Law and Empire

[I]n England and elsewhere, men, when they wrote about serious mat­ters, even when they wrote about their property and their business, when they drew conveyances or wills, generally wrote in Latin.

If we are in a hurry to get to the beginning we shall miss the path. Against many kinds of anachronism we now guard ourselves. We are careful of costume, of armour and architecture, of words and forms of speech. But it is far easier to be careful of these things than to prevent the intrusion of untimely ideas. In particular there lies a besetting danger for us in the barbarian's use of a language which is too good for his thought. Mistakes then are easy, and when committed they will be fatal and funda­mental mistakes. [...] The most efficient method of protecting ourselves against such errors is that of reading our history backwards as well as forwards, of making sure of our middle ages before we talk about the “ar­chaic”, of accustoming our eyes to the twilight before we go out into the night.

F.w. maitland, �The Corporation Aggregate' (1893); F.w. maitland, Domesday Book and Beyond (1907)^[4]

The first challenge faced in the conceptualisation of a collection of chapters roaming across such a long period of history is one of language. What is it that we mean by law and legal thought? Respecting the nuances and topics of study that vastly differ from chapter to chapter, here will not be the place to stipulate the outlines of an authoritative glossary of terms, but rather to propose a new framework that accommodates multiple definitions within the western legal tradition. It would seem a sensible starting point to promote an appreciation of legal thought not as something that should (or can) be seen as merely a strand of political thought, but as something that has evolved uniquely as a body of ideas owing to its adaptation by individuals whose work takes place within certain procedural and jurisdictional confines, and whose motivations are often attached to particular interests.

There are a number of ways to find law in history before the triumph, within Latin and beyond it, of concepts like lex and ius. Judicial offices can be sought out and found - in a manner not unlike the orientalists and philologists who worked upon �pre-modern’ populations, as Naveen Kanalu shows in his chapter. Once we have some evidence of the presence of judicial offices in the past, from there it can be seen how institutions and conventions were developed to bind the holders of these offices to norms of practice and procedure. For exam­ple, as Alexandre Loktionov discovers in his chapter, there were a number of officials within Old Kingdom Egypt who were regarded as the �directors of the broad courts’ (hrp wsh.t). Then, during the period of the Middle kingdom, Egypt was overrun with judicial officeholders, each of them seemingly more inter­ested than ever before in the transcription and analysis of precedents. By note­worthy coincidence, this was the very same period that witnessed the emer­gence of a wholly new concept: hp (which is conventionally translated as �law’).

An Athenian language of law developed in antiquity as well. And, as Alberto Esu shows in his chapter, this language was often made to correspond with recognisable distinctions constitutionally made between their own statutory instruments. For the more substantive, permanent, and general norms of the great law-givers, the term nomoi was reserved. And for the more spontaneous and fleeting enactments of the Council or Assembly, the term psephismata was reserved. What Esu reveals is how the graphe paranomon developed as a form of judicial review whenever there was a need to defend the principle that a nomos was superior to a psephisma.

Away from language, another way to find law is to concentrate on moments of conquest, expansion, incorporation, and subjugation, for each of these pro­cesses required peoples and properties to be allotted into particular categories. This is seen in a number of chapters in the first half of this book. In his chapter, Clifford Ando explores the use of treaties and public and interpolitical instru­ments in the â€?Republican empire’: an entity that expanded into the eastern Mediterranean to confront the Greek poleis as well as other â€?territorial units of rule’ during what he terms the â€?provincialisation phase’. Centuries later, as Hal­cyon Weber reveals in her chapter, Justinian (527-65) had to balance carefully indeed between accommodating and obliterating the customs of his new east­ern subjects when he meted out the law. What became the Byzantine Empire - built upon Justinianic foundations, but given a Hellenic faςade - was inevitably confronted with conquerors from its own â€?east’. As Zachary Chitwood discovers, Arab-Islamic invaders from Egypt, Palestine, and Syria prompted the develop­ment of a new legal status for Muslim subjects that influenced (and was influenced by) a form of subjecthood that was just as suitably applied to non­Orthodox Christians.

