In their scholarship, Origen and Eusebius made revolutionary use of tabular organisation, a device little known in earlier Greek and Roman contexts. This usage is driven by a variety of ideological motives but likely enabled by physical features of their working environment. In the more specific case of his Hexapla, Origen drew on the already quasi-tabular form of bilingual texts previously used for language instruction. This has consequences for debates about the meaning of the ordering and function of the individual columns. It also suggests that the reader was to be interpellated as a (subordinate) student, whatever their actual relationship to Origen or his text was.

This chapter has a somewhat different focus from the majority of the essays in this volume.1 Accepting the truth of the distributedness (in various senses) of cognition, those other essays use that truth to shed new light on a variety of what might be called, in a very broad sense, ancient philosophies of mind, both folk versions and more intellectualised ones. Though beginning from similar assumptions, this chapter does not proceed in that archaeological direction. Rather it argues that modern awareness of distributed cognition is crucial to the causal explanation of historical phenomena that are less theoretical. It is a history that uses the concept, not a history of the concept. (In this respect it is closest to the contributions of Meineck, Roby and, in parts, Short to this volume.) In particular, I suggest that distributed cognition is important to understanding when and how Romans used certain scribal techniques of information organisation.

Some Definitions

The easiest way to explain the scope and aims of this chapter may simply be to gloss several words and phrases in the title. ‘Information technology’ is of course a potentially very broad field, but I mean it here in a fairly abstract sense. Instead of concrete objects, such as the book or the abacus, I will focus on two conceptual devices that I hope will be exemplary – the table and the multiply-nested list. I mean both of these as terms of art, and I will discuss the specific definitions I have in mind below. By ‘Roman world’, I mean principally the Latin-speaking world, rather than all areas that happened to have been under Roman political domination. Though there seem to be broad similarities between ancient Mediterranean societies in information handling, the distribution of specific technologies tends to be language specific. Conventionally, if somewhat arbitrarily, I also limit myself to the pre-Christian empire. Finally, the chapter suggests that ‘cognitive’ factors play a significant role in whether or not these technologies are developed and used in particular contexts. Despite my use of the word ‘conceptual’ above and the formal character of the definitions below, I do not treat the tables and lists as mental abstractions. In fact, a more distributed model of cognition explains their use patterns; they are more successful in environments where there is more ‘scaffolding’, with various material, kinetic and social forms to support them.

This chapter is entitled “Sources of Roman Law” in contrast to the next chapter on “Sources for Roman Law.” The difference is that this chapter takes an ancient point of view. If you were an ancient Roman, where did the laws you had to live by come from? As the previous chapter noted, the Romans did not have a Congress or state legislatures or city councils to pass laws. Nor, for much of their history, did they have a king or other single dictator who could just issue decrees. How then were laws made? The next chapter will take up a modern perspective. How can we find out today what the law was then? Historians today must sort through often obscure, ambiguous, and contradictory evidence to answer almost any question about the ancient world. Where in particular do we need to look to find out about Roman law?

THE PRINCIPAL SOURCES OF LAW

Although Roman political institutions were different from those of the modern United States, the sources of law in both systems can be put into the same three general categories: “statute” law (law enacted by a legislative body), administrative rules, and judicial interpretation. This section will outline the Roman versions of these three types, noting changes in them tied to the transformations of the Roman government. I will point out similarities to and differences from modern practice. The next section will look at how the different sources interacted with each other.

ROMANS AND ROMAN LAW

Today the ancient Romans are probably best known for the dramatic and bloody parts of their world (say, gladiators and legions) or for the quaint details (think aristocrats wearing togas and carried in sedan chairs). But if we ask what their most important or most lasting mark on the world was, the answer would almost certainly be their legal system. Of course, many other ancient societies had legal codes, some long before the Romans'. A famous inscription now housed in Paris gives us the Code of Hammurabi, a set of nearly 300 legal rules from eighteenth-century b.c. Babylon. The five Old Testament books of the Torah offer us much Jewish law from rather later. The other great “classical” civilization, that of Greek Athens, has left us a substantial legacy of courtroom oratory. Yet over the course of centuries, the Romans developed something genuinely different. Their legal system was vastly larger, more encompassing, more systematic, and more general than anything else that existed at the time. Moreover (and through different routes) it returned to life even after the fall of the Roman Empire.

If someone says the word “law” to you, the first things likely to come to your mind will include “courts” and “trials.” Arguably, that is a distorting view, and the law has its greatest effect less directly – when people know how to follow the rules on their own without direct enforcement or judgment, as in a game of pick-up football. Still, even that situation probably could not exist without at least the possibility of formal trials, and courts are one of the most distinctive features of what we would recognize as a “legal” system. This chapter will discuss the procedure in what we usually call Rome's “civil” courts (the actual Latin word is “private”), where the vast majority of cases were heard. Criminal (literally “public”) procedure will be treated in Chapter 19. I will begin by discussing the set of rules used during most of our period: the so-called formulary procedure. Then I will treat more briefly its predecessor (the legis actiones) and a partial successor (called cognitio).

