Laura Beck Varela, Pablo Gutiérrez Vega, Alberto Spinosa led.} Crossing Legal Cultures Martin Meidenbauer )>The Use of Greek by Roman Jurists* ‘Anna Plisecka ‘The Gteck influence on all as tionable. Nevertheless, Romani of Roman supremacy Roman law was an original product of spirit, free from any for: sign influence.' Such an opinion has already been criticized from the point of view of comparative lav;? yet a further observation, this time relative to the language, fact, one of the arguments used to nist opinion is the difficulty, stressed by the f explaining Roman law in Greek terms that Latin remained the language of legal ge, when Greek was already the dominant lan In consequence it may seem that the jucists subject to Greek influences. Indeed, since Latin legal y was much better developed, it even contributed to the Gresk minology by providing a lot of loan words.‘ Nevertheless it should be observed that Roman legal literature contains @ large number of Greek quotations and the fact that whole works were written in this an- {guage similarly indicates the opposite tendencies, ‘The present paper aims at a brief overview of Greek terms and citations jurispradence from the perspective of the expanding uralism of the Empire. Since we may presume that the use of a foreign language is evidence of an effort to maintain unchanged the original context of the quotation, it is angued that it testifies to the kaowledge of a foreign legal culture. Moreover, with regarcl to the legal ut ond Byeana, Vike nin Rect, In: RY Sheth, Robert K: Remar Det font Grok East Sess cas od alan the Ag. Aust Baleimose 1969, pp. 206-207; Maron, Hugh J: Gre orm jor Rost nsatons Lesion and Avan To 4 pp 1213. 59problems themselves, it seems a fair assumption that a Greek citation -sses the jurist’s distance from a foreign legal system. sequence, ed as an indicator of cultu of the Empire and dl Se in this respect hey were not necessarily 1. Bilingualism and Multilingualism in Roman Antiquity Greek culture began to influence Central Ialy from the foundation of the Calcidic colony at Cumae ia the eighth century B.C. Nevertheless, con- sidering the initial Etruscan domination ia Rome, a more intensive contact th the Gree language could have taken place only between the sixth and fth centuries B.C, The infiltration of Hellenistic culture in that period of the Greek cults, such as those of Demeter, Dionysus, Core, Hermes and Apollo from the begin- ning of the fifth century B.C, onwat x this period of a broad open- ing up and assimilation of foreign religions there was a long pause until the beginning of the third century B.C., when the Asclepios cult Greek influence on Latin should be considered part of non, even if the first loan words were in the meantime of Biruscan. The phenomenon of linguistic borrowing is usually connected with the assimilation of foreign techniques, whereby the new concepts ar tive with their original names; the first linguistic imports into Latin accord- ingly referred to the terminology connected with sailing® and with the eult- vation of olive tres.” The ion of the Greek language was, from the second century B.C. ‘onwards, encouraged by the rent of the Roman Empire to the Bast aad led to the progres jery. Such a situation can be inferred not only from the fa pieces of Roman litera- ture were written in Greek, as for example the historical work of Quintus Fabius Pictor, but also from the numerous inscriptions composed ia wo ‘A very important group within this eategory is consti- texts such as letters of magistrates, senafus emsalta andl iingoal inscriptions Bien Ist, Romer snd Ege, Prague 1934, 60 imperial decisions. Almost all the decisions segardi 5 span a petiod of two hundeed years and were found in different parts of Greece, 9.9 Ther uniformity despite such a geographical vasiety indicates that the t y indicates ransations were all made at the same place, that is in Re Th i that is in Rome.!! They aze all redacted in KOM tnd characterise by a high degree of fet tothe Ltn ext. Sometimes chnical Latin terms are not translated, but simply