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Chapter 1

Citizen and Alien before the Law

The object of this chapter is to excavate a body of law that does not exist, namely, the one that governed aliens, particularly aliens in dispute with citizens or with aliens of discrepant citizenship, before Roman courts. In doing so, I hope to advance four interrelated claims beyond the particular work of recuperation I shall perform in respect to legal practice.

First, I urge that a number of the most distinctive formal mechanisms in Roman law and legal language—most notably the fiction and its kin—were developed precisely in order to accommodate before the law persons and things notionally excluded by jurisdictional rules. Second, these mechanisms are visible in statutory language long before they are taken up in jurisprudence and, not surprisingly, they do their most interesting work in the early period of Roman law exactly at those moments and in those places where the Romans sought to incorporate juridically non-Roman populations within their state, namely, in the experimental colonial and provincial landscapes of Greece and Africa in the late second century B.C.E., in the municipalities of Italy created de novo as Roman communities in the aftermath of the Social War, and the reorganization of Cisalpine Gaul after the extension of citizenship to its residents and its statutory redescription as part of Italy.

Third, in the hands of the jurists of the classical period, these mechanisms are redeployed to resolve an historically new but structurally similar problem, namely, the resolution of apparent conflicts of law. These arose for the jurists of the classical period prior to the Antonine Constitution principally through the operation at Rome of multiple sources of law: statute, as issued by an assembly of the citizen body; praetorian edict; and imperial utterance. Although these rose to prominence in the order in which they are here listed, none was understood to have superseded the others or, more precisely, none was understood in the classical period to have gone into abeyance or to have ceased functioning altogether. In consequence, despite the existence within Roman legal philosophy of doctrines of desuetude, jurists were reluctant to describe laws from these varied sources as having radically superseded each other. Rather, later laws are described as honoring the principles articulated in earlier legislation, even as they worked in precise but significant ways to subvert those same principles. For that delicate task, the fiction was an ideal tool.

Fourth and last, confrontation with the complicated legal landscapes created by the work of empire and Rome’s own complex past spurred the development by Roman jurists and legislators alike of two distinctive traditions that have since proved fundamental to the history of the civil law, in its work both in Europe and abroad, namely, a remarkable historical selfconsciousness on the one hand, and a foundational concern for the capacity of legal language to give normative description to the worlds it was called upon to regulate on the other.

Citizenship and Jurisdiction: Ius Civile Defined

When I say that the substantive law governing relations between citizen and alien does not exist, I intend the claim in both an historical and a normative sense. At the level of history, the vast bulk of the legal texts that survive from the Roman world were selected and edited for their contemporary utility by scholars working in the sixth century C.E., some three hundred years after the universalization of citizenship. Apart from the trace evidence of a few titles of works quoted exclusively for their civil-law content, such substantive law as once existed to govern citizen-alien relations had long since lost any relevance and was rigorously excluded from the late ancient codifications.

In ideological terms, Roman lawyers understood, and Roman legislators betimes required, civil-law actions to be available exclusively to Roman citizens. Significant moments in this history include laws of 95 B.C.E., the socalled lex Licinia Mucia, and another passed by Augustus, called by ancient and modern scholars the lex Iulia iudiciaria (these are cited by sources in the Appendix, in passages 6D and 9, respectively).¹ The principle at stake was given decisive formulation in the second century C.E. in Gaius’s Institutes, in concise wording that bespeaks a common understanding:

All peoples who are governed by statutes and customs observe partly their own peculiar law and partly the common law of all human beings. The law that each people establishes for itself is peculiar to it, and is called ius civile (nam quod quisque populus ipse sibi ius constituit, id ipsius proprium est vocaturque ius civile), being, as it were, the special law of that civitas, that community of citizens, while the law that natural reason establishes among all human beings is followed by all peoples alike, and is called ius gentium, being, as it were, the law observed by all peoples. Thus the Roman people observes partly its own peculiar law and partly the common law of humankind. (Gaius Inst. 1.1; the Latin text of the whole may be found in Appendix passage 1.)

A civil law is thus the body of law that a community of citizens establishes for and over itself; and access to its actions is largely expected to be restricted to the members of that community, namely, its citizens. The heart of Gaius’s claim might thus be said to rest in the distributive quisque and reflexive sibi: every civitas makes a ius civile for itself.² (As a corollary, it would seem that any political community worthy of the name would have such a body of law.)

