By DrEdwardMussawir
Senior Lecturer
Griffith Law School

Please note that this blog posts explores themesand subject matter that some audience members may find confronting.
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Legal scholars today tend to be shaped in the mould of public intellectuals. Even if their research doesn’t necessarily generate ‘news’ as such, the expectation that their expertise should be directed to the heart of certain matters of public interest, certain ‘real world’ problems, certain shared societal challenges, is almost universal. A scholar who can neither make their own work newsworthy nor comment, from the point of view of their expertise, on matters that are in the public interest, faces a sort of existential crisis.

The stakes here are not trivial. One can wonder whether legal scholarship in general retains any use in legal expertise itself and whether either are capable of preserving a set of problems — however specialised, enigmatic, arcane — that are uniquely their own. Despite legal scholarship licensing itself to tackle every social, ethical, humanitarian, political, cultural, economic, technological challenge of its age, the legal expertise of the scholar is treated as merely functional and inert. In itself, this expertise doesn’t tackle the heart of current affairs. It doesn’t seek out matters of public concern to which it can promise new solutions. It takes care of its technical categories and in fact even demands that such matters of public concern be held at arm’s length in order that it might isolate the thing to which it is alone qualified to respond to.

So, are these positions reconcilable? Is it possible for legal scholars to reclaim their expertise as the subject and not just one of the tools to their research? And can contemporary matters of public interest occasionally be recovered by the legal scholar as something that refracts or sharpens one’s expertise in the law: not just as something that reveals the deficiencies, contradictions and possibilities for reform etc in the law in general?

Take a recent series of cases in the news here in Australia: cases of fathers who were charged with or convicted of killing their sons. A Perth man killed his allegedly abusive 23-year-old son on AFL grand final day 2016. Two cases in Brisbane were reported of fathers who supposedly took the lives of their infant sons. A recent case in Sydney of a father who killed his son and daughter. The legal determination of these instances is a mere footnote. Sociologists and criminologists remind us of the damning statistics they add to the archives of family violence. Cultural critics can point to the mediated, constructed nature of the representations. But there is also simply a horror — which is perhaps the real subject-matter for the public — that no manner of intellectualisation can relieve. Added to the already fraught public imagination of killing and death is the image of a natural bond and affection that ties a parent to child. Out of the horror of this realised contradiction comes a thirst for news and a search for answers that seemingly no expertise (legal or otherwise) can adequately provide.

Now picture instead the narrow window through which instances of this kind would have come to the mind of the classical Roman jurists for whom the juridical formula vitae necisque potestas or ius vitae necisque — the ‘right of life and death’ which was peculiarly given to Roman fathers over their sons — constituted one of the foundations of the legal order itself.[1] From the perspective that Yan Thomas brings of this problem, we see the relation to the law encountered from entirely the other direction. There is nothing in the killing of a son by a father that is not, for Roman jurisprudence, a narrow technical matter of legal expertise belonging to the specialised terrain of the legal scholar. Grappling with the facts, the motives, the unthinkable nature of the crime, is one thing. What interests the jurist is the law. And they are on the lookout for the aspect of a case that, from a certain angle, might offer a momentary glimpse of it.

