Each of the principal gods had priests known as “flamens” devoted to him, to make sacrifices and perform rites. Ancient taboos and rituals surrounded these sacred offices. A flamen could not, for instance, ride a horse, touch a she-goat, wear a jeweled ring, or tie a knot in any of the clothes he wore. The origin of these and other peculiar taboos is, by now, not merely obscure but unknowable.
The flamens were important figures for two main reasons. First, their deliberations were the primitive basis of law and had something of its coercive force: you could not defy them with impunity. Second, because it was so desirable to have an idea of what the gods approved, from this need arose the practice of augury.
The Etruscans seem never to have done anything important without a religious motive, and respect for what the Romans called the Etrusca disciplina was passed on and remained embedded in the codes of Roman public and religious life. Well into imperial times, Rome maintained a “college” of Etruscan diviners, a privileged group known as the haruspices, whose task was to read the will of the gods from lightning flashes (fulgura) and other portents, especially the flight of birds (what part of the sky they came from, what their speed and heading were) and the markings on the livers, gallbladders, and guts of sacrificed animals. Some believe that the requirements of these vatic birdwatchers influenced, or perhaps even once determined, the siting of temples (on hilltops) and the orientation of their façades (so that the migratory passage of bird flocks could be compared with them). Templum did not originally mean a building; it signified a place set aside for the utterance of formulaic words in augury. The augurs’ requirements may also have determined the form of the temples: that they were set on tall podiums and had to have one single façade (unlike Greek temples) may have been ritual necessities. But there is no way of proving such things now.
The aim of augury was not simply to foretell the future. It was to find out whether a proposed course of important action was likely to have the approval of the gods. A common way of doing this was consulting the sacred chickens. These otherwise ordinary fowls (there seem to have been no criteria for telling a sacred chicken from a nonsacred one) were carried in a cage to the field by Roman armies. Before the battle, they would be given chicken feed. If they pecked at it with gusto, letting bits of food fall from their beaks, this was greeted by the augurs as an excellent omen. If they ignored the offering, it was a very bad sign. If they ate halfheartedly or seemed choosy, that too had its meaning for the augurs. Many Romans of the highest rank took this charade perfectly seriously. One who did not was Publius Claudius Pulcher, an admiral of the Roman navy who, just before an engagement between the Roman and Carthaginian fleets off Drepanum during the First Punic War, in 249 B.C.E., cast the grain before the fowl and was told, by the ship’s augur, that the birds would not eat. “Then let them drink,” Pulcher exclaimed rashly, as he grabbed the chickens and threw them overboard. Alas, he lost the ensuing battle.
If pietas was one of the two defining virtues for ancient Rome, then lex—law in all its guises and forms, starting with the great and fundamental distinction between civil law and criminal law—was the other. The Romans were tremendously energetic codifiers, and the corpus of Roman law, a conceptual edifice so vast that it defies any possibility of summary here, remains the foundation of all Western legal systems since. Its earliest form, drawn up by a special commission of jurists in the republican period (c. 450 B.C.E.), was known as the Twelve Tables, and so much importance was attached to it that four hundred years later, during the lifetime of Cicero, schoolboys were still obliged to recite it by heart, even though the code of law by then had so hugely expanded as to render the original Twelve Tables, though still fundamental, obsolete. They would remain the cornerstone of Roman law for the best part of another thousand years, until they were at last superseded by the Corpus Iuris Civilis of the Emperor Justinian.
What was law in the Roman view? Certainly not the false principle that “might is right,” although—particularly in their dealings with non-Romans—you might often suppose that is what they believed. The code of law was not simply a code of power, and this made all the difference between Roman law and its more primitive antecedents. “Justice,” wrote the jurist Ulpian (Domitius Ulpianus, d. 228 C.E.), “is a constant, unfailing disposition to give everyone his legal due. The principles of law are these: to live uprightly, not to injure another man, to give every man his due. To be learned in the law is the knowledge of things divine and human, the science of the just and the unjust.” Law was the god in the codex.
Its principles, written down by such jurists as Julius Paulus (late second century C.E.) and notably Ulpian, seem so elementary and self-evident now that it is hard to believe they had not existed forever, but of course they had not. “He who has knowledge of a crime but is unable to prevent it is free of blame” (Paulus). “He inflicts an injury who orders it to be inflicted; but no guilt attaches to him who is obliged to obey” (Paulus). “In the case of equal conflicting claims, the party in possession ought to be considered in the stronger position” (Paulus). “No one is compelled to defend a cause against his will” (Ulpian). And “Nemo dat quod non habet” (Ulpian): “No one can give what he does not have.” Such were a few of the 211 entries in the “General Rules of Law” inscribed in the Digest of the Emperor Justinian.
The making of law was, as the name implies, “legislation.” Who made law under the Republic? Popular assemblies, divided at first into military units and later, after the third century B.C.E., by a council of common (i.e., not royal or patrician) citizens known as the Concilium Plebis or Council of the People. Its votes and resolutions were known as plebiscita, from which stems our concept of a “plebiscite” or general popular vote. At first the men of money and property, the patricians, vehemently objected to the idea that they should be subject to the same laws as commoners. They thought they should make their own for themselves. But in 287 B.C.E. a dictator, Quintus Hortensius, passed a law that all citizens, patricians included, should be bound by any law passed by the Plebeian Council. This “Hortensian Law” was a milestone in Roman class relations. It deprived the patricians of their last means of arbitrarily dominating the plebeians.
Much of the physical legacy of Justinian’s reign would disappear. Most of the hundreds of churches, aqueducts, and other public buildings erected by this fifth-century Christian emperor—with certain great exceptions, such as the Church of Hagia Sophia in Constantinople—have fallen into ruin or disuse, but not the epitomes he made of earlier Roman law. Justinian’s Corpus Iuris, despite the Greek and Christian elements that entered it, remained essentially Roman law, and because the imperial constitutions were issued in the names of both Eastern and Western emperors and were held to be binding throughout the Roman Empire, they would eventually radiate—through the universities of England, France, Spain, Italy, and Germany—to encompass the entire legal basis of Europe through the Middle Ages and on into modern times.