FORBIDDEN PLEASURES: SUI1PTUARY LAWS - UCL Discovery

383 Pages·2008·19.18 MB·English

PREFACE
Classical historians, no less than their modern
counterparts, were preoccupied with the task of formulating
the underlying principles of historical development. A
compelling and enduring perspective was fashioned during the
tumultuous instabilities of the late Roman Republic. That
moral atrophy had affected the conduct of leaders and
populace alike became axiomatic arid provided the basis for
explaining significant types of social and political change.
Corroboration was offered in the actualities of political
statecraft - the promulgation of sumptuary and related
social legislation. In contrast to the studied optimism of
post nineteenth century evolutionary theorists, with their
accent on progress in human affairs, these ancient observers
discerned a unilinear movement in a very different
direction.
This thesis seeks to explicate the legislative actions of
Roman authorities and the commentary they provoked. By
necessity it is a wide-ranging inquiry. Modern analyses of
political discourse are brought to bear on questions of
long-standing importance.
A brief introduction reviews the scholarly literature and
surveys the relevant legal enactments. In chapter two the
basic components of this legal discourse have been decoristr-
ucted in order to examine severally their implications. The
central socio-economic concerns of Roman sumptuary arid
related social legislation form the core of chapter three.
Then the available evidence for those sumptuary measures
which were passed during the late Republic is assessed under
different legal categories and discussed with particular
reference to the powerful political imperatives of this
period. In chapter five the focus of interest centres on
enforcement procedure and is concerned to explain how, in
the absence of complex executive agencies, the Roman
authorities sought to ensure compliance with their designs.
Subsequently, the ramifications of the imposition of legal
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norms seriously at variance with established social practice
are explored. Resistance, whether technical in the shape of
legal dodges or flagrant as revealed in outright
contraventions such as symbolic usurpation, forms one topic
of inquiry. Another is the fascinating interplay between
publicly acceptable canons of behaviour and current
practice, between statutory and actual morality which
surfaces in the adjudicative processes of the courts.
Ciceronian evidence is drawn upon to demonstrate how the
mechanisms of forensic practice provoked maturer reflections
on social change. In the final chapter salient types of
early imperial intervention are investigated and the diverse
functioning of the legal discourse on moral decline is
analysed in its changing historical context.
Many debts have been incurred In the course of this
investigation. I should especially like to thank Dr. Tim
Cornell, who kindly undertook to supervise my thesis at a
formative stage, for his patient and thought-provoking
support of my endeavours. Without his encouragement and
practical help my task would have been infinitely heavier.
The commencement of my research owed a great deal to the
assistance and inspiration of Professor Frank Goodyear. For
his valuable guidance during the initial period I am deeply
grateful. The advice and suggestions, especially on Greek
history, of Dr. Susan Sherwin-White were much appreciated.
Finally, I should like to express my gratitude to the
organisers and participants of the Ancient History seminars
at the Institute of Classical Studies and at University
College London for providing stimulating discussion on a
whole range of matters. I have particularly benefited from
the comments and criticisms of Professor Michael Crawford.
Needless to say, sole responsibility for the premises,
methodology and conclusions contained in this thesis lies
with myself.
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ABBREVIATIOJS
AHR American Historical Review.
AJPh American Journal of Philology.
Annales Anna.1es: Economies, Sociétés, Civilisations.
A tb Athenaeum.
BICS Bulletin of the Institute of Classical Studies.
BPP British Parliamentary Publications.
Bruns Fontes luris Romani Antiqui . ' ed. C.G. Bruns 1909.
CIL Corpus Inscriptionum Latinar-um 1863-.
CJ The Classical Journal.
Cl Ant Classical Antiquity.
CP.b Classical Philology.
CQ Classical Quarterly.
CR Classical Review.
CWe ek Classical Weekly.
.DHI Dictionary of the History of Ideas ed. P.?. Wiener
1968.
EcHR Economic History Review.
EHR English Historical Review.
EJ Documents illustrating the Reigns of Augustus and
Ti ben us collected by V. Ehrenberg & A.H.X. Jones
Oxford, 1976
Enc. Br. Encyclopaedia Britannica.
ERE Encyclopaedia of Religion and Ethics ed. J.
Hastings et alii 1908-28.
ESS Encyclopaedia of the Social Sciences
ed. E.R.A. Seligman 1930.
