SPORTS SCIENCE (Quality Work, No Plagarism, A++)

Legal Information Management, 12 (2012), pp. 98–101 © The Author(s) 2012. Published by British and Irish Association of Law Librarians doi:10.1017/S1472669612000308

Athletics in Ancient Law

Abstract: In this article David Ibbetson takes a perspective from the ancient world. A number of texts of Roman law are concerned with injuries arising in the course of

athletics. They are particularly concerned with blameworthy killings, and constitute some

of the most fundamental texts at the historical base of modern negligence liability. Behind

them there may lie questions discussed by Greek orators, where they were fitted into a

rather different framework from that of the Romans.

Keywords: sports law; Roman law; ancient law

The revival of the Olympic Games in

1896 was associated with, and perhaps

even triggered, a scholarly interest in

the history of athletic sports in the

ancient world. They sparked the inter-

est of lawyers too, particularly of

Roman lawyers. Curiously, some of

the most fundamental of the Roman

texts dealing with the nature of liability

for causing personal injury to slaves or

their death, are concerned with issues

which arose in the context of ath-

letics.1 The examination of these texts

is not a purely antiquarian exercise,

for the elements of the modern tort

of negligence and its equivalents in continental European

legal systems can unmistakeably be traced back to Roman

law and hence to the jurists’ discussions of sporting acci- dents. Even English law owes a good deal to this legacy

from the ancient world, far more than is generally

realised.

This article looks at four of these texts, all from the

Digest of Justinian, a compendium of the writings of

earlier lawyers completed in Constantinople in 533 AD.

They cast light both on the law itself and also on the way

in which the Roman lawyers worked.

The earliest of the texts is attributed to the late-

Republican jurist, Alfenus:

When some people were playing with a ball and

one of them pushed a slave boy who was trying to

pick up the ball, the slave fell and broke his leg. It

was asked whether the owner of the slave could

bring an action on the lex Aquilia [the Romans’ action for property damage] against the person by

whose push he had fallen. I replied that he could

not, since it appeared to have happened by acci-

dent rather than through any fault.2

It is likely that the game here was harpastum, a sport very much like the modern game of rugby.3 It involved a

good deal of pushing and shoving, and

injuries to players were not uncommon;

even spectators ran the risk of injury if

the sport spilled over from its roughly

marked-out pitch. We know that it had

some rules, but it seems that a good

deal more latitude was given to players

than in the modern game. In such a

world, it is easy to understand Alfenus’s conclusion that the broken leg was

simply an accident for which no com-

pensation could be claimed. From a

lawyer’s point of view, though, the text has significance beyond the actual con-

clusion reached by the jurist. The foun-

dational statute on which liability was based, the lex Aquilia, said nothing about fault, but looked rather to whether the defendant had acted unlawfully. The most

important achievement of the Roman lawyers in this area

was to make the transition away from a rather undefined

idea of unlawfulness, which probably connoted the lack of

any lawful excuse, constituting fault as the primary deter-

minant of liability. Alfenus’s text shows that this transition had already been made by the end of the Roman

Republic, a century or so before the great flowering of

Roman juristic thinking, though it was never wholly to

displace the analysis in terms of unlawfulness in appropri-

ate cases.

This is not the only Roman text to have been con-

cerned with injuries suffered when young people were

playing ball games. Very well known, is a discussion of

Ulpian, one of the leading jurists of the late Classical

period (c200 AD), again looking back to discussions of

earlier writers:

Mela writes, if some people were playing with a

ball and one of them hits the ball rather hard and

knocks it onto the hands of a barber, and hence

the throat of a slave whom the barber was

shaving, was cut by the jerking of the razor;

whichever of them is to blame is liable on the lex

David Ibbetson

98

Aquilia. Proculus says the blame is on the barber;

and clearly if he was shaving where people custo-

marily played, or where people frequently walked,

it should be imputed to him; though it is not stu-

pidly said that if someone puts himself in the

hands of a barber who has set up his chair in a

dangerous place, he has only himself to blame.4

The game being played here was probably something

like the modern game of hockey, in which a ball was hit

with sticks; contemporary reliefs of such a game are pre-

served.5 At any event, the ball must have been able to be

projected at some speed, and probably over some dis-

tance. This text has been seen as the progenitor of the

modern rules of contributory negligence, though this is

not its original focus. Its central concern is not with the

slave’s fault, but with the determination of whether liab- ility should attach to the person hitting the ball or to the

