|ROME’S ERIE PROBLEM:
APPLYING ROMAN LAW TO FOREIGNERS
Aldo S. Zilli
Legal Systems Very Different From Our Own
April 8, 2010
TABLE OF CONTENTS
Nature of the Roman Legal System 4
Roman Law and Foreigners 9
Non-Romans in Rome 9
Roman Law on Non-Roman Soil 11
Exporting the Roman Model 19
One major dilemma that empires inevitably confront is how to govern foreign lands and foreign people under their control. In particular, they must determine how to deal with different legal systems and customs. This determination is often shaped by an empire’s overall strategy and, ultimately, how it chooses to negotiate conflicting legal systems often determines its success or failure. Having multiple legal systems applicable to the same territory, a classic conflict of law scenario, was addressed in the U.S. context by the landmark Erie case. Prior to that case, federal courts sitting in the various states could apply their own federal common law when interpreting state laws even if doing so produced different outcomes.1 The potential for one state to be governed by different laws which could produce different outcomes was eventually resolved in part by Erie where the Supreme Court held that federal courts interpreting state laws must apply the common law of the state in which they reside.2 In other words, the Supreme Court endorsed the principle that local laws, for the most part, should govern local populations.
Rome dealt with its conflict of law problems in a different manner as it permitted both its law and foreign laws to operate simultaneously over the same region. However, like the U.S., the laws did not conflict as they followed citizenship rather than geography. Thus, the Roman Empire primarily applied its laws to Roman citizens wherever they resided and a different set of laws to foreigners, with those in Rome being governed by Roman international law and those in the provinces being governed by their own local laws.3 This is not to say, however, that Roman law remained distinct from foreign laws and there was no cross-pollination between the two. Both, after all, came to influence each other. Nor does it mean that Roman authorities were unwilling to apply their laws to foreigners. Foreigners in Rome, after all, were governed by a form of Roman law, albeit law which applied uniquely to them, and, ultimately, Roman law would be applied to all foreigners when the empire eventually granted citizenship to everyone residing within its boundaries.
Rather than fearing contact between Roman law and foreign cultures, Rome’s reliance on citizenship to determine where its law applied was shaped in large part by strategic considerations. Delineating between citizens and non-citizens, after all, meant that Roman leaders were not burdened with the need to enforce their complex laws in unfamiliar areas against unfamiliar people, a process which could have spurred stronger resistance to Roman rule. This selective application of Roman law also allowed time for Romanization in the provinces to the point where foreign communities desired and sought out the protections and benefits of Roman law. Roman leaders thus answered their conflict of law question with a strategic legal policy that was designed to promote incorporation of foreigners and provincial areas and which established a model that was utilized by later powers in their efforts to control foreign lands.
