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Leges Regiae and the Nomothetic World of Early Rome

Christopher Smith
p. 91-103

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  • 1 The best recent account is R. Laurendi, Leges regiae e ius Papirianum. Tradizione e storicità di un (...)

1After many years in which the ancient notion that a body of law was passed under the kings was regarded as somewhat unreliable, at least in Anglophone scholarship, more attention has been given to this subject of late1. However, serious problems remain, and in this paper I will restate some of the reasons why we cannot straightforwardly accept the traditional source account. At the same time, we need to explain where this account came from and how it was produced.

  • 2 Supra n. 1.

2My intention therefore in this paper is to examine the sources for the leges regiae, to address the historiographical construction of the figure of the Roman king as lawmaker, and to consider the argument that this may reflect a deeper reality which is distinct from the narrative. This work builds on a previous article which argued about the leges regiae from a rather different but complementary approach2. So I will begin with a summary of that argument, and then proceed to consider the textual evidence.

I. A city without laws?

  • 3 T. du Bry, « Slab City : Squatters’ Paradise? », in A. G. Wood (ed.), On the Border : Society and C (...)

3In the California desert, in 1961, a decommissioned U. S. Marine Corps base, Camp Dunlap, was returned to and made into public land by the State of California. It has been occupied by a group of some permanent and some thousands of occasional residents, with the name of Slab City, taken from the concrete slabs from which it is made. « Slabbers » claim to have no laws and to be the last free place in America. There are no authorities, no services, and those who live there are off grid3.

4The notion of a city without laws is a postmodern triumph, speaking to a variety of counter-cultural and pop-cultural tropes. Yet even Slab City, from the few serious accounts of it which exist, is a community which has not only inherited the geographic constraints of its previous military existence, but which, more or less effectively, self-polices. There are figures with a degree of cultural authority, a Christian community centre, and a notion of property. Moreover, Slab City exists in part through the legal choices of a wider state apparatus.

  • 4 R. Verdier, « Le Mythe de genèse du droit dans la Rome légendaire », RHR 187 (1975), p. 3-25.
  • 5 For elaborate speculation, see A. Carandini (ed.) La Leggenda di Roma, Milan, Arnaldo Mondadori, 20 (...)
  • 6 See E. Dench, Romulus’ Asylum : Roman Identities from the Age of Alexander to the Age of Hadrian, O (...)

5Rome’s own foundation myth tends towards a similar sort of idealised picture of lawlessness leading to constitutional government4. The twins Romulus and Remus live in a shepherds’ community and engage in brigandage (Cicero, Republic II, 2 ; Livy, I, 4 ; Diodorus Siculus VIII, 4, 1-2 ; Ovid, On the Roman Calendar III, 59-64 ; Plutarch, Life of Romulus 6)5. After the foundation of the city, the constitutional framing offered by Romulus is first and foremost institutional, it is the structure of the citizen body and its ruling authority the senate, which thereby permits the elaboration of further laws. This elegant sequencing is of course entirely fake. Whatever kind of senate Rome had before the third century a. C., it is not plausible that it was a body confected with numerical precision by the surviving twin son of a god. Then, and only when Rome is equipped with laws, does Romulus create a larger community by gathering shepherds and immigrants, according to Cicero, or by creating an asylum, to which flocked many who were outside or condemned by the laws of other states. The word asylum is not found before Livy and Dionysius of Halicarnassus. Yet the notion had already diverged from Cicero’s version to Livy’s problematic revolutionary mixture of slaves and free, and Dionysius’ more aristocratic but still edgy group of displaced nobles (Cicero, On the Orator I, 37 ; Livy, I, 8, 5-6 ; Dionysius II, 15, 3-4). So Rome starts off lawless, but almost immediately acquires the legal framework of a constitution, as framed by Romulus, which permits the expansion of the city-state6.

6This story clearly derives from a philosophical notion of how to make a polity. The lawless state makes no sense outside of plainly utopic or barbaric examples. But what sorts of laws could the fledgling state have been expected to pass ?

  • 7 Cf. J. Poucet, Les rois de Rome: Tradition et Histoire, Brussels, Académie Royale de Belgique, 2000
  • 8 A balanced but dated account in A. Grandazzi, The Foundation of Rome : Myth and History, Ithaca, Co (...)

7The flaws in the narrative of Roman kingship are obvious and need little rehearsing here. The sources are much later than the events described. There is no adequate explanation of how detailed and accurate information was passed across the gap. The accounts we do have clearly reflect the preoccupations of the time of writing7. Attempts to match sources to archaeology have rightly been criticised for failing to take account of the way the historiographical account has been constructed, and its transformation over time. We should not however draw the conclusion that Rome was unsophisticated. The terms of this side of the debate vary. There are legitimate issues over the size of Rome, but none seem to me to undermine significantly the striking fact of Rome’s success by the sixth century a. C. at the latest8. The archaeological evidence shows a large, multi-centred city capable of ambitious building projects and open to international influence.

