ULPIAN
ULPIAN
Pioneer of Human Rights
TONY HONORÉ
Second Edition
1
3
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Preface
T H E first edition of this work on Ulpian, the early third-century lawyer from
Syria, came out in 1982. Though there had been substantial articles on Ulpian
by Pernice (1885), Jörs (1903), and Crifò (1976), mine was the first modern
study of his life and works at book length. Texts from Ulpian take up twofifths of Justinian’s sixth-century Digest, for many centuries the staple of legal
education. For most topics Justinian’s compilers chose Ulpian’s account as
their core text. Through the Digest his exposition of the law has influenced the
western legal tradition at least as much as that of any later writer, including
Irnerius, Grotius, Blackstone, Pothier, and Savigny.
I set out to study him as a writer and imperial office-holder in the Severan
age (AD 193–235) and, as Millar put it, a figure in the complex cultural landscape of the Roman empire. Assessments of his role differ. In Syme’s eyes
(1972) Ulpian, a lawyer in politics, deserted his books to ingratiate himself
with the ruling dynasty and paid the penalty when he was murdered by rebellious troops. To me, in contrast, his career was that of an intellectual in
government, concerned to give effect in law and administration to the cosmopolitan ideas of his time.
The book had a mixed reception. It was welcomed by Rodger (1983), Liebs
(1984), Birks (1983), and Millar (1986), a welcome tempered by admonitions
against pushing the evidence too far. Gordon (1984) and Crifò (1985) had
reservations about the analysis of Ulpian’s style. The book was sharply criticised by Watson (1983) and, more soberly, by Frier (1984), whose point of
view was close to that of Syme. Birks showed that Watson’s criticisms were
largely mistaken. But some of the points made by scholars, favourably disposed or sceptical, need to be taken seriously and some arguments in the first
edition strengthened. As Frezza (1983) pointed out, there was an imbalance
between my depiction of Ulpian as a writer and as a lawyer in government.
One problem in writing about Ulpian is that hardly anyone has read the
bulk of his surviving work, which runs to some 300,000 words. Most students
of the ancient world read some Ulpian, and his work has been available in a
consolidated form since Lenel’s Palingenesia of 1889. But most scholars read
only as much as is needed for the purpose in hand. The Digest, and with it the
western legal tradition, is in thrall to Ulpian, but he comes in bits and pieces.
The sporadic reader can easily miss the quality and flavour of his writing.
The first edition sought to fix the main features of Ulpian’s style and, on
this basis, to distinguish between the works that are genuinely his and the five
attributed to him that are in my view spurious. There is no need to change the
lists of genuine and spurious works arrived at (Chapters 5 and 10), though
viii
Preface
some scholars still defend the authenticity of Rules in one book (Liber singularis regularum) and possibly Replies (Responsa). Some argue that Opinions,
though not a work of Ulpian, is classical. The debate continues.
The list of mature works that seem certainly or probably genuine comprises
216 or 217 books in all. By a book is meant a liber of on average 10,000 to
12,000 words, corresponding to a modern chapter. Most of Ulpian’s work
can be dated to Caracalla’s sole rule (December 211–April 217). My hypothesis was that Ulpian’s massive survey was composed in the five years 213–17,
after and in the light of the enactment of Caracalla’s Antonine constitution,
which is traditionally (and I think rightly) dated to 212. The author may have
planned to continue writing after 217 and, in particular, to compete his
commentary On Sabinus. If so, he did not or could not carry out his plan. The
five-year period 213–17, Quinquennium Ulpiani, was devoted to a large-scale
exposition of law and public administration for the benefit of rulers and
citizens of the new cosmopolis. Undertaken privately but with official encouragement, it was, as Liebs (2000) points out, a forerunner of the later Roman
codifications by Gregorius, Hermogenianus, Theodosius II, and Justinian.
If Ulpian composed his survey in the five years 213–17 he must have composed at speed and worked to a plan. I suggested in the first edition that his
plan was to complete a chapter (liber) a week, apart from a holiday period of
eight weeks. To some this seemed absurd. But, as emerges in Chapter 8, the
argument for my suggestion is stronger now that it was in 1982.
In this and other respects I am tempted to say that most of the detailed
conclusions reached in the first edition were correct or at least defensible but
that the book was not reader-friendly. It did not sufficiently stress certain
themes that mark off Ulpian’s contribution to Roman law from that of others. It did not do justice to the egalitarian philosophy that inspired his work,
to his use of dictation, his easy shifting from Latin to Greek, and his empirical approach to the solution of legal problems. The work lent itself to caricature as ‘Law on the Installment Plan.’ Caricatures distort but also
illuminate. So in this edition the emphasis has changed. Three new chapters
have been added and one discarded. Certain themes, previously muted, are
now stressed. I now think (Chapter 2) that Ulpian dictated the whole of his
survey of Roman law. His survey reflects speech, not writing. In the ancient
world dictation was important to the Roman government and to Christian
writers but was not confined to them. Dictation accounts for the linking of
sentences, the conversational flow, the sense of debate, and the superficial
egocentricity of an author who, though self-confident, often expressed his
opinion in a tentative way. Oral composition fits the many examples he gives
by way of illustration and his recourse to argument by analogy (Chapter 4).
