THE EXCRESCENCE OF ROMAN LAW

PART 4, FURTHER ARCHEOLOGY OF EARLY FEDERAL POPULIST SCHOLARSHIP

“At the end of the Middle Ages a great change in men's thoughts about groups of men was taking place, and the main agent in the transmutation was Roman Law.”

                                                                                                            FW Maitland

In phonetics, an excrescence is the insertion or addition of a sound, usually a consonant, resulting from “an articulatory interaction that has no grammatical or historical justification”: e.g., the t-sound in prince or the p-sound in hamster. Something is smuggled in that does not make itself obvious, but which is nonetheless baked into the thing, operating as obviously as it does invisibly. Or another way to view today’s topic is that, to put it in the words of Harold Innis’ most famous appropriator: the medium is the message.

The Roman goddess Justicia, representing the virtue of justice, is blindfolded because justice is supposed to be unbiased. The law is a mere instrument, impartial in its application, judging equally all who come before it. Whether it’s biased against litigants before it is one thing. Another thing though is the fact that of course the law is ostensibly a medium of justice. And, as Innis taught us: all media have a bias, be it toward a preference for space or time. (See here, if you don’t know what I’m talking about).

Nisbet’s exploration of the historical role of Roman Law provides a telling demonstration of the applicability of Innis’ claim. Roman Law, as we’ll see, according to Nisbet, has played a decisive role in the historical conflicts between spatials and temporals. Unfortunately for the temporals that came under its influence, what Roman Law smuggled in with its apparent mundane legality has had civilization changing consequences across history. Not once, Nisbet emphasizes, but twice.  

He addresses the origins of these events in a rich essay from his Tradition and Revolt collection: “Kinship and Political Power in First Century Rome.” To understand these events, we need to begin with an understanding of patria potestas: the power of the head of a Roman family over his wife, children, agnatic descendants, slaves, and freedmen including originally the right to punish by death and always embracing complete control over the limited personal and private rights and duties of all members of the family. Nisbet observes that the patria potestas was “an original and autonomous power within Roman society, drawing its vast authority over in­dividual behavior from immemorial tradition, not from any higher agency within the Roman state.”

It was only after the public power penetrated and became eventually sovereign in pri­vate matters that the principle of agnation could be safely abandoned. And, as history records, by the second century of the Empire, the agnatic relationship meant little more than it does in modem society. It had ceased to be the center of gravity of Roman society.

Nisbet summarizes the character of this patria potestas based society. (I) It was the very opposite of an individualistic society, for the family was the irreducible unit in law, economics, religion, as well as other functional areas. Property and wealth were regarded as possessions of the family, never of individuals. At no time in the Republic, says Nisbet, could a son under power, how­ever important he might be in military or public affairs, or whatever his age, legally own property. Nor could he even retain income personally earned, unless with the consent of the father. Until very late in the Republic the family bore responsibility for most individual offenses, and it was the prime agency of retribution for injuries suffered by one of its members. (2) It was a society strong in descriptive law, emphasizing the importance of tradition, convention, and custom, rather than prescrip­tive law dictated by a presumed sovereign. (3) Pluralism, rather than monism, was the essence of the social system: i.e., authority, identity, and association were polyvalent and polycentric, rather than centralized. Although, Nisbet concedes it would be mistaken to underestimate the ease and effectiveness with which the early Romans could mobilize into military unity. Finally, (4) it was a society based upon legal decentralization, a condition naturally complementing the society’s pluralism. The power of the state did not directly impinge upon each person. This was simultaneously the condition of possibility for the flourishing of the patria potestas, just as the latter reinforced the former.

The eclipse of this longstanding traditional society Nisbet attributed to very specific conditions of Roman history. A century of bitter, destructive civil wars among the rival military commanders motivated not by genuine political differences, but merely the struggle for absolute state supremacy thoroughly weakened the traditional foundations of the commonweal. As a result, the Senate was no longer able to effectively rule. Though their antecedents can be traced back, he says, to about a century earlier, it was these conditions that dealt the death blow to the family-based, traditional society of the Roman Republic, and paved the path for the rise of Caesarism.

It was under these conditions that Nisbet notes the rise of Roman Law, bringing the end of the Roman Republic’s pluralism.

