BMCR 1999.08.15

Law and Empire in Late Antiquity

, Law and empire in late antiquity. Cambridge: Cambridge University Press, 1999. 1 online resource (ix, 235 pages). ISBN 9780511001444 $59.95.

In this deceptively slim volume, H. attempts to correct the perception that Roman emperors in late antiquity (specifically, the period from Diocletian to the death of Theodosius II in 450) had become less capable of maintaining the rule of law than their predecessors had been. In spite of complaints voiced in the sources — not least in imperial constitutions themselves — about unchecked official corruption, the arbitrary and despotic use of executive power, and the decline of legal learning, H. points out that we lack the evidence to demonstrate conclusively whether laws were enforced more or less assiduously and effectively in the fourth and fifth centuries CE than in the first and second. Given this information vacuum and the difficulties inherent in interpreting the fragmentary legal texts which have survived, H. makes a spirited and nuanced case in support of the proposition that Romans’ oft-expressed dissatisfactions with their legal system are tokens, not of despair and resignation against a backdrop of increasing lawlessness, but rather of an enduring investment in law as the foundation of civil society and a heightened consciousness of the availability of specifically legal remedies to combat an expanding range of perceived abuses.

Central to H.’s thesis is a perspective, informed by both comparative anthropology and the realist school of critical jurisprudence, about “how law works” which differs not only from the views of the ancients on the matter but also, H. claims, from those of a great many ancient historians who have addressed the topic of law in late antiquity. The traditional account, perhaps best expressed by Ammianus Marcellinus (14.6.5) in his famous excursus on the three ages of Rome, posits “the laws” as the crystallization of a particularly Roman genius for government, which, having been formulated by the ancient founders of the Roman state and passed along from generation to generation as a public legacy, are entrusted to the care of the emperor and his officials. Insofar as one is conscious of deficiencies in the administration of justice, then, it must follow either that the laws are inadequate or that their human executors are flawed, and it is not surprising that there are both ancient and modern commentators who have preferred the latter conclusion. It was advanced most insistently among the ancients by the historian Priscus of Panium, author of a celebrated dialogue on the merits of Roman government supposedly enacted during an embassy to the court of Attila the Hun (succinctly discussed by H. on pp. 6-8). Among the moderns, H. seems to have mainly in mind Ramsay MacMullen, whose Corruption and the Decline of Rome (Yale, 1988) would appear to be the implicit object of many of H.’s more general criticisms, although she confines herself to citing the work in footnotes with respect to specific points of contention.

In place of institutions and static constitutional formulae, H.’s emphasis is upon situational dynamics and shifting coalitions of interest groups comprising both the organs of Roman government and the parties to particular disputes which become the subjects of litigation. The book’s title, to the extent that it suggests that H. focuses largely or wholly upon centers of power and takes an exclusively top-down view of the operation of law, is misleading. What H. means to evaluate is the effectiveness with which a range of historical actors, extending from the emperor to the individual litigant, activate specifically legal strategies in pursuit of more or less self-interested ends and employ the rhetoric of law in order to justify those ends. The question of whether Roman society in late antiquity was suitably law-abiding, in the sense that emperors, public officials, and citizens behaved lawfully and that the laws commanded widespread obedience, is supplanted by the less moralizing issue of whether such persons identified an appreciable instrumental value in participating in the legal arena: “… late Roman society must be viewed in terms of a multiplicity of relationships, in which the law was used as a tool of enforcement, an expression of power, or a pawn in the endless games played out between emperor and citizen, centre and periphery, rich and poor” (p. 8). The book’s great merit is that it acknowledges law as a comparatively circumscribed, if essential, element in civil life while also embedding it within the larger matrix of written and unwritten rules by which societies organize themselves and seek to manage conflict.

Something which might appear to be absent from such a vision of essentially self-interested gamesmanship is any sense of the public interest or a collective good served by the maintenance of the rule of law. Yet H. is at pains to show, despite the fact that the later empire largely dispensed with the trappings of republican government, that the imperial office remained the repository of a public trust and that power was exercised with the consensus universorum, a popular mandate which was continually negotiated and reaffirmed through the nuances of public acclamation and response. Of the ten chapters which comprise the body of the book, the first four examine the imperial center from the standpoint of the classical legal heritage, the operation of the imperial consistory, the construction and projection of an idiom of imperial power which embraced the rule of law as a crucial underpinning of its authority, and law enforcement and official accountability. H. emphasizes the composite nature of imperial constitutions, which served propagandistic as well as legislative and judicial purposes, and views them as the product of distinct “legal” and “imperial” cultures whose interests did not wholly coincide. The former, represented above all in the office of the quaestor who was responsible for drafting legislation, had inherited from the great jurists of the Severan era a deliberative and inherently polyvocal manner of expression which was incompatible with the unequivocal and increasingly autocratic character of imperial utterances. Emperors nonetheless relied upon lawyers to clothe their assertions of power with the respectability and legitimacy upon which their position depended.

