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ALDO SCHIAVONE. The Invention of Law in the West

Aldo Schiavone . The Invention of Law in the West. Translated by Jeremy Carden and Antony Shugaar . Cambridge, Mass.: Belknap Press of Harvard University Press. 2012. Pp. viii, 624. $49.95.

The American Historical Review, Volume 118, Issue 1, 1 February 2013, Pages 140–142,

Published: 04 February 2013

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In this monumental book, a translation of Ius: L'invenzione del diritto in Occidente (2005),

Aldo Schiavone traces the history of Roman jurisprudence from the beginnings of Rome

until the late classical period of Roman law in the third century C.E. Drawing on his

considerable knowledge of Roman history, culture, and law, Schiavone focuses on

arguably the greatest intellectual achievement of Roman society, the creation of a

system of law, ius, that ordered society but remained under the direction of experts

generally immune from immediate political considerations. Roman law was, in

Schiavone's characterization, “an ineradicable singularity,” a secularized system of law

not immediately subject to politics and legislation, as in Greece, but one guided by elite

experts with exclusive technical knowledge (p. 57). Such an orientation of law had

profound implications for the legal history of the West.

The chief protagonists in Schiavone's story are the classical jurists, originally

aristocrats learned in the law, who dispensed legal advice on an informal basis. The core

of the book traces this struggle from the earliest of the classical jurists, Q. Mucius

Scaevola Skip to Main (ca. Content 140 to 92 B.C.E.), whose treatise on the civil law, or ius civile, would

in韷uence how subsequent jurists would classify and analyze the law. The story ends

with the late classical jurist Ulpian, who, like other jurists in the Severan period (193–

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235 C.E.), served in important posts in an imperial administration that was concerned

with applying the law as uniformly as possible in an increasingly centralized empire.

Schiavone sees an unbroken connection between the classical Roman jurists and the

pontizs (ponti韷ces) of the monarchical and the early republican periods in Roman

history (down to the 韷fth century B.C.E.). The pontizs, who interpreted the will of the

gods, gave to fellow members of the ruling aristocracy “oracular responses” on the

correct rituals connected with the legal relationships by which society was ordered.

These included de韷ning private property and the ways in which it could be alienated, the

transfer of property between generations, and the personal status of individuals within

a hierarchical family structure. The control by aristocratic wise men over law survived

the challenge posed by the publication of the Twelve Tables in the mid 韷fth century

B.C.E. Unlike many cities in the Greek world at this time, Rome did not experience a

democratic revolution, and the authority to interpret the law remained with members of

the aristocracy, 韷rst the pontizs, and then, as Rome changed into an Italian and then a

Mediterranean power in the fourth and third centuries B.C.E., the praetors, magistrates

who were responsible for the administration of law. This “elite of experts selected by an

ancient tradition” imposed an order on society, one that retained a high degree of

formalism and so was not controlled by democratic legislation (p. 285). The Roman legal

authorities, including the republican praetors and the jurists, evolved in their

conception of the law, moving beyond a purely formal application of what were

originally ritualistic procedures, freeing the law to some extent from this pure

formalism as a way of regulating private relationships among people. In their

understanding of the law, the jurists wrestled with balancing respect for their tradition

against the need to modify the law to accommodate an evolving understanding of

fairness. At all times, the Roman jurists asserted the autonomy of their authority as

learned experts capable of formulating rules to regulate society by looking to the past

and stressing their connection to this ancient tradition.

The problem of maintaining the intellectual independence of the jurists was keenly felt

under the principate, as Roman emperors came to play an increasing role in the creation

of law and in the administration of justice. Schiavone illustrates this tension with two

jurists, both of whom shared in the same intellectual tradition, but whose careers could

hardly have been more dizerent: Labeo, the great jurist under Augustus and Tiberius at

the beginning of the principate, and Ulpian, one of the most important 韷gures of the

Severan age. As an opponent of the principate, Labeo sought to preserve Roman

jurisprudence Skip to Main Content as independent of the princeps, and his respect for the antiquity of the law

and the profession of jurisprudence took on an ideological character (chapter

seventeen). At the end of the classical period, by contrast, Ulpian, who held important

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administrative posts under several emperors, sought to reconcile the work of the jurists

with the reality that the emperor played a decisive role in creating the law (chapter

twenty-one). Between Labeo and Ulpian, the profession of jurisprudence underwent

profound changes. The position of the jurist became a semi-o韛cial one, as emperors,

beginning with Augustus, granted them the ius respondendi, or the right to issue

responses to legal questions that would be binding for courts. In the second century, the

emperors became directly involved in the creation and administration of the law.

Emperors played an increasing role in responding to legal questions from citizens

around the empire and in hearing cases on appeal, and their responses, or constitutions,

created law. At the same time, the emperors sought to maintain authoritative legal

institutions that would facilitate the administration of justice. Thus at the Emperor

Hadrian's instruction, the jurist Julian redacted the praetor's edict. By the end of the

Roman Republic, the praetor's edict had become a body of law, ius honorarium, based on

new legal remedies introduced by the praetors, that substantially modi韷ed the ius civile,

the product ultimately of the Twelve Tables as well as subsequent legislation. The

emperor now loomed over the interpretation and administration of this law. Even so, in

the early third century, Ulpian very much saw himself as operating in a long tradition of

juristic independence going back to Q. Mucius Scaevola. The dizerence now was that the

late classical jurists “were making their own technique the principal instrument of

administration, inventing a form of State, and becoming protagonists of a world power”

(p. 427). Ulpian and other late classical jurists recognized that their work had evolved

from that of their predecessors, since they were intimately involved in the work of the

Roman government in administering justice. Even so, in Ulpian's view, their work was

characterized by a search for justice, and in this ezort, he saw the jurists as true

philosophers (pp. 423–428).