This principle of law and legal theory has an important correlate in the fundamental place granted to contractarianism in Roman political thought. In this tradition, a political collectivity, a populus, is formed through the consensual commitment of its members to a particular normative order. According to Cicero, for example, “a people is not any coming-together of human beings, herded together for any reason whatsoever, but a coming-together of many iuris consensu, united by consensual commitment to a particular normative order and common utility” (De re publica 1.39; see Appendix passage 2). Alternatively, in a formulation widely cited by late medieval lawyers, a populus is a collectio multorum ad iure vivendum; quae nisi iure vivat, non est populus, “a gathering of many in order to live according to law, which, if it does not live according to law, is not a populus.”³ Chapter 5 in this volume essays to describe the worlds in which this formulation circulated and whose political cultures it functioned to describe.

The distinctiveness and pervasiveness of this Roman commitment to contractarianism is visible above all in the common use of civitas, citizenship, as a metonym for both city and political community. The corresponding term in Greek, politeia, which can mean citizenship or governing order, interanimates no such cluster of concepts. The ability of civitas to serve as a metonym for political community rests upon the assumption that it is individual possession of membership, and individual commitment to the entailments of membership, that bind one to the community. The failure of politeia to serve in the same way suggests that statutory definitions of membership and their entailments were regarded by Greeks as epiphenomenal to whatever essential qualities were understood to unite the community—normally those of kinship, which is to say, of race.⁴

What is more, the unwillingness of scholars to inquire into the civil law’s imperial past is at least in part a legacy of this tradition, in which the subjects of the civil law are imagined to be created as such by their own consent. That imperial past is likewise occluded by the tendency of modern historians to echo ancient rhetoricians, for whom the spread of Roman citizenship was an important index of Roman benevolence. The history of its distribution might therefore be told—indeed, its history under the Principate can in fact be told—as an emancipatory narrative.⁵ Its Republican past is another story: then, defective or deficient forms of citizenship, entailing obligations without corresponding privileges, were distributed to conquered populations in order to embrace them within the structures of the Roman state. They were thereby made knowable and governable; and in that world, the civil law was, among many things, an instrument of domination.⁶

Legal Pluralism and the Landscape of Empire

Where Roman history is concerned, the importance of the problem on which I focus has been obscured by the existence of rules of jurisdiction based on political geography. Simply put, these generally urge that the legal framework governing social and economic relations was determined by the geographic location wherein any given transaction was conducted.⁷ The granting by Rome of authority to such legal systems must have taken place during the formal organization of a province: the commissions that oversaw that process no doubt established jurisdictional boundaries at the same time as they drew boundaries for assize districts, revenue collection, and myriad other purposes.⁸ Of that process—or, rather, regarding the legal systems established as a result of it—we have but one extensive description, written by Cicero in 70 B.C.E. when prosecuting Gaius Verres, the immediate past (corrupt) governor of Sicily:

The Sicilians are subjects of law as follows: actions of a citizen with a fellow citizen are tried at home, according to their own laws. To adjudicate actions of a Sicilian with a Sicilian not of the same citizen body (quod Siculus cum Siculo non eiusdem civitatis), the praetor (that is, the Roman governor) should appoint a judge by lot, in accordance with the decree of Publius Rupilius, which he fixed on the recommendation of the (commission of) ten legates (sent to advise him at the formal organization of the province), which decree the Sicilians call the Rupilian Law. To adjudicate suits brought by an individual against a community, or by a community against an individual, the Senate of another civitas should be assigned, granting the possibility that a civitas might be rejected by each side. When a Roman citizen sues a Sicilian, a Sicilian is assigned to adjudicate; when a Sicilian sues a Roman citizen, a Roman citizen is assigned. In all other matters judges are accustomed to be selected from among the Roman citizens resident in the assize district. Between farmers and collectors of the grain tithe, judgments are rendered according to the grain law which they call the Hieronican. (Cicero Verr. 2.2.32; see Appendix passage 3)

Regarding Cicero’s schema I make but three closely related observations. First, the legal landscape of Roman Sicily is tessellated into jurisdictions, in each of which a different system of civil law is understood to obtain—that is, on a Roman understanding, a body of law generated by, and governing relations among, a political community whose membership is regulated and tracked by the polity itself.

