Cicero loses a case: Pro Milone

We last left Cicero at the height of his powers during the tumultuous year 63 BCE, when as consul he took decisive action to expose and quell Catiline’s conspiracy. Now we skip ahead eleven years to see just how chaotic the political situation of the late Republic has become. In 52 BCE, a great political enemy of Cicero was murdered, Publius Clodius Pulcher (ca. 93-52 BCE). Clodius had been born a patrician of the prominent Claudian clan, but became so intense an enemy of Cicero that in 59 BCE, during the consulship of Julius Caesar, he had himself transferred out of the patrician class to the plebeian by a highly unusual adoption (Clodius reflects the popular pronunciation of Claudius). This was so he could then stand for the office of plebeian tribune (barred to patricians) and cultivate a popular following to use against Cicero.

As tribune, Clodius enacted a law that punished with exile anyone who had executed a Roman citizen without the due process of a trial. This was clearly aimed at Cicero, who had done so at the height of the Catilinarian conspiracy, though as we have seen, Cicero felt he had secured the authority of the Senate to act in this manner by the issuance of a senatus consultum ultimum and by holding extended deliberations to arrive at a consensus position. In the end, though, Cicero as consul was the only one responsible for the outcome. Cicero’s action was initially very popular in the moment, but the plebs was liable to certain overtures, as Clodius knew. Cicero was forced into exile in 58 BCE, and Clodius added insult to injury by passing a bill to confiscate his property, which was destroyed. Sensing his power in the moment, Clodius passed legislation in favor of the common people on a number of fronts, and most notably made the grain dole—grain had been made available to the people of Rome at deeply discounted prices—completely free. He also allowed for the deregulation of collegia (guilds or clubs), which meant that now armed gangs of thugs could roam Roman streets threatening anyone who opposed Clodius. The hurly burly of political violence was becoming the norm, but in the end it would cost Clodius his life.

Clodius’ actions were undertaken in the shadow of the First Triumvirate, an unofficial alliance between Pompey, Rome’s greatest general to date; Crassus, Rome’s richest man and a consummate political and financial schemer; and Julius Caesar, who at the time of his consulship seemed to be merely the cleverest popularis politician (after he went to Gaul as proconsul, the full scope of his military genius and ambition would finally become clear). This was a convergence of interests more than anything, and it would eventually fall apart after Crassus, eager to get some military glory for himself, got himself killed in 53 BCE at the battle of Carrhae fighting against the Parthians in the East. Initially, Clodius enjoyed the backing of Crassus, who seems to have secretly approved of Clodius’ political attacks on Pompey which culminated in a failed assassination attempt on Pompey in 58. He then turned on Caesar, using his political power to try to annul Caesar’s consular legislation. Having made himself master of the street violence in Rome, Clodius was able to frustrate and annoy these two powerful men for a time. But the triumvirs took action, first by recalling Cicero from exile and second by backing others like Milo, who now raised their own gangs of thugs to counter Clodius. In an age when so much of politics and legal proceedings occurred in the open Forum, gang violence was disrupting much of political life by taking factionalism to the streets on a daily basis.

The endemic violence was so bad by 53 BCE that the Romans were unable to hold elections (Milo was campaigning for consul, Clodius for praetor). Then in January of 52, an incident occurred as Milo and Clodius passed each other with their entourages outside of Rome that led to the death of Clodius. The resulting trial is extremely well documented, not just by Cicero’s speech (it’s actually a major revision of his original court speech), but also by a later commentary by Asconius Pedianus, who gives us a fuller account of the trial beyond Cicero’s distortedly partisan defense speech. In the end, Cicero was unable to secure the acquittal of Milo, who was forced to go off into exile at Marseilles. But the cause of the Clodians would later see some major defeats in subsequent trials to come.

General Assignment

For Tuesday 3/21: Read the introduction to Pro Milone and the commentary of Asconius in Cicero: Defence Speeches pp. 162-182. Be prepared to spot the differences between Cicero’s revised speech and the account Asconius gives us.

For Thursday 3/23: Read Cicero’s revised speech in defense of Milo, pp. 183-223. Note the violent tenor of the times to which he alludes—how does it differ from his first speech for Roscius?

