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
