Oralità e scrittura, limite e innovazione della legge nei diritti del Mediterraneo antico. Alle origini della codificazione
Orality, Writing, Law, Limit and Innovation in the Rights of the Ancient Mediterranean: The Origins of Codification

Author(s): Giovanni Brandi Cordasco Salmena
Subject(s): Law, Constitution, Jurisprudence
Published by: Правни факултет Универзитета у Источном Сарајеву
Keywords: Codification; Orality; Writing; Limit; Innovation; Colonization;
Summary/Abstract: In the heritage of ancestral experiences, the writing of laws among the peoples of the ancient Mediterranean, and then, more specifically starting from the 8th century BC, among the Greeks of colonization, a fundamental innovation, though primarily cultural and political rather than strictly legal, is evident from the Near East to the West in the codification of normative texts. The notion of law being "profoundly enigmatic" marks the beginning of a narrative that ventures beyond a confined reflection solely on the legal sphere. From this perspective, I find it intriguing to observe how such an aspect remains closely connected to contemporary Western legal systems. Indeed, a certain, even rapid, devolution is tethered to the decline of existing codes, which grow increasingly distant from their historical foundations due to a multitude of all-too-familiar factors. For Romanists, such a complex articulation of the legal production system would have appeared, as noted by Giodice Sabbatelli, almost like an echo of the catalog of constituent elements of Roman iura populi, as stated by Gaius in the opening of the Institutions (constant autem iura populi Romani ex legibus, plebiscitis, senatusconsultis, constitutionibus principum, edictis eorum qui ius edicendi habent, responsis prudentium). A potential, although certainly partial, parallel between recent and historical experiences can only facilitate the understanding of certain as-yet-unexplored circumstances. The legal historian, therefore, questions, with the aim of profiting from it, in what sense the terms "code" and "codification" should still be used in the context of the multifaceted current reality compared to the significance of ancient experiences, such as Roman law and even earlier, those of the ancient Mediterranean rights; whether there is an identity of structure and functions between ancient codes, eighteenth-century codes, post-revolutionary codes (nineteenth and twentieth centuries), and codes of the contemporary era. Over the centuries, numerous meanings of "code" have succeeded each other; the term, already used by the Sumerians and Babylonians, except where I will specify, refers to the assembly of written texts (established as a limit on the sovereign), but it says too little about the characteristics of the collected legal material; the Latin derivation, on the other hand, is structurally linked to the precepts of the Twelve Tables.The study of codification movements allows us to observe that when, within legal systems, laws and the complex of doctrinal opinions began to appear as cumbersome and contradictory, several natural movements emerged: firstly, there was the control and selection of the activities of jurists, or interpreters, then, a natural tendency towards the reorganization and consolidation of pre-existing normative materials into coherent groups became evident. Only after these steps did instances of innovative collections emerge, capable of replacing the pre-existing legal framework.That's what happened in Rome, but to some extent also in the ancient Mediterranean civilizations. The Tables of the Law represent the earliest written law of Rome, the ‘embryo’ of a legal system that begins to organize itself on a rational basis, both procedurally and substantively. They would differ from previous collections of norms, most notably the Code of Hammurabi, which instead limited their scope to mere prescriptive enumerations. However, an undeniable common trait is the sense of limitation. The Twelve Tables were established in 451 BC when, under the pressure of the plebeian tribunes who sought to wrest jurisdictional authority from the patricians, the decemviri, all of whom were patricians, were appointed to draft written laws. They were appointed for a term of one year, while all other magistracies remained suspended.Nor can it be dismissed as of little significance that both Livio and other Roman authors attest to the fact that the decemvirs, while not necessarily for the content, certainly for the form, took as a model similar type of laws already written in the Greek world. These included Lycurgus in Sparta (750 BC), Zaleucus in Locri (660 BC), Draco (620 BC), and later Solon (594 BC) in Athens, Charondas in Catania (550 BC), and finally, the laws of Gortyn in Crete in 500 BC. Pomponius and Pliny even transmit the name of a certain Hermodorus of Ephesus, exiled from his homeland, who purportedly acted as an interpreter.

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