Cicero the Consul: The Catilinarian Conspiracy

So far we have seen Cicero the defense advocate in 80 BCE and Cicero the prosecutor (and aedile elect) in 70 BCE.  But now we see Cicero at the height of his political  career in 63 BCE, when as consul he must react against a conspiracy of unbelievable recklessness and lawlessness. The speeches we read this week are not for the courtroom, but rather for the specific audiences of the Senate (where he addresses his colleagues in the august body that shapes Roman policy) and the people, whose support he needs to prevent the outbreak of a serious coup d’état.  In the four Catilinarian Orations, we see the different stances taken by a Roman consul as he delicately manages to isolate and ostracize a pernicious patrician who is scheming to tie various factions together, largely for the purpose of creating widespread mayhem.

Just what made the man in question, Lucius Sergius Catilina (108-62 BCE), decide on his reckless course of action remains a bit of a puzzle.  Though a patrician, he wasn’t exactly one of the optimates of the Sullan mold.  Though he appealed to the indebted and the dispossessed, he wasn’t a Marian either.  He seems to have been something more of a ruthless opportunist, persuasive enough to have cobbled together a coalition of conspirators, but not impressive enough to arrive at the helm of the Republic by electoral means.  After failed attempts at getting elected consul, he simply decided to take it by force.

Cicero’s predicament, as a consul who was a “new man” (the first of his family in the Senate), was that his colleagues seemed slow to react to the reality of this conspiracy, perhaps deferring to some belief that as a patrician, surely Catiline would not stoop to such low levels of violence and coercion. Cicero’s main weapon, his powers of persuasion, needed both to target and isolate the conspirators, who were still mixed in amongst their fellow citizens in a dangerously intimate way, and to shift public opinion to his side as he took action. How to flush out these deadly internal foes? Moreover, how to convince the people of Rome that the maneuverings of their consul to counter this threat are not in themselves a threat to the people? Cicero’s courtroom training led him to put his faith in the evidence first and foremost, as he did in his attack on Verres. You will see him amass a case against the conspirators, not for courtroom prosecution, but for political and military action. This week we will see how the advocate turned consul will wield his lawyerly skills as he deploys the full force of his consular imperium. 

General Assignment

For Tuesday 3/7 read the introduction and the first Catilinarian oration in Cicero: Political Speeches, pp. 134-169.

For Thursday 3/9 read Catilinarian orations 2-4, pp. 170-203). Take note of the different approaches used when he speaks to the people as opposed to the Senate.

Cicero the Prosecutor: Against Verres

We now turn to a case where Cicero, ten years after defending Sextus Roscius Jr., took on the prosecution of a more powerful political figure, Gaius Verres (c. 115-43 BCE).  The court was specifically that for extortion cases involving provincial governors who have completed their term of office and are therefore now answerable for their actions. Verres had served as proconsul of Sicily, the large island off the coast of southern Italy that was the first Roman province. While provincial governors often lined their own pockets to make good on the many expenses their political careers cost them, Verres was extreme in his extortion, looting, and arbitrary executions not only of provincials but also Roman citizens. Sicily was a target-rich environment for a rapacious governor: it lay at the center of mediterranean trade, and had developed a high level of sophistication through centuries of Greek colonization. It was also the breadbasket of the Roman empire at the time, with an annual grain production that the city had come to rely upon.  It was quite the henhouse for a fox to find himself in.

Cicero had spent time in western Sicily at the start of his political career, when he was elected as one of the quaestors in 75 BCE at the age of 31.  The quaestors were largely financial officials, and he discharged his duties with such fairness and tact that he made many friends among the provincial Sicilians, who became his clients. When Verres later ravaged the island with his hubris and depredations during his governorship (which began in 73, but was extended to 71), Cicero’s friends and clients begged him to prosecute the scoundrel once he was out of office and could be held accountable. So in the year 70 BCE, Cicero decided to act for once as prosecutor against a more senior senatorial colleague. As an ex-quaestor, Cicero had now joined the Senate, and was running for the position of aedile for the year 69—the next rung up the ladder of magistracies (or cursus honorum). He was in a vulnerable position, as other officials up for election in that same year would back Verres if the trial dragged on into 69. Plus as a “new man” without many connections in Rome, Cicero was not in a strong position against his senior colleague. Verres had a talent for corruption, and Cicero’s personal virtue was hardly enough to counter such a hardball politician. To make matters worse, Verres enlisted the help of the greatest orator in Rome at the time as his defense advocate: Quintus Hortensius Hortalus, who would enter into the consulship as well in 69.

