The (Misconstrued)
Influence
of Greek
Law on
Roman
Jurisprudence
by James F. Albrecht
NYPD Captain (ret.)
Professor,
Table of Contents Pages
1) Introduction
·
Abstract 2 - 3
·
Introduction 4 - 5
·
Customs
and the Law 5 – 6
·
Religion
and Written Law 6 – 8
2) Near Eastern Legal Precedents
·
The
Code of Hammurabi 9 – 11
·
Mosaic
Law 12 – 14
3) Greek and Roman Law Codes
·
The
Laws of Draco and Solon 15 – 17
·
The
Twelve Decemviral Tables of
·
The
Law Code of Gortyn in
4) Evolution of Codes and Methods of
Transfusion
·
The
Evolution of Law and Jurisprudence 22 –
24
·
Possible
Transfusion between
Ancient Civilizations 24 – 26
·
The Benefits of Written Law 26 - 27
·
The
Development of the Greek Laws 28 – 31
·
The
Development of the Roman Laws 31 – 35
5) Roman Writers examine the Influence of
Greek Law
·
The
Classical Roman Historians
36
·
Roman
History by
·
Roman
History by Livy 42 - 44
·
Roman
History by Dio
44
- 46
6) Comparison of Greek Law and the Twelve
Tables
·
Evidence
of Greek Influence on Roman Law 47 - 52
·
Comparison
of the Laws of
the Roman Twelve Tables 52 - 56
7) Conclusion and Comment
·
Summary 57 - 58
·
Conclusion 58 - 59
·
Personal
Insight and Analysis 59 - 63
8) Bibliography/References
·
Bibliography 64 - 67
The (Misconstrued)
Influence of Greek Law
on
Roman Jurisprudence
James F.
Albrecht
CHAPTER 1 -
INTRODUCTION
Abstract
There
have been many legal codes discovered and justice practices revealed among
ancient civilizations within southeastern Europe and the
The goal of my thesis is to
analyze the Greek Law Codes of Draco and Solon and the comprehensive law code
discovered later in Gortyn and to make a comparison to the Roman Decemviral
Tables (i.e., the Twelve Tables). By additionally
examining earlier significant law codes (i.e., the Code of Hammurabi and the
Mosaic Law), and earlier aspects of Greek and Roman jurisprudence, I will
explore differences and similarities between these documents and practices, and
ultimately theorize whether the legal and justice procedures in ancient Greek
and Roman civilizations resulted from one ancestral origin, from internal
morality, or from contact between different societies. Some historians [2]
have theorized that the complex nature of the Roman law documented in the
Twelve Tables implied that this legislation relied heavily on input from the
neighboring Greeks, who had previously made great strides in formulating legal
and justice procedures. Ultimately my
position is that the Romans relied on their own traditional legal precedents
and not transfusion from the Greeks to develop their famous law code that is
regarded as one of the initial and more significant stages in the formation of
the Roman Republic, and that has had an additional dramatic impact on justice
and legal practices throughout Europe and the later western world. Translated primary sources, secondary sources,
and the law codes themselves will be evaluated to gain a sense of the extent of
the similarities and differences between the legal guidelines in use by these
two significant civilizations prior to the start of the Common Era.
Introduction
As civilizations developed
throughout the world, a common trend routinely occurred regardless of time and
location. Customs were devised by local
leaders, memorized, preached and practiced by the populace, and they were in
fact the first version of law. When
local communities expanded, and writing developed, the local customs were
documented for all members of society and traditionally displayed for all to
see; thus codes and their respective punishments were made clear to all. A number of significant legal codes have been
either recovered in their entirety or pieced together from historical
literature or recovered artifacts. Six major versions of ancient legislation -
the Code of Hammurabi in Babylon, the Mosaic Law of the Jews, the Law Codes of
Draco and Solon in Greece, the Roman Twelve Tables, and the Greek Law Code of
Gortyn - have been highlighted as the foundations for legal developments for
future civilizations, and have been recognized as being highly influential on
current justice practices.
Due
to the close relationship in time in which the Greek and Roman law codes were
promulgated, there has been speculation by both ancient [3] and contemporary [4]
historians that the later Roman law code was strongly influenced by the written
legal statutes of the nearby Greeks. By
examining historical documents and by comparing the content of the Roman Twelve
Tables with the Solonic law code of Athens and the similar and more
comprehensive Law Code of Gortyn, stronger conclusions can be drawn to support
either diffusion or independent development of justice practices within these
two ancient societies.
Customs and the Law
Civilizations developed as
familial settlements had expanded to clans and eventually to groups of
clans. The need for cooperation and
understanding resulted in the development of common practices for the good of
the settlement. These tacit agreements were often long standing, and
acknowledged community customs resulted.
These early customs, conveyed verbally or through action, served as
local regulations and as precedents in decision making. These societal covenants therefore served as
the first laws. [5]
Since punishments were
often meted out in arbitrary fashion, both a code of conduct and delineated
penalties became necessary. It thus
became the responsibility of the ruler or “sovereign” to correct the
inconvenience and insufficiency of primitive society. The “positive” laws addressed the most
general interests of society, the clearest being the right of property. Regulations were designed to secure for
community residents the “peaceable enjoyment of his possessions.” These different rules eventually gave rise to
civil law.[6]
One of the intentions of
political society is to “secure the tranquility of all its members.” It therefore became necessary to take
measures to suppress attempts to disturb the public peace. History had revealed that the support of
society depended entirely on “coercive power, which by exemplary punishments
intimidates the wicked and balances the allurement of pleasure, and the
strength of the passions.” As a result
the, penal laws evolved. Punishments
often took the form of retaliation and were often severe. [7]
Religion and Written
Law
Civilization
arose 5,000 years ago in the Near East (in
Before
written codes of conduct, the earliest societies relied on religion, customs
and magic to maintain order. In the
religious perspective, not only could the offending individual but the entire
social group become subject to the wrath of the gods. Responsibility was collective in nature, as
was punishment. It therefore was
necessary for the society to punish the individual to “prevent supernatural
forces from taking revenge on the tribal group.” [9]
Society was then justified in treating moral non-conformists as delinquents,
criminals or victims of mental illness.
