AFTERWORD ROMAN CITIZENSHIP, EMPIRE, AND THE CHALLENGES OF SOVEREIGNTY

Anthony Pagden

Almost since it was first issued, the Antonine Constitution has been the subject of a heated controversy over its meaning, and its significance. By implication this has also become a debate over the true meaning of not only of Roman citizenship, but of citizenship in general, and in particular of anything resembling universal citizen­ship.

Citizenship was a Greek invention. It was conceived as a status, that of the polites, that conferred upon every individual as a member of the city, “a share in the Polis’” (metechein tespoliteias).

Greek citizenship was also based on a specific location, the polis - the city - itself, and could have no meaning beyond its walls, where in Aristotle’s famous dictum only beasts and gods could survive. Although it was not conceived as such, this became, in effect, a means of creating a distinction between outsiders and in­siders, and was looked upon with suspicion by certain strands of Greek thought: the Cyrenaics and, in particular, the Cynics. But even Plato makes Hippias suggest that the concept of citizenship divides people unnaturally (Prot. 337d-338b). It was also opposed most emphatically by the Stoics, for whom in Zeno of Citium’s much quoted phrase, “We should all live not in cities and demes [tribal groups], each distinguished by separate rules of justice, but should regard all men as mem­bers of the same tribe and fellow citizens; and... there should be one life and order (koinos) as of a single flock feeding together on a common pasture” (Plutarch, Alex. Fort. VI.329a-c). Stoic “cosmopolitanism” was conceived primarily as a refutation of the conception that a person was not at liberty to choose his place of allegiance or, if he so chose, to have no allegiance at all. Although this was not, in itself, a rejection of the whole idea of citizenship, it came perilously close.

Modern criticism of cosmopolitanism has generally taken much the same form. Cosmopolitans are irresponsible, rootless beings. “Those pretended cosmopolites,” Rousseau called them, “who. boast of loving all the world in order to enjoy the privilege of loving no one.”^[686] Ultimately for the true citizen cosmopolitanism could only ever be at best an evasion, if for no other reason that, in Michael Walzer’s formulation, by its very nature the world is not a place one can be a polites of (Walzer 1996, 125). There was, however, as we shall see, quite another way of un­derstanding what “cosmopolitanism” and the “cosmos” might entail.

In all of this - in its reliance upon participation and the close link to a territory - Greek citizenship looks remarkably close to most modern understandings of the term. It was, however, very different from the Roman.

Roman citizenship sought not to create distinctions between peoples but - at least at a legal level - to erase the obvious divisions between them. Rome, in the words of Pliny the Elder, was the “nurse and mother of all lands,” chosen by the gods, “to give humanity to mankind, to become the single native land of all the peoples of the world” (Naturalis historia 3.39). For all its high-flown rhetoric this captures quite closely how most of the Roman elite looked upon the political and moral objectives of the world over which in Virgil’s words all the “wild races have been gathered together by Saturn and given laws” (Aeneid 8.319-23).

The Roman Empire was of course a state acquired very largely through con­quest, and often through the most brutal forms of conquest. But for all that it was assumed, that once initial resistance of those to be conquered had been overcome, once they had been able to see for themselves the merits of belonging to the Roman world, they would embrace what came to be called “Romanness,” Romanitas, with enthusiasm. “Roman narrative and legal sources,” in Clifford Ando’s words, “over­whelmingly put forward a view of citizenship qua Romanness, and Romanness qua citizenship, based on consent. Theirs is an emphatically contractarian view of be­longing.” It had been precisely this Roman inclusiveness which, in the opinion of most Romans had been responsible for the success, and duration of the empire. As opposed to the Athenians and Spartans who had closed their societies against all those who were not native-born, the Romans had tamed the barbarians by exporting their way of life to them. As the Emperor Claudius is reputed to have asked the Sen­ate when it resisted his proposal to extend citizenship beyond the limits of Italy: “What else proved fatal to Sparta and Athens, in spite of their power in arms, but their policy of holding the conquered aloof as alien-born? But the sagacity of our own founder Romulus was such that several times he fought and naturalized a peo­ple in the course of a single day” (Tacitus Ann. 2.23-4; on this text and its context see Sherwin-White 1973, 237-50).

It was an image of the Roman - as distinct from any other - Empire that was to last for centuries.

