“Roman law shows an astonishing openness towards foreign legal customs”
Interview with Éva Jakab on Greek customs in Roman inheritance law
The transfer of assets from one generation to the next is a key social process, and already had a legal framework in antiquity. Dealing intensively with ancient inheritance law, legal historian Éva Jakab often comes across cases that contradict the universally valid Roman legal norms. In this interview, she explains the origins of this legal pluralism and how Roman legal scholars came to terms with it.
Professor Jakab, what were your expectations when you took up your fellowship, and how far have they been met?
In July 2022, I had the opportunity to take part in a Käte Hamburger Kolleg conference. Even then, I realised that the central theme of the Kolleg is closely linked to my current research, and I therefore decided to apply for a fellowship. It was a great pleasure to be awarded one. The Kolleg has far exceeded my expectations. There is a very good working atmosphere here: excellent academics who engage in open, honest dialogue and are friendly and helpful to each other. The two directors of the Kolleg, Ulrike Ludwig and Peter Oestmann, are outstanding scholars that you can learn a great deal from. Personally, the “Conceptual Forums” that have taken place so far have also helped me a lot, and I am currently restructuring my forthcoming book according to the new concepts I have learnt there. I have new intuitions that inspire me to “rethink” things once more.
Currently, you conduct research on Roman inheritance law. Which sources do you work with in particular?
To gain a contextualised understanding of the phenomena of legal life, it is useful to consider a wide range of sources. Traditional sources include the writings of Roman legal scholars and the constitutions of the Roman emperors that have been handed down in the form of the legal codes of Emperor Justinian. The works of ancient authors, be they historians, philosophers or writers of comedies, also provide a valuable insight into how contemporaries understood certain legal norms. Legal documents, captured on various writing materials such as wooden tablets, wax tablets and papyrus, are also very important. The documents provide an insight into practice: which contractual clauses were agreed by the contracting parties, and how a trial was prepared and conducted. Inscriptions can also be a valuable source for legal-historical research: the inscribed city charters, for example, contain many regulations on administration and the court system.
„Inheritance and bequests were closely linked to the status of citizenship”
How did Roman inheritance law differ from inheritance law today?
The transfer of property by way of succession played a very important role in Roman society. Members of the higher social classes had their first will and testament drawn up as soon as they reached the age of majority. Testamentary dispositions were also a means of political “friendship” that people were wise not to neglect. However, inheritance and bequests were closely linked to the status of citizenship. In principle, Roman citizens were only allowed to appoint Roman citizens as heirs or legatees. Testaments in favour of peregrines, i.e. foreigners who did not have Roman citizenship, had no effect until the 3rd century AD. Inheritance and bequests were so significant in social and political life that legislators always kept a watchful eye on them.
You are particularly interested in exceptions to the universal law, i.e. cases where Roman citizens drafted their last will and testaments according to local legal customs. What were these customs, and why did some people fall back on them?
The Roman Empire covered an enormous territory. Roman citizens lived not only in Rome and the surrounding area, but also in distant provinces if their offices or business took them there. In addition, there were a large number of “new citizens” who were granted Roman citizenship because of their service, for example in the army. The population in the eastern half of the empire, for example in the Greek cities of Asia Minor, always retained their own cultural roots. The Greek language and Greek legal concepts largely shaped everyday activities. They differ particularly strongly from Roman law when it comes to inheritance law. In local (Greek) notarial practice, for example, it was considered completely unproblematic to write a last will and testament as a legal transaction between living persons. For example, a safekeeping with third-party effect was used to deposit a large sum of money with a trusted person who only had to hand the money over to the actual beneficiary when the latter reached the age of majority. Romans who lived in a Greek environment also sometimes wrote their last will and testament according to such “local forms”. However, these “non-Roman” legal transactions were highly problematic due to the mandatory norms of Roman inheritance law.
How did the judges deal with such exceptions?
If a dispute arose between potential heirs, then a Roman court judge or a legal scholar from the imperial chancellery had to interpret the last will and testament according to Roman law. There is no doubt that in some cases the foreign practice was rejected as invalid. In other cases, however, we can observe that the legal scholars attempted to interpret the facts according to the concepts of Roman law in such a way as to preserve the will of the testator. Exceptions were therefore not only often tolerated; they often even served as the basis for the development of the law. Roman law shows an astonishing flexibility and openness towards foreign legal customs.
Did the inhabitants of the provinces also have to abide by Roman law, or were they allowed to maintain their own legal customs?
The inhabitants of the provinces without Roman citizenship were free to conduct their private legal transactions according to their local legal customs. In principle, the Roman authorities did not apply any coercion in this respect. However, a certain spontaneous “assimilation” can be observed, as, when concluding a legal transaction, the parties often took into account the chances of enforceability.
The questions were posed by Lennart Pieper.