Fact, Fiction, and Social Reality in Roman Law

© Springer International Publishing Switzerland 2015
Maksymilian Del Mar and William Twining (eds.)Legal Fictions in Theory and PracticeLaw and Philosophy Library11010.1007/978-3-319-09232-4_14

14. Fact, Fiction, and Social Reality in Roman Law

Clifford Ando 

Department of Classics, University of Chicago, 1115 E. 58th Street, Chicago, IL 60637, USA



Clifford Ando


Roman and civil law fictions were notorious among early modern critics for their variety and scope. The unborn are treated as living; the living are treated as dead; aliens are classified as citizens; clauses in legal instruments are assumed not to have been written. The essay surveys fictions in classical Roman law, both those the Romans themselves labeled fictions and others that functioned through similar linguistic operations. Particular attention is given to the use of fictions in practice, both in statute and surviving legal instruments. Finally, the essay explores the theoretical frameworks within which Romans understood the operation of fictions, especially the distinction between social and legal facts and the natural and the imaginary.

14.1 Introduction

Fictions are ubiquitous in Roman law . Yet for all the ire they have attracted from philosophical skeptics, most notably Bentham, they have received remarkably little attention from Romanists, and almost none to speak of from comparatists, either.1 Some at least of this neglect can be attributed to the Roman jurists: they flag as fictions only a tiny percentage of the fictional work-arounds that Roman legislation and jurisprudence employ. To recover and assess the full scope of the work performed by fictions in Roman law and jurisprudence, one must first discover the range of linguistic operands by which they were instantiated. Having commenced by exploring Roman analyses of fictions they identify as such, this essay begins this work of recovery by exploring two such operands, to wit, third-person exhortatives, used to declare suppositions of fact as well as to effect procedural shortcuts, and the preposition pro, one among several lexemes employed to effect substitutions and assert equivalence across taxonomic boundaries. Confronting the range of fictions in public and private law at Rome will then permit a more fine-grained assessment of their utility and importance, in effecting change at law, resolving conflicts and bridging interstices in laws on jurisdiction, negotiating among competing sources of law, and providing a cognitive apparatus to assess the gap between social reality as the Romans perceived it and the world the law at once described and called into being.

14.2 Roman Theory: The Supposition of (Fictional) Facts

Only one extended treatment of fictions as foundational to Roman civil procedure is known to have been written in classical antiquity, namely, that occurring in the fourth book of Gaius’s Institutes, and, alas, the one manuscript of that text to survive is missing the page and, indeed, the sentence just prior to the apparent introduction of the topic of fictions.2 Nevertheless, it seems clear that Gaius raised the topic as an afterthought when writing about changes in the law regarding the punishment of those convicted for delinquent payment of tax. At one time, taxes being collected by magistrates, those magistrates had the power to seize real security from delinquent taxpayers, who would have to pay some sum in order to redeem their property. Once the collection of select taxes was handed over to private tax farmers, the question arose as to how to endow the tax farmers as private persons with effective but appropriately limited power over delinquents. A statute gave them the power to seize real security: this was power. The power was limited, according to Gaius, by a fiction: delinquents were to be condemned to redeem the security “for as much money as they would have been condemned formerly [by a magistrate], if real security had been seized, which security ought to be redeemed by the person from whom it was seized.”3