“To her peaceful ways we all owe it that the traveller makes use of regions as though they are his ancestral lands, that we are all now one people...In all sorts of lands people live just as though an ancestral city were shutting in kindred citizens within unbroken walls, and as though all were united by an ancestral household god.” These are testimonies that agree with the

actual results of historical fact. These are testimonies of the blessed Roman Empire and of Ro­man virtue.” (Gentili 2011, 347)

The Roman Empire was an open society, one civilization bound by the rule of one law but multinational (we might say), multilingual, multi-cultural, and multi-religious. Even its Emperors, as the Apologist points out, had not always been Romans. Even in Late Antiquity, as Herve Inglebert shows here, Roman citizenship was still looked upon as a superior condition. Even “Christians, like Aphrahat, Isidore of Pelusium, and Orosius supposed, in spite of their belonging to different cultural realms - Syriac, Greek, and Latin - that Jesus of Nazareth had been a Roman citizen” (even if he had, in fact, not). “This empire of which you are servants,” the first-century Christian theologian, Tertullian, warned those Christians who might be tempted to see their faith as a reason for political dissent, “is a lordship over citizens, not a tyranny.”^[688]

The most telling, and perhaps most often cited case, of the status that Roman citizenship conferred was, however, that of St. Paul, the true founder of the Chris­tian Church. When Paul was arrested for sedition by the tribune of Judaea, he de­manded as a citizen the right to be taken to stand trial in Rome. “If... I am a wrong­doer,” he told the tribune, “and have committed anything for which I deserve to die, I do not seek to escape death; but if there is nothing in their charges against me, no one can give me up to them.

The Romans had been compelled to create the need for some kind of inclusion beyond the limits of the city, almost from the moment when in 264 BCE Roman armies crossed into Sicily, then dominated by Greek settlements. “Citizenship,” as Ari Bryen reminds us, “had been implicated in processes of imperial expansion since the end of the Latin War in 338 B. C,” and subsequently became “the primary tool for the integration of deserving communities or members of communities.” For Edward Gibbon, “it was by such institutions [of law, language, education and enter­tainments] that the nations of the empire insensibly melted away into the Roman name and people.”^[690]

In one important sense, therefore, the Antonine Constitution was merely ex­tending a policy that, at least in the political imaginary of the Roman people, had been an integral part of their world, since the days of Romulus. What the Greek orator Aelius Aristides in the second century CE called “your wonderful citizen­ship,” had indeed transformed the world, the orbis terrarum into a single patria: in Aristides’ words, “a Free Republic” and a “common civic centre” where “each man [receives] his due (Aristides 1953, 59-60). It made possible an historical vision that in Ando’s words, “was always already going to end in world rule, the universaliza­tion of citizenship, and the erasure of distinction between conqueror and con­quered”; it allowed for the re-description of empire in terms not of oppression, as the seizure by one people of the lands, the goods and the persons of others, but as a mode of beneficent rule which involved not conquest but a form of patronage. As Cicero said of the imperial republic that he served, “we could more truly have been titled a protectorate (patrocinium) than an empire of the world” (De Officiis 2.27). Or as the Emperor Antoninus Pius put it later: “I am the guardian (custos) of the world” (Dig. 14.2.9, on which see Moatti, p. 68). As Claudia Moatti writes, “to conceive of the empire, one conceived of the extension of the civitas to the ends of the earth, to the orbis terrarum.'”

By the time Aristides arrived in Rome, Roman culture, expressed in Greek and Latin, reached from the Tigris to the Atlantic, and from Elephantine on the Upper Nile to Hadrian’s Wall in northern Briton. The officers of the legions in Briton were housed in an Italian villa facing the Grampians in Scotland, and a Roman town, complete with amphitheatre, library and statues of the classical philosophers looked out over the Hodna Mountains at Timgad in the southern Algeria.^[691] We do not know how much of the older pre-Roman world such extensive Romanization sur­vived. But it is remarkable that we do not know. Almost no trace now remains of any pre-Roman literature, oral or written or any pre-Roman history of the peoples at the heart of the empire in the western Mediterranean and north-western and cen­tral Europe. Below the level of the urban aristocracy the older ways and earlier languages must have survived. Several Celtic languages, some of which, in some version, survive to this day must have gone on being spoken throughout the nearly four centuries of the Roman occupation of Britain. But if so they have left no writ­ten trace. The only language to survive Romanization was, of course Greek, and Greek was the second language of the empire, the language that every cultured Ro­man patrician spoke, and the language of the administration of what would become, after Diocletian divided the empire in the late third century, the Empire in the East. As James Wilson observed in 1790, while musing upon the possible future of the United States as the new Rome in the West, “it might be said, not that the Romans extended themselves over the whole globe, but that the inhabitants of the globe poured themselves upon the Romans” (Wilson 1967, 2:581). As with Rome he prophesized - correctly as it turned out - so would it be with the United States. All of this was, inevitably, to have a massive and lasting impact on all subsequent Eu­ropean perceptions of the inescapable link between universal citizenship - indeed universalism of any kind - and empire.

