CONTEXTUALISING ‘THE UNIVERSAL LAWS OF THE ROMANS': THE EARLY EMPIRE

Our problem is then: was Rome at all interested in producing a single juridical framework for the whole Empire, or at least for all Roman citizens living in any part of the Empire? Did they want Superinius Aquila of Cologne and Aurelius Bonosus of Carthage to live under the same system of laws?^[198]

Galsterer’s problem, as outlined in the quotation above, is central to the question of legal universalism under the early Empire: did ‘Rome’ seek to impose a uniform application of Roman law in the provinces?^[199] Supposing for the moment that our Graeco-Roman rhetorician, Ps-Menander, was right to imply that local law had been displaced by Roman law by the late third/ early-fourth centuries, does it necessarily follow that this was a consequence of imposition from above? In terms of private law (‘inheritances by heirs and other topics’), Ps-Menander’s Treatise I states only that the inhabitants of the Eastern cities made use of the ‘universal laws of the Romans’; it does not tell us that Roman private law was forced upon them by imperial officials, or indeed by any other kind of official.

Ps-Menander’s treatise, however, was composed after 212 CE and the promulgation of Caracalla’s Constitutio Antoniniana (an imperial edict granting Roman citizenship to almost all free inhabitants of the Roman empire).^[200] As such, the brief comments that Ps-Menander makes on the ‘universal laws of the Romans’ have been cited as evidence for the fact that Roman law was imposed on the vast majority of the free inhabitants of the empire, as a result of Caracalla granting them Roman citizenship.^[201] Roman historians and legal scholars from Mitteis onwards have suggested, to widely varying effects, that Caracalla’s Constitutio Antoniniana required large numbers of provincials to order their private relations with each other according to Roman law.^[202] Thus Ando, for example, states that: ‘Caracalla’s grant of citizenship to all freeborn residents of the empire in 212 CE will have dramatically altered the legal landscape: any and all earlier provincial edicts will have had to be entirely rewritten’.^[203] Having accepted some kind of necessary link between the extension of Roman citizenship and the ‘state’ imposition of Roman law, other scholars place Caracalla’s edict at the apex of historical processes that reach back into the Roman Republic.

How far, and how quickly, the new municipia picked up the ius ciuile is, then, an important question, and one which recurs again and again as Roman citizen­ship spreads across the Empire, right up to the aftermath of the Constitutio Antoniniana. One would like to know, in particular, whether Rome was proac­tive and dirigiste, enforcing the adoption of the ius ciuile and other provisions of universal application in the new municipia, or whether it was left up to the communities themselves to mug up on it as best they could.^[204]

Looking forward from the Constitutio Antoniniana, most scholars express doubts as to the success of Caracalla’s (supposed) attempt at legal universal­ism. As Yiftach-Firanko questions with respect to law in Graeco-Roman Egypt:

In 212 the Antonine Constitution turned the provincial population into Roman citizens. Formally, it subjected all its inhabitants to the precepts of Roman law. Yet did this change in status also mean a profound change in the legal practices in Egypt?^[205]

Virtually none of the vast secondary literature questions the premise that once an individual or community had been granted Roman citizenship, they were henceforth required to use Roman law to govern their private relations.^[206]

To assume that the Roman authorities aimed at the unification of law through the extension of citizenship is, in fact, one aspect of what Galsterer has rightly identified as ‘a tendency among the legal historians of the unifi­cation school [namely, Mitteis, Arangio-Ruiz, Wolff, and so on] to assign motives to the Roman state which are taken unselfconsciously from the modern national state as it developed in the nineteenth and twentieth centu- ries’.^[207] In reality, no state act obliged Roman citizens to use Roman private law.^[208] Citizenship should be understood rather ‘as an enabling mechanism, offering access to the judicial procedures and remedies of the society at dif­ferent levels’.^[209] The papyrological record, alongside other sources, certainly provides a wealth of evidence for individuals and communities engaging in numerous different ways with Roman private law, both before and after 212 CE; but the reasons why they did so need to be sought from below.^[210] Those who had more at stake than others in terms of land-owning and ‘elite’ socio­political status may have been more likely to seek out the remedies and protections of Roman law, or to be enmeshed in them already.

