Rites of Passage: Legal Ritual in Roman Law and Anthropological Analogues

The Journal of Legal History

Volumn 9, Issue 1, 1988, Pages 3-25

  Tiersma, Peter Meijes ^a  

^a NONE   (United Kingdom)

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[No Author keywords available]

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EID: 84951946230     PISSN: 01440365     EISSN: 17440564     Source Type: Journal    
DOI: 10.1080/01440368808530917     Document Type: Article

References (52)

1. 1. W.W. Buckland, A Text-book, of Roman Law 72 (P. Stein 3d ed. 1966).
2. 2. Id. at 72–3.
3. 3. H. Jolowicz & B. Nicholas, Historical Introduction to the Study of Roman Law 134 (3d ed. 1972).
4. 4. Buckland, supra note 1, at 73–4. This process is much like legis actio based on the sacramentum, which was a ritualistic means of settling a dispute. The in rem action is best known. If two parties claimed a particular plough, for example, the plaintiff would have to see to it that the defendant appeared before the Praetor, by force if necessary. Each party would touch the object, utter ritual words that it was his, and touch it with a wand. The Praetor then told them to release the object and ultimately the plaintiff challenged the defendant to a wager (sacramentum). The defendant had to reciprocate, and both gave security for the amount wagered. The dispute could then go to the centumviri, 105 men drawn from the 35 tribes, who would appoint a judge. The judge indirectly decided the case by deciding that one party had delivered a sacramentum iniustum. R.W. Leage, Roman Private Law 435–8 (A.M. Pritchard 3d ed.).
5. 5. Id. at 74–82.
6. 6. Id. at 112–13.
7. 7. Id. at 116–17.
8. 8. Id. at 118–21.
9. 9. See infra note 16 and accompanying text.
10. 10. Buckland, supra note 1, at 120–21.
11. 11. Id. at 121.
12. 12. Id. at 131.
13. 13. Id. at 238–9.
14. 14. Id. at 226–32.
15. 15. Id. at 227–8.
16. 16. Id. at 235–8.
17. 17. Id. at 240.
18. 18. Jolowicz, supra note 3, at 144–6.
19. 19. Buckland, supra note 1, at 233–5.
20. 20. Jolowicz, supra note 3, at 150.
21. 21. Id. at 164–6. The dispute surrounding the nature of nexum is sketched in DeZulueta, 'The Recent Controversy About Nexum, 29 Law Quarterly Review 137 (1913).
22. 22. Jolowicz, supra note 3, at 164–6.
23. 23. M. Kaser, Römisches Privatrecht 33–46 (12th ed. 1981).
24. 24. Buckland, supra note 1, at 436–7.
25. 25. Id. at 462–3.
26. 26. Id. at 481–98.
27. 27. A. Van Gennep, The Rites of Passage 11 (trans. M. Vizedom & G. Caffee 1960). Sometimes this is done by a mock battle, in which the groom and his friends ‘steal’ the bride from her group. This has often been considered a remnant of marriage by capture, but Van Gennep declares it to be a simple ritual of separation. Id. at 123–28.
28. 28. Id. at 116–17.
29. 29. H. Maine, Ancient Law 165 (Beacon 1963). See also M. Gluckman, The Ideas in Barotse Jurisprudence 171 (1965).
30. 30. J.L. Austin, How To Do Things with Words (2d ed. 1975); Searle, Speech Acts (1969). For a brief explication of the theory and its application to an area of the law, see P. Tiersma, ‘The Language of Offer and Acceptance’, 74 California Law Review 189 (1986).
31. 31. Buckland, supra note 1, at 72.
32. 32. R. Huebner, A History of Germanic Private Law 584–603 (F. Philbrick trans. 1918).
33. 33. R. Barton, Ifugao Law 1 8–20 (1919).
34. 34. Gluckman, supra note 29, at 173–5. My analysis of nexum and primitive obligation in general is similar to Huschke’s proposals regarding the nature of nexum, discussed by De Zulueta, supra note 21. Huschke hypothesized that the nejcwm-loan was a publicistic transaction where the witnesses represented the Roman people and the creditor acquired his right in a public capacity as pars populi. The debt had the sanctity of one created by the authority of the state. Of course, to what extent this view comports with historical reality remains an unresolved question, but it certainly fits in well with the view of ritual in this paper.
35. 35. Gluckman, supra note 29, at 196.
36. 36. Id. at 269.
37. 37. C. Moss, Nabaloi Law and Ritual 255 (1920).
38. they 38. Id. at 253–5. Originally this was also the mode of transfer of carabao, cattle, and horses. Moss states that the presence of the community members was to guarantee witnesses later in the case of a dispute. This is certainly part of their function, but it is not unlikely that also represent the community in an important communal event.
39. 39. R. Barton, supra note 33, at 39–46.
40. 40. L. Fuller, ‘Consideration and Form’, 41 Columbia Law Review 799 (1941).
41. 41. Newman, ‘Vocabulary Levels: Zuni Sacred and Slang Usage’, 11 Southwestern Journal of Anthropology 345 (1955). Newman mentions, for example, that the ordinary word for frog, takka, is replaced in sacred songs by woliye tinan k ayapa, meaning literally ‘several-are-in-a-shallow-container they-sitting they-are-in-liquid’.
42. 42. H.P. Grice, ‘Meaning’, 66 Philosophical Review 377 (1957); see also H.L.A. Hart, ‘Signs and Words’, 2 Philosophical Quarterly 59 (1952). The communicative aspect of ritual is also discussed in R. Pyle, ‘Law, Ritual and Language’, 8 ALSA Forum 381 (1984).
43. 43. Maine, supra note 29, at 324.
44. 44. J.L. Austin, ‘Other Minds’, in Philosophical Papers 99 (3d ed. 1979).
45. 45. For an argument in favor of predetermined formulas to promote clarity of meaning in the modern commercial world, see Goetz and Scott, ‘The Limits of Expanded Choice: An Analysis of the Interaction Between Express and Implied Contract Terms’. 73 California Law Review 261 (1975).
46. 46. Buckland, ‘Ritual Acts and Words in Roman Law’ in Festschrift Paul Koschaker I 16 (1939).
47. 47. Id. at 19–20.
48. 48. Id. at 22.
49. 49. See Jolowicz, note 3, at 116.
50. 50. Buckland, supra note 1, at 283.
51. 51. Id. at 238.
52. 52. The philosopher Searle classifies illocutionary acts into five groups: assertives, directives, commissives, expressives, and declarations. See J. Searle, ‘A Classification of Illocutionary Acts’, 5 Language in Society 1 (1976) and J. Searle & D. Vanderveken, Foundations of Illocutionary Logic 17 9–211 (1985).