1Since the discovery of indigenous forms of law among remote native societies, scholars have emphasized the idea of plurality of laws and held out legal pluralism as a means of characterizing the law–society relation.1 Today, this concept is subject to such broad application as to have become a catchall. Many definitions have been proposed. One of the most famous, proposed by John Griffiths in a 1986 paper, argued that legal pluralism is “the presence in a social field of more than one legal order”.2 However, this definition makes it quite difficult to find legal pluralism anywhere in an ancient or even a modern society.3 Due to the process of acculturation and the influence exerted by a dominant legal system hierarchically positioned above others, it might be better to envisage a “discrete legal system corresponding to each subgroup within the society”.4 Legal anthropology reports that the acculturation undergone by colonial systems, where the introduction of European colonial law reshaped native ways of life, resulted in a plurality of legal orders. I wish to demonstrate that a similar process occurred in Roman times, when the influence of Roman law upon local laws created original forms of law, and the interpenetration of different forms of rules engendered new procedures and discrete legal systems.

2It long has been recognized by scholars that the law of the state cannot independently provide a full understanding of law in reality. Rather, if ancient law is to be fully understood, the practice of law must be emphasized as much as the law in books.5 This is the “vulgar law” that Ernst Lévy described, stressing the provincial legal diversity that was a part of real everyday life in the Roman empire.6 Indeed, documentation from the Eastern part of the empire depicts vulgar laws much as satellites circling Roman law, sometimes with formal constitutional recognition.

3Thanks to the prolific documentation available, not least papyri found in Egypt, specialists are aware of day-to-day legal life in the empire, and I need not expand on it. Vulgar law often is assumed to have been relevant only in the Eastern part of the empire. This is, for instance, the thesis of Joseph Mélèze-Modrzejewski in his book Loi et coutumes dans l’Égypte grecque et romaine, whose main argument is that by the time of the Roman conquest, cities in the oriental provinces already had their own institutions, their own laws, and their own way of practicing rules, and these were preserved and coexisted alongside Roman law. Nevertheless, there was a long process in which all present bodies of rules became intertwined, leading to the birth of Roman vulgar law.7

4In the Western provinces, the situation would have been quite different, given the assumption that these provinces lacked legal systems before the arrival of Rome. This absence would have made the transplantation of Roman law easier: in the absence of local laws, there were no barriers to impede its reception, and genuine Roman law could be applied.

5I do not agree with this thesis. Naturally, at the time of the conquest, the Western cities did not have legal systems in the form of a ius, that is, of rules given by a state and implemented by a judge. Yet does this mean that they had no law at all? Of course not. Any contrary answer would require an excessively restrictive conception of what a law is. In truth, in addition to the ius (perhaps a unique invention of the Romans8), there were many other ways to conceive of rules and manage disputes.9 The same is true today, as illustrated by the success of alternative dispute resolution. Therefore, our working hypothesis ought to be that in the Western part of the Empire, implementing Roman law was attended by very much the same obstacles as in the Eastern provinces.

6The legal system that developed within the Roman res publica reflected a particular conception of politics. Yet what of the reception of the system in countries that did not subscribe to that urban model? Many archaeologists believe that the Romanization of the provinces has in some instances been overstated,10 and I believe that this holds true for the legal aspect of the process. In the old Europe, for example, kinship was a core structure and revenge a main consideration in conflict resolution. Further, in a few areas at least, we can assume that there was a conflict between the norms of the res publica and traditional values.

7What sources can illustrate these issues regarding the reception of Roman law in the Western provinces? De minime non curat praetor. Official lawbooks tended to be unconcerned with small cases, although we sometimes find allusions to practices termed vulgo, lex regionis, and consuetudo. Just as linguists have given attention to the existence of a popular language, so-called vulgar Latin, it is up to legal historians to look not only at Roman legal sources in the officia, but also at documents that do not share their legal values, written on a popular medium or in a vernacular language.11 Such vulgar or vernacular legal documents of various sorts are potential sources of legal history, because they can provide evidence concerning indigenous legal and judicial practices.

