The Rlang=EN-US style='font-variant: normal !important;text-transform:uppercase'>eception of Roman Law and the Activity of the Governor
The evidence of the lex Irnitana is, of course, about what the Romans intended should happen in the Latin municipia in Spain, and not what actually did happen.
The picture it gives, however, is coherent with that which emerges from the other material already examined. The governor has overall supervision of the judicial process in the muncipium, and justice is to be administered there according to the terms of the governor’s edict, but he is only directly involved when the matter concerned is sufficiently important to merit it. Nonetheless, there is a fundamental difference between what was to happen at Irni and the activity of Valerius Flaccus or Cicero. In the earlier period the law that the local communities applied under the supervision of the Republican governors was the local law of the communities themselves. In the lex Irnitana the law to be applied was that which Roman citizens used under ius civile.35 This too seems to be what Babatha expected in taking her dispute to the governor of the province, given that the copies of the formula which she kept in her dossier were of the Roman actio tutelae, even though she was not a Roman citizen with access to rights under the ius civile. The change here is one of substantive law rather than of legal process: both the parties involved in the case recorded on the Tabula Contrebiensis and the Latin citizens of Irni had their disputes settled through processes which were essentially Roman in character. It is true that, properly speaking, in neither case was the substantive law Roman: the citizens of Irni were not for the most part cives Romani, and thus could not avail themselves of the ius civile any more than Babatha could.The clause in the lex Irnitana which deals with the law applicable to the citizens of Irni (the ius municipum) specifies that any matters not explicitly covered by the charter should be dealt with between the municipes in the way in which Roman citizens dealt with it under the ius civile.
This careful wording makes clear that the Irnitani, although they were not cives Romani and their legal actions were under the ius of their own municipium, were to act as though the ius civile applied to them. The distinction between the lex Irnitana and the dispute settled at Contrebia is not between the use of Roman law and local law, but that in the later case the local law itself is to be based on the law that the Romans used, even though it was not that law. In effect, the change that has taken place is the suppression of whatever laws the community at Irni used before it became a Latin municipium and their replacement by another set of laws which was, so to speak, a mirage of the ius civile.It must be said that the contrast between the Tabula Contrebiensis and the lex Irnitana presents almost too clear a shift towards the establishment of Roman law in the provinces. In other parts of the empire, particularly in Egypt and the Hellenized provinces of the eastern Mediterranean, the substantive law of the local cities (or, in the case of Egypt, the Greek and Egyptian law that had been in place in the period of the Ptolemaic kings down to 31 BC) remained in place alongside the Roman law.36 It is probable, however, that even here the drift was towards increasing use of Roman legal patterns, if only because the oversight of jurisdiction was the business of the Roman governor and, beyond him, of the emperor and his legal advisers. Even when attempts were made to retain the laws of an area, the decisions were made by men trained in Roman law.37 The spread of Roman citizenship will also have promoted the use of Roman law, although even after the declaration by the emperor Caracalla in AD 212 that all free persons in the empire were to be Roman citizens there is evidence that elements of local law continued to be used, especially in Egypt.
The history of the development of Roman law in the provinces is not one of systematic exportation of one pattern of law to replace others, undertaken by an imperial power anxious to impose uniformity on its subjects.
Still less does it seem to be the adoption by non-Romans of a set of laws seen as intrinsically superior to their own. Roman law travelled with the men who conquered and subsequently governed the provinces of what became the Roman Empire, and the judicial responsibility that these men acquired must be seen in the first instance as the result of their military predominance. It is worth remembering that C. Valerius Flaccus, who issued the complex and sophisticated formula found on the Tabula Contrebiensis, had not only held the post of praetor urbanus before taking up his post in Spain, but was also responsible as governor of Hispania Citerior for the slaughter of 20,000 Celtiberians and the capture and killing of a group of rebels in Belgeda (a town not far from Contrebia), who had burnt their councillors in their own council-house because they were hesitant about opposing the Romans.38 It is perhaps not surprising that it was to him that the Salluienses, seeking confirmation of the legitimacy of their purchase of land for an aqueduct, came for judgment.It is to be expected, then, that when provincial jurisdiction was so firmly in the hands of the governor and subsequently of the emperor, the patterns of its development, and in particular the tendency of governors to use the processes of the law administered by the praetors in the courts of Rome, were strongly influenced by the intellectual background of those who came to control and govern the provinces. As the judicial work of the governors expanded, and especially once military control began to take second place to civil administration, they were faced with questions, brought to their courts by non-Roman provincials as well as by those who had obtained Roman citizenship, whose resolution involved the application of local law. The governors do not seem to have been unwilling to allow this, nor is there any reason why they should have been; but, especially in the earlier period, the decision about how they should handle particular matters was entirely their own.
