Changing Public Policy and the Evolution of Roman Civil and Criminal Law on Gambling

In Ancient Rome, gambling, at least in the form of dice games, was generally considered a vice, yet the only known criminal statutes prohibiting it were only sporadically and selectively enforced. Otherwise, aside from a legal prohibition on the enforceability of gambling debts and some limited private rights of action, the Roman state as a whole displayed what can only be described as a “laissez faire” policy toward all forms of gambling. What we would now call “sports betting” was exempted from the statutory prohibition altogether. This remained the case well into the Christian period, when a general crackdown might have been expected, but even under Theodosius II in the fifth century of the Common Era, no changes were made to the existing law on gambling.With the sixth-century emperor Justinian, however, imperial policy towards gambling underwent a profound change in the attitude that informed new legislation, if not in the actual efficacy of enforcement. Guiding this shift in official attitudes toward gambling was a threefold policy objective: (1) concern for protecting the assets of tax-paying imperial subjects (many of whom also had additional financial and service obligations in their native cities), (2) concern for the public morals, and (3) concern for weeding out frivolous clerics.In this Article, Part II examines Roman attitudes towards gambling, at least as exemplified in the surviving literary sources from the second century BCE to the fourth century CE. Part III discusses what constituted illegal gambling (alea) under Roman public (i.e., criminal) law and how, if at all, the statutory prohibitions were enforced in practice. Part IV will address Roman private law pertaining to gambling, including both the limited remedies available to losers in dice games and the bars to recovery for injury and property damage for owners or operators of backroom gambling establishments. Part V, finally, will examine the efforts of the Byzantine Emperor Justinian to revitalize and expand the existing law on civil and criminal gambling in the sixth-century CE.