8The challenge is to find a way to talk about Rome as a large, complex, multi-focused and culturally receptive society which does not rely on the transmitted historical narrative. Or rather, and better, we have to see that narrative as a product rather than a description of the Rome we can see in the archaeology, and of course we see it only at the end of a long process of cultural production. Livy is for us the endpoint more or less of a sequence of overlapping, interpenetrating and often contradictory cultural and intellectual productions, scarcely any of which have documentary value. The methodological approach taken here is to focus less on the details of the sources, and more on what the existence of a tradition regarding the leges regiae might tell us. In other words, our question should not be « what was in the leges regiae » but why did the Romans think the kings made law?

  • 9 C. Smith, « The Laws of the Kings — A View from a Distance », in P. J. du Plessis & S. W. Bell (eds (...)
  • 10 See now N. Terrenato, The Early Roman Expansion into Italy : Elite Negotiation and Family Agendas, (...)

9In another essay, I have endeavoured to make the simple argument that Rome must have had some form of quasi-legal framework9. The size and complexity of the city made it inevitable that some forms of arbitration and customary behaviour came into force. Even if we take the view that early Rome was predominantly a collection of competing clans, there are some indications that these clans made agreements, for instance not to bury in the heart of the city, and not to bear arms. For the former, the evidence is the archaeological absence of burials in the forum area, and the latter may be deduced from the different mechanisms of imperium domi militiaeque10.

10Anthropological studies of law and of the predominance of co-operative models of early states, especially in market contexts, offered real world comparators to my hypothetical sketch of early Rome. The argument was by no means to suggest that Rome was an ideal community. The existence of permission for violent self-help even in Republican and imperial times shows that Rome did not develop anything like the sort of legal framework we are used to, and much depended on magistrates who were developed after the regal period and may have been beyond the reach of many. But law is at least partly about principle, and my argument is that it is inconceivable that a community of tens of thousands of individuals, which was part of complex networks across the region, did not develop legal principles.

  • 11 See for an excellent summary, L. Capogrossi‑Colognesi, Law and Power in the Making of the Roman Com (...)
  • 12 See J. Hund, « Customary Law is What People Say It is », Archiv für Rechts — und Sozialphilosophie  (...)

11Studies often insist on the fact that the early Roman world of law was fundamentally normative and customary11. However, this does not preclude the existence of rules, or the capacity to deduce secondary from primary rules. This is a significant anthropological and legal argument, but in essence scepticism about rules would make all customs contingent and deny that there was a principle of logical deduction. Totally arbitrary systems will be despotic and chaotic, and likely to be short lived ; perfect systems of logical deduction is an unreal aspiration. City-states around the middle of the first millennium before our era must have stood between these unlikely poles12.

  • 13 L. Pospisil, « Legal Levels and Multiplicity of Legal Systems in Human Societies », The Journal of (...)

12Once one acknowledges that law was an inevitable concomitant of social development, the question then becomes how much law existed ? The legal anthropologist Leopold Pospisil was inspired by his fieldwork in New Guinea to propose a thesis about levels of law, which seems to me to make the whole picture even more excitingly complicated : « Every functioning group or subgroup of a society possesses not only a leader but also its own legal system »13.

  • 14 C. Lundgreen, Regelkonflikte in der römischen Republik. Geltung und Gewichtung von Normen in politi (...)

13We can begin to think of law at a clan level, the law of the curiae, religious laws, and so forth. Moreover, what we cannot do is to argue that these are sequential in a sort of evolutionary pattern. The artificial patterns which suggested that social institutions nested neatly one within the other bear no resemblance to Rome’s messy duplications and overlapping jurisdictions. Instead the levels of law are likely to have co-existed and to have been part of the mosaic of regulations and provisions which constructed and constrained Roman life. It is unsurprising therefore that Romans had various ways of managing when rules came into conflict with each other14. As time went by, one way of deciding this was perhaps to differentiate law into different spheres with their own organisational principles. And it is this process which led to the construction of the genealogy of law into which the leges regiae must be placed.

II. The leges regiae and fictitious codes

  • 15 For recent editions see M. Humbert, La Loi des XII tables, Rome, École française de Rome, 2018 ; (...)

14One of the strongest arguments for the existence of law in early Rome is the evidence for the Twelve Tables, passed in the mid-fifth century. This code is clearly placed in a Republican context. Few have doubted that some sort of codification took place ; what kind of Rome is revealed is more problematic15. However, our concern is with the question of whether we can say anything about any law before the Twelve Tables. Our previous section summarised the argument that Rome was too large and complex not to have some sort of law. The appearance of the Twelve Tables suggests codification of existing practice, again implying some sort of pre-existing law.