It was law that allowed society to communicate the moral values to
maintain the goals of that culture. [10]
While custom emanated from the people, law was forced on the community by the
decree of a master, a monarch, a ruler, or group of elders. [11]
Preliterate
societies allowed private disputes to be settled in a personal matter and
revenge was the usual outcome. Victims
themselves initially determined the extent of the retribution, which was often
not proportional to the original offense.
This “blood feud” would be better referred to as “blood revenge.” In an effort to control the magnitude of
vengeance, the responsibility for punishing the perpetrator was transferred to
the societal group. The introduction of
writing then allowed substantive laws to pass from the oral tradition to the
entire community. [12]
A
number of notable law codes were introduced before the Common Era (B.C.E.),
most significantly the Code of Hammurabi in
CHAPTER
2 – NEAR EASTERN LEGAL PRECENDENTS
The Code of Hammurabi
One of the world’s first
great civilizations was founded on the plains between the Tigris and
One of the most relevant
and earliest written law codes was produced in
The discovery of the Code
of Hammurabi (1700 B.C.) was a significant archaeological find. Uncovered by French archaeologists in 1901 at
The Code of Hammurabi
contemplated the whole population as falling into three classes. The “Amelu”
was a patrician who had aristocratic privileges. The “Muskinu” was a free
person who may have been landless. The
“Ardu” was a slave. [17]
The
significance of defining the social status of the offender and the victim was
made clear in the outlined punishment.
Punishments were more severe if the perpetrator was from the lower classes.
[18]
Although it is now
recognized that the Code of Hammurabi was not the first documented law code in
that region, it is suggested that Hammurabi may have “borrowed extensively from
earlier rulers,” as archaeologists have uncovered law related clay tablets in
Iraq that pre-dated those found in Susa by several hundred years. [19]
While this does lend support to the
diffusion theory, it should be highlighted that the comprehensiveness of the
Hammurabi slab is to date without comparison.
In addition, it is acknowledged that the Code of Hammurabi introduced
the world to the concept of “lex talionis,” or an “eye for an eye and a tooth
for a tooth,” which clearly resulted in a severe and literal view of
accountability. [20]
The death penalty was also commonly imposed for such infractions as theft, for
poor architecture that led to death, for maternal incest, for adultery, for
rape, for false accusation, and many other specific acts. Exile and corporal punishment were also
imposed, but probably the most interesting were those dealing with penal
retaliation, such as the “cutting off the hand of a son who struck his father,”
the loss of an eye that “pried into forbidden secrets,” and the loss “a
surgeon’s hand that caused the loss of life or limb.” [21] Most interestingly and somewhat surprising
was the finding that the most common penalty was a fine, particularly if the
offender was from the upper class. In addition, the concepts of culpability and
suspicion were addressed, as penalties were less severe if the offense was
conducted unintentionally, and the offender could often only be prosecuted if
caught in the act or in possession of stolen goods. The Code of Hammurabi was so complete that it
outlined a method of appeal that would first be heard by a superior court and
ultimately by the king himself. [22]
Given the advanced nature
of the Babylonian civilization, it would not be startling to find that nearby societies
and people, and those with later contact or trade with them, would not be
somewhat influenced by the governmental and justice practices of this
noteworthy society.
Mosaic Law
The
Hebrews originated in Mesopotamia and migrated to Canaan (later called
Under
Hebrew law, the religious nature of crime was apparent as crime was equated to
sin, since every criminal offense could be considered a crime against God. Once again the concept of penal retaliation
or “an eye for an eye” was outlined in the Biblical section Exodus. The Torah also outlined the proper legal
procedure for filing a formal complaint against an offender, which involved
both the plaintiff and the defendant appearing before an authority figure,
often an elder, at the main gate of the city.
Issues such as the number of witnesses, the level of culpability and self
defense were taken into consideration, however, there was no distinction
between social classes, and every person could be equally tried and punished. [26]
In addition, specific efforts were made
to protect the poor, widows, orphans, migrants and slaves. [27]
The sentence of capital punishment was
limited in comparison to the older Code of Hammurabi, and many property
offenses were settled through the payment of fines or restitution. [28]
It
appears that many of the laws and punishments outlined in the Torah are similar
to that of earlier regional practices, but the more humane repercussions and
the applicability to all members of Hebrew society provided a higher degree of
religious influence than the Code of Hammurabi.
The
predominant question that should therefore be examined is to what extent the
Hebrews were influenced by their Persian, Egyptian, and Babylonian
neighbors. Both ancient and modern
historians have practiced extreme caution in scrutinizing the divine
instruction outlined in Exodus, and in proposing theories counter to these
religious claims. The diffusion theory in
this case would clearly prove to be too controversial (to those of the Jewish,
Christian and Islamic faiths).
