Bagnall, 'Settling a Dispute: Towards a Legal Anthropology of Late Antique Egypt', Bryn Mawr Classical Review 9510
URL = http://hegel.lib.ncsu.edu/stacks/serials/bmcr/bmcr-9510-bagnall-settling

Traianos Gagos and Peter van Minnen, <i>Settling a Dispute:
Towards a Legal Anthropology of Late Antique Egypt.</i> Ann
Arbor: University of Michigan Press, 1994. (New Texts from
Ancient Cultures 1.) Pp. x + 150, 5 plates. $44.50. ISBN
0-472-09590-0 (hb). $24.95. ISBN 0-472-06590-4 (pb).
  Reviewed by Roger S. Bagnall -- Columbia University  
     bagnall@columbia.edu

  The title announces one of the two linked elements that Gagos
and van Minnen give us in this book: a general discussion of
dispute processing in Egypt from the late third to mid-seventh
century as reflected in Greek papyri (a list of 41 settlements of
disputes is given on pp. 121-27). The other part is the hook on
which this discussion is hung, the full publication of a long
papyrus of the sixth century in which the settlement of a
property dispute is recorded in detail. Both parts make
substantial contributions to our understanding of late antique
Egypt and of the social context of law in the later Roman world.
For reasons to which we shall return, however, the two elements
are not really very closely connected. The volume is the first in
a welcome new series from the University of Michigan Press,
providing a local venue for publication of papyri and other new
texts, something Michigan has not had since the disappearance of
the Humanistic Series of the <i>University of Michigan
Studies</i>.

  The document is certainly an impressive and interesting one,
complete except for probably three lines lost at the start
(containing the date, alas; Gagos and van Minnen argue for ca.
537)[[1]] and a few largely abraded lines at the end of the
signatures of the witnesses. Otherwise only small holes--rarely
difficult to fill--interrupt the majestic flow of 113 lines of
notarial Greek. The first 24 lines, preserved in the Vatican
Library, were published in 1980 by R. Pintaudi as
<i>P.Vat.Aphrod.</i> 10; they are given here in an improved text.
The rest were discovered when a roll in Michigan was opened more
recently. The papyrus belongs to the archive of the poet, notary,
and landowner Dioskoros of Aphrodito, one of the central figures
of the documentation and study of sixth-century Egypt. A good
introduction to the archive and its setting--not at all a typical
village of its time, the editors rightly note--is given here (pp.
8-23); it continues to be a lively area of research.[[2]] This
roll evidently came into Dioskoros' hands as part of the papers
of his father Apollos, who represented the parties to whom it is
addressed.

  The principals on his side were Phoibammon son of Triadelphos
and his wife Anastasia alias Tekrompia. Phoibammon is a
well-known figure, studied in a classic article by J. G.
Keenan;[[3]] he was a landowner, middleman, and lender in the
village of Aphrodito, important because he shows that in economic
relations between villagers and urbanites the villagers were not
always the ones who lost their land. The present papyrus allows
us to see that his wife was a cousin of Dioskoros, the daughter
of a sister of Apollos. The other party is one Nikantinoos,
otherwise unknown, who is, although originally from Aphrodito,
now living in Antinoopolis.

  The dispute concerned a piece of property, probably a
vineyard, in Aphrodito, which had belonged to Nikantinoos'
parents. They had mortgaged it to an unnamed couple who drew the
mortgage up to the benefit of their son Joseph.[[4]] After the
parents' death, Nikantinoos' nieces and nephews (named Eudoxia,
Antonia, and Kollouthos) sold the property to Phoibammon and
Anastasia; the mortgage, however, has been paid off by
Nikantinoos. In the settlement, Phoibammon and Anastasia pay
Nikantinoos a substantial sum--7 solidi plus 20 artabas of wheat,
or roughly the equivalent of four years' income for an ordinary
worker--and Nikantinoos renounces any claim to the property,
turning the paid-off mortgage document over to Phoibammon and
Anastasia.