FIRA Fontes luris Romani Antelustiniani vol.1 ed.
S. Riccobono 1941.
GIF Giornale Italiano di Filologia.
G&R Greece and Rome.
Hist. Historia.
HJAS Harvard Journal of Asiatic Studies.
HSCP Harvard Studies in Classical Philology.
lESS International Encyclopedia of the Social Sciences
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ed. D.L. Sills 1968.
IJ Irish Jurist.
ILS Inscriptiones Latinae Selectae 3 vols.
ed. H. Dessau 1892-1916.
ISS.B International Social Science Bulletin.
JHS Journal of Hellenic Studies.
JLE Journal of Law and Economics.
JRS Journal of Roman Studies.
Hal c. Oratorum Romanorum Fragmenta 3 vols
ed. H. )talcovati 1930.
Homsen: Th. Hoininsen
St a a t s. Rö.misches Staatsrecht 1887; 1888.
St i-air. Romisches St.rafr-ec.bt 1899.
frISES NacKillan Student Encyclopedia of Sociology
ed. H. Mann 1983.
OCD Oxford Classical Dictionary.
OLD Oxford Latin Dictionary.
P&F Past and Present.
PBA Proceedings of the British Academy.
PBSR Papers of the British School at Rome.
PcPS Proceedings of the Cambridge Philological Society.
Peter Historicorum Rornanorum Reliquiae 2 vols.
ed. H. Peter 1914, 1906.
PW Real Encyclopadie der klassischen Altertums-
wissenschaft ed.. A. Pauly, G. Wissova & V. Kroll
1893-.
RHR Radical History Review.
R&d. Phil. Radical Philosophy.
Rotondi Leges Publicae Populi Romani ed. G. Rotondi
1912.
SIFC Studi Italiani di Filologia Classica.
Smaliwood Documents Illustrating the Principates of Gaius.
Claudius and Nero EM. Smallwood 1967.
Smith Dictionary of Greek and Roman Antiquities
ed. V. Smith et alii 1890.
TAFA Transactions and Proceedings of the American
Philological Association.
ZSS Zeitschrift der Savigny-Stiftung fur
Rechtsgeschi chte.
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I
IITRODUCT ION: FORBIDDEN PLEASURES
For legislators, wishing to reduce to a uniform level the
race of man and to stamp out the luxury of citizens, have
caused a class of virtues to emerge. Accordingly, they
promulgated laws concerning contractual obligations and
all other matters which were considered necessary for
social association, but especially concerning clothing
and other aspects of daily life so that It should be made
the same for everyone. . . . Beside Deified Justice, they
brought in Temperance and Self-Control and termed 'greed'
pre-eminence in the enjoyment of pleasures;
Polyarchus in Aristoxenus' Life of Archytas. 1
The interaction between law and morality, which
Polyarchus' enigmatic denunciation of the suxnptuary legis-
lator was designed to expose, is nowhere more clearly
evidenced than in the celebrated city-states of antiquity,
especially in Rome of the Republic and the early Empire.
Their organic relationship stands revealed in the
coincidence between two striking features in the political
life of this period: firstly, in the remarkable degree of
public regulation of a citizen's expenditure and behaviour;
secondly, in the articulation and imposition of an orthodox
interpretation of historical development.
In the case of the former, apparel, eating habits, mode
of transport, gift-exchange, funeral arrangements and many
other minutiae of personal life were subjected to legal
scrutiny. 2 This intervention represents the fullest express-
ion of the paternalistic prerogative assumed by govern-
mental authority.
With respect to the latter, a deeply foreboding,
unilinear perspective on social change contained both a
judgement on the ruinous departure from conventional
practice and a dire prediction about the later course of
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events. B Explanations for what had gone wrong - political
instabilities, violence, military defeats, economic reverses
such as famines - were located in the altered behavioural
traits of human actors. 4 Contrast rather than comparison was
sought with the past. Novelty was substituted for recurrent
practice. In proportion to the exaggeration of ancestral
achievement, so contemporary failures were magnified against
a hazy aura of virtuous perfection. On the surface this
gloomy perception and the accompanying legal activity were
complementary. Law was consciously used as an instrument to
check nefarious social customs or even to restore venerable
inspection
traditional values. Closer reveals powerful
tensions and contradictions within this dialogue.
