Abstract
In Rome, were you better protected by the legal system if you were wealthier ? It was certainly a highly hierarchical society, where participation in political life was linked to patrimonial criteria, even under the Empire. From the point of view of beliefs and ideology, wealth was criticized, as evidenced in Seneca the Rhetorician's account of the difficulties encountered by the lawyer in defending a wealthy client(Controversies, 2.1.17). But was this wealth taken into account by the law ? We may well wonder whether there were legal rules that led to a different outcome of a trial depending on social rank. Ulpian's commentary on the edict suggests that the social position of the plaintiff, a senator's son, could influence the praetor's decision whether or not to grant him a share (Book XXIII On the Edict, D. 5.1.18.1). But this remark comes at the end of a line of reasoning that prevents us from jumping to hasty conclusions. A number of elements need to be taken into account. First of all, the text implicitly refers to the condition of the son of a Roman family, deprived of legal capacity and entirely dependent on his father. It also implicitly refers to the Praetor's promise to allow the son to sue for insult when his father is absent. This new possibility implies that the son may have been directly affected by the insult, and is no longer merely a substitute for his father. Ulpian first seeks to extend the scope of this derogation. For him, if the edict refers to insults, then all other offenses are covered. This extension had already been preceded by the jurist Julian, and it is clear from this author that the general interest(utilitas) in the repression of wrongdoing motivates this extension. But Ulpian goes further, extending the action not only to torts, but also to contracts. He presents this opinion in such a way that it does not appear innovative, and thus invokes the fact that fraud(fraus), the wilful injury of another's interest, does not go unpunished. The comparison is strengthened by a quasi-synonymous presentation of noxa (damage, tort) and fraus : cases of delictual and contractual liability are presented as similar. Nevertheless, as these concepts do not bear the same name, they remain distinct, and the jurisconsult has recourse to a final argument, the urgent need to protect the right : the damage caused by delay could be irreparable. It is here that he turns not only toutilitas in a new context, but also to considerations of status. Whether it's repressing improper behavior or protecting a son from the loss of his livelihood, consideration of his dignitas reinforces the weight ofutilitas. Mentioning social status does not necessarily imply a form of favoritism or grace : the decision was generalizable and applicable to all. Nevertheless, Ulpian chose this argument because it was particularly suited to the Roman state of mind : a senator's son cannot remain destitute, and legal means must be provided to restore him to a quality of life befitting his rank.