CHAPTER
3 – GREEK AND ROMAN LAW CODES
The Laws of Draco and
Solon in
Prior
to the introduction of writing in Greece, the law of Athens and the
administration of justice remained in the hands of the oligarchy, with societal
laws being passed down to the next generation orally. The non-aristocrats eventually demanded that
the societal regulations be recorded so that all classes could benefit from
their enforcement. In 621 B.C., Draco
was asked to develop and document Athenian legislation to promote public order
and deter the practice of blood feuds. However,
in this case, the law was not intended to carry out the will of a tyrannical
ruler nor the direction of God, but rather to improve the lives of ordinary
citizens and thus enhance the quality of life and maintain order for the
polis’s citizenry. With this goal in
mind, Draco documented severe punishments, often death or enslavement, to deter
disorder. Although Draco is remembered
in our age for his legislative ruthlessness, it should be noted that he did not
create new laws, but merely documented the common practices and customs that
had existed in unwritten fashion in
The
laws created by Draco were written on pillars of wood for religious matters and
on bronze for other aspects of law.
However, no original fragments of Draco’s law have survived and we must
rely on the writings of early Greek historians for insight into this important
legislation. [30]
One archeological find did uncover a
marble stele with Draco’s law on Homicide, but that fragment seems to be a
later documentation of the original wood recording. [31]
The
legislation recorded by Draco did have a negative impact on the lower classes,
and severe financial penalties often placed them in economic distress. This feeling of inequality brought the city
of
The Twelve Decemviral
Tables of
In
509 B.C., the Romans were able to free themselves from the clutches of absolute
power and attempted to develop a republican form of government. With the development of writing and a
democratic mindset, a written law code would significantly improve Roman
society. In the 5th Century
B.C., an effort was made to further this endeavor. What is known is that legal guidelines were
eventually transcribed on twelve tables and were publicly displayed. What has
come under suspicion is the origin of the content of these tables that have so
remarkably affected later civilizations.
One perspective has been speculated by
a number of ancient (and repeated by contemporary) historians. One theory is that around 455 B.C., the
consuls of
While
significant in legal history, the laws outlined on the Twelve Tables dealt
mainly with private disputes between individuals. The concept of “lex talionis” was also
emphasized as it related to criminal matters, but this could often be avoided
with payment of a fine. As per the
twelve tables, capital punishment was an appropriate penalty for murder,
treason, nocturnal meetings, arson, judicial perjury, libel and slander,
vandalism to a farm, and magical incantation.
While the sentence of death could, again, routinely be evaded by payment
of a fine, [36]
the number of infractions that could
result in the imposition of capital punishment clearly and dramatically
exceeded the guidelines imposed by the Greeks. It would therefore appear that the outlined
aim of equalizing the social classes may not have been attained (as the lower
classes were likely incapable of meeting the financial demands of the imposed
restitution or penalty).
From another perspective, this
legislation may have been intended not to be a comprehensive law code, but
rather a compilation of laws that could be abused by unethical judges if the
plaintiffs were not properly versed in the law. [37]
However, to the common citizen, these laws did appear to neutralize the two competing
social classes, the patricians and the plebeians, as far as justice
administration was concerned, [38]
and Roman Law would set the tone for future democratic legal practices
throughout the western world for thousands of years to come, particularly those
regions directly affected by the subsequent Roman conquests of Europe and the
Middle East. [39]
While many classical and
modern historians accept this explanation, there are other theories proposed
for the derivation of the Roman Twelve tables.
The simplest of these elucidations would involve the simple
documentation of the justice practices within the fledgling Roman republic,
allowing for public display and understanding, and at least apparent equality
between the patrician and plebian classes. The potential influence of the
Greeks on Roman jurisprudence has also been theorized in other fashion, and
these hypotheses will be examined in thorough detail later.
The Law Code of Gortyn
in
Gortyn
in
It is likely that what
remains may be only a small fraction of a great legal code, since what is addressed
is not inclusive of all aspects of daily life. However, the code, as discovered,
does deal with such matters as marriage and divorce, the sale of property,
mortgages and loans, inheritance rights, adoption rules, the legal position of
slaves, rape and adultery. [40]
What is notably absent is any reference
to the common criminal acts of murder or theft, which had been clearly
addressed in the other law codes discovered in other civilizations. Given the thorough nature of the existing
Law Code of Gortyn, it is difficult to fathom that a common crime such as theft
would not be addressed in some fashion. This
would lead one to believe that the code, as uncovered by archaeologists, was
not the complete law code of the Gortyn Minoan citizens. However, the thoroughness
of the Law Code would indicate that this legislation was reflective in whole or
in part of the legislation in place in
CHAPTER
4 – EVOLUTION OF CODES AND METHODS OF TRANSFUSION
The Evolution of Law
and Jurisprudence
When
examining the evolution of ancient law codes, there appears to be a number of
common trends. Law codes seem to appear
at the same time in the history of respective civilizations, which is clearly
not to say that this occurred at the same time in chronological history, but
rather at similar stages in the development of each particular society. What started as customary practices in small
clans, eventually evolved into community norms as the size of each settlement had
increased. Once these communities enlarged
to the stage that not all members were known to each other, the customs of the
tribe were left in the hands of the leader, elder or priest. These norms and rules were passed from one
generation to the next, but often led to arbitrary decision making on behalf of
the group ruler. As these societies grew
to extremely large sizes, the imposition of rules and the punishments imposed were
left in the hands of a select few, namely the privileged minority. Differential social classes and treatment
often resulted.
In
order to ensure compliance, community leaders often invoked religion to enhance
their authority. By portraying
themselves as gods or the chosen of the gods, as Hammurabi had conveyed, rulers
were often able to institute customs and practices that at times were
detrimental to society members or certain classes of the community. As time transpired, there was a move away
from divine influence toward democracy in some civilizations (e.g. Greeks and
Romans). With the invention of writing,
the local directives of the ruler could be codified and displayed for all
members of his empire. Legal history
thus evolved from customary to codified law.