15One possible narrative is that, in scattered references, we find mention of legislative acts of the traditional kings of Rome. Given the not unreasonable assumption that law has a degree of conservatism, if it were true, it might offer a really helpful and independent tradition which would give us an insight into the ancient city.

16Unfortunately, but predictably, the situation is more complex. The way the leges regiae have been presented is often problematic. The actual evidence is quite weak, and I will suggest that the production of a legal history of the leges regiae partakes of some of the same elements of invention that we find in other parts of the tradition of the kings. However, in keeping with the methodological observations made above, I do want to insist that there is something positive which we can say about early Rome and law, but we have to arrive there by a different route.

  • 16 G. Franciosi, Leges Regiae, Naples, Jovene, 2003. Unfortunately the same criticism applies to a deg (...)

17There are two major modern collections — Gennaro Franciosi’s edition and the collection in the texts gathered by the Carandini team under the title La Leggenda di Roma. G. Franciosi presents Livy and Dionysius of Halicarnassus as entirely historically accurate and as giving evidence for actual legislation. The consequence is that G. Franciosi transposes whole passages of Livy and Dionysius into formal laws. This must be wrong, and the book has received little attention. There is no underlying explanation of what law was ; there is little account taken of the historiographical process. It is clear that both Livy and Dionysius are imagining, no doubt with the aid of other sources, but there is no evidence that they had a substantial body of law which they were narrativizing16.

  • 17 A. Carandini (ed.), La Leggenda di Roma, Milan, Arnaldo Mondadori, 2011, III, p. 99-145.

18The Carandini version is more conservative, but still highly problematic17. Although the edition at least suggests that to be considered a law there has to be some reference to a legal act, rather than the extrapolation of laws from historical narrative, this is not followed consistently and there are basic and fundamental issues which are not being addressed. What did a law look like before the Twelve Tables ? Who passed whatever a law was ? How universally binding were laws before the Twelve Tables ? What were the mechanisms of transmission that preserved laws which one might have expected were superseded by the Twelve Tables ? If they were not superseded, what was the difference in scope ?

19The main problem with the approach here is that the history of Roman law was itself a historiographical construct. Roman lawyers themselves told a story of how law came into being. This was itself an attempt to ground the legal tradition in the deepest history of Rome. A key problem is the work of the jurist Papirius.

  • 18 Good account in R. Laurendi, op.cit. n. 1, p. 169-188.

20According to Pomponius, a prolific author of the second century AD, cited in the 6th century AD Justinianic legal corpus, the Digest (I, 2, 2, 2), the ius Papirianum was a collection of the regal laws by someone called Papirius who lived at the time of Tarquinius Superbus. It is on the basis of this passage that most of the speculation on the laws has been based. Dionysius of Halicarnassus, who has a surprising amount to say about Roman law, dates Papirius after the expulsion of the kings (III, 36, 4) ; it is hard to tell whether this can be made consistent with Pomponius’ account or not. We know from the Digest that a Papirius worked alongside one of the great early compilers of Roman law, Mucius Scaevola (Digest I, 2, 41), who was active in the late second and early first centuries BC. Given that this was the great age of compilation, there is reason to wonder whether in fact we have a double self-aggrandisement, first, Papirius’ own « legendary genealogy », and second the suggestion that juristic compilation went even further back than the Twelve Tables. The Roman desire to find the earliest possible roots for their institutions is clear enough in the way that for instance, a whole set of innovations are attributed to Romulus and Servius Tullius. So the ius Papirianum is a construct whose historical reality needs to be put under some pressure. It seems to me at least challenging that Cicero makes no reference to this, even in the Laws18.

  • 19 D. Mantovani, « Le due serie di leges regiae », in J.‑L. Ferrary (ed.), Leges publicae. Le legge ne (...)

21However, as will be made clear from the evidence we will present, most of the laws refer to sacred law and only some to what one might call civil law, and as a consequence D. Mantovani proposed his influential idea that there were two series of legal provisions, the ius Papirianum or civil law, and sacred law19. For D. Mantovani, the key to the sacred law is its attribution to Numa. The other laws were passed by the curiae. This is by far the most substantial step forward in our understanding of archaic law, but should not be taken to override our observation of the complexity of Roman law, and we need to look very hard at when this story is developed.

22In the next section I would like to look at two different laws, one potentially curiate, and one potentially sacred, to underscore this point.

III. The challenge of the evidence

Romulus and Rome’s children

  • 20 On the constitutional actions of Romulus, see S. Kefallonitis and A. Jayat, this volume.

23Dionysius of Halicarnassus (II, 15, 2) tells us that Romulus obliged the Romans to bring up all their male children, their first born female children, and not to destroy any children under the age of three unless they were maimed or deformed from their birth. Moreover they were obliged to show such children to five of their neighbours for approval.20

  • 21 P. Moreau, « La “Loi royale” de la première-née (Denys d’Halicarnasse, Antiquités romaines II, 15, (...)