Nature of the Roman Legal System
In many ways, the first major landmark in the history of Roman law was the establishment of the Law of the Twelve Tables (“Twelve Tables”) around 450 B.C.4 This was the earliest attempt to codify the customary norms of Rome which was, at the time, largely an underdeveloped agricultural community.5 The Twelve Tables classified such norms as either emerging from the practices of ancestors (ius) or from religious deities (fas).6 The major distinction between the two was that fas involved harms which would affect the entire community (crimes punishable by the gods) whereas ius involved man-made norms which defined the rights and powers governing the social conduct of individuals.7
The Twelve Tables were not all-encompassing codes but were rather specific rules (ius civile)8 relating to cases that commonly arose in the agrarian context and which sought to regulate uncontrolled self-help, establish rights of appeal, and provide orderly judicial procedures.9 Along with its social limitations the Twelve Tables were limited by the “primitive and still untamed national speech” at the time as many of their provisions were brief and simple in structure which often created controversies, opening the door for interpretation.10
As Roman society developed beyond its agrarian stage, the Twelve Tables remained a centerpiece of Roman law, but were later supplemented through legal interpretation which filled in many of the gaps in the old system.11 This interpretation was initially done by the priestly class, or pontifices, who were primarily responsible for religious law, but who also supervised application of ius civile.12 Over time the pontifices were replaced by secular jurists who were engaged in public life, provided legal advice and who helped to develop many of Rome’s legal treatises.13 In time, certain influential jurists were even given the authority to establish binding laws, some of which still exist today.14
Like later legal systems, Roman law was derived from custom, statutes, and case law, with most of the law being based upon a steady tradition of jurisprudence rather than legislation.15 In the early era where the rigid and limited legal system was punctuated with gaps, magistrates were given equity-like power (ius honorarium)16 and could “mould” the narrow edges of the law to meet economic and social changes.17 As Roman statutory and case law expanded, however, ius honorarium became less necessary and even started to create conflicting doctrines18 which eventually led to its removal as a separate source of law.19
The legislation and jurisprudence which made up ius civile were based upon certain customs which had historical precedence in Roman culture. One area of the law which showed its strong reliance on custom and its formalism was the approach to contract formation, at least in the early part of Roman history. Stipulatio was a form of “debt-promise” which had been codified in the Twelve Tables and which involved a procedure of legally-enforceable questions and answers.20 Under this process, parties to a contract had to appear face-to-face and follow an exact script whereby one party would ask, “Do you promise?” and the other would respond “I so promise.”21 For the contract to be legally binding, the parties had to use the specific terminology of “Spondesne” and “Spondeo” as no other verb had legal effect.22 This focus on a clear offer and acceptance also played out in the sale of personal property which was referred to as mancipatio. In these transactions, parties transferring goods also had to meet in person and in the presence of five witnesses.23 During the “symbolic drama,” the transferee would grasp the piece of property24 and assert that it was his “according to the Law of the Romans,” and then hand over copper (after striking it on a copper scale) even though the copper was unrelated to the actual purchase price.25 If there was any mistake in this process then the property would not be considered as having been transferred.26 Mancipatio, like stipulatio, reflected the early and highly procedural customs and norms and, although seemingly archaic, these practices were part of the foundation of Roman law which would eventually serve as an “inexhaustible reservoir of legal concepts, doctrines and principles.”27
Roman criminal law was somewhat less rigidly defined and covered three primary areas: violation of a divine law, becoming a public enemy, and violating a statute or magisterial decree.28 While violation of a divine law involved religious offenses, it also covered oath-breaking (which included perjury) thus granting the high priest jurisdiction over some areas of civil law.29 Becoming a public enemy was also part of Roman criminal law and applied in cases of desertion, disloyalty or conspiracy against the state.30 Classification as a public enemy was basically an administrative finding and its legal effect was the removal of any defenses.31 The crux of Roman criminal law, however, centered on the latter two categories: disobedience of a magistrate and statutory violations.32 Statutory violations were relatively few in nature, except for the more infamous crimes, as statutes were never designed to preempt or replace the disciplinary powers of the Roman magistrates.33 It was disobedience of the magistrates, therefore, that constituted the primary criminal offenses.34 In this regard, magistrates35 were given wide discretion36 in dealing with crime, acting less on statutory laws than on their own decrees which were more like “executive regulations” which they could change at will.37 As the empire grew and Roman magistrates were beset by increasing crime, Rome removed some of the discretion of the magistrates by creating a permanent court system to investigate and punish serious crimes.38 In fact, the first permanent court was introduced specifically to rein in provincial magistrates accused of extorting locals in the provinces.39 While Rome took a rigid approach to its civil laws, its criminal law system, at least during certain periods of Roman history, was not as clearly defined as it relied primarily on magisterial discretion.
