Forensic experts and medical examiners in the Roman world: law, knowledge and everyday practice

Ido Israelowich is invited by the Collège de France assembly, at the suggestion of Prof. Dario Mantovani.

Ido Israelowich

Terracotta funerary bas-relief depicting childbirth, found at Ostia on the tomb of Scribonia, a midwife.

Presentation

The central theme of my research is the dialectical relationship between positive law and the emergence of forensic science, examined through the prism of the dual issues of professional liability and malpractice liability. Planned lectures at the Collège de France will focus on the impact of both medicine as a discipline and physicians as a professional group on the evolution of positive law, in particular on the delineation of the limits of what is justiciable and on the modus operandi of the Roman court of justice. The Lex Aquilia will serve as a starting point: the first Roman law to depart from the principle of a fixed fine for a civil offence, it paved the way for a whole body of legislation that offered victims compensation rather than the proceeds of a fine, to better reflect their actual loss. However, the assessment of losses suffered (and therefore of subsequent compensation) often relied on the work of forensic experts, according to their own expertise. This innovation was not confined to the Lex Aquilia or to private law; later, institutions such as the edict of the aediles, contracts for the hire and employment of workers(locatio-conductio operarum) and even the Lex Cornelia de Sicariis et veneficiis regularly called on forensic experts to establish and assess faults and offences. It is the reciprocal relationship between positive law and medicine that I would like to examine in this series of lectures: the aim will be to study how mutations external to jurisprudence have guided the specific evolution of the latter, and vice versa.

Although there are already excellent diachronic studies on the effects of the Lex Aquilia on the judicial approach to tort liability, the impact of the law on the emergence of forensic science and forensic experts, on the one hand, and, on the other, the role played by new forensic means in the introduction of new judicial actions remain to be studied.

In particular, the involvement of doctors as forensic experts in the resolution of factual issues relating to tort liability, such as mens rea, intent, causation, good faith, the extent of damages suffered and culpability, will be examined. The aim will be to understand when, why and how doctors have been employed as forensic experts, and how their forensic functions have influenced both the legal system and their professional conduct.

The proposed lecture series will touch on some of the most important areas of the Roman legal system, such as tort law, risk allocation in commercial activity, mens rea verification in criminal cases, parental rights and responsibilities and, more generally, the penetration of scientific trends within the court of justice. From the point of view of forensic experts themselves, while focusing on doctors, occasional mention will also be made of other groups of forensic experts, such as surveyors, architects or financiers.

Lex Aquilia provides for compensation for any tortious act, offering the injured party compensation based on a firm estimate of the loss suffered. In contrast to previous forms of redress, the Lex Aquilia allowed for two criteria to be applied in recognizing the liability of the tortfeasor: this liability could be either physical or moral. In addition, Lex Aquilia liability presupposed a verifiable loss and the ability of the tortfeasor to understand the act committed. Finally, the law decreed that professionals hired to carry out a task had to respect the standards of the profession or be held liable for the loss suffered as a result of their incompetence.

As for the edict, it regulated the res mancipii trade by offering recourse to the buyer of a slave whose seller failed to inform him of all latent evils or defects(morbi vitiiue). The edict thus offered a commercial instrument for the distribution of risks, concerning current transactions of an important product. An important change in Roman sales law, this was a significant exception to the general directive caveat emptor et periculum est emptoris, and created fertile ground for the intervention of medical experts in dispute resolution.

In this lecture series, I hope to demonstrate that the Roman court increasingly relied on professionals to determine responsibility and assess losses, in all cases where the judgment required special skills (e.g. determining a person's paternity, finding an ancient deed or determining whether a slave was in good health at the time of his sale). Through the analysis of institutions such as the Lex Aquilia, the Edilian edict, or rescripts relating to a contestation of maternity or paternity as both indications of the emergence of legal sciences, that of professional responsibility and liability for malpractice, and the fruit of these mutations, we will be able to grasp some of the crucial competences of Roman justice, such as the allocation of risks, or the sharing of the responsibilities of both parties in rental and recruitment contracts(locatio-conductio). In addition to providing a better understanding of the modus operandi of each of these professional groups, as figures of authority, within the Roman court, this study constitutes the first analysis of its kind of the fundamental themes of the reciprocal relationships between the formal administration of justice and other professional disciplines, as well as the way in which individual disciplines both endorse justice and are in turn endorsed by it. In this way, it will shed light on the mechanisms of mutual influence between economics and jurisprudence. Analysis ofthe dialectical relationship between jurisprudence and the other disciplines that now function as sources of authority will also show how the limits of judicial power have come to be defined and marked. Methodologically, this is a bottom-up research project on the influence of the Lex Aquilia on the development of the legal sciences, professional liability and civil liability, while taking care to juxtapose the two perspectives: that of the court vis-à-vis the outside world, and that of the professionals themselves vis-à-vis the court.