Second, individual subjects of empire hold specific citizenship in polities, but exist also as legal actors holding residency in a specific Roman province—that is to say, they are also Sicilians. The arbitrariness of this new axis of identity is masked for moderns in the case of Sicily by virtue of its being an island, but Sicily was in antiquity politically, linguistically, ethnically, and religiously variegated. Roman success in forging new institutions by which to channel political energies and patriotic aspirations to provinces must count as one of the more remarkable achievements of ancient social and demographic engineering; it was a process impelled in part by the need to establish procedural and doctrinal frameworks for social and economic action in the aftermath of annexation.⁹

The third observation follows upon the second, and that is simply that the lex Rupilia, the Rupilian Law, was specific to Sicily. It was necessarily so, insofar as it incorporated and sustained earlier bodies of law and governmental regulation, including the system of taxation on grain established within his kingdom by Hiero, the king of Syracuse in the third century B.C.E. It may have been so in other ways, too, that we can no longer detect, including in matters of jurisdiction. But that very continuity and regional particularity, which was undoubtedly useful in sustaining social order during and after annexation, will have posed substantial hurdles before the progress of legal and administrative homogenization across the empire—a very different but no less desirable form of efficiency.

At the same time as the Romans fixed the boundaries of villages, cities, and districts, they also classified population groups in relation to each other and to the metropole, and modern ancient historians have devoted much energy to the recovery of such systems of classification. But as with rules of jurisdiction, so in respect to the public-law status of cities, the normative framework is a chimaera. For the fact of the matter is that the Romans also gave normative recognition to the necessity that Roman officials resolve disputes among their subjects, even outside the regular framework of the judicial circuit.¹⁰ In so focusing on the status of cities, and further taking the status of cities as an index of the legal condition of their residents, historians systematically misrecognize the principal challenge of Roman government: maintaining order among population groups that were, always and everywhere, internally juridically, ethnically, and linguistically heterogenous. Governing such populations was the principal challenge of Roman government, and discovering the means whereby that challenge was met is a great unsolved problem of Roman history.

The Fiction and Its Kin

The disappearance of substantive law notwithstanding, we are not wholly ignorant regarding the mechanisms available within Roman legal practice whereby aliens might be embraced within the scope of civil and formulary procedure. On the contrary, I argue that the mechanisms used in respect to alien persons, things, and actions were exactly those deployed elsewhere in Roman law both explicitly, to expand the scope of the law, and retroactively, in jurisprudential literature, to resolve conflicts of law. These operations include analogy, contrafactual imperative, fiction, and substitution. These we might analyze separately, by genera formally distinguished, and I have gathered in the Appendix a number of prominent examples from extant Roman legislation (sections 4, 5, 6). I do not discuss these items in detail. I provide them rather to illustrate the early prominence of such operations in actual legislation, both as evidence in itself and by way of background to the widespread invocation of such operations in legal argument in later jurisprudential literature. That is to say, in my view, jurists of the high empire themselves employed fictions and substitutions, and regularly identified the operation of fiction and substitution behind other maneuvers, because these were in actual fact widely deployed in the language and operation of statute law. To the work of fiction in jurisprudential literature I shall turn in a moment. For now, allow me to point out three things.

First, although in any given case, in the immediate context of its composition, it may have been widely known who or what was embraced by any given substitution, the language of statute rarely makes that clear. We do not know, we cannot know—Romans a century after the law did not know—what persons or communities who were neither colonists nor colonies had been treated as if they were through the operations of the lex agraria of 111 B.C.E. (Appendix passages 6B, 6C).¹¹

Second, formal differences aside, these operations have effects of two kinds, which should be understood as kindred: some transpose individuals above all, but also things and actions from one domain, that of some foreign body of law, to another, to that of Rome; others create legal facts from social ones. The substitutions effected by the lex agraria to which I have just referred are examples of the first kind. The clauses quoted in the Appendix from the law on the powers of Vespasian are examples of the second type (Appendix passages 5H, 5I). These prospectively establish that actions taken by the emperor will retroactively be understood as having occurred other than as they did: as having occurred through procedures by which sovereign power had once been legitimately exercised.¹² As with other fictions, the priority of a principle is respected and given formal articulation, even as it is effectively subverted. In a banal but non-trivial sense, one might say that the rule aids to bring into being that which it forbids.

Third, jurists tend to subsume all these operations beneath the conceptual taxon of the fiction. In attempting to clarify for his audience the dangers of the so-called Rubrian law, for example (Appendix passage 4A), Cicero confronts statutory language that ordered the voting of a second law immediately upon the passage of the first. What is more, the first law declared through an exhortatory subjunctive that officials created under its clauses shall possess the legitimacy conferred by the second law, regardless whether it passed or not. Cicero explains this legal chicanery by redescribing it as operating through the use of fiction: “they shall have the same legal status without a curiate law as they would have had if they had been created by the people according to strict procedure.”

