by Peter Watson
There were many innovations in the arts during the Han dynasty. Prominent among them were the fu, flamboyant and hyperbolic rhythmic poems of court life–the hunts, the parks, the parties–and an Office of Music (Yue fu), which collected popular songs, dances and musical instruments. This office was partly responsible for the ku-shih, a new poetic form with verses of five or seven characters. These would evolve into the regular poetry (lu shi) of the Tang age in the seventh century.130
In AD 190, following a period of revolt by peasants and army leaders against the central authority, the imperial library and the Han archives were destroyed in a fire caused by the fighting. The disruption and anarchy continued for a quarter of a century; urban societies disintegrated and the fine civilisation of the Han age trickled away into the Chinese Middle Ages.
9
Law, Latin, Literacy and the Liberal Arts
To Chapter 9 Notes and References
When Aristotle died, in 322 BC, he left a considerable personal library. To aid his studies, he had amassed so many titles that, to quote Strabo, the geographer, ‘He was the first to have put together a collection of books and to have taught the kings in Egypt how to arrange a library.’1 Later, through ‘the vagaries of inheritance’, the library had come into the hands of a family living in Pergamum, ‘who had kept it stored underground to save it from being confiscated by the king’.2 They sold the books to Apellicon, a bibliophile who took them to Athens. Then, in 86 BC, the Roman dictator Sulla invaded Attica, sacked Athens and, when Apellicon died a short time later, seized his books and shipped them back to Rome. Sulla knew what he was doing: the library included titles by Aristotle and Theophrastus, his successor, that could be found nowhere else. The books were in terrible condition–worm-eaten and sodden from damp–but they could be read and were copied, and saved.3
The Roman reverence for the Greek way of life, of its thought and its artistic achievements, was one of the dominant ideas throughout the long era of its empire. When we speak now of ‘the classics’, we mean–as often as not–Greek and Roman literature. But it was the Romans who invented the very notion of the classics, the idea that the best that had been thought and written in the past was worth preserving and profiting from. In saying that, however, the real difference between Rome and Greece in the realm of ideas is obscured. Whereas the Greeks took an almost playful interest in ideas for their own sake, and explored the relationship between man and the gods, the Romans were much more interested in the relationships between man and man and in utilitas, the usefulness of ideas, the power that they could bring to affairs. As Matthew Arnold put it, ‘The power of the Latin classic is in character, that of the Greek is in beauty.’4 There are many Roman authors whom we now revere as classics in themselves: Apuleius in the novel; Catullus, Virgil, Horace, Ovid, Martial, Juvenal in poetry; Terence, Seneca and Plautus in the drama; Cicero, Sallust, Pliny and Tacitus in history. Each of these offered something over and above their Greek counterpart. But, enjoyable and instructive as these authors are, they do not comprise the major intellectual innovations of the Roman world. So far as our everyday lives are concerned, the two most important Roman ideas were republicanism, or representative democracy, and law. Direct democracy, as we have seen, was a Greek invention but–one has to admit–it has scarcely any modern imitators. Representative democracy, however, was incorporated into the constitutions of the various republics which began to appear from the eighteenth century onwards, and now extends from Argentina to Russia to the United States of America. In ancient Rome, as is broadly true in America today, policy was agreed by the Senate, and implemented by magistrates with imperium, a particularly Roman notion.5 The ancient kings, and then the aristocracy, and then the magistrates, were all invested with imperium, ‘a key concept, which designated the acknowledged right to give orders to those of lower status and expect them to be obeyed…This power was at all times ill-defined, wide-ranging and arbitrary. From the start a vital way in which this imperium could be expressed was in imposing by war the holder’s authority and that of Rome on neighbouring communities who were thought to have challenged it.’ Conquest was an integral part of Roman ideas about themselves.6
The Roman system had come into being in 510/509 BC, when the king had been expelled, to be replaced by elected officers. The key features of the consulship or magistracy, which replaced kings, were these: tenure was limited to one year; there were two magistrates with equal imperium–‘never again would a single individual be invested with supreme power’; there was accountability–the magistrate could be called to account for his actions at the end of the year.7 Continual conquest, with recurring crises, meant that this system was modified on occasions, as revealed by Tacitus and Suetonius. In crisis a single dictator was appointed, reminiscent of the tyrant in the Greek world, and at other times, when there were simultaneous military actions in several places, more than one magistrate was allowed, some with military functions, others with civil administrative duties. In this way the administrative machinery of the republic took on its familiar form, of a body of magistrates, advised by a Senate (group of senes, or old men).8
Originally, the kings of Rome had been given imperium by the gods when the city itself was founded. Thus the kings had been granted the responsibility of getting things done on behalf of the people. As a result imperium was a quality that ‘belonged’ to the person who exercised the power and it was, therefore, accepted that he could use it at his own discretion. At the same time, imperium also stood for the power of Rome itself, or at least of her people. Imperium was the muscle by which the res publica got things done.9 It was less an abstract notion of power, more a propensity to issue orders (from the Latin word imperare, ‘to order’). Long after the kings had been disposed of, magistrates still consulted the gods (auspicium) about future courses of action. On his first day in office, a magistrate would rise early and pray to the gods, to ascertain whether he had divine approval for the exercise of his imperium. Despite the fact that there are no known cases of the gods refusing such approval, the ritual was always deemed necessary.10