Through time, legislation that benefited the ruler or the traditional
gods was replaced by laws that benefited all members of that society and whose
emphasis was on public order and democratic governance. While these stages did not occur at the same
rate, nor to the same extent in every civilization, some generalizations about
the evolution of law can be said of most societies. One can also conclude that perhaps, due to
their proximity, neighboring empires borrowed many aspects of their customs and
codified law from each other. In
addition, the theory that all laws were based on one ancient set of traditional
customs clearly comes to mind. A concrete conclusion can not be drawn for
either proposal as some civilizations that had little or no contact with each
other often developed similarly delineated legal and penal practices. While the legal codes outlined above may have
been influenced by continental and regional contact, similar civil, criminal
and penal practices were also codified in distant regions. One clear example that supports the theory of
independent development involves the legislative clauses of the Chinese
emperors that essentially mirrored the codified directives of the Middle
Eastern civilizations. The civil and
criminal code of Li Kuei in the fourth century B.C.E. provided the basis for
the Ta Ching Lu Li, the Chinese criminal and penal codes that have remained in
force in its majority through 1912. [41]
Extremely comprehensive, this law was
developed by the Chinese without known contact with their western neighbors,
and apparently without any association with any of the advanced civilizations
in the
Possible Transfusion
between Ancient Civilizations
The
possibility of contact and transfusion between many of the advanced ancient
civilizations is regarded as high. If not for cultural or scientific exchange,
then commerce and war were the likely causes for societal interaction. One of
the earliest exchanges dealing with recognized law codes that may have
transpired is likely to have occurred between the Persians and the Jewish
peoples. The statutes and content of the
Jewish law attributed to Moses are so comparable to the Law Code of Hammurabi,
that some believe that transfusion was a likely factor, and that the law code
documented in the Jewish Torah and Christian Old Testament had its foundations
on passages from its Babylonian precursor.
The inference is that this exposure may have occurred during the
Babylonian captivity and enslavement of the Jewish people. [42]
Of course, as practical as this
explanation may be, it is controversial and clearly would be considered
sacrilegious to the majority of the world’s religious clerics, advocates and
believers (i.e., the Jewish, Christian, and Muslim ideologues). This would
clearly counter the concept of divine intervention so strongly assumed by most
of the earth’s inhabitants, both now and over time. What is clear is that courage would be needed
by a contemporary historian to comprehensively evaluate the theory of
Babylonian-Jewish transfusion, and even more so to publish the findings if
contradictory to common accepted beliefs.
In
addition, the routine and repeated interaction between the Greeks and Persians
could lead one to deduce that similar transfusion occurred between these two
advanced societies. There is one theory that the presence of Semitic
settlements in
As far as later transfusion
goes, it is widely acknowledged that the Roman law has strongly influenced modern
legal practices throughout
The Benefits of
Written Law
There
are clear benefits to documenting the regulatory practices within literate
societies. By documenting and publicly displaying the law within that
respective realm, the political struggle by the common people for relief from
the perceived arbitrary power of the ruler or ruling class can be attained. [45] While written law mainly documented customary
practices that had been previously been conveyed verbally, there is no
indication that written legislation was any fairer than the precedent. [46]
However, the judicial process and subsequent verdicts were believed to be less
capricious. In addition, while there is
much emphasis on the “democratic” and “republican” nature of the government
processes, most of the political systems observed when these legal codes were
in effect were aristocratic, and often tyrannical in practice. What can be said with reasonable confidence
is that the earliest public inscriptions visible in ancient civilizations
involved the display of regional law. Therefore, more important than the
documentation of these significant law codes was their display in public areas,
so that they would be open for the understanding and utilization of all
citizens. The public dissemination of
these laws also led to greater control over the lives of local inhabitants. The enactment of openly displayed regulation
was therefore an attempt to resolve and eliminate any vagueness, ambiguity, or
conflict present in the customary practices and traditions of that society. [47]
With
the benefit of writing, law continued to be expanded to include later statutes,
resolutions of the assemblies and council, revisions of the original
legislation, [48]
and interpretations by appellate officials involving evaluations of prior
judgments and questions of judicial integrity and matters of legal review.
The
documentation of the Roman Twelve Tables and their public display in the forum
for all to see rivaled Hammurabi’s earlier accomplishments, and the Roman code
has been highly influential on modern legal and judicial practices. As a result, custom could be recorded, and
arbitrary and capricious enforcement and punishment could be constrained.
