CONCLUSION

This book is built around the hypothesis that the legal system in Rome favoured the interests of the higher orders in Roman society. There is nothing original about this proposition, and few perhaps would dispute it.

To answer the first question it was necessary first to identify specific ways in which favouritism was shown to privileged groups. This investigation, in which attention was focused on legal pro­cedure, produced evidence of both de iure inequality (or legal discrimination) and de facto inequality. The former is that type of inequality which resulted directly from the prejudice and partiality of Roman judges and officials. Both the practice of sending high- status and low-status defendants to different courts and the differ­ential punishment of condemned men according to their status fall into this category; with them can be classified the praetor’s denial of certain civil actions to would-be plaintiffs of low standing and the preference shown by judges and juries for defendants (or ac­cusers) of high standing. On the other hand, some features of the legal procedures themselves, independently of interference from judicialofficials, constituted barriers to the enjoyment of theoretical legal remedies. For example, the institution of self-help which was a feature of the formulary procedure in civil law favoured the rich and influential, because they monopolized the material resources necessaryto effect summons and execution in the faceof opposition. In general, the unequal distribution of wealth, influence, and knowledge of the law prevented the lower orders from making full use of the legal system, and neither the formulary system nor the officials presiding over it made allowances for this fact.

A second point concerns the legal status of the Roman system of privilege.

The second question refers to the nature and membership of the privileged groups. Four points seem worth repeating in this con­cluding summary. First, the principal criterion of legal privilege in the eyes of the Romans was dignitas or honor derived from power, style of life, and wealth. This view accounts for the legal privilege that was recognized and administered by judges and magistrates, but does not accommodate de facto inequality. For example, struc­tural weaknesses in the formulary system gave advantages to the powerful and rich independently of dignitas. The dispensability of dignitas is shown in addition by the case of the Imperial freed­men. This is an indication that inequalities of power, wealth, and prestige in Roman society did not coincide in all respects.

Secondly, the privileged groups, or honestiores, are not defined in the sources, but this does not mean that they cannot be identified. The principal categories can be recovered largely on the basis of a few texts: a senator’s son receives exile at the hands of Severus and Caracalla for a crime punishable with death, an equestrian burglar is exiled rather than sentenced to manual labour by Marcus, and veterans and decurions are stated to be exempt from the crueller and more degrading punishments. Moreover, the criteria for legal privilege are firmly laid down; magistrates and judges had only to apply them to settle any incipient doubts as to which parties were deserving of preferential treatment.

Thirdly, the substitution of monarchy for oligarchy brought changes in judicial institutions and consequently in patterns of discrimination; but there is every indication that the categories of privileged persons remained constant from the late Republic to the Severan age.

Finally, honestiores and humiliores do not represent large homo­geneous groups. This dichotomy, like the conventional division of members of societies into ‘haves’ and ‘have-nots’, is a theoretical construct, which conceals the complex nature of the Roman social order. Moreover, in the field of law it conflicts with the realities of the administration of justice. Senators, equestrians, veterans, and decurions did not have equal access to legal privileges and remedies. Nor were freeborn citizens, freedmen, free aliens, and slaves in equally disadvantageous positions before the law. The terms hone­stiores and humiliores, and their more commonly used variants, normally occur in the primary sources with a restricted sphere of reference. In the juristic writings, for example, they are used in a limited range of instances which relate almost entirely to the administration of the criminal law in the provinces. Hence decur­ions are treated by the jurists as representative of the membership of the honestiores. This clearly they were not. Their privileges were less secure and less substantial than those of the higher orders based on Rome. In law, as in other aspects of Roman society, the principal benefits and rewards were available to those groups most advantageously placed in the stratification system by reason of their greater property, power, and prestige.