This seems an exceedingly elaborate solution to a simple problem. Clearly, it is a procedural work-around in response to an unwillingness to amend statute. One might either have altered the law granting power to magistrates to set contracts for tax farming or, possibly, simply altered those contracts, the bulk of which were tralatician in character.4 It is therefore worth remarking that, insofar as the condition of the text permits such inference, the legal action for seizure of security by private tax collectors that contains the fiction was granted by the Praetor. That is to say, it was not created by statute but announced as a permitted legal action by the magistrate who exercised supervisory jurisdiction over the city of Rome. The details to one side, the enactment of statute and the creation of new legal actions by the Praetor were two among several sources of law at Rome. Statutes being troublesome to pass, Roman jurists understood it to be the responsibility of the Praetor “to aid, supplement or correct” statute law in light of evolving social, material and economic realities.5 A modern legal theorist judging the particular fiction employed to grant but also limit the power of tax-collectors might add that, in this case at least, the Praetor did so in a fashion that respected the legitimacy of earlier law and, more importantly, of alternative sources of law.6 The power of private tax collectors was thus situated in typological relation to, and indeed made parasitic upon, the unquestionably legitimate power of magistrates, albeit in a domain from which those magistrates were now excluded by exactly the institutionalization of private power that the fiction invoked them to justify.

Evidently prompted by these remarks, Gaius embarks on what are clearly unsystematic remarks on “fictions of another kind” (alterius generis fictiones), where the singular “kind” suggests, if no more than that, that Gaius understands the five fictions that he then treats as being of a single type. That said, he makes no gesture whatsoever toward describing what that other “kind” is. In the terms of ancient philosophical handbooks, Gaius provides at best an ostensive definition. The fictions that he discusses are: (i) a purchaser or would-be possessor of the goods of a deceased had no action in statute law against those who held the decedent’s property or owed the decedent money, and so was allowed by the Praetor to sue as if he were heir to the property in question (the so-called actio Serviana); (ii) similarly, such a purchaser or possessor might be allowed to sue in the name of the decedent for recovery of goods or payment of debts, but the defendants would be condemned in the name of the purchaser, and so upon victory the goods or debt would be delivered to him (the so-called actio Rutiliana); (iii) a person who had acquired possession lawfully but not yet completed the time period for usucapion could not, upon losing possession, sue for the item in statute law, and so a Praetor allowed such persons to employ the fiction that they had in fact completed the period of usucapion and might sue as owners (the actio Publiciana); (iv) aliens being largely excluded from Roman courts, at least at Rome, but nonetheless deeply embedded in Roman society, citizenship could be fictively attributed to an alien, “provided,” writes Gaius, “that it is just that the action in question be extended to an alien”; and (v), if one’s opponent in a lawsuit had suffered a penalty entailing a diminishment in legal rank and concomitant inability to appear in a Roman court, Praetorian law permitted the fiction that the diminution of status had not occurred.7

What ties these fictions together? In one perspective, the third fiction, concerning usucapion, exhibits a structural resemblance to the fiction concerning real security and tax delinquency: One legal institution, the office of the Praetor (which had the power both to create and to apply law), had to close a gap that yawned between contemporary practice and statute law, created by another law-creating body, that notionally governed that practice. In both cases, the Praetor did so through a fiction that assimilated current practice to the normative horizons of earlier statute: the gap was closed, and the legitimacy of statute and statute-law more generally was preserved. The first two fictions, by contrast, concern individuals whose possession fell short of Roman doctrines of ownership in one or more ways (not least because succession to obligations was a matter of Praetorian rather than civil law), and one additional consequence of the procedure envisioned by Gaius, beyond mere recovery of property, would be a court decision affirming title to the property in question.

That said, the ambition that unites Gaius’s fictions “of another kind” seems rather narrower than affirming the legitimacy of sources of law and less specific—and less substantivist—than a concern for title. The problem in each case concerns justiciability: the case coming before the court fell short of some threshold. What was at stake, therefore, was the transfer of an individual, action or thing across some taxonomic divide: from purchaser to heir; from possessor to owner; from alien to citizen. It is a matter of some interest that the Roman jurists often felt the need to construct or construe the fiction as a plausible extension of the legal life history of the party in question—thus, one does not imagine the possessor as owner, but as having completed the period of usucapion, and so as having become owner in plausible continuance of present arrangements. I will take up this topic at greater length below (Sect. 14.5).

