ROMAN LAW AND THE LATER EMPIRE: DEVELOPING A LEGAL ANTHROPOLOGICAL APPROACH

I ask of your illustrious knowledge, whether there is one law for advocates and another for retired advocates, one equity for Rome and another for Matar?^[258]

These questions, written in an early fifth-century letter addressed to a practis­ing advocate by a retired advocate (ex togato), were intended to be understood rhetorically: according to the questioner at least, when two such learned individuals had a dispute with each other, their sense of equity, of ‘fairness’ and right dealing, should be the same whether the conflict unfolded at Rome or in the environs of their home town of Matar in Africa Proconsularis.

What is most visible in the late Roman legal evidence is, naturally, the product of the ‘central’ imperial government (imperial constitutions and law codes), and the imperially-sponsored institutional Christian church (especially with respect to the development of a specific ius ecclesiasticum and the early beginnings of a ‘canon law’).^[260] Moving from the principate to the dominate, we seem to shift from a legal world of ‘citizens’ to one of ‘citizens and subjects’: ‘As the Roman Empire expanded, the state became ever more intrusive in seeking to resolve the disputes of its citizens... The judge under the Empire in the provinces was an extension of state power and a symptom of the expanded role of the state in the lives of its citizens and subjects’.^[261] This is a trend that appears to culminate in the sixth-century emperor Justinian’s insistence that he alone is the sole interpreter of the law and the source of both Roman and ecclesiastical jurisprudence, alongside his confirmation of the canons of the Christian church themselves as civil laws.^[262] However, even if, for the sake of the argument, we were to equate all late Roman law with imperial law, a ‘legal anthropological’ perspective is still essential to under­standing how that law functioned in practice.

Even if we restricted our interest to the impact of Roman law, we would have to recognize that its nature and extent depended on the choices of the members of different local communities (whether litigants, lawyers or judges) as to how to approach law, and what law (if any) to use [...] These were cultural choices, whether conscious or unconscious, made inside locally specific realities; the social processes that generated them must be studied before anything else. There was everywhere, furthermore, a constant dialectic between local practices and organ­ized legal knowledge: each affected the other. What we need to study in order to understand this dialectic is how people approached courts and arbitrations, with what expectations, and which strategies they used to get their way.^[263]

This kind of legal anthropological approach foregrounds individual parties, their perceptions of action and the choices that they make within any given socio-cultural situation, whilst still taking account of law codes, ‘state’ insti­tutions and legal officials where relevant. It thus contrasts with what the legal sociologist Marc Galanter characterised as a legal-centralist perspective: ‘The view that the justice to which we seek access is a product that is produced - or at least distributed - exclusively by the state [...]’.^[264] If we set to one side a (nineteenth- and early twentieth-century) state-based theory of law that puts official law codes, formal legal institutions and the state at the core of all social order, then the idea of legal universalism under the Later Empire has the potential to look quite different.

What is at stake in developing a legal anthropological approach, rather than adopting a legal-centralist perspective, can be demonstrated via a brief analysis of the concept of ‘legal practice’ itself. If we adopt a legal-centralist starting point, then exploring legal practice inevitably involves some kind of questioning as to how far the ‘law-in-the-books’, or indeed unwritten customary law, relates to the law-in-action.^[265] Exploring legal practice thus becomes an exercise in ‘gap analysis’: does the law on the ground match the official law as promulgated, or at least as transmitted, in the books? If not, how big are the gaps and why might they exist?^[266] Late Roman historians, for example, tend to ask to what extent late Roman imperial constitutions - or even the canons of church councils - were applied in practice, and whether they were used correctly or not; in other words, we go to the ‘legal’ texts, then we look at law in practice, we inevitably find gaps, and try to account for them.^[267] A ‘legal anthropological’ approach, on the other hand - where we try to understand legal processes as socio-cultural processes - does not neglect the ‘law-in-the-books’ (whether imperial codes, juristic writings), but seeks rather to contextualise that ‘state’ law in terms of a much broader understanding of legal practice.

I am not trying to turn legal centralism upside down and place indigenous law in the position of primacy. Instead I suggest that the relation of official and indig­enous law is variable and problematic. Nor do I mean to idealize indigenous law as either more virtuous or more efficient than official law. Although by defini­tion indigenous law may have the virtues of being familiar, understandable, and independent of professionals, it is not always the expression of harmonious egalitarianism. It often reflects narrow and parochial concerns; it is often based on relations of domination; its coerciveness may be harsh and indiscriminate; protections that are available in public forums may be absent.^[271]

A legal anthropological approach, then, acknowledges that rule-systems and their measures of enforcement were effectively spread throughout Late Roman society. Its starting point would be an attempt to reconstruct the field of late Roman legal practice from the perspective of individual actors, groups or communities, given their respective ‘horizons of the possible’: who they were, where they were and what kinds of indigenous ordering structured their lives - as well as their access to different types of formal legal ‘knowledge’ and imperial institutional structures.

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