transliterated." Also, the effort to preserve the orginal Latin construction ofthe phrase oe that the translations are owed to offical scribes. ‘These were probably, 4¢- cording to Rober Shey profesional ofl in parte the aerarinm or their staff.!? vis Pac the sda of “Theodor Mommsen formulated the by discovered subsequr 1 wanslation was sent direct to the interested party therefore the value of such translation ws prosuens bly equal to that ofthe osignal sna consultum ox other normative ret The language of nse wnsutons formed ding the second uy By re mained unchanged unt the end of dhe Republic.» Their technique was cal trum «sro a8 dns from that of sna cd sty and como ia aiving for each word of che original text exacly one corresponding won the teaslation, Moreover, different terms, even if synonymous, have been wand dierendy Ine aecune comand times made Son tha. Weimat 1961p. Grats 1953, pp, 12 Gate (sin 6such as Cicero? and Horace of this wanslation technique, it was used in bilingual texts writen for pedagogical use, as wel as lepal docume: ‘The imperial office appointed to answer individual questions was divided in two departments, ab gprs ltnis and ab qpistals gracs,a fact which 1 imperial mses we agh some papyrus documents official Roman correspondence in Greck terns? “The penetration of Greek also caused contrary reactions, from those in- teat on preserving Roman euleure from foreign influence. The reluctant use of foreign languages was attributed to Emperor Tiberius who, despite his perfect knowledge of Greck, avoided speaking it, especially in the sen- ate So, under his influence, famous jurist Masurius Sabinus, in fs evident tha as members of Roman Gree upper class, were acquainted Ul, The Transmission of Roman Juristic Works use of Greek in the writings of Ros between the first and the third centuries A.D. itis necessary to consider the ‘way their texts were handed down to us, for we obviously possess no direct evidence. The two principal sources containiag works of Roman jurispra- dence ate the Institutes of Gaius and Justinian’s Corpas lari Ciss, above all the Digest The former are known, with very few exceptions, only through the Veronese manuseript, which does not contain any Greek. Nevertheless, the "Cie: Defi 35. Breanne Studse (1979) 20, © Restovtze Mic * Scarano Ussan, Vincenzo: Omero testis. itaoni omechee sens sudipredensil vomane. ln: Oonponce 2000) 9, p. 381, 62 original text certainly included some quotations in this language, which ate smatked by the introductions: Graeta voce 164) ot Graecae rcem expres: sae furint, wht. sually leaves some empty Greele words are lacking, It was alseady aoticed by Wilhelm at acither of the two writers of the manuscript knew Greek All the quotations ia the modern editions of Gaius” Institutes are therefore Different texts have setved as basis for the reconstruction. Some pas. sages were integrated on the basis of comparison with the Digest or with Justinian’s Institutes, which depend strongly on Gaius. For some passages the reconstruction has been based on the Byzantine paraphrase of Justin- jan’s Institutes. The use of this text, which may seem very distant fe can be justified by the old thesis of Contardo Fettini. He at following the phrascology in all three works, that where Justinian’s ma follows Gaius closely, the Paraphrase is faithful rather to the latter than red that the pataphrast used his translation Saius in the fragments where Justiniaa’s text was close del? Such a relation between the Paraphrase and Institutiones Gai justifies the utilization of the former in the reconstruction of the latter. Nevertheless, taking into account the fact that che Greek quotations in Gaius are all re. constructed, his work can never provide decisive evidence for the use of Greek. As far as the Digest is concemed, in the Viukgata all Greek quota ‘were deleted or translated into Latin in the same way as in the Vero manuscript. Alciatus (Andrea Aleiato) was the frst to begin rec ing them, Further efforts undertaken in this direction by the late ists were published in 1529 ’s Digest edition But only Toreli’s