In these places, and various other places visited by the authors throughout this collection, law is always to be seen when the encapsulation of individuals from diverse backgrounds within new jurisdictions takes place in periods of political and economic disorder: sometimes resulting from the expansion or contraction of a particular polity, or otherwise resulting from technological de­velopments in the fields of transport, military, or communication across geog­raphies. In such moments, legal ideas and institutions are pliable in the minds of practitioners, scholars, administrators, and anybody else comporting to de­velop and extend arguments from within (or otherwise In direct view of) formal enquiries.

If we are to look for our beginnings along the coastline of the Mediterrane­an, starting, as this volume does, with Egypt and Athens before eventually tak­ing in more of the world around that sea and its tributaries, then - at least by the time that we reach the end of antiquity - it becomes impossible to escape the overwhelming legacy of the ius civile of the Romans. There is no denying its importance. But if Roman law - its proceduralism, its substance, and most of all, the language of Latin in which its rudiments were conveyed most purely - must necessarily prove important in the course of a book about the expansion and contraction of polities, it should not always be the only frame.

In seeking to recuperate more expansive and intellectually formidable bod­ies of ancient and medieval legal thought, this collection is also designed to challenge a number of studies of law and empire that are wilfully framed in such a way as to discredit or disregard anything that happened before moder­nity. For several decades now, legal historians and scholars of international law have laboured to see some of the procedural, political, cultural, or discursive aspects of law at work in empires and colonies, but their overwhelming prefer­ence for the period between 1450 and 1950 imbues much of this work with a teleology that still runs the same old line from �black legend' to �human rights'. Adherence to this kind of periodisation has discouraged attempts to identify some of the intellectual attributes that had been developing within legal thought to deal with foreign individuals and territories for over a millennium before the earliest colonial �encounters' and �cultures' described by historians and international lawyers from the late 1990s onwards.^[6] Certainly, a number of interesting interpretative trends have come to animate this new scholarship.

Narrative trends such as these risk having to conform to the same kind of fallacy that is all too common in research grant proposals and paperback book blurbs: this is the proposition that all we see that is �messy’ about early legal modernity gracefully unfolds (with such surprising seamlessness as to leave readers befuddled for never having seen it that way before) into a postmodern present where it simply goes without saying that our virtues are superior to those of our forebears. In their own ways, each chapter in this volume chal­lenges this view of legal history. Here it is called for more engagement, but with a greater sense of awareness over long periodisations, with law both on its own terms and also in relation to the evolution of empires and colonies. It is com­plementary because an experiment of this kind entails a reduction of regard for conventional blocs of history, and thereby some appreciation of the general modes of legal reasoning across epochs and peoples. This leads to the discov­ery that precisely the same modes of legal reasoning could be equally as perti­nent to the �jurispractice’ of localised settings worked out on the fringes of em­pire �on the ground’ as they were to the scholarly literatures developed in the language of Rome within the libraries and universities of Europe.

As with �law’, it can also be difficult to settle upon a definition of �empire’. In the early modern historical literature, it tends to be used in a socio-political­territorial sense of the word with which most scholars in the contemporary moment will be most familiar: one empire = one metropole + several colonies. But this is not necessarily an understanding of the word that ancient and medieval legal thinkers will have had in mind when they invoked the language of imperium. Still harder is our task when attempting to transpose both the word and the concept into pre-Roman ideologies of expansion and domina­tion. The �quasi-empire’ of Old and Middle Kingdom Egypt, as described by Loktionov, was a polity that was highly centralised, before then it became de­centralised, and finally it recentralised once more. And, throughout these changes, it was never always clear whether the centrepiece of that empire pre­sided in a recognisably �sovereign’ (or even a �cosmic’) shape or form. In Ath­ens, as Esu’s chapter shows, empire belonged to no single individual, but rather belonged to the city or the polis itself, buttressed by an alliance of polities, against an alliance of hostile polities, amid the catastrophe of �Social War’. When, eventually, Republican Rome expanded into the eastern Mediterranean region formerly dominated by Athens, the Romans themselves believed them­selves to comprise an empire of sorts. Their Republic was a composite, expan­sionist, and war-making regime, as Ando shows in his chapter.