Caracalla’s grant of citizenship to virtually all free inhabitants of the empire would have certainly increased the number of individuals who had the right (ius) to make use of Roman law, qua citizens. Prior to 212 CE, however, there were also various types of legal mechanisms that gave ‘non­citizens’ the ability to make use of some Roman legal concepts and practices. According to Gaius’ Institutes, every individual was either slave or free: some were free by birth (ingenui) and some were made free through a grant of freedom (libertini or liberti, ‘freedmen’). A free man or woman was either a Roman citizen; or a ‘Latin’ (i.e., holding the ius Latii); or a peregrine, a foreigner or ‘alien’, who might in turn be a citizen of some other specific per­egrine community.^[212] As a class, Latins had some of the juridical iura (rights) of full citizenship: in particular the right to make a contract with a Roman which would then be enforceable according to Roman law (ius commercii). As Woolf states: ‘In this, and in other respects, Latins had access to Roman law, even if Roman law was in practice probably interpreted in the light of local traditions’.^[213] Nor were foreigners (peregrin!) entirely outside the Roman legal system. Ius gentium (‘law of the peoples’) referred to ‘those legal habits which were accepted by the Roman law as applying to, and being used by, all the people they met, whether Roman citizens or not’.^[214] The elaboration of this concept enabled jurists to define certain interactions between per­egrines, Latins and citizens as being under Roman jurisdiction: for example, peregrines could acquire ownership through ‘natural’ modes of acquisition (traditio, occupatio, accessio); slavery was also iure gentium, all peoples had it - although there were aspects of the (Roman) law of slavery which were pecu­liar to the Roman ius civile alone.

Certain historical developments within Roman law and legal practice were peculiar to the city of Rome; one such fundamental development was the ius honorarium, a branch of law developed by the urban praetor (and other magistrates at Rome) in order to ‘support, supplement and correct the civil law’.^[216] In theory, the edictal remedies developed under the authority of the urban praetors were only valid for Rome and its environs, because this was the limit of the urban praetors’ own jurisdiction. It thus became necessary to develop mechanisms through which Roman citizens throughout Italy and the provinces could access important praetorian innovations, as and when they were developed (for example, the praetorian remedy bonorum possessio, ‘possession of goods’).^[217] This was partly achieved through imperial constitu­tions, juristic commentary and responsa, and partly through the actions of imperial officials within the provinces. This is a much contested topic, but provincial governors - or magistrates of at least praetorian standing - were apparently responsible for promulgating provincial edicts, primarily for the benefit of Roman citizens within their own jurisdiction.

According to the beneficial ideology - which advertised power relations of mutual benefit to both ruler and ruled - emperors were the ultimate bestowers of gifts and largesse, as well as dispensers of justice.^[221] They regularly granted general acts of amnesty in criminal matters (indulgentia) as well as dispensing special legal privileges and exemptions to individual petitioners on a daily basis. In terms of private law (inheritance, family, prop­erty, contracts, commerce, and so on), petitioners throughout the Roman provinces also looked to the emperors and imperial officials for decisions on individual situations and case specific responses.^[222] They thus contributed to, in the words of Fergus Millar, ‘the formation of a body of rules which were in principle valid throughout the Empire’.^[223] As Millar also stresses, however, ‘the body of rules thus created was not so much enforced by any apparatus of government as available for use by interested parties making claims or bringing suits, and then by officials, or Emperors, giving rulings in response’.^[224] The question for us, then, is not so much whether ‘Superinius Aquila of Cologne’ and ‘Aurelius Bonosus of Carthage’ had the same system of laws enforced upon them by Rome; but rather why ‘Superinius Aquila of Cologne’ or ‘Aurelius Bonosus of Carthage’ used Roman law, as and when they did, in any specific context or situation.