As time passed, magistrates became divided into those with imperium and those without. Dictators and consuls had imperium and so did praetors, a new class of magistracy, created in 366 BC to relieve consuls of the task of hearing legal cases. Magistrates without imperium comprised the quaestors, in effect investigators in legal and financial matters, the tribunes of the plebeians, whose job it was to administer the plebeian council, and the aediles, who had responsibility for the fabric of the city, the upkeep of roads, walls, aqueducts etc. Finally, there were the censors, ‘whose function had more to do with what we mean by census than what we mean by censor’. Among their duties was identifying those who had contravened the morality of the state (and who therefore could not hold public office). Like all other magistrates they were entitled to wear a special toga and also held the auspicia, an elevated status which entitled them to consult the gods.11
The Roman form of representative democracy was quite complex. It had to be because, by the time of Augustus, the first emperor (63 BC–AD 14), there were one million inhabitants in Rome alone and the empire stretched almost 5,000 kilometres from west to east (the Atlantic to the Caspian Sea) and nearly 3,000 kilometres from north to south (England to the Sahara). Not even a man like Augustus, who had a passion for efficiency, could administer such an empire all by himself.
In practice there were four political bodies apart from the magistrates. The comitia centuriata began life as an assembly to represent the interests of the army but over time it comprised the whole population and was made up of 193 centuriae, with people being allocated to centuriae by the censors according to the amount of property they had. There were five classes: the top classis had seventy centuriae and at the bottom there was one centuria not even registered as a classis which represented those who had no property to register. Such unfortunates were known as the proletarii on account of the fact that they were outside the active (use
ful) agricultural system and could only produce children (proles).12 In the case of the comitia tributa and the concilium plebis the voting unit was the tribe. In the beginning there had been just four tribes, all in Rome itself, but in time that number grew to thirty-five until, in 241 BC, it was stabilised. In these bodies, the wealthy did not enjoy the same in-built advantage that they had in the comitia centuriata. The essential point here was constitutional balance: the comitia centuriata was dominated by the landed aristocracy, the concilium plebis was an assembly of the plebs alone, and the comitia tributa was an assembly of the whole people. The assemblies were powerful, up to a point, but in practice still depended on the magistrates, who had control over business discussed and election timetables.13
The other important body was the Senate. Originally, the consuls chose a new Senate every year. Once the censors had acquired this responsibility (in the fourth century BC), however, senators were appointed for life, and this simple but all-important fact made the Senate the most continuous element in the structure of the state. Added to this, its members were all ex-magistrates–experienced, well-connected, no longer ambitious for office. This constitution gave the Senate immense prestige.14 Strictly speaking, the Senate’s role was solely advisory: 500 senators were present in Rome at any one time, the rest on duty in the provinces. The Senate could be convened only by the senior magistrate, and such meetings would begin with the consul presenting to the assembled company the matter on which he required advice. The senators would then respond, in a specified order. First came the consuls-designate for the following year, if the election had been made, second those who had already been consuls, and so on. As time ran out (the senate could not meet after dark) more junior senators expressed their opinion by crossing the floor of the assembly and sitting near those speakers with whom they agreed. They were called pediarii, ‘foot soldiers’, because they voted with their feet. At the end of the session, the consul took the mood of the meeting and if there were no dissent he would issue a senatus consultum, a decree of official ‘considered opinion’.15 If there were any doubt, there would be a vote. Although in theory the Senate’s decision was merely ‘advice’, in practice it was difficult for the consul to ignore a senatus consultum. Consuls held office for a year only and afterwards normally joined the Senate. Few consuls risked crossing colleagues with whom they would have to spend the rest of their working lives. The Senate also saw new legislation before the other assemblies, which meant above all that it had control over the strength of the army, which in effect governed foreign policy.16 And since ‘empire’ was central to Rome’s idea of itself, this too added immeasurably to the prestige of the Senate.
A case can be made for saying that Roman law is the most influential aspect of Roman thought.17 The Greeks never developed a written body of law or a theory of jurisprudence and so what the Romans created is their own achievement. Roman law is the basis for much of the law used in the West today and is still part of some university law courses. According to historians of the French Annales school, the fact that so many countries in Europe shared a common legal heritage is partly responsible for the rise of Europe from the twelfth century onwards.
