A collaborative blog for Current Affairs and Policy Debate

Roman Law and Order

In Law And Order on September 2, 2010 at 12:05 pm

By polarii for The Daily Soapbox

Part of September’s Law and Order Series

The Law and Order series on the Daily Soapbox is sure to be one of the most provocative blog series going in the independent blogosphere. It will (probably) challenge our concepts of justice; our ideas concerning what order is, and whether that leads to other tensions with notions like freedom; and raise questions about whether there are laws above the laws of our own land. But, as is now becoming customary for this blogger, I feel it would be right to look back a little to the genesis of much of UK legal tradition – Rome. Why should we do this? Firstly, the laws haven’t actually changed that much. Things like murder and stealing are still illegal, corruption is still heavily punished. Most laws are basic to most societies, but Europe and her former colonies have a Roman slant on them that cannot be avoided. Secondly, many of the processes are the same. We still have a tiered appeals system, we still employ the use of prosecution and defence advocates, we still use juries, we still insist every citizen have a trial should he want one. Of course there are differences between Rome and the modern world, but that only serves to illuminate our different perspectives on justice and the law. Thirdly, some of the ancient legal stuff is tremendously interesting for its sheer barbarity and blinkeredness. I don’t intend to deeply dissect the Roman legal system – there are whole books that try and fail to do that – rather just meander around the most interesting bits as a sort of amuse-bouches for the rest of this series. All dates are BC unless otherwise stated. Hope you enjoy.

Just one serious thing to remember though. When the ancients talked of ‘politics’ they meant anything to do with the ‘polis’ – city or community. Consequently, the legal system was seen as part of the polis, and to divorce it from any other part: art, religion, morality, history, whatever; would have been seen as stupid. We can see this in the Roman word ‘mos’, which means moral, custom or law. When Cicero (much, much more of him later) writes his ‘de moribus’ – on morals, he has occasion to discuss not just personal morality, but how to eat dinner and the composition of juries. In Roman thought and language, law was intrinsically tied to pretty much everything else. For example, at several points during Roman history, some Vestal Virgins (who, unsurprisingly, had sworn to remain virgins) were tried for breaking their vows. On another occasion, Julius Caesar was forced into marching on Rome because he was threatened with prosecution for continuing state business once a religious event had been declared. At other times, people got away with dangerously immoral acts because of political or religious clout – for example, Scipio Nasica, high priest at the time, was able to execute one politician, Tiberius Gracchus, without any repercussion whatsoever. Bear this in mind.

Roman courts altered in composition throughout the ages, but as a rule of thumb, it always contained an elected magistrate of praetorian rank or higher (there were 8-16 praetors, 2 consuls, and occasionally 2 censors for the whole Empire of about 30 million), prosecution and defence, possibly with advocates, and a jury, selected from the upper echelons of Roman society. This may seem unfair, but when we consider that most poor people would not be able to spare the time to hear out a case, nor would they be literate enough to read court documents, this is not such a stupid idea. Juries could vary in size from a small number, like 12, to hundreds, depending on the complexity and weight of the case. Citizens (and most people weren’t citizens) could appeal to the Tribunes of the Plebs against a court ruling, and this power was later transferred to Caesar. The most famous exercise of this right of appeal, called ‘provocatio’, was used by Paul, the Christian apostle, in order to journey to Rome.

The Romans greatly respected honesty in their legal dealings. The Greek historian Polybius tells of Regulus, who, having so nearly conquered Rome’s arch-enemy Carthage outright, was captured by the Carthaginians. He was permitted to go free, so long as he would return to Rome and tell its Senate to advise them to conclude the war. Regulus did the exact opposite, telling the Senate to continue the war. He then (rather incredibly, which leads many historians to doubt this account) returned to Carthage to face punishment, in obedience to an oath he had sworn. The Carthaginian Senate voted to execute him by locking him in a box with sharp nails, thus making it necessary for him to remain upright and alert. It is unclear whether he died through dehydration, sleep deprivation, or having some internal organ punctured as he fell asleep. More on  cruel punishments later. But the point about truth, and oaths is important. This is where we get our custom of swearing by something important; indicative of a belief that there is a higher order that upholds the justice of the state, and if we defraud our state’s justice, the higher power will see to it that justice is served.

