This review aims at attracting the attention of ancient historians and classical scholars to the wealth of legal issues and material made available in the text under review and avoids any attempt to offer better interpretations of the many legal topics treated. A close reading of each chapter reveals a fairly balanced discussion of the many topics pertaining to Roman private law. Six specialized editors, sixty-five authors (including the editors), mostly with German, Austrian and Italian academic pedigrees, and numerous editorial assistants have produced an impressive scholarly handbook (hereafter HRP) in one-hundred and twelve chapters,[1] organized in five parts (cf. below) within two volumes (§§1-58 and 59-112), and supplemented by one volume of general index (Sachregister, 3’053-3’195) and source index (Quellenregister, 3’197-3’453), with a 223-page bibliography (Literatur, 3’455-3’673) all dedicated to the study of Roman private law, providing both a treasure and something of a challenge for the reader. While no programmatic introduction — nor general conclusion — is provided, it is obvious that the targeted audience comprises highly specialized scholars of legal history rather than regular law students, even though the format is meant to be as user-friendly as possible. Each chapter starts with a survey of the most relevant and recent bibliography, followed by a detailed table of contents. The core of the text is organized in many-tiered sections (with titles and subtitles) and paragraphs (Randnummer). Footnotes reference primary sources (sedes materiae), selective quotations of original texts, the longest ones with translation, and specific scholarly literature. Additional remarks within the footnotes are limited, and tend to be rather technical or marginal.
Although not advertised as such, HRP will be received as an update of Max Kaser’s second edition of Das römische Privatrecht (Munich 1971 and 1975, first edition 1955-1959), itself a hefty work of some fifteen-hundred pages by a single scholar. Because they are very much complementary, in part due to their respective outline and organization, both works will be—and remain—necessary tools of research. Kaser adopted an historical approach, dividing his work into different periods, with a main part focusing on archaic, pre-classical and classical Roman law (up to the middle or end of the third century), and devoting a whole volume to post-classical developments, while noticing that a radical change toward interpolations during the twentieth century resulted in shifting much of the material once considered late antique to an earlier period (Römische Privatrecht II, 1975, ix). By contrast, HRP’s editors wisely gave up such a time-division, and each chapter presents and discusses legal institutions over the long term, from their traceable origins to later (Justinianic, occasionally even Byzantine or mediaeval/early modern) developments.
Another major difference consists in Kaser presenting the judicial system and forms of litigation in a separate volume (Das Römische Zivilprozessrecht, 1966, 2nd ed. by K. Hackle 1996), while HRP included it as an introduction and counterpart to the presentation of formal acts such as in iure cessio, libral acts and oath. Typically, the formulary procedure is discussed through five chapters (§§ 10-14), written by four different authors, dealing first with general principles, followed by ways of introducing litigation, the two-stage trial, respectively before the magistrate (in iure) and the judge (apud iudicem), to end with enforcement. What is lost from a single, if possible original, vision of the judicial framework is more than made up by the complementarity of a plurality of individual approaches and some welcome overlaps, usually cross-referenced in footnotes.
Ancient historians will find much of interest in the preliminary sections (Grundlagen), especially in Michel Humbert’s discussion of the essence and sources of Roman law, with the emancipation of legal science from the constraints of rhetoric, and the development of the casuistic approach toward a ius controversum (strittiges Recht) whereby private jurists were playing with arguments within a framework defined by statute laws, magistrates’ edicts, and imperial legislation. The context is then detailed by P. Buongiorno (for the Republican period), Emanuele Stolfi (for the Principate), Lorena Atzeri (for the post-classical period, in the fourth and fifth centuries), and Peter E. Pieler (for the Justinianic period). The whole part is crowned by Ulrike Babusiaux’s magisterial essay on legal layers (§6, Römische Rechtsschichten), a concept created in the mid-20th century by W. Kunkel and M. Kaser (e.g. Römische Privatrecht §49), to allow a fine appreciation of the relationship between civil and praetorian law, vs. ‘international’ and natural law. The source material is presented in great detail in the next two sections (§§7-8): D. Liebs on legal literature, an updated and expanded version of his respective chapters in the Handbuch der lateinischen Literature der Antike, a most valuable compendium facilitating the use of such obscure texts as the Fragmenta Vaticana or the Sententiae Syriacae, among others; and quite new and impressive, the joint endeavor by José Luis Alonso and Babusiaux surveying the papyrological and epigraphical material, which offers a welcome outlook on provincial legal practices and legal pluralism. Babusiaux also offers a welcome reminder (§8, Rn. 195, n. 596) about how to use material of uncertain provenance.
