Читать книгу Law, Language, and Empire in the Roman Tradition - Clifford Ando - Страница 10

Chapter 2

Law’s Empire

This chapter pursues several interrelated problems at the intersection of law and the articulation of the late ancient state. They may be framed as an inquiry into the consequences, intended and otherwise, of Caracalla’s decision to grant citizenship to all—or nearly all—freeborn residents of the empire. For the Antonine Constitution would seem to mark, or should have marked, a turning point in the history of the empire: put concisely, one might ask whether the empire still was an empire when it no longer ruled over anyone. Put more elaborately, was there a corresponding shift in the perception, ambitions, and actions of the state in keeping with the universalization of citizenship? Did acts or agents of government, or depersonalized institutions of the state, penetrate more deeply or spread more uniformly to match the universalization and homogenization of political culture that the spread of citizenship would seem to entail? What resources did the Romans have even to conceive, let alone to pursue, such an aim, if they had it, in whatever form they did?

In pursuing these questions, we face a number of obstacles, both ideological and evidentiary, that I mention simply to set the stage. These are, first, that Roman law was throughout this period a moving target, its doctrines and procedures undergoing constant revision and change. Second, Roman law—like so many fields of our discipline—has its own classical ideal, which urges us to esteem virtually all periods of Roman law about which we can actually know something as instantiating debased and degenerate forms of some earlier, pure and pristine law.¹

Third, even if we stand apart from the modes of valuation that gave us so-called vulgar law, bureaucratic law, and the like, we encounter an even more serious obstacle at the level of evidence: the very great bulk of legal texts at our disposal were edited at one or another of two periods in late antiquity so as to speak to formal issues of substantive law as it was then in force. That is to say, the texts we have—the huge bulk of which come in the form of something like a Routledge sourcebook—were systematically edited so as to provide or conduce the formulation of decision rules. Such material as jurists and lawyers once wrote that spoke directly to problems of justification, legitimation, or implementation has been rigorously excised.

This is, of course, a well-known problem. But it is perhaps not often enough remarked that in consequence the texts we possess seem scarcely to speak to two great historical problems of Roman law, namely, the adjudication of disputes between individuals of divergent legal status, whether citizens and aliens or aliens of divergent citizenship; or the administration of social and legal relations among formerly peregrine populations in the aftermath of the Antonine Constitution. For if one thing was emphatically true of the legal landscape of the early sixth century as it was imagined by the Justinianic compilers, it is that the individuals who would come before the law would all be citizens. It is hard to believe that many texts on legal relations between citizens and aliens survived to the sixth century—a scant handful of titles can be recovered—and when those few are quoted, it is for their reflections on the civil law alone.² In the rest of their content—in the very issues that motivated their composition—there was simply and understandably no interest.

Quite in spite of this, my ambition in this chapter is to address to the late antique compilations the questions I framed at the outset; to suggest a way to read them, by which they might be made to answer those questions; and to gesture, at least to what their answers might be.

My approach in brief is this: I propose to sidestep the question of what changes were made in substantive law or its interpretation and investigate instead how those changes were made: what pressures impelled them; how they came about; and how those changes were understood, described, and justified in later legal and jurisprudential literature. My second question—how they came about—would have to be taken in at least two directions: what was the source of law that enacted the change—statute? rescript? edict? interpretation?—and what was the conceptual mechanism by which that change was effected? Was some new species of person, thing, or action integrated within an existing taxonomy? Was a wholly new legal action created? Did some jurist create a work-around, through analogy or fiction? And so forth.

My argument will be that in post-Antonine legal literature, in the form we have it, the mechanisms developed in the late Republic and early Principate to constrain and channel pressures for change into particular formal outcomes were redeployed in the third century and beyond, continuing robustly into the age of Justinian. Or so it appears: for here we encounter some very substantial problems of evidence, arising most obviously from the editing and selection performed by the Justinianic compilers. One possibility is that the apparent continuity in forms of practical and theoretical elaboration across the corpus is a product of their work, by virtue of their conscious recognition in these texts of conceptual and linguistic forms that they viewed as legitimate and current. To credit this last claim would amount to arguing that the Justinianic editors privileged in their editorial work a vision of the law and in particular of what counted as legitimate reasons for change and mechanisms for realizing such. To this problem I shall return in closing.