The ancients felt strongly about the punishment of criminals, and greatly believed in deterrence. Aside from Regulus’ extraordinary example, there were brutal punishments. A Vestal Virgin convicted of having broken her chastity vows would be entombed alive. One found guilty of parricide would be flayed, have his wounds and testicles coated in honey, and be sown into a sack with a dog, a cockerel, a monkey and a snake. The drowning that would come from being thrown into the river Tiber would be welcome relief from all these animals gnawing at the open wounds. Strangely enough, there were probably less parricides in ancient Rome than in the modern world, though I don’t advocate this punishment. From the earliest times, however, most Roman citizens could avoid the death penalty if they volunteered for exile (take, as example, the poet Ovid, who was accused of plotting against Caesar Augustus). However, when the Roman Empire became so large this became rather pointless, the option of dignified suicide was allowed. If you were unfortunate enough to be a foreigner or slave, however, you could be crucified for a number of crimes. This punishment (learned from the Carthaginians), involved being nailed by the wrists and ankles to a cross, which was then lifted so that either the weight of the upper body would eventually crush the internal organs, or, as the criminal grew weaker, he would be unable to maintain a sufficient angle to enable the diaphragm to operate, leading to a half-suffocation. After one slave revolt, the Romans put 6000 slaves to death like this, leaving their corpses as a gruesome reminder along the principal road to Rome. Slaves had it bad in the justice system generally; their testimony could only be admitted if it had been tortured out of them – and the Romans were good at torture, as you might now guess. And there were no women in court unless they were the accused.

In the courts, only private citizens could bring prosecutions. The state never brought any charges, presumably meaning that a large number of cases were settled as a matter of course outside court, because most people could not afford the legal fees. The consul of the day might bring a charge in the interest of the state, but this would be part of the individual consul’s political game as well as done for the interest of the state. Since no foreigners could bring a charge, they had to find a patron to do so for them. The Sicilians were fortunate and found a young Cicero, the greatest lawyer who ever lived. He prosecuted Gaius Verres in 70 BC for corruption during his governorship of Sicily. Unusually, Cicero trucked great cartloads of evidence to Rome, which apparently rather bemused the prosecution – most cases were decided on whether it was likely that the defendant had committed the crime, with respect to his known actions and character. Cicero alleged that Verres had worked the corruption for his full three years of governorship; using the first for his own ends, the second to pay for the lawyer, and the third and most fruitful to bribe his jury. Bribery became a very common practice in the Roman courts (the jurors were not paid). However, in this instance, it was not enough for Verres, and, using an exemption granted in early Roman history for Roman citizens only, retired into exile. There were no laws to prevent people from being prosecuted twice, though a second attempt was very unlikely to carry without a drastic change in the political situation. Cicero thought he was within his legal rights to execute some Roman citizens without trial in 63 during his term as consul. He was tried and found guilty of murder in 58, and went into exile, but returned the next year vindicated, since his personal enemy had left office.

Roman law was also incredibly pragmatic. Cicero argued at the end of his consular year in 63 that the consul elect for 62, Publius Silanus Murena, should be acquitted of a serious charge not because he hadn’t done it, but because the Roman state needed a good military commander to quash certain rebellions over the next calendar year. He was duly acquitted. Often minor thralls of the emperor in later years were acquitted in order to avoid embarrassing the emperor in the provinces. The volume of authors for Judaea during the early parts of the Roman Empire (c 60 BC – 70 AD), indicate that governors were willing to acquiesce to most elements of Jewish law for a peaceful life. The most well-known case is that of Jesus of Nazareth, who was executed on dubious Jewish grounds, on no Roman grounds, but especially on grounds of political expediency. The Roman law rarely, however, accepted judgements along the lines of ‘it seemed right at the time’, often initiating prosecutions retro-actively. And it never made a concession on any important issue to moral relativism – that philosophy that says what is moral for you is not necessarily moral for me.

For sure, our legal system has (thankfully) evolved a bit from the Roman system, with all its barbarity. But the concerns the Roman system raises still impact our own legal system: is there a higher authority that will punish us for defrauding the justice of our state, or breaking our oaths? Is trial by jury really the easiest and least corrupt way to go about things? What happens when different legal traditions collide? How extreme should the punishment be for the most malicious and wicked of crimes? Is there room for pragmatism in justice? Should we punish technical crimes, such as fraud or bribery, as seriously as we treat those crimes that damage an individual physically? Is it ever in the public interest to prosecute? Should we have the death penalty, and if we should, should we make it as painful or peaceful as possible? Should we elect our judges? From which groups should we draw our juries? To what extent should we or do we make our legal decisions based on the character of the individual, or the brilliance of the oratory? Are there some groups who are inherently more (police, doctors perhaps) or less (convicted criminals, bankers perhaps) trustworthy when giving evidence? What role does politics, religion, morality have to do with the administration of justice, if any? Is there room for judicial relativism? The Romans gave quite specific answers to these sort of questions, though things like the death penalty, the treatment of slaves, and laws above the law were hotly disputed, at least among philosophical circles.