But none of this relates to empire in the special sense of the term that is commonly associated with the period following the Principate and Dominate, which now requires some comment. To certain kinds of Romanists (if not, to pedants), this volume will only really appear to arrive at an �age of empire’ when we are met with a succession of Roman imperatores - of whom Justini­an was arguably the most important of them, as Weber reminds us in her chapter.

What, then, was imperium to the Romans? In the Republic, imperium con­veyed the ability to command. Implicit to the word was an expectation that others will observe and obey. It invoked a diverse range of possible meanings: it was often assigned a rhetorical or romantic function to laud the territorial boundaries of Rome (imperium orbis terrarum) or its people (imperium populi Romani); and it was mobile, often appropriated by governors, magistrates, and others away from Rome, in control of soldiers at war and faced with all the at­tendant exceptions from ordinary law that their campaigning entailed (impe­rium maius in contrast with ordinary imperium; imperium militiae in contrast with imperium domi).^[7] Within the context of the central administrative system, a more legalistic meaning was applied to imperium to convey the delegation of office. In this specific register, imperium was used to convey an assortment of public powers of supreme command and jurisdiction, which came to be vested in the higher offices of state by the late Republic.^[8]

As juristic authorities gained greater recognition among the political classes and were consulted more consistently by the rulers of Rome, so did the juridi­cal understanding of imperium appear to become more sophisticated by meas­ures. Divestment from the senate, along with corresponding constitutional changes during the Principate period, served to intensify the need to define the collation of all powers attributable to the very highest office of state (the im­perator or �emperor’). What followed from that was the need to determine the extent to which this kind of imperium could be delegated to magistrates. In this context, Ulpian (170-223) distinguished imperium into mixtum and merum: mixtum conveying the imperative to exercise jurisdiction over property and to establish lesser judicial offices for the upkeep of order, and merum the pure imperative to wield the �power of the sword’ for the preservation of peace.^[9]

The rising importance of imperator during the Dominate period from late in the third century through to the deposition of the last western emperor in 476 provided for plenty of ongoing interest in the office within Roman constitu­tional thought. By the time of Justinian, Roman law recognised only one im­perator, and that was the office he held, preoccupied though he was, as Weber uncovers in her chapter, with the peculiarities and pluralism of the incohesive east. Justinian derived his imperium and potestas from the people he ruled, without which he could never enjoy a legislative and judicial power - and discretion - that was inferior to none.^[10] This was imperium in the same sense of office as Ulpian (and others before him) had sought to define, but the term could still just as easily convey the administrative machinery coalescing around the emperor. In other words, within Roman legal thought at the very moment it survived and began to outlast the empire of Rome itself, imperium conveyed both the highest office of government and the expectation that it entailed the delegation of essential public duties.

Organised religion adds a final ambiguity to the story at the very moment that late antiquity prepares to give way to the early middle ages. After Theodo­sius orchestrated the abandonment of polytheism and made Christianity the state religion of the Roman Empire in 380, he and Ambrose, the bishop of Milan, endured an awkward co-existence, never quite getting to the bottom of disagreements over the separation of their spheres of authority, the ownership of churches, and the ferocity with which non-Christians should be persecut- ed.^{[11] [12] [13] For centuries to come, popes, bishops, and priests would begin to stake the claims of the institutional church to the essence of imperium, causing much resistance from emperor-kings, kings, and princes in turn. This classic story provides the background to Tiziana Faitini's chapter, which sheds light on a till-now little-known aspect of this debate: the source and meaning of the authority behind the edict of Augustus (found in Luke 2: 1-2) to �register the whole world' - and corresponding questions over the extent to which Christ, himself, was an emperor.}