24This passage has been much discussed, and most recently to my knowledge by P. Moreau21. P. Moreau argues that, given high female mortality in childbirth, an attempt to secure Rome’s population which permits a difference between the preservation of male and female children makes no sense. It was quite different from the behaviour of the Aborigines, according to Dionysius (I, 16, 4), who saw exposure as a crime. How do we explain a demographically foolish regulation ? P. Moreau points out that this would have encouraged exogamous relations, and not only within but also outside Rome. Exogamy was of course a key necessity for the early Roman state, as demonstrated by the seizure of Sabine women.

  • 22 A. Bresson, The Making of the Ancient Greek Economy : Institutions, Markets, and Growth in the City (...)

25P. Moreau’s helpful argument overlooks however the demographic irrationality we see in some ancient societies. Recently A. Bresson has argued for exposure being unexceptional and predominantly female, and notes a number of instances where we see a substantial gender imbalance in favour of males, and intriguing counter-examples22. Theopompus in his undoubtedly exaggerated account of the strangeness of the Etruscans quoted by Athenaeus (XII, 517e), notes that they raised all their children, and did not know who the fathers were.

  • 23 J. Curran, « Ius uitae necisque : The Politics of Killing Children », AJAH 6 (2018), p. 111-135.

26Although the debate has raged over the plausibility of exposure, between those who see it as a dangerous expedient in fragile economies and those who would even go so far as to argue that female exposure avoided both oversupply of young women, and too many widows needing care, the critical issue is that ancient demographic thinking was not rational, nor stable, but driven by perceptions and by moral and gendered thinking23.

  • 24 D. Hal. 2.26.4; see R. Westbrook, « Vitae Necisque Potestas », HistLit 48 (1999), p. 203-223.
  • 25 On the curiae generally, see C. J. Smith, The Roman Clan : The Gens from Ancient Ideology to Modern (...)
  • 26 This is a very tricky passage, usually assigned to XII Tables IV, 1. It derives from Cicero, On the (...)

27In addition to the debate over the practice of exposure, there has been a long-standing assumption that a Roman father (paterfamilias) had the right of life and death (ius vitae necisque) over his children24. This began with the decision over whether to acknowledge a newborn child, or not, the latter decision leading to the exposure of the infant. Moreover, although one might regard Romulus’ provision on the exercise of this right as having a connection with curiate law, through the reference to the approval of neighbours, it is perhaps surprising that the curiae are not more present, and equally that the assumption is that the curiae were based on location. That certainly may have been true at an early stage, and there are other instances where we see the curiae operating in family matters25. Was there therefore a lex curiata on bringing up children ? It is not mentioned anywhere else, but the provision in the Twelve Tables on a father’s right not to acknowledge a child presumably relates to such a law, and M. Humbert argues that the provision as we have it stands alongside rather than above the supposed curiate legislation. In other words, as M. Humbert sees it, the Twelve Tables here and regularly take the customary and religiously sanctioned laws of the regal period and turn them into legislation26.

  • 27 The idea was developed by J. Poucet, « Préoccupations érudites dans la tradition du règne de Romulu (...)

28So one narrative is that there was a lex curiata in the regal period; that this was placed historically with Romulus due to the operation of romulisation27; that we see the development of parallel or supervening legislation in the Twelve Tables; and all this derives from a general principle of great antiquity, the ius uitae necisque.

  • 28 J. Curran, « Ius uitae necisque : The Politics of Killing Children », AJAH 6 (2018), p. 111-135 ; c (...)

29But another reading, proposed by Curran, would suggest that the general principle was largely fictitious and ideological, possibly the product of the Augustan period and its own concerns over moral rectitude, possibly the ideological and extreme abstraction of the power of the father, unsustainable in any normal circumstances, and mostly constrained28. There clearly was a provision in the Twelve Tables, which related to the exposure of deformed children. But the reconstruction of what preceded is potentially perilous. It is not entirely clear whether a curiate law is a customary law. If it was found in the records or the continuing actions of the curiate assembly, it may have been undated, and its contents could be earlier or later than the provision in the Twelve Tables — as M. Humbert says, the two are not in contradiction as such. One could readily imagine any number of processes which could produce this singularly ideological and gendered provision, including actual custom and practice. What is beyond doubt the least likely solution is that Romulus passed such a law, and in those circumstances, the claim that there was a lex regia on the upbringing of children requires significant nuancing.

