the Gods in the Late Republic (Catherine Steel)
- The Praetor’s Edict and the Rule of Law (Andrew Pettinger)
- Non Iure Rogata: The People, the Senate, and the Rule of Law in Republican Rome (W. Jeffrey Tatum)
- Not in the Last Instance (Andrew M. Riggsby)
- Aspiration, Accountability, and Abuse: Augustus and the Law in Post-Conflict Rome (Eleanor Cowan)
- Princeps Legibus Solutus Est an Non? Cultures of Legality in the Roman Empire (Tristan S. Taylor)
- The Emperor as the Good Judge: The Emergence of Roman Imperial Jurisdiction as a Discourse on Justice and the Rule of Law (Kaius Tuori)
- Some Remarks on Certainty in Roman Law (Cosimo Cascione)
Notes
[1] Ann. Skutch 156: moribus antiquis res stat Romana virisque.
[2] See Lisa Eberle, “The Edicts of the Praetors: Law, Time, and Revolution in Ancient Rome,” 42 Law and History Review 237-261 (2024).
[3] E.g., Adriaan Lanni, Law and Justice in the Courts of Classical Athens (Cambridge University Press, 2006).