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