In the same way that the Senate had been supplanted by the Emperor as the effective source of public power, so would all other social bodies that lay intermediate to the individual and the government: social classes, gilds, and the family itself. Gradually there took form the doctrine that was, within a century, to become the basis of the texts of Roman jurists (the texts which, after their codification in the age of Justinian, were to comprise the powerful and historically significant code of Roman law). The essence of this doctrine was the axiom that law – in contrast to mere custom or tradition – flows from the sovereign alone, who must be, by definition, above the law.

Indeed, as I noted in my (must read!) book, The Managerial Class on Trial, the literal meaning of “sovereign” is above the rule, or the law. However, Nisbet also observes that hand-in-hand with the emergence of this new sovereignty of Caesarism was the rise of legal individualism. Under Roman law: “individuals alone are the true units of the state, not social units; and such individuals, and all the relations among them, exist under the con­templation of the legal sovereign.”

From this fateful perspective of legal individualism arose, within a century, the important doc­trines of legal fiction and legal concession. By legal fiction was meant the proposition that no social group, however old and embedded in tradition, has true or real character... More important was the related but distinguishable idea of concession. Those groups and only those groups may legally exist whose foundations have been created, so to speak, by specific concession of the sovereign.

In the words of Maitland¹, this Roman doctrine of corporations meant that “all that stands between the individual and the state has but a derivative and precarious existence.” This newly emergent legal regime cut to the very heart of the Roman family. For instance, whereas it had traditionally been the domain of the patria po­testas to deal with matters of marriage and adultery, in 18 B.C., two new laws, de adulteriis and de maritandis ordinibus, became the first official limitation in Roman history of this historic authority of the patria po­testas. Familial practices traditionally regulated through local custom, based on family autonomy, at a stroke, was brought under public jurisdiction. In the case of adultery, the nature of the offense was defined, the required procedure stipulated, and the penalty laid down. Particularly striking though were the dictates of the marriage laws. Quoting Nisbet:

Marriage is made obligatory upon all men between the ages of twenty and sixty and upon all women between twenty and fifty. Childlessness in men over twenty-five and in women over twenty was made punishable. Widows and divorced women were also ordered to remarry within a specified time. “To enforce these regulations a system of penalties and rewards was devised. The unmarried were declared incapable of in­heriting property or accepting legacies; the childless were mulcted of half the amount of such bequests.”²

The penalty forbidding the unmarried from inheriting property was, of course, an invasion of what we have seen to be the autonomy of the family in matters connected with its own property and income, and it is closely related to a separate act of Augustus during this period. This was the peculium castrense, which permitted the sons under power to retain all booty, income, and property they had acquired during military service. It will be remembered that at the basis of the patria potestas was its economic solidarity, the corporate possession of property by the family alone, not its individual members.

Likewise, under the authority of the Leges Tuliae, various other regulations over personal conduct were passed: e.g., behavior at public games and shows, women's attendance at athletic contests, extravagances in dress, and undue expenditures on banquets. The point of course isn’t whether such things should be regulated or not, the point is, if they are, how and by whom? These legal innovations tore at the fabric of traditional Roman life, family, and tradition. As Nisbet quotes J. Declareuil:

Relations between the state and the individual became ever more direct. The various situations in which the juridical person found himself affected him alone, and there was no more need to break or form any bond with a jealous and exclusive family group. Being no longer the foundation of the Republic, the paterfamilias ceased to interpose between the individual and the state.

What needs especially to be fleshed out here though is the above-mentioned matter of the role of the law related to participation in the military. Central to the hegemonic rise of the Roman Law, over the polycentric society of the Republic, was the conflict between the patria potestas, ancient authority of the family, and the imperium militia: the authority over soldiers that came into being at the outbreak of any war. Nisbet captures this idea with a poignant passage from his book, Twilight of Authority:

the first and greatest of all role-conflicts in history is that between head of household and clan on the one hand and, on the other, military chieftain. For the only times in which authority over sons passed out of the hands of the house-father, the paterfamilias in Roman history, and into hands alien to the family line, was during times of war, when a totally different set of needs and values came suddenly into existence along with a totally different kind of leadership. The kinship group and the militia were thus set into complete and unremitting opposition so far as their aims and needs were concerned.

In fact, Nisbet’s argument is that the decline of traditional Roman society, codified in Roman Law, was baked into the cake of military culture; a culture which grew in influence as the late Republic descended into constant civil war. I’ll cite Nisbet at length on this matter:

We are justified in assuming from the evidence that it was in times of war that the maximization of a son's public role – and, correspondingly, his sporadic releases from the patria potestas – was heightened. Historically, as we know, war puts a premium upon the services of the young, not the old. Ordinary civil affairs in Rome, like ordinary business affairs, could be, and were, handled by those who…held the patria potestas and were not under it. The most honored title indeed of the members of the Senate was the Patres Conscripti. But in war, different re­quirements prevail, and when warfare is extended and intensified, as it became in the later Republic, these require­ments can become decisive.