In the upshot Ulpian reasons rather as do common lawyers, whose style
derives from a practice of oral exchange between judges and counsel and of
argument from example.
Preface
ix
Moreover, Ulpian is the Roman lawyer whose thinking most clearly has a
basis in theory. His philosophy, implied in his Teaching Manual (Institutiones)
and elsewhere, is cosmopolitan and egalitarian (Chapter 3). It fitted the contemporary extension of citizenship to all free people in the Roman empire.
Ulpian here reflects, but also promotes, the Zeitgeist. He can therefore justly
be accounted a pioneer of the human rights movement. Drawing mainly on
the Stoic conception of natural law, his philosophy allows slaves the share in
human dignity that is required by the belief that human beings are born free
and equal. At present, when human rights are widely debated, it may promote
a balanced view to see them in a perspective that goes back to antiquity.
Human rights are not a product of the Enlightenment, still less of the twentieth century, as some otherwise well-educated people suppose. The values of
equality, freedom, and dignity, to which human rights give effect, formed the
basis of Ulpian’s exposition of Roman law as the law of a cosmopolis. The
citizens of the empire did not enjoy political freedom. But they possessed civil
rights, and Roman lawyers were concerned to see that these were respected.
To ensure this respect was the emperor’s duty. No one made a greater contribution to this end than Ulpian, whose mission was to expound Roman law to
the rulers and citizens of the cosmopolis as a system of law based on reason,
utility, and equity. That is one reason why the study of Roman law can never
be out of date.
The book has been reshaped in, I hope, a more reader-friendly style. This
has meant, among other changes, translating into English the titles of
Ulpian’s works. Latin cannot be avoided in a work that turns in good part
on the style and outlook of a Latin author. As much Latin as possible has,
however, been translated or relegated to the footnotes. If the result strikes
some students of the ancient world as odd, this is the price to be paid for
introducing a great writer to the wider audience he deserves.
I am grateful to Dr Dennis Flynn for his help with computing problems,
and to Dr Leofranc Holford-Strevens, to whose scholarly acumen as copyeditor both editions of this work owe a debt.
T.H.
Contents
List of Ulpian’s Works with Method of Citation
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
Background and Career
The Oral Style
The Cosmopolis and Human Rights
The Empirical Method
Genuine Works
Sources and Scholarship
Dates and Plan I: On the Edict
Dates and Plan II: Quinquennium Ulpiani
Dates and Plan III: Lesser Works
Spurious Works
Epilogue
xii
1
37
76
94
105
126
158
177
189
206
227
TABLES
I. List of Latin Words and Phrases
II. References to Legal Texts
231
243
Bibliography
283
Index
297
List of Ulpian’s Works with
Method of Citation
Certainly or probably genuine
English title
Latin title with number of books (chapters)
and abbreviation
Ad edictum praetoris 81 (ed.)
Ad Masurium Sabinum 51 (Sab.)
Ad legem Iuliam et Papiam 20 (Iul. Pap.)
Publicae disputationes 10 (disp.)
De officio proconsulis 10 (off. proc.)
De omnibus tribunalibus 10 (omn. trib.)
De censibus 6 (cens.)
De fideicommissis 6 (fid.)
Ad legem Iuliam de adulteriis 5 (adult.)
De appellationibus 4 (appell.)
Ad legem Aeliam Sentiam 4 (Ael. Sent.)
De officio consulis 3 (off. cons.)
Ad edictum aedilium curulium 2 (ed. aed. cur.)
Institutiones 2 (inst.)
De sponsalibus 1 (spons.)
De officio consularium 1 (off. consular.)
De officio curatoris reipublicae 1 (off. cur.
reip.)
Excuses
De excusationibus 1 (excus.)
The Praetor for Guardianship De officio praetoris tutelaris 1 (off. pr. tut.)
The Prefect of Police
De officio praefecti vigilum 1 (off. pr. vig.)
The Quaestor
De officio quaestoris 1 (off. quaest.)
The Urban Prefect
De officio praefecti urbi 1 (off. pr. urb.)
The Speech of Marcus and
De oratione divi Antonini et Commodi 1 (orat.
Commodus
Ant. et Comm.)
Notes on Marcellus’ Digest
Notae ad Marcelli Digesta 31 (Marc. dig.)
Notes on Papinian’s Replies
Notae ad Papiniani Responsa 19 (Pap. resp.)