Although modern law—in particular modern common law—shies from the use of fiction as being somehow radical, fiction and its kindred operations were employed so widely at Rome because they were understood as conservative in scope.¹³ Allow me to explain in what sense this was true, and then to illustrate.

In the view of the jurists, the two most prominent uses of fiction and substitution in Roman law were first, contingently to extend the scope of a statute, and second, to alter the scope of some outmoded legal framework. In both cases, what the operation in question permitted was the continued existence of, indeed, continued respect for, that earlier statute or framework. The fiction that an alien was in fact a citizen, which Gaius calls the fictio civitatis and which was adopted in order to move a given case into a civil-law framework, was thus understood to respect, rather than to subvert, the principle that the civil law should be available only to citizens (Appendix passage 7). Of greater interest to the jurists, because they recognized their revolutionary potential, were the fictions that in their view lay behind praetorian formulae that revised or replaced earlier statute law. Those cases possess a structural resemblance to what modern lawyers call conflicts of laws, such as arise when two sources of law notionally operate within the same jurisdiction or (more commonly in the modern world) a dispute between private parties could conceivably be resolved within a number of legal frameworks, each arising from a different national authority.¹⁴ By masking revision or replacement, the fiction in such cases worked to preserve the legitimacy of the varied sources of law operational at Rome in the classical period. And naturally these are not mutually exclusive explanations for the ideological work performed by any given operation.

The Roman jurists had their own language for describing the powers of, as well as constraints upon, these formal moves in argument and interpretation. In the words of Julian, a jurist of the first half of the second century C.E., for example, such changes to the framework or taxonomic structures of prior legislation occurred aut interpretatione aut constitutione, “either through interpretation or by legislative act.”¹⁵ And where statute has once gone, thence might a jurist proceed ad similia, “to similar problems.”¹⁶ In all cases, to adopt the wording of Ulpian, it was the jurist’s duty “to frame an interpretation that fits the individual words” of earlier law.¹⁷ To the gap that would seem to yawn unacknowledged between the wording of legislation and the situations it was called upon to address, I return in closing.

Let me now provide two illustrations of the conservatism of Roman legal fictions, both thematically connected with the issues at the heart of this inquiry.

One example involving issues of personal status internal to the citizen community arose in civil law regarding the devolution of property.¹⁸ A Roman male’s heirs in civil law, strictly speaking, were those of his descendants who became full legal actors upon his death—in Roman terms, they passed out from under his power and became sui iuris. These individuals were related to the testator by agnatio; and strictly speaking, relations of agnatio (what we might call the agnatic line) pass through male descendants from a common ancestor. Postumi, descendants born after the testator’s death, had de facto never been in his power and could not in civil law succeed to their father’s or grandfather’s property as sui heredes, as his heirs. One can imagine a variety of remedies to this situation. The solution devised at Rome is typical not only of its conservatism, but of the respect accorded by its different agents to problems of legitimacy among the sources of law. Hence, this “injustice in the civil law”—that postumi cannot be heirs—was “corrected by the praetor’s edict,” as Gaius records in his Institutes: “But these injustices in the civil law were corrected by the praetor’s edict. For he summons to inheritance all children deficient in statutory title, proinde ac si, exactly as if they had been in their father’s power at the time of his death, whether they stand alone or whether sui heredes, that is, persons who actually were in his power, come in with them” (Gaius Inst. 3.25–26; Appendix passage 8). Gaius elsewhere describes the work of this fiction with language that acknowledges at once the work of analogy in its operation, but also the inability of existing terminology and taxonomic structures to accommodate the world created by it. Postumi were admitted to inheritance, according to Gaius, by quasi agnatione, and eo modo iura suo-rum … nanciscuntur, “by sort-of agnation, and in that way their rights (as quasi-heirs?) were born.”¹⁹

My second illustration is likewise of direct thematic relevance: it concerns jurisdiction. In the late first century of this era, as a result of a decision at Rome, the cities of Spain were incorporated as Roman towns, and a standard charter was written to guide their self-governance. In a late chapter of that document, rules are given to shape the administration of justice:

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 pleading 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. (lex Flavia municipalis chapter 91; Appendix passage 9)

I discuss this text further in Chapter 2, in studying metropolitan conceptions of the legal landscape of the empire, in particular in seeking to address the question concerning what resources were available at Rome for conceiving the institutions of law and government as permeating uniformly throughout its territory. In the present context, I draw attention to this fact only, that the text explicitly cites the lex Iulia iudiciaria. Indeed, it genuflects before its principles: Roman justice is best administered by a Roman praetor, judging a case between Roman citizens in the city of Rome. Nor does the Flavian law subvert or revise that earlier text. It merely urges that the law be administered in Spain exactly as if the litigants were Roman citizens arguing their case before the Roman Praetor in the city of Rome.

