The legal regulation of gambling phenomenon in Roman law

Gambling has been constructed as a vice, a deviant, criminal or criminogenic activity at various stages throughout history (Banks, 2016). The phenomenon is as old as the pleasures and problematics associated with it. The problems primarily pertain to gambling addiction and criminal activities. The latter traditionally involve forms of fraud and money laundering (Planzer, 2014).

Epidemiological studies show that the large majority of people do not gamble excessively, but a minority experience severe problems that are recognised as a mental health disorder (Planzer, 2014). The American Psychiatric Association (APA) initially considered ‘pathological gambling’ (APA, 1994) as an impulse control disorder, characterised by chronic and progressive failure in resisting impulses to gamble (Pavalko, 2001).

In line with the latest fifth (text revision) edition of APA’s Diagnostic and Statistical Manual of Mental Disorders (DSM-5-TR), the APA posits that gambling behaviours activate reward systems similar to those activated by drugs of abuse and that those produce some behavioural symptoms that appear comparable to those produced by the substance use disorders (APA, 2022). Gambling disorder involves repeated, problematic gambling behaviour. The behaviour leads to troubles for the individual, families and society. Individuals, both adults and adolescents, grappling with the gambling disorder are experiencing difficulties with controlling of their gambling. They cannot stop even when it causes significant losses. A diagnosis of gambling disorder is made if at least four criteria from the ones listed below are met during the year:

Need to gamble with increasing amounts to achieve the desired excitement.

Gambling involves risking something of value in the hopes of obtaining something of greater value. In many cultures, individuals gamble on games and events, and most do so without experiencing problems. However, some individuals develop substantial impairment related to their gambling behaviours (APA, 2013).

One of the most striking features to emerge from a cursory glance at the phenomenon is its almost universal prevalence throughout history and across cultures (Reith, 1999).

This article presents the results derived from primary source research in the realm of Roman law, undertaken by the authors to delve into and assess the regulation surrounding the gambling phenomenon in the ancient Roman society.

In the context of the study, the authors have researched and analysed the information contained in the so-called Justinian’s codifications, also known as ‘Corpus Iuris Civilis’, specifically ‘Codex Iustinianus’ (Code of Justinian, 534 AD) (Krueger, 1906) and ‘Digesta seu Pandectae’ (Digest or Pandects, 533 AD) (Krueger and Mommsen, 1928). The research employs the inductive, deductive and comparative methods.

Upon examining the content of the Roman legal norms that regulate the phenomenon of gambling, it becomes evident that the authors of these norms maintained a generally pragmatic approach. Therefore, the constitution issued by Emperor Justinian in AD 529, as mentioned earlier, includes a broad declarative prohibition on gambling in both public and private spaces. Both participating in the game and watching it being played were formally prohibited. However, there was no provision for the public prosecution by the state authorities for the violation of the aforementioned prohibition—‘and if the opposite action had taken place, then conviction should not follow’.¹³

Instead, the legal framework offered private mechanisms to protect the interests of the gambling victims—specifically, those who incurred losses during the game. Gambling debts lacked court protection; obligations purportedly stemming from game results were deemed invalid, necessitating the return of sums actually paid by the gambling victim. If a voluntary return had not taken place, the gambling victim had the right to lodge a claim in court and reclaim what he had paid: ‘¼but [the person who lost] should be released [from the obligation] [and what he paid] should be returned, and with proper claims be reclaimed¼ ‘.¹⁴

The right to lodge a claim was granted to the victim-loser himself, his heirs, or, in the absence of claims from either party, extended to the fathers of their families and representatives—defenders (C 3.43.1.1).

A statute of limitations of 50 years was established for this category of claims: ‘There is no bar [to claim], except, in any case, an objection of fifty-year statute of limitations’ ¹⁵ (C 3.43.1.2).