Rescripts of Septimius Severus Aug. 202–May 209
On the Edict
On Sabinus
The Julio-Papian Law
Disputations
The Proconsul
Tribunals
Taxation
Trusts
Adultery
Appeals
The Aelio-Sentian Law
The Consul
The Market-Masters’ Edict
Teaching Manual
Engagement to Marry
Consular Judges
The Community Treasurer
Spurious
Encyclopaedia
Replies
Pandectae 10 (pand.)
Responsa 2 (resp.)
List of Ulpian’s Works with Method of Citation
Opinions
Rules in one book
Rules in seven books
Opiniones 6 (opin.)
Regulae 1 (lib. sing. reg.)
Regulae 7 (reg.)
xiii
1
Background and Career
D O M I T I U S U L P I A N U S , the lawyer from Tyre, was a leading intellectual of
the Severan dynasty (AD 193–235)1 and, along with the physician and polymath Galen, the most influential writer of the time. He spelt out the cosmopolitan ideology of the age in its legal and administrative aspects. How
should his career be judged? Was he ‘the scholar who deserts his books for
favour of princes and governmental employment, to a calamitous end’2 or the
writer whose ‘new formulation of Roman law made this intractable material
so flexible that it could time after time be adapted to new situations right up
until the twentieth century’?3 To answer, we need to study his background
and career.
I. THE POLITICAL BACKGROUND
The dynasty founded by Septimius Severus was concerned to present itself in
relation to the preceding Antonine dynasty. Both grappled, in the end unsuccessfully, with a problem about the imperial succession. The empire was best
governed by an able and experienced ruler, chosen without regard to family.
The mechanism of adoption made this possible. A ruler could during his lifetime adopt a successor from outside his family. On the other hand there was
pressure for an emperor with a legitimate son to promote the son during his
lifetime as a junior or associate ruler, ‘Caesar’ or junior ‘Augustus’. Despite
doubts, Marcus Aurelius Antoninus (AD 161–80) did not follow the recent
convention that a Roman emperor should adopt a successor. It would have
been awkward to disinherit his son Commodus, a lazy and frivolous youngster, whom he had made Caesar at the age of five. In 177, when the boy was
1 Lenel (1889) 2.379–1200, 1264 with Sierl (1960) 12–7; Pernice (1885/1962); Kalb (1890)
126–35; Schulze (1891); Jörs (1903); Fitting (1908) 99–120; P. Krüger (1912) 239–50; Volterra
(1937); Berger (1952) 750; Leclercq (1952); Wenger (1953) 519f., 526f.; Pflaum (1960–1) no.294;
Mayer-Maly (1961); Honoré (1962a) 207–12 (unreliable); Frezza (1968); Syme (1970/1979);
Carcaterra (1972); Orestano (1973a); Nörr (1973); Crifò (1976); Nörr (1978) 131–6; Honoré
(1982); Rodger (1983); Birks (1983); Frezza (1983); De Marini Avonzo (1982); Liebs (1984);
Mantello (1984); Lannata (1984) 214–9; Liebs (1987a); Yaron (1987); Honoré (1988); Waldstein
(1985); Crifò (1985); Millar (1986); Schermaier (1993); Winkel (1993); Marotta (2000); Honoré
(2001). Literature on his career n.49
2 Syme (1980) 102 = (1984) 1412
3 Liebs (1997) §424 p. 187
2
1. Background and Career
fifteen, Marcus promoted him joint Augustus and so ensured that he would
in due course succeed his father as emperor. The reign of Commodus (180–92)
ended in misgovernment and murder. Of the various contenders who emerged
in 193, the ultimate victor was Septimius Severus (193–211).4 But it took two
civil wars and nearly four years for him to become sole master of the Roman
world. The effort left its mark both on him and on the empire.
The rule of the Severans was harsher but more cosmopolitan than that of the
Antonines. Severus needed to establish a link with Marcus, since Marcus was
then and later considered a model ruler. So in 195, after defeating his rival
Pescennius Niger, he arranged to be adopted by Marcus. The adoption was a
fiction, since Marcus had been dead fifteen years. Nevertheless it was
put through in detail. Severus’ elder son, Bassianus (generally known as
Caracalla), then aged eight or nine, received the dynastic name ‘Antoninus’.5
Severus tried, however, to avoid repeating Marcus’ mistake over Commodus,
who had been allowed too much freedom. He gave Caracalla a good education
and saw to it that he had military experience. He made him consul three times
during the next sixteen years, and from 197 or 198 introduced him to civil and
legal business as joint Augustus. Caracalla was able, though not in a literary
way, quick-witted, a good judge of character. He had plebeian tastes, liked soldiering, and was not averse to menial tasks. With the soldiers he was and
remained popular.
At times one could think of him as a future emperor who would justify the
name Antoninus. At others he appeared unhinged. Then his violent temper
and bitter feuding with Geta, his younger brother, left no room for illusion.
