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BANDITS IN THE ROMAN EMPIRE
guerrilla warfare’ was to the root ‘to commit banditry’. ‘The war in Bruttium
had been a matter of brigandage more than of regular fighting’ is Livy’s
verdict on this phase of the Hannibalic War. 45
Livy’s contrasting of latrocinium and bellum was no isolated, accidental
distinction, but one fully in line with Roman legal thinking which found its
expression in the formal juridical definition already discussed in Chapter 1:
‘“Enemies” are those who have formally declared war upon us or upon whom
we have declared war. The rest are either latrones or praedones.’ 46 According to
this definition, the criterion for distinguishing between hostes and latrones or
praedones was the capacity of the enemy to make a formal declaration of war,
as happened in Rome in the form of the fetial rite and according to the law
of the bellum iustum. 47 For the Romans, this could be done only by sovereign
states. Conversely, any war that was not preceded by a declaration of war
valid under international law was latrocinium.
Taking all this into account, Viriatus’ war had to be termed latrocinium.
On the other hand, an examination of the terminology of our sources in this
respect produces no uniformity. If Appian or Diodorus use the word ‘war’
(polemos) in this context, they are adopting the Roman viewpoint, according
to which the event necessarily had to be termed ‘the war against Viriatus’
(ho Ouriathou polemos). 48 And if, from the Roman perspective, an appeal was
made to the Lusitanian war party, that still does not preclude that this war
was latrocinium or leisterion. Wherever Appian speaks of Lusitanian guerrilla
groups, he is consistent in describing them and their actions as leisteria. 49
On the other hand, in other texts Viriatus’ war is unambiguously regarded
as bellum, 50 and Viriatus himself as ‘commander . . . of a regular army’ and
hostis. 51 By juridical standards this is a very definite assessment and all the
more important because it was the one adopted by Livy who reproduces the
contemporary, official view of the Senate. In his obituary, Appian also praises
Viriatus as a great general, just as other authors called him dux or strategos,
thereby deliberately employing terms which denoted a regular commander. 52
The terminological indecisiveness of the sources raises the question as to
whether the juridical distinction between hostes and latrones really had any
practical relevance, given that in the case of Viriatus’ war the legal juridical
criteria for terming it latrocinium were so clearly fulfilled. Despite the
impression given by the sources, how people described a war like that of
Viriatus was not entirely arbitrary. In non-legal usage, the strict legal definition
was, as it were, set aside if it conflicted with that of the common
perception (i.e., of people who were not expert in the law). For example, in
legal terms the slave wars of the Roman Republic should also have been
termed only latrocinia. However, to cite only one instance to the contrary,
Florus saw himself forced, with a clearly deeply felt ‘I am ashamed to call
them so’ (pudet dicere), to describe Spartacus as hostis, dux and quasi imperator,
and his war as bellum. 53
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