By contrast, in the Byzantine East, basileus (βασιλευς) became the more ap­propriate term to convey the highest office of state, imperator being just one of the earliest of many hundreds of legal ideas of Roman conception that were made to undergo translation and paraphrasis (παραφρασις) from Latin into Greek. In Constantinople, this was an office whose holders were often fond of appropriating elements of priesthood. Some moved to dominate patriarchal elections and were unafraid of promulgating controversial new laws for the church and religious observance (activities which have inspired generations of historians to identify localised experiments with â€?caesaropapism')J² As Chit­wood shows in his chapter - as he also does in a recent and superb book of his - the importance of metaphors and analogies as heuristic devices for determining the best actions and obligations in movement between Latin Roman civil law and Greek Roman civil law is inescapable in key legal of tracts of the period?³

Each of the medieval chapters that follow Chitwood's contribution in this volume speak, in their own ways, to the lasting paradox of recognising a resid­ual imperium within legal thought long after the age of the great imperatores had passed. That is not to say that the imperator was dead in the west, but rather to admit that his power and authority could sometimes be ineffectual in the face of independent city-states, such as those for which the Italian region would become famous by the Renaissance. However, in the process of defining and defending their legal and political credibility, later-medieval jurists had to be carefUl not to be too roughshod when stripping back some of the credibility of the office of imperator, and more especially when the Church was looking fondly upon its holder. This was something Roland of Lucca, who revised some of the received legal wisdom pertaining to the emperor for the purpose of am­plifying the claims of the cities, knew only too well, as Emanuele Conte's chap­ter reveals. Alas, depending on which definition of �empire' one favours for this period, such efforts as Roland's could be anti-imperial and imperialist at the same time!

What matters above all is to see this trend here - the imperium of the im­perator increasingly challenged by the imperial ambitions of competing city empires - continuing apace for, in the process and as a result, Roman public law evolved. By the age of Bartolus of Sassoferrato, whole sections of Roman law provided for the possibility that cities like Florence and Pisa could excuse themselves from recognising any higher authority. And this undoubtedly influ­enced the shape that the ius gentium took on around this time, as Dante Fedele reveals in his chapter. Ius gentium, which continues to be regarded as the fore­bear of �international law', had many applications in the Middle Ages, as Fedele shows. Among other things, it became just another concept that was posi­tioned into place to oppose the universal sovereignty of emperor and to sup­port the divisio regnorum. Not until the fourteenth century, as Joseph Canning points out in his contribution, did the most sophisticated and comprehensive defences of the role of emperor appear in jurisprudence and political thought. By that time, however, the concept of imperium had served a number of in­triguing and �highly useful legal purposes', Canning reveals.

Of course, that debates such as these were taking place much earlier than the onset of an �age of imperialism' in the early modern period (whereupon most historical studies of international law take their starts) suggests that we need to look further back in time for our subject to have any coherence. Upon doing so, it quickly becomes striking that the very means by which medieval legal claims were rehearsed and hashed out - through a series of widely recog­nised modes of reasoning - appear to have already become entrenched within Europe by the end of antiquity.

Because empires - both the signifier, here, as well as the signified - continued to evolve and take a number of different forms throughout this period, the work of this volume is made all the more stimulating. Hence can be justified the variety (or eclecticism, you might say) of its approaches. Lorenzo Veracini's historiographical perspective upon the subject is perfectly sensible in this frame. Veracini reveals to us how it was that medieval conceptions of em­pire were later reimagined and contorted to suit the modern imperial and post-imperial mentalities of historians interested in law and legal institutions. As a result, we see the very same playfulness with which medieval Pisans ap­proached the ancient Roman concept of imperium being mirrored by the play­fulness of modern historians making their approach upon the medieval Pisan empire and its sea-born sovereignty, its own colonial appendages, and, of course, the ongoing struggle of the city with the universal sovereignty of the German emperor-kings.

