JUSTICE

INTRODUCTION

Roman law has been a benchmark of Western law for some 2,500 years. Its greatest virtue is that it was entirely secular, free of religious influence of any sort. There were therefore no holds barred as to its interpretation. Its categorization of the civil (as opposed to criminal) law in three distinct areas – personae, res, actiones (persons, things and actions) – has also been very influential, as has its acknowledgement of the fledgling notion of international law in its ius gentium (‘law of nations’), ius legationis (‘law of diplomacy’) and ius belli (‘law of war’).

One of its main differences from modern law is that people were not equal before it. The law treated you differently if you were free or slave and, within the ‘free’ category, whether you were higher or lower class, and whether you were subject to another, as a wife to a husband, a sibling to a father, or a child to a guardian. Status was all as far as the law went. Another difference was the absolute power over life and death (patria potestas) which a father had over all his family.

Roman education was designed to prepare the rich and privileged for the job market. This meant the teaching of rhetoric, the art of persuasive public speaking and writing, which would prepare students for life in the law and politics (see here). Two of the key features of the training were exercises known as suasoriae and controversiae. In the former, pupils were given an incident from myth or history to argue over: did Hannibal, who laid siege to Rome for a while but then gave up, make the right decision? Should Caesar have accepted the kingship offered him by Marc Antony? In the latter, pupils were given tricky legal cases, many clearly invented, to debate, for example:

A man who had been disinherited by his father went to study medicine. His father fell ill but, while other doctors gave up on him, the son was called in, and said he would cure him if he drank the medicine he gave him. The father drank some and said that he had been poisoned: the son drank the rest. The father died, and the son is accused of parricide.

In a famous letter to his friend Atticus, Cicero showed what such training could achieve when he debated with himself what to do about tyrants. On 12 March 49 BC, as civil war was about to break out between Pompey and Caesar (whom Cicero regarded as a tyrant), he reflected:

Should a man remain in his country under tyranny? Should he do everything in his power to overthrow it, even if the very existence of the state would be put at risk? Should he watch out for the person who does the overthrowing, in case he becomes tyrant [Cicero means Pompey]? Should he try to help his country under tyranny only by word and seizing opportunities when he can, rather than by war? Is it the mark of a statesman to withdraw and keep his head down under tyranny, or rather run any risk in the cause of freedom? Should he make war on his country and blockade it under tyranny? Should he run the same risks as his friends and benefactors, even if they do not seem to him to have made intelligent decisions about the matter [Pompey again]? If a man has brought great benefits to his country and has incurred considerable suffering and hostility in so doing [Cicero here thinks of his own past services], should he then voluntarily agree to risk all for his country, or should he rather be allowed to think of himself and his family first and to give up his opposition to those in power?

These would be just the questions that would be asked in a suasoria about tyranny.

As for the actual shaping and development of Roman law, whatever part orators may have played, a central role was played by jurists. Technically, Roman law was made up of leges agreed by the Senate and passed by the people, laws passed by the people’s assemblies, decrees, magistrates’ edicts, decisions of the emperor and jurists’ answers. These jurists were freelance legal consultants. One did not have to be a senator or pass an exam to become one. It was simply a matter of earning people’s respect for the legal advice you offered them. Here Cicero described Servius Sulpicius Rufus:

Servius did his service in the city here with me, giving legal opinions, preparing documents, and giving advice, a life full of worry and anxiety. He learned the civil law, worked long hours, helped many people, put up with their stupidity, suffered their arrogance, swallowed their cantankerousness. He was at the beck and call of others, not his own master. A person wins widespread praise and credit with others when he works hard at a discipline which will benefit so many.

This flattery was needed – Servius was a friend of his – but Cicero was speaking as defence counsel against the prosecution counsel: Servius! Later in the speech, Cicero put the knife in:

Many men would have greatly preferred to become professional orators, but when they did not make the grade, they sunk to yours. As Greek musicians (so they say) sing to the pipe if they cannot sing to the lyre, so we see that those who do not succeed as orators degenerate to giving legal opinions.

But whatever Cicero’s real feelings, the jurists’ work was of high importance. In the English system, the law is made by Parliament, and judges interpret and apply it in court proceedings. Their interpretations become precedents for later judges to follow, unless those interpretations are overturned. In the Roman system, it was jurists who interpreted and argued over the law; their opinions were then preserved for others to argue over, and the final authority on them was the emperor. Gaius’ Institutes (c. AD 150) is one collection of such jurists’ opinions. In AD 530 the Eastern Roman emperor Justinian published his massive Digest, most of it legal opinions datable to AD 100–250, drawn from some 2,000 books of opinions.

