Pluralism and Empire: From Rome to Robert Cover

ISSN 2291-9732

Pluralism and Empire: From Rome to Robert Cover

Clifford Ando

Abstract

In his famous engagement with pluralism and sub-political associations, “Nomos and Narrative,” Robert Cover invokes empire as both an exemplar of statal power and an al-ternative to contemporary liberal democratic regimes. This essay takes his reflections as a point of departure, in order to explore two themes. First, Cover posits a dynamic rela-tionship between jurispathic and jurisgenerative regimes. This invites reflection on the stability of pluralist regimes in practice. This essay takes up that challenge in the case of Rome where, it is argued, structural features of both politics and practice impelled a standardization of legal regimes in both procedural and positive law, despite a principled commitment on Rome’s part to the autonomy of alien communities within the empire. Second, Cover seeks to elide the true object of his inquiry, the autonomy of religious groups, by assimilating them to voluntarist associations. This brings certain advantages in respect to constitutional law and anticipates potential liberal and feminist critiques of re-ligious law. But it also raises problems of political theology, by surrendering the ontolog-ical priority vis-à-vis the state that in the self-understanding of religious groups normally justifies their claims to self-regulation. One form such problems might take is illustrated by Hobbes, in his theory of sovereignty by acquisition, which draws on Roman theory. That theory has been now been vindicated by Roman legal instruments, discovered in the 19th and 20th centuries and therefore unknown to Hobbes, in which conquered parties were ordered to continue their ancestral legal practice, on sufferance of Rome.

“The law of the land is the law.” Mar Samuel (d. 254), Baba Qamma 113a1

I. Introduction

Ancient empires were pluralist as a matter of form.2 I frame the matter in this way in or-

der to distinguish the ideology and practice of ancient empires from those obtaining in

Clifford Ando ([email protected]) is David B. and Clara E. Stern Professor and Professor of Classics, History, and Law at the University of Chicago, and a Research Fellow in the Department of Clas-sics and World Languages at the University of South Africa. For conversation about this essay, my thanks to Ari Bryen, Markus Dubber and Simon Stern; and for aid above and beyond the call, to Ruth (once again). A number of abbreviations are used below to refer to classical texts: Dig. = The Digest of Justinian, Latin text (Theodor Mommsen & Paul Krüger eds., 1868), reprinted with English translation (Alan Watson ed., 1985); Lenel = Palingenesia Iuris Civilis (Otto Lenel ed., 1889).

1 See also Nedarim 28a, Gittin 10b, and Baba Batra 54b, 55a (discussed in Philip Leon Biberfeld, Dina de-malkhuta dina (1925)); David Daube, Collaboration with Tyranny in Rabbinic Law, The Riddell Memorial Lectures, Thirty-Seventh Series, Delivered at the University of Newcastle upon Tyne on 9, 10, and 11 No-vember 1965 (1965).

http://cal.library.utoronto.ca/

2 Critical Analysis of Law 1:1 (2014)

modern national states. Nation states imagine their institutions, infrastructure, and culture

permeating uniformly throughout their territory and population.3 Ancient empires, by

contrast, governed through the cultivation and management of difference: they incorpo-

rated subordinate political communities by riving them, one from another; social and eco-

nomic conduct between constituent populations was constrained, while the distinctive

normative orders of each population were celebrated and betimes codified by the imperial

center.4 This was as true of law as it was of religion. The internal heterogeneity and long-

term stability of such imperial orders have made them the object of enduring fascination

among theorists of both law and religion from the dawn of Europe’s extra-European

empires to the present day.5

The eternal return of empire in general, and Rome in particular, as paradigms for

sustainable pluralism ought to provoke inquiry and perhaps disquiet. To begin with, at an

empirical level, neither the normative structures that regulated and subtended the religious

and legal pluralism of the Roman empire, nor the actual durability of those structures in

practice, has received sustained inquiry. Nor, for that matter, was earlier scholarship—

such as it was—articulated in light of contemporary theoretical concerns. The present

essay is therefore an opening attempt to analyze the nature of the pluralist regime that

Roman practice brought into being, and the pressures that impelled the forms of change

and standardization that it suffered (and to a degree brought upon itself). In the next sec-

tion, I frame this inquiry by reference to the powerful and seductive distinction drawn by

Robert Cover between communal and imperial social orders (Section II). I then outline

the legal theory and political ideology developed in antiquity to give normative description

to the Roman empire’s pluralism (Section III), before delineating a number of the ways in

which Roman practice revised, compromised, or subverted the principles that the Roman

jurists understood to undergird their own pluralist regime (Section IV). I close by recuper-

ating a distinctly non-Coverian way of understanding the structures of authority in impe-

rial legal regimes and, indeed, perhaps all statally sanctioned pluralist regimes (Section V).

The project has two related historical and interpretive objectives that guide its ar-

ticulation. First, for reasons of empirical richness, the Roman version of an imperial legal

2 Of course, all human communities are internally heterogeneous along some axes; but not all forms of difference have normative salience at all times.

3 Benedict Anderson’s Imagined Communities: Reflections on the Origin and Spread of Nationalism (1983) can stand here for a large literature.

4 See, e.g., Bruce Lincoln, “Happiness for Mankind”: Achaemenian Religion and the Imperial Project, Part II (2012) (treating the Persian Empire). On Rome, see Clifford Ando, Imperial Rome AD 193 to 284: The Critical Century chs. 4 & 6 (2012) [hereinafter Imperial Rome]; Die Riten der Anderen, 15 Mediterraneo Antico 31 (2012) [hereinafter Riten]; The Edict of Serdica in Religious-Historical Perspective, in The Edict of Serdica (AD 311): Concepts and Realization of the Idea of Religious Toleration 49 (V. Vatchkova & D. Dmitrov eds., 2013) [hereinafter Edict].

5 The locus classicus is Edward Gibbon, The History of the Decline and Fall of the Roman Empire § 1.56 (David Womersley ed., 1994); see also Anthony Pagden, Lords of All the World: Ideologies of Empire in Spain, Britain and France c. 1500 - c. 1800 (1995); Sabine MacCormack, On the Wings of Time: Rome, the Incas, Spain, and Peru chs. 3 & 4 (2007).

Ando — Pluralism & Empire 3

regime deserves consideration in any comparative study of pluralist regimes, imperial or

otherwise. Second, the Roman case should not be isolated as of merely comparative inter-

est. On the contrary, its regular invocation in late medieval and early modern law-making

means that, across an astonishing range of substantive issues, early modern and contem-

porary European civil and public law has what amount to imperial roots. That is so de-

spite the claim, articulated already under Rome, that a civil law is no more and no less

than the law a citizen body imposes upon itself, to govern relations narrowly among its

members. Exposing the falsity of that claim in practice under Rome might stand in exem-

plary relation to a critical project of exposing the imperial roots of modern European law

more generally.

II. Nostalgia for Empire: Robert Cover on the Imperial Mode

All human communities are governed by multiple, sometimes conflicting, bodies of

norms—and, indeed, all no doubt recognize multiple legitimate sources of such norms.6

The patent truth of this claim notwithstanding, the silent triumph of positive law as the

foundational conception of law within contemporary jurisprudence has substantially

handicapped the recognition, classification, and analysis of pluralist regimes within con-

temporary legal theory. This fact has at least two related consequences of relevance to the

present inquiry. First, competing theories of pluralism within contemporary jurisprudence

agree that meaningful pluralist regimes require the coexistence within the same (political)

space of multiple legal systems. Such theories therefore distinguish themselves largely ac-

cording to what sort of legal system is privileged in analysis, which is to say, some define a

legal system by the presence of independent law-creating institutions, and others by the

presence of independent law-applying ones.7 Second, the conception of legal system un-

derlying such accounts is nearly universally sovereigntist in orientation and thus assumes,

indeed requires, that rules of recognition operate between and among the institutions of

pluralist regimes.