When the new European powers of the sixteenth and seventeenth centuries, Spain, Portugal, England and Holland in particular, began to look for ways to de­scribe, and by so doing legitimate, the new kinds of polities they were trying to erect across the Atlantic, this vision of empire as a society based upon voluntarily inclusion seemed particularly appealing. In the words of GentilTs “Apologist”: “The Roman people have bestowed citizenship upon other defeated peoples as well, who acknowledged our own manifest kindness... This was the true secret of that empire. Rome wanted all to be citizens; it has wanted barbarians to turn into gentle peoples” (Gentili 2011, 349). Rome constituted the libertas publica not merely for those fortunate enough to have been born within the confines of the civitas but upon all those who would accept rule by Roman law. And these, for Gentili, were the grounds on which any modern empire had to be constructed. The two great empires of his own day, the Ottoman and the Spanish, had both aimed at universal citizenship; both, that is, had attempted to reproduce what he assumed to be the values of the Antonine Constitution. Both in his view had failed, however, because, unlike their Roman predecessor, both were “planning and plotting univer­sal dominion” entirely for their own benefit with no regard for the good of the peoples they had conquered. Nothing good, certainly nothing virtuous, could come of naked greed. Gentili was a convert to Protestantism and in 1599 was Regius Professor of Civil Law at Oxford, and it not too far-fetched to see his defence of Roman Empire building, and his denigration of the Spanish and Ottoman attempts to makes themselves into new Romes, as an implicit defence of what he took to be the objectives of the fledging English settlements in the Americas.

It was clear, however, that no matter how beneficial incorporation into the wider Roman world might ultimately become, however attractive the goods offered by Romanitas might be, becoming a Roman citizen implied the ultimate renuncia­tion of all previous local attachments. In his great treatise on the laws of war, De iure belli ac pacis of 1625 the Dutch humanist Hugo Grotius offered a similar ac­count of the real implications of the Antonine Constitution (cf. Ando, pp. 15-16). There were, he claimed two forms of what he called “moderation in obtaining em­pire.” One, “the method favoured by Cyrus and Alexander the Great” had been “to leave the conquered, either kings or people, their own government.” The other - the Roman - had been to attempt to make a “common county of all that were under its dominion.” By the eighteenth century Grotius' distinction between Caesar and Al­exander had become a commonplace. Alexander's conquests, wrote Montesquieu, in a long admiring account of one whom he imagined to have fully understood his own organicist account of the origin of law, had been acts of reconciliation in which “the old traditions and everything that recorded the glory or the vanity of these peoples” had been studiously preserved, so that Alexander himself, or so it seemed, “conquered only to be the monarch of each nation and the first citizen of each town” (De l'esprit des lois, X 14).

Alexander's empire, however, had famously collapsed with his death. Having failed to create anything resembling a universal rule of law, there was simply noth­ing that could survive hm. The Romans, by contrast, had gone on to build the largest and arguably the most stable sovereign state ever to have existed, which, if its pan­egyrists were to be believed, had provided an unparalleled degree of stability and prosperity for all its citizens not matter what their origins. What incorporation into the Roman state had clearly not meant, however, was that, in Grotius' words, the “spring and original of empire was in any other people except the people of Rome” (Grotius 2005, 1500-1 (III xv)). By opening the patria, at least in theory, to the whole of mankind, Rome had made of the world a common patria under the aegis of a single body of law, and as Ingelbert puts it, “the oikoumene [now] referred not to the inhabited world, but to the world organized by Roman laws.” The Romans possessed a lively and sophisticated ethnographical curiosity in the peoples who inhabited the lands beyond the frontiers of the empire. But these other worlds had no separate identity as communities, much less as political powers; and it lay in the nature of things that they would one day be absorbed into the Imperium. It thus became, as Theodore Mommsen in his great history of Roman public law put it, “a familiar concept to the Romans that they were not only the first power on earth, they were also in a sense, the only one” (Mommsen 1896, 6:478-9).