  So much is clear; but the settlement is interested in
preventing future litigation, not in giving a precise account of
the past dispute. So we do not learn why Nikantinoos is a party
to this dispute: Was he a partial heir? Gagos and van Minnen
suggest that the three sellers were left the property,
Nikantinoos the debt, but there is no evidence for this. We know
nothing of the terms of his parents' will, nor if Nikantinoos'
sibling (and parent of the trio)[[5]] is still alive. Why are
Phoibammon and Anastasia willing to pay such a large sum to
Nikantinoos? Who initiated the dispute? Gagos and van Minnen
assume (e.g., on p. 123) that it was the buyers, but there is
again no evidence for this view.

  The editors' view of the matter is most fully set out on pp.
23-26, although they do not consider why if, as they believe, the
purchasers' position was vulnerable, they did not proceed against
the sellers for having sold them an encumbered property. The sale
no doubt contained a guarantee of freedom from such encumbrance
and an undertaking to repel all comers. What case could the
buyers have against Nikantinoos?

  Although I cannot argue the case in detail here, it seems
worth considering the possibility that it was Nikantinoos who
launched the litigation. If he inherited a share of ownership in
the vineyard, along with a brother or sister, and if the
survivors of the sibling sold their share, he might well find his
position intolerable, faced with co-owners he did not want and a
debt burden ignored by the new co-owners. We cannot know the
details, but this settlement would then be an outcome in which he
was fully extricated from the entanglement and probably made
whole or something close to it.[[6]] After all, it would be most
remarkable for Phoibammon and Anastasia to initiate litigation if
their case was so weak that it led to a substantial payment.

  The skepticism about the editors' reconstruction that I have
expressed does not in the least detract from a fine professional
job of editing: a sound text[[7]] and apparatus, a good
translation (occasionally marred by unidiomatic English or the
importation of too free an interpretive rendering), and an
excellent commentary, amply documented with parallels and
bibliography. The plates at the end, although small, make it
possible to check most readings.[[8]]

  The general discussion of dispute processing occupies sections
9-10 (pp. 30-46) of the introduction. Gagos and van Minnen argue
that mediation and arbitration are forms of social discourse and
not only of legal action. They point out acutely that Dioskoros
owned a manuscript of Menander's <i>Epitrepontes</i>, with its
arbitration scene; more generally they see the use of settlements
as part of the Romanization of Egypt. Moving on to propose an
anthropological aproach to legal aspects of developed society,
they try to understand the role of consensual settlements in late
antique Egypt.

  I have no doubt that they are right in their invocation of the
parties' existing relationship as a key consideration, along with
the object of controversy, in the manner of conducting the
disputing process. That the restoration of social relations is an
essential part of the resolution of such a situation is hardly a
new idea, even for Egypt,[[9]] but Gagos and van Minnen give a
sensible discussion of the point. Their concluding expression of
"hope to have shown that a satisfactory picture of settling
disputes in late antique Egypt is only possible if we take the
social context into account" (p. 47) is almost poignant when one
considers our inability to do just that for the papyrus they
publish here.[[10]] If we knew who Nikantinoos' family were and
how they were connected to the power elite of Aphrodito--in which
Apollos as <i>protokometes</i> was a key figure--it would be much
easier to approach some of the unanswered questions that this
settlement poses.

  Gagos and van Minnen also try to come to grips with the
question of why settlement documents are so numerous in late
antique Egypt. They suggest that the growing complexity, cost,
and duration of litigation drove people to use arbitration and
mediation more extensively; but the growing difficulty of
litigation is only postulated, and the notion that this could be
a "byproduct of the codification of Roman law" (p. 40) is more
than a little paradoxical. It is not as if it was easier to
determine the law <i>before</i> codification, after all. And with
the subdivision of the province of Egypt by Diocletian, the
ultimate appellate court for a province would have been closer at
hand than it ever had been for most Egyptians. The hostility of
Christian thinking to litigation among believers (evoked pp.
44-45) may be a more promising candidate, but then how to explain
the revival of the use of the courts by Christians after the Arab
conquest (p. 42)?[[11]]

  All of the above makes it clear that we should take seriously
the word "toward" in the subtitle. The authors make no pretense
of having offered such a legal anthropology. What they have done,
and done with imagination, intelligence, and zest, is to sketch
out the approach they favor. That they cannot realize their
project for the papyrus they publish is symptomatic of the
difficulties that stand in the path. But we are much indebted to
them for both their edition of this enigmatic papyrus and a
formidable challenge.

