But 1 will rr\' zo a\'oid being tou speculati\ e.’ M\’ approach will he straightforward. 1 will look at what seems to me to be oddities in \er)' early Roman legal history, and seek an e.xplanation in prehistory. Law, as 1 claim, at any gi\en time deri\es from the past. And past law casts a long shadow. 1 suggest that the folhtw ing features of early Roman law are unexpected, surprising, and demand explanation. 1 w ill first set themout, then trt’ to explain them. a) Until well into the Republic the Romans were regarded and regarded themseb es as the most religious peoples.' \et religion with legal impact has little place in the law. 'Lhus, the oath with legal effeet occurs in only four contexts, three iiiMih ing procedure; Icgis actio sacnimctito; iusiurandurn mressarium: iasiurajiduni iu litem. I'he last mentioned of these is clearly designed, as argued earlier in this book, because of a problem with the standard legal procedure: to allow in \er\’ precise situations specific deli\ery instead of the fundamental award in money. The prewious one mentioned was a de\’ice to hasten the trial process, fhe one oath with an effect in substanti\ e law, the in.nuraudumliherti, has all the appearance of being a rather late, though Republican, innovation, with the purpose of resolv ing a technical impasse: the manumitting (wv ner of a slave wanted future serv ices fnvm him or her but no civil obligation could arise between owner and slav e, and a freed slave might not enter a contract. .\n oath before manumission with an undertaking to enter into an agreement was the solution. b) d'he earliest Roman procedure, the Icgi.f actio.uicramcnto, is entirely illogical. Religious oaths are here used to bring into court pure2 Consequently I will keep my notes to a minimum, and as far as possible avoid discussing the work of others. But see, e.g.. Max Kaser, Das altrömische lus (Göttingen, 1949); Herman van den Brink, lus fasque (Amsterdam, 1968). 3 See, e.g. Cicero De haruspicum responsis 9.19; De natura deorum 2.3.8; Sallust Bellum Catilinae 12.3; Bellum Jugurthinum 14.19; Valerius Maximus 1.1.8.9; Tertullian Apologeticus 25.2; Polybius 6.56.6ff. Augustine pokes fun at this notion: De civitate De/4.8. 154
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