LITMIR.BIZ

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second fiction. In order to create an obligation exactly parallel to the law of peculium, the lex Iunia requires conduct in its aftermath to be carried out in one crucial respect as if it had not passed. The fiction of the law is of its own nonexistence.²⁷ Gaius shies from calling the resulting obligation an operation of ius peculii: it occurs, rather, iure quodammodo peculii, “in some fashion by the law of peculium.”²⁸

      About prisoners of war I can be more brief. By long-standing tradition, Roman citizens captured in war lost their citizenship status. (If they returned to Roman territory, they could recover their citizenship by right of postliminium, a word whose etymology suggests a meaning like “beyond the threshold”). But the loss of citizenship left the civil-law status of their wills, their property, and their heirs in question—for non-citizens could not write valid wills. This situation was remedied by a lex Cornelia of the late Republic, perhaps c. 80 B.C.E. That statute provided that the testamentary dispositions of prisoners of war should be treated perinde … atque si in civitate decessissent, “exactly as if they had died in citizenship.” Propter quam fictionem, “because of that fiction,” all civil-law enactments regarding testation were held to apply to the wills of those captured in war.²⁹ In the case of the lex Cornelia, then, live non-citizens are imagined as citizens, albeit dead ones.

      Of course, not everyone who died on campaign was sui iuris, an independent legal actor. Some were “sons in power,” males who remained under the control of their fathers, who therefore had no right of ownership of property but, like slaves, had a peculium, property they controlled only. The jurist Paul, writing in the first decades of the third century C.E., imagined a complex situation regarding just such a son-in-power, who left behind a codicil containing a fideicommissum, a trust, asking his father to give the savings of his military pay (his peculium castrense) to one Titius:

      A son in power who died while serving in the military charged his father by means of a codicil with a trust, to deliver to Titius his peculium castrense after death. It is asked whether the heir (namely, the father) could deduct a quarter. I said that the lex Falcidia had been extended by the Divine Pius in respect to trusts even to cases of intestate succession. That said, in the case before us, there was no inheritance, although I would have agreed that, had someone outside the family been named heir, his acceptance would have created an inheritance. As the son in our case remained in the power of his father, the erstwhile legal framework obtained and the property was peculium. Nor is this contrary to the fact that the lex Falcidia governs the wills of those who die as prisoners of war, for the fiction of the lex Cornelia creates both an inheritance and an heir. (Paul Quaestiones bk. 11 fr. 1373 Lenel = Dig. 35.2.18.pr.; Appendix passage 12)

      Paul asks the question whether the father can deduct from his son’s military savings, left in trust to Titius, “the Falcidian quarter.” (A lex Falcidia of 40 B.C.E. required that testators leave at least one quarter of their estate to their heirs, and this rule was extended to trusts in the second century C.E.) The answer is simple, according to Paul: in the hypothetical situation, there is no inheritance. The property is peculium. That is to say, the son, being a son-in-power, did not as a matter of law own the property, and could therefore not dispose of it.

      But Paul is not content with that answer. As he sees it, had the son-in-power instituted an heir outside his family, acceptance by that nominal heir would have created an inheritance. Then, indeed, his father could have withheld the Falcidian quarter, but likewise the son’s wish that his property should pass to Titius would have been respected. No matter, says Paul, that the lex Falcidia here regulates the will of someone who died as a prisoner of war: “for the fictio legis Corneliae, the fiction of the lex Cornelia creates both an inheritance and an heir.”

      Given that, by what justification can we understand the situation to create an obligation upon the father? That is to say, how might we understand the situation—how might it be redescribed using the operations of law and legal language—to permit the son to bequeath, and to require the father to respect the bequest? Paul continues: “But I also said that I did not doubt but that the charity of the law should also be satisfied, if the father were required to transfer the assets as if those of a paterfamilias and, being instituted as heir but declining acceptance under the will, he were then sued in respect of legacies on the pattern of the edict” (Paul Quaestiones bk. 11 fr. 1373 Lenel; Appendix passage 12). Paul’s answer is to carry the fiction of the son’s emancipation to its natural conclusion: if the son is imagined to be sui iuris and the father is recipient of his fideicommissum, then the father must needs be imagined as his heir—indeed, most simply as his son. The obligation upon the father to honor his son’s fideicommissum is thus understood by Paul to be entailed by the fiction of the Cornelian law, and not as a consequence of this peculiar family’s peculiar legalitarianism.

      The power Paul grants the fiction is remarkable. The desire to respect what he terms legis beneficium, the spirit or charity of the law, permits the fiction to trump civil law twice: for the son-in-power died an alien, and absent the fiction could not write a will; and had he died in civitate, in citizenship, he had no civil-law status to write a will in the first place.

      The Junian and Cornelian laws thus transferred individuals across status boundaries of many kinds, and imagined them embedded in networks of legal relations across prior and future life histories whose operations were made to depend on the susceptibility of citizenship, the civil law, and the Roman state itself, to the transgressive work of fiction.

      Fiction and Empire

      A proper history of citizenship in the Roman Empire remains to be written. Even today, the simple fact of its universal extension defies explanation. To be sure, the privileges of citizenship were gradually evacuated over the first two centuries of this era, the most significant index of that change being the exposure of lower-class citizens to progressively more savage and violent remedies at law.³⁰ But the scale of that act—the simultaneous incorporation of so vast a congeries of nations—surprises nonetheless, whether we regard it solely in light of the ethnic, cultural, and linguistic heterogeneity of the empire’s residents, or also in comparison with policies on citizenship in other empires, ancient and modern.

      My argument is that Roman law played a paradoxical role in that history.Conceived internally as a set of norms regulating the affairs of citizens, the civil law would seem a tool that could only disjoin, and never unite, citizens and aliens. But in point of fact, despite never shedding that commitment to citizen privilege, Roman law in practice came to embrace an ever widening portion of the population. This happened at different moments for different reasons—among communities of citizens far from the praetor, among aliens seeking the prestige and power of Roman courts, or among the Romanizing municipalities of Spain. Ultimately, I suggest, the endless construal of aliens as citizens naturalized the truth of that fiction, and a new political and cultural landscape was born from that revolution.

      This came about quite in spite of an awareness on the part of Roman lawyers that the operation of legal fictions required precisely that the false be taken as true.³¹ Nor did Roman lawyers maintain any illusions about the power of legal language to change the world beyond itself, as it were, whether that were some higher, ontologically more stable realm of ideas, or the realm of nature itself. As Gaius was provoked to write about the invention of a usufruct of money and a subsequent senatusconsultum establishing regulations for such: “The senatusconsultum did not bring it about that there might strictly speaking be usufruct of money—for naturalis ratio, natural reason cannot be altered on the authority of the Senate—but, this remedy being introduced, quasi-usufruct was established.”³²

      The power of the law over social reality was a different matter. There, in words of Ulpian excerpted twice in the Digest, res iudicata pro veritate accipitur, “legal decisions are accepted in the place of truth.” By that he did not intend that legal decisions are necessarily false, or themselves rest on falsehood. But it is noteworthy that his obiter dictum in fact emerged to explain the commitment of legal institutions in respect to changes in the legal status of persons, as is made clear from its other use, which provides

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