How and to what extent any given individual, before or after 212 CE, either could make use of, or would want to make use of, Roman private law would have depended on a combination of various economic, politi­cal, cultural and socio-legal factors. What kinds of access any specific individual, group or community had to (Roman) legal advice, to notaries and/or to Roman legal officials needs to be considered.^[225] Juridical capac­ity, gender, and socio-economic status are also relatively obvious deter­minants (although how they functioned in practice under both the early and later empires is often less than clear).^[226] Neither juridical capacity nor socio-economic status should be thought of as static phenomena within an individual’s lifespan: slaves could become freedmen; a filius familias could become sui iuris; honestiores and potentiores could suffer a loss of status, and so on. Patronage was fundamental, alongside the expectation that elite social status would be given its proper due within Roman legal processes.^[227] Individuals, and groups, would also have weighed the costs and benefits - in terms of time, money and social status - of using Roman private law, rela­tive to any specific situation.^[228] Lodging a formal case before a Roman official was a particularly costly option: alongside the payment of necessary tips and fees to various officials, petitioners had to reckon with the possibility of a lengthy wait for justice - P. Euphrates 1 (246 CE) registers a complaint from the villagers of Beth Phouraia (Syria Coele) that they had waited for over eight months in Antioch for a decision from the governor.^[229] An appeal to an imperial official, or a general reference to ‘the law of the emperors’ in a petition, however, could function as a marker of elite status and/or as a deliberate advertisement of loyalty to imperial authority. To use an example from the later Roman period, Joelle Beaucamp has demonstrated from papyrological evidence that the elite in Justinianic Egypt were more likely than those lower down the social strata to invoke substantive Roman law principles and imperial constitutions, throughout their legal dealings. She concludes that: ‘closeness to Imperial law was therefore connected to social conditions’.^[230] The Byzantine Egyptian elite may have had better access to imperial law, in the sense of better access to legal expertise, but they also had sociological reasons for aligning themselves with texts of law promulgated by the emperors.

Existing social structures and traditional local practices would also have influenced the way in which individuals engaged - or not - with Roman law principles and/or practices. For example, justice could be sought from the god(s), via a local temple, priest or holy man or through ‘self-help’ activities such as cursing.^[231] More generally, within any given community, disagree­ments may usually have been heard before a local ‘big man’, for example a senatorial landowner, a tribal chief, or community elder(s). Depending on the context or situation, local ‘big men’ might have intervened in disagree­ments and disputes with some awareness of Roman legal principles and practices (such as, for example, formal arbitration). It is just as likely, on the other hand, that a local big man would seek to resolve a dispute using local knowledge alone and employing general socio-cultural norms - thus provid­ing a type of ‘justice’ in which the parties to the dispute were more likely to acquiesce.^[232] The social density of any given community - in a city, village, rural area, ‘great estate’, and so on - could also determine whether any use was made of Roman legal procedures or institutional structures.^[233] As numer­ous modern studies in social anthropology, micro-economic theory and law have shown, socio-legal order can be maintained in a ‘tight-knit’ community or group with little or no recourse to formal law. In a 1991 monograph, for example, Ellickson showed how contemporary boundary and cattle trespass disputes in Shasta County, California were settled in the context of long- established and continuing social relationships and groupings, highlighting the role of ‘strategic’ gossip, the threat of violence and the appeal to ‘com­munity elders’.^[234] This perspective also provides a crucial context for the development of the Christian ‘episcopalis audientia’, the ‘bishop’s hearing’.^[235] Finally, violent self-help should not necessarily be thought of as simply an alternative to Roman law and state-sanctioned coercion. Imperial officials took breaches in public law and order very seriously, if and when they came to their attention; ‘private’ violence, however, could also work in conjunc­tion with Roman law. For example, an individual might attempt to enforce a property claim by violently seizing possession as a prelude to lodging a court case for rightful ownership; or seek out a Roman legal remedy for posses­sion, and then use private violence to enforce it. All of the various factors discussed so far could change over time, as well as differ from one locality to the next - and each, of course, needs to be understood as operating in relation to the others, in any given context.

When we do find individuals using Roman law - whether in Rome or the provinces - that engagement could take place on a number of different levels, each implying various types of legal knowledge. First, in the broadest sense, Roman concepts of property, contract, trust, inheritance and so on were not just ‘legal’ concepts, they were also part of a broader socio-cultural repertoire.^[236] Hence, for example, we find the technical Latin phrase sine dolo malo translated into Greek and inscribed on ‘confession inscriptions’ in Lydia and Phrygia (first to third centuries CE).^[237] Or we find early Christian authors, such as Tertullian and Cyprian in North Africa, developing theolog­ical ideas by working through Roman legal metaphors.^[238] Second, on a more specific level: ‘Law may be used as a cookbook from which we learn how to bring about desired results - disposing of property, forming a partnership, securing a subsidy’.^[239] Until at least the Age of Justinian, there was no clear set of authoritative Roman legal ‘cookbooks’ to work from: hence the ‘recipe’ being followed would have differed according to access to legal advice, local practices, specific situations, and so on. Moreover, as the legal anthro­pologists Franz and Keebet von Benda-Beckmann explain, with reference to modern ethnographic studies:

In each arena actors make more or less constrained choices. They may avoid any use of law, opting for non-legal means. They may opt for one law and exclude others; they may also use more than one law. They may sharply distinguish legal systems, or efface their boundaries, or develop hybrid forms. Most of the time, people just go along in their daily routines without reflecting on [the] law that has shaped these routines, their social relationships and attitude [...]^[240]

Seen from the perspective of the individual actor, then, specific Roman legal forms could be used to transform an everyday occurrence - the making of a promise, the offering of a loan, a gift of property - into something that could then be viewed (plausibly) as a Roman ‘legal’ act, whether by other parties to the transaction, or by an imperial official, or in a Roman court, and so on. This is perhaps the situation that we find in the first-century BCE Tabula Contrebiensis, in which a judgment is preceded by two technical Roman formu­lae, despite the fact that the ‘underlying dispute did not rely on Roman law’;^[241] or, similarly, with the evidence for third-century CE Egyptians inserting Roman stipulatio clauses into their ‘Greek’ contract documents.^[242] Individuals might also make use of Roman institutionalised practices by having a con­tract drawn up according to a specific Roman structure, maybe employing specialist notaries or copyists where available, whilst expressing the contents of that document in non-technical Latin, or Greek, or Aramaic, or Hebrew, and so on.^[243] Imperial constitutions and juristic writings had to develop

various principles to decide upon the ‘legality’ of such agreements, if and when they were tested in the Roman courts. Individuals might equally opt for a ‘Roman’ procedure, such as appointing an arbitrator ex compromisso (by formal agreement), at the same time as deciding the dispute itself according to ‘local’ norms.^[244] In all these examples, the focus is on what any given actor’s particular use and/or adaptation can tell us about how Roman law functioned within a specific ‘local’ framework, or even just with respect to a single case.

Those who went to the trouble and expense of litigating a dispute through a Roman court (or courts), or petitioning a Roman official or emperor, would be judged, in general, according to Roman legal principles. Emperors, jurists and Roman officials under the Early Empire did take some established customs, ‘ancient practices’ and even ‘peregrine laws’ into account. For example, an imperial rescript promulgated on 26/27 March, 224 CE informs a certain Aper, a veteran, that whether the ruins of a house could be legally turned into a garden or not (thus changing the original land use) would be decided by the provincial governor on the basis of ‘what has usually been done in the town in similar cases’.^[245] Determining certain long-established local practices might also be essential to deciding cases according to Roman legal principles; for example, as in C.3.34.7 (286 CE), which refers to respect­ing ‘ancient practices’ and ‘established customs’ in determining the right (servitude) to take water. In fact, according to Ulpian’s commentary on the praetorian edict, taking the customary practices of an urban neighbour­hood into account could be an essential part of aequitas (equity).^[246] Certain practices, however, could be judged by the emperors and their officials to be ‘non-Roman’ - as and when they came to their attention.^[247] There is also (limited) evidence for some petitioners addressing questions to the emper­ors with ‘Greek’ legal principles in mind. Other petitioners had done their Roman law homework, or else had found someone else to do it for them: a 294 CE rescript, addressed to a certain Fronto, instructs him to ‘cite the response of the jurist Papinian and the opinion of others whom you [sc. Fronto] have mentioned’ and to set up the defence of fraud (C.5.71.14). A certain Mucianus had likewise apparently copied an opinion of Papinian into his petition to the emperors (C.6.37.12, 240 ce). In general, classical jurists - addressing themselves perhaps to a particular ‘elite’ top section of society - agreed that those who made use of Roman law could not then plead ignorance of Roman law as a defence. Ulpian, again commenting on the pra­etorian edict, specifically on time limits for claiming praetorian possession of an estate, goes further:

Pomponius says that the knowledge which is necessary is not such as is exacted from persons learned in the law, but is what anyone can acquire, either by himself or through others; that is to say, by taking the advice of persons learned in the law, as the diligent head of the household should do.^[248]

In sum, a culture of ‘professional’ Roman law was by no means irrelevant to legal practice within the provinces of the empire, but it was not determinant of it either. Even if we were to suppose that individuals had unlimited access to relevant jurisprudential texts and legal expertise (in some cases, a big ‘if), we still need to acknowledge what Wickham terms ‘a constant dialectic between local practices and organized legal knowledge’.^[249]