The duty to ensure public supervision of fulfilment of the above-mentioned conditions was assigned to the local bishop of the Christian church, who could request the support of the local military garrison for this purpose: ‘To the bishops of the [relevant] place this for investigation and the garrison for supportive use’¹⁶ (C 3.43.1.3).

Another example of a highly pragmatic policy of gambling regulation that must be mentioned is the condition contained in the same constitution to allow certain types of games to be played, albeit limiting the amount of permissible bets: ‘Then really let’s arrange five games—ton monobolon, ton condomonobolon, ke kondacca, ke repon, ke perichyten. But we [don’t] allow anyone to play more [than] one solid within them, even if [someone] is richer, so if it happens to beat someone [in a game], don’t allow it to be a difficult case’ ¹⁷ (C 3.43.1.4). Violators of this restriction also were not subject to any punishment imposed by the state; however, local bishops together with military garrisons were obliged to ensure its observance (C 3.43.1.4).

The legislator—emperor Justinian had a different and clearly negative attitude towards the game called ‘wooden horses’ (equi lignei), playing in which was apparently considered particularly harmful and socially dangerous. According to the sources, the mentioned game was entirely prohibited by a separate constitution from the same 529 AD: ‘We absolutely forbid that there should be no [game] “wooden horses” [playing]’ ¹⁸ (C 3.43.2.pr.).

Those who lost in ‘wooden horses’ had the right to recover his losses: ‘¼but if someone lost [something] from this incident, let him get it back’ ¹⁹ (C 3.43.2.pr.). If, for any reason, the losers chose not to reclaim their losses, the state assumed the right to those lost sums for use in public needs: ‘the procurator (financial administrator) should investigate it and turn it into public work’ ²⁰ (C 3.43.2.1).

The emperor was being very strict to the organisers and supporters of such a game, who risked the confiscation of their real estate for the benefit of the state: ‘¼ make their buildings/houses public/confiscate where it [gaming] is discovered’²¹ (C 3.43.2.pr.) (Apsītis and Joksts, 2024).

As is known, along with the normative acts issued by Justinian himself, as well as by the Roman emperors who had reigned before him, which by order of Emperor Justinian, are included in the so-called Code of Justinian (Codex Iustinianus, 534.AD) in the Rome of Justinian’s time, the writings of Roman jurists of the classical period (I–III centuries AD) also enjoyed the status of legal norms. According to the order of the emperor, those norms were compiled into the so-called Digest or Pandects (Digesta seu Pandectae—‘arrangement or compilation’, 533 AD).

Concerning gambling, Digest, among other texts, contains a fragment from the writings of the jurist Ulpianus (Domitius Ulpianus,?-228. AD). In this passage, he referred to an edict of a Roman praetor stating the refusal (‘I will not grant the trial’²²) to defend the interests of the organisers and supporters of gambling against someone who had harmed them in cases of violent, deceitful and damaging offences: ‘The praetor says: “If anyone, about whom it will be said [that] the playing of dice took place at [his premises], has been beaten or harmed, or something has been taken from him by deception, I will not grant the trial¼’ ²³ (D 11.5.1.pr.). According to Ulpianus’ own comment below, the aforementioned meant that if the organiser of gambling had been beaten in the course of exercising his craft and thus suffered losses, he would not be able to claim protection or the right to file a claim against the perpetrator: ‘It should also be noted that the entertainer/organizer [of games] who was truly beaten and suffered harm is nowhere and never avenged/protected’ ²⁴ (D 11.5.1.2).

Similarly, the organiser of gambling was not entitled to receive judicial protection in the event when he was violently robbed (D 11.5.1.1) or something was stolen from his house: ‘¼the praetor denies ¼the claim of theft [needs to be] giving’, ²⁵ (D 11.5.1.3)—even then if it turned out that the thief is not one of the gamblers at all: ‘¼indeed [when] the theft is committed in a house/building and while game of chance is being played, the gambler may [even] not be [the one] who did it to him, [so that] would do with impunity’ ²⁶ (D 11.5.1.2).

