Precedent in Roman Egypt (1st to 3rd Centuries AD)
Bratkin Dmitriy A.
The issue of the so-called ‘case law’ of Roman Egypt had been making scholars of Roman law and papyri restless for decades, yet Ranon Katzoff seemed to have terminated the dispute. In his ground-breaking article of 1972 he managed to show that on no occasion was there any convincing instance of the case law in its pure form. Later, in his 1980 ANRW entry he provided a comprehensive list of references to the papyri to prove his argument and carried it further, almost closing the issue. Katzoff’s main thesis, namely that advocates and petitioners referred to an earlier legal case as ‘acceptable evidence of law’ is not challenged in the present article. Nor does its author try to contest the explanation for this suggested first by Jolowicz in 1937 and later revised by Katzoff. Moving along the same line as Katzoff he adds three new items to his list of reasons which made precedent the most popular evidence of law in the courts of Roman Egypt. First, one should not fail to notice close links which exist between the habit of case quoting in Egypt and the rescript referred to in D. 1. 3. 38. In this passage Callistratus mentions that Septimius Severus acknowledged the force of the precedent (res iudicata) in ambiguous cases. By that decision the judge was obliged to follow the precedents which demonstrated the local custom of law (consuetudo). This almost entirely coincides with the usual intentions of the advocates and petitioners (as it was shown by Katzoff), therefore grave reasons exist to suppose that Severus merely validated the practice which had existed in Egypt at least AD 70s, as it is manifested by the papyri. Second, local Egyptian lawyers, albeit competent in professional questions, lacked the right to issue responsa which would have binding force for any provincial judge. Their status was even lower since that particular right or ius publicae respondendi was granted as privilege by the emperor himself. There are numerous examples of local lawyers consulting the judges and/or the parties either in oral or in written form. The verdict passed on the base of such a consultation combined the legal status of the judge appointed either by the emperor or by the emperor’s delegate with the legal expertise of the lawyers who advised the judge on the matter. Third, it was the matter of practice which made judicial verdicts so frequent among the evidence of law used in the court. Although in terms of legal theory precedents had no force at all and were eclipsed by responsa of prominent jurists and emperor’s decisions, in terms of accessibility no other document was as available to the general public as the protocols. Forensic protocols were recorded in the official daybooks of the Egyptian administrators (hypomnematismoi). Those were kept both in central and local archives of Roman Egypt and were open for the extracts to be searched and copied. On the contrary, there was no similar system for the imperial endorsements or resolutions, and those available were publicized and collected in a haphazard way. In conclusion the author makes one step further. The precedent itself was not only a source Egyptian advocates obtained their knowledge of law from, as Katzoff suggested. Forensic decision was a marginal form within the Roman legal reasoning and thus it had no independent value. By the concatenation of circumstances it became a valuable tool within the provincial legal framework and thus enjoyed such a wide use.