Roman Law and Foreigners
Non-Romans in Rome
The Roman Empire at its vastest expanse stretched from modern day Spain to Syria and Britain to North Africa.40 Its great size “invited long-distance trading,” which meant that foreigners frequently engaged in transactions with Roman citizens often within the territorial bounds of the Empire itself.41 This presented a dilemma for Roman leaders as they had to determine whether to apply Roman law to foreigners within the empire. Rome’s response to the influx of foreigners and its resulting legal issues ultimately proved to be a “highly flexible system that could constantly adapt to the requirements of social and commercial life.”42 As Romans increased their contacts with foreigners they discovered that foreign legal systems had principles similar to their own ius civile, particularly with respect to contractual transactions.43 Roman leaders thus came to recognize a “law of nations,” or ius gentium,44 which they applied to transactions involving foreigners in Rome.45 While recognizing foreign legal doctrines, ius gentium was not “true international law,” but rather “Roman law adapted to Roman sovereignty, and designed to govern the peoples of Italy and the provinces without giving them Roman citizenship and the other rights of the ius civile.”46 The ius gentium was Roman law and it even included distinct Roman practices such as that of stipulatio, which was available to everyone in Rome, regardless of citizenship.47 So, while Roman authorities did set up a separate legal system for foreigners in Rome, they also were willing to expose them to traditional Roman legal concepts.
The practicality of ius gentium was reflected in the structure of many of its simplified laws which focused more on principles than on form and which could adapt easily to disputes involving people of various nationalities operating under different customs.48 In fact the ius gentium was such a practical and useful system of law that many Romans even sought to use it in their dealings with other Roman citizens.49 Although it was decidedly Roman law, the fact that Romans looked to other legal systems in shaping it, along with its popularity among Roman citizens, meant that ius gentium was a channel through which foreign legal concepts, such as those from Egypt and Greece, were absorbed into Roman law.50
The use of different bodies of law based on citizenship over a single geographical area reflected the principle of personality, a legal approach from antiquity that runs counter to our modern territorial conception of jurisdiction.51 Under the personality of law principle, a nation’s laws apply only to their citizens such that the law depends on one’s “personal status.”52 Under the territoriality principle, however, it is location that matters as nations reserve the right to apply their law to anyone within their territory, regardless of citizenship.53 While non-citizens in Rome had the benefit of ius gentium, their lack of citizenship meant that they could not obtain the full benefits of ius civile which included exemptions from property taxes, the right to vote and hold office and the right to appeal to the people’s assembly for sentences imposed by a magistrate involving death or loss of liberty.54
While Rome approached foreigners in its territory like most nations in antiquity did, through the principle of personality, unlike other nations it developed a unique area of Roman law to govern their activities. Under ius gentium Rome established a domestic form of international law which, although it was formed for internal purposes, was ultimately outward looking as it recognized the validity of foreign legal principles and incorporated them into Roman law.
Roman Law on Non-Roman Soil
Unlike foreigners in Rome proper, non-Romans living in the provinces of the Empire presented a different set of challenges for the Roman legal system. Although Romans applied a separate set of laws for foreigners in Rome (ius gentium), it essentially was still Roman law – although law which was adapted to foreign customs. Roman rule on non-Roman soil, however, was a different matter as the Empire’s governance of their provinces forced it to deal more directly with conflicting legal systems in foreign lands. Roman provincial law, therefore, at certain times had to adapt to, and coexist with, native legal systems creating the potential for an Erie conflict of law situation. Roman leaders responded to this with a classically Roman approach characterized by practicality and flexibility. The Romans permitted native legal systems to govern over everyday legal matters in the community, freeing Roman authorities from many of the burdens of policing the provinces. Where they could do so, the Romans basically contracted areas of provincial governance to the locals themselves. However, Roman authorities also took measures to ensure that Roman law would retain its supremacy. This was done largely by exploiting the distinction of citizenship as its selective issuance created incentives for foreigners to embrace Roman law.