In this connection, Ulpianus, among other things, tries to give an explanation of the meaning of the concept ‘house-home’ (domus): ‘However [as a] “house-home” we need to recognize [place] for living and [permanent] place of residence [what] is determined’ ²⁷ (D 11.5.1.2).

It should be noted that in the Ancient Roman society, the attitude towards gambling organisers was much harsher than the attitude towards ordinary gamblers. According to Ulpianus, in cases where robberies took place among the gamblers themselves, the victims had the right to file a claim for robbery against perpetrators. However, if the organiser of the game was robbed, he could not claim the right to file such a claim: ‘If [violent] robberies have been committed between the co-players themselves, a claim for the violently stolen property will not be denied, really it is forbidden only to avenge/protect the entertainer/organizer, but not the coplayers, although they are also considered infamous’ ²⁸ (D 11.5.1.1) (Apsītis and Joksts, 2024).

Based on the mentioned reference of the jurist Ulpianus (Domitius Ulpianus, ?–228. AD) to the edict of the Roman praetor, one can conclude that certain types of violence cases related to gambling were followed by punishment from the public authorities: ‘The praetor says: “ ¼.I will punish the one who caused violence in the case of playing dice, as soon as the case is [appropriate]”’ ²⁹ (D 11.5.1.pr.). Forcing another person to play was considered a case of this type of punishable violence (D 11.5.1.4), which according to the Roman jurist Paulus (Julius Paulus, end of the 2nd century AD—first half of the 3rd century AD) was a common habit of some Roman gamblers (D 11.5.2.pr.).

According to Ulpianus, such an act was punishable by a monetary or mine penalty, or by putting the culprit in shackles: ‘¼so that the punishment is either with a fine or in a mine/quarry or in public shackles’ ³⁰ (D 11.5.1.4) (Apsītis and Joksts, 2024).

Digest or Pandects (Digesta seu Pandectae—‘arrangement or compilation’, 533 AD) contains references to certain deviations from the principles of regulation of the gambling regime traditionally accepted in Roman legal doctrine. Thus, the jurist Paulus talked about a Decree of the Roman Senate (Senatus consultum), which, in addition to the prohibition of gambling for money, contained the permission to place bets in sports competitions, as long as the purpose of such competitions was to show the courage and virility of athletes: ‘¼what is done [for] the purpose of [showing] courage/strength/masculinity’³¹ Contend with spears (hasta), javelin (pilum) throwing, running, jumping, martial arts and fist fights could be recognised as such type of competition (D 11.5.2.1). Additionally, there is a fragment of the writings of the jurist Marcianus (Aelius Marcianus, first half of the IIIrd century AD) with a reference to the laws of the time of the Roman Republic—Lex Titia de aleatoribus, Lex Publicia de aleatoribus and Lex Cornelia de aleatoribus, which allowed betting (‘to make a bet allowed’³²) in competitions organised for the purpose of showing courage and masculinity. On the other hand, other laws prohibit (‘not allowed’³³) bets in cases ‘where a contest [for show] of courage/strength/masculinity is not made’³⁴ (D 11.5.3).

According to writings of the jurist Paulus, it was allowed to play during family parties—for party treats—edibles: ‘What is put on the table [for the purpose of eating] at the party—[people] from the family are allowed to play on those things’ ³⁵ (D 11.5.4.pr.) (Apsītis and Joksts, 2024).

According to the Roman legal concepts, all free people—persons were divided into two categories: (1) persons with their own rights (personae sui iuris), who could realise their rights by themselves, without the mediation of others; (2) persons with the rights of another (personae alieni iuris), or persons subject to someone’s authority, whose rights could be realised through other persons.

This mainly referred to the order in the Roman patriarchal family (familia), where the head of the family—the father (paterfamilias), who was a person with his own rights—was a holder of the specific power (patria potestas) of the father over the rest of the family—persons with the rights of another. Thus, the capacity to act of those under the father’s authority was limited in terms of the possibilities to settle property transactions, enter into marriage and start a family—this could be done with the consent and mediation of the father of the family. According to the general principle, the father of the family had almost absolute power over the other members of the family, he was the owner of all the family property and was responsible for all the transactions concluded by his family (Apsītis, 2020).