This remarkable continuity in theoretical position and interpretive practice was achieved, I argue, despite the very considerable historical differences between the situations Roman lawyers confronted in the late Republic and early Principate on the one hand, and the post-Antonine world on the other. In the former, as we have seen in Chapter 1, the principal challenge to the system lay in the arrival on the scene of new sources of law, first the praetor and later the emperor. This is in fact an altogether common problem in almost all legal systems: it produces what might catachrestically be called conflicts of law, and in general the concern within any given tradition is their resolution in a fashion that respects the legitimacy of the separate sources of law and thus conduces the legitimacy of the system as a whole. In the classical period, the praetor is thus often described as acting in pursuit of greater adherence to principle that is either assumed or explicitly described as animating statute law, but in practical terms what praetorian action or the occasional statute or jurisprudential interpretation did was to ignore that same principle. In Roman law, I have argued, this work was usually performed by means of fiction, analogy, or mere substitution: the principle at stake is thus nominally sustained by virtue of an avowedly ad hoc and limited translation of objects, things, or persons across whatever taxonomic divide the principle was intended to articulate.

The twin pressures on post-Antonine law were the need to sustain social order in the formerly discrepant legal landscapes of the empire, while insisting wherever possible on the superordinate normative status of Roman law. Jurists, legislators, and judges needed, in other words, to acknowledge the fact of contingent divergence from Roman practice by nominal Roman citizens at some primary level of analysis in such a way that permitted the redescription and reorientation of that practice over time into alignment with Roman norms. Homogeneity had to be produced out of heterogeneity, unity out of plurality, without disruption to preexisting social and economic relations.³

The product of the effort so described was the development of legal actions that occasionally explicitly—and in aggregate implicitly—accorded legitimacy to the normative codes that had structured local life in the pre-Antonine age. At the same time, Antonine and immediately post-Antonine jurists recuperated for this project a set of legal-theoretical categories with which to describe this new landscape: custom, natural law, and ius gentium, the law of nations. None of these was new, of course; but none had been made to do such heavy lifting before, nor had any been so robustly characterized at any point in the Roman past. The turn to these categories was necessitated above all by the prominence formerly given in political and legal philosophy to ius civile. For in the system adumbrated by Cicero and given full-fledged articulation by Gaius, every community of citizens, every civitas, had its own ius civile: in an age of multiple citizenships, this explained the tesselation of the legal landscape of the empire into several civitates—indeed, it offered the whole ontological security of a most interesting kind—but the construct had to be radically rethought, even rebuilt from the ground up, to remain useful in a world in which there were no separate citizenships.⁴

Beyond these more abstract conclusions, one thing I hope to highlight is the remarkable historical self-consciousness of Roman lawyers, a feature of their intellectual make-up little remarked and generally obscured by their fondness for writing lemmatic commentaries rather than monographs. But the jurists early and late thought long and systematically about the need for law to evolve in response to new social and political realities. This sensibility was combined with a quite fascinating sense of the limitations of discursive language. In the words of Julian, Ulpian, and Celsus, “Neither statutes nor decrees of the Senate can be written so as to embrace every eventuality that might at some time occur.” “For it inheres in natura rerum, in the nature of things, ut plura sint negotia quam vocabula, that the forms of conduct are more numerous than the terms for them.” In consequence, the law must provide recourse, even when the actionum nomina or appellationes provided in civil law fail.⁵

Jurisdictional Rules and Legal Pluralism before the Antonine Constitution

Law as such is a neutral tool, perforce inherently conservative in the most banal sense. In imperial contexts, however, the law of the metropole is generally assumed to be a tool of oppression, designed to disjoin rather than unite populations and to sustain distributions of wealth and power that favor its own interests. That said, interest in this context is hard to assess: spread of civil-law forms across the empire would likely have reduced transaction costs to macro-regional trade still further, and this would almost undoubtedly have produced greater revenues for Rome, and there is evidence for such thinking in antiquity in terms not so blatantly economic.

At the same time, there is very considerable testimony to a reluctance on the part of Romans to allow aliens access to civil law for partisan reasons; to a kindred reluctance on the part of aliens to take up the law; and likewise evidence that Romans believed that sustaining local traditions, including legal relations, conduced social order in some fundamental and probably profitable sense.⁶ Against vague rhetorical claims in Roman sources both early and late (in Livy, say, and Servius) that laws and language are the victor’s to impose, one might therefore set widespread invocation of the principle—and insistence in practice—that basic structures of civil- and even public-law relations were expected to map citizen status of individuals and communities.⁷ Hence Trajan offered to Pliny the general principle that id ergo, quod semper tutissimum est, sequendam cuiusque civitatis legem puto, “it is always safest, I think, for the law of any given citizen community to be observed” within its jurisdiction (Pliny Ep. 10.113). In short, non-citizens were to use their own laws. The principle is concretized in historical narrative in Livy’s language in book 9, when he describes the aftermath of Rome’s war with the Hernici: preferring their own laws, Rome’s allies declined the offer of Roman citizenship.⁸ Similar in equating change of citizenship with entry into a new legal regime, and of direct relevance to the period at hand, is the assertion by the Tetrarchs in a text on marriage preserved in the Collatio, to the effect that cunctos sub imperio nostro agentes, everyone living under their rule “should be mindful of the need to conform themselves to the lifestyle and laws of Rome and should know that only those marriages are licit that are permitted iure Romano.”⁹