This thesis sets out to investigate a series of problems
and paradoxes which lie at the heart of the historiograph-
ical tradition. Why, during a period of sustained imperial
expansion and national prosperity, was social development so
persistently conceived in such pessimistic terms? Hw does
one explain the glaring gulf between the attitudes and
conduct of the ruling order with regard to luxus and
Hellenistic practices? What do the forms of statutory
response to social and economic changes at Rome reveal about
the salient anxieties and objectives of their promulgators?
The hallowed mores maiorum, the deleterious effects of
luxury on the morality of individuals and of the community,
and the recourse to startling types of legal interference to
stem the flow of a perceived decline have provided a focus
of interest for scholarly investigation and political
debate.
In addition to the general surveys of Roman moral and
social tradition,' several in-depth studies have been made
into separate aspects. The Roman censorship has received the
attention of 3. Suolahti and E. SchniahJing. H. Rech has
investigated the mos maiorum,' while U. Knoche et alli have
discussed the subject of decline in Ancient Rome. A series
of monographs, of which the most interesting is by
J.F. Houwing, have striven to pinpont the correct dating and
content of the leges sumptuariae.1'
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But questions of central importance have remained
unanswered and the merit of many of these studies is
diminished by three basic characteristics.
The first is methodological: the age-old predilection for
studying historical phenomena in straightforward chronolog-
ical succession - in annalistic fashion. In contrast to the
commendable erudition and attention to detail, incisive
analysis on topics of crucial significance has been either
lacking or sadly truncated, The second is interpretative:
the propensity to accept uncritically statements or
Judgements preserved in the ancient sources as reflecting
actual feelings and intentions. 1 ' This premise, as will be
shown, is unsound. The third is their restricted fields of
enquiry: forms of expression and legal enactment have been
largely isolated from economic and social practice,
important inter-relationships overlooked. Exceptional
degrees of autonomy have been bestowed on ideas. ' Where
societal forces have been admitted, developmental aspects
have been ignored.1
A different methodology has been adopted here. A strictly
chronological approach has been eschewed apart from a brief
outline of legislative measures relevant to this thesis (pp.
13-16 below) and of the debate on decline (pp. 34-36 below).
Instead, an examination of certain laws which show
similarities in respect of particular traits, e.g., content,
scope, motivation, etc, will be pursued in order to
elucidate themes of crucial historical significance. The
fact is that a multiplicity of objectives may have prompted
the passage of any law while the loss of historical context
in many cases makes it problematic to determine the
intention of its promulgator. Further, some statutes were
rushed through to combat immediate exigencies. Others were
the result of a growing realisation that a particular
practice was posing a threat to the long-term stability of
the government. Legal restraint itself may have had
unforeseen consequences which required further action. Where
pertinent, ideas and comment contained in the ancient
authors will be discussed and related to the legal activity.
But frequently perceptions were clouded by ideological
fiats. Further, the divorce between stated word and real
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intention is as old as political dialogue itself. 1 Finally,
forms of expression and legal activity will be examined
against a whole range of economic, social and political
imperatives, No simple determinism is assumed between
economic base and political/ideological superstructure. The
relationship between socio-economic facts on the one hand,
and ideological and political forces on the other is
conceived of as a complex interaction but one where legal
discourse fulfils a vital role.
For law stands, as it were, at a junction, an interstice
where the ideas, fears and wishes of governing bodies are
translated into concrete action, where policy is put into
effect. Expressed figuratively the operation of law might be
likened to the synchronising efficacy of a vast, complex
gear-mechanism through which the ruling authority attempts
to uphold its political supremacy in the face of the
constant disiunctures caused by developments in economic and
social practice. But legal rules, both in respect of their
content and their efficacy, bear witness as much to the
limitations as to the capacities of power.
Brief survey of sumptuary and related social laws in the
Roman Republic and. early Principate.
