Law, Language, and Empire in the Roman Tradition. Clifford Ando
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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 language in which that distinction was expressed was taken up from below, as it were, to give expression to the realities of the late ancient state under siege. This had effects both within and without the empire. That is to say, the metaphorical association of soil, system of law, and affective bond as mutually implicated ways of articulating membership in a Roman political community remained strong, and its ongoing usage by provincials to voice their attachment to the empire ultimately demanded revision of the system that had theretofore employed this same language to keep them at a distance. The power of this network of associations is laid bare, for example, by its repeated use in the middle of the fifth century by Salvian, who construed the condition of being conquered by barbarians as subjection to ius hostium, to the enemy’s laws, and thus as creating him and his fellows as non-Romans: his condition was therefore that of an alien, living in alieno solo, on foreign soil. A few decades earlier Eugippius described Saint Severinus admonishing civilians in the face of barbarian onslaught to migrate in Romani soli provinciam, “to a province of Roman soil.”15
Theorizing Plurality after Universal Citizenship
Considered in these terms, the challenge confronting Justinian in providing a vision of the empire as integrated by law was articulable in classical language of immediate contemporary relevance. The solutions available to him were multiple, and some were simple: he might, for example, have redescribed all soil as Roman, and thereby assimilated procedure and principle within Italy to that without. But even had he undertaken some such revision by sleight of hand, its narration would naturally not tell the whole story of late ancient law, even at the level of legal philosophy. On the one hand, massive historical changes had taken place in the realm of law between the Antonine Constitution and the sixth century, and no reckoning with Justinianic language alone can map those changes; and on the other, the problems of the legal system even in the sixth century were not to be resolved solely through figurative language.
Turning first to the landscape of law and historical change in the earlier period—and reacting against a body of literature that diminishes the importance of the Antonine Constitution—it is worth stressing that the world of the law after 212 was in fact different, utterly different, than the world before: the landscape of actual legal relations remained fully as heterogenous as before, but the participants to those relations now had full and undeniable standing before the law in Roman courts. What resources did classical law provide to conceptualize and administer this system, what new ones were crafted, and how did they fare in the third and fourth centuries?
It is important first of all to recall that the most prominent mechanism for acknowledging and controlling legal heterogeneity in the world before 212 now failed. I refer to the simple recognition of the existence and legitimacy of separate bodies of law and the assigning to them of non-overlapping jurisdictions. The clearest shorthand gesturing at this apparatus is surely that of the Tabula Banasitana, an inscription of 177