To give a taste of the jurists’ debates: the lex Aquilia on unlawful killing was proposed by Aquilius in 287 BC and duly became law. It covered a wide range of potential damages. Here jurists discussed the issue of legal liability:

The question is asked whether an action under the lex Aquilia will succeed if a lunatic causes damage. Pegasus says not, for he asks how there can be any accountable fault in one who is out of his mind; and he is undoubtedly right. Therefore a case brought under the lex Aquilia will fail in this instance, just as it fails if an animal has caused damage, or if a tile has fallen. The same must be said if an infant has caused damage, though Labeo says that if the child is over seven years of age he could be liable under the lex Aquilia in just the same way as he could be liable for theft. I think this is correct, provided the child is able to distinguish between right and wrong…

When the Roman Empire in the West collapsed in the fifth century AD, the legal systems of the German peoples that had overrun it took precedent, but Roman law was still studied by schools and in the church (‘canon’, i.e. church, law was Roman-based). But in the eleventh century, Justinian’s Digest began to be studied at the world’s first university in Bologna, as a training in legal argumentation. This became a standard feature in later universities too, all of them attracting fine minds from across Europe. The result was that the new graduates (as doctores iuris, ‘doctors of law’) took this Roman understanding of the law back home with them – and Roman law was reborn, to become dominant in the West again. ‘Roman law’ now meant law as it was understood by its contemporary post-Bologna interpreters, who began to align Roman law with the reality of the medieval world; and it was this law that was taken to the Americas from the fifteenth century. The values of Roman law became supranational, deeply embedded across the West, defining what ‘justice’ meant and how it was to be understood.

Much has changed since then, but the outlines of Roman law are still visible in the continental system. England, of course, was the exception. Here the Roman example was rejected by Henry III (1234) and local laws (‘common law’), interpreted by judges in courts and the king, held sway, becoming over time national law, the first such body of national law in Europe.

THE LANGUAGE OF LAW

Latin ius (iur-), that which was sanctioned or ordained, seems to have been originally associated with the idea of health, or purification. A healthy society was one where justice held sway. Ius was the stem of iustus, ‘just’, iustitia, ‘justice’, and iudex (iudic-), ‘judge’. He was one who spoke (-dex) justice, and in so doing gave a iudicium, ‘judgement’. The iur- stem provides us with ‘jury’.

Lex (leg-) was the law as the legal machinery of state, a regulation, a rule, a condition of existence (whence ‘legal’, ‘legitimate’, etc.). ‘Silent… leges inter arma’, said Cicero: ‘The laws fall silent in the presence of weapons.’ And violence was what the law was designed to prevent. As Cicero said elsewhere, one of the instincts of nature was vindicatio, whose linguistic stem was vis, ‘violence’ (see here). Vindicatio meant ‘championing a wronged person’, or ‘avenging a wrong’; Cicero talked of it ‘repelling violence and insult from ourselves and those dear to us’ – all well and good at one level but in fact a major cause of taking up arms. At the heart of Roman law was the desire to remove revenge from the private to the public sphere and bring it under the law.

PREJUDICE

‘Prejudice’ originally had a quite innocent meaning. It derived from prae-, ‘before, in advance’ + iudicium, ‘judgement’, and referred to the preliminary action that had to be taken before a case could be heard, or to a previous ruling that could act as a precedent. For example, Cicero discussed the case of a weathy Roman who lost a hand in an attack by armed robbers. He brought an action for ‘injury’ (see here), but the defendant asked that any praeiudicium should not turn that into a capital charge, i.e. that the main trial should not be prejudiced by an earlier judgement in a lesser court.

EDICTS AND ALBUMS

When the praetor (see here) entered his year of office, he verbally announced his edicta, ‘edicts’. These were the ‘legal provisions he intended to observe’ during his term (probably virtually identical from year to year). Edico (edict-) meant ‘I speak out, proclaim’. At the same time, he also issued an album. This did not set the edicta to music; it was the white board (albus, ‘white’ → ‘albumen’) on which the praetor had written up the edicta in black ink. In one of his letters, Seneca rounded on those who split philosophical hairs on matters of moral urgency, asking: ‘Is philosophy to proceed with such trivial “ifs and buts” that would repel and disgust even those who sit there examining the album?’

LEGAL FORMULAS

Formulas for us are often associated with chemistry. For Romans, they were at the heart of civil law. Latin formula meant a set form of words designed to guide a trial. Cicero made the point explicitly:

There are laws, there are formulae established for every kind of action, so that no one can possibly be mistaken as to the nature of the injury done to him or the method of legal procedure to be adopted. For according to the loss, vexation, inconvenience, disaster, or injustice suffered by each individual, public formulae have been drawn up by the praetor in precise terms, to which every private action can be adapted.

