From Dio to today, historians want the CA to do something. We read a variety of different intentions into a text which is superficially quite forthright about its intentions; even Lukas de Blois, who is explicit in his willingness to take the CA at its word, takes the law as having useful political consequences in “closing the dangerous conflict” that had sprung up around Caracalla and Geta.102 No one quite takes Caracalla’s claims about the purpose of the CA seriously, and before concluding this chapter it seems worthwhile to think about why.
102 de Blois 2014: 1018.
When ancient historians talk about law, they often treat it either as a branch of intellectual history of or the history of institutions. To give just one example, Dennis Kehoe has fruitfully analyzed government action, including legal change, as a form of economic policymaking.103 These approaches are effective in applying law to their preferred questions. Roman law developed as a heavily articulated and debated branch of normative philosophy; historians studying the growth of particular philosophic approaches can apply those methods fruitfully to the juristic schools. Similarly, scholars who seek to understand how individuals engaged in daily life need to understand the institutional constraints upon those individuals’ behavior, and many of those constraints are legal in form.104 But each of these analytic frames carry with them certain second- order assumptions about the object in question, ascribing basic features to it in order to make it amenable to the type of study proposed. For example, treating Roman law as a form of philosophy requires, at least within juristic texts, some kind of intellectual coherence within authors and schools; otherwise there is no object of study. Similarly, treating law as a set of institutions guiding behavior necessarily foregrounds the effect of law on behavior, when that may be epiphenomenal to aspects of legislation that are themselves worthy of discussion.
These frameworks share a presumption of rationality. For law to be cognizable as a philosophic discipline, it must be organized in such a way that the tools of philosophic analysis can find some purchase: for example, we would have to presume that terms like culpa have a fixed meaning within any given author’s corpus in order to determine the meaning of that term as it appears in any given claim, and similarly that an author can be taken to represent a unitary point
103 See Kehoe 2007: 41-43 (explaining the methodology and theoretical framework behind his analysis of legal change), 131-61.
104 This way of thinking about individual social and economic choices in the context of institutional constraint has been dubbed “new institutional economics” or NIE; see North 1990: 107-17 for a discussion of how this institutional focus can alter the boundaries of historical analysis.
of view and that she is unlikely to issue mutually contradictory claims. Treating legal corpora as exercises in applied ethics requires—and thus presumes—the existence of a certain kind of epistemic rationality.105 By contrast, treating laws as constraints on behavior makes it difficult to imagine rationales for those laws without a presumption of instrumental rationality. Constraints need not be rational to constrain; one could plausibly write about the effects of weather patterns on human settlement without implying those weather patterns existed in order to affect human settlement in that way. That said, ancient historians have far more evidence for the effects of state action than we usually do for the reasons behind any given action. Legislative history is rarely available to us, and historiographical discussion of the motivations behind any particular action are rarely based on firsthand knowledge. Intent and effect blur; we assume that laws are designed to alter the world, and that we can thus see the desires of their designers in the altered world they create.
The CA complicates this analysis; it is difficult to make the changes the CA wrought into ones we might expect the Roman state to actively desire. While other state actors began to speak in the language of universal citizenship soon after the CA, the granting of that status does not obviously serve transactional political goals (such as Septimius Severus’ extension of marriage rights, discussed in Chapter I) or broader administrative ones (as might, for example, preferential legal treatment of a given class of transaction at a moment when those transactions were of value to the state).106 Instead, laws like the CA are more clearly understood through their representational
105 Ronald Dworkin has referred to this attribute as “integrity,” claiming that “the adjudicative principle of integrity instructs judges [and, presumably, others attempting to determine the proper interpretation of sources within a given legal system] to identify legal rights and duties, so far as possible, on the assumption that they were all created by a single author—the community personified—expressing a coherent conception of justice and fairness.” Dworkin 1986: 225. 106 See, for example, Sirks 2014: 139-40 (discussing the implications of innovations in agency theory for maritime trade).
qualities; they create a narrative of imperial exceptionality and human/divine interaction, with actual legal effects supporting the narrative by providing evidence of its veracity. The CA encourages its viewer to imagine a kind of emperor who might receive personal protection from the gods, and whose welfare is so important that only the enfranchisement of millions could constitute a fitting return for that protection; the actual enfranchisement functions mainly to demonstrate to the viewer that she does, in fact, live in such a reality.
This narrative effect cannot be understood within the hermeneutic frameworks we tend to apply to law—it does not respond to the world as it existed,107 and the manner in which it supports its claims is not easily reducible to a logical argument. However, these sorts of moves are common in more traditionally representative media. A sculptural or numismatic image is not assumed to depict the world as it exists; instead, by linking the world of the image and its viewer to the world that the promulgator wishes to be perceived as existing, it makes that world seem closer to the real. For example, we understand that an image of an emperor on horseback need not correspond to reality. However, it might cause a viewer to more easily access the idea of the emperor as a cavalryman, creating a more fertile conceptual ground within said viewer for that idea and for ideas (like imperial military success or virility) that themselves might be put forward more explicitly in other contexts. Sculpture need not be logical. Understanding the CA for its narrative qualities, or for the story it tells about Caracalla, Geta, and the gods is difficult to do with the tools of traditional legal analysis, but it can tell us far more about why such a consequential law might be passed than could a strict analysis of its legal effects.108
107 I presume for the purposes of this work that Caracalla was not, in fact, the beneficiary of divine protection, and later events support my presumption. See Dio Cass. 79.5.
108 This style of analysis is common in discussion of contemporary legislation that is intended primarily as a venue for state messaging, and is commonly referred to as focusing on “the
It is difficult to tell how sincerely this narrative was put forth. Historians describe Caracalla as a megalomaniac, and Wynne Williams has argued that he took a particularly strong hand in the drafting of imperial legislation.109 It is possible that Caracalla sincerely believed that he was a beneficiary of divine protection, or that the imperial chancery put forward this narrative to serve some other end. Either way, however, a narrative was put forth, and one which differed sharply from that visible in Severan-era lawmaking before or since.