American Journal of Philology

This book is more than an investigation into an aspect of Roman law and legal thought. At the very beginning, Dennis Kehoe clearly identifies his goal: “My purpose in this study is to clarify the basic relationships characterizing the agrarian economy of the early Roman Empire by analyzing the economic mentality that guided upper-class Romans in managing their wealth. My conviction is that the type of agrarian planning based on upper-class conceptions of investment and profit played a fundamental role in shaping the Roman economy as a whole. . . . In this study, I propose to address this problem by analyzing the assumptions that the Roman jurists in the Digest of Justinian and in other classical sources made about investment and profit in agriculture as they addressed legal issues involving private property. I base my analysis on the legal sources because, as I shall demonstrate, they offer a more comprehensive picture of the economic interests of upper-class Romans than we can gain from other types of evidence, including literary evidence, documentary papyri, and inscriptions” (vii).

The author’s awareness of the problems in using legal evidence to shed light on larger issues and his openness about his own assumptions and about the limitations of the methods and the sources he has chosen to employ are among the work’s great strengths. In marked contrast with some other investigations of such matters, Kehoe does not assume that laws provide a simple, straightforward, and transparent entry into the structure and organization of economy and society. The work opens with an examination of the legal sources as evidence. Their condition offers one problem. The writings of the late Republican and early Imperial jurists are preserved largely in relatively brief citations included in the great collections of the sixth-century a.d.: Justinian’s Digest and Code. As Kehoe notes, this presents a major problem for investigators: to what extent do these passages represent the original—that is, was obsolete material removed systematically, and were the passages adjusted to fit the compilers’ concerns? Following authorities such as M. Kaser and F. Wieacker, the author takes an optimistic view of the matter, suggesting that “contemporary scholarship is justified in moving away from the suspicion that the Digest is so thoroughly interpolated that the opinions of the classical jurists can only be recovered after exhaustive reconstruction of the texts” (9). While accepting the possibility of interpolation in individual cases, he has based his study on the “belief that the existing collections of legal texts do allow us to trace the thinking, in particular the economic thinking, of the classical Roman legal authorities” (10).

Having declared his intention to regard the citations as reasonably accurate reflections of their originals, Kehoe then turns to a more central question: the extent to which juristic writings reflect actual conditions. One school of [End Page 323] thought, represented by scholars such as Alan Watson (The Spirit of Roman Law [Athens, Ga., 1995]), suggests that Roman jurists operated within a system of traditional representations, maintained as if fossilized long after the conditions that had given rise to them had changed, and that legal writers largely wrote about internal problems in interpretation that had arisen within this system. The jurists, then, did not address problems of their own day, nor were they interested in adapting the law to new circumstances, and their opinions need bear little resemblance to actual arrangements in their own time and place. Others, however, are more convinced of the timeliness of Roman legal writing. Scholars such as B. W. Frier (Landlords and Tenants in Imperial Rome [Princeton 1980]) and S. D. Martin (The Roman Jurists and the Organization of Private Building in the Late Republic and Early Empire [Brussels 1989]) maintain that Roman jurists consciously and directly addressed in their writings the social and economic concerns of their contemporaries in the governing elite.

Once again, Kehoe takes care to situate...