The age of discovery and, afterwards, the early stages of modern European imperialism, corresponded with a renewed emphasis on the law of the sea (broadly defined). It is not surprising, therefore, that �empire’ in the early mod­ern period became so associated with a series of intellectual traditions of thinking about who should be performing what kind of actions, and making what kind of transactions with whomever else, on the sea or near its coasts. It was Mare Liberum (1609) that made Hugo Grotius such a well-known name at court, and in universities, in coastal western Europe, we remember. Providing a much-welcomed and expert re-reading of Grotius and the key editions of his most important works, Mark Somos emphasises, in this book, the importance of Grotius’s free trade argument, against which John Selden subsequently de­veloped a template for �imperial exceptionalism’. From this debate, Somos ar­gues, there emerged a tension that would for a long time characterise interna­tional law (and probably still does): a tension between liberalism and imperialism. The same dispute is locked onto by Matthew Crow in the next contribution to the volume. Crow’s chapter unravels a colourful story about the sea and its place in an imperial legal imagination, beginning with the likes of Justinian and Isidore of Seville, and tailing up, if somewhat surprisingly, into Thomas Hobbes’s Leviathan and Herman Melville’s Moby-Dick.

Reaching the early modern period, this volume sees empire take on a variety of forms. As Paul McHugh sees it, the British Empire �comprised a vast and sprawling hierarchy of office’. At the top of this hierarchy was a centralised Hanoverian crown, and dangling downwards from it were to be found a num­ber of highly localised exercises of the king’s prerogative by individuals facing up to the realities of mass dispossession and accumulation. The same charac­terisation applies to the African colonial context of my chapter, making excep­tion for the addition of the corporation as an imperial actor of sorts. Both in McHugh’s chapter and in mine, the �crown’ - as a constitutional source and embodiment of authority - is omnipresent in perplexing and inescapable, if not always obvious, ways.

Lest one still be of a mind that conflicting interpretations of �empire’ are overcome by the early modern period, one need only flick to the end of the volume to discover, in Joshua Smeltzer’s chapter, even more innovation with the concept - this time at the hands of Carl Schmitt. While Schmitt applied dif­ferent legal-political meanings to the terms imperium and empire, perhaps the most startling inflection taken on by both terms, as Smeltzer suggests, was a notion of unification through miscegenation. From Smeltzer’s chapter it clear­ly emerges that Schmitt, who was suspicious towards �Anglo-American’ forms of empire (characterised by assertions of indirect and economic control over non-European states), identified strongly, at least for a time, with a conception of the Reich (something achievable only through the �winning back’ [zuruck- zugewinnen], for Germany, of the �leadership’ [Fuhrung] of all Europe).

In the face of all this change and diversity in world history - and confronted with the abundance of legal and historical scholarship that exists in libraries today - it can be exhausting, at times, to locate intellectual continuities and comparisons, let alone to reflect on them. This collection has been put together to help the enterprising reader to find them. Sometimes they will be found in the most surprising places. Empires come and go, it will be seen. But many of the legal ideas and institutions that were used to create them endure. Else­where, I have argued in great detail that many of the same modes of reasoning that existed in the legal thought of antiquity can be detected in the legal thought of modernity, and all throughout the medieval period between those bookends. The way that I do this is to focus especially on the role of analogies, principles, and authorities in legal thought.^[14] To sum: analogies open the door to every other mode of legal reasoning, for the apprehension of like for like is almost always the default response to incomprehension; principles, presuming either the instinctive moral consensus of an audience or otherwise the possibility that moral consensus might be reached through persuasion, lend themselves to general rather than specific application; authorities are recalled, or, some sheen of authoritativeness is applied, whether by citation or adulation, whenever a revered law-giver, or source, or scholar of law is invoked to support a particular stance. Rather than repeating the same argument here, I propose it will be most illustrative - by way of introducing the following chapters more fully - to show how the same modes of legal reasoning appear throughout this volume.

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