Clifford Ando

 

On his book Law, Language, and Empire in the Roman Tradition

Cover Interview of January 16, 2012

A close-up

That’s a very hard question to answer!  It’s tempting to direct your browsing reader to, say, the middle section of Chapter 3, pages 46-56, because the argument there gets at two concerns central to the project.

Chapter 3 studies the laws of war at Rome, and the various ways in which modes of reasoning central to private law (which is to say, to law made by Romans to structure their relations with each other) came to shape Roman relations with the wider world.

In the central section of Chapter 3, two issues come to the fore. First, the Romans had some sense that their rules and practices in declaring war must have changed as the empire got bigger, even as their rules and practices for declaring ownership of private property must have changed as the state got bigger. Roman writings on these topics bring one face-to-face with their historical imagination, with their ability to imagine their own archaic past. The chapter also reveals their capacity to imagine developmental processes that brought them from that past to the present as they understood it.

The second issue central to this section is the relationship between private and international law. There’s no necessary reason why the rules governing a property dispute with one’s neighbor should be the same as, or even similar to, the rules that govern disputes between nations. After all, nations can exist far away from each other and have next to nothing in common, neither language nor cultural norms, nor even gods. That said, in many but not all respects, the Romans devised rules in the international arena based on laws they devised first for themselves.

One way the Romans surmounted such differences in practice was through the use of fictions.  Fictions in Roman law are the special focus on chapter 1, another section of the book dear to my heart. Fictions were used by Roman lawyers to effect ad hoc changes in the way one described the world in order to make certain things possible in the law. For example, if a law specified that it treated only disputes between Roman citizens but a Roman governor had to judge a dispute between aliens or between an alien and a citizen, he might posit for the sake of the dispute that the alien was in fact a citizen.

As I try to show, thinking about legal fictions—about the fit between the language of the law and the world the law sought to regulate—provoked fascinating reflection on the part of Roman lawyers and legal philosophers: about the nature of the world, about the difference between legal facts and social facts, and about the limits of the law.