relations between citizens and aliens survived to the sixth century—a scant handful of titles can be recovered—and when those few are quoted, it is for their reflections on the civil law alone.2 In the rest of their content—in the very issues that motivated their composition—there was simply and understandably no interest.
Quite in spite of this, my ambition in this chapter is to address to the late antique compilations the questions I framed at the outset; to suggest a way to read them, by which they might be made to answer those questions; and to gesture, at least to what their answers might be.
My approach in brief is this: I propose to sidestep the question of what changes were made in substantive law or its interpretation and investigate instead how those changes were made: what pressures impelled them; how they came about; and how those changes were understood, described, and justified in later legal and jurisprudential literature. My second question—how they came about—would have to be taken in at least two directions: what was the source of law that enacted the change—statute? rescript? edict? interpretation?—and what was the conceptual mechanism by which that change was effected? Was some new species of person, thing, or action integrated within an existing taxonomy? Was a wholly new legal action created? Did some jurist create a work-around, through analogy or fiction? And so forth.
My argument will be that in post-Antonine legal literature, in the form we have it, the mechanisms developed in the late Republic and early Principate to constrain and channel pressures for change into particular formal outcomes were redeployed in the third century and beyond, continuing robustly into the age of Justinian. Or so it appears: for here we encounter some very substantial problems of evidence, arising most obviously from the editing and selection performed by the Justinianic compilers. One possibility is that the apparent continuity in forms of practical and theoretical elaboration across the corpus is a product of their work, by virtue of their conscious recognition in these texts of conceptual and linguistic forms that they viewed as legitimate and current. To credit this last claim would amount to arguing that the Justinianic editors privileged in their editorial work a vision of the law and in particular of what counted as legitimate reasons for change and mechanisms for realizing such. To this problem I shall return in closing.
This remarkable continuity in theoretical position and interpretive practice was achieved, I argue, despite the very considerable historical differences between the situations Roman lawyers confronted in the late Republic and early Principate on the one hand, and the post-Antonine world on the other. In the former, as we have seen in Chapter 1, the principal challenge to the system lay in the arrival on the scene of new sources of law, first the praetor and later the emperor. This is in fact an altogether common problem in almost all legal systems: it produces what might catachrestically be called conflicts of law, and in general the concern within any given tradition is their resolution in a fashion that respects the legitimacy of the separate sources of law and thus conduces the legitimacy of the system as a whole. In the classical period, the praetor is thus often described as acting in pursuit of greater adherence to principle that is either assumed or explicitly described as animating statute law, but in practical terms what praetorian action or the occasional statute or jurisprudential interpretation did was to ignore that same principle. In Roman law, I have argued, this work was usually performed by means of fiction, analogy, or mere substitution: the principle at stake is thus nominally sustained by virtue of an avowedly ad hoc and limited translation of objects, things, or persons across whatever taxonomic divide the principle was intended to articulate.
The twin pressures on post-Antonine law were the need to sustain social order in the formerly discrepant legal landscapes of the empire, while insisting wherever possible on the superordinate normative status of Roman law. Jurists, legislators, and judges needed, in other words, to acknowledge the fact of contingent divergence from Roman practice by nominal Roman citizens at some primary level of analysis in such a way that permitted the redescription and reorientation of that practice over time into alignment with Roman norms. Homogeneity had to be produced out of heterogeneity, unity out of plurality, without disruption to preexisting social and economic relations.3
The product of the effort so described was the development of legal actions that occasionally explicitly—and in aggregate implicitly—accorded legitimacy to the normative codes that had structured local life in the pre-Antonine age. At the same time, Antonine and immediately post-Antonine jurists recuperated for this project a set of legal-theoretical categories with which to describe this new landscape: custom, natural law, and ius gentium, the law of nations. None of these was new, of course; but none had been made to do such heavy lifting before, nor had any been so robustly characterized at any point in the Roman past. The turn to these categories was necessitated above all by the prominence formerly given in political and legal philosophy to ius civile. For in the system adumbrated by Cicero and given full-fledged articulation by Gaius, every community of citizens, every civitas, had its own ius civile: in an age of multiple citizenships, this explained the tesselation of the legal landscape of the empire into several civitates—indeed, it offered the whole ontological security of a most interesting kind—but the construct had to be radically rethought, even rebuilt from the ground up, to remain useful in a world in which there were no separate citizenships.4
Beyond these more abstract conclusions, one thing I hope to highlight is the remarkable historical self-consciousness of Roman lawyers, a feature of their intellectual make-up little remarked and generally obscured by their fondness for writing lemmatic commentaries rather than monographs. But the jurists early and late thought long and systematically about the need for law to evolve in response to new social and political realities. This sensibility was combined with a quite fascinating sense of the limitations of discursive language. In the words of Julian, Ulpian, and Celsus, “Neither statutes nor decrees of the Senate can be written so as to embrace every eventuality that might at some time occur.” “For it inheres in natura rerum, in the nature of things, ut plura sint negotia quam vocabula, that the forms of conduct are more numerous than the terms for them.” In consequence, the law must provide recourse, even when the actionum nomina or appellationes provided in civil law fail.5
Jurisdictional Rules and Legal Pluralism before the Antonine Constitution
Law as such is a neutral tool, perforce inherently conservative in the most banal sense. In imperial contexts, however, the law of the metropole is generally assumed to be a tool of oppression, designed to disjoin rather than unite populations and to sustain distributions of wealth and power that favor its own interests. That said, interest in this context is hard to assess: spread of civil-law forms across the empire would likely have reduced transaction costs to macro-regional trade still further, and this would almost undoubtedly have produced greater revenues for Rome, and there is evidence for such thinking in antiquity in terms not so blatantly economic.
At the same time, there is very considerable testimony to a reluctance on the part of Romans to allow aliens access to civil law for partisan reasons; to a kindred reluctance on the part of aliens to take up the law; and likewise evidence that Romans believed that sustaining local traditions, including legal relations, conduced social order in some fundamental and probably profitable sense.6 Against vague rhetorical claims in Roman sources both early and late (in Livy, say, and Servius) that laws and language are the victor’s to impose, one might therefore set widespread invocation of the principle—and insistence in practice—that basic structures of civil- and even public-law relations were expected to map citizen status of individuals and communities.7 Hence Trajan offered to Pliny the general principle that id ergo, quod semper tutissimum est, sequendam cuiusque civitatis legem puto, “it is always safest, I think, for the law of any given citizen community to be observed” within its jurisdiction (Pliny Ep. 10.113). In short, non-citizens were to use their own laws. The principle is concretized in historical narrative in Livy’s language in book 9, when he describes the aftermath of Rome’s war with the Hernici: preferring their own laws, Rome’s allies declined the offer of