Regarded in historical perspective, there is considerable irony in the present state

of affairs, for, as Marianne Constable has shown, the triumph of positive law in contem-

porary jurisprudence has roots in the effort by the English Crown to assert its hegemony

over a divided and pluralist landscape.8 This effort took two forms above all: the claim

6 The strong theocracy of biblical Israel presents an important test case of such a claim, since its theology allowed neither the conceptualization of sovereignty apart from itself nor even a meaningful politics apart from priesthood and monarchy. But, as Michael Walzer observes, God may have ruled the international order, but he “doesn’t seem to [have] rule[d] the inner life of Israel. Here individuals . . . relate to one an-other, and individuals are free to choose—which also means free to create a good or a bad society.” Michael Walzer, In God’s Shadow: Politics in the Hebrew Bible 199-212 (2012).

7 I adopt here the language of Jonathan White in his excellent review of this very valuable recent collection: Philosophical Foundations of European Union Law (Julie Dickson & Pavlos Eleftheriadis eds., 2012); see Jonathan White, Review, Notre Dame Phil. Reviews (Oct. 9, 2013) (http://ndpr.nd.edu/news/43352-philosphical-foundations-of-european-union-law/).

8 Marianne Constable, The Law of the Other: The Mixed Jury and Changing Conceptions of Citizenship, Law and Knowledge (1994), esp. ch. 4.

http://ndpr.nd.edu/news/43352-philosphical-foundations-of-european-union-law/

http://ndpr.nd.edu/news/43352-philosphical-foundations-of-european-union-law/


that alternative sources of norms derived their continued legitimacy from their authoriza-

tion by the Crown, on the one hand, and the related assertion that such authorization

could come only from institutions and procedures endowed by the Crown with power

over the production (of knowledge) of law. The dominance of positive law as a concep-

tion of law in contemporary jurisprudence, even in efforts to analyze pluralist regimes,

thus has its historical origin precisely in an aggressive effort by the state to assert a coho-

mology of sovereigntist power, legislative authority, and jurisdiction. To this one historical

irony charted so ably by Constable, we might therefore add two more: first, that the dis-

tinction between law-creating and law-applying institutions can be sustained only when

quite particular, highly formal considerations regarding the articulation of law obtain; and

second, that the doctrine of sovereignty that underpins contemporary theorizations of

federalist and international private law pluralisms is but a modern gloss on a development

that began in a context of empire.9 Indeed, this much is implied by Seth Richardson’s bril-

liant recent demonstration of the extent to which even the earliest Mesopotamian empires

asserted sovereignty by speaking like a state.10 The ideology and aspirations of state power

more generally, and statal law in particular, exist, on his reading, in genetic relation to im-

perial power and imperial law. I will return to this problem in the Conclusion, where I will

consider the refusal of Thomas Hobbes to paper over this uncomfortable truth.

This lacuna in contemporary jurisprudence—that is, its failure to develop robust

accounts of norm pluralism—is not, of course, the end of the story. Unsurprisingly, there

exists an abundant, sophisticated, and growing literature on legal pluralism in legal an-

thropology, with its varied autonomous and semi-autonomous social fields,11 and likewise

in the historical and comparative study of colonial and post-colonial legal orders, which

are perforce always pluralist in operation.12 Alongside these we might set the current re-

naissance in international private law and global legal pluralism,13 on the one hand, and

the vast practical and theoretical work spurred by the development of the European Un-

9 On sovereigntism and state power in modern legal analysis, see Judith Resnik, Law as Affiliation: “For-eign” Law, Democratic Federalism, and the Sovereigntism of the Nation-State, 6 Int’l J. Const. L. 33 (2007); and c.f. this comparative study of French and American law and central state power: Laurent Cohen-Tanugi, Le droit sans l’État (2d ed. 2007).

10 Seth Richardson, Early Mesopotamia: The Presumptive State, 215 Past & Present 3 (2012); see also Clifford Ando, Aliens, Ambassadors and the Integrity of the Empire, 26 Law & Hist. Rev. 491 (2008).

11 See the seminal article by John Griffiths, What Is Legal Pluralism?, 24 J. Legal Pluralism 1 (1986), as well as the review article by Sally Engle Merry, Legal Pluralism, 22 Law & Soc’y Rev. 869 (1988).

12 Pluralism in Africa (Leo Kuper & M.G. Smith eds., 1969); Sally Engle Merry, Colonizing Hawai’i: The Cultural Power of Law (2000); Ken MacMillan, Sovereignty and Possession in the English New World: The Legal Foundations of Empire, 1576-1640 (2006); António Manuel Hespanha, Cultura Jurídica Europeia: Síntese de um Milénio (2012); Legal Pluralism and Empire, 1500-1850 (Lauren Benton & Richard J. Ross eds., 2013).

13 See, e.g., Lauren Benton, Beyond Legal Pluralism: Towards a New Approach to Law in the Informal Sec-tor, 3 Social & Legal Stud. 223 (1994); Ralf Michaels, The Re-state-ment of Non-State Law: The State, Choice of Law, and the Challenge from Global Legal Pluralism, 51 Wayne L. Rev. 1209 (2005); Paul Schiff Berman, Global Legal Pluralism, 80 S. Cal. L. Rev. 1155 (2007); Dominique Bureau & Horatia Muir Watt, Droit international privé (2d ed. 2010).


ion—in the fields of federalism, postnational law, and postnational constitutionalism—on

the other.14 One confronts at this moment a plurality, a surfeit, even, of pluralisms. None-

theless, these conversations have run largely on non-converging tracks, partly as a result

of the fundamentally different presuppositions regarding positive law, legal legitimacy, and

social ontology to which they subscribe.

Over the last thirty years or so, a structurally similar conversation has been taking

place among critics of Anglo-American liberalism. Their targets might be described as

rights discourse—or, better yet, the instantiation in law of this discourse—and their criti-

cisms are multiple. Nonetheless, at a high level of abstraction these criticisms might be

said to share a concern that the normative ambitions and resources of law should not be

limited to atomized rights-bearers, creating law by reference to their lowest-common-

denominator shared commitments as contractors to a particular legal order.15

In what follows, I engage this wider landscape of debate principally through the

work of Robert Cover, for three reasons. First, he employs, albeit not consistently, the

language of American constitutionalism. Second, his paradigmatic case study—rabbinic

Judaism—constitutes a threshold case for anyone interested in the existence of legal dis-

course and political life in circumstances without sovereignty, indeed, in a community that

has generally declined to theorize the political or recognize legitimate political sovereignty

in anyone, themselves or others.16 Last and most crucially, he holds forth empire as a con-

trastive system to modern liberal democracy. Let me quickly review this last feature of his

argument.

In his famous essay “Nomos and Narrative,” Cover distinguishes between two

ideal-typical ways of “combining corpus, discourse, and interpersonal commitment to

form a nomos.”17 The first he names the “world-creating” or “paideic.” In brief, paideic

communities have:

14 In addition to the bibliographic material in Dickson & Eleftheriadis, supra note 7, see esp. Neil Walker, The Idea of Constitutional Pluralism, 65 Mod. L. Rev. 317 (2002); Neil Walker, Taking Constitutionalism Beyond the State, 56 Polit. Stud. 519 (2008); Judith Resnik, Federalism(s)’s Forms and Norms: Contesting Rights, De-Essentializing Jurisdictional Divides, and Temporizing Accommodations, in 55 Nomos: Federal-ism and Subsidiarity (James Fleming ed., forthcoming 2014).

15 Communitarian: Charles Taylor, Atomism, in Powers, Possessions and Freedom 39 (Alkis Kontos ed., 1979); Michael J. Sandel, Liberalism and the Limits of Justice (1982). Feminist: Carol Gilligan, In a Different Voice: Psychological Theory and Women’s Development (1982); Virginia Held, Non-Contractual Society: A Feminist View, in Science, Morality & Feminist Theory 111 (Marsha Hanen & Kai Nielson eds., 1987); Nan-cy Hirschman, The Subject of Liberty: Toward a Feminist Theory of Freedom (2003); Ruth Abbey, The Return of Feminist Liberalism (2011). Multicultural: Charles Taylor, Multiculturalism and the Politics of Recognition (Amy Gutman ed., 1992); Bhikhu Parekh, Rethinking Multiculturalism (2002).