8Two steps of legal acculturation can be envisaged: one at the time of the Conquest, and the 2^nd in Late Antiquity, linked to the establishment of barbarian communities. In both cases, we see unexpected forms of law and bizarre methods of dealing with disputes that represent the blossoming of practices combining Roman rules and native traditions.

Two unusual legal forms from the Western provinces

9I first will focus on a Gaulish popular source concerning matrimonial proceedings, and then cross the Channel to consider the relationship between law and magic in the resolution of conflicts in Roman Britain.

Matrimonial customs in Roman Gaul

10We are fortunate to have at our disposal a fascinating popular legal document discovered in 1997 in Châteaubleau, today a small French town near Paris. The tile, produced in the 2^nd century CE and containing eleven lines in a Gaulish language, was found in a temple.12 As we know, Celtic language was not written, and this exceptional document has therefore been famous since its discovery.

11Pierre-Yves Lambert, the great scholar of Celtic language, took on the task of translating the document, a difficult undertaking because the dearth of written Celtic documents makes the Gaulish language a cryptic one. What we do know is that the text discusses matrimony. Lambert first believed that it was a nuptial song, but pointed out the frequent use of legal terms, notably cor, which means contract.13

1. NEMNALIÍUMI BENI. UEÍONNA INCOROBOUIDO
2. NEÍANMANBE GNIÍOU APENI TEMEUELLE ÍEXSETE SI
3. SUEREGENIATU O QUPRINNOPETAMEBI SSIÍETETA.
4. MIÍIÍEGUMI. SUANTE UEÍOMMIPETAMASS I PAPISSONE
5. SUIREXETESI [SUNIAETESI?] ÍEGIÍINNA ANMANBE ÍEGUISINI
6. SIAXSIOU BEÍIASSUNEBITI MOI/T UPIÍUMMI ATERI
7. XSI INDORE CORE. NUANA ÍEGUMISINI. BEÍIASSUSETE
8. SUE CLUIO U SEDAGISAMO CELE UIROÍONOUE
9. ÍÍOBIÍEBEÍIASSUSETE RE GA ÍEXSTUMISENDIBEÍIASSU SETE.
10. ME SETINGI PAPISSONEBEÍIASSUSETEMETINGISE
11. TINGI BEÍIASSUSETERE GARISE [GANSE?] ÍEXSTUMISENDIBEÍIASSU SETE
I offer to marry a woman in order to be bound by a contract through a gift of cows (cor bogwed). I offer to the woman by the proof of the bed (temegwell). Say, you the parents, in return of the gubrinn see the welsh legal term gobyr for the first offer). How many sesterces for the aliments? I say for the will of the bond, how many sesterces? I say for the link to you for her, by an oral agreement (bel) for … sesterces (the sum is to be defined). I ask, father, for me by contract (cor), as an advance. I say for the contract, by an oral agreement (bel) for … sesterces (the sum is to be defined) in evaluated goods, heard by you in assembly, that she will be my first partner through a true and legal bond. By a free engagement say for that you will be mine.

12It appears that the document was used as a legal form intertwining different models of entry into marriage.14 For the Romans, as soon as both partners gave their agreement, the marriage was valid. But this was not the rule in many other societies, where marriage was a long process encompassing multiple steps.15 Another difference concerned matrimonial gifts. In Rome, the dos was given by the bride’s father, but in many other civilizations, the gift was given by the husband, sometimes to both his wife and his father-in-law.16 These are but two of many variations in how marriage was effected within the Roman empire.

13We can understand the text as endeavouring to solve such legal difficulties that resulted from discrepancies between Roman and local law.17 The challenge was to combine a tradition where marriage unfolded in several stages, on the one hand, with the Roman principle of consensus, on the other. By asking that the wife accept engagement, the text shows that Roman consent was gaining currency within Celtic tradition, perhaps the reason the form was written in Gaulish. Meanwhile, the inscription and display of the form on a Roman tile illustrate that Romanization was underway.

14That the document was found in a shrine should come as no surprise. The links between sanctuaries and local rulers in Gaul are well known, and we can assume that the text was written not by genuine lawyers, as would have been the case in government offices, but by local priests.18 In Châteaubleau, as elsewhere, the sanctuary apparently was the location where written documents implementing new practices were stored – the workshop of accommodation between native customs and Roman law.