Wine, women and farming

30The Berne Scholia on Vergil’s Eclogue (II, 70) informs us that Numa encouraged the cultivation of the vine : Numa, cum ad uini cultum uellet prouocare Romanos, edicto monuerat, dementia facile contrahere eos qui de incultu uinea uinum bibissent : « Numa, when he wanted to encourage the Romans to cultivate wine, warned in an edict that those who drank wine from an uncultivated vine would easily become mad ». This is best explained by a passage in Pliny’s Natural History (XIV, 88) :

Romulum lacte, non uino, libasse indicio sunt sacra ab eo instituta quae hodie custodiunt morem. Numae regis Postumia lex est : Vino rogum ne respargito, quod sanxisse illum propter inopiam rei nemo dubitet. Eadem lege ex inputata uite libari uina dis nefas statuit, ratione excogitata ut putare cogerentur alias aratores et pigri circa pericula arbusti ;

Romulus used milk and not wine for libations: the religious rites established by him, which preserve this custom today, are a proof of this. The Postumian Law of King Numa runs : Thou shalt not sprinkle the funeral pyre with wine — a law to which he gave his sanction on account of the scarcity of the commodity in question, as nobody can doubt. By the same law he made it illegal to offer libations to the gods with wine produced from a vine that had not been pruned, this being a plan devised for the purpose of compelling people who were mainly engaged in agriculture, and were slack about the dangers besetting a plantation, not to neglect pruning.

31Plutarch cites the relevant clause in the Life of Numa (14) ; « do not offer to the gods wine from unpruned vines » becomes a Pythagoraean-style rule that the subjection of the earth is a part of religion.

32And the Postumian law reappears in an allegorized form as a drunken magistra in Catullus 27 (mid first century BC):

Minister uetuli puer Falerni,

inger mi calices amariores,

ut lex Postumiae iubet magistrate

ebrioso acino ebriosioris.

at uos quo lubet hinc abite, lymphae,

uini pernicies, et ad seueros

migrate. Hic merus est Thyonianus

O servant boy of old Falernian wine, pour pungent cups for me, as orders the law of the mistress Postumia, drunker than a drunken grape. But go as far away from here as you please, waters, bane of wine, and to the sober ones migrate ; here Bacchus (the wine) is pure.

  • 29 The tradition on wine in archaic Rome is very rich; see B. Russell, « Wine, Women, and the Polis: G (...)

33The various problems and arguments here are too complex to summarise, but Numa is said to pass legislation which both encourages cultivation and prohibits profligacy. There are also laws against women drinking, to which we will return, and it is clear that the drinking of wine was highly charged symbolically, available to some and not others, and hedged about with moral and customary expectations and rules29.

  • 30 G. Piccaluga, « Numa e il vino », Studi e materiali di storia delle religioni 33 (1962), p. 99-103  (...)

34There is a series of structural oppositions here, which have been explored by G. Piccaluga and O. de Cazenove30 : cultivated vines / uncultivated vines ; labour / indolence ; « natural wines » / unnatural (sweetened) wines ; men and gods / women. The question for us is, to what extent is this a law of Numa, and what was the law ? First of all, we have the problem of who is the Postumius whose law is cited ? Is it some otherwise unknown summariser of Numa’s laws ? And what does the law say ? Pliny’s version is « only use cultivated wine for the gods » ; the scholiast has an edict saying that one will go mad from drinking uncultivated wine.

35Moreover, the fascination with Numa and wine is explicable in part because of the notion of the evolution of Roman religious practice. Wine’s metaphorical and symbolic power has long been evident — ever since Polyphemus, who normally drank milk, whose island produced vines which seem not to have been cultivated, got drunk on Odysseus’ sweet wine. It is precisely this symbolic weight which makes the comprehension of what early Roman law might have looked like so difficult. Was this one of Numa’s sacred laws then becomes an unanswerable question, and we need instead to see if we can identify processes which might have produced the kind of mixture of information which we see here.

IV. Numa the sacred lawgiver

  • 31 The best account of Numa’s laws is to be found in R. Laurendi, op.cit. n. 1, which does wrestle wit (...)

36The basis of Mantovani’s division is the observation that what characterises Numa’s legislation is that it occupies the world of the sacred. None of the « laws » are complete. Almost all come via Festus and Paulus Diaconus, who abridged an encyclopaedic work of Verrius Flaccus on the meaning of obscure words and the references are often truncated and obscure as well as being at second or third hand. In at least some of the instances, if the provisions of the remedy were not fulfilled, the final resort was the declaration that someone was sacer or in the case of murder paricidas, which came to more or less the same thing. Critically of course this is one of the few things we can read on the Lapis Niger, and it fits with Numa’s reputation for religious reform31.

  • 32 R. Fiori, « La Condizione di homo sacer e la struttura sociale di Roma arcaica », in T. Lanfranchi (...)
  • 33 Festus, p. 420 Lindsay, appears to contain completely opposite views held by Aurelius Opilius and A (...)