16 This is obviously a hugely complicated generalization, which I make contextually and with all due qualifi-cation. For a reading of “the Jewish political tradition” along these lines, see Michael Walzer, Introduction: The Jewish Political Tradition, in 1 The Jewish Political Tradition: Authority xxi (Michael Walzer, Menachem Lorberbaum & Noah J. Zohar eds., 2000).

17 Robert Cover, The Supreme Court, 1982 Term—Foreword: Nomos and Narrative, 97 Harv. L. Rev. 4 (1983), reprinted in Narrative, Violence and the Law: The Essays of Robert Cover 95, 105 (Martha Minow, Michael Ryan & Austin Sarat eds., 1995). All citations are from the latter edition.


(1) a common body of precept and narrative, (2) a common and personal way of being educated into this corpus, and (3) a sense of direction or growth that is constituted as the individual and his community work out the implications of their law. Law as Torah is pedagogic.18

Cover labels such orders “potent” because they possess what the historian of religion

Jonathan Z. Smith calls locative force:19 “They combine to create principles and precepts

enough to fill our lives, as well as to fit those precepts into the common narratives locat-

ing the social group in relation to the cosmos, to its neighbors, to the world.”20

In Cover’s view, the very power of such orders is their undoing: “The unification

of meaning that stands at its center exists only for an instant, and that instant is itself im-

aginary.”21 As he explains,

[T]he very act of constituting tight communities about common ritual and law is ju-risgenerative by a process of juridical mitosis. New law is constantly created through the sectarian creation of communities. . . . The radical instability of the paideic nomos forces intentional communities—communities whose members believe themselves to have common meanings for the normative dimensions of their common lives—to maintain their coherence as paideic entities by expulsion and exile of the potent flowers of norma-tive meaning.22

Cover’s second ideal-typical pattern for “combining corpus, discourse, and inter-

personal commitment to form a nomos” he labels “world-maintaining” or “imperial”: “In

this model, norms are universal and enforced by institutions. They need not be taught at

all, as long as they are effective. Discourse is premised on objectivity—upon that which is

external to the discourse itself.”23 In a footnote, Cover explains his invocation of imperial

legal orders, which he figures as a type:

The term “imperial” may not be ideal. I mean to suggest by it an organization of distinct nomic entities, just as an empire presupposes sub-units that have a degree of juridical and cultural autonomy. Pluralism is obviously very close to what I am trying to convey. But a pluralism may be one of interest and objectives. It does not necessarily entail or even suggest a pluralism of legal meaning, which is my particular concern here. It is also the case that the slightly negative connotation of “imperial,” its association with violence, is intended. I mean to give the virtues of “justice,” “truth,” and “peace” their due, but I al-so mean to suggest the price that is paid in the often coercive constraints imposed on the autonomous realization of normative meanings.24

18 Id. at 105.

19 Smith also elaborated his ideal-typical theory on the basis of close study of rabbinic Judaism, albeit of a different period. Jonathan Z. Smith, Drudgery Divine: On the Comparison of Early Christianities and the Religions of Late Antiquity 116-43 (1990). For a critique of Smith’s theory, see Clifford Ando, Subjects, Gods and Empire, or Monarchism as a Theological Problem, in The Individual in the Religions of the An-cient Mediterranean 86 (Jörg Rüpke ed., 2013).

20 Cover, supra note 17, at 108.

21 Id.

22 Id. at 109.

23 Id. at 105-06.

24 Id.


Cover later brings these worlds together within a single regime or political vision. Here it

emerges as critical that the language he uses to describe social orders constituted through

paideic law is prima facie non-religious and non-statal—“common” and “community” are

its terms of art—for it rapidly becomes fundamental to the overall argument that he envi-

sions such communities as existing within the same political space. Thus while Cover does

insist that jurisgenerative law is inherently insufficient to produce social order, yielding as

it does a “multiplicity of meaning,” it is in the conjunction of multiple nomic systems,

and in particular of multiple jurisgenerative orders, within the same political space that

their true deficiencies become most clear: “Let loose, unfettered, the worlds created

would be unstable and sectarian in their social organization, dissociative and incoherent in

their discourse, wary and violent in their interactions.”25 It is in this context that Cover

reasserts the political and social utility of “the imperial virtues and the imperial mode of

world-maintenance.” By depriving sectarian groups of access to legitimate social violence

and enforcing norms of imperial (not to say civic) tolerance, the imperial mode places

“the constraint of peace on the void at which strong bonds cease.”26

The sweep and elegance of Cover’s argument renders it a rich foil for inquiry into

the relationship between sovereignty, legal legitimacy, and religious and legal pluralism. In

what follows, I offer an historical riposte to Cover’s easy invocation of an imperial mode.

That said, I have wider ambitions, too. Legal analysis seems to me to have undertaken lit-

tle metatheoretical investigation into theories of pluralism across discursive and discipli-

nary traditions, and even less comparative study of the developmental trajectory of plural-

ist systems over time. These are sorely needed. A notable effort in the former category is

Nico Krisch’s monograph, Beyond Constitutionalism.27 He offers a basic taxonomy, consisting

in interpretive, institutional, and systemic or radical pluralist regimes; and he distinguishes

these in light of the presence of rules of recognition among legal systems, the necessity

of democratic authorization for legislative legitimacy, and the vitality of a commitment to

sovereignty among participants in the system.28 This paper offers an inquiry of the second

kind: an historical portrait of a pluralist regime in practice, in dialogue with contemporary

theorists of non-imperial pluralist regimes.

III. Pluralism in Roman Theory

One might begin by sketching a basic normative framework for the separation of the em-

pire into separate jurisdictions as the Romans themselves theorized the issue.29 The most

25 Id. at 109.

26 On the contrast between imperial and civic modes of tolerance, see Edict, supra note 4.

27 Nico Krisch, Beyond Constitutionalism: The Pluralist Structure of Postnational Law (2010).

28 This list is not exhaustive; these are the components named by Krisch most relevant to the present argu-ment.

29 On Roman jurisdictional rules see Clifford Ando, Law and the Landscape of Empire, in Figures d’empire, fragments de mémoire: Pouvoirs (pratiques et discours, images et représentations), et identités (sociales et religeuses) dans le monde romain impérial (Ier s. av. J.-C. - Ve s. ap. J.-C.) 25 (Stéphane Benoist, Anne Da-


famous and most concise formulation in a classical text is that provided by the jurist Gai-

us, the author of the only surviving textbook on law from classical antiquity, at the open-

ing of his Institutes. Gaius’s floruit appears to have been in the third quarter of the second

century CE; his remarks here should therefore be taken as late, second-order observations

on long-developed practice:

All peoples who are governed by statutes and customs observe partly their own peculiar law and partly the common law of all human beings. The law that a people establishes for itself is peculiar to it, and is called “civil law,” being, as it were, the special law of that civi-tas, that community of citizens (nam quod quisque populus ipse sibi ius constituit, id ipsius propri-um est vocaturque ius civile, quasi ius proprium civitatis), while the law that natural reason estab-lishes among all human beings is followed by all peoples alike, and is called ius gentium, be-ing, as it were, the law observed by all peoples. Thus the Roman people observes partly its own peculiar law and partly the common law of humankind.30

In other words, the civil law—or, better yet, a civil law—is a body of law that a political

community establishes for and over itself. Only the members of that community, which is

to say its citizens, have a priori access to its legal actions. The foundation of Gaius’s claim

is expressed by the reflexive and distributive pronouns “each” and “for itself ”: the term

“civil law” denotes those bodies of law that each political community makes for itself.

Furthermore, no evaluative framework—either moral or ontological—is offered to ad-

judge between these. The operative assumptions would seem to be that local social orders

are best secured by adherence to locally-generated norms and, as a corollary, that Rome

has neither an epistemic basis nor any deontological obligation to override them.