barber. The most interesting feature is that the earliest

layer of discussion, attributed to the early Imperial jurist

Mela, does not answer this question; it merely says that

in order to decide who is liable we need to assess the comparative blameworthiness of the participants. Fault is

not being seen as something which grounds liability, but

something which enables us to cut through the problems

of causation when an injury has been brought about by

the concurrence of two or more people’s acts – here the barber’s siting of his chair and the player’s hitting of the ball. It is only with the slightly later jurist, Proculus, that

we find any attempt being made to answer Mela’s ques- tion. For him it was the barber who should bear the loss.

But behind this, there seems to have been an assumption,

made explicit by Ulpian, that the barber should not have

set up his stall where he did; something which could have

been easily accepted if the game was being played on a

designated playing area (which would commonly have

been the case), but which would not have been so clear,

if the players were simply having a knockabout in the

forum. The three layers within the text illustrate graphi-

cally, the way in which classical Roman law developed: the

identification of the relevant question; the provision of an

answer to the question; and the formulation of a sharp

reason for the answer, coupled in this case with an unde-

veloped suggestion that the answer might not have been

quite right.

It was not only ball games that raised legal issues; pug-

ilistic injuries did so too, unsurprisingly so, given the bru-

tality associated with boxing and wrestling in the Roman

and Greco-Roman world. The leading text here includes

a reference to the three forms of fighting in the ancient

Olympics; wrestling, boxing and pankration. Pankration, or pancratium when translated into Latin, was an originally Greek mixture of martial arts where everything was

allowed apart from gouging the eyes and biting. Unlike

boxing and wrestling, it was expressly excluded from the

modern Olympics on their revival in 1896 and has never

been reintroduced into them.

If someone kills [a slave] in a wrestling bout or in

the pancratium, or while boxers are fighting; if the one kills the other in a public contest, the

Aquilian action does not lie, because the loss

seems to be brought about in the cause of glory

and virtue, not wrongfully. However, this does not

apply to a slave, because only freemen are accus-

tomed to enter the contest; it applies to a

wounded filiusfamilias [son of the family]. Clearly if he wounds someone who is giving in, there will be

room for the Aquilian action, or if he kills a slave

not in the contest, unless this was done when the

master was putting him up; then the Aquilian

action will not lie.6

The text, again attributed to the great jurist Ulpian, is

a mess (the original Latin is worse than the English trans-

lation given here); its mangling is probably the work of

later lawyers or students who were trying to get to grips

with it. The idea at the core of the text is clear, though;

that killing someone in the course of one of these con-

tests does not entail liability. The defendant does not act

wrongfully, since what he is doing is ‘in the cause of glory and virtue’ and is not blameworthy. The reference to glory and virtue points strongly towards a formal contest

in which the victor was awarded an olive or laurel wreath

rather than a fight organised by the competitors them-

selves; it may even be a reference to the Olympic games

themselves. We would probably use different language

today, but the idea would be the same: a boxer or wres-

tler operating within the rules of the sport would not be

liable civilly or criminally if his opponent died as a result

of a lawful blow. As with the texts already looked at, the

athletic contest is the setting for the consideration of an

important legal principle relating to fault.

We should not overlook the fact that the last of these

texts is in a very bad state. The problem at the heart of it

is that Ulpian took as his starting point, an impossible

situation; the killing of a slave in a contest which only free

men were allowed to enter. Clearly it could not have

been a real case, but it is improbable that Ulpian, one of

the most intellectually sophisticated of all the Roman

jurists, would have used a completely impossible scenario,

if he had just made up the case in order to illustrate his

principle. The most likely explanation, the only one with

any degree of plausibility, is that he was taking a set-piece

situation and discussing it in terms of the law. If this is so,

it is unlikely that it was something which had been dis-

cussed by previous generations of Roman lawyers. It

would have been as impossible a situation for them as it

obviously was for Ulpian, and if there had been earlier

juristic discussion we might expect Ulpian to have

referred to it. More probably it was a standard example

of something discussed by philosophers or orators

exploring the nature of responsibility for killing, where

the identity or status of the victim would not have been

relevant, translated by Ulpian into a more purely legal

context. ‘Take the pancratium case; there, there would be

99

Athletics in Ancient Law

no liability …’ The question, and perhaps even its answer, might not have had its origins in Rome but in Greece,