The differences between military society and the traditional society included:

Between the power of the commander and the individual soldier there is no intermediate authority, for such authority would weaken both the unity and the necessary directness of command.

In the second place, military society operates pri­marily in terms of command – not custom, tradition, and the mores.

In the third place, military society, unlike kinship, is, or by its nature aspires to be, rational in its distribution of function and authority; that is, whether explicitly or im­plicitly, both authority and function tend to fall into hands that are most competent, irrespective of considerations of age or social prestige.

We know that the Romans were well aware of the differ­ences between the two types of society and the potential consequences of military service to kinship and ordinary civil authority. An ingenious variety of checks existed to prevent possible thrusts to ascendancy of victory-intoxicated returning soldiers. For centuries there was the custom by which no militia could form within the walls and no return­ing militia could enter the city gates until it had disbanded outside. When the individuals reentered the city, they were thus symbolically, as well as actually, freed from the imperium and once again under normal civil authority, and especially the patria potestas. Such checks, however, whether customary or constitutional, could not forever with­stand the growing number of wars, the increasing size of the forces themselves, and, perhaps most important, the con­stantly growing pressure for a regular standing army with continuous command.

It is therefore, I suggest, in the rising incidence of war in Roman history, especially from the second century B.C. on, that we find the setting for the tensions that were eventually to reduce the patria potestas to innocuousness. For it was in the circumstances of increasing warfare that more and more sons under paternal power found themselves for lengthening periods of time under the imperium militiae, a form of au­thority that differed vastly from the patria potestas and pro­vided, for all its own stringency, the essential conditions of that special type of individualism that was to sap the foun­dations of kinship society.

Once these conditions were amplified by the peculium castrense, ensuring the young soldier his legal right to retain all booty, income, and property acquired during military service, not only the personal, social, and legal, but also the economic foundations of the patria potestas were shattered. It was in this confluence of conditions, the individuating conditions of military service, combined with the Roman Law that grew out of that society, once Caesar came to power, which provided the conditions of deterioration for traditional, familial-based Roman society, under the patria potestas.

Turning briefly to remarks by Nisbet on this topic in Quest for Community, he offers his evaluation of the long view on these developments in the emergence and impact of Roman Law.

The most fundamental change that took place in Rome during the century that stretched between Marius and Augustus was the shift of real authority in society from the Senate, and the family system which supported it, to the army. And thereafter in the same proportion that the State became militarized, society became increasingly politicized.

As fascinating as is this story of how the deeply rooted traditional, familial, and communal, bonds of the Roman Republic were undermined by the combined effects of chronic warfare and the codification of Roman Law, in his book Twilight of Authority, Nisbet makes an even more poignant observation about the historical impact of Roman Law.  

Much as Tolkien described Sauron, defeated at the end of the Second Age, but who – never definitively vanquished – slowly returned, gradually regaining strength, once more clandestinely corrupting the world; so Nisbet sees the career of the Roman Law. This code of militarism and absolute rulership, built on the reduction of society to atomized individuals, and openly hostile to all the intermediary forms of associations which stood between the individual and the all-powerful state, fell away following the collapse of the Empire.

The following period, which spatials dismiss as the Dark and Middle Ages, for temporals was the renaissance of a Golden Age of sorts. Again, the rich fabric of human society came back to life, no longer forever under assault from a jealous Emperor. Family, communities, feudal bonds of mutual responsibility, eventually guilds, and independent towns, as well of course as church parishes and monasteries, all once again were able to thrive. However, one of those decentralist, apparently temporalist, social associations that emerged during this period was the nascent university. And, as Nisbet tells the story, it was here, in these universities (this might sound a little familiar to some of you!) that the Roman Law, Sauron-like, again took hold, and gradually began to reassert itself.³

After a millennium of pluralist freedom in medieval Europe, the prospect for power, and emancipation from the constraints of tradition and organic communities and their customs and institutions, all offered by the reasoning of Roman Law, proved too powerful an intoxicant for medieval kings, who’d previously been restricted in their actions by traditional and common law. Roman Law provided the instruments to throw off such fetters and impose new regimes of sovereignty. And so it is, according to Nisbet, that once again Roman Law unleashed a new spatialist renaissance of radical individualism and antipathy to medieval association, tradition, custom, community, and family. In due course, the Reformation⁴ and the French Enlightenment follow, with the horrors of the French Revolution just around the historical corner.  

