This, then, is the second thread of the story: the idea that a ruler, to be legitimate, had to be responsive (rather than merely imposing his will by force) opens up a series of crucial possibilities for his subjects. To be legitimate meant to be a fair judge, and while it is likely that the Roman governors of Egypt (or any other province) felt this adjudication of cases to be an irksome chore, they nevertheless created an institutional framework that encouraged people to avail themselves of Roman justice.49 This meant treating people as if they had rights by extending to them remedies that we may think of as procedural, but which were in fact substantive (since this distinction, as Alan Bowman has pointed out, would have made no sense in the Roman world).50 It meant, above all, responding to their petitions, and finding workable solutions to numerous problems, social and economic.
What this also means is that every time the prefect, the epistrategos, the strategos, or any other official in Egypt received a petition, they were deciding what the law of the land was, and whether it should be applied, extended, or altered to fit the facts of a particular case. When these officials subscribed a petition and set the wheels of justice in motion, they were then—in a peripheral but critical sense—making law, and they were making it on the basis of people’s narratives and normative claims. In the face of such diversity and colonial cultural, linguistic, and economic overlap and indeterminacy, they also ended up making law in ways that undermined the ideal of stable, discrete populations living separately from one another.
In a system that is primarily founded on local initiative (that is, when problems are brought into the legal sphere only through the choice of nonstate actors),51 this process of law-making necessarily moves in two directions. On the one hand, there is a requirement that certain aspects of the formal law be followed: complaints must fit into a certain legal form, and certain kinds of language must be exploited to make one’s case. This can be crudely categorized both as a “top down” process, in that the language and style of complaint are determined by the state, and as a “bottom up” process, in that it depends exclusively on individual initiative to bring the matter to the attention of authorities. On the other hand, formal aspects of complaining (of translating a complaint into law) were counterbalanced by the Roman state’s financial need to maintain order and peace, as well its ideology of responsiveness. This counterbalance necessarily involves making pragmatic compromises which, while they were capable of being imagined as exceptions that fell outside the letter of the law, were in fact contributing to the shape of the body of rules as a whole. That is, these compromises often set precedents for future decisions. While there was no formally articulated doctrine of stare decisis in Roman law, people noticed precedents, and soon began to invoke them in new contexts.52 Making a legal decision, even if it was a pragmatic compromise, nonetheless involved declaring what was justice; invoking a precedent was a way of demanding that the government, which prided itself on making just decisions, live up to the reputation it claimed for itself—namely that the individual magistrate was a moral agent.53 That this process moves in several directions at once is a prime source of scholarly confusion.54 While an account of the role of the legal system is of major importance for contextualizing the documents through which we understand violence, any attempt to view this dynamic system as a static, coherent, or rationalized whole (on the analogy of a “constitution” or a “basic law”—or from the perspective of the Gnomon of the Idios Logos) is bound to be frustrated.55
* * *
One important question, however, concerns the peculiar situation of Roman law. Roman law was famously a law for Roman citizens, to the exclusion of others. The majority of people living in Egypt (or in most other places outside the Italian peninsula, for that matter) were not Roman citizens before 212. Accordingly, there is a temptation to think the Romans would have spent most of their administrative energy dealing with the problems of Roman citizens, enforcing Roman law in their cases, and doing their best to delegate local matters to local people whenever possible.
At the level of legal technicality this is largely true, but the situation is more complicated for two reasons. One is that, despite the vast amount of legal documentation concerning both violence and other, more mundane matters, the interface between written, positive law and practical law is unclear. I believe, and outline in greater detail in Chapter 5, that there is good reason to believe that whatever the actual, written law of the province, there was in practice a substantial amount of pragmatic muddling through in day-to-day affairs, and provided that certain formal aspects of the law were followed, the Roman governors in Egypt were willing to tolerate petitions from a broad range of individuals. While not all these would necessarily receive justice, the governors attempted to serve the populace in the best way possible—provided certain rules of approach were followed.56 The second problem, however, is more difficult, and comes to a larger question of the evidence itself. The problem, posed in its most basic form, is this: if there was a legal remedy for violence extended to all individuals, and if the government was willing to enforce it, who would actually have taken advantage of it? In other words, to whom was the system accessible? Could it be accessible to the defective Egyptians of Tacitus, Juvenal, and the Historia Augusta?
The papyrological evidence provides limited answers to these questions. First, while writing may not have been a prohibitively expensive technology, the papyri do not give us access to the entire socioeconomic spectrum of Roman Egypt.57 As usual, the lowest of the low are excluded. This is predictable, of course, but a complicating factor is that we have very little firm evidence which indicates what percentage of the population this might be. We might surmise that it was a segment that was largely agricultural, since most of the extant papyri come from the larger towns and villages and seem to represent a class of people who look at first glance to be far from miserable and destitute. Second, it is exceedingly hard from the rhetorical narratives of petitioners to discern what their precise status was: sometimes they make reference to their citizenship or to offices that they have held, but they were not required to do so. In some ways, as I will argue, this is to be expected: going to court was about seeking to define one’s status in the first place. Finally, when Tacitus and Juvenal refer to Egyptians as being violent, there is nothing that would indicate that they knew (or cared) about the complex system of ranked citizenships, but instead simply spoke in generalities about the land and its peoples. While I will deal with these issues in greater detail in what follows, it is worthwhile for the moment to consider briefly the issue of citizenship, and in particular its connection to legal access.
The legal situation in Egypt after the Roman conquest is difficult to characterize briefly, but in what follows I hope to essay a few conclusions. In Ptolemaic procedure there were two different courts (an “Egyptian” and a “Greek”) in which to judge disputes. The choice of court was based, or came to be based, on the original language in which the supporting documentation was written.58 In the Roman period there was no such choice; judicial hearings concerning violence were held in front of magistrates, according to the cognitio procedure—that is, the magistrate (whether a Roman prefect or epistrategos or a Greek-speaker serving as strategos) was both presiding official and judge in legal proceedings. This break from the jury system meant that litigants of all classes would be treated by administrators who were more or less legal amateurs. And while it was a common element of imperial Roman practice to allow individual populations to be judged “by their own laws,” there is little evidence that these administrators would have known what they were in the first place. Accordingly, it would be a mistake to assume that there was a major difference in the type of substantive rules to which each population would be held.59 This is particularly true in the case of violence.
This will be a controversial statement for some. Deciphering which of the private law practices that show up in the papyri are “Roman,” “Alexandrine,” “Greek,”