15Priests were not the only ones who coped with the difficulties of plurality of laws. A passage by Ulpian, preserved in Digest (Dig. 23, 3, 9, 3), gives a sense of the problems that Gaulish matrimonial practices posed for Roman iurisconsultes:

Again where property is given [to the woman] as what the Greeks call parapherna and the Gauls peculium, let us see whether the right to it at once vests in the husband. I think that if it is given to become his, it at once passes to the husband; and if the marriage should be dissolved, the woman cannot claim it as hers, but should bring a personal action for its recovery, and not institute proceedings by an action on dowry as the Divine Marcus, our emperor, and his father, stated in a rescript. It is evident that a schedule of the property of the wife is given to her husband, as is generally done at Rome, for a wife is accustomed to place in a schedule the property which she is to make use of in the house of her husband, and which she does not give as a dowry, in order that he may sign it, as having received said property, and that she may retain possession of the document which contains a description of what she brought into his house. Let us consider whether this belongs to the husband. I do not think that it does, not for the reason that it is not delivered to him, for what difference will it make whether it is delivered to him or not, if it is brought into his house with his consent; but because I do not believe that it was agreed between husband and wife that the ownership of said property would be transferred to him, but rather as it is certain that, in case of a separation, this cannot be denied, and because frequently the husband assumes responsibility for such articles unless they are left in charge of his wife. Let us see whether, if such articles should not be returned, the woman can bring an action on the ground of property removed, or on deposit, or on mandate. Where the safe-keeping of the effects was entrusted to the husband, she can bring an action on deposit, or mandate; otherwise, an action for property removed will lie, if the husband retains it with the intention of appropriating it, or suit for production can be brought, if he has not attempted to remove the property.19

16To what Roman legal category did Gaulish matrimonial gifts belong? They could not be considered dos, because the Roman dos was given by the father after the agreement, whereas the Celtic gift was given by both spouses.20 How ought they be defined? And what type of actions could be taken to court?

17Fascinatingly, the same difficulties in the practice of marriage appear at both extremities of the empire, not only among the Celts, but among the Jews as well. Joseph Mélèze-Modrzejewski showed that a seemingly odd question asked of the imperial chancellery regarding an unfaithful fiancée accused of adultery made sense in a Jewish context, as the Jewish marriage was concluded through the performance of two deeds. From the very beginning of the process, as soon as the first step had been done, the bond was so strong that a formal divorce was required to break it. This was a crucial difference with Roman law: for the Romans there still would have been no marriage, because the first engagement would have had no legal value.21

18The coexistence of norms from different cultural traditions gave rise to such issues throughout the empire. Roman lawyers tried to solve some of the difficulties through analogy to the categories of Roman law, whereas local practices reacted by producing innovative legal forms. Jurists sometimes had to cope with problems stemming from the plurality of laws, and priests in the Western part of the empire also actively created original forms of law meant to combine elements of different systems. We shall again encounter the phenomenon in Roman Britain, this time in the guise of the curse tablets.

Law and magic

19Defixiones is a modern word designating curse tablets. These had their roots in Greece, where such artifacts have been dated to the 5^th century BCE, but the practice has been identified in the West too, mostly Roman Britain, in the 2^nd and 3^rd centuries CE.22 Half of extant Latin curse tablets were found at Bath and Uley, and all of the specimens entertain one particular scenario: they call for the restitution of a stolen thing.23 On these lead tablets, the plaintiff asked a god to ligare, deligare, obligare the thief – in other words, to torture him.

20As above, these popular sources shed light on judicial praxis in the Western empire and reveal unusual procedures known from no other source. It appears that two steps were required to ask for divine justice. The first stage was a public one, similar to the Roman practice, that sought to promote conciliation between the parties. If this failed, the second stage sought to submit the other party to divine justice in a temple ceremony that placed the parties in front of the god. The god then identified the culprit or cursed him throughout his life.24

21Judicial prayers were not traditional proceedings: they emerged from legal acculturation. The Roman empire tolerated them, and even organized them, because doing so furthered the process of acculturation. A central element of the procedure was the formularies displayed in the temple, where they served as models for parties to copy before submitting their claims. Written in Latin, they used many terms taken from Roman law.

