Bryn Mawr Classical Review 2012.06.10
Clifford Ando, Law, Language, and Empire in the Roman Tradition. Empire and After. Philadelphia: University of Pennsylvania Press, 2011. Pp. xi, 168. ISBN 9780812243543. $49.95 (hb, ebook).
Reviewed by Christina Kokkinia, Institute of Greek and Roman Antiquity, National Hellenic Research Foundation (email@example.com)
In Law, Language, and Empire in the Roman Tradition, Clifford Ando studies aspects of Roman legal thought in connection with Rome's rule over aliens. The aims of the author in this book are stated at various points in the preface: to examine “how lawyers at Rome . . . grappled with the legal pluralism of the world [that] imperial action had created” (ix) and to demonstrate that the Roman civil law was both “an instrument of empire” and “the product of an imperial state” (x-xi).
Chapter 1 (Citizen and Alien before the Law) invites reflection on an apparent contradiction: though the civil law was understood to be a set of norms regulating exclusively the affairs of citizens, it nonetheless served as the means by which legal rights and actions available to Romans were gradually extended also to aliens (17). This extension was effected through the use of legal fictions and substitutions which, Ando argues, were viewed by Roman lawyers as conservative measures (8)—that is, measures aimed at creating new rules that were based on and preserved the spirit of older ones. On Ando’s interpretation, it was through this process that the universal extension of Roman citizenship ultimately became conceivable (10).
In chapter 2 (Law’s Empire), Ando takes up Caracalla's decision to grant citizenship to all freeborn residents of the empire and examines the intended and unintended consequences of the emperor’s decision (19). Although scholarly consensus on these much-discussed issues is unlikely to emerge anytime soon, given the late date and the selectivity of our main sources (20), Ando commendably advances the state of study by asking how the new circumstances were viewed in terms of legal theory by Roman lawyers of the post-Antonine period. “At the level of theory,” according to Ando, it was impermissible in the aftermath of the Antonine Constitution for any law other than Roman law to exist in the Empire (30). Nor was there truly an option of imposing a new legal system overnight on the societies involved, if existing social and economic relations were to be preserved and if social order was to be maintained (21). Roman lawyers, while remaining conservative in their theoretical approach, had to devise means of producing homogeneity out of heterogeneity and of insisting “wherever possible on the superordinate normative status of Roman law” (21).
The result of their efforts was an enormous body of rescripts, preserved in Justinian's code, that merely restated standard doctrine and thus permitted local practices to stand (31). Ando draws attention to the fact that, when those texts referred to local legal rules and concepts, the vocabulary of law was replaced with the vocabulary of custom (31).1 In this way, non-Roman concepts and non-Roman rules were imported into the legal system of the post- Antonine era (34). But as Ando emphasizes, the foreign origin of these new elements was not acknowledged, and they were, instead, often explicitly identified as Roman (36). I would suggest that this process of turning custom into law recalls the Christian fathers' christianization of diverse religious practices that persisted into their times, and that a comparison of the concepts and arguments employed by the post-Antonine lawyers and by these Christian thinkers might be instructive.
Ando’s characterization of the post-Antonine empire as one in which, suddenly, citizenships other than Roman no longer existed (22) provides a useful recognition of the impact of Caracalla's edict, which is often underestimated, and of the consequent demand on Roman jurists to rethink the entire construct of Roman civil law. Yet, for all that the Antonine Constitution extended Roman citizenship to an unprecedented number of individuals, the practice of extending that citizenship was by no means new. Among the “test group” of provincials who had received Roman citizenship in the first and second centuries AD were elite individuals for whom Roman citizenship was one among a number of citizenships that they possessed.2 This state of affairs, no less than the extension to aliens of the rights of Roman civil law, is likely to have had significant influence on contemporary understanding of the concept of citizenship.