There was a further aspect to all this celebration of universalism which the Antonine Constitution was intended to underscore: that an empire conceived in this way, as a state made up of many different peoples with diverse cultures, religions, etc., but bound to a common source of political authority and bound by a common understanding of the law, was in effect the only possible “cosmopolitan society.” This, had, at least according to Plutarch, been obvious even to Zeno whose dream, as he put it, “or, as it were shadowy picture, of a well-ordered and philosophical community” (Alex. Fort. V.329; see above, p. 244). For Plutarch’s Zeno, cosmo­politanism did not so much mean making each man a citizen of the world as it meant making the world into a single body of citizens. If all humanity was to be one, then humanity should belong to one community, one city, and one polis. For Zeno (possibly) and for Plutarch certainly, that city had been Alexander’s empire. For the Romans it could clearly only be Rome, or more precisely, the Roman civi­tas. As Montesquieu later observed, among the virtues of what he called the “Stoic Sect” was that it “knew how to make citizens; it alone was capable of making great men; it alone made great emperors... Born for society, they all believed that their destiny was to work for it. it seemed that only the happiness of others could in­crease their own” (De l^,esprit des lois, XXIV 10).

And here lies the two contrasting ways of understanding the meaning of citi­zenship. For the Greeks, as we have seen, citizenship meant crucially to have a share in the polis. As Aristotle put it “what effectively distinguishes the citizen proper from all others is his participation in giving judgment and in holding office” (Pol. 1275a23). Something similar might perhaps also have been said of Rome under the Republic. Certainly there is one reading of Cicero’s De republica that might suggest that citizens could be understood in Daniel Lee’s words as “socii, co-equal partners engaged in a common civic project, a civil societas..” From the eighteenth century onwards, this was also very broadly what was understood by the term, except that participation also included the right to protection under the law. In the Encyclopedie, Diderot described a citizen as “he who is a member of a free so­ciety made up of several families and who shares the rights of that society.” And this, is also, of course, the broad understanding of what we might think of as citi­zenship in any modern liberal democratic state, even if for most practical purposes, and for most citizens, “participation” is limited to the right to vote.

The Roman conception of citizenship, as it evolved under the Principate was, however, very different. Although it clearly constituted, as it did for the Greeks, a crucial aspect of identity, it was in Walzer’s words, “a legal status rather than a fact of everyday life” (Walzer 1989, 215). It would hardly have been possible to bind together a cosmopolitan empire on the basis of the participation by all its citizens in active public life. The Roman civitas was, therefore, grounded not on the ability and the duty of each individual civis to help determine the direction of the state, but on protection under the law, and under a law that derived ultimately from one single source, a source, moreover, that had at least by the time of Justinian come to be defined as itself unconstrained by law (legibus solutus).

This raised what was to become for the moderns the persistently troubling question of “sovereignty.” Jean Bodin, was one of the earliest modern state theorists to attempt to create a theory of the sovereignty that would, as he believed the Ro­mans to have done, allow both for a great diversity of “lawes, language, customes, religions” within a state and at the same time would also guarantee that there ex­isted one single unchallenged source of legislative authority. From this it followed that: “It may well be said that the priveleges [i. e., civil rights] make not a citizen, but the mutuall obligation of the soveraigne to the subject” (p. 120). This, in Bo­din’s view, was precisely the conception of citizenship that the Antonine Constitu­tion had extended to all free persons within the borders of the Roman Empire. “For Antonius Pius gave Roman citizenship to all subjects of the Roman imperium, not by rescripts, but by law promulgated for all peoples: so that Rome might be the common patria unto all nations” (p. 122). This corresponds to what Clifford Ando here calls “long-standing legal theory, according to which true freedom lies in sub­jection to law, and therefore, better laws result in a truer freedom” (p. 17).

Most subsequent state-theorists - Hobbes, Suarez, Althusius - accepted Bo­din’s broad conception of sovereignty even when they rejected the Roman legal grounds on which it rested. All, and Bodin and Hobbes in particular, adhered broadly to what the English jurist John Austin would later call the “command the­ory” of law. This maintained that the commands issued by a sovereign correlatively oblige citizens to obey the law, for, as Hobbes phrased it, “Each Citizen, as also every subordinate civill Person, is called the SUBJECT of him who hath the chiefe command.”^[692] (It is not incidental in this context that Hobbes entitled his first at­tempt to establish the theoretical foundations of a “civil government” De Cive.) In exchange the sovereign has, of course, the obligation to protect his subject/citizens from harm. The only right the citizen could claim, at least on Hobbes’ (and Grotius’ somewhat more qualified) account was the sole right he possessed in nature, namely the right to self-preservation.