In structuring their empire, Rome created two types of provinces, imperial provinces and senatorial provinces.55 Imperial provinces were governed by military officers appointed by the emperor and under his direct control as they were often situated on the frontiers, requiring the constant presence of military forces and garrisons.56 Senatorial provinces, on the other hand, were ruled by governors and controlled primarily by the Senate as they were peaceful areas which did not require the large presence of military forces.57 While most provinces fit into these two categories, the one exception was Egypt which had a separate organizational structure and was considered the “private estate of the emperor,” rather than that of the Roman people.58 This designation meant that even senators had to obtain the emperor’s permission before entering the province.59 The unique treatment of Egypt was due largely to its size and importance.60
Rome approached the provinces by dealing with the several communities within them (civitates) separately, ensuring local recognition while also frustrating unified opposition efforts.61 Breaking down the provinces was, in effect, a means to keep them divided such that Rome could maintain control. The provincial communities were classified as either free and federate, free and non-tributary, or tributary.62 There were only a few free and federate communities which had a permanent form of independence from Rome (with the exception of foreign policy)63 compared to the free and non-tributary communities whose independence could be revoked at any time.64 Most provincial communities, however, were tributary and, along with paying most of the taxes imposed on a province, were subjected to the arbitrary demands of Roman provincial leaders, many of which were designed to intimidate and coerce.65
Because of the size of many of the provincial territories, and because of the governors’ relatively small staffs,66 provincial government was restricted primarily to the “preservation of Roman supremacy and military security” and to ensuring the administration of justice for Roman citizens in the province.67 The situation meant that governors focused primarily on civil and criminal cases involving Roman citizens, but generally left most communities to their own legal systems, although the governors would sometimes take appeals from the judicial decisions of local magistrates.68 Provincial governors also retained the power to issue decrees which were binding throughout the province on Romans and non-Romans alike.69
Rome’s respect for local control over local matters was illustrated by the fact that, depending on a province’s charter, most communities had their own assemblies, town councils, and magistrates which were structured according to the Roman model.70 Local governments had authority over all areas involving a community’s interests and their resolutions were binding on community magistrates.71 The capital city in each province also held annual assemblies (concilia) where representatives from the communities could discuss issues relating to the administration of the provinces including problems with Roman officials such as the governor or provincial magistrates and could even submit petitions on such issues directly to the emperor.72 Provincial governors also would hold occasional judicial gatherings in larger community areas.73 A further way in which Rome balanced local concerns against the great decree-based power of provincial governors was by establishing a regular court (lex Calpurnia de repetundis) to handle cases of extortion and related abuses by provincial magistrates.74 While all of these measures were efforts to maintain stability in the provinces, they also slowly ingratiated Roman law and custom into foreign cultures.
Rome’s recognition of native laws was practical for the purpose of establishing and maintaining control as it did not force communities to abandon their native legal traditions while also ensuring that Roman officials did not have to overextend themselves to police their provinces.75 However, allowing local legal systems was also pragmatic for purely functional reasons as the Roman legal system was in many ways overly complex for provincial communities.76 However, as noted above, there were areas of Roman law, such as ius gentium, which were less complex and which were able to resolve disputes among foreigners. Perhaps because of this, Rome was willing to permit certain provincial areas access to ius gentium.77 Under this system, if locals sought to enforce their rights in Roman courts (through essentially a choice of law option), they would have access to ius gentium and its streamlined approach toward dispute resolution.78 Because ius gentium was adaptable and receptive to foreign concepts, it in turn was shaped by provincial magistrates who were able to apply it to disputes within foreign communities.79
Along with creating a dual system of laws similar to that between federal and state courts in the United States,80 Roman legal strategy in the provinces also ensured the supremacy of Roman law over native law through the political use of citizenship.81 Under the principle of personality, Roman law (ius civile) and its resulting protections applied only to those holding Roman citizenship.82 In the early periods of Roman rule while its power and influence in the region were increasing, citizenship was “sought after by many . . . [but] granted sparingly.”83 At the time, after all, full Roman citizenship was essentially the “basis for entrance into the political world.”84 Outside of Rome, citizenship was granted primarily as a reward for individuals or communities that were faithful in assisting the empire.85 It was also used as a means to secure the loyalty of upper classes in the provincial regions which essentially created “islands of Roman civilisation in the provinces” which “precipitated the process of Romanisation”86 and ensured that native ruling classes in the provinces were controlled by Roman law. So while Rome permitted the existence of foreign legal systems, it also was taking steps to ensure the survival and long-term supremacy of Roman law in the provinces.