Honoratus to the holy god Mercury. I complain to your divinity that I have lost two wheels and four cows and many small belongings from my house. I would ask the genius of your divinity that you do not allow health to the person who has done me wrong, nor allow him to lie or sit or drink or eat, whether he is man or woman, whether boy or girl, whether slave or free, unless he brings my property to me and is reconciled with me. With renewed prayers I ask your divinity that my petition may immediately make me vindicated by your majesty.25

22By copying formularies, provincials became accustomed to Roman legal vocabulary, Roman legal concepts, and the Roman litigation system.26 They became accustomed to the idea that words that were correctly shaped, using the formulary, had a legal impact as a kind of magic. Last but not least, participants in such a rite in a temple became accustomed to bringing their cases before a higher authority and acknowledging the truth of the judgement rendered (res judicata pro veritate habetur).

23Unofficial sources thus suggest that in the Western part of the empire, legal Romanization could indeed be a complex process. True, Celtic populations did not have ius. Yet they did have their own legal systems, and did not simply abandon them. Priests worked to accommodate native ways to Roman rules, and in the process created original forms of law and constructed alternative mechanisms of dispute resolution.

Legal pluralism in the Late empire

24Although there were parts of the Western empire where it was not a simple matter for Rome to impose its law in the wake of the Conquest, Romanization gained ground over the years, and in 212 Caracalla granted citizenship to all inhabitants of the empire. By the 4^th or 5^th century, however, such a wide variety of barbarian peoples had become established within the empire as to create legal issues.

25To understand the difficulties that came about due to the multiplicity of tribal communities, one must first understand their status under Roman law. Let us take the example of the Britones. In Roman Germany, along the so-called limes, epigraphy discloses the existence of Britones dediticii.27 (We must take care not to confuse these Britones with the Romano-British people we just encountered in southern Britain.) As with many barbarian peoples, the bulk of these Britones were prisoners of war captured by Rome and had originated in countries that did not belong to the Roman empire. They were dediticii, neither slaves nor free. They had a pessima libertas, meaning that they were not citizens and had no access to Roman law (Gai. 1, 26).

26Even though ius had been available to all citizens since 212, the dediticii were specifically excluded from citizenship by the emperor Caracalla. In the Late empire, many barbarian peoples remained subject to the disciplinary power of the army, resulting in an imbalance of law and power that was equivalent to that at the very beginning of the res publica, before the Twelve Tables were promulgated as a result of plebeians’ clamoring for ius against the imperium of the magistrates. Later, just as plebeians had in the early history of Rome received a lex consecrating their rights, barbarian peoples were toward the end of the empire given a lex that limited the discretion of the military judge.28

27How then were members of these communities to be judged? The question of the judgment of barbarian peoples may seem marginal, because it concerns ethnic minorities, but it is significant for its links to the difficult issue of the transformation of the Roman world. The paucity of sources is a problem. However, we are fortunate to be able to get a glimpse of a legal contest between a barbarian and a provincial, after which we shall consider two of the very first barbarian laws.

The first application of the ordeal

28Here again, the document is a curse tablet, a judicial prayer found in one of the imperial capitals: Trier. It belongs to an extensive collection, published long ago in the CIL, of documents from various ethnic origins, Celtic and Germanic tablets alongside others written in Latin and Greek. The tablet at hand, dating to the late 4^th century CE, contains the word cauldron in both Latin and Irish. The context is a trial pitting a citizen against a native of Ireland. After a few sentences in a Celtic language, the text says in Latin: “In your altar of the entrance, Anna and Mars linked, revenge me after the cauldron, compel Eusebe in the nails, and revenge me. Submit against Eusebe”.29

29In my view, this source shows that the cauldron, formerly a Celtic tool of divination, was integrated in late Roman procedure. In the Late empire, the procedure for serious criminal cases was mostly preoccupied with the verification of accusations, and torture was used to reveal the truth. In this judicial setting, the cauldron came to be used in a proof, a kind of torture similar to what citizens had to endure in the examination of charges – the so-called nails.30 Here appears the very first application of the ordeal.