But let’s allow Nisbet to tell the story himself. Again, I’ll quote him at length. If you don’t want to read all the quotations, you’ve got the basic story synopsis, above.

I give here a brief account of the significance of Roman Law because it became, following the so-called Dark Ages during which its concepts were dim, a major foundation of the Europe that sprang from the ashes of the Middle Ages. It is no exaggeration to say that Western society has been twice Romanized: first in ancient times, second during the late Middle Ages and the Renaissance.

[It] would be hard to account for the distinctive character of the modern Western state, which has been from the start a process of institutionalized revolution in its effect upon family, class, estate, church, and other social institutions, except in the light of the basic concepts incorporated in the idea of the state by scholars, intellectuals, and technicians who, in Europe’s universities, starting in medieval times, revived Romanist principles of law.

Whether to the political ruler eager to break through all the intermediate authorities that the Middle Ages were so richly endowed with, the businessman equally eager to escape the network of restrictions laid upon him by the Church in matters of trade and finance, or the military leader seeking release from the multitude of contemporary religious and philosophical limits to warfare, Roman Law offered a great deal.

The pluralism, localism, regionalism of the Middle Ages, together with the almost total lack of the idea of secular sovereignty and its correlates, constituted anything but the kind of society in which Roman Law had germinated in the first place—that is, imperial Rome with its military centralization of power vested in the emperor.

Fundamental to Roman Law is the idea of the sovereign, the being held to be the sole source of genuine or legitimate law and, by that token, superior to the law.

No legal understanding was more widespread in the medieval period than that which declared the ruler to be under the law. The Romanist idea of power, broadcast throughout the West, was a tempting weapon indeed to all those—emperor, king, prince—who were eager to enhance their power over those immemorially protected from such a doctrine by medieval custom and writ..

The Roman doctrine of contract says that no relationship among individuals, however ancient, however sacred in tradition, however useful, can claim the sanction of the state unless it is shown to have emanated from the willing assent of free actors.

the overwhelming number of medieval relationships were founded in status rather than contract; in ascribed traits arising from age, sex, and ethnicity; in traditional arrangements which by their very nature could claim no origin in legal contract; and in the functional solidarities in which medieval society abounded. The Roman idea of contract was as foreign to the realities of medieval life as was the idea of the sovereign being above the law.

The downfall of the traditional knighthood itself took place, as its historians have stressed, in the conversion from ties of fealty to those of, quite literally, cash.

Such entities [communitarian pluralist institutions] had nothing but memory and tradition in most instances to vindicate their right to their being and their holdings, land included. Never mind the diverse motives behind enclosures and other acts of expropriation; these ranged from capitalist cupidity to political aggrandizement. The important point is that such acts were legitimized, often even inspired, by principles of Roman Law. The historic passage of Europe from Gemeinschaft to Gesellschaft could never have taken place had it not been for instruments of law first fashioned in the imperial despotism that was Rome under the Caesars.

throughout history in all major areas known to us, civilized as well as primitive, law has for the most part been something that is either given directly by divine spirit or else has grown up over a long period through use and wont. The idea of actually creating a law, and with it a new form of social behavior, is a very recent one, with only a few exceptions in the past…Not really until the class of Roman jurists rose, to flourish as they never had before, did the conception of law as an instrument of social change become clearly conceptualized.

Nisbet points out that even that bastion of “created law,” the national assembly or parliament, was itself corrupted from its original medieval purpose in this revolution of the Roman Law.

The assembled lords and masters were seeking to restrain royal prerogative through interpretation of [traditional] laws which, it was believed, the king was obliged to respect once Parliament had made them evident. Parliament, in short, was basically a court. Only later did the idea of its actually creating laws become accepted and even then only hesitantly.

Nisbet observes that this revolution of Roman Law that crushed the temporals’ Golden Age of medieval Europe was not restricted to law, politics, and the state.

Above all other historical forces, the revival of Roman Law based on rationalism, calculated achievement of ends through volition, and charged with the vision of central power extending to all areas, is the real source of the strain of modernism which seeks constantly to make and remake the world around us.

Roman Law’s stress upon will and volition, its emphasis upon a remote, aloof sovereign possessed of ultimate authority, and its envisagement of the social order as a kind of sand heap of legally discrete individual particles, is bound to give the individual mind a sense of separateness from social and moral tradition that is not to be found in, say, the common law.