Geta, a year younger, was thought incompetent.6 After Caracalla was promoted Augustus, the younger son was kept in the subordinate position of
Caesar for another eleven years. Ultimately Severus, perhaps on the pretext of
administrative convenience, made Geta a third Augustus during the British
campaign of 209, so that there was someone left behind at York to attend to
civil business while he and Caracalla went on campaign in Scotland. He
thereby committed the empire to the joint succession of the two brothers. Once
again, dynastic considerations overrode the claims of good government.
Septimius followed the traditional Roman policy of extending the limits of
empire. Not specially gifted as a general, he repeatedly won victories in both
civil and external wars. In 197, when the civil wars were over, he invaded
Parthia and pushed the frontier of the empire eastwards. At the end of his
4
Hasebroek (1921) has a good account, with dates. See also Platnauer (1918), Hammond
(1940), Murphy (1945), Hannestad (1944), Barnes (1967), Alföldy (1968), Herzig (1972), and
Birley (1988) with bibliography 258–73 and prosopography 212–29
5
Dio 78.1–10 (hostile); Herodian 4.7.4–7; RE 2.2434 Aurelius (46); Schulze (1909). For
Caracalla as a judge Nörr (1972b) 25; Kunkel (1953/1974) 255. On young emperors Hartke
(1951)
6
Dio 77.7.1–2; Herodian 3.10.3–4; 4.3.2–4.4.3; Fluss (1923); Alföldy (1972) 19
1. Background and Career
3
reign, in 209–11, he tried to advance the British frontier north into Scotland,
perhaps with a view to occupying the whole island. When he died in February
211 the attempt was anyhow abandoned and the army, with the two emperors Caracalla and Geta, returned to Rome. They were accompanied by two
eminent lawyers: Papinian, a supporter of the joint succession, and Ulpian,
who turned out to be a supporter of Caracalla.
Severus had debts to the army. It was the troops of Pannonia that had
brought him to power, and his campaigns required loyal troops. The balance
between civil and military power shifted in favour of the soldiers. They
obtained concessions: higher pay, permission to live with their wives.7 The
events of 193–7 revived the lesson of AD 68, that the army legions made and
unmade emperors. Severus took steps to ensure that in future the praetorians
in Rome, who had killed Pertinax and made Didius Iulianus emperor, would
not do this again. In 193 he tricked and disarmed them.8 But this tour de force
was not a long-term solution to the problems of military indiscipline. An
emperor could not survive if the troops and their generals were disloyal to
him.
Severus was well equipped to manage civil as well as military affairs.
Though not as well educated, says Dio, as he would have liked to be, he had
an inquiring mind. Trained in ‘philosophy’, he was a man of many ideas but
few words.9 Whether he had received any legal education is obscure, but he
was a good administrator and assiduous as a judge.10 He claimed, though not
bound by law, to conform to it.11 He appointed lawyers to important posts.
Paul’s reports of decisions in the imperial council12 show that he took an active
part in legal argument and was prepared to differ from the opinions of his
lawyer councillors, particularly Paul.13 He was keen to improve the working
of the legal system. The cumbrous operation of the permanent criminal commissions (quaestiones perpetuae), which from the republic onwards had exercised criminal jurisdiction in Rome, now ceased.14 The urban prefect in Rome
was given unlimited jurisdiction at first instance over crimes committed in the
7
Herodian 3.8.5. Whether soldiers’ marriages were previously void in certain cases is debatable: see Kaser (1971) 1.317. Herodian 3.8.4–5 also mentions the right to wear gold rings (the
mark of equestrian rank, in practice confined to centurions and other middle-ranking officers).
See also Whittaker (1969–70) 2.308–9
8 Herodian 3.13.2–12
9 Dio 77.16.1–2; Eutropius 8.9.1 cf. HA Severus 18.5–6. He composed an autobiography:
Dio 75.7.3; Herodian 2.9.4; Victor 20.22
10 Dio 77.16.17.1–2; HA Severus 8.4; Birley (1988) 164–5
11 J. Inst. 2.17.8: Severus et Antoninus saepissime rescripserunt: licet enim legibus soluti sumus,
attamen legibus vivimus. The formulation is probably Ulpian’s in view of the parallel licet . . . attamen in CJ 5.18.2 (4 Apr 207) and the Institutes text (saepissime rescripserunt) comes from his
work: ch.2 n.769
12 Lenel (1889) 1.959–65, 1111–2 nos. 57, 58, 62, 63, 64, 65, 67, 68.2, 69, 70.1, 2, 73, 5, 76, 7,
79, 878
13 Coriat (1997) 561–3
14 Garnsey (1967)
4
1. Background and Career
city or within a hundred miles of it. The praetorian prefect15 had similar jurisdiction in Italy beyond the hundred-mile limit,16 and unlimited appellate jurisdiction in both civil and criminal cases.17 In this he acted, theoretically, as the
emperor’s delegate.18
Delegation was inevitable, especially with an emperor as ambitious as
Severus. The office of praetorian prefect, now generally held by two prefects
at a time, had grown piecemeal into the most important in the empire next to
that of the emperor himself. Originally a military post,19 its duties spread
from the command of the praetorian guard, stationed in Rome, to the superintendence of the armies in the provinces. Its civil business, especially legal
appeals, now increased to the point at which one of the two prefects was
sometimes a lawyer. It was thus that, following Tarrutienus Paternus
(177–82)20 in the reign of Commodus, Papinian (205–12), Macrinus (212–7),
Ulpian (222–3/4), and conceivably Paul (219–20), men whose careers were
purely civilian, came to hold this, the highest equestrian office.