The term used by Gaius that I translate “political community” is civitas, whose

primary meaning is “citizenship.” By a common metonymy, it can also mean “citizen

body,” as well as the urban center—the city—that was understood as fundamental to co-

ordinated political action. But it can also refer to the territorial space through which a giv-

en citizen body extends.31 Other normative accounts of the pluralist legal landscape of

the empire make clear that territoriality was a principal means for defining jurisdictions,

but not the only one: cases could also be assigned to fora, or, to use modern terminology,

choice of law could also be determined by the citizenship of the parties to a dispute. This

distinction can be blurred in Latin because the same term, civitas, can be used for both

concepts, city-state and citizen body; nor do I think one meaning was ever foregrounded

without the other being active.

guey-Gagey & Christine Hoët-van Cauwenberghe eds., 2011) [hereinafter Landscape of Empire]; Clifford Ando, Pluralisme juridique et l’intégration de l’empire, in Les voies de l’intégration à Rome et dans le monde romain 5 (Stéphane Benoist, Ségolène Demougin & Gerda de Kleijn eds., 2013) [hereinafter Pluralisme ju-ridique]; and Imperial Rome, supra note 4, at 78-85.

30 Gaius, Institutes 1.1 (the opening lines are missing in manuscripts and are quoted from Dig. 1.1.9) (quoted from The Institutes of Gaius 2-3 (Francis de Zulueta ed., 1946)).

31 On the term civitas, see Clifford Ando, Postscript: Cities, Citizenship, and the Work of Empire, in The City in the Classical and Post-Classical World: Changing Contexts of Power and Identity (Claudia Rapp & H. A. Drake eds., forthcoming 2014); and on its implication in Roman thought in respect to territoriality, see Clifford Ando, Roman Social Imaginaries (forthcoming).


Allow me to make three observations about the nature of the pluralist regime

brought into being by Roman practice.

First, in the landscape of empire as Gaius describes it, the varied systems of civil

law are conceived of as parallel or, perhaps, non-hierarchical, and as operating in non-

overlapping spheres that are in the first instance defined in terms of territoriality. But par-

allelism is obviously not a wholly adequate metaphor. This is so for a number of reasons,

all of them effects of empire. Inter alia, Roman interest was perceived and understood

normatively to trump both local autonomy and the Romans’ own commitment to the re-

striction of Roman law to Roman citizens. The Romans thus claimed the right to require

indigenous communities, alien in respect to Rome, to adopt certain laws drafted at the

metropole. In addition, a principal effect of empire within the Mediterranean world of

the early Roman Empire was greatly heightened human mobility, resulting in minority

populations within civic communities of unprecedented number and prominence. The

meanings of civitas as sovereign territory and citizen body gradually ceased to map each

other. It is not simply that Gaius’s description is ideal-normative; it is that the regime that

Gaius sought to describe was not static, and many factors that impelled or promoted

change were inherent to the system itself.

Second, as my remarks on the term civitas imply, Rome granted the right to use

one’s own laws, and recognized populations as the sort of community that would have its

own laws, based on a crude ontology of the political. Roman officials had no ready con-

ceptual means or even lexical apparatus to grant appropriate recognition to sub-political

groups, not least minority ethnic and religious communities. This is not to say that Rome

never recognized such groups—the history of Jewish privilege under Rome is a case in

point—but these cases could be contested and were always precarious.32

My third observation concerns the nature of this system as imperial. As I have

said, ancient empires can be distinguished from modern states, and to a point from mod-

ern empires, by virtue of the style and aspirations of government: ancient empires gov-

erned through the cultivation and management of difference. This was in part a practical

matter, because ancient states generally lacked the infrastructural power to universalize

their metropolitan culture. But it was also a political matter: tessellating colonized popula-

tions into so many jurisdictions effectively forestalled the realization of solidarity among

subject populations except along lines determined by Rome. A very great deal of Roman

administration was therefore directed toward constraining the social and economic activity

of conquered populations within specific geographic parameters.

Where law is concerned, we should therefore understand Roman grants of auton-

omy as serving the interests of conqueror and conquered alike.33 The power to use one’s

32 See Ando, supra note 19.

33 I use the term “autonomy” in its classical sense, namely, the narrow right of a community to use its own system of private law. On the meaning of the term autonomy in antiquity (Greek autonomia; Latin used the periphrasis utere suis legibus), see Clifford Ando, Law, Language and Empire in the Roman Tradition 70-71 (2011).


own laws was perhaps the most sought-after right of subordinate communities in the em-

pire.34 To get some sense of what was at stake for both parties to such negotiations—to

wit, polity and empire—one need only consult one of the many public decrees of thanks-

giving that followed upon a successful outcome. Below, for example, is a translation of

the dedication inscribed on a monument honoring the emperor Claudius (r. 41-54 CE),

erected in the province of Lycia in south-central Asia Minor. Such texts almost invariably

recall the wording of the civic decree that called for the erection of the monument in the

first place:

(1) To Tiberius Claudius, son of Drusus, Caesar Augustus Germanicus, pontifex maxi-mus, in the fifth year of tribunician power, acclaimed imperator 11 times, father of the fa-therland, consul designate for the fourth time, the savior of their nation:

(13) the Rome-loving and Caesar-loving Lycians, faithful allies,

(16) having been freed from faction, lawlessness and brigandage though his divine fore-sight,

(20) having recovered concord, the fair administration of justice (or “equitable jurisdic-tion”) and the ancestral laws,

(25) the conduct of affairs having been entrusted to councilors drawn from among supe-rior people by the incompetent majority,

(30) in return for the many benefits they have received from him through Quintus Vera-nius, propraetorian delegate of Tiberius Claudius Caesar Augustus.35

The Lycians erected the monument in response to the emperor’s grant to them of auton-

omy, to wit, the right to use their own “ancestral laws.” This was, of course, framed as a

privilege. But it was not only that. Recall that in keeping with its imperial mode, it was a

fundamental principle of Roman practice that local provincial communities should be dis-

joined from each other by each using its own system of law and, what is more, generally

not the law of Rome. This is not simply a modern abstraction of ancient practice. We can

find it stated as a principle by the Romans themselves. For example, a letter from the em-

peror Trajan to a provincial governor articulates this as a general principle around 110 CE:

“I think therefore that the law of each city should be followed, which practice is always

the most safe.”36 Additional statements of this kind are made by both judges and jurists in

the later second century.37 But the fact that autonomy in this sense was sought by subject

communities lent the dynamic a most peculiar and imperial flavor, for the self-same plu-

ralism that respected the right of communities to make law for themselves was under-

stood to conduce to both a local and a distinctively imperial social order. In this light, it

34 On embassies from Greek cities to the Roman emperor seeking the right to use their own laws, see Fergus Millar, The Emperor in the Roman World 343, 376, 415 (2d ed. 1992).

35 The stadiasmus provinciae Lyciae, 45/46 CE, SEG 51.1832, face A (translation after Christopher P. Jones, The Claudian Monument at Patara, 137 Zeitschrift für Papyrologie und Epigraphik 161 (2001)).

36 Trajan at Pliny Ep. 10.113 (available in Pliny: Letters and Panegyricus 2:304-305 (Betty Radice ed., 1975)).

37 See Landscape of Empire, supra note 29, at 22-27.


merits observation that, having won their autonomy, the Lycians describe themselves as

“Rome-loving and Caesar-loving.”

My interest in this paper lies in the relations of sovereignty implicit in such sys-

tems and their tendency toward self-subversion, and I will presently turn to those topics.

But the long-term political consequences of this practice deserve a moment’s attention;

they were the subject of astute remarks by Montesquieu in the sixth chapter of Considéra-

tions sur les causes de la grandeur des romains et de leur décadence:

It was necessary to wait until these nations became accustomed to obey as free peoples and as allies, before commanding them as subjects; until they had lost themselves little by little into the Roman Republic. Consider the treaty that they made with the Latins after their victory at Lake Regillus: it was one of the principal foundations of their power. One does not find there a single word that speaks of empire.

It was, rather, a slow way of conquering. One vanquishes a people, and one contents oneself with weakening it; one imposes conditions that diminish it insensibly. If it revolts, one humiliates it still more, and it becomes subject, without anyone being able to give a date of his subjection. . . .

It is the madness of imperialists, to want to give to all peoples their laws and their cus-toms. To what end? For people can obey in every kind of government.