37However, the nature of what sacer means, when applied to an individual, remains deeply contentious. What does seem clear is that there was no distinction in the early period of a separate sphere of sacred law; rather, as Fiori insists, there is a community between men and gods and if anything the gods too are subject to the interpretation of the law32. What we do know however is that working out what sacer meant became a topic of particular controversy in the late second and early first century a. C.33 If this is right, then D. Mantovani’s distinction between curiate and sacred law might be expressed as two groups of information, which emanated from different bodies. Just as some laws were attributed to Romulus as part of the process of romulisation, and that would be particularly sensible for the laws of the curiae which claimed to be Romulean in origin, so it made sense for other laws, to be attributed to the founder of the pontifical order, Numa.

38Some of these laws interfere interestingly in the sphere where other law might have played a part. Whatever burial regulations a clan may have had, or the community as a whole, are overridden by the instance of someone struck by lightning (Festus, p. 190 Lindsay). One might think that murder could be left to a process of vendetta, but the intervention of the state is perhaps intended to close off further private recourse, to end the process (Festus, p. 247 Lindsay). Burials are brought into the frame as well.

  • 34 Festus, p. 260 Lindsay ; E. Tassi Scandone, « Verberatio parentis e sacer esto. Nuovi elementi di r (...)

39It may be that we can find some sort of distinction between laws which remained familial and those which operated at a more communal level. Festus attributed to Romulus and Titus Tatius a provision which, although it remains very opaque, states that if a child beats a parent and the parent cries out, the child is sacer to the divinities of the parents. Servius Tullius is supposed to have passed a law on the punishment of a nurus or daughter-in-law34. Similarly, looking back to the interventions of Numa in the arena of wine, we saw signs of a kind of structuralist approach, a general tendency towards the idea of wine as something special, necessary, but restricted. But most of the references to legislation against women drinking are attributed to Romulus.

  • 35 See recently H. Beck, « The Discovery of Numa’s Writings : Roman Sacral Law and the Early Historian (...)

40If there is enough evidence here to envisage a process which constructed a sequence of laws which were attributed to Numa, this tradition needs to be read alongside the tangled business of Numa’s books discovered in 181 B.C. At least in some of the various traditions, the books included pontifical law. Although most traditions (Valerius Maximus is an outlier) suggest that the books were destroyed, one might imagine that there should be some consistency between the imagined contents of the books, and the sorts of laws attributed to Numa35.

  • 36 M. Humbert, « La Codificazione decemvirale : tentativo d’intepretazione », in M. Humbert (ed.) Le D (...)

41In his chapter in the excellent collection he edited on the Twelve Tables, Michel Humbert claims that Rome did not have a tradition of foreign lawgivers like Charondas and Zaleucus36. Here I think he is wrong, at least partly because the Greek traditions cannot be simply taken at face value. They are also the product of an evolving source tradition. In the Roman context, Numa is a Sabine king, he is brought into Rome and his contribution is to be a lawgiver. His Pythagoreanism, evidently disputable, but also clearly credible at some level, was entirely to the point. The laws of Numa are fundamentally about definitions of behaviour which is inappropriate to the citizen body. He looks therefore very much like a Greek nomothetes. When was this narrative put in place ?

  • 37 H. Funaioli, Grammaticae Romanae Fragmenta, Leipzig, Teubner, 1907, p. 14-15.
  • 38 Cf. FRHist. 1. 141-59.

42One of the first Roman prose texts was the Tripertita, a commentary on the Twelve Tables, more or less contemporary with Fabius Pictor in the later third century BC37. What would be really rather fascinating would be a process whereby whatever rather messy bundle of laws could be found around and alongside the Twelve Tables was differentiated just at the time that Fabius was constructing a historical account of early Rome (and more or less when Naevius and Ennius were doing the same in poetry). This would offer the possibility that legal writing was part of the way in which the religious personality of Numa was increasingly defined, and this process may have continued. Just as the Annales Maximi had a regal preface inserted no earlier than the late Republic, which told its own story of the kings38, so perhaps we should be looking for not just D. Mantovani’s dual series, but even more strands of tradition which included :

  1. The sorts of levels of law which we have suggested were necessary for a complex society ;

  2. Some scrappy evidence which could at least be passed off as regal ;

  3. An ongoing historicization of that evidence by those involved with Roman law, predominantly the pontifices, running in parallel with the development of the historical tradition ;

  4. And occlusion of phases of that historiography, as Roman lawyers reflected wider societal nervousness about the tension between external borrowing and internal development.

43One consequence of this argument is that it makes no sense to try to produce a « corpus » of the leges regiae because this attributes a degree of certainty to a body of evidence which was never all that stable ; at best, one might hope to reflect one sort of collection, and it may not be irrelevant that some of these collections seem to have been relatively unsuccessful. Another consequence however is to argue that archaic law was probably more diverse and more interesting than it became as its richness was diluted by a flattening historiographical tendency. A third is that, if my arguments hold together, we need to reintroduce historiography into legal history as an important constitutive but also highly falsifying component. And finally, and especially importantly in the context of this series, I think the Romans had at a certain point in their history a much stronger conception of the king as nomothetes (or some kings), and this never quite fades away.