What could it possibly mean for the killing of sons to be thought as the absolute right of Roman fathers? The question is very easily misplaced when it is put in the hands of an historical sociology that would read law as only a neutral reflection of certain social facts or conventions. It would be tempting to suppose, without a close attention to the legal texts, that this right given to fathers implied a proto-typically authoritarian, heavy-handed Roman head-of-the-household whose violence over family members was given the highest validation in law. But the jurists leave the question of whether the right would imply impunity to fathers for killing their sons almost entirely unaddressed: as though this is not where the concept finds its most profound application. And there also exists sufficient instances of public outrage at fathers who had unjustifiably killed their sons to suggest that although fathers technically had the right, it was considered no less sacrilegious to carry it out. Even the historical/philosophical literature that contemplates this right of life and death seems to prefer to avert its gaze from the question of its legitimacy. It poses the problem of sons who were already supposedly deserving of being punished by death for some treacherous act, the question being only whether one can imagine the jurisdiction to carry it out as being properly that of a father (patria potestas) or rather that of the state (imperium). Thus, fatherhood is typically coupled with statehood within certain ‘limit-cases’: a father-Consul (Brutus) must decide the fate of his treacherous sons, his decision to put them to death being a sign of his adopting ‘the people’ in their place;[2] another father (Tarius) seeks the counsel of the Emperor who in turn takes care not to overbear the father’s right to decide the fate of his son by the force of his imperial authority.[3] Two realms of legitimacy are contrasted: the sovereign power to put to death which belongs to the state, and the abstract juridical one that belongs to the father.

More remarkable still is the extent to which the classical jurisprudential literature takes the abstraction of the formula, and — without altering anything of the foundational force with which Romulus was supposed to have first issued this law at the origins of the city — strips it of any quality as ‘command’ or ‘rule’, treating it instead as a purely technical juridical construction in the service of inventing and extending institutions of civil law. With a remarkable ingenuity, the juridical scholarship disarms any taboos, any public, moral, religious concerns with filicide, managing to preserve the proper place for an age-old right of fathers to put their sons to death within the subtleties of its civil jurisprudence. When the jurist Paul responds to a longstanding legal problem of defining the formal instantaneousness of the institution of inheritance[4] — the task of ensuring that strictly no gap in time be imagined between the death of the father and the inheritance by the son — he uses the following figure: that the connection between father (paterfamilias) and son-in-power (filiusfamilias) is so close that it occurs as if no ‘inheritance’ actually takes place between them, just the son acquiring free administration of an estate that was already in some sense his own even during the lifetime of his father. And he adds here that it is no objection to say that the father had a right to disinherit this son, since he also had a right to kill him. This right to kill finds itself anchored in the law here not through its relation to any underlying immunity nor to any fundamental ‘sovereign’ power which would be its ultimate expression, but through the subtlety with which its consequences impart their elasticity to a thought holding onto the jurisprudential problem at hand.

Could legal scholars today somehow own their expertise like this? Could they reclaim the plastic, fictional contours of law as their peculiar sphere of competence? Can they manage to tear ‘real-world’ problems from the sphere in which they might otherwise remain matters of purely public, moral reaction and fashion for them a discrete place within their inventive art? If such expertise on its face may sometimes appear artificial, even bookish, we should not think of it at the same time as being at the expense of a possible depth of experience with the ‘truths’ that such difficult problems as filicide put into question. The horror of a father killing his own son is no less palpable when, rather than this act being understood as an episode of breaking the law, it is instead understood (as was only possible in Rome) as an episode of embodying it. The problem of which the public is concerned is not the same as that which drives the work of the legal scholar.

Such an example from the history of Roman legal science has something to offer legal scholarship at a time when only the external, secondary, instrumental uses of legal expertise are capable of being acknowledged and the idea of the study of law fashioning its own terrain, its own set of problems, and being pursued for its own sake, is difficult to hold onto.

[1] For a more detailed discussion of this, see especially Yan Thomas, ‘Vitae necisque potestas: le pére, la cité, la mort’ In: Du châtiment dans la cité. Supplices corporels et peine de mort dans le monde antique. Table ronde de Rome (9-11 novembre 1982) Rome: École Française de Rome, 1984. pp. 499-548.

[2] Livy, History of Rome, 2.5. See the painting by David which depicts the scene in which the bodies of Brutus’s sons are brought to him after their execution. Thomas writes of this scene that: “One and the same face embodies two powers whose exercise, in the eyes of the Roman people, offers the same terrifying spectacle.” Thomas, ‘Vitae necisque potestas’, p 518.

[3] Seneca, On Mercy, 15.1ff.

[4] Digest 28.2.11.