But as Rome imposed no general laws, peoples had no dangerous ties uniting them; they made no body politic except through common obedience; and, without being compatri-ots, they were all Romans.38

Montesquieu describes a two-fold effect of political action in pursuit of local autonomy

within imperial orders. First, he urges the inutility of imposing one’s laws on conquered

populations. Forced acculturation is likely to provoke resistance; obedience, which is the

true aim of imperial rule, can be surrendered regardless of the system of law. Second, he

argues on the basis of the Roman case that over the long term, acculturation—or, better

yet, a reorientation in political subjectivity—followed even when one did not impose laws

or customs, in consequence precisely of such exchanges as that of obedience for local

autonomy. In making this case, Montesquieu anticipates much recent scholarship on the

mechanics and long-term effects of the culture of loyalism that permeated Roman impe-

rial relations with the objects of its rule.39

38 Montesquieu, Considérations sur les causes de la grandeur des romains et de leur décadence ch. VI, in Œuvres complètes 107-08 (Roger Caillois ed., 1951). In French: “Il fallait attendre que toutes les nations fussent accoutumées à obéir comme libres et comme alliées, avant de leur commander comme sujettes; et qu’elles eussent été se perdre peu à peu dans la République romaine. Voyez le traité qu’ils firent avec les Lat-ins après la victoire du lac Régille: il fut un des principaux fondements de leur puissance. On n’y trouve pas un seul mot qui puisse faire soupçonner l’empire. C’étoit une manière lente de conquérir. On vainquoit un peuple, et on se contentoit de l’affoiblir; on lui imposoit des conditions qui le minoient insensiblement; s’il se relevait, on l’abaissoit encore davantage, et il devenoit sujet, sans qu’on pût donner une époque de sa sujétion. . . . C’est la folie des conquérants de vouloir donner à tous les peuples leurs lois et leurs coutumes: cela n’est bon à rien; car, dans toute sorte de gouvernement, on est capable d’obéir. Mais, Rome n’imposant aucunes lois générales, les peuples n’avoient point entre eux de liaisons dangereuses; ils ne faisoient un corps que par une obéissance commune; et, sans être compatriotes, ils étoient tous romains.”

39 Clifford Ando, Imperial Ideology and Provincial Loyalty in the Roman Empire (2000); see also Greg Rowe, Princes and Political Cultures (2002); among earlier literature see esp. Louis Robert, La titulature de Nicée et de Nicomédie: la gloire et la haine, 81 Harv. Stud. Classical Philology 1 (1977).


IV. Pluralism in Practice

The conceptual and normative system that I have described could not and did not ac-

count for every population and territory within the empire. As I have stressed, imperial

action helped to bring into being, or brought under Roman suzerainty, a number of popu-

lations for which the resources of government and the normative structures of legal the-

ory could not easily account. These included non-urbanized and semi-pastoralist popula-

tions dwelling in ecologies not suited to cereal agriculture, as well as diaspora populations

who were juridically alien in respect to the jurisdictions in which they resided.40 A full

treatment of my topic in light of the priorities of modern legal scholarship would thus

need to inquire into at least three types of population groups that fell outside the norma-

tive regime outlined above:

So-called double communities, in which as a matter of public law, two different

sources of private law existed and two jurisdictions operated within the same geo-

graphic space. The simplest cases are indigenous towns, alien in respect to Roman

law, that are made to host Roman colonists, who are themselves allowed to incor-

porate as autonomous municipalities in the same geographic space.41 In such

communities, the link between jurisdiction and territoriality implicit in normative

definitions of ius civile broke down, because the native correlation between civitas

as citizenship and subject of law, civitas as political community, and civitas as terri-

tory was sundered.

Sub-political communities. Rome claimed as a matter of principle to respect the

desire of communities to use their ancestral laws and to perform ancestral rights.

However, not every community that could vindicate its claim to possess ancestral

laws qualified as a civitas, a self-governing polity centered upon a monumentalized

urban core. Such populations challenged Rome’s capacity to recognize them and

to render that recognition meaningful. The best attested such community is natu-

rally the Jews, though even this statement is misleading, since Roman recognition

was at times granted to specific Jewish communities within particular cities rather

than to the diaspora in its entirety. In any event, Jewish success in negotiating with

Rome should not be taken as normative for diaspora populations as a whole.42

As a correlate to the second type, not every community that Rome recognized as a

self-governing polity satisfied its ideal-typical notion of what a political communi-

40 On the governance of non-urbanized populations—a topic crying out for sustained treatment—see Brent Shaw, Bandits in the Roman Empire, 105 Past & Present 3 (1984); Brent Shaw, Rebels and Outsiders, in 11 The Cambridge Ancient History: The High Empire, A.D. 70-192, at 361 (Alan K. Bowman, Peter Garnsey & Dominic Rathbone eds., 2000).

41 Leo Teutsch, Gab es “Doppelgemeinden” im römischen Afrika?, 8 Revue international des droits de l’antiquité 281 (1961); Nicholas Purcell, The Nicopolitan Synoecism and Roman Urban Policy, in Nicopolis I: Proceedings of the First International Symposium on Nicopolis (23-29 September 1984) 71 (Evangelos Chrysos ed., 1987).

42 See supra note 15.


ty should be. In particular, it is likely that many such communities had no written

code of law. For example, the standard language granting Roman citizenship to

the leaders of subordinate communities within the empire insisted that such

grants should occur “without prejudice to local law” (iure gentis salvo), meaning, one

supposes, without prejudice to pre-existing private law relations, tax obligations,

and so forth. But it is exceedingly unlikely that many such communities within

which these grants occurred in fact possessed written codes of law recognizable

to Roman jurists. That lack would have presented Roman magistrates with politi-

cal and procedural problems familiar from other imperial contexts but not well in-

vestigated in respect to Rome.43

Even as I issue a call for further study, I must tender the caution that evidence for the

administration in law in diaspora or unurbanized populations is extraordinarily scarce.

This is, of course, a nearly universal problem in an ancient evidentiary regime; but it is

also a consequence, in part at least, of the departure of such populations from precisely

the norms of institutional elaboration that otherwise encouraged political communities to

inscribe their records on permanent media.

That said, let me focus here on a different problem, which is to say, the problem

of Roman courts. Roman magistrates began very early to hear civil cases between alien

plaintiffs: they sometimes did so by way of appeal from a non-Roman court, and they

sometimes did so as the court of first instance.44 The frequent recourse to Roman courts

by citizens of autonomous alien communities was, of course, an additional way in which

territorial parallelism proved an inadequate model for the pluralist regime. Nevertheless,

the legal pluralism of the empire as a whole could still have developed into a merely hier-

archical system, in which the upper and lower systems operated by and large according to

utterly distinct and locally generated principles. Such systems might usefully be character-

ized as pluralist not simply for the obvious reason that there co-existed within the same

territorial space multiple norms—and multiple sources of norms—but because there ex-

isted within many fields of law around the empire no requirement of subordination, no

regular external coordination, nor perhaps even rules of recognition. Indeed, the situation

called into being by Roman theory comes very close to what Nico Krisch calls institution-

al or even systemic pluralism.

But in the perspective of practice, this is not what we see. Or, one might say that

systemic pluralism, if it ever came into being, did not turn out to be sustainable. Rather,

the fit or relationship between legal orders—which was in theory so narrowly hierarchical

that among the Romans, at least, one could legitimately characterize it as parallel—was

43 See Riten, supra note 4.

44 Such turns by individuals to Roman courts could possess any number of motivations; an important and well-attested one is the relative sympathy of Roman law to women’s property rights. Martin Goodman, Ba-batha’s Story, 81 J. Roman Stud. 169 (1991); Clifford Ando, Exemplum, Analogy and Precedent in Roman Law, in Between Exemplarity and Singularity: Literature, Philosophy, Law (Michèle Lowrie & Susanne Lü-demann eds., forthcoming 2014).


gradually transformed, such that the various local legal orders of the empire at large,

which had previously existed in a purely hierarchical relation with Roman institutions,

were gradually reoriented in fractal subordination to them. This reorientation came about

from a number of causes, of which I single out three for comment here.