While this chapter is about procedural rules, not the substantive law discussed in most of the rest of this book, I should make one substantive point here. Since the civil and criminal courts operated under very different rules, I need to give a very brief description of the different jurisdictions here.

The family seems to be an important institution within all societies. So it is not surprising that societies, modern or Roman, with sophisticated legal systems have elaborate rules about those families. They regulate, for instance, eligibility for marriage or transfer of wealth by inheritance. But the general similarity can be misleading. While the importance of “family” may be universal, ideals and even the definition of that term can differ considerably. The Roman word familia, for instance, usually means “household” or even “the slaves of the household.” Latin does not have a word that clearly refers to what we today call the (nuclear) family. As a result, the shape of Roman family law can be surprisingly different from modern versions. For instance, it has very little to say about issues like grounds for divorce, alimony, child support, and child custody. In some instances this is because the Romans thought the questions were easier to answer than we do; in other cases, it is because they didn't ask the same questions in the first place. Other issues, such as the authority of a father over his adult children or treatment of dowry, loomed much larger in Rome than they do today. Over time, the shape of the Roman family (and of marriage in particular) changed. It was affected by several factors. One of the most dramatic of these was the rise of Christianity. The final section will look at the legal consequences of that transformation.

Roman and common law have similar ideas of a “wrongful act which does not involve a breach of contract and for which the injured party can recover damages in a civil action”; we call this a “tort,” and in Roman law the parallel category of acts is called “delict.” Delicts were tried according to private procedure, and the plaintiff, if successful, received money compensation for the damage but potentially also additional cash as a punishment of the wrongdoer. Thus delicts and torts are somewhere between crimes (very much the business of the state) and, say, contract disputes (primarily a matter between the parties alone). The main difference between tort and delict is that the Romans included under the heading of delict several offenses (theft, most assaults) that we routinely treat as crimes today. The following sections will treat three of the most important delicts, but I will begin by noting some features that are common to most or all of them. First, every delict required both an overt act and the intent to commit that act (even if not all the consequences were intended). Thus mere accident or bad intention alone could not give rise to a delict. These rules are shared with those for crimes (see the next chapter) as against, say, cases of contract law. Also (and again in common with the criminal law), not only the criminal himself was liable, but also persons who gave significant aid in planning or carrying out the action, so long as they too had the same intent, and all the participants in the act were individually liable for the full amount of damages.

This is a particularly technical area of the law, and the extent of my simplification will be greater than usual. “Ownership” is, in general, the right (or a set of rights) to control a thing, a piece of property. While there are differences between Roman and common law in this area, it would be fair to say that the Romans had a notion of ownership, which they called dominium. (I will also sometimes use the alternative English term “title” as a synonym.) Since ownership is a matter of rights, the question of who “owns” something is necessarily a question about legal rules. Both Roman and common law also give some recognition to the notion of “possession.” At least initially, the question of who “possesses” something is a matter of fact, not of law, but over time both systems turn possession into something that is more like a lesser degree of ownership. The kind of “things” that can be owned in Roman law are quite varied, including movable property (money, tools), real estate (both land and buildings), living beings (livestock, pets, human slaves), and more abstract rights (the right to collect a debt, to extract clay from a piece of land, to file certain kinds of lawsuit). The first two sections of this chapter will treat the basic rules of ownership and possession, respectively. The third section will then discuss how the two notions were brought closer together over time.

At all times, but especially during the Republic, the Roman government lacked a police force and other bureaucracies that could check ordinary crime, much less control behavior that was less dangerous but still disfavored. Attempts have been made to find elements of the Roman government that might have taken on these functions, but the evidence has been lacking. No magistrate had a major responsibility in this area, nor did any have at his disposal the large number of dedicated employees that would have been required to police a city the size of Rome. In fact, it has recently been pointed out that police forces in general are actually a very recent invention. Rome was somewhat unusual for a premodern state in not allowing military forces into the city, which meant that they could not be used to enforce public order. (Presumably, they would not have been effective for less organized antisocial behavior anyway.) Still, the Romans found ways to try to use law to impose a certain degree of social control.

VIOLENCE

Early Roman law and tradition had, if not encouraged, at least accepted a fair amount of self-help in protecting one's own rights. We know of several forms of more or less ritualized protest and shaming that a wronged party might use to get justice from the supposed wrongdoer: harassing verses, appearing in public in mourning clothes, and simply calling out for aid.

