Roman Law Before the Twelve Tables: An Interdisciplinary Approach

214 Pages·2020·2.417 MB·English

by  Sinclair W. Bell (editor), Paul J. du Plessis (editor)

Roman Law before the Twelve Tables
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Roman Law before the
Twelve Tables
An Interdisciplinary Approach
Edited by Sinclair W Bell and
Paul J du Plessis
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Edinburgh University Press is one of the leading university presses in the UK. We publish academic
books and journals in our selected subject areas across the humanities and social sciences, combining
cutting-edge scholarship with high editorial and production values to produce academic works of
lasting importance. For more information visit our website: edinburghuniversitypress.com
© editorial matter and organisation Sinclair W Bell and Paul J du Plessis, 2020
© the chapters their several authors, 2020
Edinburgh University Press Ltd
The Tun – Holyrood Road
12 (2f) Jackson’s Entry
Edinburgh EH8 8PJ
Typeset in 10/12 Goudy Old Style by
IDSUK (DataConnection) Ltd, and
printed and bound in Great Britain
A CIP record for this book is available from the British Library
ISBN 978 1 4744 4396 8 (hardback)
ISBN 978 1 4744 4398 2 (webready PDF)
ISBN 978 1 4744 4399 9 (epub)
The right of the contributors to be identifi ed as authors of this work has been asserted in
accordance with the Copyright, Designs and Patents Act 1988 and the Copyright and Related
Rights Regulations 2003 (SI No. 2498).
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Contents
The Contributors vii
Introduction: The Dawn of Roman Law 1
Paul J du Plessis and Sinclair W Bell
Part I The Materiality of Roman Law: New Archaeological
Discoveries
1. Roman Law in its Italic Context 9
James Clackson
2. Central Italian Elite Groups as Aristocratic Houses in the Ninth
to Sixth Centuries BCE 25
Matthew C Naglak and Nicola Terrenato
3. Authority and Display in Sixth-Century Etruria: The Vicchio Stele 41
P Gregory Warden and Adriano Maggiani
Part II Constructing Early Roman Law: Sources and Methods
4. The Twelve Tables and the leges regiae: A Problem of Validity 57
Carlos Felipe Amunátegui Perelló
5. The leges regiae in Livy: Narratological and Stylistic Strategies 77
Marco Rocco
6. The leges regiae through Tradition, Historicity and Invention:
A Comparison of Historico-literary and Jurisprudential Sources 97
Rossella Laurendi
7. The Laws of the Kings – A View from a Distance 111
Christopher Smith
8. Beyond the Pomerium: Expansion and Legislative Authority
in Archaic Rome 133
Jeremy Armstrong
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vi Contents
Part III Roman Law in Historiography and Theory
9. Niebuhr and Bachofen: New Forms of Evidence on Roman History 155
Luigi Capogrossi Colognesi
10. Finding Melanesia in Ancient Rome: Mauss’ Anthropology of nexum 171
Alain Pottage
Index 199
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The Contributors
Jeremy Armstrong is a Senior Lecturer in Ancient History at the University
of Auckland, New Zealand. He received his BA from the University of New
Mexico and his MLitt and PhD from the University of St Andrews. He works
primarily on early Roman warfare and is the author of War and Society in Early
Rome: From Warlords to Generals (2016), as well as editing several volumes on
related topics.
Sinclair W Bell is Full Professor of Art History at Northern Illinois University. His
research focuses on Etruscan and Roman art and archaeology.
Luigi Capogrossi Colognesi has been Professor of Roman Law from 1980 to
2010 at the University of Rome La Sapienza, where he is now Professor emeri-
tus. His research focuses on the history of Roman property and agrarian history
and historiography. His recent books include Law and Power in the Making of
the Roman Commonwealth (2014) and La costruzione del diritto privato romano
(2016).
James Clackson is Professor of Comparative Philology at the University of
Cambridge and a Fellow and Director of Studies in Classics at Jesus College,
Cambridge. He has published widely on the history of the Greek and Latin lan-
guage and the comparative philology of Indo-European languages.
Paul J du Plessis is Professor of Roman Law at the University of Edinburgh. His
research focuses predominantly on the multifaceted and complex set of relation-
ships between law and society in a historical context.
Rossella Laurendi holds a PhD in Roman Law from the Mediterranea University
of Reggio Calabria. She is currently Senior Assistant Professor in the Department
of Law at the University of Genoa, where she teaches courses in the institutions of
Roman law (A–E) and history of Roman law.
Adriano Maggiani is an archaeologist and Etruscologist. He is Professor of Classi-
cal Archaeology at the Ca’ Foscari University of Venice. His research is concerned
with funerary architecture and sculpture, Etruscan religion and epigraphy, and
aspects of the art and culture of pre-Roman Ligurians and Venetians.
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viii The Contributors
Matthew C Naglak is a PhD candidate in the Interdepartmental Program in
Classical Art and Archaeology at the University of Michigan. His research