A particularly colorful rather than elaborate instance of negotiating such a threshold, indeed, one involving a supposition, concerns the procedure to be applied when a soldier or magistrate is accused of adultery. Normally cases of adultery had to be resolved within 60 days of the charges being made. A regular exception was made for persons in state employ who could be expected to be away from Rome on state business. Those persons as a class could not be indicted on a charge of adultery, triggering the 60-day window, so long as they were absent without intent of evasion.8 But what about soldiers serving in the night guard of the city of Rome or the city’s own military unit?

But if someone who is present is nevertheless treated in the place of the absent person [imagined by judicial norms] (vice tamen absentis habetur)—as, for example, someone serving in the vigiles or the urban cohorts [to wit, a soldier serving in the city of Rome]—, it should be stated that he can be accused, for he does not have to take any pains to put in an appearance.9

To paraphrase: if a person was in fact present who would otherwise be presumed absent, he could be accused—though the status of the normative presumption would normally require that in such cases he be treated as if absent. The fact of actual presence is allowed, mirabile dictu, to trump the presumption of a legal fact of absence.

How might one assess whether such procedural fictions were controversial in their Roman context, apart from the anxieties they have aroused in later periods? One index might be this: I am aware of no case in which the use of such a fiction was contested.10 One must of course be cautious about an argument from silence, particularly given the paucity of extant evidence for actual pleadings at Rome. That said, we do know that people argued about the degree of analogical resemblance in the adducing of precedent.11 What is more, in the case of procedural fictions, it was only at the moment of their first devising that they might truly have been contested. Thereafter, like all formulae, they became part of the repertoire of available actions, to be imposed by the magistrate holding jurisdiction when the facts, whether true or contrived, fit the model.12 In classical procedure, the moment for pleading came later, before the lay judge charged with adjudicating the dispute in light of the model the Praetor had applied.13

14.2.1 The Language and Epistemics of Supposition

In The Nature and Sources of the Law, John Chipman Gray paid some attention to the language of Roman legal fictions, which remarks inspired a response but also criticism from Lon Fuller. Gray relied nearly wholly on the account provided by Gaius, neglecting both jurisprudential literature and, much more consequentially , the linguistic operands by which fictions were enacted in statute. Though we shall turn presently to those bodies of evidence , this seems an appropriate moment to consider a point of convergence between Gray and Fuller, to wit, their agreement that Roman fictions “contained a grammatical acknowledgment of [their] falsity.”14 However, where Gray urges that Roman “assumptive” fictions (to use Fuller’s term) might be construed as less violent than English fictions, the court only saying “that it is dealing with A as if it were B,” and thus “stating nothing contrary to the fact,” Fuller dissents quite strongly from this position. Fuller does not deny, of course, that the fictions described by Gaius worked so as to expand the scope of the law, to embrace persons, things and actions excluded by statutory language. Rather, in his view they nevertheless stated a falsehood, and the act was all the more pernicious insofar as it was precisely by this means that Roman fictions “appease[d] a longing for an appearance of conservatism.”

The Roman praetor apparently felt that by framing his innovations in terms of older rules he had secured some justification for them, even though the pretenses involved carried on their face the acknowledgement of their falsity.15

This seems to me to involve a mischaracterization of the language involved in Praetorian formulae, a problem arising from Gray’s mistranslation or misrepresentation of the Latin text and Fuller’s reliance on Gray. Gray explicitly represents the fiction of citizenship as instantiated in the form of a contrafactual: “If, in case Aulus had been a Roman citizen” (Fuller reprints Gray’s paraphrase and adds the emphasis on the past contrafactual). But the linguistic form employed by Gaius, whose text Gray quotes but which he only paraphrases, employs an imperfect subjunctive for both protasis and apodosis. Two features of so-called “should/would” conditionals are of relevance here. First, the conditional is (in modern terms) implicative. It asserts only that the one thing being true, the other would follow. Second, Latin conditionals of this type imagine something as possible but not yet fulfilled, nor do they make any claim as to the likelihood of future fulfillment.16 Thus Gray’s transformation of the clause into a declarative past contrafactual radically distorts both the rhetorical status of the conditional and also the ontological security it attributes to the world that it imagines.