So often, when it comes to this court ruling or that on a paedophile’ light sentence or someone who is clearly guilty in spirit of the law but isn’t in letter, we can hear Cicero’s cry of ‘o tempora! o mores!’ – O the times! O the standards! But we can easily forget that underlying the issues of law and justice are these deep questions, to which examining our ancestors has enabled us to see an alternative side. Hopefully these issues and more will be dragged out during this series, which will be accompanied, at least by this blogger, by some further thoughts from the ancient world. It is ultimately up to you, dear readers, to sit as judge and jury over it, and determine whether or not the Soapbox is wasting  its time; although, after reading what comes up in this series (I don’t know what’s coming, incidentally), your perspective on the legal system and justice may have changed completely. Let’s just hope it doesn’t end too close to the Roman one…

  1. A rather brilliant post, as always, polarii, which by far demonstrates your expertise in ancient history (I have no idea how you do it).

    I do like how you placed TDS as within the “independent blogosphere” – I never realised there was a dependent blogosphere in the first place! Hopefully we might break out into the mainstream sometime eh?

    On Regulus, that is truly incredible – did the Carthagins just shrug their shoulders when Regulus wandered over and go “Meh, might as well kill you”? It does sound more likely that the Carthagins just captured and killed him, but we shouldn’t let historical reality spoil a good story.

    Also, I quite like the pragmatic way Roman law was carried out as you described – too many times I feel our legal system has been too tied up with being morally right, and not pragmatically right.

    Out of curiosity, you say our legal system has evolved quite a bit – what do you think have been the most important, or the best, evolved “bits” of our legal system over the Roman one?

  2. How do you think our legal system could be more “pragmatically right”, Stephen? I can’t personally see a way which wouldn’t make our relationship with the State, and those with powerful personal influence, more unequal.

    Given that pragmatic justice nearly always turns out to be stuff like plea bargaining, I’d personally rather that we ditched it.

    Incidentally, I suspect “Independent Blogosphere” means non-party aligned. I suppose the label of “independent” meaning non-party was always a little pretentious!

  3. By independent, I meant that we are not paid or required by some organisation to blog. I also like to think we have independent thoughts, and thus represent the most independent of the independent blogosphere. But anyway, it’s a nice turn of phrase.

    I don’t think ‘practical’ judgements such as the Romans made are a good thing. Some Romans, literally, got away with murder, because they were the emperor’s favourite, or a great general. I recall Cicero’s first case in 80, where he defended Sextus Roscius on a charge of parricide. The ‘pragmatic’ answer would have been to kill Roscius, as the alternative explanation implicated Chrysogonus, a Greek freedman of the recently retired dictator, Sulla. Cicero was able to see that justice was done, and he was acquitted.

    Our legal system has evolved well; we now allow women to testify and bring charges, and we do not require torture to extract evidence from some groups of people. It is much harder to corrupt our juries than in Rome. Our state now brings ‘public prosecutions’, which is to advantage of the disenfranchised, and foreigners who have been wronged in this country can go to court as well. Our appeals system is a lot less dependent on which individual is the appellate and appeals judge. We have to all intents and purposes abolished the death penalty, which I categorically oppose. Our system is much fairer. And the burden of proof is on the prosecution, whereas, in Rome, there was no burden of proof – it was just whether you thought the defendant ‘might’ have committed the crime. Many successful defences were made along the lines of: “Look at this person, he is so virtuous in all his dealings. How could he have murdered another man?”

    As for Regulus, you have to take much of classical history, particularly the earliest parts of a state’s history, with a pinch (or six) of salt. However, I was wrong, Polybius does not attest this story, rather Augustine and Aurelius Victor, both late, while Aulus Gellius records a different execution, and Horace, the poet, records simply that he honoured his oath and returned to be executed. However, given the deep respect of the ancients generally, and aristocratic Romans in particular, for oaths and the gods, it would not surprise me if there was more than a grain of truth in it. Incidentally, Gellius records than Regulus was locked in a deep cavern, with his eyelids cut off. He was then brought into the light of the sun. Whatever the Carthiginians did to him, it was certainly painful.

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