The intellectual principles on the basis of which the jurists developed their

understanding of the law are quite complex, as Schiavone discusses in nine core

chapters. Although profoundly in韷uenced by the intellectual climate of the Greek world,

especially Aristotelian and Hellenistic philosophy, the Roman jurists nevertheless

created an intellectual 韷eld unique to itself and quite independent of Hellenistic models.

The jurists tended to avoid grand theoretical analyses of the law, but instead they

developed an abstract, casuistic method, informed, however, by broader principles

based on a changing understanding of equity. The Rhetorica ad Herennium, an early

韷rst-century B.C.E. rhetorical treatise, expressed a principle that Schiavone sees as

underlying this ezort: “Justice is the equity that gives to each his own right, for the

dignity Skip to Main of all” Content (p. 299). Schiavone illustrates how the jurists' understanding of equity

in韷uenced their interpretation of the law by focusing on their varying understanding of

the principles underlying contracts. The central issue was their willingness to modify

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formal categories to create a more general theory of contracts that would accommodate

all types of lawful agreements freely entered into by individuals. To take a speci韷c

example, in the law of partnership, or societas, Q. Mucius Scaevola sought to link this

form of contract with an ancient institution, consortium, in which heirs would continue

to hold and operate their property in common (pp. 216–220). In Scaevola's

understanding of a societas, each party had to provide property and shared

proportionally in all pro韷ts and losses. In the next generation, by contrast, Servius

Sulpicius Rufus was willing to accommodate within the law of partnership more

complex relationships arising from the commercial world. For example, he recognized

as a partnership a relationship in which one party contributed only skills or services, not

property, and was indemni韷ed against any losses (Gaius, Inst. 3.149–50, p. 219).

The signi韷cant accomplishments of the classical jurists lead us to wonder whether they

were successful at adapting the law to meet social needs, or even to change society. In

approaching this question, Schiavone focuses on the complex interplay of law, social

values, and the economy, and his ultimate verdict seems to be pessimistic. To be sure,

innovations in the law of contracts and obligations facilitated the complex commercial

relationships. At the same time, there was a limit to how far such legal innovation could

go, as the Roman economy, and Roman law, remained dominated by the institution of

slavery. Roman law never developed institutional arrangements oriented around

production and the use of wage labor, which would seem to be essential for the economy

to escape the constraints of one dominated by agriculture (pp. 362–365). Instead, the

law concerned itself with the ownership of property and personal status. Thus a central

issue in Roman commercial law revolved around the degree to which slaves (and other

legal dependents) serving as business agents created liability for their masters.

Schiavone may overstate the degree to which agricultural production in late republican

and early imperial Italy revolved around slave labor (on this, see Alessandro Launaro,

Peasants and Slaves: The Rural Population of Roman Italy (200 B.C. to A.D. 100) [2011]), and

the common assumption that slaves comprised about one-third of late republican

Italy's population is likely to be an exaggeration (see Walter Scheidel, “Human Mobility

in Roman Italy, II: The Slave Population,” Journal of Roman Studies 95 [2005]: 64–79).

Still, the institution of slavery pervaded all aspects of Roman society, including the law.

Indeed, one of the intellectual failures of Roman law, as Schiavone discusses in the 韷nal

chapter, was that jurists never applied their understanding of natural law to develop a

philosophical conception of individualism and human rights that would call into

question the institution of slavery. Skip to Main Content Schiavone seems unduly pessimistic in his judgment of the contribution that the jurists

made to the governing of the empire. For Schiavone, the Roman Empire was in a long-

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term state of crisis, stemming from the gradual systematic collapse of its slave system and, perhaps more important, the need, beginning in the second century C.E., to create an increasingly centralized and bureaucratized administration in an empire whose economic resources were not expanding. The considerable power that the emperor wielded in the second and third centuries C.E. as legislator and judge seemingly diminished the independence of juristic thought, but at the same time the great late- classical jurists held positions of high responsibility in the imperial government and so were in a position to in韷uence the administration of justice for the empire to a degree unthinkable for jurists of an earlier age. Schiavone sees the role of the emperor in responding to petitions on legal matters (in fact, the most important jurists of the Severan age, including Ulpian, headed the o韛ce that responded to these petitions) as fundamentally altering the role of the jurists. It also seems to be the case, however, that this role of the emperor, as emphasized in several recent works, such as Serena Connolly's study of petitions under the Emperor Diocletian (Lives behind the Laws: The World of the Codex Hermogenianus [2010]), brought access to authoritative legal institutions to a vast class of people across the Roman Empire. The strength of the empire's legal institutions, ultimately resting on centuries-long work in Roman jurisprudence, was crucial in enabling the empire to survive its crises. If the jurists lost some of their independence in this process, they were the victims of their own enormous accomplishments.

With such a rich and challenging book, it is di韛cult for a reviewer to do justice to the author's learning. In The Invention of Law in the West, Schiavone not only traces the development of a lasting intellectual tradition but shows how central Roman law is to understanding Roman history from its foundation through the high empire.

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