publication, in 1553, of the Floratina, the only inanusctipt contain- ing Greck quotations, revealed their full range. ® Stademund, Gulls: Gai Tentiocae Coumeta Quatr Ui elton, Hein LW Cte. A © Pees, Cos|. Troje’s Typology of the Greek Quotations |A Getman scholae, Hans Brich Troje, analysing the humanistic critical research of the Cope Leris Cis, bas distinguished four types of Greek quotations contained in the Digest. To the first citations from clas- sical Greek literature, which were, according to ‘Troje, pare decoration, « consequence of the ancient education system, proving only the eru the jurist. Their absence would not therefore compromise the juristic meaning of the passages. This interpretation is supported by the fact such quotations were often omitted in the [7ulgata." As an exception to rule Troje reports quotations from Demosthenes and from Chtisippos re- called by Aelius Marcianus in his definition of fac (y6W0G) in the frst hook is Invitutioms (D.1.3.2)-2 Ut seems nevertheless that more su ‘can be found, and that the citation jcal Greek authors had strong argumentative force because of th impact on juristie solutions The mos case, which contradicts the opinion of Tr the controversy between the different schools of thought among the Roman jurists concerning the xela- tionship benween exchange and sale "The second, and probably the broadest, group of Greek tinguished by Troje contains single words and expressions peat the notions previously mentior - Jar saying. Their aim is to render in precise terms a legal problem or to in- dicate a Greek etymology. Troje has pointed out that they are often trans- lated in the Vingeta vers ‘The thied, probably the most interesting, group is composed of around 20 texts from the easuistie Roman literature containing quotations of cases tnd questions raised by Greek-speaking inquirers. Most of these passages Goreert C.J: Auctrias Postaras The forranes of legal argament I ‘Dane Naser Estee Lapel istry fr Dad Dans Eanvurgh London sah, DS1162552 Ga 10a 16523844 Pap.7 mp 33.721 i 8 aed 438.222; Dats mpl the expression EV Ans Ul. 27 ad 133.3; Lab. 7 pith o Pan it D223. Tul 54.dp DAGATS Up 80 a ob DAG8.122. Tho in 25, pp 13-4 1D.19.2256; Pomp. end D50.16239.2 rad, af 3810-0. Pal. 3 64 | | are taken from a jurist active between the late Antonine and the early Sev- eran periods, Q, Cervidius Scacvola: 11 texts derive from his Digsia and four feom his Repponsa. Four other passages come from Ulpian's pupil, Modest d only one from the Responsa of Paul, As Troje has estab- lished, the idgate usually gives a word-by.-word ion in these cases"® The fourth group contains extracts from works entirely in Greek by the Roman jurists. The majority of such fragments derive from the six- book treatise De exxusationibas by Modestinus (D.27.1.1-15)." Troje pre- ithout a sound basis, that the whole work was originally conceived in Latin.” The above-mentioned classification leaves out quotations from imperial constitutions issued in Greek and juristic works written in Latin, but la- belled with Greek titles. Such cases cannot be classified under any of the four headings of Toje Moreover, his cassfenton far fom beng exe tive, does nor take into consideration the legal relevance of the quotations, Therefore ‘ioe’ chain wil not be flowed in the pene ae unless exceptionally for the sake of abbreviation. 1V.Greek Quotations as a Symptom of Linguistic Changes in Latin ‘The use of Greek in Roman juistic literature has to be comsidere as a part of a wider linguistic phenomenon affecting Latin in generat! Cue tural exchange and widespread bilingualism led to changes in both Jan- guages? fo the mechanisin of linguistic borrowing from Greek into Latin of Ligeia Hoe ns Lang (980) 26, pp. $= Fro Disasine Maan 97 leah Jeng Os enone pp. 367-88 210-31; Braun, Petes Conmet and Language Change In: Amana Resin of Anta (1984) 65corresponded the opposite, but unfamiliar, mechanism of importation of reek. sof linguistic borrowing can be identified in Latin, On. reproduce foreign 1 age. They can be formally independ- consist in its translation. On