Civil suits, then, worked as follows. The praetor would summon the parties in the civil action to a preliminary hearing, in which the ground rules of the action were decided. The praetor then appointed a iudex to conduct the trial. He would not be a professional, but someone of standing in the community. The praetor had a list of possible judges, but it was up to the parties to decide whom they wanted. The iudex would be both judge and jury.

That done, the praetor then drew up the formula by which the iudex was to conduct proceedings. The purpose of the formula was to make the charge as clearly defined as possible; and then to guide the iudex into making certain that the right questions were asked to ensure a satisfactory outcome to the case, but without being excessively specific. There had to be room for interpretation and discretion.

A SIMPLE FORMULA

Here Cicero put a case at its simplest: an innkeeper had two guests lodging with him, asleep in the same bedroom. At night the innkeeper crept in, took the sword of one of them and killed the other, whose purse he then stole. He replaced the sword in the sheath and crept out:

Long before dawn the man whose sword had been used to commit the murder got up and called his companion again and again. Deciding that he did not answer because he was sound asleep, the traveller took his sword and the rest of his belongings and set out alone. Not long afterward the innkeeper raises a cry of ‘Murder’ and with some of the guests goes down the road in pursuit of the traveller who had left earlier. He seizes him, draws the sword from its sheath and finds it stained with blood. The fellow is brought to the city and accused of the crime. In this case the intentio is ‘You committed murder.’ The answer is ‘I did not.’

FORMULAE EXPLAINED

The jurist Gaius identified four elements to the formula, all words easily recognizable in English, in a case of a stolen silver table. It began by stating: ‘Let X be iudex.’ Then:

1.demonstratio: placed at the start, so that the subject matter of the action was clear, e.g. ‘If it appears that A deposited a silver table with B…’

2.intentio: here A expressed what he was claiming, e.g. ‘… and that the table was not returned to A by the bad faith of B…’

3.adiudicatio: the part of the formula which empowered the iudex to take action on the property concerned: ‘… then let the judge condemn B to pay the value of the table to A.’

4.condemnatio: the power of the iudex to condemn (here stated under 3) or absolve: ‘But if it does not so appear, acquit him.’

At the heart of it was the intentio. That did not refer to the question of the ‘intent’ of either party, though that might come into it: it meant the ‘statement of the charge, accusation’. In this case, the intentio was that B had defrauded A of a silver table.

CRIME…

Our ‘crime’ derives from Latin crimen (crimin-) – whence ‘criminal’ – but its Latin meaning was different from ours: it meant primarily ‘accusation, charge’. The brilliant poet Ovid was sent into exile by the emperor Augustus for a crimen et error: ‘a charge [brought against him] and a mistake’. Not a crime.

… AND PUNISHMENT

Across the whole range of court procedures, punishments could range from flogging and removal of rights, to execution, exile and compensation for victims (compenso [compensat-], ‘I balance, make good, counterbalance’), but not long-term imprisonment, for which the finance was not available. Selling into slavery was preferable.

ALLEGATIONS

In the course of his prosecution of Verres, the corrupt governor of Sicily, Cicero uncovered a plan of Verres’ to make big money out of a contract for the repair of a temple that in fact needed no repair. The cost of this ‘repair’ fell on the shoulders of a young boy, because his father had won the contract for the repairs but had died. It should have cost 40,000 sesterces; but Verres put the contract up for sale, bid for it himself at fourteen times the actual cost (all to be taken from the boy’s estate) and made a packet out of it. All that was done was to take down and re-erect four pillars using the same stone, whitewash others and repoint others. The boy’s guardians had done all they could to stop this blatant thievery, making endless allegationes to (note: not against) Verres and his various sidekicks, but to no avail. But that was the original meaning of an allegatio: acting as an intermediary, making an intercession or representation on behalf of someone else.

INJURY

The Latin iniuria, from which our ‘injury’ derives, was a combination of in- (indicating ‘negative’) + ius (iur-): it meant ‘unlawful conduct’. Its original meaning was physical harm. As the story was told:

One Lucius Veratius, who was a famously wicked, cruel and brutal man, used to amuse himself by slapping free men in the face. A slave followed him with a purse full of asses. As often as he slapped anyone, he ordered twenty-five asses to be counted out at once, according to the provision of the Twelve Tables.

The Twelve Tables was the name of Rome’s earliest penal code, and twenty-five asses a trivial sum of money. As the story pointed out, ‘who is so poor that twenty-five asses would stop him inflicting any iniuria he wanted to?’

