Reviewed by Walter J. Kendall III, The John Marshall Law School. E-mail: 7kendall [at] jmls.edu.
The Invention of Law in the West! A most provocative claim. The author of the claim, Aldo Schiavone is even more precise placing the invention of law at Rome in the roughly three hundred years between the end of the second century BCE and the early decades of the third century CE. Harold Berman in his classic Law and Revolution (1983) sees the formation of the Western legal tradition as a structured, autonomous, specialized legal system occurring rather in Europe at the time of the Papal Revolution of 1075-1122. And of course there is the rest of the world. Just to mention one source, R.P. Peerenboom’s Law and Morality in Ancient China (1993) discusses the views of Huang-Tao, Confucius, and Han Fei and the presence of natural law and positive law thinking well before there was Rome. Certainly Schiavone knows all this, that all peoples had and have “law” and many civilizations preceded or were contemporaneous with Rome. So the validity of the claim if it is worth further reflection must turn on his understanding of how Rome, law and the West fit together.
He begins by stating that Roman “law” presents a
“paradigm enabling us to recognize as ’legal’ the prescriptive practices that were originally integral parts of radically different contexts and systems – theological apparatuses with varying links to royalty, kinship ties, and political institutions. However, it was only in Rome that the ordering inevitably found in any human community was subjected at an early point to a strict specialization, in turn transformed into a strong grounded social technology which identified, once and for all, the juridical function and its experts, the ‘jurists’ (a word unknown to any ancient language but Latin), detaching them from any other cultural production or institutional center – from religion, morals, or even politics – and endowing them with a clear, autonomous, and definite identity. From then on, law would be seen in every depiction and image, even the simplest and most unassuming, as something entirely apart – a compact, impenetrable corpus – and would always be distinguished by the delineating of regulatory devices with a special and powerful rationality. Its separatedness came to be regarded as a peculiar feature of the West: around this isolation an extraordinary ideological discourse quickly took shape to recast it as ‘independence’ and ‘neutrality’ – of norms, procedures, judges – making it one of the underlying values of our civilization” (p.3-4).[*389]
It is precisely how this “isolation of law as a measuring and ordering technique originally came about” (p.40) that this 624 page book, with 1018 endnotes covering 118 of those pages, investigates.
To this non-expert in either the law or the historgraphy of Rome it was surprising, even daunting, as I began preparing this review to read that Schiavone’s project required “play[ing] the compositional sequence of the Digesta backwards, forgetting the code and dismantling the mosaic piece by piece, then reconstructing the anthology not in accordance with the systematic layout that was imposed on it, but rather by gathering the single pieces author by author and work by work, bringing to light the original position of each text, so as ultimately to reassemble, as far as possible, the intellectual profile of each jurist recorded in the collection” (p.25). Schiavone acknowledges that “tracing back through history this formalized and extreme figure of the ‘legal,’ constructed for the first time by the Romans, is a . . . question of deciphering the content hidden deep within the inner structure of normativity ” (p.39). Thus while he says his “story begins with a book which will never be lost from sight,” history rediscovered as he entitles chapter two, actually begins with “the most ancient layer of Roman culture” and its “core notions” of the divine and ius; and how they linked (p.53).
In summary, Schiavone argues that Rome was the only place in the ancient world “where the production of rules of social behavior (IUS in its initial “pre-law” sense) once it began to break away . . . from the domain of religion would not be entirely integrated within the model of politics and legislation, as in Greece” (p.57). Schiavone’s historical exploration and discovery is told by highlighting three Weberian types: “an archaic priest, a republican nobleman; (and) a great specialist who worked in the milieux of the princeps and the court” (p.41).
During the era of the archaic priest the Roman structure underwent fundamental change. Kinship structures weakened; a new military organization (the hoplite system) was adopted; the mystical and sacred diminished in importance; and assemblies, “citizen’s under arms” emerged (p.70). The ancestral religious social customs and rituals (mos) began to be distinguished from ius. While ius “continued to be protected and enveloped by an aura of religiosity and magic it began to be perceived as the product of a civil knowledge” (p.72). This civic knowledge was “case-based, perceptive, and punctiform (an opinion for every question)” (p.77). It was these anchors in MOS and the mundane that provided IUS with its distinct normative feature: an ad hoc non-discrimination (p.80).