In point of fact, law in the classical period over and over again exhibits a similar schizophrenia, working at once to universalize norms but also along multiple axes to fragment the empire. In consequence, the Romans eventually crafted impressive theoretical resources for conceptualizing the empire as permeated by a uniform legal culture, even as multiple firewalls disjoining Rome and Italy from the provinces in the availability of civil-law actions were erected and enforced. As I hope to show in closing, these very rules and resources remained alive in the reign of Justinian, when just those resources were reactivated and employed to dismantle those same firewalls.

Perhaps the best index of the conceptual work performed in this arena in the late Republic and early empire is the distance traveled, as it were, between the laws on jurisdiction of the late Republic on the one hand and the Flavian municipal law on the other.¹⁰ A schematic view of the former might outline their content as having the following form: (1) In communities of types A, B, and C, in area D, (2) in which jurisdiction rests with magistrates of types G or H, (3) legal actions of type K shall be handled locally, using procedure M, if conditions P and Q are met, or (4a), if conditions P and Q are not met, procedure R should be used locally, or (4b) the case shall be sent to Rome. The Veleia fragment, a text of the mid-first century B.C.E., gets to the heart of what these texts contribute to my story, for in that text it is very nearly the words quei ibei alone that confirm its identification as a late Republican law on jurisdiction: the end of the clause may confidently be restored ius deicet: “he who holds jurisdiction there” (Roman Statutes no. 29).

In the ninety-first chapter of the Flavian municipal law, by contrast, the following rule is laid down regarding various points of procedure: “if judgment has not taken place within the time laid down in Chapter XII of the lex Iulia that was recently passed concerning iudicia privata and in the decrees of the Senate that relate to that chapter of the statute, so that the matter be no longer under trial; the statute and law and position is to be as it would be if a praetor of the Roman people had ordered the matter to be judged in the city of Rome between Roman citizens” (see also Chapter 1 and Appendix passage 9). Written perhaps a hundred years apart, these texts offer startlingly different visions of the legal landscape of the empire. The Veleia tablet distinguishes explicitly between Rome and everywhere else; in line with other legislation of its era, it reserves the power and capacity of judgment in matters of import to the metropole. Only its judges, sitting in its forum, animated by its soil, could decide. Late Republican jurisdictional clauses also cleave the empire socially, for it is not all disputes, nor even all disputes between citizens, that are removed to Rome for adjudication, but only those in which the matter in dispute, converted to monetary terms, was worthy of Roman attention.

In contrast, the Flavian municipal law preserves the distinction between Rome and elsewhere only to upend it, by means of a fiction that operates on two levels, geographic and social: it dissolves both distance in time and distinctions in the legal status of persons: disputes between potentially alien municipes are to be resolved “as if a praetor of the Roman people had ordered the matter to be judged in the city of Rome between Roman citizens.” Provinces and provincials are thereby assimilated to Rome and Romans. What is more, there is considerable evidence for the ongoing use of just this fiction—what Gaius calls the fictio civitatis—part of whose attraction must have been that it permitted the principle of restricting civil law to citizens to stand, while freeing Romans with jurisdiction in the provinces to judge in light of the law they knew.

That said, evidence in textual sources for the role of law in disjoining the empire is far more substantial. Perhaps the most important distinction lay between Italy and the provinces: any number of civil-law rights and actions could be performed or actualized only on Roman or Italian soil. Consider, for example, the famous correspondence between Pliny and Trajan regarding the scruple involved in moving the temple of the Mother of the Gods in Nicomedia. Pliny hesitated to approve the act, he wrote, because the temple had no lex, as the morem dedicationis, “the method of consecration,” practiced in Nicomedia was alium apud nos, “different from that practiced among us.” Trajan responded that Pliny could be “without fear of violating religious scruple,” as the solum peregrinae civitatis capax non sit dedicationis, quae fit nostro iure, “as the soil of a peregrine city cannot receive consecration as it is performed according to our law.”¹¹