In a legal climate so ordered, in which the principle that civil law forms should be available only to citizens was so oft invoked, the systematic extension of civil-law rights and actions to aliens might well have been felt too radical. Indeed, it is a program for which no explicit advocacy survives. Even the extension of the franchise remained a controversial topic well into the first century C.E. But civil-law rights and actions were, in fact, extended, on a massive scale; and that history, I suggest, contributed to make the universal extension of the citizenship conceivable and ultimately possible.

This came about from two causes. First, for multiple reasons, Roman practice in adjudicating disputes in the provinces had long since come to follow the principle outlined by Julian in the eighty-fourth book of his Digest, where he probably dealt with attempts by citizens of municipalities to use Roman courts to escape local liturgies: “Regarding cases where we do not follow written law, the practice established by customs and usage should be preserved. And if this is in some way insufficient, then one must adhere to whatever is most analogous to it and follows from it. If even this is obscure, then the law observed by the city of Rome should be applied.”²⁰ Alas, the extract as it is preserved for us provides no explanation why the Roman magistrate might not “follow <local> written law.” Regardless, local law failing, Julian provides a sequence of alternate sources of norms that a magistrate might consult in reaching a decision. The ultimate recourse is the law of the city of Rome. My own suspicion is that Roman magistrates, schooled in Roman law and culture and alien, as it were, to the local cultures that they governed, would have turned quickly to the familiar over against the foreign. As a formal matter, I shall urge, this application of Roman law occurred through the massive deployment of transpositions, whether reified in any given case through analogy, fiction, substitution or some other operation.

The iteration of these operations contributed in turn to a second revolution. For while the fictional nature of legal fictions was well understood in antiquity—please pardon the tautology—the habitual construal of the world other than as it was ultimately brought a new social reality into being. This occurred first in the perceptual framework of the Romans themselves, who gradually made what cognitive linguists would call an ontological commitment to the fictional world crafted by the language of the law, and so created new truths from fictional ones.²¹

Personal Status and Past Lives in Roman Law

I wish now to discuss in some detail two examples of the operation of fiction in Roman law to illustrate the sophisticated ways in which seemingly rigid distinctions in the juridical status of persons were regularly and systematically reimagined before the law.

Bracketing the granting of citizenship to freeborn aliens, there were two common circumstances in which individuals passed in and out of the Roman citizen body: slaves appropriately freed by Roman citizen owners themselves became citizens, and Roman citizens lost their citizenship when captured in war. The complications that arose from those transformations demanded complex legal solutions, and these illustrate, I suggest, the range of mechanisms available in Roman law for negotiating across status distinctions.

Rome was a slave society, but in many respects a peculiar one. Among other things, manumission was extremely common, and liberti, freedmen, who were manumitted by one of several formal processes received Roman citizenship. Their citizen rights were, however, prejudiced in several respects. Most importantly for my purpose here, they continued to owe various duties to their former owners, now styled their “patrons.” Among those were obsequium, respect; operae, “works,” meaning regular or periodic labor; and their savings. For freedmen could not have heirs; they had to leave their estates to their patrons manumissionis iure, by law of manumission.²² (Patronal rights were passed along the patron’s agnatic line, but the duties on the part of the freedman were not so passed to his descendants.)

Slaves freed informally did not receive citizenship, or any civil-law rights. Indeed, at civil law such freedmen remained slaves. But in a gesture typical of praetorian law’s role “to aid, supplement or correct ius civile,”²³ and typical also of the respect accorded each other by the different sources of law, it became regular in the late Republic for informally manumitted freedmen “to be protected in a framework of freedom by the aid of the praetor.”²⁴

The emperor Augustus seems to have thought the rate of manumission at Rome too high—or, rather, he seems to have thought too great a percentage of the free population to be of servile extraction—and his reign saw the passage of two statutes regulating manumission, the more important of which, the lex Aelia Sentia of 4 C.E., imposed very substantial restrictions on manumission, of many kinds.²⁵ But his reign (or that of his adopted son, Tiberius) also saw the formalization of the protection that the praetor had previously extended on an informal basis to improperly freed slaves. For by a lex Iunia it was provided that henceforth informally manumitted slaves (except those known to have committed violent crimes) should become “Latin.” What in the world does that mean, and what consequences did it have?