One might go further. Insofar as the apodoses of the conditionals that instantiate these fictions apply only to the conditions of judgment, they might well be said to do no more than require the construal of the situation at hand on analogy with another. To use the language of Peter Birks, the fictions do no more and no less than require a symmetry of consequence between two situations, the one fact identified as variable.17 Consider a more precise translation of the sort of fiction paraphrased by Gray: “If it appears that a golden cup has been stolen from Lucius Titius by Dio the son of Hermaeus or by his aid and counsel, on which account, if he were a Roman citizen, he would be bound to compound for the wrong as a thief, and so on.”18 It is easy to imagine the appropriate juridical Latin with which to produce the same outcome via analogy: “An action for theft in which the thief is an alien should be handled on analogy with (ad exemplum) the action for theft in which the thief is a citizen, the alien thief serving in the place of (vice, vicem or loco) the citizen one.”19 What is more, what Gaius elides with his “and so on“ is the command, framed as an imperative, that instructed the judge as to what penalty to impose. The elision was possible for him because he was interested in the fiction; the rest of the formula was the same as it would have been without the fiction. That of course is telling, but so, for us, is the imperative that is elided. The sequence “conditional subjunctive + imperative” is the classic form of the implicative rule.

It might be helpful to examine a fictitious supposition in operation. It just so happens that a fiction is employed in the one so-called formula to survive from practice in the Roman Republic, to wit, the instructions prepared by a Roman praetor in Spain in delivering a dispute between two peoples (the Sosinestani and Salluienses) to a third party for judgment.20 The translation is keyed to the line numbers of the text as it appears on the bronze tablet on which it was inscribed:

  • 1. Let those of the Senate of Contrebia who shall be present at the time be judges. If it appears, with regard to the land that the Salluienses

  • 2. purchased from the Sosinestani for the purpose of making a canal or channeling water, which matter is the subject of the dispute, that the Sosinestani

  • 3. were within their rights to sell it, although the Allavonenses were unwilling, then, if it so appears, let the judges judge

  • 4. with regard to the land which is the subject of the dispute that the Sosinestani were within their rights to sell it to the Salluienses; if it does not so appear, let them judge

  • 5. that they were not within their rights to have sold it.

  • 6. Let the same persons who are written above be judges. If there were a Sosinestan civitas, then, in the place

  • 7–8. where the Salluienses recently and officially put in stakes, which matter is the subject of this action, if it would be permissible for the Salluienses within their rights to lead a canal within those stakes through the public land of the Sosinestani;

  • 8–11. or if it would be permissible for the Salluienses within their rights to make a canal through the private land of the Sosinestani, in the place where a canal ought to be made, so long as the Salluienses pay the sum for which the land would be assessed, where the canal would be led; then, if it so appears, let the judges judge that it is permissible for the Salluienses within their rights to make the canal; if it does not so appear, let them judge that it is not permissible for them within their rights so to do.

  • 12–14. If they judge that it is permissible for the Salluienses to make the canal, then let the Salluienses pay from public funds money for the private lands where the canal shall be led, on the arbitration of five men whom a magistrate of Contrebia shall appoint from his/their Senate.

  • 14. Gaius Valerius Flaccus, son of Gaius, imperator, assigned jurisdiction.

  • 15. They pronounced the opinion: Whereas right of judgment is ours, in the matter that is under dispute we judge in favor of the Salluienses.

