Gustafson, 'Emperors and Lawyers', Bryn Mawr Classical Review 9510
URL = http://hegel.lib.ncsu.edu/stacks/serials/bmcr/bmcr-9510-gustafson-emperors
@@@@95.10.17, Honore, Emperors and Lawyers, 2nd ed.
Tony Honore, Emperors and Lawyers. 2d ed. Oxford:
Clarendon Press, 1994. Pp. xvii + 252. $55.00. ISBN
0-19-825769-4.
Reviewed by Mark Gustafson -- Calvin College
We have all been warned to avoid judging a book by its cover.
But on the dust jacket of Emperors and Lawyers (which was
first published in 1981, generated a fair amount of controversy,
and has now been completely revised) is a photograph of a
portrait head of Diocletian looking serious, even grim, the
battered veteran of much conflict a labor, staunchly standing his
ground. The correlation of this image to the strikingly
belligerent tone of this revision is remarkable, if not uncanny.
The frequency with which Tony Honore (hereafter H.) bristles and
then angrily strikes back at his critics ultimately casts a pall
over an interesting, valuable, and much improved book.
H. examines 2,609 imperial Latin rescripts from 193-305 C.E.
(95% of which are found in the sixth-century Codex
Iustinianus) in chronological order, a remarkable achievement
in itself. Through stylistic analysis he identifies twenty-one
periods of consistent style which reflect the work, not of
emperors, but of lawyers (that is, imperial secretaries in the
position of a libellis or, later, magister
libellorum). Unfortunately, few of these individual lawyers
are identifiable, and yet it is H.'s design that they
collectively be considered a significant part of later Latin
literature.
The first two chapters of this new edition, which is one-third
longer than its predecessor, have been entirely rewritten, and
the other two thoroughly revised. The most important new
feature is a Palingenesia of all the rescripts in database form
on an enclosed diskette. The intent is to allow the reader to
follow along with H.'s stylistic analysis. Another important
change from the first edition is that H. has "paid more
attention...to ideological factors" (xii). H. acknowledges his
special debts to the work of Detlef Liebs, and to Fergus Millar,
with whom he has agreed to disagree. Millar's objection, that H.
previously presupposed too bureaucratic a model of the Roman
government (see "A New Approach to the Roman Jurists," JRS
76 (1986): 272-80), has been accepted up to a point. H. says a
bureaucratic model need not be implied, while persisting in his
argument that lawyers had a recognized role in a government that
was "not a pure autocracy" (xii). This book thus represents a
variant on Millar's very influential model of imperial
administration (set forth in The Emperor in the Roman World 31
BC - AD 337 [2nd ed., 1992]).
Chapter One (the title of which, in an apparent nod to Millar,
has been changed from "The Emperor as Lawyer" to "The Emperor in
the Legal World") "puts the case for the view that in substance
rescripts were a type of legal opinion given by the lawyers who
held the office of secretary" (1). H. says that, beginning in
the Republic, lawyers were intellectuals who interpreted, rather
than made, the law and who maintained this "independent function"
(3) into the third century C.E. Most of the chapter is a summary
of the emperors up to Diocletian and how they dealt with lawyers
and legal opinion. H. admits that much of the emperor's activity
was conducted orally, which serves to weaken his basic argument
that rescripts were nearly always rulings by lawyers. As he
reiterates his contention that rescripts reflect the lawyers (and
their assistants) and their ideologies, rather than the emperors
and theirs, he admits at the same time that Millar may be right
about the emperors' greater involvement. This may appear
indecisive, or it may seem that H. wants to have it both ways,
but more likely it indicates the sensible middle ground between
two views that need not be mutually exclusive. "Admittedly," H.
says, "this is a subject on which further research could shed
light" (32). Might we not expect this of a "completely revised"
edition?
Chapter Two, "Rescripts: System and Style," considers how the
rescript system functioned, how one went about getting a
rescript, where rescripts are found, and lastly (and most
problematically) how H. analyzes their style. H.'s discussion of
procedure is "a possible rather than a generally accepted view"
(43). The reader may find further cause for vigilance when
learning that approximately one thousand of the texts which H.
assumes to be rescripts may in fact be letters. The provisional
nature of at least part of the foundation on which he builds his
thesis is thus made plain.
