The ius gentium in the Graeco-Roman legal experience

Session 1

9: 00 – 9.30

The Peregrine Praetor in his Mediterranean Context

Dr Peter Candy (Cambridge)

Abstract:

According to the traditional account, the peregrine praetorship was established in 242 BCE to ‘utter law… between foreigners’. In The Praetorship in the Roman Republic, T Corey Brennan argues that this well-known description of the praetor’s function originally referred to his assignment ‘among foreigners’ in military and other capacities during the first c 40 years of the magistracy’s existence, most especially in Sicily. The aim of this paper is to examine the familiar questions concerning the scope of the peregrine praetor’s iurisdictio and possible influence on the development of the formulary procedure considering Brennan’s arguments concerning his early activities, particularly in the context of his likely contact with the world of the emporium in Sicily.

 

9.30 – 10.00

The ius gentium and chapter 84 of the Lex Irnitána

Dr Jacob Giltaij (Amsterdam/ Helsinki)

Abstract:

For a long time, the exact relation between what Mitteis in a 1891 work termed the ‘Reichsrecht’ of the Roman Empire and the local ‘Volksrecht’ remained unclear. To a degree, this changed in 1981, when the laws of the town of Irni were unearthed, the local laws of a small city near Seville in Spain. The laws were enacted during the reign of Domitian, at the end of the first century CE. They contained an apparently complicated and sophisticated relation between the jurisdiction of the local magistrate and a trial in the central Roman (imperial) context. Particularly in the opening chapter of the section on jurisdiction, substantive criteria seem to be set out, on the basis of which a separation between the local and the central legal orders is created. The precise nature and content of the chapter and the section has been debated by among others Crawford, Rodger, Metzger, J.G. Wolf and Spruit.

This presentation aims to add to this debate, by asking the following question:

Does chapter 84 of the Lex Irnitána give us insight into the separation between the ius gentium and ius civile, even as it may have existed before the advent of the Empire, but one that was used from Augustus onwards to structure the relation between the ‘Reichsrecht’ and the ‘Volksrecht’ in the Empire?

To answer this question, the criteria set out in chapter 84 of the Lex Irnitána must be assessed from several viewpoints. First, it needs to be ascertained how broadly the jurisdictional arrangement was applied in the Empire as a whole (1). In conjunction with this first question, the possible relation between the Lex Irnitána and various ‘central’ regulations must be examined (2). This brings us to the problem of the exact nature of the ‘central’ legal procedure chapter 84 is referring to, is this a trial before the Roman provincial governor, or before a praetor in the city of Rome (3)? In the latter context, the jurisdictional arrangement of chapter 84 seems to be connected to the separation between ‘statutable’ trials (iudicia legitima) and trials ‘based on the authority of a magistrate’ (iudicia imperio continentia) set out by Gaius (4). In both the contexts of this separation and chapter 84, the question of citizenship as a prerequisite for legal standing is all but absent: the criteria set out are primarily substantive.

Here is also where the relation to earlier and broader concepts of ius gentium may be found. Given that ius gentium could legally be defined as ‘a legal order to which all peoples have access’, i.e., without the prerequisite of citizenship, it may be possible to draw a fine line between the ius gentium and the ius civile based on substantive criteria based on chapter 84 of the Lex Irnitána (5).

 

Comfort Break: 10.00 – 10.30

Roundtable discussion: 10.30 – 11.00

 

Session 2

11.00 – 11.30

Greek documents of the Babatha Archive as a source for the study of the Roman ius gentium

Dr Valéria Terézia Dančiaková (Bratislava)

Abstract:

The Babatha Archive is a unique collection of texts in Aramaic and Greek that belonged to a Jewish woman named Babatha. They tell us much about the legal interactions of Jews living in the province of Arabia Petraea at the beginning of the second century AD. The texts cover various life situations, including purchases, guardianship, loans, a deed of gift, deposit, or even summons concerning legal disputes. The archive is even more interesting, as scholars dispute whether Roman ius civile was used in these legal acts as well, and if so, to what extent and purpose since it did not apply to foreigners. The possible traits of ius civile in the Archive can offer us a valuable insight into the character of the ius gentium, as the law available to peregrines living in the Roman Empire and the extent to which it was dependent on the fact that often the Roman officials were the ones making judicial decisions in provinces. 