The “soil” in question in Trajan’s response was that of Italy, in which inhered some quality of Romanness that more perfectly animated both Roman law and affection for Rome than soil elsewhere ever could. In consequence, persons exiled in the provinces were excluded not simply from the particular province whence they were banished, but from Rome and Italy as well—a rule articulated by Hadrian in a rescript, which was quoted and commented on by Ulpian, whose text was cited in full by the Collatio but edited to produce an erroneous attribution in the Digest.¹² The special place of Rome and Italy in both affective and legal terms is repeatedly rehearsed in the Code of Justinian: in 225 for example, Alexander endorsed the continuation of an exclusion from Italy of slaves whose masters had freed them for the purpose of sending them away.¹³

With this framework disjoining Italy and empire still in place, the scope for action by the Antonine Constitution in producing legal homogeneity was limited, regardless of its intent. That said, the homogenization of legal structures in the provinces, in relation at least to each other if not to Italy, that followed in its wake does appear to have enabled a new jural-political geographic consciousness: for it is, I think, first in jurisprudence after 212 that we find the term in provincia to refer to the collectivity of provinces, which usage in turn enabled the binarism common in the post-Antonine jurists, in Italia::in provincia .¹⁴ A number of other conceptual obstacles must have fallen along the way to make that possible, but it seems meaningful nonetheless.

Naturally, insofar as the provincial::Roman distinction was a matter of law, it was also surmountable at law. And that is precisely what we find in Gaius. At the start of his second book, a brief comment on the distinction between what is sacer and what religiosus, what is sacred and what is religious, leads to a digression on the meaning of those terms on precisely provincial soil:

That alone is thought to be sacred which is consecrated on the authority of the Roman people, either by law or by decree of the Senate. We make things religiosum in private actions by bearing our dead to particular sites…. But in provinciali solo, on provincial soil it is generally agreed that the soil cannot be religiosum, since there ownership rests with the Roman people or with Caesar, while we seem to have only possession or use. Utique tamen, etiamsi non sit religiosum, pro religioso habetur. Nevertheless, even if it is not religiosum, it is treated as though it were. Similarly, whatever in the provinces is not consecrated on authority of the Roman people is properly not sacred, but it is nevertheless treated pro sacro, as if it were. (Gaius Inst. 2.5–7)

Here it is the simple use of substitutive pro that does the work, a nearly ubiquitous usage in Roman law. But the effect was not innocent, for what Gaius enabled by its usage—as with the fiction in the Flavian municipal law—was the regular and consistent overcoming of precisely the principle he nominally upheld.

One might have thought that the distinction between Italian and provincial soil would gradually lose its power to articulate truths about the affective and legal landscape of the empire over the course of the fifth century, if not before—for all, perhaps, but antiquarian pedants like Justinian. But that is not what happened. Rather, the language in which that distinction was expressed was taken up from below, as it were, to give expression to the realities of the late ancient state under siege. This had effects both within and without the empire. That is to say, the metaphorical association of soil, system of law, and affective bond as mutually implicated ways of articulating membership in a Roman political community remained strong, and its ongoing usage by provincials to voice their attachment to the empire ultimately demanded revision of the system that had theretofore employed this same language to keep them at a distance. The power of this network of associations is laid bare, for example, by its repeated use in the middle of the fifth century by Salvian, who construed the condition of being conquered by barbarians as subjection to ius hostium, to the enemy’s laws, and thus as creating him and his fellows as non-Romans: his condition was therefore that of an alien, living in alieno solo, on foreign soil. A few decades earlier Eugippius described Saint Severinus admonishing civilians in the face of barbarian onslaught to migrate in Romani soli provinciam, “to a province of Roman soil.”¹⁵

Theorizing Plurality after Universal Citizenship

Considered in these terms, the challenge confronting Justinian in providing a vision of the empire as integrated by law was articulable in classical language of immediate contemporary relevance. The solutions available to him were multiple, and some were simple: he might, for example, have redescribed all soil as Roman, and thereby assimilated procedure and principle within Italy to that without. But even had he undertaken some such revision by sleight of hand, its narration would naturally not tell the whole story of late ancient law, even at the level of legal philosophy. On the one hand, massive historical changes had taken place in the realm of law between the Antonine Constitution and the sixth century, and no reckoning with Justinianic language alone can map those changes; and on the other, the problems of the legal system even in the sixth century were not to be resolved solely through figurative language.

Turning first to the landscape of law and historical change in the earlier period—and reacting against a body of literature that diminishes the importance of the Antonine Constitution—it is worth stressing that the world of the law after 212 was in fact different, utterly different, than the world before: the landscape of actual legal relations remained fully as heterogenous as before, but the participants to those relations now had full and undeniable standing before the law in Roman courts. What resources did classical law provide to conceptualize and administer this system, what new ones were crafted, and how did they fare in the third and fourth centuries?