The Development of the
Greek Laws
In
order to gauge the existence of formal justice procedures in
Homer’s Iliad was composed before 700 B.C., [54]
clearly centuries before Draco’s official efforts. In 621 B.C., after the rebellion of Cylon, Draco
was tasked with the preparation of a formal law code to quell the violence and
promote public order. [55]
While more information about this
monumental responsibility has already been addressed, it should be emphasized
that only one aspect of the Law Code of Draco, his legislation on homicide, has
been discovered in part on a marble stele at an archaeological site in
As outlined above,
the extreme punishments delineated by the legislation proposed by Draco resulted
in prompt revision of the formal legal code of
The
remaining Greek legal tradition that will be highlighted involves the city of
The Development of the
Roman Laws
The
history of Rome in this analysis of law and justice commences with the
foundations of Rome in the 8th Century B.C.E. (considered within
Roman legend to have occurred in 753 B.C.) and ends with the collapse of the empire
in the 6th Century C.E. [64]
The birth of the Republic around 500
B.C.E. was precipitated by the aristocratic revolution and continued with the
demand of the common people, the plebeians, to have the law codified to deter
arbitrary and capricious enforcement and punishment. Judgment of the law had been in the hands of
the elitist class, the patricians, and the plebeians called for revision, which
was eventually undertaken, an initial victory for the common class. [65]
The
plebeians had obtained enough political influence to call for the reform of the
Roman legal practices. In 462 B.C.E., (as documented within one version of the
event noted by classical historians) a proposal was put forth to enable a panel
of five men to formally write down the laws that could be judged by the Roman
consuls. In defiance, the patricians
repeatedly postponed these efforts until it was decided that ten officials, the
“Decemviri” would be appointed to undertake this task. In 452 B.C.E., the
Decemviri commenced this project and some speculate that a delegation of
Decemviral members sought insight from the Greeks and traveled to
The
Twelve Tables of Rome can now be examined more extensively than above. The Decemviral Tables did not originally
amount to equality for the plebeians, but this was promptly revised to allow
the marriage of patricians and the common people. This achievement has been considered one of
the more noteworthy initial steps in the development of republican rule in
The Roman
Twelve Tables specifically addressed the following:
·
Table 1: Appearance before a Magistrate
·
Table 2: Procedure for postponement and witnesses
·
Table 3: Debt and Debtors
·
Table 4: “Patria Potestas,” i.e., Powers of a
Father
·
Table 5: Succession, Tutelage and Inheritance
·
Table 6: Ownership and Possession
·
Table 7: Lands and Buildings
·
Table 8: Crimes
·
Table 9: Judges, Public Juries, and Capital
Punishment
·
Table
10: Funeral Procedures
·
Table
11: Marriage Restrictions between Patricians and
Plebeians
·
Table
12: Prominence of Written Law over Customary
Law
As one can see, the Twelve
Tables emphasized court procedure, property rights, funerals, building codes,
marriage restrictions, crime, and punishment. [69] Interestingly, the specific crimes mentioned
involved homicide, including intentional, accidental and paternal; libel;
assault and injury; intentional or accidental damage; farming and livestock
grazing on another’s land; “nocturnal trespass;” arson; burglary; theft;
conspiracy to commit theft; usury; perjury; mystical incantations; nocturnal
assembly; and bribery. Capital
punishment was acceptable in most cases, but could only be authorized by the
court. For theft and intentional injury, personal
vengeance was permitted with impunity. [70]
It should be additionally highlighted
that the prohibition on intermarriage between the two classes was intensely
debated by the patricians and the plebeians and the law outlined on Table 11
was quickly revoked in 445 B.C.E. [71]
Another area of debate for
the plebeians involved the interpretation of the public statutes. The process for review after the display of
the Roman Twelve Tables was conducted by the
When one thinks of the
concept of law, many envision government regulation and corresponding
punishments. However, as has been noted in the Roman Twelve Tables and within the
documented codes that have been analyzed above (i.e., the Code of Hammurabi,
Mosaic Law, and both Greek and Roman Law), written law has emphasized routine
matters that affected the daily life in ancient times, namely, family, property
issues, marriage, land and burial regulation.
At the same time, homicide, theft and injury, which had traditionally
been dealt with privately between the two parties and their families, moved to
the jurisdiction of the court.
CHAPTER
5 – ROMAN WRITERS EXAMINE THE INFLUENCE OF GREEK LAW
The Classical Roman Historians
Three
classical Roman historians – Cicero and Livy in the first century B.C.E. and
Dio in the second century C.E. – addressed the development of Roman law in
their quintessential works. What remains
clear is that the lower plebian class, in their struggle for equality and end
to arbitrary judicial adjudication, called for the development of a written law
code that would bring an end to patrician domination and subjugation. None of the three early Roman historians
debate the formation of a panel of ten patricians, called the Decemviri, to
address this endeavor. What does come into question is the basis and origins of
the written Roman laws that later were called the “Twelve Tables.” The preeminent question remains the issue of
foreign (i.e., Greek) influence on the Decemviri and the written law of
Roman History by
One
of the greatest classical Roman writers was Marcus Tullius Cicero. Born in 106
B.C. in Aprinum, a small town only sixty miles from
While
recognized for his astounding legal, political and historical accomplishments,
his life was not without controversy. His
actions in advocating a state of martial law following the treasonous
conspiracy of Catiline and his cohorts, and in advocating a senatorial motion
that refused appeal to the Comitia Centuriata for the conspirators, placed him
in a position where he was viewed as having disregarded basic Roman
rights. Because of this conceived
debacle, his preeminent political career came to a slow end, with only limited
political participation for many years. He dedicated the majority of his time
authoring numerous philosophical works.
He met his demise when he opted to lead the opposition party against
Antonius after the assassination of Caesar in 44 B.C. In 43 B.C., the new Roman administration sentenced
him to death. [74]
Some
of the works written by
Surprisingly,
Another
of
A
significant and relevant work was
In
45 B.C.,
In
summary,
Roman History by Livy
Titus
Livius, or Livy as he is better known, was born in 59 B.C. in
Livy
referred to his main historical work as Ab
Urbe Condita or “From the Founding of the City.” [102]
Book II addressed the “new liberty” of
the Roman people in 509 B.C. and the relevance of the clashes between the
patricians and the plebeians. [103] Book III documented the formation of the
Decemviri, or the “commissioners.” In an
effort to develop a suitable law code for both the nobility and the plebs, a
delegation of three commissioners were sent “on a mission to Athens, with
orders to copy the famous laws of Solon, and acquaint themselves with the
institutions, customs, and laws of the other Greek states.” [104] After a number of years, these commissioners
“returned with the laws of
In
summary, Livy, a reader and advocate of
Roman History by Dio
The
last historical work by a classical Roman historian which will be examined will
be that by Cassius Dio Cocceianus, or Dio.
