Law and Empire in Late Antiquity (review)

Jill Harries. Law and Empire in Late Antiquity. New York: Cambridge University Press, 1999. Pp. ix + 235. $59.95.

Jill Harries' book is a good example of just how far the study of Roman law has come since the days when it was a narrowly defined field of legalistic inquiry, with occasional forays into constitutional practice. Taking a cue from the "Law and Society" courses that are now a staple of the college curriculum, Harries seeks to situate legal practice in late Rome firmly in a context of social, cultural and political values. The exercise has led her to rethink a number of standard assumptions about the legal system of late antiquity.

Two introductory chapters on how law was studied and made from Republic to late Empire show how the emperor soon became the source of all new law. Distinguishing between the conflicting demands of legal clarity and patronage, Harries argues that law in the late fourth and early fifth centuries was not the corrupt, violent, and ineffective system that has traditionally been described. Instead, she argues, it became increasingly professionalized, a development that was critical to the great legal compilations of Theodosius II and Justinian.

Theory suggests that the emperor, as sole source of law, became increasingly autocratic. But in chapter 3, "The Construction of Authority," Harries shows how in practice, provincials manipulated the theory of "universal consent" (consensus universorum), on which emperors based their right to rule as well as ceremonies and acclamations, to get decisions more to their liking. Harries overturns another standard view in chapter 4, "The Efficacy of Law," demonstrating that the constant iteration of law in the codes proves not that they were ineffective but the reverse: they are the result of litigants asking for fresh proof that the law had (or had not) changed in order to strengthen their hand in court. The argument leads nicely into chapter 5, "In Court," where Harries tries to reconstruct the working of the judicial process out of scattered references in the sources. She suggests that the increasing resort to appeal in the late empire might be due in part to elimination of the earlier method of letting litigants select their own judge in favor of a mandatory judge selected by the state.

Chapters 6-9 offer fresh thinking about torture, punishment, and judicial corruption in the late empire. Although this period usually is been characterized as more venal and vicious than earlier centuries, Harries points to many practices, such as crucifixion and using criminals in wild animal shows, that actually declined during this period. Greater sensitivity to the use of torture (prompted, in part, by changes that removed the exemptions the higher classes previously enjoyed) accounts for much of the greater visibility of these practices in the late empire. Harries points out that the objections raised by contemporaries were not to the principle of torture but to instances of its misuse. Judicial corruption, too, is overstated, through a combination of imperial rhetoric and what Harries calls a "culture of criticism." Much of what is characterized as corruption would, through other eyes, appear as the normal working of patronage.

Two chapters on dispute settlement demonstrate how, despite modern preconceptions, the system could protect underdogs and point out conflicts between the bishop's traditional role as arbiter and his new responsibilities in the episcopalis audientia. A brief conclusion summarizes her main points.

All of Harries's revisionist arguments are not equally effective. Showing that litigants cited the law does not quite prove effective administration, and showing how law could be subordinated to other concerns such as patronage may explain, but it does not deny, the existence of abuse. Indeed, Harries probably would not want to press the case overmuch, since her own pages contain ample evidence of the type of extralegal considerations that influenced judicial decision-making. Her real point is that the complaints of contemporaries do not testify to new levels of corruption...