A. Appeals to Roman Courts

When Roman magistrates heard cases between aliens as a court of first instance,

they were supposed to apply local norms. This is urged in regard to private law in a num-

ber of normative statements preserved in the Digest. For example, in the later second cen-

tury CE, in his commentary on the jurisdictional rules posted by provincial governors,

Gaius urged that “when land is sold, the transaction should be in accordance with the cus-

tom of the region, and the undertaking in respect of eviction should be adapted accord-

ingly.”45 The situation in respect to public law was similar. For example, as provincial gov-

ernor of Bithynia-Pontus early in the second century CE, Pliny wrote to the emperor Tra-

jan concerning a request from the city of Nicomedia to move its temple of the Great

Mother of the Gods. He was unable to locate any local regulation to apply and asked Tra-

jan whether he should apply Roman law. Trajan responded that Roman law could not be

applied, as the soil of an alien community was not susceptible of dedication as it is prac-

ticed under Roman law. If, therefore, Pliny could find no local regulation, the city should

be permitted to do as it pleased. The clear implication is that Pliny as Roman governor

would have been told to enjoin the locals to follow their own law, had any applicable

norm existed.46

Aliens regularly used Roman courts as courts of the second instance, regardless

of the source of substantive law employed in the court of first instance. The choice-of-

law rule described above notwithstanding, Roman magistrates exercising jurisdiction in

courts of second instance were in practice free to overturn the results of lower courts on

virtually any grounds. For example, a fragmentary decree by an unknown emperor pre-

served at Nicomedia in Asia Minor contains the phrase: “if the Council unjustly . . .”47

Alas, the top, bottom, and sides of the text are damaged, with the result that neither the

identity of the emperor who issued the decree nor the situation that provoked his utter-

ance can be recovered. Nonetheless, it seems clear from the grammatical form of the

conditional that the Roman emperor urges that decisions taken by local authorities in ac-

cordance with local law are susceptible to reversal if made unjustly. Note that the question

is not one of procedural or substantive correctness; instead, it rests on the degree to

which local procedure actualized Roman principles of justice.

45 Gaius, Ad edictum provinciale bk. 10 fr. 242 Lenel (also at Dig. 21.2.6); see also Julian, Digest bk. 84 frag. 819 Lenel (also at Dig. 1.3.32.pr.); Imperial Rome, supra note 4, at 78-89.

46 Pliny, Epp. 10.49-50.

47 4 Tituli Asiae Minoris, fasc. 1, text no. 3 (Friedrich Karl Dörner ed., 1978); the text may also be read in James H. Oliver, Greek Constitutions of the Early Roman Emperors from Inscriptions and Papyri, text no. 94, 239 (1989); see also Julien Fournier, Entre tutelle romaine et autonomie civique. L’administration judi-ciaire dans les provinces hellénophones de l’Empire romain (129 av. J.-C. - 235 apr. J.-C.) 521 (2010).


Another such case is described in the famous second century CE petition of Dio-

nysia.48 The case arose because Dionysia’s father, Chaeremon, sought to compel his mar-

ried daughter to divorce her husband and return to his home. Chaeremon claimed before

the court that in contrast to Roman or Greek law, Egyptian law allowed fathers to com-

mand their daughters to divorce their husbands. The proceedings were halted so that the

father could produce textual support for his claim, which he duly did. It is crucial to ob-

serve that the Roman magistrate who ordered the delay did not dispute Chaeremon’s

claim that Egyptian law should apply; and the documentary evidence from earlier pro-

ceedings cited by both sides makes it clear that the father’s substantive claim about the

content of Egyptian law was correct, or, at least, that neither side disputed his representa-

tion of it. Nonetheless, Dionysia is able to cite several proceedings before Roman magis-

trates in which, the relevant Egyptian law having been read aloud, Roman magistrates an-

nounced a preference that the married daughter be allowed to choose, or, in one case, that

marriages not be broken apart.49

Although Roman courts often took pains to specify that appellate decisions were

not generalizable and, moreover, that reversals were not intended to subvert the integrity

of local law, non-Roman courts (and potential plaintiffs) must have taken note. The grad-

ual accumulation of such cases, and the increasing prominence of Roman courts as courts

of second instance, must have exerted pressure on future litigants, as well as non-Roman

institutions, to conform their conduct outside Roman tribunals and prior to Roman ac-

tion, to the formal standards observed within Roman tribunals, whenever there existed

the potential that a given case might be appealed to a Roman official.50

B. Local Use of Roman Procedure

As with principles of equity, so with procedure. A number of documentary

sources suggest that in certain cases, or certain types of cases, Roman magistrates en-

joined local officials to employ Roman practices and procedures, without any related de-

mand that they observe Roman positive law. The question for us concerns the extent to

which an enforced institutional and procedural homeomorphy will have urged an increas-

ing homology at the level of principle. Alas, often enough it is only the normative texts

that are preserved. For example, the jurist Marcian, writing at Rome at least a half century

later, reproduces a decree issued by the emperor Antoninus Pius (r. 138-161 CE) when he

was governor of the province of Asia, concerning the procedures to be followed by local

police and officials in treating criminal defendants:

48 2 The Oxyrhynchus Papyri, text no. 237 (Bernard P. Grenfell & Arthur S. Hunt eds., 1899). Recent legal-historical treatments of this text include: Claudia Kreuzsaler, Dionysia vs. Chairemon: Ein Rechtsstreit aus dem römischen Ägypten, in Fälle aus der Rechtsgeschichte 1 (Ulrich Falk, Michele Luminati & Matthias Schmoeckel eds., 2008); and Claudia Kreuzsaler & Jakub Urbanik, Humanity and Inhumanity of Law: The Case of Dionysia, 38 J. Juristic Papyrology 119 (2008), which provide full bibliographies.

49 See Oxyrhynchus Papyri, supra note 48, § 2, text no. 237, col. VII ln. 19-43.

50 Pluralisme juridique, supra note 29.


There is indeed extant a chapter of the rules that the deified [Antoninus] Pius issued un-der his edict when he was governor of the province of Asia, to the effect that irenarchs [local peace-keepers], when they had arrested robbers, should question them about their associates and those who harbored them, make transcripts of the interrogations, seal them, and send them to the attention of the magistrate.

Therefore, those who are sent [to court] with a report [of their interrogation] must be given a hearing from the beginning although they were sent with documentary evidence or even brought by the irenarchs. The deified Pius and other emperors have written in re-scripts to this effect: that even in the case of those who are listed as wanted, if anyone appears to prosecute one [of these], the defendants should not be treated as condemned but as though a charge were being laid afresh. Accordingly, when someone carries out an examination, the irenarch should be ordered to attend and to go through what he wrote. If he does this painstakingly and faithfully, he should be commended; if with insufficient skill and not with thorough reasoning, [the judge] simply notes that the irenarch has ren-dered an inadequate report; but if [the judge] finds that his interrogation was in any way malicious, or that he reported things that were not said as if they had been said, he should impose an exemplary punishment, to prevent anyone else trying anything of the kind afterward.51

In this case, the standards of Roman courts are imposed upon local policing directly, be-

cause Roman courts were the courts of first instance for serious criminal cases, specifical-

ly, those involving injurious physical or capital punishment.52 Moreover, what is ordained

is not simply some set of abstract principles, which might be realized from locality to lo-

cality in different ways, but a set of practices, by which certain rules of evidence and

techniques of knowledge production are enjoined on non-Roman communities.

C. Courts as Institutions for Knowledge (of Law) Production

The final issue of practice that I wish to discuss concerns very loosely knowledge

of law. The problem may be simply stated: there were many contexts in which local sub-

stantive law was not known or not knowable to a degree of certainty appropriate to Ro-

man norms, or perhaps even did not exist qua codified law. How were Roman courts to

conduct themselves in such cases?

This is a very large and complicated problem of procedure and legal theory—and,

in an ancient context, of evidence—on which I have work forthcoming.53 Research in this

area must focus nearly exclusively on the Greek-speaking provinces of the eastern Medi-

terranean and especially on Egypt, the only ancient context where records of proceedings

and judicial petitions survive in meaningful numbers. Reviewing the evidence available for

law in practice, I suggest that Roman judges in colonial contexts regularly relied on the

adversarial process to determine the relevant law to apply, through competing claims

51 Marcian, De iudiciis publicis bk. 2 fr. 204 Lenel (also at Dig. 48.3.6.1).

52 Cédric Brélaz, La sécurité publique en Asie Mineure sous le Principat (Ier-IIIème s. ap. J.-C.): Institutions municipales et institutions impériales dans l’Orient romain (2005); Eparcheia, autonomia e civitas Romana: Studi sulla giuridizione criminale dei governatori di provincia (II sec. a. C. - II d. C.) (Dario Mantovani & Luigi Pellecchi eds., 2010); Christopher J. Fuhrmann, Policing the Roman Empire: Soldiers, Administration, and Public Order (2012).