Dio was born in approximately 160 A.D., clearly over one century after
the aforementioned classical Roman historians. Dio respected Livy and based
much of his Roman History on his works,
rather than that of Cicero, whom he reportedly despised. After his arrival in
Following
the formation of the
It
should be highlighted that Dio often noted the formative influence of the wider
Greek culture within the
In
summary, Dio was strongly affected by Greek influence, and thus there may have
been limited hesitance in including the role of Athenian law and justice
practices in those of the Roman republic.
No specifics were provided, but one could conclude that there was a
certain pride in the Greek inspiration in Roman legal practices, which could
explain his high regard for the Greeks in his historical writings. His emphasis on Livy and his disregard for
CHAPTER
6 – COMPARISON OF GREEK LAW AND THE TWELVE TABLES
Evidence of Greek
Influence on Roman Law
In
454 B.C.E., the Roman “Comitia Centuriata” selected a delegation of ten members
to convert the legal customs of
The
potential influence of Greek practices on the Roman legislation of 450 B.C. has
often been attributed to the alleged delegation of Roman commissioners to
Another version of the
influence of the Greeks in the development of the Twelve Roman Tables has been
explained by the assistance of a Greek immigrant Hermodorus provided to the
Decemviri while scribing their law code in
An additional explanation
of Greek collaboration in the preparation of the Twelve Tables implies that the
designated mission did not travel to
The
accounts that attributed the democratic attributes of the law to the Greeks clearly
vary, but the mention of the Roman delegation to Athens remains the most
commonly mentioned by classical Roman historians. In the depiction by Livy, “three
commissioners were sent from
However,
one detail that may refute the travel of a prominent Roman mission to
In
addition, the appeal of Greek culture to the Roman nobility has been evaluated
by contemporary historians in an attempt to measure the strength of the general
influence of
In
conclusion, the proposed influence of Greek legislation and practice on the
Roman Twelve Tables has been portrayed differently by ancient, modern, and
contemporary historians, however, the true impact can not be measured without
closely and directly comparing and scrutinizing the content of the Greek
(Solonic and Cretan) and the Decemviral law codes.
Comparison of the Law
of
The
true influence of the Solonic Law on the scribing of the Twelve Tables of Rome can
likely be most easily ascertained by comparing the two documents. Both ancient and contemporary historians have
identified only two or three aspects of the Roman law code that exhibit any
similarity to that of the Greeks.
According
to the Roman historian Gaius in his work Institutes,
published in 161 C.E., which evaluated the laws of both Rome and Greece and is recognized
as the structural basis for most modern civil codes, the provision of the code
regulating building boundaries within the Twelve Tables was “in a way modeled
after the law of Solon.” [137] However
this similarity has been refuted by others who concluded that this provision of
Solon does not deal with the “action for regulating boundaries,” but rather
deals with spatial regulation. Gaius
also concluded that the statute within the Twelve Tables that delineated that
members of Roman society could make their own laws was also inspired by Solonic
Law. An additional claim was made by
Cicero, who claimed that the restrictions placed on “over-luxurious mourning” within
the Roman Twelve Tables may have had derivations from Solon and the Greeks, [138]
one of the scarce allusions to direct Greek influence on Roman law made by
Cicero.
Modern
historians repeatedly countered these claims by their ancient counterparts,
calling the influence of the Solonic laws “secondary at best.” [139]
Any similarities are considered to be “neither
precise, nor striking.” [140]
Stronger sentiment has been conveyed in
rejecting entirely the account “which ascribes the Tables, or any considerable
portion of them, to Greek sources.” [141]
The strongest opinion, by Lobingier, has
been emphatic that “in all the great lines of public and private jurisprudence,
the legislators of
Comparison
of the Roman Twelve Tables to the Greek Law Code of Gortyn, which as
highlighted earlier had been discovered in comprehensive, although not complete,
form resulted in a similar conclusion in that they were found to be “almost
wholly unlike in substance as well as arrangement” [144]
to the Roman Twelve Tables.
Another
conclusion that can be drawn to elucidate any similarities between the statutes
introduced within both civilizations provides support for Lowe’s theory of
common ancestry among all civilizations.
Lobingier noted the additional theory that any similitude that can be
drawn from the two stipulated legal systems can be “accounted for from the
undoubted fact that both” peoples “derive from a common…..source rather than
from any conscious borrowing by those who framed them.” [145]
This would provide credibility to Lowe’s
assumption of one common ancestry amongst all civilizations, [146]
or at least a mutual descent between these two societies. However, no notable classical or contemporary
historian addressing the Roman Twelve Tables has given this speculation any
further support or acknowledgment.
Ogilvie,
who evaluated Livy’s version of events, noted that the objective of the
Decemviri was not the “supersession of an old system” but rather “the
codification and publication of existing laws,” which had been considered by
the general public as being “arbitrary and tyrannical.” [147] It was clearly this upheaval in the middle of
the fifth century B.C.E. by the plebeians, who had demanded the codification
and publication of the Roman laws, that resulted in the eventual display of the
Twelve Tables in the forum, [148]
and culminated in a monumental step in the history of the
If
a comparison is made of some of the related statutes directly, some further
insight can be made into the similarity between the Greek and Roman legal and
justice practices. While the Solonic
Code reforms called for the “prohibition of selling debtors and their families
into slavery for failure to pay creditors,”
[150]
the Twelve Tables permitted the formal recovery of debt after waiting 30 days,
and also allowed indebted slavery, as long as he or a family representative
were sold “abroad, beyond the Tiber.” [151] Other differences can be noted between the
Twelve Tables and the Law Code of Gortyn.
