INTRODUCTION

From the mid-fifth century BC, if not earlier, when law was first set out in writing, the Romans were interested in the creation of systems. The act of writing down the law that became known as the “Twelve Tables” in c 450 BC was the result of a process of selection and arrangement, carried out, according to later tradition, by Boards of Ten, whose rule degenerated into tyranny. The relationship between what was included and what was left out is largely lost to us. Understanding is not helped by the assumption of the later authors, such as Cicero and Livy, who explain the emergence of the code in terms of the Struggle of the Orders. The involvement of Appius Claudius and the later turbulent history of the gens Claudia further distorted perceptions of a sketchily recorded distant past.

Archaic in language and increasingly obscure in meaning, the Twelve Tables remained a point of legal reference throughout antiquity, for some thousand years. Jurists, such as Servius, struggled with the etymology of the decemvirs' legal terminology, and the exact distinction between, for example, “manifest” and “non-manifest” theft was vigorously debated. But what was obscure to classical jurists may have been clear enough in practice to satisfy the requirements of a small, agriculturally-based community in the fifth century BC. That the terms of debate – manifest/non-manifest forms of theft, or the capacity of rainwater (aqua pluviae) to do harm – proved remarkably tenacious in juristic legal analysis is a demonstration of the power of the legal tradition and the ability of jurists to sustain a technical discourse in its own terms over many centuries.