Another aspect of the administration of justice was the rescript system.21
The emperor provided what was in effect a free legal advice service, for which
the secretary for petitions (a libellis) was responsible. One could petition
about anything: privileges, pardon for crimes, grants of land, honours. But
when a petition involved a point of law it was referred to the secretary for
petitions who drafted a reply for the emperor’s consideration. From the
Severan age far more rescripts on points of law survive than from previous
reigns, and there is no doubt that their number really increased. In this
domain, too, the emperor took his duties seriously.
It was the concern of the government for civil administration that made the
age a great one for law and lawyers. The Severan jurists, Papinian, Paul,
Tryphoninus, Messius, Menander, Ulpian, Modestinus, all equestrians, had an
interest in seeing that justice was freely available and that law prevailed.22
Whether they were advising the emperor as members of his council, composing
rescripts for him as secretaries for petitions, or writing treatises for the use of
governors, judges, officials, and private citizens, they were conscious of being
members of an élite circle of lawyers. It is a mistake to think of advice given to
the emperor as ‘bureaucratic’, private writing or practice as ‘free’.23 Both rested
on professional discipline, and the test of their worth was the opinion of fellow
members of the élite. There is nothing to suggest that lawyers felt under pressure to slant their opinions in a sense favourable to the government.
15
Howe (1942) 42; Strachan-Davidson (1912) 1.158
Collatio 14.3.2 (Ulp. 9 off. proc. referring to the Lex Fabia); Passerini (1939) 236
17 Mommsen (1887–8) 2.1113f.; Ensslin (1954) 2391; Kaser (1966) 365; Howe (1942) 29f.
18 Howe (1942) 40
19 Howe (1942) 7; Palanque (1933); Durry (1938); Passerini (1939)
20 AE 1971.534; CIL VI.4.1.27118; Lenel (1889) 2.335; Pflaum (1960–1) 1.420–2; Kunkel
(1967) 219–22 (‘Tarruntenus’); Giuffrè (1974b) 61–5; Liebs (1976) 341–4; HLL 4 §419.6
21 Honoré (1994) ch.2
22 A. Stein (1927); Howe (1942) 43; Schiller (1953)
23 As does Syme (1972) 406 = (1984) 863
16
1. Background and Career
5
Severus was the only emperor apart from his rival Albinus to come from
Africa. He was also the first emperor not to be of purely Italian stock.24 That
does not make him an ‘African emperor’,25 but it helps to explain the
cosmopolitan outlook of his regime. He came from an area where Punic was
spoken,26 and was himself fluent in the language. Punic is the language
that Ulpian mentions as an example, after Latin and Greek, as one that
the parties to certain transactions may choose.27 Severus’ second wife, Julia
Domna, came from a part of Syria where, though Punic had not been
spoken for two centuries or more, the vernacular was Aramaic. Ulpian also
mentions this language (‘Assyrian’) as a language that can be used for certain
legal transactions.28 This does not imply that these languages were commonly
used to make contracts or create trusts. Ulpian’s point is that for informal or
semi-formal transactions any language may be used provided it is understood
by the parties. The new citizens are reassured that they can participate in the
legal system to which they are subject without mastering Latin or Greek.
Though he wrote in Latin, the language of Roman law, the readership for
which he was writing included Greeks, many of them newly enfranchised as
citizens, as we shall see in chapter 3.29
It was an opportunistic act on the part of Severus’ son Caracalla in AD 212
to make all free inhabitants of the empire, with obscure but unimportant
exceptions, Roman citizens. But it fitted the spirit of the dynasty and the age.
By the Antonine constitution (constitutio Antoniniana)30 the different
provinces, east, west, north, and south, were put on a level. Other distinctions
too were blurred. With their new privileges, soldiers had a status closer to that
of civilians. Women were more prominent than before, both as property owners and in politics. In the imperial circle the Syrian princesses Julia Domna,
her sister Julia Maesa, and Maesa’s two daughters Soaemias and Mamaea
had influence behind the scenes. But they also figure prominently, with
official titles, on coins,31 and Caracalla entrusted his correspondence to his
mother Julia Domna.32 Rank and class still depend on wealth,33 but other
boundaries, social and conceptual, are blurred.