It is important first of all to recall that the most prominent mechanism for acknowledging and controlling legal heterogeneity in the world before 212 now failed. I refer to the simple recognition of the existence and legitimacy of separate bodies of law and the assigning to them of non-overlapping jurisdictions. The clearest shorthand gesturing at this apparatus is surely that of the Tabula Banasitana, an inscription of 177 C.E. recording a grant of Roman citizenship to one Aurelius Iulianus, which grant is said to occur salvo iure gentis, “without prejudice to local law” (IAM 94). Quite apart from our ignorance what the ramifications of this clause in fact were, one thing is clear: after 212, there were no separate iura in the empire, neither of gentes nor of civitates. This new present naturally had recursive effects on how one viewed the past, and I will turn in a moment to consider that problem.

But the mere death of systems of local law is not the end of the story. For one thing, existing relations of a very great portion of the empire had until a moment ago been structured by non-Roman normative codes of some description, and these had to be respected before the law: one problem was therefore how to name them—indeed, how to know what they were—if their (separate) existence as law was no longer possible.

It is of course well known—or might be expected—that jurists and lawyers should turn to the categories of mos, consuetudo, and ius naturale, of custom and of natural law. That said, even those moves had outcomes little studied and perhaps not to be expected, and in what follows that story will run in counterpoint to the others I seek to tell.

Allow me first simply to point out how extensive were the shock waves of Caracalla’s act in legal philosophy. For what the Antonine Constitution required was nothing less than the wholesale imposition of a code of law upon highly developed cultural and political systems whose existing social-material relations it did not accurately describe. Viewed in these terms, this moment had a loose structural analog in the aftermath of the Social War, in the process captured for well or ill in the phrase “the municipalization of Italy.” But the problem in 212, measured along any one of a number of axes, was wholly different in scale.

Grappling with this task provoked thought of two kinds relevant to this chapter, at whose bare outlines I can only gesture. The first concerns language and consists in reflections of the sort I cited earlier, to the effect that the language of the law, and the taxonomic efforts to which it gives voice, must needs fail to capture the complexity of even present social-material relations, let alone future ones. It is here that a gap was created, wherein late antique legislators inserted their interest in principles of one kind or another—equity, humanity, what have you—over against the subtilitas, the punctiliousness, of the law.¹⁶

The second form of legal-philosophical reflection provoked among jurists confronting the world that Caracalla created was more abstract in orientation. It was occasioned, it seems to me, precisely by the lack of fit between the ambitions, shape, and social-theoretical consciousness of Roman law and the varied local legal systems it had now to map and replace. If those systems were neither homologous in their principles nor homeomorphic in their structures, how should one then account for such fit between law and society as does arise? More fundamentally, what was the ontological status of law or for that matter of culture? Not surprisingly, the most extensive meditations on these themes are to be found in the eastern jurists, whose rise in just this period was described some years ago by Fergus Millar.¹⁷ Consider, for example, Marcian’s description of the legal capacity of exiles, of ex-citizens, in a work likely of the 220s C.E.:

deportatus civitatem amittit, libertatem retinet et iure civili caret, gentium vero utitur. itaque emit vendit, locat conducit, permutat, fenus exercet aliaque similia. unde etiam recte obligat, quae post condemnationem quaesivit: quibus in rebus creditores quoque, qui bona fide contraxerunt cum eo, praeferuntur fisco deportatis defunctis succedenti. nam bona, quae condemnationis tempore inveniuntur, deportatus alienare non potest.

A deported person loses his citizenship but retains his freedom, and while he loses the ius civile he employs the ius gentium. He accordingly buys, sells, leases, hires, barters, lends money and does other things of this same kind. Hence, he may also lawfully pledge those things that he acquired after his condemnation; and in these dealings, his creditors who have contracted with him in good faith are preferred to the imperial treasury as successors when a deported person has died. For a deported person cannot alienate the goods that are found in his possession at the time of his condemnation. (Marcian De iudiciis publicis bk. 2 fr. 214 Lenel [the book attribution is that of Lenel; the citation is missing from the Digest] = Dig. 48.22.15)

What Marcian provides is an enumerative definition of homo economicus as he existed between legal systems in the mind of a man who knew more than one, who had been brought by circumstance to reflect on the range of legal actions commonly available, which is to say shared, between bodies of law in the Roman east. Reflections on the content of ius gentium before the Antonine Constitution are empty shells by comparison.

