The gap Ulpian here observes, between social facts and legal facts, has an important correlate in the gap between the language of the law and the social realities it was called upon to regulate, a problem made visible to the jurists in one prominent form in the aftermath of the Antonine Constitution, when the Latinate law of Rome was called upon to give normative description to social and economic relations in the Greek-speaking east (their reflections on this topic are taken up in Chapter 2). It is this latter gap between law and social realities that fiction and substitution elided, and to which words like quasi and quoddammodo draw insistent attention. How to theorize that gap, as a matter of legal philosophy, was disputed: for every lawyer like Ulpian, who insisted that new situations could—always? only?—be embraced by adhering to “the individual words” of legislation, there were others, like Celsus, who insisted that “knowing the law” consisted in adhering not to their words but to their force and import.34 Potestas legis, the import or tendency of a law, is likewise the term used by Paul to explain what part of statute law was preserved or respected by the praetor when he extended its usage to situations theretofore or inadvertently unimagined.35
That said, the extraction of a legal principle from statutory language and its application to new situations had perforce to be reified in language, and that act created legal facts—Latinate legal facts—where none had been before. The question what is the power of law as a system of language to make social facts out of legal ones is taken up most explicitly by Gaius in a passage not on fiction but theft (Appendix passage 13). A statute established that refusing to allow one’s property to be searched for stolen goods rendered one liable for the action against manifest theft. (Merely being caught with stolen goods made one liable for a lesser degree of theft.) This caused some writers to ask whether theft was manifest aut lege aut natura, “by statute or in reality.” That is to say, was manifest theft a particular form of theft, or could any act of theft be not merely classified as but in fact transformed into manifest theft through statutory language? Gaius denounced the question:
The truer answer is that manifest theft is understood as such in reality. For statute can no more bring it about that a non-manifest thief is manifest, than it can make someone who is altogether not a thief into a thief, or someone who is not an adulterer or a homicide into an adulterer or a homicide. Rather, what law can do is simply this: it can make someone liable to punishment exactly as if he had committed theft or adultery or homicide, even if he had committed none of those things. (Gaius Inst. 3.194; Appendix passage 13)
It could also bring it about that aliens existed in law, and in the world the law ruled, exactly as if they were citizens, even if they were in reality no such thing.
Chapter 2
Law’s Empire
This chapter pursues several interrelated problems at the intersection of law and the articulation of the late ancient state. They may be framed as an inquiry into the consequences, intended and otherwise, of Caracalla’s decision to grant citizenship to all—or nearly all—freeborn residents of the empire. For the Antonine Constitution would seem to mark, or should have marked, a turning point in the history of the empire: put concisely, one might ask whether the empire still was an empire when it no longer ruled over anyone. Put more elaborately, was there a corresponding shift in the perception, ambitions, and actions of the state in keeping with the universalization of citizenship? Did acts or agents of government, or depersonalized institutions of the state, penetrate more deeply or spread more uniformly to match the universalization and homogenization of political culture that the spread of citizenship would seem to entail? What resources did the Romans have even to conceive, let alone to pursue, such an aim, if they had it, in whatever form they did?
In pursuing these questions, we face a number of obstacles, both ideological and evidentiary, that I mention simply to set the stage. These are, first, that Roman law was throughout this period a moving target, its doctrines and procedures undergoing constant revision and change. Second, Roman law—like so many fields of our discipline—has its own classical ideal, which urges us to esteem virtually all periods of Roman law about which we can actually know something as instantiating debased and degenerate forms of some earlier, pure and pristine law.1
Third, even if we stand apart from the modes of valuation that gave us so-called vulgar law, bureaucratic law, and the like, we encounter an even more serious obstacle at the level of evidence: the very great bulk of legal texts at our disposal were edited at one or another of two periods in late antiquity so as to speak to formal issues of substantive law as it was then in force. That is to say, the texts we have—the huge bulk of which come in the form of something like a Routledge sourcebook—were systematically edited so as to provide or conduce the formulation of decision rules. Such material as jurists and lawyers once wrote that spoke directly to problems of justification, legitimation, or implementation has been rigorously excised.
This is, of course, a well-known problem. But it is perhaps not often enough remarked that in consequence the texts we possess seem scarcely to speak to two great historical problems of Roman law, namely, the adjudication of disputes between individuals of divergent legal status, whether citizens and aliens or aliens of divergent citizenship; or the administration of social and legal relations among formerly peregrine populations in the aftermath of the Antonine Constitution. For if one thing was emphatically true of the legal landscape of the early sixth century as it was imagined by the Justinianic compilers, it is that the individuals who would come before the law would all be citizens. It is hard to believe that many texts on legal relations between citizens and aliens survived to the sixth century—a scant handful of titles can be recovered—and when those few are quoted, it is for their reflections on the civil law alone.2 In the rest of their content—in the very issues that motivated their composition—there was simply and understandably no interest.
Quite in spite of this, my ambition in this chapter is to address to the late antique compilations the questions I framed at the outset; to suggest a way to read them, by which they might be made to answer those questions; and to gesture, at least to what their answers might be.
My approach in brief is this: I propose to sidestep the question of what changes were made in substantive law or its interpretation and investigate instead how those changes were made: what pressures impelled them; how they came about; and how those changes were understood, described, and justified in later legal and jurisprudential literature. My second question—how they came about—would have to be taken in at least two directions: what was the source of law that enacted the change—statute? rescript? edict? interpretation?—and what was the conceptual mechanism by which that change was effected? Was some new species of person, thing, or action integrated within an existing taxonomy? Was a wholly new legal action created? Did some jurist create a work-around, through analogy or fiction? And so forth.
My argument will be that in post-Antonine legal literature, in the form we have it, the mechanisms developed in the late Republic and early Principate to constrain and channel pressures for change into particular formal outcomes were redeployed in the third century and beyond, continuing robustly into the age of Justinian. Or so it appears: for here we encounter some very substantial problems of evidence, arising most obviously from the editing and selection performed by the Justinianic compilers. One possibility is that the apparent continuity in forms of practical and theoretical elaboration across the corpus is a product of their work, by virtue of their conscious recognition in these texts of conceptual and linguistic forms that they viewed as legitimate and current. To credit this last claim would amount to arguing that the Justinianic editors privileged in their editorial work a vision of the law and in particular of what counted as legitimate reasons for change and mechanisms for realizing such. To this problem I shall return in closing.
This remarkable continuity in theoretical position and interpretive practice was achieved, I argue, despite the very considerable historical differences between the situations Roman lawyers confronted in the late Republic and early