24
25 Title of Birley (1988)
Birley (1988) 1–22
Birley (1988) 35 (Septimius and Julia Domna will have had three languages in common:
Greek, Latin, and Aramaic) cf. Millar (1968)
27 D 32.11 pr (2 fid: sermone non solum Latina vel Graeca, sed etiam Punica vel Gallicana vel
alterius cuiuscumque gentis), 45.1.1.6 (48 Sab: omnis sermo)
28 D 45.1.1.6 (48 Sab.). On Ulpian’s familiarity with Aramaic see Manthe (1999)
29 Ch.3 n.119–42
30 Literature in Gianelli–Mazzarino (1956) 2.397; v. Rohden (1896) 2446; Millar (1962);
Gilliam (1965); Sasse (1958), (1965); De Visscher (1961); Seston (1966); Gundel (1966); Segrè
(1966); Saumagne (1966); d’Ors (1966); Gaudemet (1967) 528; A. H. M. Jones (1968); Talamanca
(1971); Herrmann (1972); Wieling (1974); Wolff (1976); Buraselis (1989); Honoré (1996) 383
31
RE 11.916, 926, 948; Mattingly 52 (1975) 156–70 and passim; Robertson (1977) 98–102,
127–33, 163–8
32
33
Dio 79.18.2–3
Garnsey (1970) 221f.
26
6
1. Background and Career
The levelling that occurred caused strains and resentments. The wars of
Marcus had brought to a close the days when the resources of government
amply met military and civil requirements. Even without civil war, the end of
the second century would not have been comfortable. Civil war set the emperor
and senate at variance. At the behest of Didius Julianus, the senate in 193
declared Severus a public enemy. Later it changed sides, but lost prestige.34
When in 196–7 Severus quarrelled with his Caesar, Clodius Albinus, many senators sided with Albinus, a man who prided himself on his clemency.35 Severus,
whose character fitted his name, was shocked. When he defeated Albinus he
had some dissident senators executed on his own authority. This was to violate
the model of a good ruler, and mistrust festered.36
Like many a ruler Severus came over time to rely increasingly on his own
family and associates. He trusted a kinsman and friend of his youth, Fulvius
Plautianus, to whom he was bound by emotional ties, and treated him almost
as a partner.37 A man of ability and, like Severus, from Africa, in the end
Plautianus became sole praetorian prefect and accumulated great power. Had
it not been for Severus’ two sons, the situation would have been manageable.
Severus would have made his friend a Caesar or junior Augustus, and
Plautianus in due course might have proved himself a good emperor. But
Caracalla had been given the name Antoninus in 195 and made Augustus in
197 or 198, so that this course was ruled out. The clash was resolved in
another way. By an ingenious plot Caracalla and his mother Julia Domna
trapped Plautianus and had him killed in 205.38 The strain was temporarily
reduced, but effective rule had once again been sacrificed to dynastic interests.
Two praetorian prefects were then appointed, one military, Laetus, and one
civilian, the lawyer Papinian. Severus, conscious of the tension between his
sons, tried to improve their ways by moving them from Rome to the Italian
countryside (205–7),39 and later took them with him to Britain on his last military expedition (208–11).40 When he died Julia Domna tried to keep the
peace between them.41 She failed. At the end of 211 Caracalla had Geta murdered in her presence.42 She still tried to compensate for her elder son’s lack
of balance. Later her niece Julia Soaemias tried in turn to restrain her son
Elagabal (218–22),43 but with no more success. So intractable were the problems of an empire conducted by, or in the name of, young men spoiled by
34
35
Dio 74.16–7
Herodian 3.5.2; Dio 75.7–8
Dio 76.8.4; Herodian 3.8.1–3
37
A. Stein (1912) 270–8; PIR2 F 554; Howe (1942) 69 no.17; Grosso (1968a) 7; Birley (1988)
128, 162–3, 207. Their quarrels and reconciliations and Severus’ remorse after Plautianus’ death
point to the truth of Herodian 3.10.6 cf. Dio 77.5.1–2
38
Dio 77.3–4; Herodian 3.11.1–3; 3.12.12 (giving an official version); Hohl (1956) 33; Birley
(1988) 161–3
39
40
41
Herodian 3.13.1
Herodian 3.14–5; Dio 77.11–3
Herodian 4.3.8–9
42
Dio 77.18.2–3
43
Herodian 5.5.5–6; 5.7.1–3. On Elagabal see Hay (1911), Barnes (1972), Pflaum (1978)
36
1. Background and Career
7
early adulation that some Romans became disillusioned with the tradition
that saw in public service the true end of human endeavour.
In this age of strain the minds of many thoughtful people turned inwards.
