In the company of Roman jurists, discover the implicit aspects of our culture

Interview with Dario Mantovani

Dario Mantovani is a legal historian.His work focuses on Roman law as a technique of thought, a tool for governing social relations and an expression of Roman society.
If we consider the hold that Roman law exerted on Europe from the ^11th  century onwards, understanding this rich interpretative heritage means reappropriating a fundamental element of the European legal tradition and practicing, also for our time, a technique for the reasoned solution of conflicts.
Since 2018, Dario Mantovani has held the  Law, Culture and Society in Ancient Rome chair at the Collège de France.

Your chair at the Collège de France is entitled " Law, Culture and Society in Ancient Rome ". Is there a tendency to isolate Roman law from its historical context ?

Dario Mantovani :The idea we have of Roman law today is linked to the role it has played since the ^11th century. From that time onwards, it has been applied in almost all European countries and, as a result, used in contexts other than that of its origin. These successive lives of Roman law have gone hand in hand with a loss of historicity. To counter this risk of flattening, I am interested in the contextualization of Roman law in antiquity, rather than its re-use in contemporary times, hence the title of my chair. Nevertheless, I am acutely aware of the role that Roman law has played in Europe's legal and institutional imagination. That's why I'm keen to reveal the implicit traces it has left in our thinking and vocabulary. My work of contextualization thus consists of reactivating awareness of Roman law " as it was " and, at the same time, locating it in what might be called our " legal unconscious ".

In your work, you say you try to take an internal view of Roman law. What do you mean by this ? Does this point of view aim to compare our contemporary societies with Roman society ?

When I read the texts that make up Roman law, I try to adopt the mental framework of their authors. I apply Max Weber's comprehensive sociology to the men and women of antiquity. In other words, I believe that what is interesting is not to give my point of view on the Ancients, but rather to understand their own thinking : to put it another way, to rethink what they thought. To understand the products of the mind of an era, you have to live in it :I feel I've spent most of my life in the company of Roman jurists and sometimes great minds like Cicero, who is one of my favorite authors. A good knowledge of Latin is indispensable : I find it hard to understand, to tell the truth, how one can do without a good knowledge of the language of the documents one is studying. It's like moving abroad without trying to speak the language of the host country, without forgetting your own language and culture.

I'm not trying to compare contemporary society with Roman society, because that would require finding a point of comparison, which would run the risk of artificially standardizing them. But asking the question of what is comparable helps to free Roman law from the various deformations that have been imposed on it over time.

Your research corpus consists of the texts of Roman jurists. What exactly are these texts ? Who were these jurists, and how did their texts come down to us ?

Roman jurists were individuals who distinguished themselves simply by their expertise, by a knowledge that was specific to them. Aristocrats belonging to the Roman elite, they were able to devote part of their time to answering legal questions. On a personal level, this activity enabled them to gain a clientele and, on a collective level, to contribute to the governance of the city. Jurists often embarked on political careers, and to become praetors or consuls, they needed the vote of the people. This exchange of knowledge for the material and political support of a circle of clients was typically aristocratic ! Jurists also advised magistrates, those who administered justice, and thus found themselves at the heart of the legal system. The sources of law were varied : laws, Senate decrees, magistrates' edicts, and later, imperial constitutions, those norms issued by emperors from Augustus onwards. Jurists were able to synthesize all these sources and relate them to the cases submitted to them. The development of Roman law therefore relied heavily on the expertise of these jurists.

After being consulted by magistrates, certain jurists, who can be referred to as " juristes écrivains ", transcribed their opinions in writing. This Roman legal literature began in the early ^2nd century BC, and reached its peak inthe ^2nd-3rd centuries AD. In the ^6th century, at the end of Roman history, Emperor Justinian saw fit to commission an anthology of this legal literature, the famous Digest. With this work, whose name refers to the idea of an organic recompilation (" digested "), Justinian wanted to reduce this literature to a form approaching legal texts. To do this, he unfortunately removed from the texts most of the controversies between jurists, which often reflected different values and opinions. These men were, to put it in today's terms, intellectuals who, sometimes over several centuries, engaged in fierce, brilliant, agonistic dialogue.

The Digest isthe main source of these texts ?

Yes ! Apart from the fact that the Digest slightly distorted the original texts, often retaining only the conclusions of the debates they presented, it only offers extracts from the works of the jurists : so we don't know them in their entirety. The Digest has come down to us in several manuscripts, one of which was probably brought from Constantinople in Justinian's time, after the reconquest of Italy. Preserved in Florence from 1406, it was guarded with all the care befitting its aura.

During the Middle Ages, the Renaissance and up to the ^18th century, thousands of indirect copies of this manuscript circulated throughout Europe. Many universities still have one or more medieval manuscripts of the Digest in their libraries, tangible proof of its circulation ! Alongside the Digest, other texts, also written by Justinian, have handed down Roman law to us : the Institutes, a teaching manual designed for Byzantium, but which trained dozens of generations of jurists throughout the world ; the Code, a collection of laws promulgated by the emperors ; and the Novelles, which compile the more recent laws of Justinian and his successors. This corpus of civil law, the Corpus juris civilis in Latin, forms the basis of Europe's legal and political culture , and gives us the words we need to live together.

Why isthe Digest still so important today ?