since according to Demosthenes, this precise case, the

unintentional killing in the course of an athletic contest,

was one of the situations in which homicide was

expressly not punishable in Athenian law.7

The last of the Roman sources to be looked at, again

a text of Ulpian, involves a different form of Olympic ath-

letic exercise, javelin-throwing. Classical javelins, unlike

modern ones, were not simply hurled. Attached to them,

in the middle of the shaft, was a leather thong or thongs,

which caused the weapon to rotate around its long axis,

hence making it more accurate and more deadly in the

hands of an experienced user. The risk to passers-by and

spectators was therefore that much the greater.

And if a slave is killed when people are throwing

javelins for enjoyment, there is a place for the

Aquilian action; but if when others are throwing

javelins in a field, a slave walks across the place,

the Aquilian action will not lie, because he should

not have made his way across the javelin throwers’ field at an inappropriate time. However if

someone deliberately throws at him, then he will

be liable on the Aquilian.8

A degree of interpretation is necessary in order to

make sense of the text. The first case presumably

involves a slave who was simply spectating or passing by,

otherwise there is no contrast with the second case.

When he is hit and killed, the javelin must have been mis-

directed, presumably by an unpractised thrower. And

while we cannot say for certain that the Aquilian action

for wrongful killing would inevitably have succeeded,

there would certainly have been a prima facie case for it.

The second situation is more precisely formulated. Here

the slave is not simply a spectator, but is walking in front

of the javelin throwers; and the reference to ‘their’ field may suggest that they were practising in a place set aside

for the purpose. The slave should not have been there,

and there is no liability if he is killed unless the thrower

has deliberately aimed at him. As with the case of the

barber, the modern lawyer might think of this as a case

of contributory negligence, though the Roman lawyers

would probably not have seen it in quite the same way.

Ulpian’s text says nothing explicit about fault, but when the case was discussed in Justinian’s Institutes – the basic teaching manual completed in 533, the same year as

the Digest – its focus has shifted onto this.

And this law does not affect the person who kills

by accident, provided there was no fault in him;

for this law punishes fault as well as deliberate

wrongdoing.

So, if someone playing or exercising with a

javelin hits your slave as he is crossing, there is a

distinction. For if it is done by a soldier in the field

or place where it is normal to exercise, it is

accepted that there is no fault in him; but if

another person does it, he is guilty of fault. The

same applies to a soldier if he does it somewhere

other than a place set aside for military exercises.9

The main contours of the story are the same, but the

details have changed with the relocation of it in terms of

military exercises rather than looking simply at whether

the slave was crossing at an inopportune time. So too has

the legal explanation changed, with fault now having

taken over as the sole requirement of liability for non-

deliberate killings.

While this might easily have been a hypothetical case

dreamed up by Ulpian to illustrate a point and picked up

from there by Justinian, there is very good reason to

believe that – probably like the pancratium case – it was a set-piece situation regularly discussed in the schools of

oratory. We can trace it back from the Romans to the

Greek schools of rhetoric. Plutarch speaks of a Sophistic

discourse around the question:

A certain athlete had hit Epitimus the Pharsalian

with a javelin, accidentally, and killed him, and

Pericles, Xanthippus said, squandered an entire

day discussing with Protagoras whether it was the

javelin, or rather the one who hurled it, or the

judges of the contests, that ‘in the strictest sense’ ought to be held responsible for the disaster.10

Clearly this was a standard case for discussion. It

forms the basis for set-piece legal arguments in the

Second Tetralogy of the fifth-century Athenian orator Antiphon, revolving round the case of a boy who was

killed when, at the behest of the instructor, he walked

across the gymnasium where javelins were being

thrown.11 Athenian law at this time allowed an action in

any case of killing, whether deliberate or accidental, so

the question here was not whether the boy who had

thrown the javelin was to blame for the death but simply

whether he had killed.12 Alternative possibilities were

that the boy who had walked across the gymnasium had

killed himself, that the javelin had killed him (if, for

example, it had swerved off course for no apparent

reason), or that the instructor was the killer. Behind it lie

deep-rooted ideas that the killer, or the thing that did the

killing, was polluted:13 hence the possibility referred to

expressly in the discussion between Pericles and

Protagoras, that it might have been the javelin that ought

to be treated as responsible for the death.

