Bryn Mawr Classical Review 96.7.7

O.F. Robinson, The Criminal Law of Ancient Rome. Baltimore: Johns Hopkins, 1996. Pp. x + 212. $40.00. ISBN 0-8018-5318-4.

Reviewed by James E.G. Zetzel, Columbia University,

Whenever I teach Roman law, I spend little time on criminal law: one of Cicero's murder cases, and perhaps one class on the quaestiones perpetuae in discussing types of trial and jurisdiction and the limits of provocatio. Most of the rest of the course concentrates on the civil law -- property, contract, family law, and delict. There are pretty obvious reasons for that: one is that the standard textbooks of Roman law generally omit criminal law almost entirely; the other is that our ancient sources show very much the same bias. The dust-jacket of Robinson's book states (and I believe it to be true) that hers is "the first book in English to focus on the substantive criminal law of ancient Rome." A fair amount has been written on criminal courts and procedures and on the quaestiones of the late Republic, both in terms of substantive law and in connection with the political implications of criminal trials; beyond that, aside from studies of very specific laws and trials, there is little. The most comprehensive study of Roman criminal law remains Mommsen's massive Römisches Strafrecht.

In principle, therefore, Robinson's book is welcome: criminal law is intrinsically more appealing than civil law to most non-lawyers (would an antitrust suit be broadcast daily on CNN?), and something to assign on the subject would be very desirable. Unfortunately, R.'s book is not going to fill that gap. In a text of scarcely more than 100 pages, she devotes two preliminary chapters to procedure and liability, and then five chapters to major subdivisions of criminal law: theft, violence, sexual offenses (the longest chapter), treason and related crimes, and "Other offenses against good morals or public discipline." In each of these five, she summarizes the evidence for various criminal charges, saying something about the development of the law from republic to dominate and something about penalties. In many cases, she simply summarizes sections of the Digest or various imperial constitutions; in others (e.g. on adultery) she goes into rather more detail about culpability, the right to lodge a charge, and the like.

Where I have checked the sources, R. is generally accurate, but she offers little more than summary. And there are some significant defects. Her account of the development of procedure and the courts is unclear and excessively cursory; in terms of imperial procedure and the development of cognitio extra ordinem and senatorial jurisdiction, one is much better advised to read the brief chapter in A.H.M. Jones's posthumous Criminal Courts of the Roman Republic and Principate (1972). Wherever the line between law and politics blurs, R. is seriously inadequate, particularly in dealing with charges of maiestas (there is not a word about Tacitus' account of the Tiberian trials) or the criminal trials of the late Republic. And on some topics, e.g. the crimen expilatae hereditatis (30-31), she is simply wrong: a clearer and better account is to be found in Berger's Encyclopedic Dictionary s.v. or in Jones's seven lines on the subject (p.108).

More important is that the organization of the book is not well thought out. R. essentially follows the categories of the Digest and the Codes, only stopping to consider their rationale in dealing with the distinction between vis publica and vis privata. Forgery ends up being discussed in the chapters on theft and public offenses; vis in the chapter on violence and that on public offenses. She recognizes the importance of the fact that furtum and iniuria are delicts as well as criminal offenses, but never discusses the substantive differences between the two. The book is apparently aimed at law students in Scotland (see below) who need to learn something about Roman law; but there is no systematic discussion of some of the issues that might actually be of interest to a student of modern law: the differences between crime and delict in areas such as theft which modern law treats solely as crime; the choice of charges used in major public offenses (e.g. the overlap that R. mentions, but does not explain [82] among vis, maiestas, and peculatus); or, more generally, the ways in which the Roman categories of crime differ from modern ones, or the ways in which (at least in the late Republic, and notionally in the early Principate) the division of crimes among the quaestiones publicae affected the nature or strategies of criminal prosecution. On the other hand, although it provides a reasonable compendium of facts about Roman criminal law, R.'s book is not much use to classicists either: like many Romanists, R. refers primarily to legal texts and only rarely to literary ones; that is understandable. But her approach and the rapidity of her summary (12 pages on all crimes of personal violence?) mean that there is no discussion of individual cases, and very little of the development of law in any social or political context: there is a detailed discussion of the procedural intricacies of adultery law (58-67), but little about its real effects; and R.'s decision to discuss the changing provisions of the various ambitus laws of the late Republic (84-86) was not a fortunate one. I do not recall seeing the citation of any legal inscription other than the law of the Bembine tablet, nor is the citation of modern critical literature remotely adequate. On the subject of vis, there certainly should be a reference to Frier's Rise of the Roman Jurists; although Talbert's The Senate of Imperial Rome and Millar's Emperor in the Roman World are in the bibliography, they does not appear to me have been used.

R. has some very strange ideas about the ancient world as well. She suggests (9) that because Augustus was given the title pater patriae he might have been able to exercise the jurisdiction of a paterfamilias over the entire populace; the description of the lex Clodia of 59 (actually 58) as dealing "with murder arising from abuse of office" (43) seems somehow askew (it dealt with magistrates who put citizens to death without trial); Hadrian is said to have sought a "Hellenistic way of life ... for the whole Roman commonwealth" (52). Such things as these are perhaps of a piece with the occasional attempts to make Roman law relevant: the peculiar reference to the idea of intellectual property in antiquity (39), a suggestion that lenocinium might involve "a wife-swapping party" (67), or the description of the siliquae as "a sort of early VAT" (91).

Finally, a short quiz. What do "not proven" "art and part" "reset" "stellionatus" "uncanny practices" "vicennial period" and "hamesucken" have in common? They are all, apparently, terms of art in Scots law; they also all appear in this book. There is nothing wrong with that, and "art and part" (the Scots translation of ope consiliove in defining a criminal accomplice) in particular is a term that I look forward to using. But it does suggest that R.'s view of her audience is rather narrow; the old legal maxim 'cui bono?' might profitably have been applied.