The Imperatives of the Aedilicean Edict

Tijdschrift voor Rechtsgeschiedenis [Legal History Review], Vol. 39, No. 1 (1971), pp. 73-83

Abstract

A well-known peculiarity of form of the aedilician edicts is their use of the future imperative in laying down rules. The problem is that the imperative does not appear in the praetorian Edict nor, with two significant exceptions, in senatus-consulta, but the future imperative is common in leges proper. How to explain its presence in the aedilician Edict? Daube, who has recently studied the problem in depth, rightly excludes the possibility that the imperative here derives from that of true legislation. He also shows the weakness of the general argument that the imperatives reflect the nature of the aedilician provision as police-measures: statutes which are not police-measures use imperatives, praetorian edicts which are in the nature of police-measures do not. Also, he observes that from the general philological point of view there is nothing in the future imperative making it particularly suitable for police-measures.

He himself develops the following thesis: There is also a nonlegal branch of ancient Roman literature where the future imperative is frequent, namely, the writings on husbandry. Thus, Cato's 'De agri cultura' contains some 200 such imperatives. "The conclusion is plain. The imperatives in the aedilician Edicat derive from the treatises on husbandry. Their original setting in life is not in the court of the aediles nor, indeed, in any statutes -- how could it have been there? -- but in a circle of technical experts, whose suggestions deserved to be made part of the law. The teachers of husbandry, that is, recommended certain ways of negotiating an agreement, and the aediles announced that they would give actions if these were disregarded". The didactic 'titulus scriptus sit curato ita' no longer, he claims, creates any difficulty: it is exactly what one would expect in a guide. Cato has: 'boves aquam bonam bibant curato'; 'vilicae quae sunt officia curato faciat'.

So far, Daube feels, he is on safe ground, but he also hazards the conjecture that it was Cato himself who, when aedile in 199, prompted the publication of the earliest edict on the sale of slaves. (Since Cato was a plebeian aedile, not a curule one, he did not himself have the right to issue edicts). In support of this he urges the fact that after Cato the future imperative fades out of agricultural treatises: it does not occur in Varro at all, and is very rare in Columella and Pliny. Daube then shows that the evidence for the traditional dating of the 'De agri cultura' around 160 B.C. is not strong and suggests that the book is an early production of Cato whose style was already formed by 199 B.C.

This thesis of Daube seems to be implausible and I should like to argue its fragility.

Link to Full Text

Share

COinS