In this context, “Latin” was a legal status named for a confederation of cities located near Rome and united by ethnicity and language (the region was Latium; their language was Latin), with which Rome maintained an alliance and which Rome ultimately brought to heel in the late fourth century B.C.E. After that date, according to the treaties that settled the war, the citizens of any one of those cities were forbidden to forge certain types of social and commercial bonds with citizens of any other, but they were permitted to forge such ties with Romans. They therefore existed in a special relationship with the Roman state, and their status came to be regarded in complex ways as intermediate between citizen and alien. In point of fact, it only becomes clear that the composite of rights and obligations created in that settlement was a status, as opposed to a purely contingent agglomeration, when the Romans began to assign the so-called ius Latinum to people who were neither ethnically nor juridically Latin. That is to say, the term Latin once had a referent whose ontological status was prior to any grant of ius Latinum, but the operation of law wrenched that term from a realist usage to a nominalist one, even as it created people as Latin through the actions of government.²⁶

Though the text of the lex Iunia does not survive, the analysis of it provided by Gaius reveals it to have operated by a double fiction. The first operated to effect the change in status:

We proceed to consider the estates of (Junian) Latin freedmen. In order to make this branch of law clearer, we must call to mind that, as we have said elsewhere, those who are now termed Junian Latins were in earlier times slaves by Quiritary law (that is, civil law in the strict sense), but that they were maintained in a framework of freedom by the aid of the praetor; and therefore their property used to go to their patrons by law of peculium; later, owing to the lex Iunia, all who used to be protected in a state of freedom by the praetor came to be free and to be styled Junian Latins: Latins because the law made them free exactly as if they were free-born Roman citizens who, by migrating from the city of Rome to Latin colonies, had become colonial Latins; Junian because it was by the lex Iunia that they were made free, though not Roman citizens. (Gaius Inst. 3.55–56; Appendix passage 10)

The author of the lex Iunia seems thus to have declined to emend civil-law doctrine on manumission. (He may also be declining to correct the lex Aelia Sentia, if, in fact, the lex Iunia postdates that law.) That is to say, the lex Iunia did not imagine an alternate outcome to manumission to citizen status. Rather, the law posited a new life history to informally manumitted slaves: they were ingenui, freeborn, and had voluntarily surrendered their citizenship in order to enroll in a Latin colony. The legitimacy of the legal system seems to have trumped any concern over the ideological consequences of thus redescribing the prior life of slaves.

Beyond the operation of this fiction lay a further problem. Previously, the property of informally manumitted freedmen “used to go to their patrons peculii iure, by law of peculium.” A peculium was the personal property of a slave, who possessed but did not own it. (The same term embraced the property of children while they remained “in the power” of their father.) The “framework of freedom” by which the praetor protected such freedmen evidently permitted the description and control of their property according to the rules of civil law, by which those freedmen were, in fact, still slaves; and thus owners who manumitted informally did not have to forego the material rewards available to those who manumitted properly.

But Junian Latins were not understood to be ex-slaves, or to have ever been slaves, and so did not have peculium. As Gaius observes, the author of the law foresaw this difficulty.

Realizing that as a result of this fiction the estates of deceased Latins would no longer go to their patrons, because of course they would die neither as slaves, whose property would go to their patrons iure peculii, nor as freedmen, whose estates would go to their patrons (manumissionis iure), the author of the lex Iunia therefore deemed it necessary, in order to prevent the benefit given to them from being turned to the injury of their patrons, to provide that their estates should go to their manumitters exactly as if the lex had not been passed. Hence under the lex the estates of Latins go to their manumitters in some fashion by the law of peculium. (Gaius Inst. 3.56; Appendix passage 11)

Here, then, is the second fiction. In order to create an obligation exactly parallel to the law of peculium, the lex Iunia requires conduct in its aftermath to be carried out in one crucial respect as if it had not passed. The fiction of the law is of its own nonexistence.²⁷ Gaius shies from calling the resulting obligation an operation of ius peculii: it occurs, rather, iure quodammodo peculii, “in some fashion by the law of peculium.”²⁸

About prisoners of war I can be more brief. By long-standing tradition, Roman citizens captured in war lost their citizenship status. (If they returned to Roman territory, they could recover their citizenship by right of postliminium, a word whose etymology suggests a meaning like “beyond the threshold”). But the loss of citizenship left the civil-law status of their wills, their property, and their heirs in question—for non-citizens could not write valid wills. This situation was remedied by a lex Cornelia of the late Republic, perhaps c. 80 B.C.E. That statute provided that the testamentary dispositions of prisoners of war should be treated perinde … atque si in civitate decessissent, “exactly as if they had died in citizenship.” Propter quam fictionem, “because of that fiction,” all civil-law enactments regarding testation were held to apply to the wills of those captured in war.²⁹ In the case of the lex Cornelia, then, live non-citizens are imagined as citizens, albeit dead ones.

