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The lex Rupilia and the role of provincial administration in Roman legal history

Charles Bartlett

This paper analyzes what the actions taken to re-establish an administrative structure in Sicily in 131bc following the First Servile War indicate about prevailing opinions regarding provincial organization, systems of private law, and the relation between imperium and territory. The lex Rupilia, which details conditions for the determination of legal procedure based on the citizenship of the parties involved, appears at several places in In Verrem 2.2, but has received very little scholarly attention. Indeed, as far as I can see, neither has it been discussed in connection with contemporary Roman legal debates, nor has it received much treatment within discussions of Roman provincial administration. The lex Rupilia can contribute much to both areas. This paper argues that the lex Rupilia indicates that (I) the basis for the creation of an administrative zone is the decision of a decemviral commission, and (II) the implementation of the formulary system in this provincial setting further suggests the obsolescence of much of the legis actio procedure. This latter consideration points to the difficulties in adapting early Roman legal mechanisms to international arrangements.

Decemviral commissions are familiar within the context of Roman treaty arrangements. The Treaty of Apamea in 188 was settled through a board of ten men, as was the re-organization of Macedon in 168. There are of course other circumstances in which we hear of ten-man commissions, and perhaps the most famous decemviral boards are the two that created the XII Tables in 451/0. Though there was not a large-scale war in the years previous, these boards were likewise charged with crafting a settlement by which a community would be governed. The XII Tables are understood to be legitimate because they are based on the decisions of these boards of ten men. The legitimacy of the lex Rupilia is derived from a body similarly charged, and Cicero takes care to mention many times that the basis of the lex Rupilia was the advice of the decemviral commission (see, for example, 2.2.32).

What is different in the case of the settlement of 132/1 is that there already existed an intricate legal environment. Instead of codifying a legal order for the first time, the decemviral commission sent to Sicily in 132/1 had to consider many long-standing traditions. The solution, which is the basis of the lex Rupilia, was to impose upon these traditions mechanisms to appoint judges in disputes between citizens of different cities, between an individual and a community, and in cases involving Roman citizens, and to indicate that the Roman citizens in a given community would constitute the album of potential judges. The procedure indicated by the focus on appointing judges is the formulary system. In Roman legal history, the formulary system came gradually and imperfectly to replace the legis actio procedure, with the lex Aebutia, which dates imprecisely to between 149 and 126 and which expanded the number of recognized civil actions, marking an important step. The lex Rupilia does not help us date the lex Aebutia, but the temporal proximity of the two strongly counsels that we see in this period development away from the legis actiones. Not only does this decision in provincial administration shed light on contemporary issues in Rome, it indicates the difficulty in expanding early Roman legal institutions into an international context. As in the case of the fetial law, the peoples beyond Latium with whom Rome came into contact did not have the requisite corresponding religious offices, which were still intimately bound up in the administration of the state, but instead of making the terms of the required enactment more flexible, the Romans deployed an entirely different system. We should therefore see provincial management as a crucial aspect of domestic institutional design.

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Law and Empire in the Roman World

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