Once again, it seems likely Cicero’s opposing counsel miscalculated by not taking his energy and eloquence into account. Cicero managed to collect a mountain of evidence against Verres back in Sicily, and outmaneuvered the delaying tactics of the defense by hitting hard the very first day in court. So powerful was his attack, in fact, that Verres skipped town and forfeited the trial, living out the rest of his life in exile in Marseilles.  The bulk of the “Verrine Orations” comprises speeches that Cicero never actually gave, since the trial never went past the first day. He had prepared them with great care, and later published them anyway, and they remain the most valuable source for understanding the workings—and abuses—of Roman provincial administration.

General Assignment:

For Tuesday 2/28

For further background on the Roman quaestiones perpetuae or “standing courts,” read Riggsby chapter 19, especially pages 198-202.

Read the introduction (pp. 3-12) and the first speech In Verrem (Against Verres) pp. 13-29. This is the speech on the first day of the trial. Take note of the remarks to the jury: what is at stake for them in this trial?

For Thursday 3/2

Skim the longer speech In Verrem II.5 (pp. 30-101), and see the kinds of detail that make up the evidence, particularly with reference to crimes against allies, Roman citizens, and the gods themselves. What picture emerges about the scope of the proconsul’s power in Sicily? How is it open to abuse? What recourse do Roman allies have when a governor acts in this way?


When the trial IS the crime…Cicero’s Defense of Roscius

We have looked at some tensions in the Roman constitution between the paternalistic power of the Senate with its decrees and the populist power of the Plebs with its tribunes and ability to legislate.  The tension that grew more severe after the brothers Gracchi frames the next court case we will examine in detail.  A very young Marcus Tullius Cicero must defend a certain Roscius of Ameria on the charge of murdering his own father. Patricide is always a scandal, but the REAL scandal was that not only was Roscius innocent, his prosecutors were had stolen his inheritance and therefore clearly benefitted from the case by getting him out of the way. Roscius Sr. was a wealthy man, and in the period of political chaos into which we now descend, he was an easy mark for opportunistic thugs who murdered him and got hold of his property for their own benefit. It is hard to imagine the kind of chaos that must be reigning for so blatant an injustice to be done. By putting Roscius Jr. up for the murder, it seems the conspirators assumed they would sweep him out of the way.

Why? The background to this case is the dictatorship of Lucius Cornelius Sulla (c. 138-78 BCE), a powerful aristocratic figure who dominated the pro-senatorial faction known as the optimates (the “best” people, i.e. the aristocrats). Ranged against him was an equally powerful figure heading the populares or “populists,” Gaius Marius (157-86 BCE), a great general and military reformer who came to remarkable prominence in Roman politics—including an unprecedented 7 consulships. (He was from the same home town as Cicero, and like the latter, had all the political handicaps of the “new man”).  During the years 88-82 BCE, Rome entered a bloody period of civil war between these factions that would reveal how deep the social and political crisis of the Republic had become. By 81 BCE, Sulla prevailed and was appointed dictator by the Senate—which the Assembly later ratified, without term limit. Such a thing seemed unthinkable in the Republic’s long history. Sulla initiated a series of proscriptions or purges, aimed to eliminate political rivals but conveniently expanded simply to target rich men so as to snatch up their wealth. He also initiated constitutional and legal reforms that we will discuss this week, as they show what a senatorial strongman would do to fix the problems of the republican constitution. Roscius Sr. was a final victim of the murderous turmoil at the very end of the proscriptions, a victim of his own success and wealth, which attracted unscrupulous opportunists.

The young Cicero stepped forward to defend Roscius Jr. on this notorious charge, surrounded by more experienced and influential people who were terrified to make their views known. The prosecution comprised henchmen of Sulla’s freedman Chrysagonus, so this whole sad affair was directly tied to the dictator, albeit by a long thread.  But the young Cicero took up the challenge, finding ways to delicately sidestep any direct criticism of Sulla and focusing instead on Chrysagonus and his thuggish accomplices. It was a delicate balancing act, but it paid off. The acquittal suddenly made this young man one of the most sought-after advocates in Rome, and in this defense speech we can see the early signs of Rome’s greatest oratorical genius at work.