As in the case of the barber, yet more clearly, we see

here the way in which ideas of causation could mutate

into ideas of fault. Ulpian would undoubtedly have been

aware of this, and in transplanting the Greek discussion

into a Roman context, where fault was relevant, he was

able to bring out the relationship between them. In doing

so, the course was set for the development of the law of

civil responsibility as we know it today.

100

David Ibbetson

It is probably not a coincidence that sporting cases

feature so prominently in the discussions of non-

deliberate killings in the writings of the Roman jurists.

The great Roman and biblical lawyer David Daube, once

pointed out that there is only one single case of negli-

gent killing in the whole of the Old and New

Testaments, successfully challenging his learned audi-

ence to identify it.14 Before the age of fast roads and

machinery, wrongful killings would nearly always have

been deliberate, and sporting accidents would have con-

stituted one of the commonest contexts in which non-

deliberate killings would have occurred in the Roman

world.

No doubt all of these texts were based on hypothetical

situations, if realistic ones. It is to Greece that we must

turn for a real case that deserves to be remembered in

Olympic year, if only for the wrong reasons. According to

the Greek writer Pausanias, the Thessalonian Eupolos has

the distinction of being the first athlete to have been fined

and disqualified for cheating.15 A boxer, he was said to

have bribed his leading opponents to lose against him in

388 BC so that he could gain the Olympic crown. The

fines paid by him and those who accepted the bribes, were

used to erect statutes of Zeus, with inscriptions exhorting

competitors to play fairly, to win by fleetness of foot and

strength of body.

Footnotes 1 See in particular A. Wacke, “Accidents in Sports and Games in Roman and Modern German Law” (1979) 42 Tydskrif vir

Hedendaagse Romeins-Hollandse Reg 273. 2 Digest of Justinian; available at http://www.fordham.edu/hassall/Source/Corpus1.a 9.2.52.4.

3 Wacke, op cit, 278.

4 Digest, op.cit 9.2.11.pr.

5 Wacke, op cit, 277.

6 Digest, op.cit 9.2.7.4.

7 Demosthenes Against Aristokrates, 53; available at http://www.perseus.tufts.edu/hopper/text?doc=Dem.+23+53&fromdoc= Perseus%3Atext%3A1999.01.0074.

8 Digest, op.cit 9.2.9.4.

9 Institutes 4.3.2, 3; available at http://www.fordham.edu/hassell/basis/535 institutes.asp

10 Plutarch, Pericles 36; available at http://www.perseus.tufts.edu/hopper/text.jsp?doc=Plut.+Per.+36&fromdoc=Perseus%3Atext% 3A1999.01.018.

11 Antiphon, Second Tetralogy, 3; available at http://www.perseus.tufts.edu/hopper/text?doc=Perseus:text:1999.01.0020:speech=3& default.scheme=speech:tetralogy:section&default.type=speech.

12 We should note that this case fell outside the exclusion of liability for killing in the course of an athletic contest referred to

above. 13 D M MacDowell, Athenian Homicide Law in the Age of the Orators (Manchester University Press, 1963).

14 D Daube, Roman Law: Linguistic, Social, and Philosophical Aspects (Edinburgh University Press, 1969), 148; 1 Kings 3.16 ff.

15 Pausanias, Description of Greece, 5.21; available at http://www.perseus.tufts.edu/hopper/text?doc=Perseus%3Atext%3A1999.01. 0160%3Abook%3D5%3Achapter%3D21.

Biography

David Ibbetson has been Regius Professor of Civil Law in the University of Cambridge since 2000. He specialises in

English legal history and Roman law, and has a particular interest in the relationship between English law and the law

of continental Europe.

101

Athletics in Ancient Law

Copyright of Legal Information Management is the property of Cambridge University Press and its content may

not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written

permission. However, users may print, download, or email articles for individual use.