focuses broadly on the development and use of public space in central Italy from
the beginnings of the urbanisation process through the later Republican Period,
with particular emphasis on its impact on the physical and social environment.
Carlos Felipe Amunátegui Perelló is a Chilean researcher in Legal History and
Comparative law. He is chair professor of Roman law and Legal Theory of the
Faculty of Law of the Pontifi cia Universidad Católica de Chile. He has written six
books and more than one hundred articles in scientifi c journals and book chapters
in subjects ranging from Archaic Roman law, Comparative law, Legal Theory and
Artifi cial Intelligence.
Alain Pottage is Professor of Law at the London School of Economics. His work
draws on perspectives in history, anthropology, and social theory to explore ques-
tions of property and ownership.
Marco Rocco teaches Ancient History at the University of Padua. He has focused
his research on political and military institutions and cultures in ancient Rome,
in particular the Livian tradition. He has written monographs and essays on the
Roman army and the profession of the soldier in the imperial age.
Christopher Smith is Professor of Ancient History at the University of St Andrews
and was Director of the British School at Rome from 2009 to 2017. He works pre-
dominantly on archaic Rome and Italy. Previous publications include Early Rome
and Latium c.1000 to 500 BC: Economy and Society (1996) and The Roman Gens:
From Ancient Ideology to Modern Anthropology (2006).
Nicola Terrenato is the Esther B Van Deman Collegiate Professor of Roman
Studies at the University of Michigan. He studied at Rome and Pisa. He special-
ises in fi rst millennium BCE Italy, in particular early Rome, northern Etruria, and
the Roman conquest. He directs the Gabii Project and the Sant’Omobono Proj-
ect. Other interests include theories of imperialism, fi eld survey, and the history of
archaeology. He recently published Early Roman Expansion (2019).
P Gregory Warden is President of Franklin University Switzerland, where he
is also Professor of Archaeology. He is the Executive Editor of Etruscan Studies,
a trustee of the Etruscan Foundation, Consulting Scholar at the University of
Pennsylvania Museum of Archaeology, and an elected member of the Istituto
di Studi Etruschi e Italici. He is the founder and Principal Investigator of the
Mugello Valley Archaeological Project.
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Introduction
The Dawn of Roman Law
Paul J du Plessis and Sinclair W Bell
1. INTRODUCTION
When the compilers of Justinian’s Digest in the sixth century CE refl ected on the
origins of Roman law as a legal order, they decided that the topic was of such impor-
tance that it had to be placed at the very front of the Digest, in book 1 title 2,
directly after the introductory title in which central concepts such as ‘justice’ and
‘law’ were explained.1 In compiling this title, they relied on the works of two Roman
jurists. The fi rst, the enigmatic Gaius, a jurist of the mid-second century CE who, in
a book (now lost) on the Twelve Tables (lex Duodecim Tabularum), wrote: ‘Since I am
aiming to give an interpretation of the ancient laws, I have concluded that I must
trace the law of the Roman people from the very beginning of their city. This is not
because I like making excessively wordy commentaries, but because I can see that in
every subject a perfect job is one whose parts hang together properly.’2 While there
is no doubt some Greek philosophy latent in this statement, it is not the main focus
of our discussion here. For us, as for Gaius, it is important to stress that origins mat-
ter. No subject can be understood properly without a fundamental appreciation of
its history. This fundamental principle is one the Romans understood only too well
and, in this time of ‘presentism’, has become more important than ever.
But the compilers did not rely solely on Gaius’ book on the Twelve Tables.
We do not know why. Instead, they chose to populate the rest of the title with
a long passage from Pomponius’ Enchiridion (Manual). Much has been written
about this account of the history of Roman law, written by a Roman jurist who
lived during the reign of Marcus Aurelius.3 As the only comprehensive narrative
concerning the development of Roman law, it has become a cornerstone for sub-
sequent understanding of the nature and contours of the Roman legal order. And
although not unproblematic, given the absence of corroborating evidence, it has
left an enduring imprint – it is, for example, central to Edward Gibbon’s account
of Roman law in his seminal Decline and Fall.4
1 The rubric given to D.1.2 is – De origine iuris et omnium magistratuum et successione prudentium.
2 D. 1, 2, 1, Gai. 1 ad l. XII tab . . . Facturus legum vetustarum interpretationem necessario prius ab urbis
initiis repetendum existimavi, non quia velim verbosos commentarios facere, sed quod in omnibus rebus
animadverto id perfectum esse, quod ex omnibus suis partibus constaret: et certe cuiusque rei potissima pars
principium est . . . Translation taken from Watson et al. 1985.
3 For a very good recent account, see the PhD thesis of Wibier 2014.
4 Gibbon 1776, chapter 44.
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