Clifford Ando

In a nutshell

The book falls into two parts, the first with two chapters, and the second with three. The first part concentrates on legal thought, the second on the interaction between specific bodies of law and the nature and effects of empire; the two projects are deeply interrelated. Like the parts, the individual chapters were written so as to be readable and intelligible on their own, though I think each also benefits from being read alongside the other questions I was asking at the time.

Let me attempt to introduce the two parts in turn, with the caution that many themes are present in one form or another throughout the book.

For a variety of reasons, many people think about the law in terms of rules. What are the rules governing sales tax, for example, and how might I get around them? A richer historical perspective on the law would embrace questions such as the following. How have rules changed and why? What kinds of pressures, voiced by what kinds of people, in what kinds of contexts, brought about that change? How did lay people, and how did legal actors, understand the relationship between legal rules and other norms? One can imagine many others.

For complicated reasons, Roman law as an academic discipline long remained fixated on describing its rules. How did one write a will at Rome? What was the age of marriage? Books had titles like “The Roman law of slavery.”

My book attempts to side-step questions about what Romans lawyers thought—in order to ask about how they thought. Why did they think law changed? How did they think change in the law could or should be justified? And how did they think legal institutions could or should adapt to social change?

For the fact of the matter was, Roman society was in constant flux. The same might be said of nearly any society, of course. But Roman society underwent acute change of particular kinds from a very specific source: it was an imperial society, and so it was constantly absorbing new populations, who spoke new languages and brought with them new customs.

As a related problem, Roman law initially came into existence when Roman society was largely confined to the city of Rome and its extensive agricultural hinterland. But imperial action rapidly carried Romans farther afield. How could the institutions of a small Mediterranean city be expanded to regulate a world empire? And could that expansion really take place without significant effects, for good or ill, on the system of law—and the very rule of law—in Rome itself?

The wide angle

The book attempts to keep its feet firmly planted in two different worlds. On the one hand, it is a work of history. Moreover, it is a work of history with an agenda: I would like to reveal Roman lawyers as more creative, more human and, indeed, more humane than some reconstruction of a body of rules is likely to show.

Their world was changing, and, being charged with regulating that world, they were forced to confront that change, to acknowledge the limitations of their rules and of the very language of their rules. More than many, they understood keenly that one cannot simply make the world fit the rules. It is rather a matter of making rules fit the world, even if, to preserve the authority and autonomy of the law, one must describe this practice in some other way.

And yet, this is also a work of contemporary scholarship. Its questions are therefore very often modern questions.

Chapter 4, for example, asks how the ancient world’s two most famous democracies, Athens and Rome, understood themselves and other peoples, such that they could without apparent hesitation undertake wars of choice to deprive other states of freedom and enslave their populations. A significant body of modern political science urges that democracies, among their many virtues, do not choose to go to war with other democracies—and I’m sure many Americans would like to believe that of their own country.

Likewise, chapter 5 investigates the nature of freedom in Roman thought in the age of its democracy—with a focus on law, of course, and on arguments for majoritarian rule. It then asks whether that vision of freedom could be sustained—it shows that it was not sustained—under pressure from imperial expansion. Rome was forced to choose between retaining its empire but losing its democracy, or remaining a democracy but losing the empire. It chose the former, but the transition to monarchy entailed by this choice had effects in legal philosophy and legal thought both subtle and immense.

I came to this project by a circuitous route. My first book studied the practices of communication between Rome and the subject populations of the empire, and the development of a shared political culture as a result of that process. It attempted to assess the significance of this remarkable process. But I rapidly came to see that its very modern focus on speech as the heart of politics ignored another reality, in which the practices of government placed a hugely important role. Despite popular visions of Rome as a society of empire and of laws, this was not how professional historians saw the matter. For a generation at least, the dominant picture had instead been of ancient government as minimalist in its achievements and even its intents.

I therefore embarked on a large-scale history of the role of government in social and cultural change. To do that, I had to take Roman law more seriously than I had in the past. This book is a by-product of that effort.

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.

Lastly

First, I’d very much like the book to draw attention to the astonishing creativity of Roman lawyers. Indeed, Roman legal writing seems to me to capture and convey something essential and unique about Rome as a society and Latin as a language. Likewise, to my mind, Roman legal thought represents the most remarkable and certainly the most essentially Roman achievement of intellectual life under the empire.

Second, the book draws attention to an understudied problem in the history of the Roman law, namely, the historical priority of private law at Rome, in contrast to all other forms of legal thought (constitutional law, international law, and so forth). What is more, because in different ways at different times, Roman law served as the foundation for law in continental Europe, this problem persists. One doctrine of property used by European powers to seize land elsewhere—the doctrine of “res nullius,” or “property of no one”—was not in origin a concept in international law at all. It arose in private law to cover such problems as rivers changing their course: when that happens, stretches of riverbed became dry land, and as a matter of logic, Roman lawyers asserted, they cannot have been private property before.

As I see it, the implication of international law in private law—and specifically in the private law of an imperial power—laid the ground for huge problems in the history of law in the late middle ages and early modern Europe. I’ll be turning my attention there by and by.