Fact, Fiction, and Social Reality in Roman Law

Abstract

Roman and civil law fictions were notorious among early modern critics for their variety and scope. The unborn are treated as living; the living are treated as dead; aliens are classified as citizens; clauses in legal instruments are assumed not to have been written. The essay surveys fictions in classical Roman law, both those the Romans themselves labeled fictions and others that functioned through similar linguistic operations. Particular attention is given to the use of fictions in practice, both in statute and surviving legal instruments. Finally, the essay explores the theoretical frameworks within which Romans understood the operation of fictions, especially the distinction between social and legal facts and the natural and the imaginary.

Conclusion

Fictions performed heroic labor in Roman law . In part this came about because of historic change of two kinds. The first change was the creation of a new source of law in the early second century BCE, to wit, the granting to the praetor of not merely the power to hear cases but to create new legal actions. This power was rapidly understood as sufficient to create work-arounds to statute law. Friction of various kinds at the level of procedure and substance between statute and praetorian law was often negotiated by means of operations the Romans deemed fictions but which can to a point be described as analogical: two situations were construed as similar, and a symmetry of consequence was ordered to exist between the two.

The second change driving the use of fictions was the expansion of the empire. The rapid embrasure of new territories demanded the reduplication of institutions of governance, including both magistracy and jurisdiction. Often (though not always), this need was met by fiction: private individuals were invested with magisterial power without the formality of an election, and cases between aliens before local magistrates on alien soil were conditionally imagined as being lodged between Roman citizens and heard by a Roman magistrate, presiding over the case in the city of Rome.

The fictional nature of these operations is not always superficially apparent. Substitutions were made, equivalences struck and third-person imperatives deployed without being flagged as fictional or marked by contrafactuals. Often enough, however, they can be detected because an ancient commentator provides an interpretive gloss on the lexical apparatus that unpacks the fiction at work in its operation.

These fictions thus constitute a special case of legal change, of the sort so ably described by Maks Del Mar in this volume (see Chap. 11). For one thing, the form of social change that drove legal change was specific to empire. It was not simply expansion of the state, but the ever present need to account for social, economic and ecological realities scarcely imagined in the heyday of Roman legislation and conducted in languages other than its own. And for another, Roman fictions went nearly wholly uncontested. This may have occurred because they were felt to be conservative in intent (as Maine, Fuller and others suggest, which position I have to a point endorsed). It may also have occurred because of some wider endorsement of the constructivist power of legal language , of which the early use of third-person imperatives in the vow of the Sacred Spring and the late reflection of Ulpian on res iudicatae are but tips of an iceberg.⁷² It is nonetheless tempting to observe that the assimilation of things outside some normative taxonomy to items inside (as Gaius did in respect to sacred and religious land) is conservative in the same way that gay marriage is conservative: the hitherto illicit is hereafter recognized only at the expense of its assimilation to preexisting standards of (hetero)normativity. Understood in these terms, many Roman fictions were acts of power, that governed indigenous realities by re-imagining them in Roman garb.

However intended, fictions also threatened the stability of existing social ontologies. This power is certainly latent in those operations of law whereby social facts of considerable ideological importance, like servile status or descent from slaves, were bracketed or betimes rewritten. And it was occasionally (re)marked, as when Ulpian felt and flagged the insufficiency of some cohomology between legal principle, social principle and normative language , caused not least by an epistemic weakness in the conditions of judgment whose status as structural haunted the Roman (legal) imagination.

That said, the abiding impression left by Roman texts is of a constructivism, or nominalism, if you will, of surpassing power. Consider in closing Cicero’s claim in regard to people sentenced to exile who do not leave the city and, in remaining resident, might seem to violate a principle material condition of the ontology of exile: “All criminal and imperious people whom the laws want to be punished with exile are exiles, even if they do not exchange [Roman for alien] soil.”⁷³

Acknowledgements

My thanks to Maksymilian Del Mar and William Twining for the invitation to participate in this project.

Note Dig. = Alan Watson, ed., The Digest of Justinian, 4 volumes (Philadelphia: University of Pennsylvania Press, 1985). The Digest will be cited by book, chapter, and paragraph number. Lenel = Otto Lenel, Palingenesia Iuris Civilis (Leipzig: Tauchnitz, 1889). Fragments from Lenel will be cited by author, book title, and fragment number.