However, because it was used in part as a political tool, Roman authorities granted different degrees of citizenship some of which were revocable.87 Revocation could come about if one committed treason or became a public enemy through their criminal conduct.88 Loss of citizenship in this manner89 meant that the de-Romanized individual was “amenable directly to the unlimited authority of the magistrate.”90 In other words, they were stripped of the legal protections afforded to citizens. Although Rome primarily used this multi-level system of citizenship with foreigners in the communities of Italy when it was consolidating power, it also utilized it later as a political tool in the provinces.91 Under this system, Rome would grant foreigners second class citizenship (civitas sine suffragio) which allowed them to settle in Roman territory with some privileges of citizenship and they often had the ability to apply for full citizenship in the future.92 Civitas sine suffragio effectively granted certain private rights, but very few public rights.93 Initially communities under the civitas sine suffragio system were allowed to retain their native language, political customs and local governments because during the early phases of the empire, Rome “did not yet feel a need to further erase the old identities of their subject cities, to replace old customs with Roman customs . . . .”94 Thus foreigners remained just that, but with one foot in the door to Rome.
Although civitas sine suffragio was part of a strategy seeking to control foreign areas,95 it also had the effect of gradually spreading Roman civilization as it “proved a very valuable training in civic responsibility.”96 The political deployment of citizenship worked well when Roman citizenship was a rare commodity in the empire, however this changed in 212 A.D. with the Antoninian Constitution which granted Roman citizenship to everyone living within the empire’s territory.97 This historic decision had considerable legal implications, especially regarding the principle of personality, as it meant that Roman law now applied to every person under Roman control.98 There were two major effects of this shift. The first was within Roman law itself as it became more relaxed and less formalistic as it was being applied to larger populations with varying customs.99 The second effect was that the Roman law’s contact with a wider range of people and areas made sure that it would influence subsequent legal systems after the empire faded away.100
Roman leaders confronted the conflict of law situation in the provinces with pragmatism and foresight. To uniformly impose Roman law in such areas would have required large numbers of military and administrative personnel to enforce Roman laws and police the provinces. This could very well have overextended the Roman military causing the empire to implode much sooner. Rome instead embraced local systems and relied on a competent and stable form of local governance in the provinces. Providing for their own internal security, after all, was “the most obvious function” of local rule under the Roman system.101 Although this reliance would eventually backfire against the Romans when the bonds holding the provinces together weakened,102 it was the primary policy behind Rome’s legal approach to the provinces. In effect, the supremacy of Roman law in the provinces was maintained by allowing other legal systems to coexist and govern over local areas. Roman legal supremacy was further assured by the strategic granting of citizenship which led to gradual Romanization in the provinces and internal incentives for foreign areas to accede to Roman law. This combination of local deference and incentives to embrace Roman law satisfied Rome’s conflict of law problem in the provinces and created an enduring model for foreign governance.
While Rome treated foreigners in the provinces somewhat differently from foreigners in Rome itself as the latter did not have direct access to their native laws and had to rely primarily on ius gentium, the empire’s overall legal approach toward foreigners under its rule was quite innovative. Rome, after all, developed:
an intricate system of legal responses to accommodate the diversity of peoples subsumed under its rule. Although distinct ethnicities were semi-autonomous under imperial rule, and could pursue their own customs and laws within their own communities, the special law of nations, the ius gentium, governed intercultural transactions. The ius gentium, which differed from Rome's autochthonous civil law, was assumed to be an intercultural law known to all peoples, later portrayed as a universal law flowing from a natural reason common to all mankind.103
Rome’s approach to foreigners was quite multicultural for its time. It also proved to be multi-epochal as the model of foreign governance which it created would be adopted and applied by later powers which emerged on the historical stage.
