Roman Law and the Legal World of the Romans

Roman Law and the Legal World of the Romans

cash to another man named Gargilius Secundus in front of wit nesses. The striking thing for present purposes is the final for mula before the date at the end. “Let this agreement be free from civil law ( ius civile ).” This is an odd thing to say in what was presumably thought of by the writer as a “legal” docu ment. Not only is the transaction a standard legal one (a sale; see Chapter 12), but the text also speaks of “proper form” and cites witnesses. (Arguments could be made against the ultimate enforceability of this document, but the parties presumably believed in it at the time.) Now, one explanation that might be offered (and in fact has been offered) for the curious sentence is a fairly technical one. The phrase actually appears elsewhere in the Roman world in a context in which it is more appropriate. It is sometimes found on tombs, which, as sacred things, are not subject to ordinary commercial law (Chapter 20). They are free from the “civil law” or ius civile , not in its broadest sense of “the law of Rome,” but in the narrower sense of “the law of citizens” (as opposed to that of, say, the gods). It is possible, then, that the writer of the contract knew “let this … be free from civil law” as an important legal formula without really understanding it. After all, literate persons might easily see the phrase often enough in public (on tombs) to recognize it, with out ever having enough context to grasp its real meaning. We can see the same kind of (faulty) diffusion of legal language in our own society. The legal term of art “malice aforethought” applies strictly only to homicide (and does not have much to do with “malice” or “forethought” in their ordinary senses), but in folk usage is applied to a variety of crimes and in a sense

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