Similarly, if Roman citizenship did not offer the bearer a role, however mini­mal, in government or, since the legislator was himself unrestrained by the law, even equality of status, it did ensure a measure of protection against abuses by the agents of the state. Roman conceptions of citizenship, as Ari Z. Bryen points out, “did not somehow make all citizens the same in terms of the privileges or rights conferred, and that citizenship therefore probably did not mean the same thing for everyone.” He may also be right in saying that this might seem “paradoxical for a modern audience, where we tend to think of citizenship as being a homogenizing category which creates a sort of civic bond between its holders.” But in most

modern states, there is rarely one single standard of citizenship. Those for instance, who become citizens, rather than having been born as citizens (an inconceivable notion in Greek practice), are always exposed to the threat of having their citizen­ship taken from them.^[693]

All the great early-modern state theorists were writing as the new early-modern overseas empires were being formed. They may not have been concerned directly with the problem of territorial expansion as such - although some like Suarez cer­tainly were - but the problem of how to establish control over diverse and politi­cally contentious peoples applied as much within territorial states as it did between subject ones. In the inter-state realm there could, of course, exist no sovereign at all. But neither Bodin nor Hobbes could have had any doubt that the power of the sov­ereign was the same in the Languedoc or Cornwall as it was in New France or Vir­ginia. Legally at least, the rebuke of one “Vindex Patriae” made to Benjamin Frank­lin in 1766, that “New England lies within England,” was indisputable.

For the writers of the Enlightenment, by contrast, the problem was not how to secure the stability and protection of the citizen body, but how to restrain the now unchallenged power of the state. Most, therefore had nothing but suspicion for em­pires, even an enlightened cosmopolitan one, as the Roman Empire was so often represented as being. Their time had come and gone. Today, argued Montesquieu, anything resembling the Roman Empire would be “morally impossible.”^[694] That was in part at least because no-one in the eighteenth century, no-one at least of Montesquieu’s enlightened turn of mind, could conceive of an extended polity based, in the first instance at least, on conquest. Ultimately, for all the multicultural­ism and religious toleration associated with (pagan) Rome, it had also been the case that a long-term consequence of imposing Roman citizenship had been the ultimate erosion of substantial difference. It was for this reason that Edward Gibbon, for all that he had looked upon the reign of the Antonines as “the period in the history of the world during which the condition of the human race was the most happy and prosperous,” dismissed what he called sarcastically, “the prodigality of Caracalla” as nothing more than an attempt to create a situation in which “reluctant provincials were compelled to assume the vain title and the real obligations of Roman citizens.”^[695]

There was another reason why the understanding of what Roman citizenship in general and the Antonine Constitution in particular began to change after the mid eighteenth century. The early-modern European empires, maritime and over-ex­tended, had been dependent upon overseas settlements. The settlers who had gone to the Americas had gone to create a New Spain or a New England elsewhere, while always remaining constitutionally Spanish or English. The one thing that the insur­gencies in the American colonies in the late eighteenth and early nineteenth centu- rie, had taught subsequent European empire builders was that, sooner or later, set­tler populations, unlike conquered ones, would ultimately come to demand for themselves the right to create and administer the law independently of the metro­politan power. The British, the French and the German who went to Africa and Asia in the late eighteenth and nineteenth centuries were, therefore, only ever intended to remain for short periods of time. They were, complained Edmund Burke, like birds of prey who swoop down “wave upon wave... [with] nothing before the eyes of the natives but an endless hopeless prospect of new flights...with appetites con­tinually renewing for a food that is continually wanting.” Contrast this, said Burke, with the “Asiatic conquerors” who had preceded them, who,

very soon abated their ferocity, because they made the conquered country their own. They rose or fell with the rise and fall of the territory they lived in. Fathers there deposited the hopes of their posterity; and children beheld the monuments of their fathers. (Quoted in Mehta 1999, 139-40)

