so vast a congeries of nations—surprises nonetheless, whether we regard it solely in light of the ethnic, cultural, and linguistic heterogeneity of the empire’s residents, or also in comparison with policies on citizenship in other empires, ancient and modern.
My argument is that Roman law played a paradoxical role in that history.Conceived internally as a set of norms regulating the affairs of citizens, the civil law would seem a tool that could only disjoin, and never unite, citizens and aliens. But in point of fact, despite never shedding that commitment to citizen privilege, Roman law in practice came to embrace an ever widening portion of the population. This happened at different moments for different reasons—among communities of citizens far from the praetor, among aliens seeking the prestige and power of Roman courts, or among the Romanizing municipalities of Spain. Ultimately, I suggest, the endless construal of aliens as citizens naturalized the truth of that fiction, and a new political and cultural landscape was born from that revolution.
This came about quite in spite of an awareness on the part of Roman lawyers that the operation of legal fictions required precisely that the false be taken as true.31 Nor did Roman lawyers maintain any illusions about the power of legal language to change the world beyond itself, as it were, whether that were some higher, ontologically more stable realm of ideas, or the realm of nature itself. As Gaius was provoked to write about the invention of a usufruct of money and a subsequent senatusconsultum establishing regulations for such: “The senatusconsultum did not bring it about that there might strictly speaking be usufruct of money—for naturalis ratio, natural reason cannot be altered on the authority of the Senate—but, this remedy being introduced, quasi-usufruct was established.”32
The power of the law over social reality was a different matter. There, in words of Ulpian excerpted twice in the Digest, res iudicata pro veritate accipitur, “legal decisions are accepted in the place of truth.” By that he did not intend that legal decisions are necessarily false, or themselves rest on falsehood. But it is noteworthy that his obiter dictum in fact emerged to explain the commitment of legal institutions in respect to changes in the legal status of persons, as is made clear from its other use, which provides a context for its utterance: “We must accept as freeborn someone concerning whom there is a judgment to that effect, even if he was born a freedman: for legal decisions are accepted in the place of truth.”33
The gap Ulpian here observes, between social facts and legal facts, has an important correlate in the gap between the language of the law and the social realities it was called upon to regulate, a problem made visible to the jurists in one prominent form in the aftermath of the Antonine Constitution, when the Latinate law of Rome was called upon to give normative description to social and economic relations in the Greek-speaking east (their reflections on this topic are taken up in Chapter 2). It is this latter gap between law and social realities that fiction and substitution elided, and to which words like quasi and quoddammodo draw insistent attention. How to theorize that gap, as a matter of legal philosophy, was disputed: for every lawyer like Ulpian, who insisted that new situations could—always? only?—be embraced by adhering to “the individual words” of legislation, there were others, like Celsus, who insisted that “knowing the law” consisted in adhering not to their words but to their force and import.34 Potestas legis, the import or tendency of a law, is likewise the term used by Paul to explain what part of statute law was preserved or respected by the praetor when he extended its usage to situations theretofore or inadvertently unimagined.35
That said, the extraction of a legal principle from statutory language and its application to new situations had perforce to be reified in language, and that act created legal facts—Latinate legal facts—where none had been before. The question what is the power of law as a system of language to make social facts out of legal ones is taken up most explicitly by Gaius in a passage not on fiction but theft (Appendix passage 13). A statute established that refusing to allow one’s property to be searched for stolen goods rendered one liable for the action against manifest theft. (Merely being caught with stolen goods made one liable for a lesser degree of theft.) This caused some writers to ask whether theft was manifest aut lege aut natura, “by statute or in reality.” That is to say, was manifest theft a particular form of theft, or could any act of theft be not merely classified as but in fact transformed into manifest theft through statutory language? Gaius denounced the question:
The truer answer is that manifest theft is understood as such in reality. For statute can no more bring it about that a non-manifest thief is manifest, than it can make someone who is altogether not a thief into a thief, or someone who is not an adulterer or a homicide into an adulterer or a homicide. Rather, what law can do is simply this: it can make someone liable to punishment exactly as if he had committed theft or adultery or homicide, even if he had committed none of those things. (Gaius Inst. 3.194; Appendix passage 13)
It could also bring it about that aliens existed in law, and in the world the law ruled, exactly as if they were citizens, even if they were in reality no such thing.
Chapter 2
Law’s Empire
This chapter pursues several interrelated problems at the intersection of law and the articulation of the late ancient state. They may be framed as an inquiry into the consequences, intended and otherwise, of Caracalla’s decision to grant citizenship to all—or nearly all—freeborn residents of the empire. For the Antonine Constitution would seem to mark, or should have marked, a turning point in the history of the empire: put concisely, one might ask whether the empire still was an empire when it no longer ruled over anyone. Put more elaborately, was there a corresponding shift in the perception, ambitions, and actions of the state in keeping with the universalization of citizenship? Did acts or agents of government, or depersonalized institutions of the state, penetrate more deeply or spread more uniformly to match the universalization and homogenization of political culture that the spread of citizenship would seem to entail? What resources did the Romans have even to conceive, let alone to pursue, such an aim, if they had it, in whatever form they did?
In pursuing these questions, we face a number of obstacles, both ideological and evidentiary, that I mention simply to set the stage. These are, first, that Roman law was throughout this period a moving target, its doctrines and procedures undergoing constant revision and change. Second, Roman law—like so many fields of our discipline—has its own classical ideal, which urges us to esteem virtually all periods of Roman law about which we can actually know something as instantiating debased and degenerate forms of some earlier, pure and pristine law.1
Third, even if we stand apart from the modes of valuation that gave us so-called vulgar law, bureaucratic law, and the like, we encounter an even more serious obstacle at the level of evidence: the very great bulk of legal texts at our disposal were edited at one or another of two periods in late antiquity so as to speak to formal issues of substantive law as it was then in force. That is to say, the texts we have—the huge bulk of which come in the form of something like a Routledge sourcebook—were systematically edited so as to provide or conduce the formulation of decision rules. Such material as jurists and lawyers once wrote that spoke directly to problems of justification, legitimation, or implementation has been rigorously excised.
This is, of course, a well-known problem. But it is perhaps not often enough remarked that in consequence the texts we possess seem scarcely to speak to two great historical problems of Roman law, namely, the adjudication of disputes between individuals of divergent legal status, whether citizens and aliens or aliens of divergent citizenship; or the administration of social and legal relations among formerly peregrine populations in the aftermath of the Antonine Constitution. For if one thing was emphatically true of the legal landscape of the early sixth century as it was imagined by the Justinianic compilers, it is that the individuals who would come before the law would all be citizens.
