INTRODUCTION: LEGAL STUDIES IN THE 21ST CENTURY

Sven Günther

IHAC, NENU, Changchun

To what extent is law a closed and autopoietic, and to what degree is it an open system interacting with other social structures?1This is also one of the crucial questions Aryeh Amihay asks in respect of his constructed “Essene Law” (Amihay 2017). On the one hand, the author dismisses research views that attempt to deny a common basis in the so-called Dead Sea Scrolls, or try to describe them only in Rabbinic terms; on the other hand, he applies legal and socio-linguistic theory to the extant texts to show to what extent the essentialist sphere communicated with the formalistic one, or in other words: how could strict divine law be used in a world that was far removed from perfectly having been determined?This complex question can be regarded as the underlying guideline of the present survey of Ancient Law. The historical development of law, and private law in particular, was not the focus of historical and philological studies in the twentieth century. Attention was paid to certain statutes of prominent law-givers such as Hammurabi or Solon, or grand law codifications such as the Twelve Tables. But, in general, legal history remained the preserve of scholars versed in law, continuing the tradition of developments of the nineteenth century, especially in the field of Roman Law.Although old-fashioned and peripheral, their systematic legal approach made invaluable contributions to our understanding of how law worked in ancient societies.

Why then a call for us to adopt new perspectives on legal texts? Primarily because I suspect that a systematic approach has an inherent tendency to perceive and convey the impression of a closed system, that is, an approach that fails to take account of historical developments and their relationship to contemporary political, socio-economic, religious and/or cultural contexts which is where and how specific regulation emerged. To take but one example, in a recent article, Winfried Schmitz has convincingly argued that the Lycurgan law on the “procreation of children” (Aristot. pol. 2.9 1270a 40) and other regulations regarding polyandry, marriage and the recognition of new-born children in Sparta were not an expression of a supposed Spartan separation based on a “eugenic”program but reflect the - ultimately unsuccessful - attempt to integrate freed Helots, who were badly needed as both soldiers and fathers due to Spartan losses during the Messenian War, and their children, the “Parthenians,” who had been forced to emigrate to the newly founded city of Tarentum, into the Spartan polity.2Schmitz 2017.

This example is a perfect illustration of how important it is to examine the actual context of a specific source - and this is the contribution that historical and philological methods in combination with careful legal analysis can provide,together with recent discussions about the integration of theories, models and concepts into these traditional tool-set of Altertumswissenschaften; such as the New Institutional Economics (NIE) with its emphasis on institutions forming frames of actions or principal-agent-relations;3See Kehoe, Ratzan and Yiftach 2015. For a discussion of the main hypotheses, cf. Günther 2017a,58-59.Social Network Analysis (SNA)for studying connections between actors who did not only build networks for economic purposes;4Broekaert 2015; Krüpe 2014.or the recent shift away from author-centered analyses of texts, particularly forensic speeches, towards also taking account of that of the audience and their (potential) reactions.5Alexander 2016; Steel 2016.

Comparative studies offer a further potentially fruitful, albeit not entirely unproblematic,6See Günther 2017b; see now the German SFB-project “Practices of Comparison. Ordering and Changing the World” with the initializing conference, summarized by Mayar 2018.approach to the study of ancient legal cultures. The conference series “Lebend(ig)e Rechtsgeschichte” organized by Martin Lang, Robert Rollinger, Heinz Barta and Simone Paganini at the University of Innsbruck, for example, has produced several colloquia and conference proceedings, making us aware of common concepts but also differences in ancient legal systems.7See the titles of the five already published volumes (in the series “Philippika” at Harrassowitz)under: https://www.uibk.ac.at/alte-geschichte-orient/forschung/projekte/lebendige-rechtsgeschichte.html (20.02.2018).Furthermore, four “Wiener Kolloquia zur antiken Rechtsgeschichte” have already provided a platform for interdisciplinary research, not only including different historical epochs but also fields like archaeology, history of architecture,and sports.8For a summary of the last meeting on building and building law, see Harter-Uibopuu 2016.And recently, Guido Pfeifer and Nadine Grotkamp have edited a volume on extra-judicial decisions and their relations to judicial mechanisms as well as to social and political structures.9Pfeifer and Grotkamp 2017.Despite the different degrees and sets of extra-judicial conflict solution strategies it becomes clear that those procedures challenged the authority of hierarchically structured states and their legal systems. Hence, one can observe responses in all ancient societies to frame those,sometimes very traditional, conflict-settlements, either by giving them a legal appearance (e.g. in imitating legal formulae), integrating them into legal practice,or by permitting them up to a certain level. However, as arranging juridical decisions before officials was rather expensive and often privileged the already stronger, i.e. wealthier or more influential side, these forms of extra-juridical solutions never totally disappeared though they are relatively rarely attested in our extant sources.

