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Roman Law and Economics. Volume I : Institutions and Organizations. – G. Dari-Mattiacci, D. P. Kehoe eds. – Oxford : University Press, 2020. – XXI+345 p. : bibliogr., index. – (Oxford Studies in Roman Society and Law). – ISBN : 978.0.19.878720.4.

Roman Law and Economics. Volume II : Exchange, Ownership, and Disputes. – G. Dari-Mattiacci, D. P. Kehoe eds. – Oxford : University Press, 2020. – 464 p. : bibliogr., index. – (Oxford Studies in Roman Society and Law). – ISBN : 978.0.19.878721.1.

The two volumes under review are de facto an in-depth application of New Institutional Economics (NIE), seemingly the new standard approach to studying ancient economies,[1] to the field of Roman law and particularly its interdependencies with the Roman economy of Republican and, mainly, imperial times. The twenty-four papers, organized in seven sections, cover the main themes: ancient Roman law and its economic scope relate to, namely, (state) institutions, markets and trade, business organizations, slavery, credit, property, and dispute resolution as well as remedies. They mainly follow the basic assumptions of NIE and thus analyze the institutions, norms, organizations, property rights, actors (principals & agents), transactions costs, and information asymmetries involved in any economy-related transaction, aiming to discover how efficient, effective, and suitable the Roman “system” has been for economic development. Hence, the overall question is to explain specific economic forms and to understand the relation of legal institutions and economic actualities in the Roman world. With this “etic” view that approaches the Roman world with external analysis of the source material extant but rarely focuses on the “emic” view asking to what extent the ancient sources themselves form a specific framework and “respond” to ongoing narratives, discourses, and practices in the then contemporary Roman society, many articles incline to deductive rather than inductive methodology: they sometimes use comparanda from (mainly) the (modern) Anglo-American world which might be unfamiliar to continental European readers, but are anyway useful, at least to reveal the respective researchers’ framework – a very necessary step in historical research that has to weigh the perspective of sources against their historical background and must be aware that we ourselves are researching the past from our own frames we are living and thinking in.

After a short introduction by Geoffrey Parsons Miller who points to the great monumentum of Roman law that should be approached by a careful analysis with a model which considers also political, social, and cultural factors, that is, NIE, and briefly summarizes the chapters of the first volume (I:1-9), as he does for the second (II:1-7), the first section studies Roman (state) institutions and the question to what degree NIE can help us understand their formation. In the first chapter, Robert K. Fleck, F. Andrew Hanssen, and Dennis P. Kehoe approach the Roman political and legal institution from the perspective of “endogenous institutions” literature (I:13‑46). Since agriculture was, and remained, the most important factor in Roman economy they specifically analyze how political and legal institutions dealt with property rights, a key‑factor in the NIE according to Noble Prize winner Douglass North. For both, the Republic and the Empire. they show how the respective institutions responded to the social structures and created incentives for its members to be productive. In the Republic the privatization of public land became mainly an issue of the competition among the ruling elite (the aristocracy), and there was likely a further accumulation of private land in their hands sold by small landowners who sought short-term gain. The Roman Empire, however, saw a dynamic balancing between the emperor as main institution and legislator, but also as economic player with his large imperial estates, the “traditional” elite that invested still heavily in land, the provincial landowners that had to be kept loyal to the imperial system and run it on a local level (municipal elites), and the small landowners and tenants who arguably formed the backbone of the thriving of the economy, and the fiscal income, and thus had to take part in the redistribution. Putting constraints on the property rights by the imperial government was, hence, a means to ensure the stability of the complex system. Eric A. Posner complements their considerations with his idea to look at the change from the Republican to the imperial constitution from the viewpoint of agency costs (I:47-83), especially regarding the failure of the Republic to uphold the complex checks-and-balancing system with the Senate in its center, what eventually fostered the rule of one single man keeping up stability. While this is certainly an important factor which has been nuanced in recent research, e.g., by looking at the rather small integration capacity of a majority of people under the roof of a republican res publica from the side of the elite, the attribution of terms such as “direct democracy” to the voting possibilities of the Roman people (I:74f.) or assumptions like “most Romans were illiterate” (ibid.) should be treated with care since historical research has debated such topics for many years and with non-unanimous results.