There were powerful Christians. The ex-slave Callistus took the see of Rome
(c.217–23) 44 against the challenge of his opponent and critic Hippolytus. Julia
Mammaea, the mother of Alexander Severus, ‘a most religious woman, if ever
there was one’ and a supporter of Ulpian in his later years, was inquiring
enough to bring the Christian intellectual Origen from Antioch by military
escort for a meeting.45 Other religions, hovering on the border of monotheism,
attracted devotees. The cult of Elagabal, the god of Emesa, whence Julia
Domna and her family came, was one, a cult unknown to Greeks and
Romans.46 Elagabal, the last Antoninus, nicknamed from the god to whom he
was devoted, saw the deity as a jealous god. His demands, hardly less exclusive
than those of Jehovah, led the emperor-priest to challenge the traditional
Roman state religion.47 Elagabal wanted to invert the relations of politics and
religion. Far from being the handmaid of state policy, as hitherto, religion was
to be the prime concern of the emperor and people.48 Elagabal’s reign warns
us that, in sacred affairs also, the easy-going days are over. It foreshadows the
Christian revolution that is to come a century later.
II. ULPIAN’S CAREER: SOURCES
The main source of information about Ulpian’s career 49 is his own writings.
These survive to the extent of about 300,000 words, roughly an eighth of the
original, and tell us, directly or by inference, a good deal. They were in the
main composed under Caracalla’s sole rule (211–7) as the references to joint
constitutions of him (imperator noster, imperator Antoninus) and his dead but
deified father (divus pater, divus Severus) make clear.50
Apart from this, two rescripts of Alexander Severus51 mention the two prefectures that Ulpian held in 222 under that emperor. There is an inscription
in his honour from Tyre that records these prefectures.52 A papyrus from
44
Gianelli–Mazzarino (1956) 2.291f.
Eusebius, Church History (Hist. Eccl.) 6.21 cf. 6.28.1: ‘the household of Alexander consisted
mostly of believers’
46 Herodian 5.3.5
47 Herodian 5.5.3–10; 5.6.3–10; 6.1.3
48 Herodian 5.7
49 Bremer (1883); Balog (1913) 339–421; A. Stein (1943); Howe (1942) 44–52, 75f., 100–5;
Pflaum (1948) 41–5; Kunkel (1967) 245–54; Pflaum (1960–1) 2.762–5 no.294;
Modrzejewski–Zawadski (1967); Grosso (1968b); Syme (1970/1979), (1972/1984), (1980/1984);
Honoré (1982) 1–46; Liebs (1987b) 76f., 90–2, 110, 113f.; Salway (2000) 137f.
50 Ch.7 n.21–70; ch.8 n.2–12, 23–41; ch.9 n.11–2, 50–1, 93–6, 104–7, 130–1
51 CJ 8.37.4 (31 March 222), 4.65.4.1 (1 Dec 222)
52 AE 1988.1051 pp.285f: Domitio Ulpiano praefecto/praetorio eminentissimo viro/iurisconsulto
item praefecto/annonae sacrae Urbis, Seberia/Felix Aug(usta Ty)riorum col(onia) metropol(is)/p(at)ria. Cf. Vézin (1991). It is clear from this that Ulpian never became a senator
45
8
1. Background and Career
Egypt shows that he was killed before May/June 224.53 Of the historians
Dio,54 as summarized by Xiphilinus, mentions his prominent role early in
Alexander’s reign, about which Herodian is silent.55 Aurelius Victor (c.369)56
mentions him briefly, as do the epitomes of Festus (363–70)57 and Eutropius
(364–78).58 There is an important passage in Zosimus (c.500)59 and briefer
ones in Zonaras (1118–43)60 and Syncellus.61 The ‘mythistorical’ Augustan
History of the late fourth century, drawing on Marius Maximus, Herodian,
Victor, and other sources, along with a talent for invention, gives him a
prominent role in the lives of Niger,62 Elagabal,63 and especially Alexander
Severus.64 He is there depicted as guiding the young emperor Alexander’s
footsteps in the paths of justice. This shows that towards the end of the fourth
century Ulpian was highly regarded in certain pagan circles in Rome. It can
be used with caution to fill out some aspects of his career. Following Straub
(1978), I have assumed that, at least in certain instances, the author had access
to reliable information about the law and lawyers.65 In dealing with them his
method is often distortion of the truth rather than pure invention. At times it
seems that the distortions have a serious purpose. It is not impossible that the
author was himself a lawyer.