By way of parenthesis, let me add that there exist a wide range of texts in the Codex Theodosianus on just this problem, with the opposite intent: that is to say, the law in question imposes a sentence of infamia, and goes on to specify what civil-law rights one should imagine guilty parties losing: they lose omnem facultatem testandi ac vivendi iure Romano, “all capacity to write a will or live in accord with Roman law”; or guilty parties are henceforth intestabiles, “forbidden to write a will or enter into an inheritance,” and possess nullam potestatem alicuius ineundi habere contractus, “no power to enter into a contract”; and so forth.¹⁸ Although marked by a different ambition, namely, that of cutting off their victim from human society, these laws exhibit a clear continuity with Marcian in their conception of the forms of human sociability of interest to the law.

The Future History of Prior Law

I turn now to custom, with an example in a moment on contract, to continue the theme. Custom, consuetudo, had not been a preoccupation of pre-Antonine jurists. On the contrary, with the possible exception of some very limited reflections on desuetude, Roman jurists had almost no interest in custom: as evidence of its alienness within Roman legal thought, one might point to its conjoining in extracts in the Digest with “unwritten law,” a category self-consciously flagged by Roman jurists as borrowed from the Greeks.¹⁹ This was true even when the jurists turned their attention to the provinces: after all, if even the Zagrenses could be credited with possessing ius, a body of law, what need had one of their customs?

In the aftermath of the Antonine Constitution, I have argued, the separate and continued existence of other bodies of law could not be permitted, at least at the level of theory. At the same time, social and property relations—social order—demanded that now notionally Roman courts throughout the provinces uphold within some attenuated civil-law framework legal agreements formed under those earlier bodies of law. I want here to discuss briefly two features of the rulings and writings that emerged from that process: first, of necessity earlier provincial law, whatever its origin, is characterized in post-Antonine legal writings as custom, and this is likely to have affected the work of courts in crafting decision rules in specific cases; second, more remarkably, this had effects on what came to count as civil law.

The transformation of prior law into custom in doctrinal texts is at some level not surprising: it has precedent in the language of late Republican Roman law, where non-Roman marriages are described as taking place according to mos, at times explicitly in light of the grant of civitas to the communities where the marriage took place.²⁰

Where provincial law is concerned, I cited earlier the rule handed down by Trajan to Pliny, that local law should prevail. Similar in vocabulary—because, I suspect, of an oversight on the part of the compilers—is Paul’s suggestion that in the interpretation of a statute, one should especially consider quo iure civitas retro in eiusmodi casibus usa fuisset, “the law that the civitas had previously applied in cases of the same kind.” The sentence that follows, the last of the extract, seems in contrast clearly post-Antonine in its vocabulary: optima enim est legum interpres consuetudo, “for custom is the best interpreter of laws.”²¹ The equivalence here struck between consuetudo and the law that had once been applied gets to the heart of the historical process I seek to analyze.

The consequence of the Antonine Constitution in the practice of law is well known: an enormous case law sprang up, seeking to determine which prior practices and principles could survive, at least for the lifetime of individuals and contracts grandparented in. As has often been observed, the result in Justinian’s Code is an enormous body of rescripts merely restating standard doctrine, even when the judgment in the case at hand was that the illicit practice of the individuals in question would be permitted to stand. What I would stress today is the complete replacement in those texts of the vocabulary of law with that of custom, from the reign of Alexander clear through to the reign of Diocletian: pre-Roman norms are described as mos regionis, mos locorum, praeterita consuetudo, Graeco more, and so forth.²² One example from the reign of Alexander is particularly apt, as it rehearses in new language, as it were, the principle of Paul:

Praeses provinciae probatis his, quae in oppido frequenter in eodem genere controversiarum servata sunt, causa cognita statuet. nam et consuetudo praecedens et ratio quae consuetudinem suasit custodienda est, et ne quid contra longam consuetudinem fiat, ad sollicitudinem suam revocabit praeses provinciae.

After a case has been heard, the governor of a province shall decide in accordance with established practices, such as have been frequently confirmed in the same type of dispute in the town. For both consuetudo praecedens, preexisting custom, and the ratio that established the custom should be taken into consideration, and the governor of the province shall recall to his own attention the need not to allow things to occur in contravention of longa consuetudo, long-established custom. (Cod. Iust. 8.52.1 [Honoré Palingenesia 665/8/47], from 224 C.E.)

Particularly charming in this body of material are the trial balloons, when someone attempted and failed to associate an anomalous act with a fictitious local custom and got shot down: Nec apud peregrinos, not even among aliens, insisted Diocletian and Maximian, could someone make another brother to himself by adoption.²³

This recuperation in actual legal practice of what had been at best occasional musings regarding the relationship between the consuetudo civium and the statutes those cives make for themselves was a time bomb waiting to explode on the civil law. For the customs now being upheld as customs were perforce the customs of citizens, albeit recently enfranchised ones. Who was to say their customs were not law?