These conditions were equally applicable in situations involving gamblers as well. According to the writings of the Roman jurist Paulus, if the person under the father’s authority incurred losses in the game, the right to bring a claim for the recovery of the losses rested with the father of his family: ‘If ¼ the son of the family is defeated [in gambling], the father ¼ holds the claim’ ³⁶ (D 11.5.4.1).

Similarly, if a person under the father’s authority had triumphed in a game of chance, the victim could claim from the father of the perpetrator’s family: ‘Against parents¼request¼for playing dice¼is given’³⁷ (D 11.5.4.2).

Roman slaves were not recognised as persons; consequently, they did not have legal capacity—rights. It was determined by one of the three private law systems existing in Rome—ius civile, which, along with the other two—ius praetorium and ius gentium—governed the circulation of Roman private law (about the Roman private law systems and legal order—see I 1.1-2 tit. and D 1.1-4 tit.).

In accordance with the ius civile, slaves (servi) were not recognised as persons, although, as was pointed out, this was contrary to natural law (ius naturale), which considers all individuals as equal (omnes homines aequales sunt; D 50.17.32).

The slave’s legal status was equal to any other thing in the possession of his master—the slave was not the subject of law, but the object of law. A slave could not acquire property (D 50.17.118), undertake obligations (D 50.17.22; exception—a slave could undertake obligations in the name and responsibility of his master, see: I 3.17 pr.; I 3.17.1.; D 15.4 tit), to be a defendant or plaintiff in court (D 50.17.107), to perform various duties entrusted only to freemen (D 50.17.175), to undertake service for the good of the state (D 50.17.211), etc. (Apsītis, 2020).

Thus, the master was entitled to reclaim the property lost by his slave. Likewise, for the recovery of the slave’s winnings, a claim had to be brought against his master: ‘¼if the slave has accepted the money, a claim from the peculium will be made against [his] master¼’³⁸ (D 11.5.4.1) Respectively, the responsibility of the slave owner was limited to the extent of peculium allocated to the slave.

Peculium was an amount of property—a sum of money, a workshop, a trading enterprise or simply a small separate property, which the father of a Roman family or a slave owner handed over to the management of a son or slave under his control. The father (owner) retained ownership of the peculium, but it was separated from his estate as a separate entity. The son (slave) could administer the peculium quite autonomously, use it and earn income by implementing various commercial or other types of initiatives (except gifts).

The father (owner) had the right to freely increase or decrease the amount of peculium or to take it away completely from the recipient. He was also responsible for his son’s (slave’s) obligations (concluded contracts, etc.)—creditors could bring a claim directly against the father (master) himself. This responsibility was limited to the amount of the value of the peculium, from which the debts of the son (slave) in favour of the father (master) were deducted. The economic sense of the establishment of the peculium institute can be found in the desire of the Romans to manage their property more optimally and to use the economic potential of their family members or slaves more effectively by the means of additional motivating measures. More about peculium see: I 4.6.10; D 15.1 tit.; D 15.2 tit.; C 4.26 tit.; C 7.23 tit (Apsītis, 2020).

Similarly to situations with a person under the power of the father or a slave, it was necessary to act correspondingly also in the case when the winner of the game of chance was in a client–patron relationship. Respectively, a claim could be brought against client’s patron for the recovery of the client’s winnings (D 11.5.4.2).

It should be explained here—the beginnings of the institution of patronage can be traced back to the ancient Roman tradition, when in the first centuries after the city had been established, various immigrants who settled in the city sought protection of the patrician gentes (patricii—derived from the word patres—fathers, the heads of the families of the original inhabitants of Rome). Such help-seekers came under the authority and protection of a patrician family (familia) and were called clients (clientes), and the head of the family that accepted them became a patron (patronus). Residents of territories conquered by the Romans who moved to Rome or were forcibly relocated could also end up in client status.