The full significance of the Romanist stress upon the individual legal actor and upon individual volition, interest, and motivation, with society envisaged much less as community than as an aggregate of individuals bound together only by the ties of contract and by the will of the sovereign, goes well beyond the legal and political domains. It is hard not to conclude that a great deal of the stress we find in modern art, philosophy, and literature on the individual conceived as a discrete being, whether as hero or villain, man of faith or of reason, Apollonian or Dionysian, objective or subjective in disposition, springs from a social setting that has existed in the West since the waning of the Middle Ages, a setting in which individuals have in fact taken on increasing identity, in countless spheres, as individuals.

The Roman Law returned, then, once again privileging atomized, “rational” individuals, at the expense of the rich fabric of associative sociality that gave substance to personal life, shielding the isolated individual against the ambitions of the power hungry. And interestingly, it was that previously acknowledged embryotic managerial class, the intellectuals of the universities, as ever, so taken with their own rationalism, who played host to Sauron in this tale of return. As I said, it sounds like a familiar story, doesn’t it?

So, as important as Nisbet saw the influence of Rousseau and his French Revolution epigones of the General Will, his explanation for the triumph of the Spatials, and their Janus-faced statist/individualist regime, he ultimately traces back the source of the former’s successful destruction of medieval pluralism to still more ancient roots. Rousseau’s success was at least greatly aided by the return of Roman Law. Indeed, the latter may have been the condition of possibility for that success. Set in this context, the relatively recent rise of the current administrative state, with its aggressive managerial liberalism, is just one moment, one battle, in an ancient phenotype war, which has structured the very nature of the human condition, and acted as the driving force of human political history.⁵

It’s in this larger context that anyone, who wants to properly understand the nature and imperatives of the contemporary populist challenge to the managerial class, needs to situate the remarkable events unraveling all around us today. This is the deep background to Piccone’s objective objective of the new populism — though I’m not at all certain how well he appreciated that deep background. What it clearly suggests is that — for a deeper, more profound understanding of the relevant dynamics — Piccone’s populist imperative has to be filtered through the lens of Innis’ grand pendulation. As important as the French Revolution was to understanding our current context, nomenclature and theory which only begins there will be insufficient for a comprehensive model of what’s in play. I’ll be thinking of this as Nisbet’s Challenge. And it is the challenge that I intend to take up going forward.

There’s so much more that could be said about all this, but this post is plenty too long already. So, we’ll end it here, and look forward to the next post, in which I’ll (I promise) briefly flesh out Nisbet’s interesting response to one of the most common, and maybe most influential, arguments of the spatials against the temporals and their pluralism. So, if you haven’t yet, please…

And, if there’s anyone you know, who’d be interested in all this crazy stuff, please…

1. Across his many books that I’ve now read, Nisbet is fond of calling him “the great Maitland.”

2. Parenthetically, I understand that in our viciously anti-natal era, many on the reactionary right would be attracted to this kind of thing. As many of them generally are to the prospect of what they call Red Caesar. I’m not telling anyone what values they should hold. I’m just pointing out for the interested that the medium is the message. Statism is the paragon of space bias: its bias to social administration and engineering is in its nature. The more power you grant it, the more power it enjoys when it turns against you and your interests. For temporals, traditionalist conservatives, etc., the new populist agenda of pluralism and federalism offers the greater opportunity to take back control of your community, without empowering political forces set on the eradication of any manifestation of your values.

3. If Richard Dawkins is looking for something that meets the definition of “mind virus,” it seems that the Roman Law might fit the bill better than religion.

4. Though I don’t highlight the passages on the Reformation, here, the reader can refer to Nisbet’s observations cited in part 2 of this series

5. According to Gerald Strauss the embrace of Roman law during the late medieval was not always nakedly cynical. Thought it was that at times too. But there was also a strong movement for cultural regeneration that perceived a renaissance of the Roman heritage as a beacon to that project. To what extent such sentiments were earnestly naïve or nefariously duplicitous remains an open question. Gerald Strauss, Law, Resistance, and the State: The Opposition to Roman Law in Reformation Germany (Princeton, N.J: Princeton University Press, 2016). Overall though Strauss’ book provides a fascinatingly detailed accounting of the historical processes, often only summarily described by Nisbet, in the cultural and institutional pressures and machinations to impose the new Roman law on German customary law.