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
