Code is an enormous body of rescripts merely restating standard doctrine, even when the judgment in the case at hand was that the illicit practice of the individuals in question would be permitted to stand. What I would stress today is the complete replacement in those texts of the vocabulary of law with that of custom, from the reign of Alexander clear through to the reign of Diocletian: pre-Roman norms are described as mos regionis, mos locorum, praeterita consuetudo, Graeco more, and so forth.22 One example from the reign of Alexander is particularly apt, as it rehearses in new language, as it were, the principle of Paul:
Praeses provinciae probatis his, quae in oppido frequenter in eodem genere controversiarum servata sunt, causa cognita statuet. nam et consuetudo praecedens et ratio quae consuetudinem suasit custodienda est, et ne quid contra longam consuetudinem fiat, ad sollicitudinem suam revocabit praeses provinciae.
After a case has been heard, the governor of a province shall decide in accordance with established practices, such as have been frequently confirmed in the same type of dispute in the town. For both consuetudo praecedens, preexisting custom, and the ratio that established the custom should be taken into consideration, and the governor of the province shall recall to his own attention the need not to allow things to occur in contravention of longa consuetudo, long-established custom. (Cod. Iust. 8.52.1 [Honoré Palingenesia 665/8/47], from 224 C.E.)
Particularly charming in this body of material are the trial balloons, when someone attempted and failed to associate an anomalous act with a fictitious local custom and got shot down: Nec apud peregrinos, not even among aliens, insisted Diocletian and Maximian, could someone make another brother to himself by adoption.23
This recuperation in actual legal practice of what had been at best occasional musings regarding the relationship between the consuetudo civium and the statutes those cives make for themselves was a time bomb waiting to explode on the civil law. For the customs now being upheld as customs were perforce the customs of citizens, albeit recently enfranchised ones. Who was to say their customs were not law?
And this, remarkably, is just what happens. In an extract from book 4 of Ulpian’s commentary on the edict, contained in the chapter of the Digest called De pactis, he takes up the problem of honoring non-civil-law forms of contract before the law:
(pr) By ius gentium, conventiones quaedam some agreements give rise to actions, some to defenses.
(2) But even if the matter does not fall under the head of another contract and yet a ground exists, Aristo in an apt reply to Celsus states that there is an obligation (obligatio). Where, for example, I gave a thing to you so that you may give another thing to me, or I gave so that you may do something, this is, Aristo says, a συνάλλαγμα, a synallagma and hence a civil obligation arises (civilis obligatio). And therefore I think that Julian was rightly reproved by Mauricianus in the following case. I gave Stichus to you so that you would manumit Pamphilus; you have manumitted; Stichus is then acquired by a third party with a better title. Julian writes that an actio in factum is to be given by the praetor. But Mauricianus says that a civil action for an uncertain amount, that is, praescriptis verbis, is available. For the contract described by Aristo with the word συνάλλαγμα has been made and hence this action arises. (Ulpian Ad edictum bk. 4 fr. 242 Lenel = Dig. 2.14.7)
The problem before Ulpian is the need to provide a generic action for disputes arising from non-Roman forms of bilateral agreement: hence his invocation of ius gentium, and the preservation within the jurisprudential (and textual) tradition of the Greek term synallagma. What must have been a largely theoretical problem for Aristo was a very real one for Ulpian.
What is remarkable here is the two-fold embrasure—perhaps not all of Ulpian’s agency—of this new action within ius civile. For the non-Roman contracts in question are said to give rise to a civilis obligatio, a civil-law obligation; and the generic action on agreements—the so-called actio praescriptis verbis—is itself granted status as civilis, too. Equally stunning was the intuition by Julian to subsume the problem of non-Roman contracts under the umbrella of the actio in factum: for that action was itself an omnibus category, designed in the classical period and understood precisely as allowing adjudication before the law of cases that could not, by hook or by crook, be described in the language of contemporary formulae. Despite its (intentional) vagueness of definition, it was emphatically recognized as a legitimate civil-law action; and in both origin and application it provided exactly a precedent for the situation confronted by Ulpian and others across the third century.
The Work of Integration in the Age of Justinian
The issues raised in these texts of the third century, and the methods employed by jurists and lawyers to negotiate them, had a long life in late antiquity. Let me give two quick examples, which hearken to terms and themes I have already raised, and by that means return to the conclusions I sketched at the start.
First, in 529 Justinian attempted a correction to the law of dowry. The difficulty he sought to address was partially one of fairness: he wished to grant to women getting divorces the right to recover their dowries before any other claims were made upon their ex-husbands’ property. And the problem existed or, rather, was apparent in part because in this area as in so many others, Roman and Greek practice diverged, and attempts to assimilate the two provoked reflection and revision in the law.
The law opens with a statement of the substantive revision it enacts—that wives should have a prior claim, in order to recover their dowries—followed by a blatant assertion of fact in denial of law: wives are so entitled
cum eaedem res et ab initio uxoris fuerant et naturaliter in eius permanserunt dominio. Non enim quod legum subtilitate transitus earum in mariti patrimonium videtur fieri, ideo rei veritas deleta vel confusa est.
because the property belonged to the wife in the first place and it naturally, naturaliter, remains in her dominium. For the truth of the matter, veritas rei, is not destroyed or confused by the subtlety of the law, in which a transfer of the wife’s property into the estate of her husband appears to have occurred. (Cod. Iust. 5.12.30.pr.)
This is a deeply sloppy piece of legislation: in effect, Justinian wholly overturns all prior law on dowry by denying that ownership of it passes to the husband in the first place. On the understanding he adumbrates, the husband possesses only usufruct of it, and it is important to observe that the long history of law on dowry had been heading in this direction. But Justinian shied from revision on that scale. He resorted, rather, to the standard toolbox of the Roman lawyer: like a classical lawyer, he left prior law standing, only to upend it by fiction; and like a third-century jurist, he justified that action by asserting a gap between some social reality and the world the law would or could describe:
Volumus itaque eam in rem actionem quasi in huiusmodi rebus propriis habere et hypothecariam omnibus anteriorem possidere, ut, sive ex naturali iure eiusdem mulieris res esse intellegantur vel secundum legum subtilitatem ad mariti substantiam pervenisse, per utramque viam sive in rem sive hypothecariam ei plenissime consulatur.
Therefore we desire that she have an action in rem relating to property of this kind, as if it were her own, and possess, too, an hypothecary action prior to all others, so that regardless whether the property of the wife is considered to be hers in accordance with natural law, or is held to have become part of the estate of the husband through the subtlety of the laws, her interest shall be fully protected by one or the other of these two actions, that is to say, the one in rem or the hypothecary action. (Cod. Iust. 5.12.30.1)
It’s a fascinating text, but a sorry piece of legal reasoning. In light of my suggestion regarding Ulpian’s domestication of Greek forms of contract, it is worth noting that when Justinian boasted of his revisions to marriage law in the Institutes, nowhere does he suggest his revisions betray foreign influence: unknown to the ancients, he writes, the practices he codified were simply the enactments a iunioribus divis principibus, by more recent emperors (Justinian Inst. 2.7.3).
As with dowry, so with Italy. In a series of laws