General Assignment:  The main assignment this week is simply to read the introduction and the defense speech for Roscius (Pro Roscio Amerino), pp. 3-58 in Cicero: Defense Speeches.

As we now enter this unit in the course, try to get a feel for the power and technique of judicial oratory as practiced by Cicero throughout his career.  Useful background on the formation of an advocate (as well as the difference between an advocate and a jurist in Rome) can be found in Riggby, Roman Law and the Legal World of the Romans, chapters 5 and 6.

Tuesday:  Focus on the opening moves of Cicero’s defense, sections 1-14. How does he manage to reframe this defense into something more like a prosecution of the prosecution?

Next comes the narration, sections 15-28. See how he briskly outlines the facts: what force does his narrative have in shaping the audience’s understanding?

In section 29, we begin the more analytic move known as partitio: how does he now divide up the charges and find an approach to move forward countering the claims?


Group Assignments:

We will tackle the latter half of Cicero’s detailed defense together. Let’s split up the work as follows:

  • REFUTATION 1: 37-82 [HEARTS]
    How does the uniquely horrid crime of parricide actually play into Cicero’s defense? What kinds of prejudices and assumptions come with it that can help Cicero to get an acquittal?
    Why is the cui bono (Who stands to gain?) principle so important to this part of Cicero’s defense? How does he deploy it? How much is based on the facts?
  • REFUTATION 3: 124-142 [CLUBS]
    How does Cicero attack Chrysagonus while steering clear of Sulla in his counter-accusations? Think particularly of the jurors and their prejudices. What kinds of feelings would a wealthy freedman inspire among the senatorial aristocracy?
  • PERORATION: 143-154 [SPADES]
    How does Cicero use direct address to specific persons as a way of concluding his defense? What groups or individuals does he single out in this way?

Senate Decrees vs. Plebiscites: Class Conflict and the Law in the Roman Republic

This week we will look at two sides of the legislative coin: the decrees of the Senate (Senatus consulta) and the laws passed by the Plebs (plebis scita).  During the Republic, as we’ve said, the Senate was not a legislative body. It was fundamentally not like our Senates in the US in that it was not a representative legislative body, but rather an advisory “council of elders” made up of men previously elected to a magistracy (consul, praetor, aedile, or quaestor).  It was an honorary body in many ways, and membership in it was extremely prestigious. But being a member did not mean that you wielded the kind of duly vested public authority (imperium) that the elected magistrates of that year possessed. Fundamentally, it’s power was a consensus of opinion on the part of the senior statesmen, generals, judges, and high priests of Rome.

The Senate passed decrees, but the authority the decrees was problematic. A Senate decree is not the same as a statutory law (lex) as passed by the voting assemblies in Rome. No doubt, the Senators imagined it should be as powerful as a law; but in form, it wasn’t, since the People of Rome did not pass it, only the Senators. We will see where this ambiguity becomes a problem later on in the Republic. However, a Senate decree is a powerful directive to the magistrates in power for the year, men who are just like their colleagues in the Senate and who share common political interests with them. So one way to think of the binding nature on the magistrates is to consider a decree of the Senate “advice that it would be foolish to neglect.” In other words, the decree has a powerful normative force, even if it legally isn’t quite on the same level as the acts of the assemblies (in later imperial times, however, the Senate will come to have a legislative function largely for its convenience—but this is much later on after the Republic has fallen).

We can see the powerful normative and moral force of a Senate decree when we look to a notorious incident from around 186 BCE, the incursion of Bacchic worship into Roman Italy. Bacchus, or the Greek god Dionysus, was a major divinity in Greece; the Dionysian festivals of Athens were the occasions when the great tragedies and comedies were performed. But this cult of the god of wine came into Italy in a private form, an initiation cult known as a “mystery religion.” Much lurid detail is alleged of this cult—and it is very hard to get to the truth of things, much as with the Salem Witch Trials. Whatever the truth of the cult, it is clear that it produced a moral panic among the upper classes of Rome. The Senate reacted vigorously in support of the consuls, and passed a decree that has come down to us thanks to its production in bronze for public posting.