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Notes

1 The best recent account is R. Laurendi, Leges regiae e ius Papirianum. Tradizione e storicità di un « corpus » normativo, Rome, Bretschneider, 2013. The proceedings of an important conference in Edinburgh on the laws of the kings is forthcoming, P. J. du Plessis & S. W. Bell (eds) Roman Law before the Twelve Tables : An Interdisciplinary Approach, Edinburgh, Edinburgh University Press, 2020. Some part of this essay builds on my contribution to that volume. I am grateful to Catherine Psilakis for the invitation to participate and her helpful comments, and to the Leverhulme Trust for a Major Research Fellowship 2017-20, of which this research is a part.

2 Supra n. 1.

3 T. du Bry, « Slab City : Squatters’ Paradise? », in A. G. Wood (ed.), On the Border : Society and Culture Between the United States and Mexico, Lanham, Rowman & Littlefield, 2004, p. 241-56 ; C. Hailey & D. Wylie, Slab City : Dispatches from the Last Free Place, Massachussets, MIT Press, 2018.

4 R. Verdier, « Le Mythe de genèse du droit dans la Rome légendaire », RHR 187 (1975), p. 3-25.

5 For elaborate speculation, see A. Carandini (ed.) La Leggenda di Roma, Milan, Arnaldo Mondadori, 2006, I, p. 340-346.

6 See E. Dench, Romulus’ Asylum : Roman Identities from the Age of Alexander to the Age of Hadrian, Oxford, Oxford University Press, 2005.

7 Cf. J. Poucet, Les rois de Rome: Tradition et Histoire, Brussels, Académie Royale de Belgique, 2000.

8 A balanced but dated account in A. Grandazzi, The Foundation of Rome : Myth and History, Ithaca, Cornell University Press, 1997 ; see now J. M. Hall, Artifact and Artifice : Classical Archaeology and the Ancient Historian, Chicago, Chicago University Press, 2014, p. 119-166.

9 C. Smith, « The Laws of the Kings — A View from a Distance », in P. J. du Plessis & S. W. Bell (eds), Roman Law before the Twelve Tables : An Interdisciplinary Approach, Edinburgh, Edinburgh University Press, 2020.

10 See now N. Terrenato, The Early Roman Expansion into Italy : Elite Negotiation and Family Agendas, Cambridge, Cambridge University Press, 2019, p. 31-72 ; J. Rüpke, Domi militia : Die religiöse Konstruktion des Krieges in Rom, Stuttgart, Steiner, 1990.

11 See for an excellent summary, L. Capogrossi‑Colognesi, Law and Power in the Making of the Roman Commonwealth, Cambridge, Cambridge University Press, 2014, p. 126-47 ; cf. C. Humfress, « Law and Custom under Rome » in A. Rio, (ed.), Law, Custom, and Justice in Late Antiquity and the Early Middle Ages, London, Hellenic Studies Institute, 2011, p. 23-47.

12 See J. Hund, « Customary Law is What People Say It is », Archiv für Rechts — und Sozialphilosophie / Archives for Philosophy of Law and Social Philosophy 84 (1998), p. 420-433, using H. L. A. Hart’s legal philosophy to characterise « regular, habitual or convergent behaviour ». For an introduction to legal anthropology and its more contingent or situated approach, see M. Goodale, Anthropology and Law : A Critical Introduction, New York, New York University Press, 2017.

13 L. Pospisil, « Legal Levels and Multiplicity of Legal Systems in Human Societies », The Journal of Conflict Resolution 11 (1967), p. 2–26.

14 C. Lundgreen, Regelkonflikte in der römischen Republik. Geltung und Gewichtung von Normen in politischen Entscheidungsprozessen, Stuttgart, Steiner, 2011, offers a highly relevant account.

15 For recent editions see M. Humbert, La Loi des XII tables, Rome, École française de Rome, 2018 ; M. F. Cursi, XII tabulae : testo e commento, Naples, Edizioni scientifiche italiane, 2018.

16 G. Franciosi, Leges Regiae, Naples, Jovene, 2003. Unfortunately the same criticism applies to a degree to the more recent account, G. di Trolio, Le Leges regiae in Dionigi di Alicarnasso, I, La monarchia latino-sabina, Naples, Jovene, 2017.

17 A. Carandini (ed.), La Leggenda di Roma, Milan, Arnaldo Mondadori, 2011, III, p. 99-145.

18 Good account in R. Laurendi, op.cit. n. 1, p. 169-188.

19 D. Mantovani, « Le due serie di leges regiae », in J.‑L. Ferrary (ed.), Leges publicae. Le legge nell’esperienze giuridica romana, Pavia, IUSS Press, 2010, p. 283-292.

20 On the constitutional actions of Romulus, see S. Kefallonitis and A. Jayat, this volume.

21 P. Moreau, « La “Loi royale” de la première-née (Denys d’Halicarnasse, Antiquités romaines II, 15, 2) : une règle démographique archaïque ? », Mondes anciens 10 (2018), http://journals.openedition.org/mondesanciens/1988.