the other ‘we know of lexical borrowings in case the borrowed word can adj ss of the new language. The « is to Greek lexical value, usually to suggest the identical sense of both. lents, or the latter could represent former. In this way the Greek techa terms to specify their meaning ‘The present research deals principally with these hotrowinge ~ th borrowings of the second kind ~ and examines them with regard to the correlation between linguistic import and the or same reason another vast group of longer passages in Greek a8 well a fe freedom of expression, ven Latin In this sense Quintilian still stresses the el pes given by Devore ies la Varn 252192 an 3.65, Devote on the other the aristocracy was assimilat- of Greek origin.” f semantic borrowing can be found in opus Icatum the Augastan jurist uses two ‘Asoo. and Epyoy, stressing that the Latin expression hhas to be understood rather as the former than as the leer. Labeo refers hhere not to the common language, but to the precisely defined a zal concep of dacatincondueto operi. ular kind of borrowing is constituted by Greeks titles given to works entirely written in Latin! Numerous examples of this kind ftom every period can be foun Mucins pontijs, Pandesta: of Ulpian and Modestinus, as well as the and finally De fermula bypothecaria of Paul, This group, completely left out by ‘Troje, nevertheless furnishes interesting examples of the importation of Greek literary genres, implying new means of juristic exposition and sys- ‘tematisation. Devoe (asin §), 9.224 %* Paul 2a ed D50165.1: Op lato ondase' is rit Lab sii ii ops, good Gras ous agua pam Pal 2 a noréAeoyee ued woe B70, id ture 150.1654: By bite of gp Lac sys that Greeks ell ofa not chat which they selon le disivion de Labson in: TR (1982) 50, pp plntin soptam, Freiburg 2003, pp, 273-87 * Grek ies were given tothe Lan wouks nat ony by the work, lost already ia his dimes, Elocraand Veron Bac Tree 10 erV. Auctoritas poetarum ven if Homer is the inc their writings only ding the Juo-Caucan afier his reception in Roman literary culture by Tv ist Latin poet who, notably of Greek oxi cited: Homeres in Odjssia ait (D.32.65.8). As far Homer in the legal literature was connected wi ied above, on exchange and sale, The Sabinus in support of his of of ale descends from exchange, derpin the opposite view. For the lateer fered because with respect the late wa ‘buyer from the sellet, and therefore the parties to the contract could not be identified Iti a further interesting aspect of this controversy th. Sabinians, relying on Homer alone, adduced no juristc a port their opinion, the technical argumentation of the Proculians was also not sufficient to over audtirtas oF the poet. In consequence theit view required 2 ‘based” argument as wel, invoked in reality accord- ing both to Justinian’s Instiates (323.2 sed Provall senenta ....merito prac ae contend ns G3. Gal 4d XIT 2 janet bythe Romas See rats ciat| “Tina. 326545 Mas sah S066 prsPal 3 fed Da Pap fp, D32t09 1) Mo 12 unde DSBIOAG Up. 2 dal Da ob po pop 4819 16 Sele Maan, Fppo: Omero ole Poa In: IDR 927) 37%; gunenly shout the presence of Homerin Roman cule p37: generally rs nner tomchen Rechte. re TR 26) 72, 68 t | all, cane eb ipsa ais Homers versione adiatur (8.23.2) by the final winner of the co "The poetry quotations in sidered much more set Sabiaian use of Homer, an author regarded as a reliable so cient times, could have had a mainly historical character. B a display of on; rather, it was above all a technical angum legal institution” Moreover, according to Vin- Issani, in his recourse to Homer the jurist Sabinus followed Roman and Hellenistic philosophers and rhetoriclans who identified Greek authors as the founders of their disciplines; in chis case Homeric citation could help attribute the status of an arr to jurisprudence as well® and their Paraphrase Vi.Greek in Legal Works as a Symptom of Legal Pluralism According to the Dutch scholar Govaert CJ. no traces of legal pluralism and the eadly Prine van den Bergh 1¢ Roman law sources from the Republic testify to the vitality of local