30A longstanding consensus assumes that the ordeal was a Germanic institution, whereas the first uses of the iudicium dei can be traced back to the Late empire. However, I believe that the ordeal of the cauldron was invented against the backdrop of military justice, with the aim of integrating a traditional means of identifying the guilty party – divination by cauldron – in the Roman normative order (Res iudicata pro veritate tenetur). In a composite of different traditions, late Celtic divination was implemented as part of a Roman trial. For the Romans, it fit as a kind of quaestio, an equivalent of torture, whereas the native participant could believe that he thus endured the judgment of his god. In any case, for both parties as well as for the judge, the judgment had the appearance of truth, and this was most important.31

31Clearly it was not easy for Romans to judge natives. Yet as in Roman Britain, the incorporation of divine justice increased the authority of the judgment, and in the case of a trial where a citizen faced a barbarian, the specific procedure brought to bear was that in keeping with the origin of the latter.

Exceptions in the code

32When the Theodosian Code was issued in 438, the trend was towards unification of law. Yet even as the emperor issued that code, he consecrated the legal value of certain other sources of law:

Emperors Theodosius and Valentinianus to Augustus Florentius Praetorian Prefect of the East […]
Should be dismissed as false those [imperial constitutions] which, taken in the past, are not reported in the Code, except those that are in the headquarters of soldiers, or that we keep as expenditure titles or for other matters that are reported in the records of various offices […]
Given on the fifteenth day before the calends of March at Constantinopole by Theodosius Augustus in his sixteenth consulate and by the above mentioned.32

33The code did not cancel the fiscal and administrative rules found in the registers of various offices, nor those kept in the archives of the higher military commands and held by the magistri militiae. Instead, imperial law permitted the preservation of discrete systems in two important sectors: financial institutions and the military.

34The empire had many special tax arrangements, including several special regimes for soldiers. For a long time, soldiers had been absolutely subject to military discipline, lacking the rights of the citizen. No later than the 3^rd century, separate rules had been formulated for them, and with the passage of time, these blossomed into an autonomous body of law, designated the ius militare. In the Late empire, much of the Roman army was comprised of barbarian soldiers, and I believe that they merited their own compilations.33

35A jurist in the present day would wonder whether these bodies of law were law or custom. However, that is a modern thing to wonder. In the 6^th century, the two concepts often coincided, as in the expression consuetudo legis.34 As far as the compilations created for barbarian soldiers are concerned, the combination seems apt. Of course, each law should be studied individually, as each was formulated under its own unique circumstances, according to how long the peoples had been a part of the Roman empire and on what legal basis. If we limit our scope to the most ancient of these laws – the law of the Franks, as expounded by Jean-Pierre Poly, and that of the Britons in Armorica, which I have analyzed – a major difference is evident. The Pactus legis salicae sanctioned an agreement between the tribes and their commanders regarding the customs that were to have the force of law. The Excerpta de libris romanorum et francorum, on the other hand, were a set of notable sentences held aloft as examples to be emulated by the judge. Some related to complex cases, such as when a balance had to be struck between Roman values and a strong penchant for revenge. There were times, for instance, when the judge had to grant a ius occidendi to the victim or his family.35 The first barbarian laws did not precisely reflect native peoples’ ancient customs, but this does not mean that the two were unrelated. On the contrary, their purpose often was to reconcile Roman laws and tribal practices.36

36The examples above help us appreciate the salience of legal pluralism in the Western part of the empire, where it sowed the seeds of early medieval law. This pluralism offers fertile ground for further scholarship, thanks to the place given other forms of law and alternative dispute resolution. The reality, we see, is that law should be seen not as a mere collection of rules given by the state, but as a living set of rules where state law often intertwines with local practice.

37As we observe law in action, we see the emergence of various applications of state law. Perhaps there were other practices that were radically at odds with Roman law, but there is a paucity of sources about these. Be that as it may, how should these different sets of rules be conceived? Must we use the terminology of legal pluralism, of plurality of laws? What is clear is that it would be simplistic to regard law as monolithic. Better to think of it as an umbrella concept with a host of applications ranging as widely as do its uses and the needs of its users.