And this, remarkably, is just what happens. In an extract from book 4 of Ulpian’s commentary on the edict, contained in the chapter of the Digest called De pactis, he takes up the problem of honoring non-civil-law forms of contract before the law:

(pr) By ius gentium, conventiones quaedam some agreements give rise to actions, some to defenses.

(2) But even if the matter does not fall under the head of another contract and yet a ground exists, Aristo in an apt reply to Celsus states that there is an obligation (obligatio). Where, for example, I gave a thing to you so that you may give another thing to me, or I gave so that you may do something, this is, Aristo says, a συνάλλαγμα, a synallagma and hence a civil obligation arises (civilis obligatio). And therefore I think that Julian was rightly reproved by Mauricianus in the following case. I gave Stichus to you so that you would manumit Pamphilus; you have manumitted; Stichus is then acquired by a third party with a better title. Julian writes that an actio in factum is to be given by the praetor. But Mauricianus says that a civil action for an uncertain amount, that is, praescriptis verbis, is available. For the contract described by Aristo with the word συνάλλαγμα has been made and hence this action arises. (Ulpian Ad edictum bk. 4 fr. 242 Lenel = Dig. 2.14.7)

The problem before Ulpian is the need to provide a generic action for disputes arising from non-Roman forms of bilateral agreement: hence his invocation of ius gentium, and the preservation within the jurisprudential (and textual) tradition of the Greek term synallagma. What must have been a largely theoretical problem for Aristo was a very real one for Ulpian.

What is remarkable here is the two-fold embrasure—perhaps not all of Ulpian’s agency—of this new action within ius civile. For the non-Roman contracts in question are said to give rise to a civilis obligatio, a civil-law obligation; and the generic action on agreements—the so-called actio praescriptis verbis—is itself granted status as civilis, too. Equally stunning was the intuition by Julian to subsume the problem of non-Roman contracts under the umbrella of the actio in factum: for that action was itself an omnibus category, designed in the classical period and understood precisely as allowing adjudication before the law of cases that could not, by hook or by crook, be described in the language of contemporary formulae. Despite its (intentional) vagueness of definition, it was emphatically recognized as a legitimate civil-law action; and in both origin and application it provided exactly a precedent for the situation confronted by Ulpian and others across the third century.

The Work of Integration in the Age of Justinian

The issues raised in these texts of the third century, and the methods employed by jurists and lawyers to negotiate them, had a long life in late antiquity. Let me give two quick examples, which hearken to terms and themes I have already raised, and by that means return to the conclusions I sketched at the start.

First, in 529 Justinian attempted a correction to the law of dowry. The difficulty he sought to address was partially one of fairness: he wished to grant to women getting divorces the right to recover their dowries before any other claims were made upon their ex-husbands’ property. And the problem existed or, rather, was apparent in part because in this area as in so many others, Roman and Greek practice diverged, and attempts to assimilate the two provoked reflection and revision in the law.

The law opens with a statement of the substantive revision it enacts—that wives should have a prior claim, in order to recover their dowries—followed by a blatant assertion of fact in denial of law: wives are so entitled

cum eaedem res et ab initio uxoris fuerant et naturaliter in eius permanserunt dominio. Non enim quod legum subtilitate transitus earum in mariti patrimonium videtur fieri, ideo rei veritas deleta vel confusa est.

because the property belonged to the wife in the first place and it naturally, naturaliter, remains in her dominium. For the truth of the matter, veritas rei, is not destroyed or confused by the subtlety of the law, in which a transfer of the wife’s property into the estate of her husband appears to have occurred. (Cod. Iust. 5.12.30.pr.)

This is a deeply sloppy piece of legislation: in effect, Justinian wholly overturns all prior law on dowry by denying that ownership of it passes to the husband in the first place. On the understanding he adumbrates, the husband possesses only usufruct of it, and it is important to observe that the long history of law on dowry had been heading in this direction. But Justinian shied from revision on that scale. He resorted, rather, to the standard toolbox of the Roman lawyer: like a classical lawyer, he left prior law standing, only to upend it by fiction; and like a third-century jurist, he justified that action by asserting a gap between some social reality and the world the law would or could describe:

Volumus itaque eam in rem actionem quasi in huiusmodi rebus propriis habere et hypothecariam omnibus anteriorem possidere, ut, sive ex naturali iure eiusdem mulieris res esse intellegantur vel secundum legum subtilitatem ad mariti substantiam pervenisse, per utramque viam sive in rem sive hypothecariam ei plenissime consulatur.