The diversity of crimes, their classification and punishments in different ancient cultures becomes obvious in the 18 essays compiled by Stefan Nowicki(2016). While one may disagree with the overall linear-development approach from simplicity toward increasing complexity - a differentiation that the editor reads into the contributions (cf. esp. “Introduction;” p. VIII) - the individual articles offer profound analysis of specific rules, their violations and procedures.Particularly interesting from a historical point of view are those few studies where ancient sources are treated not as mere descriptions of what actually happened(though this has of course some value for the reconstruction of legal procedures and law systems), but are contextualized and interpreted as representative of certain social systems, narratives and/or discourses. Thus, the exploration of legal inequality in Hatti and Ancient Egypt by Michaela Knollová (“Inequality in Hittite and Ancient Egypt [sic] Criminal Law;” pp. 55-74) identifies the interplay of social stratification, rulers' interests and different legal rights perfectly, through a complex leveling that could even protect foreigners - where this served the economic advantages for the ruling elite. The analysis of the rich vocabulary and broad semantics used by Attic orators to express punishment by Janek Kucharski (“How to Punish in Classical Greek Rhetoric;” pp. 93-112)illustrates that speeches did not always aim at using exact legal terminology but rather at provoking emotions among the jury-judges by connecting concepts of justice to shared moral views. In addition, descriptions of cases could differ due to the narratological concept of the author, for instance, when the senator Marcus Scribonius Drusus Libo was tried in AD 16 by the emperor Tiberius for having organized a conspiracy against him. Konstantin Vladimirovich Markov (“The Trial of Senator Libo. A Comparative Analysis of the Versions of Tacitus and Cassius Dio;” pp. 121-128) compares the presentation of the case in Tacitus and Cassius Dio and successfully demonstrates the extent to which Tacitus (with his ethical narrative on the relation between emperor, Libo and sycophantic senators)differs substantially from Cassius Dio who merely looked at the poor condition of senators under Tiberius' regime, and thereby projected the reality of his own life-time and experiences of imperial rule under the Severan dynasty into the distant past.

The importance of relating legal sources and issues to the society is programmatic in the Festschrift for Bruce Frier, entitled “Ancient Law, Ancient Society.”10Kehoe and McGinn 2017.Though focusing on Greco-Roman topics, the eight contributions spot the close links between the two spheres that are neither “primitive” nor “functional” but“complex” in their entangled socio-political, economic and cultural practices.On the Greek side, Adriaan Lanni shows that collective punishments served both, as violent and intentional measures in Athenian law, particularly where state interests or the preservation of the political system, i.e. democracy, were concerned (pp. 9-31). By applying Pierre Bourdieu's forms of capital to ancient sources, Michael Leese examines marriages in the upper class of Athens as not only pushed by mere economic interests but also framed, and thus restricted to the nouveaux riches, by the potential of transforming economic capital into social, cultural or symbolic capital; this was important especially among the “old”elite (pp. 32-45). And, finally, David D. Philips tries to overcome the debate about the exclusion of certain killings from Draco's homicide law, i.e., whether these killings were justified or just excusable, by introducing the category of“assumption of risk” whereby the person killed could expect the risk of being killed (pp. 46-65).

The following “Roman” chapters deal with communication between the legal spheres of the center and periphery with regard to regulations on river rights(Cynthia C. Bannon; pp. 66-83; see also the section on “Roman Law,” 274-275). Lauren Caldwell analyzes the relationship between nature and the human sphere in terms of justice in Aelian's Miscellaneous History (pp. 84-104). She convincingly explains how the actions of the Persian kings as described by Aelian in an anecdotal fashion reflect the theme of how to rule with justice through his use of a terminology complying with the expectations and discourses of Roman readers in imperial times, particularly during the Severan dynasty where topics like centralization of administration and severe punishments were legal issues under constant discussion. The two articles by Dennis P. Kehoe and Thomas A. J.McGinn approach the important question of the extent to which Roman law was made for the elite. Kehoe (pp. 105-132) traces mandatum back to its origins in the aristocratic sphere where trust (fides) and reciprocity in the form of friendship(amicitia) and sense of duty (officium) were the leading principles. These elitevalues framed the later legal design by jurists, while this mandatum-concept competed partly with agency by slaves (or freedmen) acting as procurators.McGinn (pp. 133-166) emphasizes that law not only served the interests of the elite, being not only easily accessible to the upper classes or persons at the fringe, but was also ultimately promoted by them, either in accordance with, or sometimes against, the interests of the less privileged - and reflected the social(aristocratic) idea of taking care of the less well off. Finally, Charles Pazdernik(pp. 167-182) points out the deep connections between the reform of the SC Claudianum undertaken by Justinian in 533, and his politico-military propaganda of libertas, both affecting the interests of property landowners.

These few examples of recent studies clearly reveal that law is no longer seen as a self-promoting as well as self-referential system, separate from the specific ancient society in which it emerged and was used. However, the scarcity of studies covering more than one ancient civilization also illustrates that communication between the different disciplines working in the legal field has not yet become very common; not in the sense of comparative studies (see above)but from the viewpoint of learning different approaches to, conceptualizations of and interdependencies between ancient societies and their particular laws. The exemplary surveys of the legal world in the Ancient Near East, Egypt, China and the Greco-Roman world has, thus, the aim of fostering communication and strengthening Ancient Law Studies.

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