Capogrossi Colognesi, Law, Power, Roman Commonwealth
How this machine functioned concretely, formal rules, formal equality, why it evolved, centrality of the legal sphere in Roman society, law imposed the framework..
Luigi Capogrossi Colognesi wrote:
Introduction
… If I have ventured to add yet another volume to an already copious literature … it is because of my growing dissatisfaction with much of this scholarship. The formalism typical of our disciplines, including the history of the law, has very deep roots, and has lent the tradition the weight of scientific authority. A large number of important works have come out of this tradition that seek to describe and analyze in detail the countless component parts of the complex machine that was Roman law. Such works, however, seem less interested in examining how this machine functioned concretely. In short, they are unable – to use a well-known image by a great nineteenth-century Roman historian, Rudolf von Jhering – to move beyond a system’s anatomy to the study of its physiology. In my experience of modern legal historiography, I have encountered impressive reconstructions that have had a lasting impact on the field, but which basically propose models that could not have worked in practice, making them of little use for an understanding of the way in which such a society operated. …
In this book I have tried to clarify – not least for my own benefit – how the Roman system actually worked in practice. I hope I have succeeded in providing both a clear and a plausible reconstruction of how Rome’s legal mechanisms, formal rules, and institutional structures emerged out of a specific social context, serving to regulate it, as well as in examining how and why they evolved. My primary objective has been to relate these elements to each other, a focus that has necessarily entailed sacrificing some descriptive detail.
By dwelling on the constantly renewed tension between formal institutions and rules on the one hand, and competing forces and interests on the other, I have tried to capture the dynamic element of the Roman constitution, in which “the legal” was constantly being reshaped and redefined. Undoubtedly, working from the vantage point of a “constitution in the making,” as opposed to describing a set of norms defined once and for all, means that this book approximates more closely the way British jurists and political theorists have examined and discussed their institutions rather than the scholarship on constitutional law typical of the Continental tradition – a fairly obvious choice, since the Romans never dreamed of creating a definitive constitutional charter, much less of setting it down in writing. …
… [It] is not only in political and other historical events that we can see the connection between larger underlying shifts, pertaining primarily to the structure of society, and the impact made by individual personalities on key events. …
… The title of the book reflects its basic interpretive framework: power and the law are the two reference points whose complex interaction shaped the history of Rome. If I sometimes appear to overemphasize the divergence between the two, it is purely to avoid falling back into a conceptual cage from which we are only now breaking free, and which tended to conflate these categories. It is a cage largely constructed of concepts drawn from contexts alien to the Roman experience, such as “the state” or a “constitution”. In this respect, it is important to point out how far we have shifted … from the framework of modern statehood …
In accordance with this approach, I have thought it best to avoid referring to these concepts, and also tread carefully around another key term widely used by historians of classical antiquity: that of the “city-state”, a seemingly innocuous and purely descriptive nineteenth-century coinage that is in fact quite otherwise. For the increasing reliance of contemporary historians and political scientists on this interpretive tool has, through apparently objective references and analogies that strike me as somewhat arbitrary, insensibly fostered interpretations of ancient societies that have strong ideological implications. …
… As for the republic’s political organization, a number of things seem to confirm the remoteness of the Roman model from our own paradigms, which since the Middle Ages have tended to define political systems in terms of a unitary hierarchical order. The Roman republic, however, seems to have evolved a balance characterized primarily by the overlap and substantial competition between institutions. In short, the mutual controls and negotiations in Rome’s political life were primarily marked by a confusion among the roles of the various power-bearing agents in the city. It is not possible to identify the distinct components of an abstract, unitary sovereignty, each associated with a different body and reflecting a system based on the balance of separate powers. On the contrary, what we see is rather a tension, and an unstable equilibrium, owing to the complex multiplicity of functions carried out by various co-holders of power, whose roles sometimes overlapped, and who had to cooperate and control each other’s actions internally, without reference to any external framework.