III. NAME AND ORIGIN: TYRE
Ulpian’s fellow lawyers call him Ulpianus or, in Greek, Ολπιανς.66 But a
few texts, including two rescripts of Alexander, speak of Domitius Ulpianus.67
So does a text of Ulpian’s contemporary Paul, in which he reproduces a letter
from a friend or client that refers to an opinion of Ulpian.68 Lactantius calls
him Domitius69 and both Modestinus and Dio have ∆οµτιος Ολπιανς.70
The gentile name Domitius is confirmed by the inscription found in Tyre.71
53
54 Dio 80.1.1; 2.2–4
P.Oxy. 2565: Barns–Parsons–Rea–Turner (1966) 102
Herodian 6.1.4 says in general terms that legal and civil business was entrusted under
Alexander to men of eloquence and legal experience
56 The Caesars (De Caesaribus) 24
57 Summary of Deeds of the Roman People (Breviarium rerum gestarum populi Romani) 22 pace
Spagnuolo Vigorita (1990)
58 Summary from the Foundation of Rome (Breviarium ab urbe condita) 8.23
59 New History (nova) 1.11.2 cf. Lydus (490–c.560) Magistrates (De magistratibus) 1.48
60 Annals (Annales) 12.15
61 Chronography (Chronographia) 1.673
62 HA Pescennius Niger 7.2
63 HA Antoninus Heliogabalus 16.1
64 HA Severus Alexander 15.6, 26.5, 27.2, 31.1, 34.6, 51.4, 67.2, 68.1
65 Honoré (1987), (1994b), (1998a) ch. 8
66 D 27.1.2.9 (Mod. 2 excus.); 27.1.8.9; 27.1.10.8 (3 excus.); Dio 80.1.1; 2.2–3; Syncellus,
Chron. 1.673; Zonaras 12.15 cf. 26.6.2.5 (Mod. 1 excus.); 27.1.4.1 (2 excus: Ολπιανς κρτιστος); 27.1.13.2 (4 excus: ∆οµτιος Ολπιανς)
67 CJ 8.37.4 (31 March 222); 4.65.4.1 (1 Dec. 222); HA Severus Alexander 68.1
68 D 19.1.43 (Paul 5 quaest.)
69 Church Teaching (Div. inst.) 5.11.19
70 Dio 80.1.1; D 27.1.13.2 (Mod. 1 excus.)
71 AE 1988.1051; above n.52
55
1. Background and Career
9
No other Domitius Ulpianus is known, unless we can make something of an
inscription on a water-pipe found some seven miles from Centumcellae
(Civitavecchia).72 Here, near Santa Marinella, on the coast north-west of
Rome, a pipe belonging to a large building was found with the inscription:
CNDOMITIAN . NIULPIANI
A number of scholars, including Kunkel, have taken this to refer to the
lawyer.73 If the inscription is read continuously, the reading ‘Domitiani’ is not
possible, in view of the double N, and it seems better to read it as:
CN DOMITI ANNI ULPIANI
though the dot between the two Ns is awkward. If this reconstruction is correct, the owner of the large country house near Rome was Gnaeus Domitius
Annius Ulpianus. Is he the lawyer Ulpian? There is a possible point of connection apart from the name. The villa belonged to a wealthy man and a
statue of Meleager has been found in the area. Meleager,74 poet and Cynic
philosopher of the first century BC, came from Gadara but lived in Tyre.
Ulpian also came from Tyre. The statue seems appropriate to the residence of
a wealthy scholar proud of his connection with Tyre. He might be the lawyer
or some other member of a well-educated family from that area.
The lawyer took pride in his connection with Tyre. He combined working
in Rome or as part of the emperor’s entourage with strong provincial links.75
In his work on Taxation (De censibus), written under Caracalla and probably
datable to 213,76 Ulpian describes Tyre as his town of origin, splendid, famed
for its various quarters, possessing an ancient history, strong in arms, faithful
to its treaty with the Romans:77
est in Syria Phoenice splendidissima Tyriorum colonia, unde mihi origo est, nobilis
regionibus, serie saeculorum antiquissima, armipotens, foederis quo cum Romanis
percussit tenacissima.
He calls Tyre his ‘origo’. Origo is local citizenship at birth,78 citizenship of
origin. As Ulpian points out,79 the status of citizen of a municipality is
acquired by birth (nativitas), manumission, or adoption. To this a law of
Diocletian and Maximian added co-option (adlectio).80 This last law refers to
‘origo’ where one would expect birth to be mentioned. The terms could, it
seems, be used synonymously. So Ulpian was a citizen of Tyre through birth
72
CIL XI.3587 = XV.7773
Kunkel (1967) 252; Crifò (1976) 738; A. Stein (1903); PIR 21 19, 25; 32 39; Passerini (1939) 324
74
75
Geffcken (1931); Radinger (1895); Wifstrand (1926)
Liebs (2001) v–xv
76
Ch.9 n.11–25
77
D 50.15.1 pr (Ulp. 1 cens.). On Tyre see Krall (1888), Fleming (1915) and on municipal
administration Liebenam (1900), Vittinghoff (1951), Nörr (1969)
78
79
Nörr (1963) 525 = (1965) 433.
D 50.1.1 pr (2 ed.)
80
CJ 10.40.7 pr (Dio. et Max. AA et CC: cives quidem origo manumissio adlectio adoptio facit)
73