Law, Language, and Empire in the Roman Tradition. Clifford Ando

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СКАЧАТЬ of citizenship with entry into a new legal regime, and of direct relevance to the period at hand, is the assertion by the Tetrarchs in a text on marriage preserved in the Collatio, to the effect that cunctos sub imperio nostro agentes, everyone living under their rule “should be mindful of the need to conform themselves to the lifestyle and laws of Rome and should know that only those marriages are licit that are permitted iure Romano.”⁹

      In point of fact, law in the classical period over and over again exhibits a similar schizophrenia, working at once to universalize norms but also along multiple axes to fragment the empire. In consequence, the Romans eventually crafted impressive theoretical resources for conceptualizing the empire as permeated by a uniform legal culture, even as multiple firewalls disjoining Rome and Italy from the provinces in the availability of civil-law actions were erected and enforced. As I hope to show in closing, these very rules and resources remained alive in the reign of Justinian, when just those resources were reactivated and employed to dismantle those same firewalls.

      Perhaps the best index of the conceptual work performed in this arena in the late Republic and early empire is the distance traveled, as it were, between the laws on jurisdiction of the late Republic on the one hand and the Flavian municipal law on the other.¹⁰ A schematic view of the former might outline their content as having the following form: (1) In communities of types A, B, and C, in area D, (2) in which jurisdiction rests with magistrates of types G or H, (3) legal actions of type K shall be handled locally, using procedure M, if conditions P and Q are met, or (4a), if conditions P and Q are not met, procedure R should be used locally, or (4b) the case shall be sent to Rome. The Veleia fragment, a text of the mid-first century B.C.E., gets to the heart of what these texts contribute to my story, for in that text it is very nearly the words quei ibei alone that confirm its identification as a late Republican law on jurisdiction: the end of the clause may confidently be restored ius deicet: “he who holds jurisdiction there” (Roman Statutes no. 29).

      In the ninety-first chapter of the Flavian municipal law, by contrast, the following rule is laid down regarding various points of procedure: “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 position 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” (see also Chapter 1 and Appendix passage 9). Written perhaps a hundred years apart, these texts offer startlingly different visions of the legal landscape of the empire. The Veleia tablet distinguishes explicitly between Rome and everywhere else; in line with other legislation of its era, it reserves the power and capacity of judgment in matters of import to the metropole. Only its judges, sitting in its forum, animated by its soil, could decide. Late Republican jurisdictional clauses also cleave the empire socially, for it is not all disputes, nor even all disputes between citizens, that are removed to Rome for adjudication, but only those in which the matter in dispute, converted to monetary terms, was worthy of Roman attention.

      In contrast, the Flavian municipal law preserves the distinction between Rome and elsewhere only to upend it, by means of a fiction that operates on two levels, geographic and social: it dissolves both distance in time and distinctions in the legal status of persons: disputes between potentially alien municipes are to be resolved “as if a praetor of the Roman people had ordered the matter to be judged in the city of Rome between Roman citizens.” Provinces and provincials are thereby assimilated to Rome and Romans. What is more, there is considerable evidence for the ongoing use of just this fiction—what Gaius calls the fictio civitatis—part of whose attraction must have been that it permitted the principle of restricting civil law to citizens to stand, while freeing Romans with jurisdiction in the provinces to judge in light of the law they knew.

      That said, evidence in textual sources for the role of law in disjoining the empire is far more substantial. Perhaps the most important distinction lay between Italy and the provinces: any number of civil-law rights and actions could be performed or actualized only on Roman or Italian soil. Consider, for example, the famous correspondence between Pliny and Trajan regarding the scruple involved in moving the temple of the Mother of the Gods in Nicomedia. Pliny hesitated to approve the act, he wrote, because the temple had no lex, as the morem dedicationis, “the method of consecration,” practiced in Nicomedia was alium apud nos, “different from that practiced among us.” Trajan responded that Pliny could be “without fear of violating religious scruple,” as the solum peregrinae civitatis capax non sit dedicationis, quae fit nostro iure, “as the soil of a peregrine city cannot receive consecration as it is performed according to our law.”¹¹

      The “soil” in question in Trajan’s response was that of Italy, in which inhered some quality of Romanness that more perfectly animated both Roman law and affection for Rome than soil elsewhere ever could. In consequence, persons exiled in the provinces were excluded not simply from the particular province whence they were banished, but from Rome and Italy as well—a rule articulated by Hadrian in a rescript, which was quoted and commented on by Ulpian, whose text was cited in full by the Collatio but edited to produce an erroneous attribution in the Digest.¹² The special place of Rome and Italy in both affective and legal terms is repeatedly rehearsed in the Code of Justinian: in 225 for example, Alexander endorsed the continuation of an exclusion from Italy of slaves whose masters had freed them for the purpose of sending them away.¹³

      With this framework disjoining Italy and empire still in place, the scope for action by the Antonine Constitution in producing legal homogeneity was limited, regardless of its intent. That said, the homogenization of legal structures in the provinces, in relation at least to each other if not to Italy, that followed in its wake does appear to have enabled a new jural-political geographic consciousness: for it is, I think, first in jurisprudence after 212 that we find the term in provincia to refer to the collectivity of provinces, which usage in turn enabled the binarism common in the post-Antonine jurists, in Italia::in provincia .¹⁴ A number of other conceptual obstacles must have fallen along the way to make that possible, but it seems meaningful nonetheless.

      Naturally, insofar as the provincial::Roman distinction was a matter of law, it was also surmountable at law. And that is precisely what we find in Gaius. At the start of his second book, a brief comment on the distinction between what is sacer and what religiosus, what is sacred and what is religious, leads to a digression on the meaning of those terms on precisely provincial soil:

      That alone is thought to be sacred which is consecrated on the authority of the Roman people, either by law or by decree of the Senate. We make things religiosum in private actions by bearing our dead to particular sites…. But in provinciali solo, on provincial soil it is generally agreed that the soil cannot be religiosum, since there ownership rests with the Roman people or with Caesar, while we seem to have only possession or use. Utique tamen, etiamsi non sit religiosum, pro religioso habetur. Nevertheless, even if it is not religiosum, it is treated as though it were. Similarly, whatever in the provinces is not consecrated on authority of the Roman people is properly not sacred, but it is nevertheless treated pro sacro, as if it were. (Gaius Inst. 2.5–7)

      Here it is the simple use of substitutive pro that does the work, a nearly ubiquitous usage in Roman law. But the effect was not innocent, for what Gaius enabled by its usage—as with the fiction in the Flavian municipal law—was the regular and consistent overcoming of precisely the principle he nominally upheld.

      One might have thought that the distinction between Italian and provincial soil would gradually lose its power to articulate truths about the affective and legal landscape of the empire over the course of the fifth century, if not before—for all, perhaps, but antiquarian pedants like Justinian. But that is not what happened. Rather, the СКАЧАТЬ