This equilibrium would long remain a function of the res publica’s aristocratic structure, which would survive into the late principate, helping to shape Rome’s expansionist policy. The aristocracy’s dominance was linked to its control of the sectors most vital to Rome’s power: the military and politics. But also of the science of the law, since I believe that the monopoly over legal knowledge that the senatorial aristocracy held for so long was certainly enabled, if not produced, by its awareness that gaining mastery of legal techniques and the workings of institutional mechanisms was essential to handling and preserving power. It is one of the great innovations introduced by the Romans: Rome and its nobilitas did not, of course, invent the law, but they did valorize, perhaps like no other ancient society, all those techniques of mediation and social – and political – dominance that this tool afforded, effecting a new soldering of “power” and “the law”. In this way they created, perhaps for the first time, a rational and “scientific” modus operandi for the definition, interpretation, and application of legal rules. …
… Clearly, in any social order the interpretation of the law has a creative dimension, allowing it to flourish and develop further; but in what state-centered system where the law is identified with the “command of the sovereign” would we witness such a clear expression of the idea that the legal system was also the product of the personal opinions of private citizens such as Rome’s iuris prudentes? …
… My historiographical interpretation, with its strong insistence on the persistent aristocratic and hierarchical character of Roman society, is informed by a conscious decision to exclude from my set of analytical tools the notion of “the state,” as mentioned above. For the modern political categories that revolve around the two concepts of “liberty” and “democracy”, and the concrete actualization of such values in the Western political experience, emerged within a new frame of reference centered on the nation-state. Naturally, the non-existence of this key concept in the theoretical universe of the ancients also means that ideas of freedom, as well as the particular physiognomy of certain forms of democracy or popular political participation, which were indeed significant in the Roman experience, were nevertheless configured in a thoroughly different way from our own.
The tension between Roman power and the law is perhaps even more striking where Rome’s expansionist policy is concerned. For centuries, the vertiginous increase in the power wielded from Rome’s imperial center was accompanied by a singular process of fragmentation – indeed, near-dissolution – of the civitas Romana as a result of the proliferation of personal and legal status categories that Rome devised as it created its municipia and founded its colonies. Such arrangements ensured the loyalty and dependence of this polymorphous constellation of communities, but they also postponed, and gradually worsened, a root problem: that of the growing inability of the great political instrument invented by classical antiquity – the “city” – to keep pace with the expansion of its power.
We can see here the irreconcilable contradiction at the heart of the city. The immense obstacles standing in the way of granting full citizenship to all Italians were not only due to the self-interested and egotistical impulses that put a stop to Rome’s long-standing liberality in granting its citizenship – and which led to the downfall of Gaius Gracchus and then Drusus, and eventually to the Social War. What most weighed in the balance were the inherent limits of the original political edifice erected in classical antiquity, when the city was a sovereign and self-sufficient entity. The excessive “quantitative” growth of a city, as occurred with Rome, threatened the very nature of this model, which was based on the direct participation of the whole community of citizens in the political process. This problem was certainly not solved by the measures that the Roman ruling class was finally forced to adopt after the Social War. On the contrary, one can argue that granting Roman citizenship to all Italians further contributed to the irreversible legitimacy crisis of the ancien régime. The civitas now was at risk of dissolving into a new, but as yet “unfinished” Italy.
Although patron–client ties, hierarchical relationships, and institutional loyalties continued to ensure that the new civitas retained some degree of internal cohesion, the city-centered structure of the old political system was clearly inadequate to the task of governing an empire. All the more so since the formidable war machine the Romans had been building at least from the time of the Hannibalic wars, and which had allowed them to acquire an empire with relative ease, had now become an exorbitant burden, putting added strain on the political balance within the city. …
… My interpretation stresses how new layers of special powers and ad hoc functions were gradually inserted within the traditional republican system, with a view to resolving issues left unaddressed by the ordinary republican institutions. In time, these new offices became permanent, contributing to the dissolution of the old order. …
… [We] examine the rise of what I call Rome’s “empire of cities,” where the poleis, with their own political as well as administrative identity, far from disappearing, proliferated and were in some ways strengthened, to the point of becoming the most effective instrument for Romanizing the ancient world. This, finally, is the central ambiguity of Rome: it continued to retain its urban character, but its governing bodies were simultaneously also the organs of universal empire.
And indeed, as it expanded, the empire seems to have followed the same path previously taken by the republic, except that now a new stability was guaranteed by the figure of the princeps. This is what made possible the transformation of a city’s empire into an empire of cities.
The outcome of this broad readjustment of the balance between center and periphery is well known, especially from an economic standpoint: it ensured Rome’s continued existence. But the new equilibrium also greatly increased the channels for social circulation and advancement in the Roman world …
… Once the process of unifying Roman power and Roman law was largely complete, thanks to the gradual concentration of legislative and juridical powers in the princeps’ hands, the highest phase of Rome’s imperial history can be said to have reached its peak. And the extent to which Roman government and the production of law had become identified with the principle of sovereignty … would become even more apparent in the next phase of Rome’s history.