53 Ando, supra note 44.


about local norms, as these had been vindicated in prior legal proceedings. Indeed, some-

thing like this occurred at Rome itself in Roman procedure, where disputants might con-

test which formula for a legal action most nearly mapped the dispute at hand. As a result,

certain rules about knowledge, and certain technologies for knowledge production—as

well as particular forms of argument about norms and certain conventions to determine

whether they are normative—came to operate in local contexts, the content of the norms

notwithstanding. All this made Roman courts in non-Roman contexts—made legal con-

duct in those contexts—very Roman, even among aliens.

For now, let me focus on a single instance instead from the Roman West: a clause

from the generic municipal charter drafted at Rome under the Flavian dynasty (69-96 CE)

and granted to the cities of Spain in the last third of the first century CE, when a very

great number of them were officially re-constituted as “Latin,” a status in public law

somewhere between alien and Roman.54 The clause in question concerns small technicali-

ties of civil procedure:

Rubric. According to what law notice for the third day may be served, the day may be postponed or have been postponed, a matter may be judged, a case may be at the peril of the iudex [a lay judge assigned to hear the case by the relevant magistrate with jurisdic-tion], a matter may cease to be under trial:

. . . if judgment has not taken place within the time laid down in Chapter XII of the Lex Iulia that was recently passed concerning private law trials and in the decrees of the sen-ate that relate to that chapter of the statute, so that the matter be no longer under trial; the statute and law and pleading is to be as it would be if a praetor of the Roman people had ordered the matter to be judged in the city of Rome between Roman citizens.55

The remarkable nature of this text is perhaps best appreciated by measuring the gulf sep-

arating Roman jurisdictional laws generated at Rome in the late Republic and early Princi-

pate from texts such as this. Jurisdictional laws of the late Republic—including the Lex

Iulia cited in this clause, which was moved by the emperor Augustus himself—explicitly

distinguished between Rome and everywhere else: in matters of import, they reserved

power and capacity of judgment to the metropole. They also cleaved the empire socially,

restricting access to Roman procedure and Roman courts to Roman citizens.56 The multi-

ple meanings of civitas in Gaius’s definition of ius civile return to us again.

In contrast, the Flavian municipal law cited here preserves the distinction between

Rome and elsewhere only to upend it, by means of a fiction that operates on two levels,

geographic and social, for it dissolves both distance in time and distinctions in the legal

status of persons. Disputes between residents of the town who are nonetheless aliens in

respect to Rome are to be resolved “as if a praetor of the Roman people had ordered the

54 On “Latin” status, see Hartmut Galsterer, Municipium Flavium Irnitanum: A Latin Town in Spain, 78 J. Roman Stud. 78 (1988).

55 Lex Flavia municipalis ch. 91; I adapt the translation of Michael Crawford published in Julian González, The Lex Irnitana: A New Flavian Municipal Law, 76 J. Roman Stud. 147 (1986).

56 Landscape of Empire, supra note 29, at 26-28.


matter to be judged in the city of Rome between Roman citizens.” Provinces and provin-

cials are thereby assimilated to Rome and Romans.

V. Sovereignty, Political Theology, and Nomic Legitimacy

If we return now to Cover, we can identify three problematic and loosely interrelated

suppositions that subtend the argument, concerning the voluntary or democratic status of

law-making communities; political theology; and sovereignty. I take these in turn.

First, Cover understands the subordinate groups for whose autonomy he argues

to be liberal in their constitution. Their members voluntarily seek to belong and individu-

ally assent to the norms of the association:

Liberty of association is not exhausted by a model of insular autonomy. People associate not only to transform themselves, but also to change the social world in which they live. Associations, then, are a sword as well as a shield. . . . Despite the interactive quality that characterizes transformational associations, however, such groups necessarily have an in-ner life and some social boundary; otherwise, it would make no sense to think of them as distinct entities. It is this social organization, not the datum of identity of interest, that requires the idea of liberty of association. Commonality of interests and objectives may lead to regularities in social, political, or economic behavior among a number of individ-uals.57

For Cover speaking in the abstract, then, it follows from the voluntarist nature of these

groups that the norms established by their members are democratically authorized and

emancipatory in ambition: hence the claim that follows, to the effect that “[s]uch regulari-

ties, however, can be accommodated within a framework of individual rights.”58 This as-

sumption would seem furthermore to undergird the subtitle he gives to this section, “Re-

demptive Constitutionalism,” which he explains in the following terms:

The discontinuities between the respective visions, constructions of reality, and norms posited by some such associations and by the state’s authoritative legal institutions may be considerable. I shall use the term “redemptive constitutionalism” as a label for the posi-tions of such associations whose sharply different visions of the social order require a transformational politics that cannot be contained within the autonomous insularity of the association itself.59

It is, of course, precisely these two difficulties—(i) that membership in such associations

is not voluntary, at least for non-adults; and (ii) that their norms of conduct, what Cover

calls the “regularities” that arise in social, political and economic behavior, often cannot

be accommodated within the rights regime of the superordinate polity—that have attract-

ed the attention of liberal critics of multiculturalism. Cover labels such dissonances be-

tween the normative orders of sub-political association and superordinate polity “discon-

tinuities,” and so effaces the problem of deontological evaluation.

I will turn in a moment to the question of the authorization and legitimacy of the

norms of such semi-autonomous groups at the level of theory. But there remains a con-


58 Id.

59 Id. at 132.


siderable political question, whether such dissonance in normative principles can in fact

be sustained over time. The Roman experience suggests a number of mechanisms where-

by, in practice, normative orders that Roman theory characterized as parallel were gradual-

ly and inexorably transformed, such that the various local legal orders of the empire at

large were ultimately reoriented in a relation of procedural and doctrinal homology to the

metropole, in what I have characterized, here and elsewhere, as a relation of fractal sub-

ordination. One observes similar phenomena at an institutional level across imperial bor-

ders—to wit, that peoples on the margins of empire develop in ways structurally homolo-

gous to the imperial state, so that even resistance or mere survival produces assimila-

tion60—and it would be surprising if the same were not true internally as an effect of

power and contact.

Second, Cover deliberately effaces questions of political theology. He does so

obliquely, of course, in speaking of “regularities” of conduct arising in Aristotelian fash-

ion from patterns of behavior, as opposed to being delivered on Sinai. But he also does

so knowingly, as when he turns from a genealogical digression on the origins of associa-

tional autonomy as a privileged goal of religious communities to the question of how the

state should understand the status of their norms:

Freedom of association is the most general of the Constitution’s doctrinal categories that speak to the creation and maintenance of common life, the social precondition for a no-mos. From the point of view of state doctrine, the simplest way to generalize the points I have made concerning the ways in which various groups have built their own normative worlds is to recognize that the norm-generating aspects of corporation law, contract and free exercise of religion are all instances of associational liberty protected by the Consti-tution. Freedom of association implies a degree of norm-generating autonomy on the part of the association.61

Cover makes similar moves when he urges that each such semi-autonomous group must

tolerate all others—in his words, must “accommodate in its own normative world the ob-

jective reality of the other”—and in the same gesture postulates some neutral, “non-

statist” position from which a person might adjudicate between systems of norms.62 His-

torically, however, it has often been minority religious groups that most violently espouse

exclusivist ideologies, and it is often by enforcing toleration as a norm on such groups in

their relations with each other that imperial orders have earned the esteem of modern

theorists of tolerance.63 What is more, the neutrality that Cover requires is not simply

nonstatist: it requires that the various sources of norms be understood in non-hierarchical

relation. That was, of course, a supposition of Roman theory, as I have tried to show. It

was not practicable then; it is, I think, untenable now.