Part III deals with the law of persons, in particular the legal capacity of individuals and communities, with two contributions by Francesca Lamberti, on citizenship (§26) and the public and private rights attached to it, the acquisition and loss of it, especially through capitivity (§27), social rejection (§28, Constantin Willems on infamia), gender (§29 Evelyn Höbenreich, on women), age and mental health (§30, Jakob Stagl/Giorgia Maragno, on infantes, minores xxv annis, furiosi, prodigi), and legal incapacity (§31, Susanne Hähnchen on tutela and cura). A second section focusses on family organization, marriage, dowry, and the legal status of dependent persons (§34, Francesca Lamberti on filii familias). Well worth reading are the chapters by Richard Gamauf on slaves (§36) and Carla Masi Doria on freedmen (§37), two categories on which current research is moving fast and therefore in need of regular updates, best served by the respective authors’ thoroughness and previous work.
Part IV is dedicated to the law of property, including all forms of control, pledge, servitudes, and successions. In three flawless chapters Fabian Klinck provides the most efficient discussion of the concept of ownership (§39), civil possession (§40), and usucapio (§44), with interesting considerations on the time-factor in law (Rn. 35 on iustum initium). Guido Pfeifer contributes short studies on the acquisition of property (§43, counterpart of his chapters on formal acts in the previous section, §§16-17) and its basis ((iusta) causa, §45), as a way to direct readers to other chapters with fuller discussions. Such short but necessary notes add some fluidity to the overall outline of the work. The law of succession looms large in Roman law, and the seven chapters of section 3 of Part IV will be supplemented by chapters introduced elsewhere, such as §18 (Thomas Rüfner on testamentum per aes et libram and other forms of last will arrangements), §60 (Markus Wimmer on legatum per vindicationem), §64 (Andrés Santos on hereditatis petitio), §97 (Sebastian Lohsse on wills, actio ex testamento), §98 (Thomas Rüfner on trusts, fideicommissa), §99 (David Rüger on donatio mortis causa), and §100 (Dietmar Schanbacher on restrictions to the freedom of making a will, based on the lex Falcidia or the senatusconsultum Pegasianum). Such scattering was unavoidable in view of the chosen outline, and constitutes sort of a trademark of HRP.
The fifth part fills the whole second volume and deals with legal remedies (actiones) and counterremedies (exceptiones). This arrangement underlines the casuistic rather than systematic approach of Roman lawmakers (and of HRP’s editors). The first section presents the so-called actiones in rem or vindicationes consisting in establishing the status of things in view of their acquisition by, or restitution to, conflicting parties, including official interventions (interdicta) to do or to abstain from some claim or behavior. The second section focusses on a set of remedies resulting into division of (joint) ownership or disputed boundaries (§67, Amelia Castresana), incidentally relevant to the context of the law of inheritance as well. The bulk of the part deals with actiones in personam, or condictiones, legal remedies providing redress in connection with contractual or delictual obligations, establishing civil liability, with penalties for the latter, in case of theft (§93, Martin Pennitz on actio furti), malice (§94, Tommaso dalla Massara on actio doli), denial of rights (§95, Alessandro Hirata on actio iniuriarum, also addressing non-physical violence). The remedy for damages to property (§92, Bénédict Winiger on actio legis Aquiliae) is most interesting because it raises questions of definition (what was iniuria in the early third century BCE? how did the concept evolve over time?) and of appreciation (what is the value of the damaged thing/slave? how does it relate to the damage suffered as a result by its owner? how direct the cause of the damage should have been?).