NOTES

[[1]].  The basis is shaky. On p. 23 the editors establish the
range as 527 (accession of Justinian, mentioned in the oath
formula) to 538 (Apollos leaves secular life to found a monastery
and becomes Apa Apollos). They then (pp. 110-11) argue for 537
specifically because the one precise parallel to the oath formula
falls in that year. That seems, even if true, hardly adequate to
support a speculation; and it is not true. In the article on oath
formulas by K. A. Worp cited on p. 110, we find that <i>SB</i> V
8029 does not give "the exact wording of this oath formula," and
there are another four documents without precise dates that have
the same formula as <i>SB</i> V 8029. It is hardly likely that
all date from 537. 

[[2]].  A long discussion (pp. 10-15) treats <i>P.Cair.Masp.</i>
III 67283, a petition to the empress Theodora dating to 547/8,
which bears the signatures of the power elite of Aphrodito. The
claim that the petition was signed at "a general meeting of the
adult male inhabitants of Aphrodito to discuss the petition" (p.
13) is hardly likely to be right; there is no evidence for such
town meetings. A similar idea of village institutions can be
found in the same authors' article, "Documenting the Rural
Economy of Byzantine Egypt: Three Papyri from Alabastrine,"
<i>Journal of Roman Archaeology</i> 5 (1992) 186-202.

[[3]].  "Aurelius Phoibammon, Son of Triadelphus: A Byzantine
Egyptian Land Entrepreneur," <i>BASP</i> 17 (1980) 145-54.

[[4]].  Joseph, as things stand, is nowhere given a fuller
identification. This leads the editors (p. 86) to suppose that
"the identity of Iosephius is not really important in this text."
I think that it is impossible to have introduced his name in such
a cavalier fashion in a formal legal document. Gagos and van
Minnen reject the idea of restoring a patronymic--the minimum
legal identification--in line 12, because "the space is too
short," and they restore UI(OU= there instead. But there
<i>are</i> four-letter patronymics in common use, like BHSA= or
MHNA=, so this argument is unconvincing, and UI(OU= is in any
case redundant (even by the standards of this prolix notary).

[[5]].  Who are not inheriting from an aunt and uncle, as the
editors say on p. 88, but from grandparents.

[[6]].  Note that in lines 57-61 it is Nikantinoos who is
renouncing the possibility of future legal action. It is of
course possible that another <i>dialysis</i> was drawn up by/for
Phoibammon and Anastasia.

[[7]].  I am referring to the "transcription" (pp. 67-73), which
is a traditional papyrological text with annotation. The "reading
text" given opposite the translation (pp. 50-63) has its
attractions, and in a papyrus with few restorations it is not
seriously misleading. But the absence of brackets means that
restorations are presented on the same footing as preserved text,
and with most papyri this would be a disastrous practice.

[[8]].  A few technical grumbles may be registered here. Though a
full publication, this has no volume number in the <i>Michigan
Papyri</i>, no serial number for the papyrus, and no abbreviation
proposed by the editors. The insistent Latinization of proper
names in transliteration produces "Muses" (p. 61) for MOUSH=S,
which is for MWUSH=S, Moses. On p. 118 there is twice a
cross-reference to an apparently nonexistent note to lines
108-110.

[[9]].  E.g., D. W. Hobson, "The Impact of Law on Village Life in
Roman Egypt," <i>Law, Politics and Society in the Ancient
Mediterranean World</i>, edd. B. Halpern and D. W. Hobson
(Sheffield 1993) 193-219; R. S. Bagnall, "Official and Private
Violence in Roman Egypt," <i>BASP</i> 26 (1989) 201-16, both
cited in the bibliography of this volume.

[[10]].  For that matter, even deciding if this is an arbitration
or a mediation seems problematic, despit the clear distinction
drawn on pp. 30-31, where they opt for mediation. So too pp. 26
and 123; but in the paragraphing of the reading text,
translation, and commentary, they describe lines 17-28 as an
arbitration. The latter is right, I think: the friends
<i>decide</i> (E)KUKAI/WSAN--as the editors note, p. 91, a legal
term) what is to happen, and the decisions are referred to later
as KRI/SIS (line 30) and TA\ DO/CANTA (lines 36, 54, 73, 100),
the language of decree, not mediation.

[[11]].  On the other hand, Gagos and van Minnen are surely right
to reject intra-Christian confessional differences as an
explanation, p. 43.