This was iniuria in a different sense: Veratius was humiliating people. So the praetor produced a new edict on the matter, extending the scope of iniuria and allowing judges to adjust the penalty to circumstances. The result was that iniuria now covered defamation and various sorts of harassment, such as shouting abusively at someone in their own home, stalking and so on. Physical assault did not need to have been carried out.

Once that had been enacted, it became possible to argue that if a woman was harassed – for instance, by being called a whore – her husband had been injured too because his honour had been demeaned. Anyone who injured someone else’s slave could be said to have disrespected the owner. As Cicero defined it: ‘By iniuria is meant doing violence to someone, to his person by assault or to his sensibilities by insulting language or to his reputation by some scandal.’

Iniuria, then, went to the heart of the Romans’ sense of self-worth. It assaulted their reputation, directly or indirectly. No Roman would be prepared to put up with that.

PUNISHMENT BY STATUS

One question arising from the law of iniuria was: when it came to punishment, was A’s reputation worth more than B’s? And if so, should not the penalties differ? We may guess the Roman answer. The result was that, under the Empire, when it came to handing out sentences, the law divided humanity into three categories: honestiores, humiliores and slaves. The -ior suffix to an adjective in Latin marked a comparative, ‘more, rather’. So the honestiores were ‘those of more honour, distinction, merit’; the humiliores – Latin humus, ‘earth, soil’ – ‘the more humble, lowly, abject’. So a law on wills stated:

Anyone who knowingly and with wrongful intent forges… a will is liable under the law: honestiores are to be deported to an island, humiliores are either sent to the mines or are crucified.

Or take a law on murderers:

Capital punishment is usual these days, except for those whose status is too high to sustain the statutory penalty. These are deported to an island, while humiliores are usually either crucified or thrown to beasts.

A law on treason laid down that humiliores should be thrown to the beasts or burnt alive, honestiores capitally punished.

The issue here was public degradation. The honestior did not evade punishment, but expulsion, deportation and/or confiscation of goods did not propel him into the popular limelight, let alone humiliate him there. Even if he was sentenced to capital punishment, an execution was a comparatively quick and clean death, in the face of which he could win credit by exhibiting proper Stoic fortitude. The humilior, on the other hand, was sent to the mines, crucified, thrown to the beasts (ad bestias) or burnt at the stake – the first a slow death sentence, the last three carried out in public, before mocking crowds in the arena.

SERVITUDE

There were more ways than one of being a slave (servus) in the Roman world. One of these was owning property attached to a condition by which the owner was duty-bound to give certain rights to a neighbour, e.g. a right of way, a right to draw water and so on. The technical term was servitus. The jurist Ulpian clarified the law:

The following are the four servitutes of country estates, namely: the right of walking, the right of driving cattle, the right of way, and the right to conduct water. The first is the right a man has to pass or walk, but not to drive a beast of burden. The second is the right to drive a beast of burden, or a vehicle; and therefore a party who has just the right to walk, does not have the right to drive cattle; and he who has the latter privilege has also that of walking, even without a beast of burden. The third is the right of passing, driving cattle, or walking, since all are included in this right of way. The last is the right to conduct water over someone else’s land.

But how did it work in practice? In a letter to his friend Atticus, Cicero mentioned his neighbour Marcus Aelius. Cicero had the right of servitus over Aelius’ property, and had wanted to use it in order to draw some water from his land. But he decided it was not worth the hassle:

Please set M. Aelius’ mind at rest. Say that I had thought that a few water conduits at the edge of the farm, underground at that, would be subject to some kind of servitus; but do tell him that I don’t want to go ahead with it now and would not worry him for the world. But do it in the nicest possible way, as you said to me, so that his mind is set at rest. I don’t want him to suspect that I am at all put out.

Cicero, here at the height of his fame (44 BC), did not want to create a rift with his (presumably) lowlier neighbour. Good relations were more important. Whatever the law said, however self-important Roman aristocrats appeared to be, real life had a habit of intruding.

THE CONTRACTUAL AGREEMENT

‘A man’s word is his bond’, it used to be said in the City. No longer, one imagines. The lawyers have seen to that. But it was standard practice in Rome. Here is the jurist Gaius:

A verbal obligation [obligatio] is created by question [interrogatio] and answer [responsio] in such forms as: ‘Do you solemnly promise it will be given? I solemnly promise’; ‘Will you give? I will give’; ‘Do you promise? I promise’; ‘Do you promise on your honour? I promise on my honour’; ‘Do you guarantee on your honour? I guarantee on my honour’; ‘Will you do it? I will do it.’ The words ‘solemnly promise’ in a verbal obligation are peculiar to Roman citizens; but other forms belong to the ius gentium [‘law of nations’] and are consequently valid between all men, whether Roman citizens or not.