The key conditional occurs in line 6. I translate it literally, but the phrase might also be elaborated in English of quite different form: “On the assumption that there is a Sosinestan civitas,” which is to say, “On the assumption that the Sosinestani are an autonomous polity …” The messy historical details of the case notwithstanding, it should be clear that the Praetor himself makes no claim in respect to the status of the Sosinestani. In this sense, the episteme of the Roman legal fiction harmonizes closely with the security that such formulae attribute even to the facts that lead to judgment. Observe that the lay judges here (as at Rome) are not charged with rendering judgment on the basis of what is true, but only on what appears to be so (lines 3–4, lines 8–11: “if it appears” (sei parret), “if it does not appear” (sei non parret)).

14.3 Jurisdictional Rules21

The absence from extant sources of any controversy in regard to the fiction of citizenship might still surprise , if only because Romans often discussed, and strongly disapproved, aliens in respect to Rome conducting themselves as if they were Roman citizens, a behavior nearly universally described using the phrase pro cive gerere, which one might translate variously as “to conduct oneself in the place of,” “to conduct oneself as,” or “to conduct oneself as if one were” a citizen.22 Indeed, around the turn of the millennium, the emperor Augustus (reigned 31 BCE—14 CE) himself sponsored a statute on jurisdiction that restricted the use of Roman legal forms to the city of Rome and the first milestone beyond it, and likewise required that, even at Rome, Roman legal forms be employed only in disputes the parties to which were all Roman citizens.23

The so-called Lex Iulia Iudiciaria was something of an exception to Roman jurisdictional rules in the extent to which it allowed ideological interests, in particular regarding the position of the metropole and the status of metropolitan citizenship, to shape its contents. But it was an outlier only to a certain extent, for Roman legislation seems always to have been committed to a cohomology of territoriality, jurisdiction, choice of law, and rights of citizenship. Extant evidence for Roman jurisdictional rules derives largely from one of two sources: the orator Cicero provides a summary of the law governing jurisdiction in Sicily in the early first century BCE; and we possess a number of fragments of actual jurisdictional laws as these were inscribed on bronze tablets from contexts on the Italian peninsula and in Spain in the first centuries BCE/CE .

Cicero claims that in Sicily, cases between persons of the same citizenship were tried in courts of their polity, using their own laws. In cases involving Sicilians of discrepant citizenship, the Roman governor appointed a judge by lot from a roster of third-party judges. In cases in which a Roman citizen sued a Sicilian, a Sicilian was assigned to adjudicate; contrariwise, when a Sicilian sued a Roman, a Roman adjudicated. Cases between Roman citizens were heard by a Roman tribunal.24 Cicero’s summary suggests that Rome generally preferred to assign cases to fora based on the citizenship of the parties to the dispute, and his statement in this regard accords with other Roman evidence suggesting a strong preference for the use of indigenous law among indigenes.25 At the same time, Cicero’s summary is clearly inadequate: among other things, it provides no specification as to choice of law in cases involving persons with discrepant citizenship and third-party judges .

The law summarized by Cicero comes from a political and temporal context somewhat distinct from the fragments of actual statute law that we possess.26 These derive from a variety of contexts outside of Rome and treat a range of problems in procedure and private law. None of the relevant statutes survives complete. Nonetheless, it is possible provide a schema of a typical clause of the following form:

(1) In communities of types A, B, and C, in area D,27 (2) in which jurisdiction rests with magistrates of types G or H,28 (3) legal actions of type K shall be handled locally, using procedure M, if conditions P and Q are met,29 or (4a), if condition P and Q are not met, procedure R should be used locally, or (4b) the case shall be sent to Rome.30

In these statutes, the principal condition that selects a case to be judged locally or sent to Rome is the value of the dispute in monetary terms and not, I stress, the juridical status of the parties to the dispute . That said, even when disputes were to be treated locally, these laws occasionally required the use of Roman procedure or even Roman substantive law, in one of two ways. In the law on jurisdiction in the lands of Italy north of the Po, for example, one chapter supposes that the framework for adjudication is the edict of the praetor at Rome who held jurisdiction over foreigners in the city; and yet it also specifies that the judge should set the punishment according to the decree of the magistrate holding jurisdiction in the locality in question.31 (The details, which are messy, are happily irrelevant to this context.) In contrast, in another chapter, concerning suits in respect of debt, after specifying that the following procedure applies to low-value cases, the text runs:

the law, the issue, the right of action, and the suit shall be exactly the same for all persons in every respect as they would be, or as it would be appropriate for them to be if that person … had confessed concerning these matters before the praetor at Rome or before the person who in Rome had jurisdiction over these matters ….32

