Serena
CONNOLLY Speculum
Iuris, Speculum Historiae:
The Value of Rescripts as Historical Documents
Increasingly
classicists are appreciating the value of law as a source of
evidence for ancient history. My
paper will focus on the historical value of rescripts, the answers
to petitions sent to the emperor asking for legal judgment or
advice. Although in modern
scholarship rescripts have usually appeared only as references to
legal principles in the footnotes to general discussions (e.g.
Gardner 1998), a careful analysis of rescripts can provide
insights into far more than legal principles; they have much to
tell us about peopleís use of legal processes, the
socio-historical context of the law, and the transmission of legal
texts through successive historical periods.
I shall offer a close reading of one rescript to show how
fruitful these documents can be.
Little attention has been paid to the contents of rescripts.
Scholars have discussed why collections of rescripts were made
(Turpin 1987), how the texts were interpolated (Wieacker
1960), which social groups sent petitions (Huchthausen
passim), and who composed rescripts (Honore
1994, Millar 1986). Historical
analyses of rescripts have been brief and specialised; Evans
Grubbs (2002) has analysed a number of rescripts in detail, but
only those received by women.
Yet the rescripts offer much information.
Each contains the names of the current emperor and the
petitioner, the reply to the petition, the date of publication and
the names of the current consuls. Analysis
of these elements allows the following to be explored: the reason
for the placement of the text in the collection, the situation
behind the inquiry in the initial petition, legislation relevant
to the respondent's judgment, social characterisation of the
petitioner, the process of writing, sending and answering the
petition, the historical setting of the document, and the
transmission of the text.
I discuss one exemplary rescript (CJ 1.18.2 and CG Visi
3.8.1), a negative illustration of the ruling that minors were
allowed ignorance of law. Juvenal,
on the advice of a third party, had petitioned to claim as a
legatee to his mother's estate, even though he had formerly
renounced the role of heir. His
excuse for the change of heart, that he had been ignorant of the
rules regarding inheritance, was denied because he had already
reached maturity. Juvenalís
story is a real-life example of rules concerning not only
ignorance, but also claiming and disclaiming inheritances.
The third party
is, I believe, a tabellio, a
notary. I argue that
notaries, authors of most private legal documents, including
petitions, played a more important role than they have previously
been given credit for. From
the names of the emperor and consuls, we can date the rescript to
AD 243; I argue that, in providing evidence for people
participating in relatively stable institutions, such as law,
rescripts contribute to a more nuanced picture of a period
otherwise characterised by crisis and change.
Finally, I argue the text itself is of interest: the rescript
is passed down to us in the CJ and the CG Visi,
but with substantially differing texts; the divergences in the
texts reflect the differing concerns of the respective
collections' compilers.