Since at least Mitteis and Schonbauer, Roman historians have in fact acknowledged the existence of other types of ‘organized legal knowledge’ existing alongside Roman law in certain provinces of the early Empire: ‘Greek law’, ‘Egyptian law’, ‘Jewish law’, ‘Nabatean law’, what Meleze Modrzejewski terms ‘Hellenistic law’, and so on.^[250] Much of this scholar­ship, however, tends to be based upon what Lauren Benton (in a different context) describes as a ‘stacked legal systems or spheres’ model: a model that imagines a number of ‘ordered, nested legal spheres or systems’, with state law, in our case to be understood as Roman law, ‘capping the plural legal order’ through its ability to establish a monopoly on violence.^[251] Benton argues that this ‘stacked’ model is fundamentally flawed because individuals on the ground engage in ‘rampant boundary crossing’ across legal systems or spheres:

Legal ideas and practices, legal protections of material interests, and the roles of legal personnel (specialized or not) fail to obey the lines separating one legal system or sphere from another. Legal actors, too, appeal regularly to multiple legal authorities and perceive themselves as members of more than one legal com­munity. The image of ordered, nested legal systems clashes with wide-ranging legal practices and perceptions.^[252]

This argument can be developed with respect to the first-century ‘Babatha archive’, a collection of papyri, found in the Nahal Hever cave in the Judaean desert, consisting primarily of legal family documents including contracts of loan, marriage contracts and deeds of sale and gift - variously written in Jewish, Greek, Aramaic and Nabatean Aramaic languages. Babatha’s archive (and the accompanying archive of Salome Komaise) has generated a great deal of scholarly discussion concerning what type of law might have governed the legal situations envisioned in these papyri: whether it was Jewish, Rabbinic, Hellenistic, or Roman.^[253] The question of the ‘legal identity’ of the Babatha archive has also been linked to questions con­cerning the ‘identity’ of Babatha herself: was she more Jewish, Hellenistic or Roman? Comparatively little work, however, has been done on how Babatha might have attempted to strategically range across different types of law and legal institutions in order to achieve an outcome favourable to her interests. A 2005 essay by Satlow, focusing on marriage payments and succession strategies in the Judaean desert documents, begins to explore this alternative perspective:

I have tried to avoid explaining the papyri in the light of Rabbinic or ‘Hellenistic’ law or practice. I have done this not because I believe, a priori, that such com­parisons are methodologically unsound; indeed in this particular case the rabbinic material nicely illustrates and confirms some of the suggestions offered here. Rather, my goal has not been to see how ‘Jewish’ or ‘Hellenistic’ Babatha and her friends were, but to try to understand a family at work, negotiating the mundane and treacherous terrain of money and familial relationships.^[254]

Likewise, Elizabeth Meyer and Hannah Cotton have both drawn attention to the fact that:

Babatha was a woman who fled to the Nahal Hever cave with no fewer than three Greek translations of the Roman formula of the actio tutelae in her leather pouch, so it is easy to believe that she was investigating the legal possibilities of the Roman legal system in Arabia for the likes of herself, and trying to exploit the opportunities it offered to the best of her abilities.^[255]

Babatha’s use of both Rabbinic and Roman law thus becomes evidence for (her access to) a kind of ‘multi-legal’ knowledge or at least a ‘multi-legal’ awareness - through which she attempted to achieve certain specific goals.^[256] Franz von Benda-Beckmann has developed a similar argument on the basis of ethnographical fieldwork in contemporary Western Sumatra; working in the field, legal anthropologists were:

forced to contextualize, [to] see how different categories of actors were influenced by, and made use of, different legal bodies in different contexts of interaction. In order to do this systematically, they had to dissociate categories of actors from the categories of law to which the actors ‘belonged’ by normative construction, that is, the farmer from his/her customary law; the bureaucrat from his state law; the religious functionary from his religious law. Only then could they see that farmers used, or were influenced by, state law; bureaucrats by traditional law etc. Empirical research further showed that the relations between the elements in a plural legal whole could be different; people could distinguish legal subsystems and choose between them, or accumulate them, or create new combined legal forms and institutions, while other actors, in other contexts, would act differently.^[257]

There seems to be real potential for developing this kind of legal anthro­pological methodology further with respect to the much broader vista of legal practice revealed to us by papyrological evidence, epigraphical data and other first to third-century sources (including ‘Patristic’ texts). This approach leads us firmly away from the idea of an empire-wide imposition of Roman law potentially or actually governing the legal behaviour of Rome’s subjects; rather, it will reveal them, as groups or individuals, negotiating the structures of Roman law and choosing - in so far as they were able - to engage with them, or not.

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