Here, the law and procedure to be used locally, in a case avowedly below the statutory threshold that would require transfer to a Roman court, are explicitly assimilated to Roman law and procedure. What is more, this occurs through a contrafactual, flagged as such through the lexeme siremps … atque utei … sei + pluperfect subjunctive, “exactly the same as if x had done y.” That said, the fiction is not employed so as to assert that the defendant had done something he had not, to wit, that he had in fact confessed before a Roman magistrate holding jurisdiction at Rome. Rather, it is specified that he is to be treated locally as he (or another) would be in a similar case, were that case to be heard before such a magistrate in a court in the city of Rome.

To summarize, jurisdictional rules of the Republican period distinguish explicitly between Rome and everywhere else . In line with other legislation of their era, they reserve the power and capacity of judgment in matters of import to the metropole. Late Republican jurisdictional clauses also cleave the empire socially, for it is not all disputes, nor even all disputes between citizens, that are removed to Rome for adjudication, but only those in which the matter in dispute, converted to monetary terms, was worthy of Roman attention. That said, for reasons unspecified, they also occasionally require that local practice adhere to Roman norms and, while this might be accomplished through the imposition of Roman positive law, it was apparently less controversial to accomplish this through fiction because proceeding in this way left the principle of the exclusivity of Roman law undisturbed .33

This is the context in which the emperor Augustus intervened with his law on jurisdiction, which appears to have been an effort to draw traditional distinctions more radically than ever before. Its effects remain visible nearly a century later in a municipal charter discovered in Spain. Such charters derived from a template written at Rome, which was then very minimally adapted, also at Rome, to suit the particular locality to which they were sent. In the 91st chapter of that text, specification is made as to details 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 matter may cease to be under trial:

… if judgment has not taken place within the time laid down in Chap. XII of the lex Iulia that was recently passed concerning iudicia privata and in the decrees of the senate 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 (siremps lex ius causaque esto adque uti esset si) a praetor of the Roman people had ordered the matter to be judged in the city of Rome between Roman citizens …34

Please note that the Flavian municipal law does not revise the Augustan law on jurisdiction that it cites. On the contrary, it genuflects before its principles: Roman justice is best administered by a Roman praetor, judging a case between Roman citizens in the city of Rome. It would be more accurate to say that the Flavian municipal law 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 space and distinctions in the legal status of persons: disputes between potentially alien citizens of the municipality are to be resolved “as if a praetor of the Roman people had ordered the matter to be judged in the city of Rome between Roman citizens.” Provinces and provincials are thereby assimilated to Rome and Romans. To the politics of this act, I will return in closing.

14.4 Let there be Legal Facts

14.4.1 3rd Person Imperatives and Public Law Procedure

We have several times seen equivalences made, and their consequences asserted, through third-person imperatives, especially esto, “Let X be …; X is to be …” Such was the foremost operation by which Roman law brought new legal facts into being and so shaped the world that it regulated. What were the limits of the power of this language? And how was its operation understood? In one notable case, we have both a representation of relevant language in a statute (albeit one that did not pass) and an interpretation of its functioning, in which its operation is likened to a fiction. This case can then be situated in hermeneutic relation to other uses of such imperatives in legal texts of the period.35