But Burke was deliberately missing the point. For him the British Empire was, like the Roman, a “bond of union,” a “sacred trust.” The Indians were “fellow citizens.”^[696] For the new imperial administrators he so despised, however, they were only sub­jects. For this reason the modern empires did not, as their predecessors had done, encourage settlement, except in those areas such as southern Africa and Australia that were held to be “empty lands,” terrae nullius (Fitzmaurice 2007, 2015; Fremeaux 2002, 168). British India remained until the end a place visited rather than settled. “The English,” observed the French essayist and art historian Elie Faure in 1931, referring to the Indian railway system, “seem to be camping. One only ever sees the from behind a wall of steel” (Faure 1987, 142). In South Africa, as late as 1936, after successive inter-war migrations, Europeans accounted for only 21 % of the population. In Southern Rhodesia it accounted for less than 5% (Fre- meaux 2002, 168-76). Even in such places as Algeria, which was something of an exception, by 1931 the colons made up less than 13% of the total population. As Tocqueville had warned the government in Paris as early as 1841, “without a Euro­pean population we will be camping in Algeria” (Travail sur TAlgerie, in Tocque­ville 2003, 126). And camping they remained until the end.

Government in the new empires were also, by comparison with the earlier ones, limited. Instead of creating large settler bureaucracies supervised by visiting metro­politan officials, they attempted, where possible, to govern though native elites sometimes created for the purpose. This was what F. D. Lugard, governor and gov­ernor-general of Nigeria between 1912 and 1919, was the first to describe as “indi­rect rule.” But something similar had, in fact, been the practice in much of British Africa since the mid nineteenth century. A similar policy known as “politique des races” was applied by the French in West Africa, and in certain areas of North Af­rica, too, and by the Dutch in southeast Asia (Furnivall 1939, 291).

To use the metaphorical contrast between Alexander and Caesar, it could be said that whereas Alexander and Cyrus had (supposedly) divided sovereignty, im­perium, with the peoples they conquered, the Antonine Constitution had simply imposed citizenship without consent, transforming what under the Republic had been the guarantor of individual freedoms into the extension of the unquestioned imperium of the Caesars. If the older European empires had attempted to follow the example of Caesar, the new ones had chosen, or found themselves compelled, to adopt the strategy of Alexander. The possibility that sovereignty might be divisible had been unimaginable for Hobbes as for Bodin, as indeed for most of state theo­rists of the sixteenth and seventeenth centuries. In the nineteenth century, however, as the newer empires began to attempt to formulate some account of how their legal status was to be understood, it came to seem the only possible means of holding together a widely disparate collection of different political entities: as Disraeli tell­ing said of it in 1871, “No Caesar or Charlemagne ever presided over a dominion so peculiar” (quoted in Koebner and Schmidt 1964, 136-7).

One of the earliest, certainly the most striking and possibly the most influential of those who attempted to articulate a theory of sovereignty that would be capable of accounting for the condition of the emergent modern European, and most espe­cially, of course, the British, empire was Henry Sumner Maine, sometime legal member of the Council of India, and later Whewell Professor of International Law at Cambridge. Maine belongs with E. B. Tylor, Fustel de Coulanges, Lewis Henry Morgan, Ferdinand Tonnies, Emile Durkheim and Herbert Spencer, as one of the creators of modern comparative sociology and anthropology, and like them he was concerned with tracing a common history for the all the Indo-European peoples from ancient India and Greece to modern Britain and Germany. At the core of this project was Maine’s argument (for which he is best-known today) that all societies move from status - by which he meant in effect kinship - to contract. “The history of political ideas,” he wrote, in what became his best-known work, Ancient Law of 1861, “begins with the assumption that kinship in blood is the sole possible grounds of community in political functions” (quoted in Mantena 2010, 79). Primitive po­litical society was the family writ large. In reality, however, all societies, even nar­row tribal ones, grew by absorption and conquest, so that the genetic unit was rap­idly and ineluctably transformed into an imaginary legal one. And “all thought, language and law adjusted themselves to this assumption” (ibid.). In such societies

- and this is crucial - sovereignty was exercised over peoples, not territories. In Maine’s view the transition from this to the idea of territoriality, what he called “lo­cal contiguity,” became the basis for a form of association created through contracts between individuals unrelated to each other by kin, either real or imaginary. And this transformation had, in his view, been “so startling, so complete” as to constitute the greatest revolution in human history.