Out of the growing expertise and self-confidence of the legal profession in the eastern half of the empire throughout the late fourth and fifth centuries, H. argues, arose a modus vivendi which worked to the advantage of both parties. Its culmination, the promulgation of the Codex Theodosianus, a compilation of imperial enactments undertaken by an official commission and named for an emperor rather than a jurist, affirmed for Theodosius II (as later also for Justinian) the status of the emperor as supreme lawgiver, while reserving for the jurists the prerogative of determining which imperial constitutions ought to be invested with a general validity and consistently enforced. Although both of these emperors and their successors continued to legislate freely, H. suggests that the compilations, by vindicating the principle of self-consistency and generality in imperial lawmaking, imposed an implicit restriction upon imperial discretion which functioned as a check upon emperors’ autocratic tendencies.

Many developments which have been taken as evidence of the degeneration of the later Roman legal system from its classical peak receive a sympathetic treatment here. Although acclamations were carefully stage-managed in order to elicit assent, the possibility that such a legitimizing affirmation might be withheld was real, H. insists. Moreover, she suggests that the resulting transaction between the governors and the governed created mutual obligations which each side was bound to observe: the crowd might be reminded that it had endorsed and thereby committed itself to a policy that had later proved unsound or distasteful. Although characterizing such consensus-building as a contract, as H. repeatedly does, muddies the waters unnecessarily by blurring the boundary between law and politics, her account captures the element of unpredictability which was surely a part of such proceedings and accords them the critical role they played in the shaping and gauging of public opinion. The much-maligned Law of Citations of 426, which supplied a rough and ready method of reconciling conflicting opinions in the writings of the classical jurists, is credited as a pragmatic reform dealing with the erratic citation of legal sources, the success of which can be judged from the fact that it was only set aside once Justinian had completed his much more radical harmonization of the jurists in the Digest. The emperors’ habit of reaffirming their own laws and confirming those of their predecessors, often taken as a demonstration of the ineffectiveness of legislation, is here marshaled as evidence of the center’s responsiveness to concerns in the provinces and the tactical advantages one faction could realize by thus securing imperial support, perhaps more often in the perpetuation than in the resolution of a dispute.

The remaining chapters, on judicial and quasi-judicial dispute settlement, offer a valuable survey of later Roman civil and criminal procedure, the judicial use of torture and the inflicting of corporal punishment, judicial corruption, and alternative avenues of seeking redress through recourse to arbitration and episcopal intervention. H. stresses the complexity and ambiguity of attitudes in late antiquity with respect to socio-economic standing and the use of coercion by the state. A witness with wealth was ipso facto regarded as more trustworthy than one lacking it, yet the rich were suspected of abusing their influence and might be subjected to harsher penalties than poor persons convicted of the same offense. Roman citizens craved strong government and regarded fear as a useful deterrent when wielded with legitimate authority, yet the arbitrary and excessive use of force was the mark of a tyrannical regime. Litigants might decry their victimization at the hands of powerful opponents, yet the exercise of patronage from the emperor on down continued to be accorded its central role in sustaining the social fabric. The line between laudable and illicit intervention was finely drawn.

Although H. does not deny the reality of official malfeasance or the fact that a post in the civil service was regarded as a path to personal enrichment, she focuses upon the difficulties faced even by persons of good will in negotiating a legal system whose complexities and uncertainties approach those of our own. A welcome sense of charity and empathy informs her discussion of the challenges faced by the iudex obliged to decide a dispute between litigants of superior social standing to himself, or the bishop working through his list of contacts in an attempt to ensure that his parishioner’s rights at law are respected, or a plaintiff calculating that the threat of a lawsuit will drive his opponent into private arbitration. Even the emperor, whose prerogatives might be effectively unlimited but whose channels of communication and resources for securing compliance pale in comparison with those of the modern state, is entitled to the benefit of the doubt.

Nonetheless, the real heroes of the book, however implausible it might seem in this day and age, are the lawyers. When H. writes, in her closing paragraph, of their determination “to impose order, generality and system on all the diversities of Empire” it is clear that for her these represent eminently worthwhile goals. Law furnished a medium through which emperors could advertise their unstinting efforts to disentangle the lives of a populace which prized security and stability. The suggestion that the emperor’s efforts were stymied by unscrupulous officials and craven special interests camouflaged the enormous distances which separated the center from the periphery, while also encouraging those in the periphery to identify their interests with those of the center. By absorbing the complaints emperors voiced in their legislation and echoing them back in their petitions and in the literary sources, Roman citizens adeptly participated in what H. characterizes as a “culture of criticism” which paradoxically reinforced, rather than undermined, their investment in the system.

One ought to be cautious about the multiplication of such cultures and their accompanying discourses, particularly when one can readily understand how individuals might be implicated in several of them at the same time. But H. is correct in pointing to the classical legal tradition, with its insistence upon the autonomy of law, as a pole of allegiance and source of legitimacy which persisted in tension with tendencies toward imperial aggrandizement. The efforts of emperors to identify themselves as the sole source of law, as Justinian’s assimilation of the juristic corpus very nearly achieved, threatened to destroy the Roman traditionalist’s last consolation in the face of official incompetence or malevolence, that the laws were good even though their human executors were flawed. H.’s account is refreshing in its insistence that the lawyers resisted rather than abetted this process. She overreaches, however, in implying that her penetrating observations with respect to the Theodosian compilation and the interrelationships between law and society in the fourth and fifth centuries might be applied, mutatis mutandis, to the Justinianic project in the sixth, which falls beyond her chronological scope and awaits a comparably masterful treatment of its own.