Exporting the Roman Model
Rome’s overall approach to foreigners and foreign legal systems relied upon legal distinctions which, for the most part, were based on citizenship and on whether a foreigner was located on Roman soil or in the provinces. Rome’s model of governance over foreigners has served as a basis for later regimes that conquered and controlled foreign lands. The Roman practice of giving deference to subordinate legal systems,104 in fact, made its way into the law of nations and was practiced by most imperialist powers who controlled areas beyond their borders.105 In the British Empire, for example, common law created a presumption that the local laws of conquered areas controlled unless there was an express act of Parliament reversing them.106 Furthermore, one of the more widespread examples where a conquering power utilized the Roman doctrine of deference was when Ottoman Empire developed its own version of subordinate self-rule called the millet system.107 Under that system, the empire granted “virtual self-rule” to several religious communities which were “largely autonomous in law and religious matters.”108 Like the Romans, the Ottoman system was based largely on practicality and strategy.109 The Roman legal strategy of local deference thus developed into a common technique that conquering states used to control foreign territories.
Rome’s strategic use of citizenship has also been called upon and the more modern example which illustrates this best is the legal status of Puerto Rico. Although it was not conquered but acquired via treaty in 1898 after the Spanish American War, Puerto Rico nonetheless has remained unincorporated territory of the United States ever since.110 Its citizens were granted U.S. citizenship in 1917, but it was essentially a form of second class citizenship similar to civitates sine suffragio as Puerto Ricans do not have the right to vote in national elections and they lack congressional representation along with certain constitutional protections.111 The “incorporation doctrine” in which the U.S. Supreme Court defined citizenship in Puerto Rico was shaped and influenced to a large degree by the Roman legal approach to citizenship in the provincial territories.112 Rome’s legal framework of citizenship, thus, continues to this day. Although the relationship between the U.S. and Puerto Rico is quite different from that which existed between Rome and its provinces, its use of the Roman legal framework of second-class citizenship shows the enduring impact of the Roman model.
Although it was not the first major power in antiquity to govern over foreign people, the Roman Empire was one of the first to have established such a detailed and practical legal approach to doing so, one which has been utilized by subsequent powers including those in the modern era. Roman authorities took an innovative approach toward foreigners on Roman soil as, unlike contemporary legal systems based on territoriality, Rome applied a separate form of international law (ius gentium) to non-citizens. Although it was essentially Roman law, it incorporated legal doctrines of foreign systems and was focused on the efficient resolution of disputes in situations where different customs may exist. Similarly, Rome’s approach to foreigners in the provinces was also based on pragmatism, but instead of governing over them with a separate form of Roman law, it permitted native legal systems to coexist with that of Rome. By contracting out daily governance to local communities, Rome was unburdened of many of the demands imposed on conquering powers. However, Roman authorities maintained the supremacy of Roman law through the strong authority granted to Rome’s provincial magistrates and through the political use of citizenship.
Ultimately, Rome’s approach to foreigners was guided by strategic considerations as the empire incorporated vast territories and thus required control through an economy of force. Deferring to local legal systems and creating internal incentives for provincial communities to embrace Roman law was one way in which Rome economized its forces. Local control coupled with allegiance to Rome, after all, enabled the Roman military to concentrate in areas where they were needed most. This strategy, coupled with the legal measures employed by Rome was one of the reasons that the empire was able to persist for hundreds of years. Rome thus satisfied the Erie conflict of law problem that inevitably emerges when multiple legal systems converge, creating a blueprint that is still used today.
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