Not all agreements needed such specific wording. Indeed, any sort of ‘consensual’ pactum could be made: as Cicero said, a pactum was ‘anything agreed between people’.

LEGAL STRAWS

The word for ‘solemnly promise’ was spondeo (spons-), which is what our ‘sponsor’ should do. When one made such a promise, one expected a response to it (respondeo), Latin for ‘I reply’. Respondeo may well have had legal connotations in origin: as a lawyer said, ‘Where one of the parties present asks a question, and departs before a responsio is given him, he renders the stipulatio void.’

Stipulatio was indeed the general word for ‘binding promise’. Its origin may possibly be found in stipula, ‘straw, stubble’. The seventh-century encyclopedist Isidore said: ‘The ancients, when they promised each other something, would break a straw that they were holding. In joining this straw together again, they would acknowledge their pledge.’ Our word ‘contract’ derives from Latin contraho (contract-), ‘I draw together’, i.e. ‘reduce in size’, but also ‘I bring together, establish a formal relationship between’.

WILLS

It is surprising that, under law of contract, written documentation (tabula, p. 233; or instrumentum, literally ‘equipment designed for a specific purpose’, → ‘instruction’) rarely came into it. It was largely a matter of ‘good faith’, fides: ‘the condition of having trust placed in one; guarantee; credibility’ (→ ‘fidelity’), though written documentation did become more common during the Empire.

The main exception was, not surprisingly, the will, testamentum, from testor (testat-), ‘I invoke as witness, solemnly declare’. In this example, Antonius Silvanus, a cavalryman in a Thracian regiment, made his son Marcus his heir. He had to do this because, as a soldier, he could not marry. His son was therefore illegitimate. But if Marcus did not agree to become his heir:

let him be disinherited. In that case, let my brother… Antonius be my heir, and let him accept my estate in the next 60 days. If he is not my heir, I give him as a legacy 750 denarii. I name as curator of my goods in camp – for their collection and restoration to Antonia Thermutha, mother of my heir – Hierax, son of Behax, elite sol dier of the same troop, the squad of Aebutius, so that she may guard it herself until my son and heir comes into his own and receives it from her… [further legacies and finally] As for my slave Cronio, I wish him to be free after my death so long as he handles everything correctly and hands it over to my heir or procurator, and that the manumission tax [see here] be paid out of my estate. Let fraud be absent from this will.

A list of witnesses, some of whom participated in the ritual, then follows.

On the larger picture, it may be that, at the level of something like negotiations between friends, family or the great and good, it would have smacked of distrust to demand proof in writing, let alone securities or interest. In another context, oaths of agreement sworn in the name of gods were often felt to be needed between bitter enemies but certainly not between friends and acquaintances. It was just not ‘the done thing’. That culture may have spread more widely.

However that may be, we do have records of written agreements; and in the case of disputes there is evidence for testatio, ‘a sworn statement’, made by a third party to a transaction. Not that that guaranteed anything. The first century AD educationist Quintilian pointed out that ‘testatio is often in conflict with oral evidence’.

EVERYDAY LAW

The law is an intellectual as well as a social construct, and Roman law a formidable example. But Roman jurists never forgot that the purpose of the law was to serve the people. When they argued over it, it was to everyday life that they turned for their exempla (p. 75). Aequitas, ‘fairness’, and utilitas, ‘practicality’, were words always on their lips, and the relationship between blame (culpa → ‘culpable’), intention (voluntas → ‘voluntary, volition’) and guilt (noxa → ‘noxious’) uppermost in their thoughts. Their works are full of tiles falling off roofs, dogs off leads, medicines wrongly prescribed, and shopkeepers getting into fights over stolen lamps. All human life was there.

CUI BONO?

Most of our well-known legal Latin sayings emerge from reports of legal cases, written (but not pleaded) in Latin, from the medieval age onwards. Cui bono is an exception. It meant ‘to whom [is it for] a good’, i.e. ‘who stands to gain?’ When in 52 BC Cicero was defending Milo, killed in a gang war by Clodius, he said:

So how can it be proved that Clodius had laid an ambush against Milo? In fact, it is enough, in dealing with such an audacious, such a wicked monster, to show that he would have had a strong incentive to do so, and great expectations and great advantages in the event of Milo’s death. So let that maxim of Lucius Cassius Longinus Ravilla [137 BC] – ‘Who stands to gain?’ – be applied to the parties now before us.