The instance in question concerns an agrarian law proposed by one Publius Servilius Rullus in the year 63 BCE, the year of Cicero’s consulate. In order to carry out its terms, the law enjoined the creation of a board of ten officials with power of command, but that power of command could not be created by the legislative act alone, or so Rullus feared. Election to offices that carried imperium, strictly speaking, the power to command Roman citizens, was actually a two-stage process. One had first to be elected by the citizen assembly and subsequently invested with power of command. This latter act was apparently accomplished through the passage of a lex de imperio, a statue concerning imperium, by the comitia curiata, a sort of vestigial assembly of the People in which citizens at large had long since ceased directly to participate. Rather, they were represented in the curiate assembly by 30 lictors representing the 30 curiae—in this context the term means something like “voting units”—into which the people had once been classified.36 Normally, the passage of a curiate lex de imperio followed immediately and unproblematically upon election, as votes in the American electoral college follow the results of a purely numerical count at the state level. As it seems, however, there was nothing automatic about its passage.

Rullus sought to circumvent the potential failure of the lex de imperio by a procedural shortcut, instantiated in a third-person exhortative. According to Cicero, he simply wrote into his bill that the officers created by it and charged with carrying out its terms should possess the same legal standing as those created according to strict procedure even if the curiate law did not pass. In Cicero’s speech in opposition, he claims first to quote the text of Rullus’s bill and then explicates its operation:

What then, if the [curiate] law is not passed? Note his ingenuity! “Then let the decemvirs be of the same legal standing as those created according to strict procedure” (eodem iure sint quo …). If this is indeed possible, that in this polity, which excels all other polities by far in the rights of liberty, someone should be able to obtain command over citizens or administrative authority without the authorization of any electoral body! What is the point of ordering the passage of a curiate law in the third chapter, when in the fourth you permit that these officials should have the same legal status without a curiate law as they would have had if they had been created by the people according to strict procedure?37

Cicero confronts statutory language that ordered the voting of a curiate law immediately upon the passage of Rullus’s plebiscite. What is more, the first law declared through a third-person exhortative that officials created under its clauses shall possess the power conferred by the second law, regardless whether it passed or not. Cicero explains this legal chicanery by redescribing it as operating through the use of fiction, one instantiated with a past contrafactual: “they shall have the same legal status without a curiate law as they would have had if they had been created by the people according to strict procedure.”38

With Cicero’s gloss on Rullus’s bill as a guide, we can more readily identify the fictions at work in other public law texts of the Roman republic. For example, an inscription from Furfo preserves the regulations established there in 58 BCE to govern the practice of ritual and control of sacred properties at the cult of Jupiter. A number of clauses treat properties given to the temple (whether goods or money), which things become sacred once dedicated to the god; others concern the status of goods purchased by temple officials. Two of those clauses contain fictions, one explicit, the other implicit. As in the bill of Rullus, both clauses in the law of Furfo operate through third-person imperatives and both effect procedural shortcuts.

(7–10) If something shall be given, donated or dedicated as a gift at this temple, that it be permitted to use or sell [that thing]; when it shall have been sold, let it be profane (id profanum esto). The sale or leasing shall be up to the aedile, whomsoever the village of Furfo shall create, so far as they feel that they are willing, without impiety or guilt; no one else shall be able to.

(12–14) What shall have been bought with bronze or silver, for that money which money shall have been given to this temple, what will have been bought, to those things the same regulation is to apply as if they had been dedicated (eis rebus eadem lex esto quasei sei dedicatum sit).39

Objects given to or dedicated at a temple became sacred and were henceforth the property of the god to whom the temple was dedicated. As a matter of law, they were placed beyond human ownership and outside the possibility of economic exchange, nor could they be released or sold unless subjected to a rite of desacralization and hence rendered profane. Reading these clauses against that background, we may say that in the first clause, a legal religious fact is asserted to follow even upon the non-performance of the rite of desacralization, though the non-performance of the ritual is itself not cited. Rather, the effect of the rite is created through the operation of legal language alone: id profanum esto, “let it be profane.” The second clause focuses on goods purchased by the temple and addresses the question of whether they are sacred, like those that are dedicated. Are objects purchased with sacred money themselves sacred? In this case, an imperative attaches to the objects the status consequent upon an explicitly fictional rite of sacralization.