regulations under the ‘existence of different laws can be taaced thtough the imperial con- “The most interesting in this context appear t0 be the extracts from easu- istic, or ‘problematic’, works of Roma which constitnee the cid group in Troje’s clasitication, together in Greeks, which form the fousth group, as wel of account fro In the casuistc literature the factual circumstances are mostly reported in the original Greele language, whereas the legal question and the advice iam in Roman Lave, In: Th ih Jai (1969) 4, i LyalCatres, New York 1992, pp. 4 in Papinan i Au mean Espey Rama a,given by the jurist are in Latin. Such a situation atose from the fact ceases put forward by the inhabitants of the Eastern py lated in their mother tongue, whereas the Roman jurist cither advising his client o¢ publishing the collection of su tant aspects of provin- scholasship ascertained 14 references to the Greek acter is concerned, one of the Pars fterarum divi Hadrianiy same nature, D.142.9: “ABloorg Evdaripovoc Boordéa; Paul, 20 rep. D.A9.1.25: Atroxpdeap ‘AdEcVop0G TO oI) taav év BrOvvigr EAArfvov}. Another group of six documents are cither reseipta, iterae oF gpiradas, because they employ the verb reser, an indicate all these constitution types Ulp. 3 den Werken der kasuntscher (asin G0), 9p. 223.24, © Neer far Rss (en 20) pp. 1-4 rected to communities whereas only two are addcested to individuals, one of whom bears a Greek and an .3), Alexander Severas (Paul. 20 rap. D.A9.1. 10 Antoninus Carzcalla (Uh jan scholar Aldo Dell'Oro maintains ym the Severan age, the Greek issued by these emperors are les frequent “According to Aldo Dell'Oro this fact tell during the Antonine « Greek language cons emperors.” As a final symptom not only of bilingualism, but also of legal ploralism, wwe have the juristic works written entirely in Greek, usually by authors of Eastein origin, Many of them spent a long time in a Greek speaking, prov- ince. ‘The first work of this kind known to us is the commentary Ex: le Rodis de tart, published by L. Volusius Maecianus during the Antonine pe- Communies of auc of Asia (Mod, 2 ext, D.27.1,52) ofin Ostia, was probably of African origin and later ice king) of Aggpis7 The only quotation from jon does nc book refesence it is probable that the compiles their disposal. Probably for the same reason Indec Flornsinus, Tis atribotion to Maccianus, contest and Fritz Schulz, is generally accepted sposed in Greek on ied grounds for refusing a guardianship ot curatorship (De excusation- Ta his introduction he mentions the difficalties besetting an adequate description of Roman legal institutions in Greek terms. Moreover, he de- ‘ides not to translate textual quotations from Latin, so that they can be (D.27.1-ipr-2). These Latin quotations detive from impe- s as well as from Ulpian's of Paul's Respond, Because the work of Modestinus, destined probably for the Norther part of Asia Mi- nor, is not excerpted in the tile De exxusations of the Fragments Vatcana it was pr thc West. Some older scholars defended the par- allel existence of a Latin version from the sixth or seventh century o2- ‘wards, but Motmsen had already argued convincingly that the Latin text, se Bann, eo ote cree wu opere which appears in some manuscripts in place of the mor thanamaleval anions? nn ee One Sn0thing ‘The three works mentioned above are the only works o pence wie ene in Greek, cea popil of Papinian, Paul, wrote Ad formulam bypotbearen Her , Paul, frentan bypetbecriam liber single's, 4 otk of which only’ the Greck syed de is presered” Bu Aca Marcianus, another Severan jurist from the Hellenistic Bast, certainly wrote same topic. Hellenistic culture served as ¢ comn id and as a reference : well 26 for other members of the upper classes. A icuous presence of Greck citations in Roman jurisprudence testifies calture also in the domain of law. Moreover, it al systems prompted some theoretical ce ely neglected, which depend 01 character and the legal pluralism of the Empice, © Mocamsea,Theodon PN Digest Ian’ Agu eto main). Adstametun TT Ves ta Tat XVI}, all, Bera 1962, pp. 35°