Law, Language, and Empire in the Roman Tradition. Clifford Ando
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as a metonym for political community rests upon the assumption that it is individual possession of membership, and individual commitment to the entailments of membership, that bind one to the community. The failure of politeia to serve in the same way suggests that statutory definitions of membership and their entailments were regarded by Greeks as epiphenomenal to whatever essential qualities were understood to unite the community—normally those of kinship, which is to say, of race.4
What is more, the unwillingness of scholars to inquire into the civil law’s imperial past is at least in part a legacy of this tradition, in which the subjects of the civil law are imagined to be created as such by their own consent. That imperial past is likewise occluded by the tendency of modern historians to echo ancient rhetoricians, for whom the spread of Roman citizenship was an important index of Roman benevolence. The history of its distribution might therefore be told—indeed, its history under the Principate can in fact be told—as an emancipatory narrative.5 Its Republican past is another story: then, defective or deficient forms of citizenship, entailing obligations without corresponding privileges, were distributed to conquered populations in order to embrace them within the structures of the Roman state. They were thereby made knowable and governable; and in that world, the civil law was, among many things, an instrument of domination.6
Legal Pluralism and the Landscape of Empire
Where Roman history is concerned, the importance of the problem on which I focus has been obscured by the existence of rules of jurisdiction based on political geography. Simply put, these generally urge that the legal framework governing social and economic relations was determined by the geographic location wherein any given transaction was conducted.7 The granting by Rome of authority to such legal systems must have taken place during the formal organization of a province: the commissions that oversaw that process no doubt established jurisdictional boundaries at the same time as they drew boundaries for assize districts, revenue collection, and myriad other purposes.8 Of that process—or, rather, regarding the legal systems established as a result of it—we have but one extensive description, written by Cicero in 70 B.C.E. when prosecuting Gaius Verres, the immediate past (corrupt) governor of Sicily:
The Sicilians are subjects of law as follows: actions of a citizen with a fellow citizen are tried at home, according to their own laws. To adjudicate actions of a Sicilian with a Sicilian not of the same citizen body (quod Siculus cum Siculo non eiusdem civitatis), the praetor (that is, the Roman governor) should appoint a judge by lot, in accordance with the decree of Publius Rupilius, which he fixed on the recommendation of the (commission of) ten legates (sent to advise him at the formal organization of the province), which decree the Sicilians call the Rupilian Law. To adjudicate suits brought by an individual against a community, or by a community against an individual, the Senate of another civitas should be assigned, granting the possibility that a civitas might be rejected by each side. When a Roman citizen sues a Sicilian, a Sicilian is assigned to adjudicate; when a Sicilian sues a Roman citizen, a Roman citizen is assigned. In all other matters judges are accustomed to be selected from among the Roman citizens resident in the assize district. Between farmers and collectors of the grain tithe, judgments are rendered according to the grain law which they call the Hieronican. (Cicero Verr. 2.2.32; see Appendix passage 3)
Regarding Cicero’s schema I make but three closely related observations. First, the legal landscape of Roman Sicily is tessellated into jurisdictions, in each of which a different system of civil law is understood to obtain—that is, on a Roman understanding, a body of law generated by, and governing relations among, a political community whose membership is regulated and tracked by the polity itself.
Second, individual subjects of empire hold specific citizenship in polities, but exist also as legal actors holding residency in a specific Roman province—that is to say, they are also Sicilians. The arbitrariness of this new axis of identity is masked for moderns in the case of Sicily by virtue of its being an island, but Sicily was in antiquity politically, linguistically, ethnically, and religiously variegated. Roman success in forging new institutions by which to channel political energies and patriotic aspirations to provinces must count as one of the more remarkable achievements of ancient social and demographic engineering; it was a process impelled in part by the need to establish procedural and doctrinal frameworks for social and economic action in the aftermath of annexation.9
The third observation follows upon the second, and that is simply that the lex Rupilia, the Rupilian Law, was specific to Sicily. It was necessarily so, insofar as it incorporated and sustained earlier bodies of law and governmental regulation, including the system of taxation on grain established within his kingdom by Hiero, the king of Syracuse in the third century B.C.E. It may have been so in other ways, too, that we can no longer detect, including in matters of jurisdiction. But that very continuity and regional particularity, which was undoubtedly useful in sustaining social order during and after annexation, will have posed substantial hurdles before the progress of legal and administrative homogenization across the empire—a very different but no less desirable form of efficiency.
At the same time as the Romans fixed the boundaries of villages, cities, and districts, they also classified population groups in relation to each other and to the metropole, and modern ancient historians have devoted much energy to the recovery of such systems of classification. But as with rules of jurisdiction, so in respect to the public-law status of cities, the normative framework is a chimaera. For the fact of the matter is that the Romans also gave normative recognition to the necessity that Roman officials resolve disputes among their subjects, even outside the regular framework of the judicial circuit.10 In so focusing on the status of cities, and further taking the status of cities as an index of the legal condition of their residents, historians systematically misrecognize the principal challenge of Roman government: maintaining order among population groups that were, always and everywhere, internally juridically, ethnically, and linguistically heterogenous. Governing such populations was the principal challenge of Roman government, and discovering the means whereby that challenge was met is a great unsolved problem of Roman history.
The Fiction and Its Kin
The disappearance of substantive law notwithstanding, we are not wholly ignorant regarding the mechanisms available within Roman legal practice whereby aliens might be embraced within the scope of civil and formulary procedure. On the contrary, I argue that the mechanisms used in respect to alien persons, things, and actions were exactly those deployed elsewhere in Roman law both explicitly, to expand the scope of the law, and retroactively, in jurisprudential literature, to resolve conflicts of law. These operations include analogy, contrafactual imperative, fiction, and substitution. These we might analyze separately, by genera formally distinguished, and I have gathered in the Appendix a number of prominent examples from extant Roman legislation (sections 4, 5, 6). I do not discuss these items in detail. I provide 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