Chapters 3 (Empire and the Laws of War) and 4 (Sovereignty and Solipsism in Democratic Empires) assess Roman justifications for Rome’s activities in the sphere of foreign relations, in particular how Rome inaugurated and legitimated wars of aggression. Ando notes similarities between the fetial ritual and the civil-law action conducted via sacramentum, in other words a legal-religious ritual, that afforded the taking of oaths in civil-law cases where evidence was not available (47-48). He argues that fetial law was invented and retrojected into the past at the time of Augustus (45) in imitation of the ancient civil-law action conducted via sacramentum (60), and that it was intended to grant legitimacy to a war rather than to forestall violence (45). In addition, Ando recognizes in the concept of maiestas (literally, “greaterness”) an important characteristic of Roman conceptions of state sovereignty, and at the same time a notion that might serve to “legitimate to a domestic Roman audience, at least, wars of aggression against . . . foreign powers” (74).
In chapter 5 (Domesticating Domination), Ando discusses what the ascent of monarchy at Rome meant for the Romans' understanding of the concept of liberty and he proposes that subsequent theorists, both medieval and modern, fall short of recognizing the influence of monarchy on Roman and medieval views of republican liberty. Rome as a collective could point to its own “greaterness” to legitimate its domination over foreign peoples; after the establishment of monarchy, this same concept of maiestas was attributed to one of Rome's own citizens, the princeps (106). For Ando, the emperor's domination of the highest levels of the Roman aristocracy circumscribed the Roman understanding of liberty (107); freedom could not be conceived of, in these new circumstances, as the status of not being dominated, but as a condition to be contrasted with slavery (89).
The pronouncements of the Romans on the subject of liberty, in Ando’s view, are those of an imperialist and slave- owning society, and are therefore out of place in emancipatory projects today (83). The early modern and contemporary theorists of the so-called Republican tradition, and in particular the advocates of Republican liberty, are censured here for their handling of ancient sources (82) and for having failed to perceive the extent to which Republicanism, as a theory and as a system, was in fact developed in support of monarchical rule (82). Ando criticizes Quentin Skinner for quoting the Digest without regard for the context of the passages and the structure of the corpus, and for thus assimilating “freedom to citizenship, citizenship to legal personality, and legal personality to non-domination” (90). Ando also proposes that, since the Christian empire introduced a metaphysical schema in accordance with which “imperial law ... was elevated above human law by virtue of its authorization by God” (110), the jurists of the Italian communes should be seen as “anti-republican or at least non-republican,” since they subscribed to monarchy and, in fact, “understood [imperial] authority to descend from the divine” (113).
The pleasure of reading this rich and stimulating book is diminished, at least for non-native English speakers, by the very dense and challenging writing style of its author. In a number of cases the text would have profited from a more careful editing. It is difficult to sort out what is meant, for example, in the sentence "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" (21), and again, on p. 40, it is not clear to whom the pronoun “they” refers in the sentence "If we turn now to both the data for, as well as Roman histories of, the laws of war, the evidence is perhaps best described twice, first as they understood it and second in relation to the source-critical concerns I laid out above".
These are minor flaws, however, in a book that offers much reconsideration of developments in Roman and legal history, and particularly concerning the history of an empire which, as Ando has elsewhere observed, is more remarkable for its endurance than for its inevitable decline.3
1. On local law's persistence as mos, cf. J. Modrzejewski, “La règle de droit dans l'Égypte romaine. État des questions et perspectives de recherches,” Proceedings of the 12th International Congress of Papyrology (American Studies in Papyrology VII) (Toronto 1970), 317-368, esp. 347-368; Κ. Μπουραζέλης, Θεία Δωρεά. Μελέτες πάνω στην πολιτική της δυναστείας των Σεβήρων και της Constitutio Antoniniana (Athens 1989), 167-174 = K. Buraselis, Θεία Δωρεά. Das Göttlich-Kaiserliche Geschenk. Studien zur Politik der Severer und zur Constitutio Antoniniana (Vienna 2007), 137-143.
2. Cf. most recently J. Fournier, “L’essor de la multi-citoyenneté dans l’Orient romain: problèmes juridiques et judiciaires”, in: A. Heller and A.-V. Pont (eds.), Patrie d’origine et patries électives: les citoyennetés multiples dans le monde grec d’époque romaine (Bordeaux 2012), 79-98; 85-88.
3. C. Ando, Imperial Ideology and Provincial Loyalty in the Roman Empire (Berkeley 2000), 2.