The client–patron relationship imposed mutual obligations, although it was not considered a contract—the connection was more moral, based on trust (fides) and ancestral customs (mos maiorum). The client provided various free services to his patron, while the patron provided the necessary support when required, especially in legal matters. The patron represented his client in court, could issue a loan, help conclude a profitable deal or marriage, etc.

Clients were legally free people, but initially their condition was close to slavery; clients also had no political rights. Over the centuries, the situation improved, and even members of the same social class could find themselves in the patron–client situation. Thus, the patron could promote, for example, the political career of his client, while the clients could provide their patron with guaranteed votes in the elections of state officials.

A freedman freed from slavery also became a client of his former master, which meant the obligation to provide material support to the patron if necessary, to render some free services, to help in the election campaign, etc. The patron, in his turn, tried to ensure a certain level of well-being for his freedman or to help in some other way—the well-being of the clients was considered a proof of the patron’s own influence and economie power (Apsītis, 2020).

As previously mentioned, according to Justinian’s constitutions, the public supervision of the gambling regime was entrusted to the local bishops of the Christian Church, who implemented it with the help of a local military garrison (C 3.43.1.3, C 3.43.1.4).

On the other hand, the judges, whose duties were performed by the administrative officials of the empire during this period of the development of the Roman Empire, were given the authority to ensure that blasphemy and false oaths—giving false testimony—did not occur in cases related to gambling: ‘Also, let the judges make sure that everyone refrains from blasphemy and false oaths/false testimony’ ³⁹(C 3.43.2.2) (Apsītis and Joksts, 2024).

Just like nowadays, the ancient Roman society also suffered from the negative effects of the spread of various games of chance. At the same time, sources point to the age-old nature and truly international, multicultural character of the gambling phenomenon, as well as its special popularity among representatives of certain social groups and professions (C 3.43.1.pr.).

Gambling places were characterized by a very tense criminogenic situation. Sources contain information on violent robberies (D 11.5.1.1) and other types of violence (D 11.5.1.pr., D 11.5.1.2, D 11.5.1.4, D 11.5.2.pr.), thefts (D 11.5.1.3, D 11.5.1.2) fraudulent activities—use of falsehood (D 11.5.1.pr), etc.

Considering the above-mentioned circumstances, the Roman state power came to the conclusion regarding the need to legally regulate gambling. In the Code of Justinian (Codex Iustinianus, 534 AD), one can find the norms given by codifyer Justinian I (Flavius Petrus Sabbatius Justinianus Augustus, 483 AD–565 AD) himself—the constitutions (see: C 3.43.1.pr.—C 3.43.2.2).

There were attempts to regulate gambling even before Justinian. The sources contain an indication regarding a previously existing regulatory act issued by the Roman Senate on the prohibition of gambling for money (D 11.5.2.1). Issues related to gambling were solved by the Roman praetors (see e.g. D 11.5.1.pr., D 11.5.1.3, D 11.5.1.4).

The sources mention the laws from the times of the Roman Republic regarding betting on sports competitions and the legal status of gambling debts (D 11.5.3).

The problems arising from the phenomenon of spread of gambling were addressed by the representatives of the so-called classical jurisprudence (iurisprudentia, I–III centuries AD)—Roman jurists privileged by the emperor to give legally binding answers to legal questions of Roman citizens (see: D 11.5.1.pr., D 11.5.1.1, D 11.5.1.2, D 11.5.1.3, D 11.5.1.4, D 11.5.2.pr., D 11.5.2.1, D 11.5.3, D 11.5.4.pr., D 11.5.4.1, D 11.5.4.2).

Thus, we can assume that almost all the time during the historical development of the Ancient Roman state, one or another regime of legal regulation of the gambling phenomenon persisted, or at least some elements of such regulation were employed.