14 - The Development of Roman Private Law

Summary

I

Law has several facets, none of which a historical account ought to ignore. It may be seen as a set of rules of behaviour backed by sanctions, an instrument of social engineering, a mechanism for dispute-settlement, or a mode of argument and a way of thinking. It may at a given time be consonant, or be dissonant, with the desires and habits of its society; and it cannot alone give a picture of all the boundaries of behaviour in a society, because there are always social and economic constraints at least as powerful as the law, and in relation to those alone can it be properly understood.

This chapter is about the private law. Conceptual puzzles can be raised about the boundary between that and other categories of law, but for present purposes the plain man’s concept of the modern difference between private (what English lawyers call ‘civil’) and criminal law suffices. The courts that people came into for private litigation were different from those described in the previous chapter, and that can serve as a pragmatic criterion; but there were overlaps and borderline cases. The end-point is, loosely, the death of Cicero; as for the starting-point, discussion will be limited to developments subsequent to the Twelve Tables, and in fact little positive will be said about anything before the end of the Hannibalic War.

Apart from extrapolation backwards from the ‘classical’ law of the Principate, a procedure which remains essential in spite of its obvious dangers, the evidence for private law in the Republic is mostly not that of technical writings: relatively few things said or written by the Republican jurists survive. One later work requires special mention:5 a long fragment, preserved in Justinian’s Digest, of the ‘One-Volume Handbook’ (liber singularis enchiridii) of the jurist Pomponius, written in the middle of the second century A.D. The passage has three sections, of which the first two are about the growth of what we should call the ‘sources of the law’ and the jurisdictional magistracies, for which we mostly possess much better evidence. The third, however, is a historical list of the great lawyers, and constitutes unique testimony. A few Republican inscriptions are of some importance; otherwise, one must turn to general literature.