The Roman law permitted a plaintiff claiming debt to bind and shackle
the defendant and bring him to court if the defendant refused to cooperate, [152] while the Cretan Code directed the judge to
institute punishment or a fine upon those who seized the defendants in cases
involving debt. [153]
In
addition, the Code of Solon addressed the sale of an unmarried sister or
daughter if she was “wanton,” [154]
while the Roman Twelve Tables deal only with the emancipation of a son after
his sale into slavery three times. [155] The clearest differences between Athenian and
Roman legislation deal with the imposition of capital punishment, which was
permitted only for murder and treason under Greek law, but for a plethora of
offences in
Ultimately,
direct comparison of the Twelve Tables of Rome with the Solonic Code produces
only limited support for assimilation of the Greek legal works into the Roman
statutes. Although many of the issues addressed by the law codes (i.e.,
property, theft, marriage, homicide, capital punishment, etc.) were similar,
the actual legislation formulated by the Greeks and Romans resulted in distinctly
different directives, statutes, and punishments. In addition, the lack of sufficient
similarities between the two significant works would provide further evidence
against the existence of a Roman delegation to
CHAPTER 7 – CONCLUSION
AND COMMENT
Summary
Six
significant law codes were developed, documented, and displayed to the
inhabitants of four advanced societies before the start of the Common Era. The Babylonians, the Israelites, the Greeks,
and finally the Romans have been recognized for this significant accomplishment
and for their subsequent impact upon the western hemisphere. However, what
should be noted is that similar developments occurred independently within
Conclusion
Based
on the lack of concrete evidence to support the travel of a Roman mission to
Greece to obtain insight into Hellenic legal practices prior to the preparation
of the Twelve Tables; the contrasting allegations made by the classical Roman historians
regarding the potential Greek influence in the preparation of the Roman law
code (i.e., a Roman delegation to Athens, a Roman mission to spatially closer
Magna Graecia on the Italian peninsula, or the influence of the Ephesian
Hermodorus); the lack of any documentation in ancient Greek historical
documents of the visit of a Roman delegation to Athens or any of the Greek
states or colonies at that time; and the scarcity of similar content within the
two major law codes, the Law Codes of Solon and Crete and the Twelve Tables;
the conclusion that can be drawn is that the Roman law developed independently of
input from the Greeks.
Personal Insight and
Analysis
In
order to support my conclusion, I researched as many sources that I could
locate (see Reference list below). At the start of my evaluation of the formulation
of the Roman Decemviral Twelve Tables, my initial thesis was that Roman law was
dramatically influenced by the highly regarded neighboring Greeks, a point
considered and recorded by both classical and contemporary historians given the
relevance of the Solonic Law code on subsequent societies. As I undertook my analysis, it became
apparent to me that the suspected direct impact of the Greeks on the
development of the law code of
Another issue that I
believe should be further addressed is the translation of
These issues have to be assessed in order to
better understand the division in historical documentation between Cicero and
Livy. (I believe that Dio relied
exclusively on Livy for the substance of his work due to Dio’s high regard for
him and Dio’s lack of respect and appreciation for
By
directly comparing the two law codes, the Roman Twelve Tables and the Greek
Solonic code, similarities are lacking.
I therefore came to the opposite conclusion that the Roman law was
developed independent of dramatic influence from the Greeks. My original position has therefore been entirely
revised and contradicted. Ultimately
when one considers the goal of the Decemviri, i.e. the transcription of
customary Roman justice and legal practices, there was little room for foreign intervention. Was the inference of Greek influence merely
speculation by later historians (like Livy), or a means of proposing Roman
scholastic superiority in that the Romans of that day were knowledgeable of
prominent Greek works on philosophy and law? Did the Romans at the start of the
Common Era have an inferiority complex? Perhaps
the Roman academics and scholars felt it necessary to allude to Greek influence
due to the respect that was bestowed upon Greek works and due also to their
training in
One
potential deficiency in my analysis was a result of my inability to read either
ancient Greek or Latin, which prohibited me from examining the primary sources,
i.e., the works of the ancient Greek and Roman historians, in their original
languages. I was compelled to rely on contemporary
translations of these classics, which may have included some misinterpretations
(given that the translations are often conducted by graduate students). I
therefore stand by my criticism of the translations of the works of the
original Roman historians, by ancient, modern and contemporary scholars. Additionally, at times, I relied upon quotes
from modern historians to conduct part of my evaluation and to support my
conclusion. These works may have been
somewhat biased as these authors may have attempted to support their own
theories and agendas. I clearly now
comprehend the relevance in understanding the classical languages so that
direct interpretation can be attempted.
Finally,
this research project into the issue of jurisprudence and legal practices could
be additionally expanded further by examining more thoroughly the influence of Persian
and Babylonian Law on the Mosaic Code, and the impact of these Jewish practices
and beliefs on later Greek jurisprudence (two hypotheses that have already been
proposed by some historians). Ultimately
another interesting analysis would involve the examination of the credibility
of the inferred relationship between Roman law and modern legal and justice practices. It should be noted that the issue of
independent (or divine) development of many law codes has been contested in
almost every case by many scholars over time with the opposite conclusion that
societal diffusion played a significant role. Each of the quintessential law codes
highlighted in this paper has at one time or another drawn the same conflicting
conclusions as to their formulation. As a
result, as detailed as legal historical research is to date, there is room for
more exploration and study (by fledgling graduate students like myself).
JFA/
Bibliography/
References
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E. (1961) Dio’s Roman History. The Loeb Classical Library;
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P.F. (1906) A Short History of Roman Law.
