Gesture in Early Roman Law:
Empty Forms or Essential Formalities?

Anthony Corbeill, University of Kansas

“This slave is turned by his master, and [the slave] Dama emerges from the spinning movement a Marcus” (Pers. 5.78-9).  So Persius, with typical allusivity, describes the role of the body in the Roman process of manumitting a slave.  The human body and its gestures were integral to the workings of early Roman law, and yet at the same time there is much controversy among scholars regarding the degree of power that should be attributed to gestures.  To illustrate the basic contrast in interpretation, I adopt the legal distinction between form and formality.  As form, a gesture in legal procedure is perceived as having no agency in either the performance of an act or in its successful preservation once enacted.  Gestures viewed as a manifestation of formality, by contrast, are thought to have a real and essential effect on the proceedings within which they occur.  Sextus Pedius, for example, asserts that, for the contract of stipulatio to be valid, the subject matter of the obligation can with equal validity be indicated by words or by a pointing of the finger (Paul. dig. 12.1.6).  In this procedure, likely the oldest form of Roman contract, gesture and language interchange in their ability to enforce legal decisions, with neither having greater force than the other.

I wish to contribute to this debate regarding the form and formality of early Roman gesture by arguing that bodily movement should be perceived both as having a real effect on the world in which it occurs and as belonging to a uniquely Roman context.  I examine in particular the use of the body in the legal procedure of manumissio, while referring to other well-attested occurrences (manus iniectio; legis actio per sacramentum in rem).  I will situate the legal use of the body within its use in daily life and provide examples of movements that are similar both on a structural level and in the outcomes that the movement was thought to effect.  In the legal atmosphere of early Rome, there existed neither a centralized authority nor, apparently, religious sanctions to enforce the outcomes of judicial proceedings in private law.  Instead, I argue, maintenance of legal order depended upon the perception of a stable and non-dissimulating relationship between nature and the body, a relationship to be felt in all aspects of Roman life.

In the historical period at Rome there existed three legal acts of equal validity by which a slave could acquire freedom: through inclusion in the list of citizens maintained by the censors (censu); through last will and testament of the master (testamento); and through a legal procedure involving the “rod” of ownership (vindicta).  For this latter use of the rod there survives the accompanying verbal formula and procedure (Paul. Fest. 159).  The description offers familiar elements: the owner’s grasping of his property and, in the oral formula, the emphatic use of the deictic pronoun in first position (hunc).  The spinning of the slave by the master in the presence of the praetor followed this action and utterance.  A Quintilianic declamation demonstrates that the spinning motion alone could grant freedom, and the efficacy of the spin is equated in its power with the earlier oral proclamation of the slave’s freedom by the master (decl. 342.6).  The lack of an associated verbal formula with this step further indicates that this is the only early legal act that can certainly be termed a pure formality, since it unambiguously derives its significance from a use of the body.

            The circular movement of the freed slave fits in well with examples outside Roman law where spinning or circumambulation occurs at liminal stages of existence, placing the spinner (or the object encircled) in a protected realm during an uncertain point of transition.  The spinning in each of these contexts does not simply enact an unexpressed will—it moves the human actor into a new relationship with the external environment.  A spinning body has resonance in so many ritual contexts in marking a transition that its presence in the manumission ceremony becomes readily construable: gestures in archaic Roman law reach out to the world around them to find a context within which the movements of the body can harmonize.