Law, Language, and Empire in the Roman Tradition. Clifford Ando
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