The power of such language to create new legal facts through authoritative utterance alone, in contravention of the realities—the truth?—of the context of utterance, is perhaps most nakedly revealed by another public law text of the Republican period, a vow taken by the Roman people in 217 BCE. The text of the vow is quoted by Livy, an historian writing some 200 years later. I quote only the first few sentences:

Let him who performs the sacrifice do so whenever he wants, by whatever rite; however he shall do it, let it be considered to have been done properly (quo modo faxit, probe factum esto). If something intended for sacrifice should die, let it be held profane and let it be understood that no crime has taken place (Si id moritur quod fieri oportebit, profanum esto, neque scelus esto). If someone should steal <something intended for sacrifice>, let no blame attach to the people nor to the person from whom it was stolen. If he should unwittingly perform the sacrifice on an inappropriate day, let the sacrifice be considered to have been done properly (Si atro die faxit insciens, probe factum esto). If by night or day, if slave or free should perform the sacrifice, let it be held to have been done properly. If the sacrifice shall be performed on the day before the Senate and People order it to be performed, let the people be held free and absolved from it.40

The vow is unusual in respect to other legal texts that employ such performatives only in nakedly stating the reality that it supersedes. The protases systematically enumerate conditions that would normally vitiate the performance; the third-person imperatives just as systematically declare in advance the performance to be successful, in potential contrafaction of the reality of that performance.

14.4.2 Prorogation41

The word prorogation, like its Latin ancestor prorogatio, is often defined as a prolonging or extension of a term of office, nor are such definitions wholly inaccurate.42 But the term does not mean prolongation or extension: through considerable compression, it means something like, “investiture with the powers of a magistracy that one has already held, without the mechanics of election,” or, in brief, “in place of an election.”43 In other words, the modern notion of the word’s meaning is that which it acquired at the end of a long period of development, during which time a fiction of investiture was naturalized and its status as fiction lost. As with Cicero’s reading of Rullus’s bill, we possess in this case a record (in this case, a fragile one) of public denouncement of prorogation precisely for its reliance on fiction, which helps to cast light both on its status and provokes the search for evidence of what we might term, on analogy with metaphor , its naturalization.

According to Roman sources of the age of Augustus, the first prorogation of a magistracy took place in 327 BCE. According to Livy’s narrative , the consul of that year, Quintus Publilius Philo, was on the cusp of a military victory when his term of office expired. Livy describes a tribune bringing a bill before the people to the effect that “when Quintus Publilius Philo should depart the consulate, he should conduct matters as if he were consul (pro consule) until the war with the Greeks should be successfully ended.”44 And not unexpectedly, the historian Livy’s Augustan narrative finds confirmation in the Augustan Fasti triumphales, a chronological list of the award of triumphal parades to successful commanders, compiled (and almost certainly in part invented) during the reign of Augustus.45

I translate the Latin phrase pro consule with the English phrase “as if he were consul,” rather than with some such language as “in the place of a consul,” in order to highlight the operation of fiction in the constitutional manoeuvre.46 But in other contexts, a translation that draws out the use of pro to indicate substitution or equivalence or both would do nearly as well. Indeed, some dictionaries written later in antiquity explain the term proconsul as a person who operates vice/vicem consulis, “in lieu of a consul.” (Vice/vicem becomes a term of art in analogical modeling in jurisprudential argument, used to indicate the variable amidst a structure that otherwise transfers from one domain to another.47)

To justify the claim that fiction is essential to the invention and institutionalization of prorogation, and hence to justify the translation “as if he were consul,” one might cite two kinds of evidence. First, according to Livy, it remained possible as late as 187 BCE for newly elected magistrates to complain that they were being assigned duties in impoverished and unimportant areas while others (i.e., those operating pro consule

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