As it developed, legal discipline in the Republic became “memory, a capacity to orient oneself in the tangle of similarities and differences between cases, an inventive aptitude acuity in perceiving clues and causal links, a sense of tradition, perfect mastery of the appropriate language for expressing rules calibrated to the millimeter, and an ability to quickly evaluate the interests at play” (p.122). Schiavone describes Rome, as living “entirely around law and its emblematic words – ius, fides, justia, aequitas” (p.125). [*390]
It is in this second time period, that of the republican nobleman, when the law of Rome became more fully “horizontal” in its concerns. “It’s normative range pertained closely to the status of persons in the network of kinship ties, questions of inheritance, forms of ownership of land and other goods . . . and their circulation, forms of personal bondage . . . certain illicit behaviors, and the civil trial (lege agere) regulated by the Twelve Tables ” (p.121). Ius could now be translated by the English word law; and its practice as a combination of prudentia and sapientia. In my words, a pragmatic formalism.
Schiavone’s special focus in describing the transitions in this period is on the development of what he calls a “new paradigm” of law, a law that morphed “from an act of will into an act of knowledge” (p.245). Law was not only thought of as detached from religion and to a lesser degree politics it was also thought of as detached from “the concrete actuality of life to which it referred” (p.200). This “genealogical hypothesis” (p.201) sees the common (normative) trait during the development of Roman law as the “tendency to isolate the typical and repeatable aspects of the horizontal relations of people. Law thus “would contribute decisively to forming the epistemological frame of all social knowledge ” (p.203). This “legal science” is the “same abstract-concrete circularity that we later find at the foundation of modern science” (p.504 n.10). (For fuller insight into the symbiotic relationship between the methodologies of law and science at Rome see Lehoux, 2012.)
Schiavone continues in the end note just quoted: “the centrality of the ‘case’ – social materiality, nature, history – determined the intrinsically realistic and ‘positive’ character of Roman legal thought – verging on materialism – despite that, the speculative and metaphysical vocation about which we are talking, always resolved in a sort of primacy of ‘practical reason’.” Albeit a formalistic one.
As Rome haltingly transformed itself from a republic to an empire, from rule by the Senate and the Roman people to rule by Emperors, the need to “adapt an ancient normative wisdom so it could guide a set of governmental practices (and) explain them from within such an extraordinary concentration of power and force (in other words) bridging the gap between supremacy and its justification” became an imperative. It is this third period in which “the custodians of law” (p.416), the “custodians of the past” (p.159), became great specialists working in the milieux of the princeps, trying to preserve both their autonomy and influence; and to close that gap.
“What the emperor has decreed has the force of law” (p.431). Could will, such an absolutist positive law, rule an empire as large and heterogeneous as the Roman Empire? Not likely. What was needed was an affirmation of two principles: “the primacy of jurisprudence as the protagonist in the pursuit of a law based or justice and truth; and together . . . with the same degree of importance, the fact that the emperor was to be considered as the sole possessor of a boundless legislative power” (p.433). Schiavone working backwards from the Digest through Ulpian and his contemporaries, and then Gaius and earlier jurists, sees in Cicero the [*391] beginnings of a way to understand how this could be and was accomplished.
Cicero saw two main paths to the legitimation of imperial power: “the reaffirmation of law as a separate kind of rationality with respect to political and economic power (Cicero’s pro caecina – ‘the foundational locus of Western discourse on the neutrality of law’) and the representation of the Roman legal experience in terms of the doctrine of natural law” (pp.288-89). These two paths when viewed from a broad perspective capture and foreground the constitutive elements of law: ius, fides, justita, and aequitas, which elaborate and deepen the earlier notions of consensus, ultro citroque, bona fides, and aequum. As the empire grew the notions of ius gentium and ius naturale intersected and “a principle previously unknown to Roman legal thought; the explicit affirmation of equality in freedom as a ‘natural’ characteristic of the human race” was formulated, “detaching slavery from the (Aristotelian) plane of the natural” (pp.452-453).