Roman law in the provinces changed as the notion of a province changed. The various forms it took were the product of the nature of each individual province and the governors who were responsible for it.Notes
i. For this development, see J. S. Richardson, The Language of Empire: Rome and the Idea of Empire from the Third Century BC to the Second Century AD (Cambridge, 2008).
2. On iuridici in Tarraconensis, see G. Alfoldy, Fasti Hispanienses (Wiesbaden, 1969), 230-259; forBritain, see ILS 1011, 1015, 1123 and 1151; forEgypt, see Strabo 17.1.12 and Ulpian, D. 1.20; for instances, see ILS 1434, 1452 and 2691.
3. Tac. Ann. 12.60. See P.A. Brunt, ‘Procuratorial jurisdiction’, in P.A. Brunt, Roman Imperial Themes (Oxford, 1990), 163—187.
4. For text, translation and commentary, see Roman Statutes, no. 1.
5. A. Lintott, ‘The leges de repetundis and associate measures underthe Republic’, ZSS 98 (1981): 162—212.
6. Cic. 1 Verr. 5.13lang=EN-US style='font-family:"Arial",sans-serif'>—15, 2 Verr. 1 (de praetura urbana), and 2 Verr. 2 (de praetura Siciliensi).
7. Cic. Quint. frat. 1.1.22.
8. A. Lintott, Imperium Romanum: Politics and Administration (London, 1993), 28—32.
9. Cic. 2 Verr. 2.32.
10. Plin. Ep. 10.79, 80.
11. Cic.
Fam. 13.48.12. R. Sherk, Roman Documents from the Greek East (Baltimore, 1969), no. 65 D, lines 82—84.
13. Cic. 2 Verr. 2.32—34 and 90.
14. See 55—6, this chapter.
15. Cic. Att. 6.1.15.
16. As observed by A.J. Marshall, ‘The structure of Cicero’s edict’, American Journal of Philology 85 (1964): 185—189.
17. Val. Max. 8.15.6.
18. Caes. Gall. 1.54.3; 5.1.5; 5.2.1; 6.44.3. See A.J. Marshall, ‘Governors on the move’, Phoenix 20 (1966): 231—246.
19. Strabo 3.4.20.
20. Cic. Att. 5.21.9; 6.2.4. For the development of the system, see G. P. Burton, ‘Proconsuls, assizes and the administration of justice under the empire’, JRS 65 (1975): 92—106.
21. Ulp. D. 1.16.9.4.
22. See the comparison drawn by Burton (n. 20) 99—102.
23. Suet. Aug. 33.3. On appeals to the emperor, see F. Millar, The Emperor in the Roman World (London, 1977), 507-516.
24. Sherk (n. 12), no. 67.
25. Cic. Att. 6.2.4.
26. P.B.H. Birks, A. Rodger, and J.S. Richardson, ‘Further aspects of the Tabula Contrebiensis', JRS 74 (1984): 45-73.
27. N. Lewis, Y. Yadin, and J.
C. Greenfield, The Documents from the Bar Kochba Perod in the Cave of Letters. Greek Papyri, Aramaic and Nabataean Signatures and Subscriptions. (Jerusalem, 1989), nos. 28—30. On the case in general, see H. Cotton, ‘The guardianship ofJesus, son of Babatha: Roman and local law in the province of Arabia', JRS 83 (1993): 94-108.28. See J. S. Richardson, The Romans in Spain (Oxford, 1996), 188—210.
29. For the text, an English translation, and a brief commentary, see J. Gonzalez, ‘The Lex Irnitana: a new Flavian municipal law', JRS 76 (1986): 147—243.
30. Lex Irn. ch. 84.
31. Lex Irn. ch. 85.
32. Lex Irn. chs. 86—88; on recuperatores, see B. Frier, The Rise of the Roman Jurists (Princeton, 1985), 197—234, and A. Lintott, ‘Le proces devant les recuperatores d'apres les donnees epigraphiques jusqu'au regne d'Auguste', RHDFE 68 (1990):
1—11.
33.size=1 face="Times New Roman"> Lex Irn. chs. 90—92.
34. Lex Irn. ch. 93. See D. Johnston, ‘Three thoughts on Roman private law and the lex Irnitana', JRS 77 (1987): 62, 63.
35. Lex Irn. ch. 93.
36. See Lintott (n. 8), 154—160. The classic case for the survival of local law was made by L. Mitteis, Reichsrecht und Volksrecht in den östlichen Provinzen des römischen Kaiserreichs (Leipzig, 1891).
37. For an example of the problems facing a governor and an emperor in attempting to reconcile different legal solutions to a situation occurring in different areas with different laws, see Plin. Ep. 10.65—66.
38. App. Iber. 100.436—467.
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