Roman law was first formalised in the Twelve Tables, introduced in 451–450 BC. Like the Ten Commandments, the Twelve Tables set out basic legal procedures and punishments, and this became an important part of education: in Cicero’s youth schoolboys still learned the tables by heart. By the late Republic, criminal courts as we would recognise them had been established, in which iudices were appointed to hear cases in a set formula. This formula allowed for two new professions. First, there were those who spoke on behalf of clients–advocates. In Rome, this was an activity that any ‘gentleman’ might perform: his rhetorical education was supposed to prepare him for just such an undertaking. Advocates were supposed to work for the good of the community (pro bono) and both Cicero and Pliny were advocates in this manner. At the same time a profession of legal specialists emerged–the first lawyers. This had hitherto been the prerogative of the College of Priests, the pontifices, but, as Rome expanded and life became more complex (and because many disputes had nothing to do with religion), specialism became necessary. These jurists, as they were called, wrote legal opinions (including rebuttals) to add to and counter Senate decisions or imperial edicts. To begin with, leading jurists would take one or two ‘pupils’: later these developed into the first law schools.18
There is one work of Roman law which survives almost intact: this is the Institutes, by the jurist Gaius. Written around AD 150, it served for a long while as a textbook of Roman law.19 Besides specific laws (leges), it records senatorial decrees, the decisions of emperors, and the consensus of legal specialists, showing how the body of law grew. This body of law applied to all Roman citizens in the empire.
At the root of Roman law was the distinction between different statuses. This is quite different from modern law where wealth, sex or nationality are treated as irrelevant by the courts. Roman law distinguished slave from free and allowed for different degrees of freedom: those subject to someone else (master, father or husband) and those legally independent but still subject to wardship (children and women). This made for complications: an outrage (iniuria) committed against a married woman meant that there might be three victims–the woman herself, her father if he were still alive, and her husband. The higher their status the greater the crime.20
The most visible aspect of status and dignitas was shown by the legal power of the father, patria potestas. The Roman father had absolute power–the power of life and death–over his entire family: this is what paterfamilias meant. It was an absolute power over his legitimate children, including adult children, over his slaves and his wife if married in a form which transferred paternal control (manus) to the husband (see below). As has been often observed, the familia could be seen as ‘a state within a state’. A father’s authority was absolute and jealously guarded. In exceptional crimes sons and wives were transferred from the custody of the state to paternal authority.21
In Rome, so long as one’s father were alive, no one could act as fully independent, in particular in financial matters and in contract law. An adult son could own property only by means of a peculium, a sort of trust guaranteed by his father, but revocable at any point. While his father was alive a son could not make a will or inherit property in his own right. That son might be a magistrate, even consul, but if his father were alive he was still under his patria potestas. At the same time, the demographics of Rome mitigated this picture. Nearly one-third of children lost their fathers by the time they were ten and, by twenty-five, when people normally got married, more than two-thirds were independent. By forty-one (the minimum age for a consulship) just 6 per cent had fathers who were still alive. A father could ‘emancipate’ his son, which originally meant releasing him from manus, but this does not seem to have been common.
No less important or complex was the legal relationship between husband and wife. Romans made much of the fact that husbands should keep their wives under strictest control, but in practice this depended on which form of marriage the couple had concluded. There were three forms of union. Two made use of ancient ceremonials. In one, the couple offered a cake made of emmer wheat in a joint sacrifice held in front of ten witnesses. In the other ceremony, a father ‘sold’ his daughter to her husband before five witnesses. In both cases, this had the effect of transferring a woman from the control of her father to that of her husband. Her property became his and she fell under his manus.22
Quite what women got out of these arrangements is hard to say, so it is important to add that there was an alternative. There was a third way by which a marriage could come into being and this was, as the Romans, in their inimitable style, called it, ‘by usage’. If a man and wife lived together for a year, it was enough: she passed into her husband’s control.23 By the same token, if the couple spent three nights apart in any one year, this ‘usage’ lapsed. In practice, then, peo
ple could get married and divorced without much fuss, or their partner’s consent. These customs had an effect on Romans’ ideas about love, and about joint marital property, an idea that, essentially, didn’t exist. If the couple had been married before witnesses, then the husband owned everything. If the marriage resulted from usage then a wife’s property remained hers and, in the case of divorce, left with her.24 It is therefore perhaps not surprising that divorce and remarriage were common in Rome.
The importance of law to the well-being of the Roman state was shown by the fact that decisions could be invalidated if the proper procedures were not followed. Not even an emperor’s decisions could ignore the status of litigants involved in legal battle. In this way, as Pliny remarked, the law was now superior to the emperor rather than the other way round. This was a crucial advance in the development of civil society.