General Assignment for Tuesday 2/14

  1. Read the text of the Senate Decree on the Bacchanalia, and notice its full legal structure and rhetoric.
  2. Read Livy’s account of the Bacchic crisis, with especial attention to the details of the investigation, the Senate’s actions, and the punishments meted out.

General Assignments

Lately I know we’ve not fully observed the discussion format, so I want you guys to chime in a bit harder as you first did. The reading here is shorter, so you should have time to organize your thoughts. 

Hearts: Get ready to discuss the Roman characterization of the Bacchus cult. Why is it that they are so upset about it? What key words are used to describe it? What kinds of people does it seem to attract?

Diamonds: How does the consul take action to investigate the mysterious goings on? What key testimony helps them to get a fuller picture of the situation? What problems might there be with the testimony?

Spades: Discuss the consul’s speech to the Roman people (39.15 and following). What key values does it reveal? What is his attitude to religion?

Clubs: Discuss the final prosecution of the Bacchic adherents and the penalties. Do these seem to fit with the general characterization the Senate and magistrates make of the danger? What particular punishments do you see as problematic or interesting?

For Thursday 2/16

But what of the people? The Plebs of Rome, as we have seen, had its own representatives in the Tribunes of the Plebs. They could convene the Council of the Plebs and refer legislation to it, which produced a plebis scitum or plebiscite that was, particularly after the Lex Hortensia of 287 BCE, binding on both patricians and plebeians and not subject to senatorial veto or obstruction. Under the tribunates of the Gracchi brothers, this legislative mechanism was used to push through radical land reform that effectively transferred wealth from the aristocracy (more specifically, rich landowners among the senators who had acquired a lot of public land and treated it as private estates) to the poorer citizens of Rome. It wasn’t just land reform, but also the political methods of the Gracchi that caused this political maneuvering to erupt in violence, spelling the end of certain norms of political behavior, a situation that would later spiral into all out civil war.

General Assignment:

  1. Read this short reading on the agrarian reforms and the Gracchi. This is from the excellent textbook, The Romans: From Village to Empire (second edition), which I highly recommend if you want a systematic grasp of Roman history.
  2. Read excerpts from this agrarian law of 111 BCE, which comes in the wake of the radical legislation of the Gracchi. Note that it is FULL of legislative boilerplate–i.e., long repetitive phrases that specify or restrict the scope of the legislation. I have highlighted the key elements that you can scan to understand where this law is going. There’s an art to reading legislation quickly (and plenty of congressmen don’t even read what they vote on…so this might be a dying art).

The 12 Tables of the Law and the Tale of Verginia

We live with a fundamental assumption: the law is a public thing. It exists, can be read to the letter, and when we don’t understand it, we have recourse to lawyers to interpret it for us. The public promulgation of laws seems to be a pretty basic precondition for living in an ordered society.

Now, for example, as we debate whether allowing Steve Bannon to be a principal on the National Security Council is the violation of a law or a norm (i.e., putting a clear political operative onto the council that is supposed to be beyond politics and focused purely on national security), we can look up the US Code online and find out. It is, as Fred Kaplan argues at least, a violation of the law, specifically US Code Title 50, chapter 44, subchapter I section 3021. Or for another example, if you are wondering how the crime of homicide is framed in the State of Texas, you can simply go directly online to the Texas Penal Code and see.  Most people don’t spend their time doing this, unless they have a specific problem. But we all assume that somehow we can.

In ancient Rome, according to tradition, the text of the law was not such a public possession originally. The story goes it took popular pressure during the early Republic to get a promulgated law code prepared and then published for all to see, a code we usually refer to as the Twelve Tables of the Law. This seems to be a pretty basic act, but the whole process is recorded with some embellished tales that reveal the social conflict surrounding the simple question: who controls knowledge of the law?

The task for this week will be to: a) read the fragments of the 12 Tables, in order to see something of the legal structure of early Rome and how it came to be; and b) to follow the tale of Verginia to get the feel for yet another sad situation in which the family and the state are put in tension. These are two very different kinds of readings, so be prepared to use different strategies.