Similar economic considerations are attached to those remedies sanctioning obligations created by contracts. This double section (§§69-77 on condictiones) and (§§78-90, on bonae fidei iudicia), introduced by Adolfo Wegmann Stockebrand (§68, definition, dissolution, and causes), will be of much interest to historians of the ancient economy, with a thorough survey of all forms of contracts (§79, Wolfgang Ernst on actio empti, actio venditi, 250-pages long, is slightly out of place in a Handbuch, by comparison with §80, Paul du Plessis on actio locati, actio conducti, a mere 26 pages, or §81, Franz-Stefan Meissel on actio pro socio, some 40 pages). The same interest lies in formal acts discussed in the procedural part (§21, Thomas Finkenauer on stipulatio/verbal contract, with §74; §§22-24, Peter Gröschler on real, written, and consensual contracts; §25, Johannes Platschek on other types of agreements, so-called recepta, with §71 ) and in remedies for the transactions carried out by dependents on behalf of their principal, but one may wish that all four chapters had been entrusted to the generous and innovative Richard Gamauf (§§102-103, on actio de peculio vel de in rem verso; actio tributoria) rather than to the pedestrian and minimalist Alfons Bürge (§§101, actio quod iussu; and 104, actio institoria, actio exercitoria). The section closes with a fascinating discussion of noxal liability and surrender, or the survival of an archaic institution through the whole Roman empire (§105, Martin Pennitz).
The second volume ends with seven studies on defense remedies (exceptiones), allowing defendants to counterattack with neutralizing or delaying tactics (§106, Johannes Platschek), evoking side agreements (§107, Gröschler on pacta), or malice on the part of the plaintif (§108, Tommaso dalla Massara on exceptio doli), suggesting intimidation (§109, Birgit Forgó-Feldner on exceptio/actio quod metus/causa), or even starting the procedure from scratch (§110, Hans-Peter Benöhr on in integrum restitutio). The last two chapters nicely overlap each other, with Pascal Pichonnaz discussing compensatio with regards to retentio (§111), while Forgó-Feldner (§111) delves in detail into the application of right to retain other’s property/money in various contexts (contracts, inheritance, dowry).
Overall, the authors should be credited for their Gründlichkeit, their attention to detail, their occasional interest in etymology, Latin grammar, comparative linguistics and law, palaeography, documentary evidence, provincial particularism, and reception. French- and English-language scholarship might be somewhat underrepresented, but it certainly reflects the comparative liveliness of Roman law studies in Germany, Italy, and Austria. The editors are also to be praised for the end result, especially for the quality of the overall presentation (few typos throughout, some occasional problems with Latin quotations and translations), and what seems to be a hands-on involvement on the part of some of them (esp. Babusiaux with five major contributions in addition to translating others, Platschek with eight, and Rüfner with another five). Unfortunately, the price of the three volume-set (more than €600) will deter many from purchasing it.
Moreover, it would have been pleasant to read a final assessment of the project in a general conclusion, with some reflection on what was aimed at and what was eventually achieved. The patient reader of the full 3,050 pages can be satisfied with an up-to-date state of the research in Roman private law, while becoming acquainted with current members of this specialized community and perhaps also becoming aware of how little space is left for further research, outside the newly published documentary evidence. That said, the footnotes indicate an abundance of diverging opinions about the most minute details of interpretation, suggesting further room for work. While HRP is a convenient tool for research (more so than for teaching) thanks to its meticulous indexing and comprehensive bibliography, it remains rather traditional in its Gaius-based approach. What would an updated, 5,000-page Handbuch look like a generation from now? Maybe not that different.
Notes
[1] To be cited by the author, chapter (§), paragraph (Rn.), and footnote (n.)