PRELIMINARY REMARKS
When Clifford Ando asked me first to participate in a conference in Rome, and then to contribute to this volume, the topic under discussion gave me pause. As a historian of modern and contemporary law, I have of course had something to do with Roman law and I recall something of Antonine Constitution.
But how to plan a contribution - I quote the conference proposal - on the “echoes of the Antonine Constitution in early modern and modern Europe?” Besides, which echoes? What kind of links might be found? What conceptual frameworks could be used? In the end, however, both the conference introduction drafted by the organizers and my own unconscious have persuaded me to accept their kind invitation. What inspired me were some key issues - I might say a sort of common language - evoked by the conference proposal, namely Caracalla’s revolution, legal pluralism, the universalization of citizenship, a massive reorientation in political subjectivity and local structures, and the project of the European union as a superstructure. Certainly, these key issues challenge us but it is difficult to take as a starting point an event that has given rise to so many controversial interpretations. Santo Mazzarino in his L ’Impero romano said that on Caracalla’s constitution there were serious differences of opinion and a huge secondary literature.[481] The issue is thus a complex one in itself. How are we to assess the legacy of the Antonine Constitution? What, precisely, are we talking about? Should we talk about principles or forms or, rather, values? Can we talk about influences? As you can see, there is no shortage of questions.When I began my preliminary surveys of the secondary literature, I had my doubts as to whether it was possible or, indeed, appropriate to trace legacies of Roman universal citizenship as far as the nineteenth century (before the publication in 1910 of the Giessen papyrus) and, more specifically, as regards the French experience relative to the Code Napoleon.
Finally, I identified some elements which together might constitute a plausible morphological approach. As I shall shortly explain, we can isolate at least four points or structures, or discourses that allow us to adumbrate some kind of morphology. To begin with, there was the imperial dis- course.[482] Napoleon became empereur des Franςais at the end of 1804, while the first title of the civil code on citizenship (De la jouissance et de la privation des droits crvils) was approved between 1801 and 1803. Napoleon was already First Consul for life, but we know how prone he was in those years to emphasize the logic of monocratic power. Caracalla, an African emperor, and Napoleon, a son of Corsica, were alike fascinated - despite the marked differences in historical epoch - by Alexander the Great, and the relationship between Empire and citizenship certainly had a pronounced constitutional value.[483] The Treaty of Amiens (25.3.1802) did not check the consulate’s drift towards Empire[484] (and not just in Europe either: consider the reconquest of Santo Domingo, the reintroduction of slavery and the transfer of Louisiana from Spain to France).At the same time we can point to a second morphological structure: the relationship between the republican legacy and the idea of Empire with citizenship as key issue. In the Napoleonic era this relationship was clarified far more swiftly than had been the case in Rome in its agony, but this relationship has to be thoroughly analyzed.[485]
A third point then comes to mind, namely the relationship between the class of jurists and power, as concerns the full legitimacy of the Prince as legislator. In this case the morphological structure could be discerned in a very important phenomenon, that is, the massive development of bureaucracy and legislative patterns. The ius, under the Antonines, could no longer rule a respublica that had lost its boundaries. We may perhaps recall that when Caracalla was granting his constitution, Ul- pian began his Institutiones by emphasizing the strange definition of ius as “autem a iustitia appellatum.”[486] We can plausibly view the Napoleonic age as a very important turning point, involving a very strong expansion of bureaucratic logic and of the rule of the law.[487] Does not the famous Discours preliminaire of Jean-Etienne- Marie Portalis prompt much reflection about the relationship between ius, aequitas and lex? Does the process of construction of the Civil Code not give us much food for thought regarding this fundamental relationship?
My fourth and final remark concerns the debate surrounding citizenship/nation- ality and the Code Napoleon.
The French Civil Code may be seen as a strategic crossroad between the civil law and the framework of the new nation-state. It was necessary for legal pluralism to be reduced to uniformity and for it to attain universality through the architecture of the civil code. In a way the code Napoleon has been able to express something fundamental in the relationship between order and life. Its ontology and its ideology seem to evoke an anthropological subjectivity that, though novel, perpetuates the Roman law tradition. We again encounter a scaffolding, a morphology, originally fashioned by Roman law. Although not strictly comparable, the same questions loom large in both traditions.2.