Compared to the other texts of the Corpus juris civilis, the Digest has the particularity of containing the reasoning of the jurists I mentioned earlier. This thinking has been understood, and continues to be understood, as law stemming " from human reason ". This is, of course, nothing more than an ideology, an exaggeration, aimed at legitimizing this law ; but this strategy of legitimization, and also the great quality of this law, enabled it to impose itself in our world, which was very different from that of its origin, and to become, in essence, the very way in which we think about law in the West. The Digest was also a common starting point for many disciplines, such as economics, which was forged - before becoming a discipline linked to mathematics - from the categories contained in this text, i.e. developed two thousand years ago by the jurists at work in ancient Rome. Equity, good faith, humanity, but also contract, the person, etc., are all concepts and values from the Digest that feed into our mental categories. These notions have an exemplary value, and the difficulty for me is to balance two positions : putting Roman law into context, and valuing this repository of very subtle ideas and reasoning.

The Roman legal corpus also includes fragments oftexts independent of Justinian's. You directed a collective research project that considerably enriched this corpus..

As part of the RedHis program, funded by the European Research Council (ERC), I and a group of brilliant young papyrologists have been exploring papyrological collections around the world in search of papyri and parchments of Roman legal texts. We have almost doubled the number of fragments of copies of legal books known to date. This has shown that, even though Roman jurists stopped producing new works around 300 AD, there was an intense circulation of legal literature from earlier periods in Late Antiquity . Until now, it was thought that Late Antiquity was a period of rupture, when the works of jurists were not well understood. Our research shows the opposite : thanks to the books written by previous jurists, which were always copied and read, there was a very long stability of Roman law, which was a real tool of Roman government over the Mediterranean world. Today, modern editions of the Digest are easy to find, and there's no need to go and consult the manuscript in Florence  to read it! For me, however, going from consulting the texts via a printed book to direct contact with a ^4th century papyrus was a major step towards realizing that legal thought had a body, a materiality. Ultimately, this led me to consider these writings as literary texts : the idea is to conceive of ancient literary space as a graduated space, including, as far as prose is concerned, the speeches of orators, which have always been valued as literature, but also texts of history, philosophy... and legal texts. It's because Roman law has played a special role in European history that it has been invisible in the literary corpus. I've always dreamed of writing an anthology of Roman jurisprudence like the one that exists for French poetry ! To read these texts, I can only invite readers to seize all the analytical tools that generations of scholars have developed for the study of Latin and Greek literature.

In your research, you evoke the " points of contact " between legal texts and all other texts, i.e. common words or expressions that signal belonging to the same culture. How do you identify these points of contact, and can you give an example ?

We're living in the digital age , which makes it easier to search for occurrences. But beyond this practical aspect, we need to be open to the resonances between texts. When we study the history of law, we imagine that we need to connect law to the society that surrounds it, but this proves difficult, as these are two different things : society is a set of phenomena, and law is a discourse. So how do we relate legal norms to society ? The only way is to relate law to other discourses, to choose homogeneous fields, in short. Sometimes, it's only the slightest traces that enable us to make the connection, such as the presence of the same word " vestigium ", used by the jurist Nerva and in Virgil in comparable contexts, which enables us to detect similar ideas in the poet and the jurist about the origin of human society.

The writings of Roman jurists reveal a law that was perpetually in the process of being written, often several centuries apart. Is this way of producing law far removed from our contemporary practice of law ?

From an ideological point of view, Roman jurists were staunch conservatives : in their eyes, changing the law was always for the worse. If there's a difference with contemporary times, it's that today we're in the ideology of reform. What's more, our contemporary law deals with a very broad field compared to Roman law, which only concerned patrimony and certain aspects of family law. Today, law is also used in the technical field - , for example, to establish the rules for energy transition - where other discourses and points of reference exist alongside legal thought itself. The law is obliged to have recourse to other references, beyond its own vocabulary. It has therefore changed a great deal ! I'm always wary of attempts to re-use Roman law to settle contemporary issues, because they try to stretch it beyond its possibilities, beyond its original scope.

As a legal historian, you have a wide-ranging view of our contemporary times. It leads you to question the reports of the Intergovernmental Panel on Climate Change (IPCC), and our relationship with nature...

Reading the latest IPCC report was like reading Plato's Republic or Cicero's Treatise on the Laws ! Even if it is not prescriptive, the IPCC proposes a project for society, with a horizon to be reached, and also the means to achieve it, both technically and in terms of the organization of our societies. The IPCC experts express their views on the scientific findings of global warming, on forecasts of environmental impacts, and on mitigation strategies - in other words, on a project for reforming our societies. The fact that these reforms are being advocated by a group of experts, without being widely discussed, surprises me a little. Has there ever been a time in human history when, every five years, specialists propose a model of society towards which we should be moving ? There is a risk of overlooking the political side of these reports. We need to read them in public, to understand them better and feel truly involved.

As for our relationship with nature, I'm interested in making the link with Roman law. The latter is the cradle of the idea of the law of nature, the ius naturale, which is a current of modern legal thought and also the basis of the theory of human rights. We are living through a legal transition, not just an ecological one : a transformation of legal categories is underway, which should enable us to grasp the changes linked to global warming, this new reality. Does Roman law have anything to say about environmental law ? The problem is that the term " nature ", in the ancient expression " nature law ", does not refer to the environment, but to the immanent nature of human beings, the internal vital force that drives every being to become what it should be. This " nature " is totally internalized. This concept is the most anthropocentric intellectual construct imaginable, justifying, for example, the complete exploitation of living beings by man. The Roman vision of the environment granted no rights to non-human beings.It's precisely the opposite that we're trying to think about today, with all the practical and conceptual difficulties that implies. Becoming aware of the Roman implicits of our modern thinking, which can enrich it but sometimes also weigh it down, helps to breathe new energy into it.

Interview by Catherine de Coppet