Therefore we desire that she have an action in rem relating to property of this kind, as if it were her own, and possess, too, an hypothecary action prior to all others, so that regardless whether the property of the wife is considered to be hers in accordance with natural law, or is held to have become part of the estate of the husband through the subtlety of the laws, her interest shall be fully protected by one or the other of these two actions, that is to say, the one in rem or the hypothecary action. (Cod. Iust. 5.12.30.1)

It’s a fascinating text, but a sorry piece of legal reasoning. In light of my suggestion regarding Ulpian’s domestication of Greek forms of contract, it is worth noting that when Justinian boasted of his revisions to marriage law in the Institutes, nowhere does he suggest his revisions betray foreign influence: unknown to the ancients, he writes, the practices he codified were simply the enactments a iunioribus divis principibus, by more recent emperors (Justinian Inst. 2.7.3).

As with dowry, so with Italy. In a series of laws in 530 and 531, whose success he vaunted in the Institutes, Justinian attempted to dismantle the legal schemes that distinguished ownership on and of Italian and provincial land and hence, too, the actions and rules that governed transfer of said ownership.²⁴ One important difference between the two schemata had lain in the systems whereby possessors of certain goods could claim ownership of them; another distinction had been drawn within each schema between moveable and non-moveable goods.

Expressing repeated frustration with the inutiles ambiguitates et differentiae, useless ambiguities and distinctions that the ancients had imposed upon the law in contravention of ius naturale, Justinian declared it pointless to permit usucapion in Italicis solis but to exclude it in provincialibus, to permit it on Italian soil but exclude it from provincial soil. He also removed as merely “antiquated” the distinction between forms of ownership previously restricted to Italian soil, which had distinguished there between moveable and non-moveable goods.

But here he involved himself in a difficulty: for though he desired to homogenize the full range of existing practices around the simplest rule possible—sit et rebus et locis omnibus similis ordo, “let there be the same scheme for all things in all places”—and chose for that reason to universalize usucapion—the Italian action, as it were—for various reasons he actually compromised the simplicity of this scheme in two related ways. First, he redefined usucapion so as to include the timetables, plural, that had governed the provincial rule of longi temporis praescriptio; and second, he did this in part because he ultimately decided to (re)impose a distinction between moveable and non-moveable goods. One reason to take these actions, beyond mere common sense, was that individuals were even then shaping actions that extended into the past and future in light of prior law—the same problem, one might say, that jurists and lawyers had confronted across the third century.

Justinian and his lawyers were less flexible thinkers, though they deployed the same tools in resolving this impasse: rather than admit that a similis ordo did not, in fact, pertain rebus omnibus, he allowed that ownership of moveable goods passed to long-term possessors quasi per usucapionem ei adquisitam, “as if they had been acquired by him through usucapion.”

Conclusion

I conclude with two brief thoughts, one about the Justinianic corpus and one about the late ancient state.

On my reading, Justinianic law emerges as surprisingly classical: in particular, the formal moves employed in it to enact change or mere revision echo those adopted in earlier periods of upheaval—the municipalization of Italy and the aftermath of the Antonine Constitution—as well as those brought forward by legal philosophers in calmer moments, when they sought in earnest reflection to resolve conflicts of law provoked by the praetor or for that matter the emperor. But the corpus also appears to me, at any rate, suspiciously homogenous: for one thing, there are too few aliens and too little law about them. More seriously, I worry that the Justinianic compilers excerpted and retained those passages in which the arguments (in distinction to mere rules) appeared to them legitimate.

Described as in some respects grappling with problems similar to those that confronted lawyers in the early empire, and furthermore as employing tools that are themselves logical developments upon classical ones, the law of the later Roman Empire may thus be understood as more Roman—less vulgar, less Byzantine. At the same time, the texts that preserve classical law emerge from this inquiry somewhat less trustworthy: not so much as saying things that are not true, but as not saying things no longer applicable or, rather, no longer intelligible, to sixth-century lawyers.

Where the late ancient state is concerned, the world the law sought to create was more unified in its legal structures, of course, but also in fundamental respects more inclusive: for within the normative superstructure that Justinian sought to universalize were embedded non-Roman concepts and non-Roman rules that were often enough self-consciously redescribed as Roman at the moment of their taking up. In this way, legal-philosophical tools devised to justify decision-rules in the present worked continually to rewrite the past.

If the state so created appears nevertheless less flexible, more univocal, than its classical ancestor, that is because emperors from Constantine onward, but particularly those commencing with Theodosius, explicitly co-opted nongovernmental institutions and personalized networks of power in the project of state-building, and so robbed public life of its constitutive outside, and themselves of the notionally disinterested chorus that had earlier hymned their legitimacy.²⁵ But this was not the lawyers’ fault.