Of course, not everyone who died on campaign was sui iuris, an independent legal actor. Some were “sons in power,” males who remained under the control of their fathers, who therefore had no right of ownership of property but, like slaves, had a peculium, property they controlled only. The jurist Paul, writing in the first decades of the third century C.E., imagined a complex situation regarding just such a son-in-power, who left behind a codicil containing a fideicommissum, a trust, asking his father to give the savings of his military pay (his peculium castrense) to one Titius:

A son in power who died while serving in the military charged his father by means of a codicil with a trust, to deliver to Titius his peculium castrense after death. It is asked whether the heir (namely, the father) could deduct a quarter. I said that the lex Falcidia had been extended by the Divine Pius in respect to trusts even to cases of intestate succession. That said, in the case before us, there was no inheritance, although I would have agreed that, had someone outside the family been named heir, his acceptance would have created an inheritance. As the son in our case remained in the power of his father, the erstwhile legal framework obtained and the property was peculium. Nor is this contrary to the fact that the lex Falcidia governs the wills of those who die as prisoners of war, for the fiction of the lex Cornelia creates both an inheritance and an heir. (Paul Quaestiones bk. 11 fr. 1373 Lenel = Dig. 35.2.18.pr.; Appendix passage 12)

Paul asks the question whether the father can deduct from his son’s military savings, left in trust to Titius, “the Falcidian quarter.” (A lex Falcidia of 40 B.C.E. required that testators leave at least one quarter of their estate to their heirs, and this rule was extended to trusts in the second century C.E.) The answer is simple, according to Paul: in the hypothetical situation, there is no inheritance. The property is peculium. That is to say, the son, being a son-in-power, did not as a matter of law own the property, and could therefore not dispose of it.

But Paul is not content with that answer. As he sees it, had the son-in-power instituted an heir outside his family, acceptance by that nominal heir would have created an inheritance. Then, indeed, his father could have withheld the Falcidian quarter, but likewise the son’s wish that his property should pass to Titius would have been respected. No matter, says Paul, that the lex Falcidia here regulates the will of someone who died as a prisoner of war: “for the fictio legis Corneliae, the fiction of the lex Cornelia creates both an inheritance and an heir.”

Given that, by what justification can we understand the situation to create an obligation upon the father? That is to say, how might we understand the situation—how might it be redescribed using the operations of law and legal language—to permit the son to bequeath, and to require the father to respect the bequest? Paul continues: “But I also said that I did not doubt but that the charity of the law should also be satisfied, if the father were required to transfer the assets as if those of a paterfamilias and, being instituted as heir but declining acceptance under the will, he were then sued in respect of legacies on the pattern of the edict” (Paul Quaestiones bk. 11 fr. 1373 Lenel; Appendix passage 12). Paul’s answer is to carry the fiction of the son’s emancipation to its natural conclusion: if the son is imagined to be sui iuris and the father is recipient of his fideicommissum, then the father must needs be imagined as his heir—indeed, most simply as his son. The obligation upon the father to honor his son’s fideicommissum is thus understood by Paul to be entailed by the fiction of the Cornelian law, and not as a consequence of this peculiar family’s peculiar legalitarianism.

The power Paul grants the fiction is remarkable. The desire to respect what he terms legis beneficium, the spirit or charity of the law, permits the fiction to trump civil law twice: for the son-in-power died an alien, and absent the fiction could not write a will; and had he died in civitate, in citizenship, he had no civil-law status to write a will in the first place.

The Junian and Cornelian laws thus transferred individuals across status boundaries of many kinds, and imagined them embedded in networks of legal relations across prior and future life histories whose operations were made to depend on the susceptibility of citizenship, the civil law, and the Roman state itself, to the transgressive work of fiction.