22 A. Bresson, The Making of the Ancient Greek Economy : Institutions, Markets, and Growth in the City-States, Princeton, Princeton University Press, 2016, p. 51-54, with references to the extensive debates ; see also now B. Akrigg, Population and Economy in Classical Athens, Cambridge, Cambridge University Press, p. 36‑37 ; J.‑B. Bonnard, « L’Exposition des nouveau-nés handicapés dans le monde grec, entre réalités et mythes : un point sur la question », Pallas 106 (2018), p. 229-240.

23 J. Curran, « Ius uitae necisque : The Politics of Killing Children », AJAH 6 (2018), p. 111-135.

24 D. Hal. 2.26.4; see R. Westbrook, « Vitae Necisque Potestas », HistLit 48 (1999), p. 203-223.

25 On the curiae generally, see C. J. Smith, The Roman Clan : The Gens from Ancient Ideology to Modern Anthropology, Cambridge, Cambridge University Press, 2016, p. 184-234.

26 This is a very tricky passage, usually assigned to XII Tables IV, 1. It derives from Cicero, On the Laws III, 19, which is possibly corrupt, and is only an oblique reference. See M. H. Crawford (ed.), Roman Statutes, London, Institute of Classical Studies, 1996, p. 630 ; M. Humbert, op.cit n. 13, p. 143-148.

27 The idea was developed by J. Poucet, « Préoccupations érudites dans la tradition du règne de Romulus », AC 50 (1981), p. 664-676. See also M. Ver Eecke, La République et le roi : le mythe de Romulus à la fin de la République romaine. De l'archéologie à l'histoire, Paris, de Boccard, 2008.

28 J. Curran, « Ius uitae necisque : The Politics of Killing Children », AJAH 6 (2018), p. 111-135 ; cf. R. Saller, Patriarchy, Property and Death in the Roman Family, Cambridge, Cambridge University Press, 1994.

29 The tradition on wine in archaic Rome is very rich; see B. Russell, « Wine, Women, and the Polis: Gender and the Formation of the City-State in Archaic Rome », G&R 50 (2003), p. 77-84 ; P. Villard, « Ivresses dans l'Antiquité classique », Annales : Histoire, économie et société 7 (1988), p. 443-459.

30 G. Piccaluga, « Numa e il vino », Studi e materiali di storia delle religioni 33 (1962), p. 99-103 ; O. de Cazenove, « Exesto. L’incapacité sacrificielle des femmes à Rome. À propos de Plutarque Quaest. Rom. 85 », Phoenix 41 (1987), p. 159-173 ; A. Carandini op.cit n. 14, p. 327.

31 The best account of Numa’s laws is to be found in R. Laurendi, op.cit. n. 1, which does wrestle with the historiographical problems.

32 R. Fiori, « La Condizione di homo sacer e la struttura sociale di Roma arcaica », in T. Lanfranchi (ed.), Autour de la notion de sacer, Rome, École française de Rome, 2017, http://books.openedition.org/efr/3392.

33 Festus, p. 420 Lindsay, appears to contain completely opposite views held by Aurelius Opilius and Aelius Gallus. See E. Tassi Scandone, « Sacer e sanctus : quali rapporti ? » in T. Lanfranchi, op. cit. n. 25, http://books.openedition.org/efr/3387.

34 Festus, p. 260 Lindsay ; E. Tassi Scandone, « Verberatio parentis e sacer esto. Nuovi elementi di riflessione », BIDR 8 (2018), p. 227-244.

35 See recently H. Beck, « The Discovery of Numa’s Writings : Roman Sacral Law and the Early Historian », in K. Sandberg & C. Smith (eds), Omnium Annalium Monumenta : Historical Writing and Historical Evidence in Republican Rome, Leiden, Brill, 2017, p. 90-112.

36 M. Humbert, « La Codificazione decemvirale : tentativo d’intepretazione », in M. Humbert (ed.) Le Dodici Tavole : dai decemviri agli umanisti, Pavia, IUSS Press, 2005, p. 3-50, at p. 6.

37 H. Funaioli, Grammaticae Romanae Fragmenta, Leipzig, Teubner, 1907, p. 14-15.

38 Cf. FRHist. 1. 141-59.

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Christopher Smith, « Leges Regiae and the Nomothetic World of Early Rome », Cahiers des études anciennes, LVII | -1, 91-103.

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Christopher Smith, « Leges Regiae and the Nomothetic World of Early Rome », Cahiers des études anciennes [En ligne], LVII | 2020, mis en ligne le 01 mai 2020, consulté le 10 août 2020. URL : http://journals.openedition.org/etudesanciennes/1414

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Christopher Smith

University of St Andrews, St Andrews

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