Startling and complete it may have been; but it had also been a long and discon­tinuous one. The Indian village community, the Greek polis, and the Scandinavian mark had all been contractual societies. The Roman Principate, however, was still a jural kinship group. Crucially, sovereign power within the empire was, on Maine’s account, based upon the notion of patria potestas. Roman citizens were de iure children, and of course in Roman family law the father possessed the right of life and death over his children, a principle that, as Grotius had pointed out, Aristotle

- the inhabitant of a contractual, territorial society - had condemned among the Persians as “a piece of tyranny” (Grotius 2005, 513). “The Patria Potestas of the Romans,” Maine wrote, “which is necessarily our type of the primeval paternal authority, is equally difficult to understand as an institution of civilised life, whether we consider its incidence on the person or its effects on property” (Maine 1917, 82).

Yet if this was itself remarkable, more remarkable still was the diffusion of the Potestas over the whole of a civilisation from which it had once disappeared... Every African or Spaniard, every Gaul, Briton, or Jew, who received this honour by gift, purchase, or inheritance, placed himself under the Roman Law of Persons, and [all]... were on the ordinary footing of a Roman filius familias.... It may be permitted to remark that there is little foundation for the opinion which represents the constitution of Antoninus Caracalla conferring Roman citizenship on the whole of his subjects as a measure of small importance. However we may interpret it, it must have enormously enlarged the sphere of the Patria Potestas, and it seems to me that the tightening of family relations which it effected is an agency which ought to be kept in view more than it has been, in accounting for the great moral revolution which was transforming the world. (Maine 1917, 85)

(The last is an allusion to Christianity, which is, of course, another patriarchal sys­tem.)

All of which raised the vexed question of sovereignty over which, as Maine remarked, “some of the bloodiest wars ever waged, some of the most intricate ne­gotiations ever prosecuted, and what is not perhaps the least unfortunate conse­quence, some of the most incomprehensible books ever written, have their moving cause” (Maine 1855, 28). For not only had the Roman Empire been sustained by the notion of a single undivided source of sovereignty located in the Patria potestas, so too, for all the elements of contractualism present in medieval ideas of kingship, had all the medieval empires, from that of Charlemagne to that of Charles the V, all of whom had styled themselves as the heirs to Rome. “It is a consideration well worthy to be kept in view,” wrote Maine,

that during a large part of what we usually term modern history no such conception was enter­tained as that of “territorial sovereignty.”. The world had lain for so many centuries under the shadow of Imperial Rome as to have forgotten that distribution of the vast spaces comprised in the empire which had once parcelled them out into a number of independent common­wealths, claiming immunity from extrinsic interference, and pretending to equality of national rights. (Maine 1917, 61)

Furthermore, it was possible to understand the natural law - or what Maine called “the common law of the world,” on which the ius gentium had rested - as, based, in effect on the assumption that the whole of “humanity” itself was nothing other than a single kin group. And it had been on the basis of this that Antoninus Pius had taken for himself and his descendants the title dominus totius orbis. This had, in effect, been the true legacy of Caracalla. The modern attempt to establish what Maine called “national sovereignty,” had, therefore, been, as he phrased it, nothing more than an “endeavor to climb within the region of an equal law” so as to escape from “the common law of the world” (Maine 1917, 28). In the modern inter-na­tional world indivisibility could only apply to national sovereign states. It did not, in Maine’s words “belong to International Law” (Maine 1888, 58; on the question of divided sovereignty, see Keene 2002). For Maine, and all international jurists of the nineteenth-century, it became possible to imagine a regime linking the advanced commercial nations of the world, in which sovereignty would be similarly shared in the pursuit of a peaceable union created out of common interests, at least among the self-styled “civilized” nations of the world.

From this perspective, the Antonine Constitution had, in effect been the culmi­nation of the first sustained attempt to create what Immanuel Kant called a “univer­sal monarchy,” something which, in his view, could only ever lead to the “grave­yard of freedom” and a “soulless despotism” (cf. Muthu 2003, 172-20). Modern international society, by contrast, was meant to replace empire by a “law of nations” premised upon the possibility of the co-existence of equal, but diverse, forms of citizenship. So far, however, the only modern international order to have attempted anything like this is the European Union. The ill-fated Constitution of 2004 defined European citizenship, which in principle all members of the Union now enjoy, by saying that “every citizen of a Member State is a citizen of the Union, and enjoys dual citizenship, national citizenship, and European citizenship.”¹⁷ This does not explain quite what the new legal order of the Union is (or was in 2007) intended to be. But it does neatly sum up what, the Antonine Constitution was not.

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