General Assignment for Tuesday 2/7:

First, read about the social and political background that led to the 12 Tables in Livy’s Early History of Rome.  Read pp. 138-149 for the story of the Secession of the Plebs, which led to the common people’s own political representatives, the tribunes of the people. Next, read pages 231-239, which tell about the decision to suspend the normal offices of government in favor of a Board of Ten (decemvirs), who would draft and promulgate laws based upon those of Solon of Athens.  Lastly, take a look at the fragments of the 12 Tables, to get a sense for the various things covered in this first law code of Rome. (Note: references to asses are to a bronze coin, not to an animal.)

Two sides of an as coin

Group Assignments:

  • Hearts:  What seems extraordinary about the story of the Secession of the Plebs? What does it say about the existing structure of the Republic? How did the creation of the tribunes of the people compensate for the deficiencies of the early political structure?
  • Diamonds:  What seems extraordinary about the decemvirs in their first term of office? How does this contrast with what happens later?
  • Clubs:  Why do you think the first three tables of the law concern legal procedures? What kinds of cases do these rules presuppose?
  • Spades:  What strikes you about the provisions in family law outlined on tables IV and V? What kinds of things are put under Tort or Delict on Table VIII? Does it make sense to you that all these are on one tablet?


General Assignment for Thursday 2/9:

Read pp. 246-265 in Livy’s History, the long and lurid tale of Verginia and Appius Claudius, which I guarantee is a ripping good story by any standard. Note how the pathos of the anguished paterfamilias lies at the heart of this very political tale.  Note also how the personal nature of this conflict intersects with the larger political tensions within Roman society, and how both the recourse to law and the subversion of it are central to the plot.

Don’t forget Writing Assignment #1!

This is due 2/20 @ 11:59pm to

Murder, Rape, and War: Another Day in Early Rome…

This week, we begin on Tuesday with a look at a famous early homicide trial from the annals of Rome’s early kings, in order to understand something of the dynamics of early criminal law as imagined by later Romans. Horatius, a hero of Rome, kills his own sister in front of many witnesses. Why does this happen? And how can he possibly get away with it? Stay tuned…

The Oath of the Horatii by J.-L. David 1794

We also take a brief look at the growth of fetial law, a very special area of Roman law in the archaic age concerned with international relations. This points toward a doctrine that the Romans began to develop that is at once legal and religious: the idea of a just war. For such a warlike people, you might expect their motives to be purely self-interested and power-based. But they were concerned with the way in which hostilities begin and end, since they felt the gods were always ready to revoke their favor from a nation that acted maliciously and unjustly.

On Thursday, we look to the crimes that led to the end of the monarchy, which are told in a florid manner that reads like a soap opera in Livy’s text. First there is the accession of the last king, Tarquin the Proud, whose rise to power is a Greek tragedy in itself. Then there is the story of Lucretia, an upstanding Roman matron assaulted by the King’s son. Why is this story of rape the traditional explanation for the founding of the Republic? Lastly, we see the hero of the Republic, Brutus the Liberator, as he must face a terrible ordeal as Rome’s first Consul: passing judgment on his own sons.

Suicide of Lucretia by Cranach the Elder (MFAH!)

Great stories! But what do they say of the way the Romans understand their legal foundations? How do stories of crime help to map out the moral boundaries and reaffirm a culture’s values? How do stories of rebellion or revolution rely on such crimes, in order to justify a violent reorganization of society?

Remember this class is called “Law and Society” for a reason. It’s about how a culture thinks about law, legality, crime and punishment, rights and obligations, both in the formal terms of actual law and in the wider sense of norms, narratives, and claims for justification.

Reading Assignments:

For Tuesday January 31, 2017

Read Livy’s account of the reign of Tullus Hostilius, with special attention to the combat ordeal of the Horatii and Horatius’ trial in The Early History of Rome, pp. 55-71. Notice also the role of the fetial priest in the declaration of treaties and war.

Group assignments:

  • Hearts: Focus on Tullus Hostilius’ character: how does he differ from Romulus and Numa? How does his character reflect the events of his reign? What is his relation to justice as revealed in the trial of Horatius and in the punishment of Mettius Fufetius?
  • Diamonds: Focus on the legal procedure involved in Horatius’ trial. What is the main authority that has jurisdiction? How does the process of appeal work? Once acquitted from the crime, is Horatius fully acquitted of the guilt of his sister’s murder?
  • Clubs: Look at the details of the fetial priest’s rituals on pages 58-59, 70-71. What does the structure of these rituals show about the archaic understanding of law and treaty? Why are such religious details important in understanding the development of international law in the ancient world?
  • Spades: As I asked you last week, review the provisions of the Hebrew homicide laws from the Torah handout, and discuss their nature. What kind of society do these provisions suggest? How might they be different from the society of Early Rome, as seen in today’s readings?