Luuk de Ligt is pointing to a very important issue, namely whether the formal rules that were modified from the Republic to the Empire by magistrates, mainly through honorary law (ius honorarium), responded to economic needs and developments or should be merely seen as being optimizations within a legal framework (I:85-108). As he argues for the latter he does, however, not rule out that, for instance, the many different possibilities to lend out money, supported the thrive of the Roman economy. This chapter is, at least for the reviewer, a great example of how important it is to understand the frames around a specific source (here: the legal framework) first before asking what this source can tell us about other frameworks (or not) of the whole system.

The second section, “Markets and Trade”, comprises three chapters with different focuses. Elio Lo Cascio, one of the foremost researchers of the Roman economy, argues vividly for a free market and mainly regulating role of the Roman state, ensuring a just price standard, during the imperial period (I:111-136). He refutes models of state dirigisme, also for the late antique period to which such model is usually applied, and provides numerous examples of the importance of free price building on markets. Equally optimistic is the paper of Peter Temin who underpins his idea of interconnected and -dependent markets and empire-wide price building processes with a statistical analysis (I:137-162). Both are very stimulating interpretations of the Roman economy while the objections their views have provoked among scholars, for instance: the relation between free market and attested state interventionism as well as impact on the economy by imperial organizations such the imperial estates; the actual degree of empire-wide interconnected markets in comparison with local and regional market circulations; the formally empire-wide access to markets and the actual individual economic areas people with their networks acted in must be taken into consideration to see the chances and limits of their perspectives. Finally, Ron Harris’ article on the organization of the Roman India trade via Egypt is starting from the famous Muziris Papyrus and shows how different legal categories were employed and combined in the contract to address different transaction issues, and thus attest of the complexity of organizations around long‑distance business transactions that did not only follow one legal formula (I:163-196).

The four papers of section III, “Organizing Business”, address different possibilities of forming private economic organizations within Roman law that did not allow direct agency in a modern way. Hence, forming a societas, or the societas publicanorum for special public contracts, or using slaves and their peculium or family members under the potestas of the pater familias, or relying on the social network and reciprocal mandata were possibilities to organize business entities, which were framed by rather sophisticated legal rules. From the viewpoint of asset partitioning and entity shielding, which Henry Hansmann, Reinier Kraakman, and Richard Squire take as a starting point (I:199-232), the Roman familia remained the commercial entity ne-plus-ultra while rudiments to develop entities in the sense of modern firms, the societates publicanorum, gradually disappeared during the imperial period. These authors and also Andreas Martin Fleckner in the following chapter (I:233-272) rightly ask the question what led to the weak legal design especially of such societates in general, and their alleged answers: Romans’ reliance on traditional and stable organizations such as the familia (in the broader sense, i.e., including slaves), the emperor’s distrust in strong and potentially uncontrollable organizations, and the general aristocratic despise of being visible (not: being actually involved) in commercial activities are the traditional answers to be expected. However, their and the two other papers’ view, viz., that slave-run businesses (Barbara Abatino and Giuseppe Dari-Mattiacci; I:273-306) and reciprocal mandata (Dennis P. Kehoe; I:307‑337) remained limited to a small circle should be seen within the aforementioned context of each economic actor’s individual economic area: in a society that built personal bonds by recommendations from one’s own network, mutual trust, long-term experience, and personal agency it seems not surprising to see these organizational entities as starting point of any business activity that, however, could sometimes reach very far in terms of distance and scale.[2]

The second volume which focuses on “Exchange, Ownership, and Disputes” starts with two articles on slavery/manumission. Aldo Schiavone emphasizes that slaves were always regarded as “thinking tools” by law which responded to economic activities of slaves with sophisticated rules to optimize the system but never came to the point to acknowledge them as legal entity – what would have blown up the whole system based on dependence (II:11-33). Egbert Koops looks at the system, and especially at the practice of, manumission which, as he argues convincingly, created incentives for those slaves that were able to perform well and belonged to households where this was wanted or encouraged (II:35-77). Though concrete numbers of manumissions, ages of those manumitted, gender-relation, etc. cannot be estimated, he shows how important especially the peculium became, both in terms of encouraging performance and accumulating money for the manumission, e.g., in the form of the redemptio suis nummis. Particularly useful is his overview of the various rights of patrons over freedmen (and their families), depending on the way the manumission occurred.