I begin this chapter with three very general observations. (1) While Roman education took on mostly Greek forms, education in the law had no real Greek precedents. Formal legal education is thus generally thought of as Rome's great innovation in pedagogy. (2) While basic literacy was expected of women of the upper classes in Rome, and while a few even became quite learned on their own, they were cut off from most advanced education by custom. Moreover, they were banned from most courtroom activity by rule. Hence, the references below to “men,” “sons,” “he,” and so forth are meant to have their full, gendered force. (3) The evidence for Roman legal education is a little peculiar. We have essentially two snapshots of standard practices at two particular times – the late Republic and the later Empire – and a slightly broader but also less detailed view of what went on in the first two centuries of the Empire. We have virtually no information on the transitions between these phases. In what follows, I will simply treat the three phases in chronological order.

Before discussing Republican legal education, it is important first to know a few things about Republican education more generally. By the later part of the Republic (if not much before), the formal education of the Roman upper classes had become fairly standardized.

The roman courts divided cases into the “private” and “public” in something like the way we divide “civil” and “criminal.” One of the important differences is that in Roman law some of our main criminal offenses (most thefts and assaults, seemingly including murder) were in the private category for most of our period. The public offenses also attracted much less attention from the Roman jurists than private-law matters, and surviving speeches from actual prosecutions have surprisingly little to say about legal issues. The explanation for all these facts may be that the Romans had a very political understanding of the role of the public courts. This is not to say that they were “political” in a corrupt sense (though that might be true as well). Rather, they existed only to treat matters that were inherently political in that they affected the community as a whole (say, electoral bribery or abuse of office). An offense to an individual victim with no broader consequences, no matter how heinous, just was not the right kind of offense for these courts. Mere law and order were not sufficient grounds. And to the extent that the community was defending itself in these courts, the law was not acting as a fair or impartial third party settling disputes. Hence, lawyers were neither interested or interesting in these contexts.

Roman history is usually divided into three periods based on the form of the central government: the “monarchy” or “regal period,” when kings ruled; the “Republic,” a more democratic government; and the “Empire,” when (naturally) emperors ruled. (Note that Rome was an empire [small e] in the sense of “conquering power” centuries before emperors came to the throne. I will use the capitalized “Empire” to refer to the time and form of government.) These divisions are not necessarily as important for the legal system as they are for some other aspects of Roman life, but they do determine where law came from, and give a general background against which to set specifically legal developments. The first three sections of this chapter will give brief explanations of the forms of government that define these three periods. The fourth will mention a slightly different way of dividing things up that is more closely tied to legal history. The final one explains the history of a specific institution that is especially important for Roman law: Roman citizenship.

THE MONARCHY

Roman legend has it that the city was ruled by kings from its founding (in perhaps 753 bc) until a coup which removed not only the last king but the kingship altogether (in 509 bc). Modern scholarship finds these dates (especially the one for the founding) highly suspect, and questions how and even whether the individual events happened.

The american declaration of Independence asserts that “all men are created equal.” Similar ideas have led most modern legal systems to the ideal (not always lived up to) of equal treatment by the law. Roman society, by contrast, took for granted the idea that different people had different value. Consequently, the Roman legal system recognized or created a variety of inequalities. Most of these are described elsewhere in this book (especially in Chapter 10), but a brief summary in one place will be in order. Women were under restrictions that did not apply to men. Younger and younger children had progressively fewer rights. For political reasons, some people were free (including ex-slaves) and some enslaved. Among the free people, different ones were citizens of different communities. All of these distinctions produced different sets of rights. The blind and the deaf were also restricted, as were the “insane.” The wealthy had explicit political privileges, though generally not legal ones. Magistrates did have some legal advantages. Starting from the first century ad, there was a more lenient bankruptcy procedure available to “notable” persons. There is even some evidence that the praetor might (sometimes) simply refuse to grant actions against a more powerful person by a less powerful one. But despite all this, Roman law remained surprisingly egalitarian in certain theoretical respects. To simplify the situation slightly, the factors just listed all affect what questions had to be answered in court, but should not affect a trial once under way.

Most of this book has assumed that the persons involved in its situations were Romans living in Rome (or perhaps their slaves). Roman law, however, was fairly sensitive both to the citizenship of individuals and to the location of a given legal dispute. (Since one's birth citizenship rarely changed, citizenship and location often do not line up.) Thus we need to think at least a little about several other situations: Romans interacting with each other abroad, Romans and aliens interacting (both in Rome and elsewhere), and two non-Romans interacting within an area of Roman rule.

CITIZENSHIP AND JURISDICTION

The central principle is what we today call the “personality principle.” That is, the law that governs you depends more on who you are than on where you are. Consider, for instance, an Athenian or Jewish couple living in Rome but without Roman citizenship. Were they legally married? What rights did they have against each other or any children? What happened to the property when one or the other died? The Roman law rules discussed earlier (Chapters 15 and 16) did not apply. Rather, the Romans left this up to Greek and Jewish law, respectively, to decide. (If there was no nearby court to decide these issues conveniently, that was not the Romans' problem.) Of course, there were exceptions to this principle, and these will be discussed later, but it is important to begin with one clarification. Limited jurisdiction is a legal concept, not a political one.