For Thursday February 2

Read Livy’s account of the rise of Tarquin the Proud, especially looking at the crimes committed against the previous king Servius Tullius (Early History of Rome, pp. 86-94). Then read about Sextus Tarquin’s rape of Lucretia, and what ensues (pp. 98-104).  Lastly, read the introduction of Livy’s second book (pp. 107-113).

Group assignments:

  • Hearts: Prepare some comments on these questions. What seems to be the nature of the power struggle between Tarquin and King Servius? What elements feed this conflict and make it worse? How does Livy make the story more gripping by use of specific details, etc.?
  • Diamonds: See if you can explain why the fate of Turnus helps to frame Tarquin’s character as that of a tyrant, not a King. How does Tarquin compare with Romulus in terms of character, decisiveness, and action?
  • Clubs: See if you can understand exactly why Lucretia commits suicide? How does this help her case, and how does her death influence the men she speaks to? Is their desire for vengeance a legal act? Why would it be the origin of a republican revolution?
  • Spades: Compare what Livy says about the rule of Law in book 2 with what happens with the sons of Brutus.  Why is this rather tragic outcome a fitting way to illustrate something important about republican rule versus royal rule?


In the Beginning, There Was Murder

This week, we begin our discussion of foundational aspects of Roman civilization during the period of the Kings of Rome. We begin on Tuesday with a consideration of Romulus, the Founding Father of Rome whose manly virtue created a city out of a ragtag group of desperadoes and runaways. We will want to examine his foundational acts in the context of ancient culture’s understanding of crime and necessity: why does he kill his brother Remus? What are the implications of this act? Does he appear to suffer any consequences for it? Why does he direct his followers to abduct women from the neighboring Sabines? Lastly, what do the stories of his birth and death have to do with the nature of his actions as a founder? she-wolf_suckles_romulus_and_remus

Remember that kingship can be understood in different ways, and the way the kings of Rome are presented in Livy’s text is filtered through centuries of Republican (i.e., anti-monarchical) culture and values. On Thursday we will continue our discussion with a look at the second King of Rome, Numa Pompilius, a very different character from the vigorous and ruthless Romulus. What does it say about the Roman self-understanding of legality and social institutions that their two first founders are men of such utterly different character?

In legal terms, I want to focus especially on homicide and, more specifically, fratricide as a motif in the Romulus-Remus story as well as in the Cain and Abel story from Genesis 4.  Why in both cases is fratricide at the origins of these cultures? How was homicide generally dealt with in the ancient world—a topic we will revisit on several occasions throughout the term. I also want to focus on marriage, since this is another institution that originates in the time of Romulus according to tradition. How is marriage foundational to public order, and what is its relationship to citizenship, property, and social stability?

Assignments in Detail

Tuesday 1/24

  1. Read pp. 29-55 in Livy’s The Early History of Rome, with especial focus on the reign of Romulus. We will be reading Livy for the next couple of weeks, so you might just read the whole of book 1 (book = chapter in an ancient work), to familiarize yourself with this kind of an ancient text.
  2. To see another version of the Romulus story, read these excerpts from the Roman Antiquities of Dionysius of Halicarnassus, who was a Greek contemporary of Livy. Notice how the story is different, and what the implications are for the differences.
  3. Read Genesis 4 and the other texts on the handout on Biblical homicide laws. We will refer back to the Israelite way of dealing with homicide from time to time, as it remains an influence in the way people frame the laws and punishments for homicide.
  4. Lastly, you might be interested in Machiavelli’s reading of Romulus’ killing of Remus. You may have heard the maxim, “the ends justify the means”; this is perhaps Machiavelli’s clearest statement of that idea, based on this moment in Livy’s text.