The remarkable dearth of funerary cor'redi in cremation
and inhumation tombs from the beginning of the sixth to that
of the fourth century B.C. attests to the existence of
sumptuary restraint in Archaic Rome and foreshadows a series
of leges funer-ariae. 1 However, the numerous social
regulatory measures attributed to the mythical or semi-
historical figures of Regal Rome are interesting more as
indicators of the preoccupations of their later sources than
for their dubious historical value. In fact, the legendary
characters of the early kings of Rome provided a most
fertile ground for the brazen invention of tradition. 1 The
fabled austerity of Romulus, who provided for the summary
punishment of women guilty of adultery or of wine-bibbing,
is resonant both of the sharpened aristocratic anxieties of
the second century B.C. and of the moral pretensions of the
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politician-generals of the first. 1 ' Numa Pompilius was
credited with the restraint of funerary expense and
mourning. The provisions on sacrificial meals attributed to
him by Cassius Hemina may well reflect senatorial concern to
monitor the cost and supply of some foodstuffs in the mid-
second century B.C.lE
While other leges regiae may testify to an ancient
interest in social reform, the Deceinviral code - the
Twelve Tables - inaugurated a considerable programme of
legislative restrictions: legal control of their patrimony
was wrested from spendthrifts,° the practice of usury was
checked21 and unauthorised nocturnal gatherings forbidden. -'
The origin of the stringent curbs that were applied to
funerary display and extravagance was traced by ancient
authors to the Greek city-states, in particular Athens where
similar measures were adopted, sometimes as part of a defin-
ite policy of Io-ovoiIc. 2- An equally fruitful source for
precedents can be found amongst the Laconian and Cretan law-
codes of the Dorian races, whose severe temperament was
both receptive to such rules and frequently contrasted with
the luxurious tastes of the lonian peoples. The flourish-
ing sea-board towns of Sicily and Magna Graecia, e.g.
Locri, Thurii' and Syracuse, where Pythagorean
thought was particularly marked, are another likely source of
influence.
The poverty of evidence for the late fourth and early
third centuries B.C. precludes any firm conclusion on the
existence of financial restraints although two notable leges
de ainbitu were carried,'° while the expulsion of P.Cornelius
Rufinus from the senate as a result of a celebrated
censorial action by C. Fabricius Luscinus argues, in my
opinion, for the presence of a formal sumptuary measure.
The onset of the Hannibalic War saw a spate of intense
legal activity as the authorities grappled to make the most
of all available material wealth and to repress the divisive
effects of social envy. The .Zex Claudia de navibus senator-
ibus (218? B.C.) and the .Zex Netilia de fullonibus (217
B.C.) were closely followed by the .lex Oppia which
introduced sweeping restrictions on female apparel, ornamen-
tation and transport. The victorious conclusion to the war
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and the continuing success of operations in the eastern
Mediterranean provoked a further flood of statutes. The
singularly moral quality of fides between patron and client
was underwritten by the Publician (209 B.C.) and Cinciari
laws (204 B.C.) which were concerned to constrain the best-
owal and acceptance of gifts, the former during the festival
of the Saturna1i, the latter for professional services such
as advocacy. A lex 1earia was passed. Sexual activity too
caine under legal scrutiny although our knowledge of the
measures is sadly deficient. A lex Titia? hampered
procuring, while minors received the protection of the
Scantinian (226? B.C.) law and the lex P1etori5 de
circumsc.riptione adolescentium (193/2 B.C.). The passage of
the lex Furia testmentaz-ia (209-169 B.C.) and the lex
Vocon.ia de muller-urn he.reditati bus together with several
canvassing and balloting laws bear witness to the senate's
grave concern for the economic and political stability of
its order. :
Luxus rnensae, a topic which engrossed generations of
Roman politicians and writers, was bridled by the rogation
of C. Orchius(trlb. pleb. 181 B.C.) who limited the number
of guests. The lex Fannia (161 B.C.) elaborated restraints
on both public and private table expenditure while its
penalties were extended to guests and its validity
throughout Italy by the Didian law of 143 B.C. More detailed
provisions specifying forbidden delicacies were added by the
lex Aernilla in 115 B. C. , a year when the ar-s ludicra came
under attack. It was followed by the lex Licinia (c.107
B.C.) which excited sharp comment from satirists and popular
opposition.
In the sweeping programmes of moral and social reform in
the first century B.C., sumptuary restraint played a major
role. With the exception of the Antian law (71 B.C.) and the
rogatlo on luxury travel of the tribune Curio (50 B.C.),
all known legislation was proposed by the mighty politician-
generals of the period, Sulla, Pompey, Julius Caesar and
Augustus.
Dicing, adultery, funerary extravagance and luxus rnensae
were the subject of a battery of statutes instituted by
Lucius Cornelius Sulla (c. 81 B.C.), who yet drew fire from
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