How these concepts evolved in meaning and importance over the hundreds of years Schiavone studied cannot be easily summarized despite being perhaps the most relevant aspects of this book to 21st century theorists and practitioners concerned about law in our new hyperactive globalized world.
To give just a hint of the complexity of the evolution of the place of these “natural law” concepts in the formalistic “positive” law of the jurists, Schiavone states that the words justitia and aequitas when used in the Rhetorical Herennuum (from the turn of the first century BCE) were “an almost absolute novelty,” and the word justice “was immediately dropped by the jurists” (p.300). Later he refers to “the transition from a law indifferent to questions of justice which even when it talked of equity . . . did so within a horizon dominated by case-based fragmentation, only in order to avoid the risks of excessively rigid and abstractly consequential solutions, towards a law engaged in the quest for a just order, suspended between innatism and metaphysics” (p.450). These are similar comings and goings and reevaluations of the other concepts (e.g., ius at 287).
Schiavone ends the book with reflections on “equality ancient, modern” (p.449). He concludes that the jurists as custodians of the law were unable “to transform the ancient theory of natural law into an authentic doctrine of human rights” (p.457). This because the Roman law “constructed by the jurists was never . . . . a law of individuals, but rather, a law first of citizens . . . and then of propertied subjects . . . a law based on personal status and not on ‘economic individuals’ who had placed labor at the heart of their lives” (pp.457-58). This last thought is a reference back to and is supported by his earlier book The End of the Past analyzing the significance of slavery to the development of Roman society and thinking.
Schiavone never does significantly develop the links between the work of the Roman jurists, the law they invented and “the West” as such. He does, however, summarily describe “the very idea of the West, or at least its civic rationality (as) integrating . . . two major devices: the Greek paradigm of politics [*392] as popular sovereignty and the principle that public legislation is equal for all, and the Roman paradigm of law as conformity with a self-sustaining system of rules defined by reason” (p.11). And more briefly he mentions the “Roman paradigm of IUS (and the) Greek and Mediterranean one of the LEX” and their confrontation as the ground upon which “the invention of the ‘form of law’ in the subsequent development of the West” would depend (p.87).
To briefly return to the beginning of this review and the view of Harold Berman about when and where law was invented, Berman’s acknowledgment of the significance of Rome, and Israel and Greece, to Western law narrows the gap between his view summarized at the beginning of this review and that of Schiavone. Berman sees the relationship between Rome, and Israel and Greece, and the “modern” Western tradition writ large, not just legal, as a process of “adoption” rather than “survival or succession.” Phrased differently he describes the West as “turning to . . . and transforming” Roman texts, (1983, p.3) postulating “a radical discontinuity between Europe before and after 1050-1150” (1983, p.4). However, perhaps there is not so much of a difference between them after all. Schiavone acknowledges that the Digests “were largely lost from view (until) rediscovered by scholars in Bologna … toward the end of the eleventh century” (p.13). He then postulates “three different forms and sketches of the neo-Roman renaissance” through which follows “the entire history of Europe” (p.15).
In The Invention of Law in the West Schiavone “attempted to write a book that is not just for specialists” (p.viii). The book while focused on one big thing – law – covers too many jurists and political economic periods in too much detail to be readily understood on a first reading. And as I mentioned his style, his method, a kind of diachronic reverse deconstruction, makes it especially difficult for a non-specialist to follow his line of thought.
That said, the book is enormously interesting in its details, and for specialists I’m sure it will be feast full of new insights and provocations. I am confident it will evoke important and interesting reviews from experts in Roman law and history.
Berman, Harold. (1983). Law and Revolution: The Formation of the Western Legal Tradition. Cambridge: Harvard University Press.
Lehoux, Daryn. (2012). What Did the Romans Know? An Inquiry into Science and Worldmaking. Chicago: University of Chicago Press.
Peerenboom, R. P. (1993). Law And Morality in Ancient China: The Silk Manuscripts of Heiang-Lao. New York: State University of New York Press.
Schiavone, Aldo. (2002). The End of the Past: Ancient Rome and the Modern West. Cambridge: Harvard University Press.
Copyright 2012 by the Author, Walter J. Kendall III.