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
