David M. Ratzan
This paper argues that the much-debated extract on divination from Bk. 7 of Ulpian’s De officio proconsulis (ca. 212-217 CE) in the Collatio Legum Mosaicarum et Romanarum is authentic through a detailed philological and historical comparison with P.Coll.Youtie I 30 (199 CE), a papyrus which preserves an edict of Quintus Aemilius Saturninus, the Prefect of Egypt, in which he bans certain forms of divination.
Over the course of Roman history divination went from being a privileged political institution to a late antique imperial crime, one worthy of its own title in the Codex Theodosianus (9.16: de maleficis et mathematicis et ceteris similibus (= CJ 9.18); cf. CTh 16.10 passim). It is thus one of the more curious features of the Digest that it contains practically no mention of divination whatsoever. Instead, our earliest evidence for the criminalization of divination in Roman law is the putative extract from Bk. 7 of Ulpian’s handbook. De officio proconsulis was popular and authoritative in antiquity, and therefore richly attested—except for this passage on divination, which survives only in the late and problematic Collatio (15.2.1-6; cf. Frakes, Compiling the Collatio [2011]). The authenticity of this extract has been vigorously debated, and with good reason (e.g., Fögen, Die Enteignung der Wahrsager [1993: 63-74, 178-82]; Nogrady, Römisches Strafrecht nach Ulpian [2006: 185-98]). Surprisingly, this debate has never considered the edict of P.Coll.Youtie I 30, in which Saturninus takes the extraordinary step of banning local forms of divination in particularly forceful terms. This paper will firmly embed Saturninus’s edict, our only documentary source for the criminalization of divination before the fourth century, in the administrative, cultural, and legal developments of the late second century, and then proceed to draw connections between its specific contents and idiosyncratic language (e.g., it contains two hapax legomena in the papyrological corpus, revealing Greek calques of the original Latin text) and the extract in the Collatio. There is every reason to draw these connections: De officio proconsulis represented Ulpian's effort to systematize the preceding 75 years of ad hoc legal practice by governors like Saturninus into a coherent and uniform body of imperial legal theory and norms (cf. Peachin, Iudex vice Caesaris [1996]; Millar, “Government and Law” [2002]). In other words, conceptual and verbal echoes between Ulpian’s prescriptions for governors confronted by criminal divination and the Latinate pen of a recent Severan governor are unlikely to be mere coincidence. Fögen was, without a doubt, the most elegant and persuasive partisan against the authenticity of the Collatio passage. She argued incisively that its style, language, and legal thought all reflect the post-Diocletianic attitude to divination. The only alternative, in her view, is to see Ulpian as a lonely innovator, actively and unilaterally creating a legal discourse where none had existed before (1993: 74). But Ulpian was not alone: more than a decade before he set out to impose a coherent legal order on two centuries of disparate imperial police actions against divination, there was Saturninus, busily providing grist for Ulpian’s legal mill. Nor, for that matter, was this the only area in which we may see Ulpian forging legal theory out of administrative practice: the creation of a law of divination may be paralleled to other ex post facto juristic rationalizations of the Severan period, specifically the crime of stellionatus.