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www.fordham.edu/halsall/ancient/hamcode.html
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J.H. (2004) The Mosaic Law: Its Function
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JFA/
JAMES F. ALBRECHT
James
F. Albrecht is a 20-year veteran of the NYPD who retired as the Commanding Officer
of NYPD Transit Bureau District 20, responsible for the supervision and
deployment of over 300 police officers tasked with the prevention of crime in
the subway and rapid transit system in the borough of
James
Albrecht received two Bachelor’s Degrees in Biology and German Language and
Culture from New York University in 1983; a Master’s Degree in Criminal Justice
from the State University of New York at Albany in 1990; a Master’s Degree in
Human Physiology from the City University of New York at Queens College in
1992; a Master’s Degree in History from the City University of New York at
Queens College in 2006; and completed extensive Doctoral studies in Criminal
Justice at both Sam Houston State University in Texas and John Jay College of
Criminal Justice (CUNY).
James Albrecht is presently
a Professor and Graduate Coordinator of the Criminal Justice Leadership Masters
Degree Program at
[1] Lowe, 1947
[2] Cornell, p. 272
[3] Foster, Book II, p. 107
[4] Cornell, p. 272
[5] Goguet, 1761
[6] ibid
[7] Goguet, 1761
[8] Perry, pp. 4 - 5
[9] Roth, p. 2
[10] Wallace, 1973
[11] Roth, p. 3
[12] ibid, p. 3 - 4
[13] ibid, p. 4
[14] DeBurgh, 1961
[15] Perry, pp. 15 - 16
[16] Roth, p. 5
[17] Johns, 1910
[18] ibid
[19] ibid
[20] Roth, p. 5
[21] John, 1910
[22] ibid
[23] Perry, pp. 27 - 28
[24] Keathley, 2004
[25] Roth, p. 6
[26] ibid, p. 6 -7
[27] Perry, p. 33
[28] Roth, p. 7 - 8
[29] ibid, p. 10
[30] ibid, p. 10
[31] Stroud, 1968
[32] Perry, p. 47
[33] Harris, 2004
[34] Roth, p. 11
[35] ibid, pp. 16 - 17
[36] Gibbon, 1775
[37] Roth, p. 13
[38] ibid, p. 13
[39] ibid, p. 18
[40] Arkenberg, 1998
[41] Diamond, 1973
[42] Wormser, 1962
[43] Gagarin, 1986
[44] Lobingier, 1987
[45] Girard, 1906
[46] Gagarin, 1986
[47] ibid
[48] Calhoun, 1973
[49] Sealey, 1987
[50] Gagarin, 1986
[51] Garner, 1987
[52] Calhoun, 1973
[53] Wormser, 1962
[54] Saunders, 1991
[55] Sealey, 1987
[56] Stroud, 1968
[57] Gagarin, 1986
[58] Stroud, 1968
[59] Roth, p. 10 - 11
[60] Calhoun, 1973 and Wormser, 1962
[61] Saunders, 1991
[62] Wormser, 1962
[63] Calhoun, 1973
[64] Girard, 1906
[65] Watson, 1995
[66] ibid
[67] Cornell, p. 100
[68] Girard, 1906
[69] Lobingier, 1987
[70] Girard, 1906
[71] ibid
[72] Watson, 1995
[73] Sabine et al, 1976, pp. 1-2
[74] Ibid, pp. 2 - 4
[75] Rackham, 1967, Volume I, p. ix
[76] ibid, p. 25
[77] ibid, p. 45
[78] ibid, p. 43
[79] ibid, p. 135
[80] Rackham, 1967, Volume I, p. 137
[81] ibid, p. 309
[82] Rackham, 1976 Volume II, pa. 111
[83] Sabine et al, p. 42
[84] ibid, p.183
[85] ibid, p. 187
[86] ibid, p. 188
[87] ibid, p. 189
[88] ibid, p. 225
[89] ibid, pp. 45 - 51
[90] ibid, p. 51
[91] Reinhard, p. 3
[92] Reinhard, p. 322
[93] Annas, p. ix
[94] ibid, pp. xiv - xv
[95]
[96] ibid, p. 23
[97]
[98] ibid, p. 81
[99] ibid, p. 125
[100] Foster, Book I, p. ix - xi
[101] Ogilvie, pp. 1 - 5
[102] Foster, Book I, p. xv
[103] ibid, p. 219
[104] Foster, Book II, p. 107
[105] ibid, p. 107
[106] ibid, p. 109
[107] ibid, p. 113
[108] ibid, p. 121
[109] ibid, pp. 119 - 137
[110] Ogilvie, p. 449
[111] Cary, Book 1, pp. vii - xvii
[112] Millar, pp. 34 - 35
[113]
[114] ibid, p. 171
[115] Millar, p. 177
[116] ibid, p. 191
[117] Girard, 1906
[118] ibid
[119] Ogilvie, p. 449
[120] ibid, p. 450
[121] Ogilvie, p. 450
[122] Girard, 1906
[123] ibid
[124] Lobingier, 1987
[125] Lobingier, 1987
[126] ibid
[127] Gruen, p. 223
[128] ibid, p. 223
[129] ibid, p. 225
[130] ibid, p. 225
[131] ibid, p. 225
[132] ibid, p. 235
[133] ibid, p. 253
[134] ibid, p. 256
[135] ibid, p. 270
[136] Cornell, p. 275
[137] Watson, 1995
[138] ibid
[139] Girard, 1906
[140] Watson, 1995
[141] Lobingier, 1987
[142] ibid
[143] Cornell, p. 275
[144] Lobingier, 1987
[145] ibid
[146] Lowe, 1961
[147] Ogilvie, p. 449
[148] Cornell, p. 272
[149] ibid, p. 450
[150] Roth, p. 11
[151] Lobingier, 1987
[152] ibid
[153] Arkenberg, 1998
[154] Garner, 1987
[155] Lobingier, 1987
[156] Roth, p. 11