The last part of the second chapter forms an important prelude
to the final two chapters, and is a vast overhaul of the first
edition. H.'s controversial contention is that a reading of the
third century rescripts in chronological order will indicate
changes of style which normally do not coincide with changes on
the throne. Hence H.'s argument that the emperor did not write
rescripts, and his identification of twenty-one coherent periods
of style. H. admits that his conclusions follow only if his
thesis is correct, but to this apparent hesitancy he adds the
comment that a "competent scholar who reads the text
chronologically" will come to the same conclusions as he has
(57). This signal for all incompetent scholars to beware is H.'s
petulant challenge at the weakest point in his argument, because
the demarcation of stylistic periods, at least according to H.'s
methods of analysis, is an inexact science at best. And now it
becomes clear that the real bee in H.'s bonnet is Alan Watson,
whose scathing criticism of the first edition (Tijdschrift
voor Rechtsgeschiedenis 50 [1982]: 409-14), especially with
regard to H.'s "subjectivity," stings the most.
H. lays out his methods of analysis, based on "carefully
scrutinizing striking words, turns of speech, and modes of
thought" (57). He also considers the length of rescripts, their
logical structure, syntax, word order, and vocabulary. This
allows H. (and all other competent scholars, presumably) to
notice qualities of "self-confidence" and "directness" (60), and
to "cultivate a feeling for the general colour of a man's style"
(61). Fingerspitzengefuehl is required, and this is
surely not out of line with systematic textual criticism. And
yet, given the various and inescapable difficulties--the brevity
of the rescripts; our inability to identify all of them as such;
the likelihood that the lawyers' assistants (who, while they
surely existed, are even more obscure) sometimes had a hand in
composition; the lawyers' putting on of "airs" (74); and the
frequent necessity of positing an "overlap" between periods,
during which the new lawyer composed rescripts in his
predecessor's style--, the at least partially subjective nature
of H.'s efforts is both necessary and undeniable. The
limitations of the evidence can not be fully overcome, no matter
how sure one's instinct.
Even more difficult than the demarcation of periods of style
is the task of identifying secretaries. Here H. admits to an
"over-ambitious" aim. But, he declares, "I think I have a good
sense of style, and one that has led to discoveries worth sharing
with others" (70). To this touchy and self-conscious statement,
which only intrudes and invites further misgivings, he adds:
"Those who disagree with the premise will no doubt disregard the
conclusions" (70). This, one would hope, goes without saying.
Chapter Three covers the period 193-282, in which H. finds
fifteen periods of office. He feels certain of these, but adds
"there must in reality have been many more" (71). "The main
problem my method presents is to detect changes in drafting
style" (75). Forthright and unapologetic statements such as
these are welcome. One wishes H. might, more consistently and as
gracefully as this, shoulder the responsibility for conjecture
and subjective judgments. How else does one explain why H. has
decided that no word or phrase may be counted as an indicator of
style "unless it occurs four times as frequently in the given
tenure as in the others" (75)? (Compare the slightly different
guidelines on p. 144.) There follows a lengthy discussion of the
individual secretaries and their distinguishing characteristics.
Two secretaries from this period, Papinian and Ulpian, are
identified with certainty; four possible identifications are
made; the rest are unknown.
Chapter Four identifies two and possibly three more. It was
Diocletian, as H. says, who "exploited and transformed the
rescript system" (139). Secretary no. 20, Hermogenianus, to
whom H. ascribes 918 rescripts, far more than those ascribed to
any other, is an especially impressive figure. H.'s discussion
of him and his important place in the history of law is
appropriately expansive. And then, as H. shows, it was the new
codes (Codex Gregorianus and Codex Hermogenianus)
that served to undermine the rescript system, since new rescripts
"no longer contributed to the evolution of the law" (185). From
this point, lawyers could create new laws only in the imperial
consistory.
H. handily succeeds in his aim of illuminating the significant
role of lawyers in the rescript system. While many of the
details are debatable, the overall picture must be inserted
somehow into Millar's broader view of the functioning of the
imperial administration. Less successful, but inevitably so, are
H.'s efforts to identify stylistic periods and individual
secretaries. The adjustments made here since the first edition
are indicative of the provisional nature of the evidence and its
interpretation. With the addition of the diskette, this book's
convenience as the site of the corpus of third-century rescripts,
with limited commentary, is enormously valuable. Finally, it
must be said that, had H. been more comfortable with the vigorous
debate generated by this material and his methods, this second
edition would have been more impressive. The best response to
criticism is in the newly bolstered argument; blatant antagonism
is better left to other arenas.