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lain in the systems whereby possessors of certain goods could claim ownership of them; another distinction had been drawn within each schema between moveable and non-moveable goods.
Expressing repeated frustration with the inutiles ambiguitates et differentiae, useless ambiguities and distinctions that the ancients had imposed upon the law in contravention of ius naturale, Justinian declared it pointless to permit usucapion in Italicis solis but to exclude it in provincialibus, to permit it on Italian soil but exclude it from provincial soil. He also removed as merely “antiquated” the distinction between forms of ownership previously restricted to Italian soil, which had distinguished there between moveable and non-moveable goods.
But here he involved himself in a difficulty: for though he desired to homogenize the full range of existing practices around the simplest rule possible—sit et rebus et locis omnibus similis ordo, “let there be the same scheme for all things in all places”—and chose for that reason to universalize usucapion—the Italian action, as it were—for various reasons he actually compromised the simplicity of this scheme in two related ways. First, he redefined usucapion so as to include the timetables, plural, that had governed the provincial rule of longi temporis praescriptio; and second, he did this in part because he ultimately decided to (re)impose a distinction between moveable and non-moveable goods. One reason to take these actions, beyond mere common sense, was that individuals were even then shaping actions that extended into the past and future in light of prior law—the same problem, one might say, that jurists and lawyers had confronted across the third century.
Justinian and his lawyers were less flexible thinkers, though they deployed the same tools in resolving this impasse: rather than admit that a similis ordo did not, in fact, pertain rebus omnibus, he allowed that ownership of moveable goods passed to long-term possessors quasi per usucapionem ei adquisitam, “as if they had been acquired by him through usucapion.”
Conclusion
I conclude with two brief thoughts, one about the Justinianic corpus and one about the late ancient state.
On my reading, Justinianic law emerges as surprisingly classical: in particular, the formal moves employed in it to enact change or mere revision echo those adopted in earlier periods of upheaval—the municipalization of Italy and the aftermath of the Antonine Constitution—as well as those brought forward by legal philosophers in calmer moments, when they sought in earnest reflection to resolve conflicts of law provoked by the praetor or for that matter the emperor. But the corpus also appears to me, at any rate, suspiciously homogenous: for one thing, there are too few aliens and too little law about them. More seriously, I worry that the Justinianic compilers excerpted and retained those passages in which the arguments (in distinction to mere rules) appeared to them legitimate.
Described as in some respects grappling with problems similar to those that confronted lawyers in the early empire, and furthermore as employing tools that are themselves logical developments upon classical ones, the law of the later Roman Empire may thus be understood as more Roman—less vulgar, less Byzantine. At the same time, the texts that preserve classical law emerge from this inquiry somewhat less trustworthy: not so much as saying things that are not true, but as not saying things no longer applicable or, rather, no longer intelligible, to sixth-century lawyers.
Where the late ancient state is concerned, the world the law sought to create was more unified in its legal structures, of course, but also in fundamental respects more inclusive: for within the normative superstructure that Justinian sought to universalize were embedded non-Roman concepts and non-Roman rules that were often enough self-consciously redescribed as Roman at the moment of their taking up. In this way, legal-philosophical tools devised to justify decision-rules in the present worked continually to rewrite the past.
If the state so created appears nevertheless less flexible, more univocal, than its classical ancestor, that is because emperors from Constantine onward, but particularly those commencing with Theodosius, explicitly co-opted nongovernmental institutions and personalized networks of power in the project of state-building, and so robbed public life of its constitutive outside, and themselves of the notionally disinterested chorus that had earlier hymned their legitimacy.25 But this was not the lawyers’ fault.
Chapter 3
Empire and the Laws of War
Alberico Gentili’s extraordinary work De armis Romanis takes the form of a pair of speeches, the first an indictment of the injustices committed by the Romans in war, the second a speech of defense, on the justice of those same actions. The work lacks an introduction or conclusion in propria persona; the reader is thus left without guidance as to how to award the palm of victory. That said, Gentili did not write in a spirit of postmodern indeterminacy. His concerns were rather source-critical: “it is necessary,” his first speaker insists, “that I consider their own histories suspect. For they openly admit that they were hostile to all those who stood forth as enemies of the Romans” (De armis bk. 1, chap. 1, in David Lupher’s fine translation).1 How can one trust Roman claims to have adhered to the laws of war—to have fought, in their terms, only wars that were just—when they can be shown to have lied about fundamental issues in their past? And what might one conclude about war and imperialism in general, when that most paradeigmatic of empires felt such shame, even before itself?
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