Widely discussed and yet sometimes underestimated is the importance of the final moment of Rome’s long process of political integration: the con- cession of Roman citizenship to all the inhabitants of the empire … This appears to be the natural outcome of the long history of integration that is such a defining Roman feature. It is a point that I will stress repeatedly and in various contexts: from the many contrivances to reduce the gap between citizens and foreigners, so typical of the ancient city and its strong but circumscribed identity, to the various mechanisms for the gradual absorption of conquered peoples – although nearly always confined to their elites – into the Roman civitas. Nor should we forget that other mechanism for social mobility, already in operation during the republic, whereby a Roman citizen could award his slaves at once their freedom and Roman citizenship. Perhaps no other factor, not even the art of war and the Romans’ strong social discipline, contributed as much as this to Rome’s extraordinary and lasting success. …
… The fact that the Romans had fewer prejudices and ideological obstacles to overcome in advancing these processes – while retaining a strong and constantly replenished social hierarchy at the center – speaks to the radical difference between Rome’s history and that of other great empires of later periods. But if ethnic, cultural, and even religious barriers appear to have been less impassable here than elsewhere, it is due primarily to the centrality of the legal sphere in Roman society.
The law did not suppress social hierarchies and even less so political privileges, but it did create the conditions for formal equality among all members of the community, enabling them to enter the field and play the game. What is more – and this is the main point – it allowed new contestants to vie for advancement without handicapping them in any particular way.
It was thus the formal features of the law that imposed a framework in which the political community could continue to expand while undergoing a constant process of recomposition.
These are the things that, over time, would define the character of the entire imperial system and the form of power on which it rested, a power that – here as in the title of the book – I consider to have been expressed not only through material force but also through the binding force of historical and social factors … What we see here is “power” being transformed into “regulation” through the force of law, and thus becoming a fundamental and lasting factor in the integration of the different populations of the empire. In these pages, I have at times used the term “Romanization” in this context …
… An important interpretive key for understanding the underlying framework of the Romans’ imperial construction is the extended range, but also the narrow focus, of their power politics. Military control and the peaceful subjection of the many communities under Rome’s dominion, tax levies, and the subjects’ ability to supply the material support necessary to fuel Rome’s colossal political and military machine was what really mattered to the Romans, and what they pursued, sometimes very ruthlessly. Where all else was concerned, there was ample room for local autonomy and local identities to remain undisturbed.
Only indirectly, and by virtue of that centripetal force exerted by every “strong” form of power, was a process sparked whereby Rome’s subjects auto-assimilated, and this primarily concerned the urban elites. Rome’s imperial history is therefore more a story of circulation, mutual exchanges, and integration rather than assimilation, let alone forced assimilation. Even more than the language of the dominant population, a remarkably effective tool facilitating this circulation was its law.
Roman law emerged and flourished for centuries outside the narrow confines of “the Law” understood as the expression of sovereign power. In time, however, the two would merge. The conditions for this were already in place at the time of the Severans, but it would be Justinian’s great summa of the whole Roman normative system and jurisprudence that would mark the end point of this historical process – and the starting point of a new one. In this book, however, the story of Roman power stops sooner, with Diocletian.
My entire account is focused on the polarity between power and the law, and one of the points where this dialectic reaches its most fruitful expression is precisely on the eve of crisis, during the Severan age. This is when I believe we can discern the first signs of a “modern”, “statist” conception, in which the sphere of sovereignty becomes fully identified with the sources of law. This was a thoroughly secular process, as we shall see, independent of any reference to a “higher” value system on which to lay the foundations of the legitimacy of the sovereign, which still rested wholly on the society that produced it and was governed by it. In this construction, the history of Rome is firmly tied to the world we associate with “classical antiquity”, that of the Greek poleis and of Rome itself: a world that was full of religion and religiosity, but which was not governed by them. And it is here that a rupture occurs with the period following Diocletian, when this tradition begins to be challenged – and changed – in the name of other values.
[END INTRODUCTION]
The Source:
Luigi Capogrossi Colognesi, Law and Power in the Making of the Roman Commonwealth, originally published in Italian by Il Mulino 2009 as Diritto e potere nella storia di Roma, 2009, English translation by Laura Kopp, Cambridge University Press 2014
The ‘Acknowledgments’ emphasises the original (2009) book was extensively revised during translation in concert with Peter Garnsey* of Cambridge University.
[Noteworthy comments from ‘Acknowledgments’]
Peter Garnsey* has reread the text word by word, acting as only a good teacher can in helping a young person embark on his scientific adventure, correcting his errors, giving him suggestions of all kinds, providing bibliographical references, discussing ideas and structure. … As for Peter [Garnsey], I will say it again: the hundreds of pages of our correspondence during these years testify to the great debt I owe him, but above all they stand as the record of an extraordinary friendship. This book, to which he has contributed so much, is dedicated to him.
*Social Science Files longtime subscriber and regular reader
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