60 Thomas J. Barfield, The Shadow Empires: Imperial State Formation along the Chinese-Nomad Frontier, in Empires: Perspectives from Archaeology and History 10-41 (Susan Alcock et al. eds., 2001); Imperial Rome, supra note 4, at 100-03.


62 Id. at 125.

63 See, e.g., Michael Walzer, On Toleration 14-19 (1999).


One index of its unsustainability is precisely that Cover works so hard to assimi-

late religious to non-religious foundations for normative dissent. This was visible inter alia

in his turn to “association” as a term of art, whereas he had previously deployed “group”:

the one has constitutional purchase that the other does not. On one view, the difference

between religious and non-religious foundations for dissent is simply one of degree:

The purpose of the first amendment free exercise clause for members of this church is constituted, in part, by a live sense of the crisis of obligation posed by their religious be-liefs. Now logically, any person who considers his or her obligation to the law of the state to be measured by some standard—ethical, religious, or political—that is external to the law itself faces the same potential dilemma as do the Mennonites and the Old Order Amish. But not all of us who affirm an external limit to the obligation we owe the law identify ourselves with narratives in which just such a theoretically possible dilemma be-comes the paradigmatic crisis.64

But Cover knows that the groups seeking “nomian autonomy” are principally religious in

orientation, not least because religion was at the heart of the case that inspired the es-

say—to wit, Bob Jones University v. United States.65 What is more, Cover knows that, for the

religious, “the same potential dilemma” assumes existential proportion at a general level

because religious groups often posit a transcendent source for their norms. It does so for

Christian and Jewish sectarians in particular because the metanarrative that undergirds

their relation to the state—or structures “their . . . myths,” to use Cover’s language—is

one of persecution, whereby statally authorized violence forms the crucible in which reli-

gious identity is claimed, affirmed, and vindicated.66

Finally, sovereignty. I thus return to the general remarks with which I began, but

not to Cover nor, for that matter, to contemporary legal theory. I turn rather to Hobbes,

to chapter 26 of Leviathan, “Of Civill Lawes,” and to the fifth of his deductions—to wit,

that “Provinciall Lawes are not made by Custome, but by the Soveraign Power.”67 Hobbes

derives this proposition from his definitions of civil law, on the one hand, and of sover-

eignty by acquisition, on the other:

If the Soveraign of one Common-wealth, subdue a People that have lived under other written Lawes, and afterwards govern them by the same Lawes, by which they were gov-erned before; yet those Lawes are the Civill Lawes of the Victor, and not of the Van-quished Common-wealth. For the Legislator is he, not by whose authority the Lawes were first made, but by whose authority they now continue to be Lawes. And therefore where there be divers Provinces, within the Dominion of a Common-wealth, and in those Provinces diversity of Lawes, which commonly are called the Customes of each severall Province, we are not to understand that such Customes have their force, onely from Length of Time; but that they were antiently Lawes written, or otherwise made known, for the Constitutions, and Statutes of their Soveraigns; and are now Lawes, not


65 461 U.S. 574 (1983).

66 Cover, supra note 17, at 131. On the importance of violent confrontation with statal authorities to Chris-tian and Muslim ideologies of religious autonomy, see Thomas N. Sizgorich, Violence and Belief in Late Antiquity: Militant Devotion in Christianity and Islam (2008).

67 Thomas Hobbes, Leviathan 185 (Richard Tuck ed., 1996).


by vertue of the Praescription of time, but by the Constitutions of their present Soveraigns.68

Hobbes offers, it seems to me, a fitting riposte to Cover, on at least two levels. First,

where Cover employs the terminology of empire to explore the legal pluralism of con-

temporary America largely in the spirit of metaphor, Hobbes performs a two-fold reversal

of this explanatory move. That is to say, Hobbes both describes empires as common-

wealths and insists that in so doing he speaks literally and not metaphorically. They are,

rather, equivalent in their legitimacy, their political forms, and their status as sources of

law. The creation of England from some merger of Norman and Anglo-Saxon, the latter

of whose norms retained their validity when William the Conqueror allowed them to

stand, is a case in point.69

The second way in which Hobbes offers a fitting riposte to Cover is as follows.

Hobbes turns out to be a more astute theorist of Roman practice than was Gaius or the

jurisprudential tradition for which he often stands, whose conception of civil law as a

product of communal self-deliberation has been responsible for much of the misrecogni-

tion of Roman law qua civil law under which the European legal tradition has labored.

That the form of local governance was derived from Roman authority, not ancient cus-

tom, is apparent from the surviving instruments of Roman public law that attest, in con-

temporary language, to those acts by which Roman magistrates conceded to conquered

peoples the right to use their own laws. These documents universally describe such grants

of autonomy as sovereign acts of the Roman people, who are thereby positioned as su-

perordinate to all local and communal social orders in the empire at large. The first text

below is excerpted from a decree of Lucius Aemilius Paulus, governor of Hispania Ulte-

rior in 189 BCE; the second is excerpted from the record of an unconditional surrender

performed in Spain before Lucius Caesius, son of Gaius, in 104 BCE:

The land and city which they possessed at that time, he ordered them to possess and to hold exactly those things, so long as the Roman people and Senate wish.70

. . . [T]hen Lucius Caesius son of Gaius, imperator, ordered them to be free and the lands and buildings and laws and all other things which were theirs on the day before they sur-rendered themselves . . . he gave back to them so long as the Roman people and Senate wish.71

Crucially, for those concerned with problems of pluralism and multiculturalism in mod-

ern liberal states, Roman theory and practice in respect to religion mirrored that in respect

of law, with implications for political theology. As proof, consider the definition of “mu-

nicipal rites”—meaning the religious rites of autonomous municipalities within Roman

territory—provided by the early imperial lexicographer Festus. Although this definition

might be supposed to have a status similar to the generalization offered by Gaius in his

68 Id. at 185-86.

69 Constable, supra note 8, at 82-83.

70 1 Inscriptiones Latinae Selectae, text no. 15 (Hermann Dessau ed., 5th ed. 1892).

71 Epigrafia latina republicana de Hispania, text U2 (B. Díaz Ariño ed., 2008).


definition of civil law—namely, a late, second-order theorization of earlier practice—on

the question where the Romans conceived decisionist power to lie, Festus comes far clos-

er to the truth:

Those rites (sacra) are called municipalia [a municipium being a notionally autonomous civic community] that a people had from its origin, before receiving Roman citizenship, and which the pontifices wanted them to continue to observe and perform in the way in which they had been accustomed to perform them from antiquity.72

According to Festus, as with grants of autonomy, so in respect to religion. The continu-

ance of local religious customs and institutions after Roman conquest was not simply the

preference of indigenes—an issue that he frankly does not address. It was, rather, the

preference of Rome itself, which thought its own interests served by the ongoing mainte-

nance of local social orders. The political import of cultural autonomy for constituent

populations within larger political formations must be interpreted in light of such evi-

dence as this.

The question for modern religious minorities is whether their submission to the

decisionist power of statal authorities enacts a reversal of precisely the theological hierar-

chy that motivates their dissent in the first place. This concern abides entirely to one side

of the normative concerns that recognition of minority religious law raises for human

rights advocates. The same might be said, mutatis mutandis, regarding the notional sover-

eignty of subordinate communities that submit their legislative authority to the approval

of Rome, or of Brussels.

One is forced to ask whether Mar Samuel did not carve out a more prudential and

protective space for Jewish life under Sasanian rule when he offered his famous dictum,

“the law of the land is the law.” Like Cover, he effects a conceit, namely, he declines to

affirm that he is talking about religion or theology at all. Unlike Cover, he does so from

the religious position, looking toward the state. But in affirming the legitimacy of the

state’s power, he affirms it as secular. That strikes me as prudent. The question we ask

ourselves today is whether theoretical resources exist for such bracketing between secular

powers in modern federalist systems. The Roman case suggests the answer, “No.”

72 Festus s.v. municipalia sacra = Festus, De verborum significatu cum Pauli Epitome 146 (W.M. Lindsay ed., 1913).

Documents

Pluralism and Empire: From Rome to Robert Cover