2 X 2025: Jakub Urbanik (UW) D. I 3.37 / P. Oxy. LXXXV 5495 – Consuetudo Strikes Back

The quaestio prima of the juristic papyrology has been since its beginning the problem of law application in Egypt under the Roman rule. In the last half of the century two prominent opinions tried to elucidate this mechanism. Hans Julius Wolff offered a vision of a legal vacuum caused by the Roman conquest, with the Ptolemies gone, the legitimation of ‘their’ law was gone, too. In that emptiness the norms had to be created a new by the Romans. The application of the old norms of whatever origin – be it Egyptian, be it Greek of various provenance, – gave them legal force as if it had never been attributed before. In turn, Józef Mélèze Modrzejewski inspired by his mentor Jean Gaudemet, put forward a different, and a very elegant solution to this problem. The earlier norms survived the Roman conquest as customs (mores/consuetudines). One could then say that their normativity was reduced, relegated to the second place, auxiliary to the Roman legal order. The local laws would be thus used in wont of a Roman legal rule. In the centre of Modrzejewski’s analysis there lay a fragment of the works of the high-classical jurist Salvius Iulianus D. i 3.32 pr. (Iul. 84 dig.). This idea meets with serious theoretical objections, as shown by José Luis Alonso: the Romans from the later Republic till the later imperial era did not apply to mos a normative quality, hardly may one speak of hierarchy of norms under classical law. In this paper I would like to explore further this issue, thanks to an extraordinary new document P. Oxy. lxxxv 5495 – a Greek paraphrase of Digest i 3.37 – Paul, 1 quaestionum, which sheds light on the proper understanding of Iulian’s Digests fragment, and perhaps may elucidate how one should comprehend leges, mores, and consuestudines, he referred to (the latter in the words of Ulpian to be applied in place of ius and lex in wont of written laws).

Photo credits: University of Oxford