Two crucial issues are discussed in the section about “Credit”: Jean Andreau points out the different possibilities of money-lending that were closely related to the different social practices, e.g., loans in the own social networks (with, and without, interest), short-time loans in case of auctions etc. (II:81-111). Yet, these various ways did not exclude the development of a dynamic banking sector which, however, was working differently from modern times where commercial law, productive and long-term loans are in the focus. Although also here the concrete extent and impact of the bankers on the economy is disputed, he convincingly shows that loan-functions were distributed over different legal frameworks and could nevertheless fulfill their role, that is, to provide, and create, credit-money, whether for consumption or productive purposes. Hendrik L. E. Verhagen argues against the common view that personal rather than real security was in the foreground to accompany loans (II:113‑156). Again, the question is the extent of social networks, attestations, and recommendations in overcoming publicity-problems, which is hard to measure due to the imbalance of our sources focusing on such issues.

This also concerns the issue of “Property” that is discussed in the three following chapters. While Robert C. Ellickson argues against the “consumer city”-model and points to the incentives, and benefits, Rome created, for herself but also for imitation by other cities of the Empire (II:159-210), Gary D. Libecap and Dean Lueck survey the, at least in the West, rather standardized land demarcation of Roman nature and regard it as providing great reduction of information and transactions costs in the long run (II:211-245). The third article by Benito Arruñada addresses again the problem of personal vs. impersonal transactions and discusses specific Roman rules that did not lead towards a total impersonal exchange but responded, together with informal rules and norms, to needs for securing transactions due to lack of public registries (II: 247-298).

Five papers on “Dispute Resolution and Remedies” conclude the second volume. They discuss how Rome’s law developed towards an efficient pleading system (Richard A. Epstein; II:301-326), why private prosecution and enforcement remained central in the Roman legal system (David Friedman; II:327‑46), attempt to calculate the development of penal law, from lex talionis and collective responsibility towards individual liability and compensation (Francesco Parisi, Daniel Pi, Barbara Luppi, and Iole Fargnoli; II:347-378; Thomas J. Miceli; II:379‑400), or explain the difference between the aedilician and praetorian remedies, supporting on- or off-market transactions and related interests of buyers and sellers, respectively (Barbara Abatino and Giuseppe Dari-Mattiaci; II:401-423). The last article the reviewer finds especially useful since the important functions of aediles, and on‑market regulations such as standardized weights are often forgotten in modern discussion about the Roman market economy although, for instance, papyrological evidence shows that many transactions also occurred outside the physical market situation.

In sum, this two-volume set offers many new perspectives on how one can understand the entanglements of Roman law and economy under the NIE-model. The chapters are particularly strong in giving rationale to a specific legal setup and undergird their hypotheses with insightful economic models and calculations. However, few papers address the issue that our ancient sources, also the legal ones, offer only specific views on a topic and are bound to their respective frameworks, for instance, the specific legal topic discussed by a jurisprudent, the often moralizing tone of literary sources composed by upper-class writers, the epigraphic habits, etc. In this sense, no source – even so-called documentary ones such as registries or papyri recording daily transactions – reports only facts but always brings with it the complete bunch of frames which have to be uncovered by us, in order to understand completely how ancient economies worked. Hence, the etic perspective which the two volumes have opened under the framework of NIE needs an emic counterpart that has still to be written.

Sven Günther, Institute for the History of Ancient Civilizations, (IHAC), Northeast Normal University, Changchun (China)

Publié dans le fascicule 2 tome 123, 2021, p. 729-732


[1]. For an overview of current approaches, see S. Günther, P. Reinard, «  Research Survey: The Ancient Economy – New Studies and Approaches: Introduction; Ancient Greece; Ancient Rome (Including Greco-Roman Egypt) », Journal of Ancient Civilizations 32/1, 2017, p. 55-105.

[2]. Cf. Fl. Krüpe, « Kennt ein Sklave seinen Kaiser? Das „Small-World-Phänomen“ im Imperium Romanum », Marburger Beiträge zur Antiken Handels-, Wirtschafts- und Sozialgeschichte 32, 2014, p. 117-134.