I BEGAN THIS BOOK with one Roman’s mixed feelings about the law. For him, Roman law was both one of the great and distinctive accomplishments
of human civilization and a somewhat trivial game played by geeks for (at best) their own entertainment or (at worst) the
legitimization of all kinds of mischief and even theft. The contexts in which Cicero was speaking suggest that both of his
prejudices were widely held, at least in the elite circles in which he moved. He doesn’t, that is, tell us about all Romans.
In a sense, moreover, the texts I quoted there are largely theoretical. That is, one of them is entirely detached from any
individual transaction or legal proceeding, and the other comes up only incidentally in the course of a trial on an unrelated
matter. I want to conclude the book by briefly looking at the possibility of a similarly divided opinion of the law at more
ordinary levels of society and in the heat of actual legal business.
The text I use to raise these questions for the sake of argument is a fairly simple contract, somewhat remarkably preserved,
from the Netherlands (
[25]). The underlying transaction is clear enough; one Stellus Reperius Boesus has sold a cow for
cash to another man named Gargilius Secundus in front of witnesses. The striking thing for present purposes is the final formula
before the date at the end. “Let this agreement be free from civil law (
ius civile).” This is an odd thing to say in what was presumably thought of by the writer as a “legal” document. Not only is the transaction
a standard legal one (a sale; see
Chapter 12), but the text also speaks of “proper form” and cites witnesses. (Arguments could be made against the ultimate enforceability
of this document, but the
parties presumably believed in it at the time.) Now, one explanation that might be offered (and in fact has been offered) for the
curious sentence is a fairly technical one. The phrase actually appears elsewhere in the Roman world in a context in which
it is more appropriate. It is sometimes found on tombs, which, as sacred things, are not subject to ordinary commercial law
(
Chapter 20). They are free from the “civil law” or
ius civile, not in its broadest sense of “the law of Rome,” but in the narrower sense of “the law of citizens” (as opposed to that of,
say, the gods). It is possible, then, that the writer of the contract knew “let this … be free from civil law” as an important
legal formula without really understanding it. After all, literate persons might easily see the phrase often enough in public
(on tombs) to recognize it, without ever having enough context to grasp its real meaning. We can see the same kind of (faulty)
diffusion of legal language in our own society. The legal term of art “malice aforethought” applies strictly only to homicide
(and does not have much to do with “malice” or “forethought” in their ordinary senses), but in folk usage is applied to a
variety of crimes and in a sense
relying on the word-by-word interpretation. An even closer parallel might be provided by a phenomenon I have noticed in my
own experience as a member of the board of directors of a condominium residence. The board from time to time receives letters
of complaint about its actions or policies. The writers are aware that they are entering into a relatively formal realm, and
one with potential legal consequences. Hence they tend to include as much “legal” language as they can – phrases like “breaking
and entering,” “retain counsel,” “cease and desist” – even if those phrases are not strictly applicable. In fact, in the jurisdiction
where I live, the phrase “breaking and entering” is not technically part of the law at all any more.
More generally, we are familiar with a whole range of folk legal knowledge in our own society – bits of real, mistaken, and
simply imaginary legal information passed on by a variety of sources. News coverage and courtroom dramas are often correct,
if oversimplified or incomplete. Other sources, like political speeches and even comedians’ jokes, are less reliable, but
still help to shape folk law. For instance, most viewers of American police dramas know at least roughly the wording of the
Miranda warning to criminal suspects (“You have the right to remain silent…”) and the reasons for its use. Further from real law
is the commonly held belief that individual students are prohibited from engaging in prayer in American public schools. (Only
school-sponsored religious activity raises constitutional issues.) Less seriously, comedians often joke about the supposedly
real (if rarely applied) penalties for removing mattress tags. Of course, as even the tags themselves make clear,
this penalty applies only to dealers, not to the end user. Still, the legal “knowledge” involved has a recognizable source
in a genuine legal document. In Rome, a character in a comedy of the mid second century
BC jokes that he doesn’t care whether he gets hold of a woman he desires “by stealth, force, or permission,” playing on the
phrase from the interdicts (
Chapter 13). And several centuries later, someone took the trouble to inscribe what look to be the rules of a drinking game in the official
form used for statutes passed by the assembly. The language of the law filtered down to the Romans, too. So perhaps the writer
who tried to shoo away the civil law was actually, in a clumsy way, trying to harness its power.
But perhaps there is a deeper issue at stake, and perhaps the writer of the contract was more seriously conflicted. “Let this
agreement be free from civil law” could be interpreted as a genuine attempt to opt out of some or all of the legal system.
In the former case, the idea would be to avoid appeal to legal institutions, that is, a trial and the related proceedings.
Thus it might be like the clauses in most American credit card and cell phone contracts that move disputes from the (public)
courts to (private) arbitration (paid for, not incidentally, by the industries in question). Or consider how the possibility
of no-fault divorce encourages spouses to negotiate a settlement on their own, which is only ratified after the fact by a
judge. The latter case would mean a move outside of the legal system entirely. While cash sale is one of the situations Roman
law is comfortable with handling, it certainly exists without that law, and the Romans knew this. In fact, the general notion
of voluntary
exchange of goods clearly exists as a social institution outside of any legal system at all. The parties to this “contract”
might then be saying that their agreement wasn’t really a “contract” after all; they didn’t want their “gentleman’s agreement”
to be co-opted by the legal system and so taken at least partially out of their control.
Why opt out of the legal system in either of these senses? There are at least a couple of reasons. As mentioned in the introduction,
law (like rhetoric) was a package of specialized knowledge available only to the few. This might not have bothered a Cicero,
but it could be a concern for our Boesus and Secundus. But there is also a problem that might have bothered everyone. Whatever
its gaps and flaws, Roman law became a relatively large and independent system. It was not entirely under the control of any
individual, perhaps not even under the emperors’, and certainly not that of ordinary lawyers and litigants. The law might
give the “wrong” decision because a particular case raised issues that had not previously been factored in. Or, as we have
seen throughout this book, there are many circumstances in which there is no clear “right” answer, and the law must make somewhat
arbitrary choices about what values to preserve, about who will lose out when someone has to take the fall. The losing parties
in these cases are likely to take a short-term view and claim that the law got it “wrong.” Turning law into a system opens
up a space between it and “justice,” or at least so it can be made to seem.
I must admit that it is not clear that any of this is going on in our document. An arbitration clause, if that is what was
intended, would probably have been written in more positive terms. Total rejection of the law would perhaps make more sense
as a sentiment expressed orally by the parties, rather than quickly written into the contract. Still, it is hard not to see
some nervousness in the parties to this deal. On the one hand, they use a legal mechanism to exchange livestock for money,
and our knowledge of the law of sale can tell us a lot about the consequences of that choice. At the same time, their faith
in that mechanism is clearly not total. We can also see this in a plaque labeling a tomb access road that says “Let trickery
(
dolus malus) and civil law (
ius civile) be away from all these.” This usage is superficially closer to the “correct” one, since a tomb is at least nearby. Yet the
text really refers to the road rather than to the tomb. And the connection made between the civil law and trickery is ironic,
since
dolus is itself a legal term of art. So here too the writer seems to be trying to use the power of legal language to fend off the
evils lurking within the legal system. The legal world of
these Romans (starting with the question of what kind of “Romans” they were) was a complicated one.