 

11.30 – 12.00

Captivitas in the ius gentium. A Case of capitis deminutio maxima in Plautus’ Stichus.

Professor Camilla Tosi (Bologna)

Abstract:

Captivitas, albeit in a foreign land, also produces juridical effects within the Roman legal system itself. It is recognised by Roman law as a category concerning different populations, and formalises it within the ius gentium: from this point of view, the members of each community can capture and enslave the citizens of the others, and this is why within the ius civile there is a capitis deminutio maxima, as the civis is bent in his will and freedom by a greater external force. This is how a Roman loses his belonging to the civitas, according to Dig. XXXVIII 4,13,2 - Pompon. 4 Sen. Consult). This civis becomes rather a servus hostium (see Gai. Inst. I 129).

In Plautus's comedy Stichus, two protagonists are merchants who have been absent for several months and the pater familias intends to remarry their two daughters. The father of the brides is legally authorised to do so, as a situation of capitis deminituo maxima may have arisen. As the caption itself informs us, it is possible to imagine a situation of captivitas of these two protagonists, since the play is set in a historical juncture, that of 200 B.C., profoundly marked by conflicts, of which the audience itself is aware and involved. It is worth remembering that Plautus' comedies are always inspired by Greek literary models, where the author attempts precisely to make a synthesis between the original plot and the Roman legal context.

In my paper, I aim to contextualise this specific legal institution in the Roman republican system, in the light of the ius gentium of that age.

 

Roundtable discussion: 12.00 – 12.30

Lunch break: 12.30 – 14.00

 

Session 3

14.00 – 14.30

The seashore: between the ius gentium and the ius civile

Professor Anna Tarwacka (Warsaw)

Abstract:

The paper examines the evolution of the Roman jurists’ opinions concerning the status of the seashore. The sea itself was governed by the rules of ius gentium rather than ius civile. At first the shores were treated as public things, but this concept was hard to apply in situations when something was built on the shore. The aim of the study is to analyse the jurists’ opinions in a chronological manner and so to extricate the legal problem and the possible solutions. There also seems to exist a not unsimilar change of attitude towards the rivers’ legal status (especially regarding an island emerging from a river). Both these issues are rooted in the typically Roman rule superficies solo cedit which needed to be adjusted or turned aside.

 

14.30 – 15.00

The rebirth of the Polish state in 1918 and a certain clever argument ex iure gentium

Professor Maciej Jonca (Szczecin)

Abstract:

The noun postliminium belong to this group of ancient Roman private law concepts that were absorbed into the forming science of international law in the 17th century. In the modern era, however, they were given a completely different meaning. Among those who wrote about ius postliminii regarding countries were (among others): Balthazar Ayala, Alberico Gentili, Hugo Grotius and Johann Wolfgang Textor. However, it was not until Emerich de Vattel that the ius postliminii was given a new clear “dogmatic” shape. De Vattel decided that any forcibly conquered nation had the right to return to the status quo ante if the following conditions were met: 

1. the nation previously had a state of its own; 

 

2. the foreign state’s rule over the nation was based on violence; 

 

3. the nation did not reconcile itself to the conquest, sought to regain its freedom, and the tradition of independence survived uninterrupted.

 

On November 16, 1918, a note was sent from Warsaw informing diplomatic missions around the world of the rebirth of the independent Polish state. The author of the note, Tytus Filipowicz, invoked the ius postliminii. At the time of sending the dispatch Filipowicz was not even a foreign minister and Poland's future more than unclear. However, the ius postliminii formula allowed him to notify the world that Poland ipso iure had regained its independence after 123 years of slavery. 

 

Roundtable Discussion: 15.00 – 15.30

 

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