Fiction and Empire

A proper history of citizenship in the Roman Empire remains to be written. Even today, the simple fact of its universal extension defies explanation. To be sure, the privileges of citizenship were gradually evacuated over the first two centuries of this era, the most significant index of that change being the exposure of lower-class citizens to progressively more savage and violent remedies at law.³⁰ But the scale of that act—the simultaneous incorporation of so vast a congeries of nations—surprises nonetheless, whether we regard it solely in light of the ethnic, cultural, and linguistic heterogeneity of the empire’s residents, or also in comparison with policies on citizenship in other empires, ancient and modern.

My argument is that Roman law played a paradoxical role in that history.Conceived internally as a set of norms regulating the affairs of citizens, the civil law would seem a tool that could only disjoin, and never unite, citizens and aliens. But in point of fact, despite never shedding that commitment to citizen privilege, Roman law in practice came to embrace an ever widening portion of the population. This happened at different moments for different reasons—among communities of citizens far from the praetor, among aliens seeking the prestige and power of Roman courts, or among the Romanizing municipalities of Spain. Ultimately, I suggest, the endless construal of aliens as citizens naturalized the truth of that fiction, and a new political and cultural landscape was born from that revolution.

This came about quite in spite of an awareness on the part of Roman lawyers that the operation of legal fictions required precisely that the false be taken as true.³¹ Nor did Roman lawyers maintain any illusions about the power of legal language to change the world beyond itself, as it were, whether that were some higher, ontologically more stable realm of ideas, or the realm of nature itself. As Gaius was provoked to write about the invention of a usufruct of money and a subsequent senatusconsultum establishing regulations for such: “The senatusconsultum did not bring it about that there might strictly speaking be usufruct of money—for naturalis ratio, natural reason cannot be altered on the authority of the Senate—but, this remedy being introduced, quasi-usufruct was established.”³²

The power of the law over social reality was a different matter. There, in words of Ulpian excerpted twice in the Digest, res iudicata pro veritate accipitur, “legal decisions are accepted in the place of truth.” By that he did not intend that legal decisions are necessarily false, or themselves rest on falsehood. But it is noteworthy that his obiter dictum in fact emerged to explain the commitment of legal institutions in respect to changes in the legal status of persons, as is made clear from its other use, which provides a context for its utterance: “We must accept as freeborn someone concerning whom there is a judgment to that effect, even if he was born a freedman: for legal decisions are accepted in the place of truth.”³³

The gap Ulpian here observes, between social facts and legal facts, has an important correlate in the gap between the language of the law and the social realities it was called upon to regulate, a problem made visible to the jurists in one prominent form in the aftermath of the Antonine Constitution, when the Latinate law of Rome was called upon to give normative description to social and economic relations in the Greek-speaking east (their reflections on this topic are taken up in Chapter 2). It is this latter gap between law and social realities that fiction and substitution elided, and to which words like quasi and quoddammodo draw insistent attention. How to theorize that gap, as a matter of legal philosophy, was disputed: for every lawyer like Ulpian, who insisted that new situations could—always? only?—be embraced by adhering to “the individual words” of legislation, there were others, like Celsus, who insisted that “knowing the law” consisted in adhering not to their words but to their force and import.³⁴ Potestas legis, the import or tendency of a law, is likewise the term used by Paul to explain what part of statute law was preserved or respected by the praetor when he extended its usage to situations theretofore or inadvertently unimagined.³⁵

That said, the extraction of a legal principle from statutory language and its application to new situations had perforce to be reified in language, and that act created legal facts—Latinate legal facts—where none had been before. The question what is the power of law as a system of language to make social facts out of legal ones is taken up most explicitly by Gaius in a passage not on fiction but theft (Appendix passage 13). A statute established that refusing to allow one’s property to be searched for stolen goods rendered one liable for the action against manifest theft. (Merely being caught with stolen goods made one liable for a lesser degree of theft.) This caused some writers to ask whether theft was manifest aut lege aut natura, “by statute or in reality.” That is to say, was manifest theft a particular form of theft, or could any act of theft be not merely classified as but in fact transformed into manifest theft through statutory language? Gaius denounced the question:

The truer answer is that manifest theft is understood as such in reality. For statute can no more bring it about that a non-manifest thief is manifest, than it can make someone who is altogether not a thief into a thief, or someone who is not an adulterer or a homicide into an adulterer or a homicide. Rather, what law can do is simply this: it can make someone liable to punishment exactly as if he had committed theft or adultery or homicide, even if he had committed none of those things. (Gaius Inst. 3.194; Appendix passage 13)

It could also bring it about that aliens existed in law, and in the world the law ruled, exactly as if they were citizens, even if they were in reality no such thing.