Thursday 1/26

Group Assignments:

Clubs: read the excerpt from Machiavelli and be ready to tell us about it. What principle of Machiavelli’s thinking is illustrated by Romulus’ killing Remus? Give us 5 minutes or so of discussion on this. It’s one of Machiavelli’s most famous—notorious—ideas.

Diamonds: Take a look at Dionysius’ version of the founding of Rome. How does his version of the story differ from Livy’s?  How might it reflect Greek, instead of Roman, concerns about foundation? How does it account for Remus’ death? Again, give us about 5 minutes of discussion about this matter.

Hearts: Read Dionysius’ discussion of the laws of Romulus. What foundational elements do you see discussed here? How do they related to the family and the state? How does this account differ from the image of Romulus you get in Livy? See if you can talk about these differences for 5 minutes and lead a discussion.

 Spades: In preparation for next week, review the provisions on homicide, capital offenses,     and sanctuary cities from the Torah (the Law in the Hebrew Bible). What kind of society does this reflect? What principles are in place that seem very different from modern law? Are they similar or different from what you are learning about Roman law?

General assignment:

Aside from the reading in Livy about Numa’s reign, do the following:

  1. You have already read Livy’s account of Numa’s reign, but now add to that these excerpts from Dionysius’ Roman Antiquities. 
  2. Also read Dionysius’ account of Romulus’ institutions of marriage and society. How does this alter the view of Romulus from the account in Livy?


First Things First…

This course does something odd: it introduces you to Roman history and culture through legal issues.  That sounds perhaps a little strange as a way of studying Roman culture, but it works for a number of reasons.

First, the law is one thing the Romans took very seriously, so just as one might use military affairs as a way to get to know the Romans, so too one can use the law as a good guide to Roman values, conflicts, and even creativity.

Second, the laws of ancient Rome extended to areas of life that seem quite alien to us, but that are essential to understanding such an ancient society: slavery, the extreme rights of the paterfamilias over members of the family, insults to the Emperor, even certain aspects of religion. On the other hand, they also dealt with things quite familiar to us: electoral corruption, malversation, treason, murder, inheritance, marriage, theft, contracts and civil liability. So studying Roman law can help us to get a feel for just how different Roman society was from ours, while also reminding us of some of the constants in the human creation of legal structures.

Third, the law is also one of the things Rome bequeathed to Western civilization in an enduring way. Not only does the Roman way of conceiving the law endure, but actual Roman law codes underlie the Civil Law tradition in continental Europe (Civil Law here being opposed to our Common Law tradition in the Anglo-American world—more on that later).

We might consider what it would mean to approach American history in this way. You would begin with the charters and legal foundations of the colonies in relation to English Law, then consider the legal reasoning behind the Declaration of Independence and the Constitution, then move on to talk about slavery and the justification for both Secession and Civil War. You could then focus on the legal basis of Reconstruction, the fight for Women’s rights and the later Civil Rights Movement, the striking down of miscegenation and other racist laws, the struggle over abortion rights and same-sex marriage.  In sum, you could conceivably approach American history in this way—and you’d have a much easier time of it! Our history is comparatively well documented and very short by comparison with that of Rome.

The course readings will comprise a range of primary and some secondary materials. First we have some classic Roman texts like Livy’s History of Rome and some speeches and the treatise On the Laws of Cicero. Then we have genuine legal texts, such as the Twelve Tables of the Law (fragmentary), excerpts from the Digest of Justinian, and some curious legal documents like the Senatus consultum de Bacchanalibus.  Part of the skill set developed in the course is how to read different types of primary sources in order to approach topics in Roman law, ranging from mythical and legendary accounts from Rome’s foundation, to the highly biased speeches from the court rooms and the officially promulgated laws themselves. Framing these various readings, we will have recourse in particular to Andrew Riggsby’s monograph, Roman Law and the Legal World of the Romans (Cambridge UP, 2010), which seeks to orient the student to a wide range of topics in relation to how the Romans made, discussed, and experienced the law.

I look forward to teaching this course precisely for the rather novel way it allows us to examine Roman civilization and reflect upon our own. Not only is it a good course for any student who might be considering law school, but also, I think, it would be a great course for any student of history, social theory, or philosophy. The readings will require significant attention, and my lectures will be geared to helping you make sense of it all. This website will contain a continuous blog that will be a part of that process of constant orientation. Look here for the weekly assignments and themes.