1In this paper, I step outside the empire in order to reflect on what happened within. I focus on accounts of the staging of trials outside the empire because those performances provoked reflection by those who narrated them regarding the ideological work accomplished through the public performance of judicial rituals enacted, as Cicero might have said, optima lege, through strict procedure. It was, I suggest, the assimilation of those outside the empire to audiences within the empire that occasioned such reflection on what the performance of justice was intended to convey. On the basis of these accounts, I urge that scholars attend to the status of legal ritual, and therefore of the law, as both civilian and republican. What exactly might be meant by these terms, I will clarify shortly, by discussing the polarities in which they were situated.

2I commence by contextualizing the argument of this essay by reference to two bodies of historical literature. Again, the nominal focus of my remarks is on the Roman practice – and theory – of staging trials outside the empire, but my point will ultimately be that Romans imagined the ideological work performed by judicial rituals outside the empire as identical to the work that such rituals performed in an ongoing way inside the empire. This project is consonant with a number of trends in contemporary scholarship. Where once historical inquiry into classical Roman law observed a distinction between doctrinally-oriented study that focused on jurisprudential argument produced at Rome, in contradistinction to socio-legal inquiry that focused on legal practice in the provinces, recent work has insisted on situating provincial and Roman legal argument in comparative and historical perspective.1 Civil procedure under the empire – in particular, the history of so-called cognitio-process – has long constituted a special exception to this rule.2 But no inquiry into the forms and historical importance of legal argument can be complete without investigating the meanings that the Romans as dramaturges, and provincials as spectators, attributed to legal procedure.3 Those meanings, in turn, will be largely inseparable from the material and architectural contexts in which such rituals were supposed to unfold: they were intended to be organized in urban centers, disinterested processes of fact-finding and adjudication that reflected the disinterested institutional operations that delivered power and prestige to the juridical and socio-economic elites who ruled provincial landscapes and populations on behalf of Rome.4 This is visible in Roman descriptions of provincial landscapes, which describe the relationship of Roman-style cities to the administratively-subordinated populations in their hinterlands as organized around the provision of processes of dispute resolution, despite the political-economic realities that generated the domination of those self-same provincial communities.5

3The second body of evidence and argument to which one should ultimately compare accounts of the performance of justice – which occurs through magistrates holding jurisdiction – is that concerned with the ostentatious displays of military power and imperial sovereignty that occured on the occasion of signing treaties, whether in the reign of Augustus at the Euphrates, or under Marcus Aurelius on the Danubian frontier, or under Constantius II with the Quadi, in Ammianus. (I say, “ultimately,” because the scope of this essay does not permit the comparison to be undertaken here.) How might we differentiate the arguments for empire advanced to their various audiences by emperors acting as lords of all the world, from those advanced by emperors and their agents exercising jurisdiction and enforcing norms, of whatever source?6

4An essay of this scope can only sketch the contours of the available evidence and attempt to delineate lines of inquiry. The overall argument has been designed so as to complement the existing literature on these questions. This is so in particular in respect of my choice to take up trials without the empire, to see what light they might shed on the performance of justice within; many trials within the empire, in particular those described in Greek and Roman novels, but also those recounted in the Acta Alexandrinorum and the Christian martyr acts, have been the subject of a distinguished literature, and little would be served by walking in its footsteps on this occasion.7

5I begin in Lazica in the reign of Justinian, with the remarkable account given by the lawyer Agathias in his Histories of the duplicitous conduct of several imperial officials toward the client king, Gubazes.8 Well into his detailed narrative of the betrayal and murder of Gubazes, Agathias pauses to inform his readers of his own view of the remarkable power and populousness of the Lazi, and of their long history of intermingling with Rome:

εἰσί τε οὐ βάρβαροι τὸ λοιπὸν οὐδὲ οὕτω βιοτεύουσιν, ἀλλ’ ἐς τὸ πολιτικόν τε καὶ ἔννομον μεταβέβληνται τῇ πρὸς Ῥωμαίους ἐπιμιξίᾳ·
Nor are they barbarians in any other respect, long association with the Romans having led them to adopt a civilized and law-abiding style of life. (Agathias 3, 5, 4)

6The terms of art here – their lifestyle has become more poliadic, and regulated by law, in consequence of their congress, epimixia, with Rome – are precisely the terms of art of classical ethnography.9 To the Lazes’ degree of familiarity with Roman law, I will return.

7Having been informed about the treasonous conduct of his own officials, Justinian arranges for them to be put on trial in Lazica, and dispatches a distinguished senator, Athanasius, to preside. The staging of the trial, its rationale, and its outcome consume the first pages of the fourth book.

Accordingly, Athanasius, donning the garb of the highest civic magistrates, took his seat on a raised tribunal (ἐπὶ θάκου τινὸς ὑψηλοῦ καθῆστο) amid great pomp and splendour. Trained shorthand writers were in attendance upon him and there was the full complement of all the other grander and more impressive officials who are especially well-versed in the niceties of legal procedure (δαημονέστατοι τῆς τῶν δικαστηρίων κομψείας). Also present were heralds, and ushers armed with whips. All these people had been selected from the various official bureaux in Constantinople. (Agathias 4, 1, 2)

8What I want to draw forth is the extensive emphasis given by Agathias to the persuasive and political effects of punctilious observance of correct procedure. What is more, he explicitly assimilates his own interpretation to the reasoning of the emperor himself:

In my opinion it was no mere accident or caprice but a judicious and well-timed assessment of the situation that led the Emperor Justinian to order that the trial be conducted with such thoroughness and meticulous observance of legal form (ξὺν τοιᾷδέ τινι τάξει καὶ εὐκοσμίᾳ τὴν κρίσιν προελθεῖν). (Agathias 4, 1, 4)
His object was to impress the natives by a somewhat ostentatious display of the majesty of Roman justice (τῶν Ῥωμαϊκῶν σφίσι νομίμων κομπωδέστερον ἀναδεικνυμένων), in order not only to accustom them better to Roman rule but also to dispel any resentment or feeling of grievance that the Colchians might still harbour in the event of its being proved that Gubazes had been guilty in the first instance of attempted defection to Persia and that consequently his murder had been perfectly justifiable. (Agathias 4, 1, 4)

9It bears mention that Agathias clearly believed this was not a show trial, in the sense that the outcome was not foreordained: on his understanding, Justinian intended the show of scrupulous attention to procedural fairness to prepare the Lazes to receive (politically) whatever outcome eventuated. This is surely the point of declaring that it was possible that Gubazes might be found guilty, in which case, it seems, his murder would have been justified. The point, therefore, is not some message inherent in an outcome, but the message contained in procedure itself:

He equally realized that the setting up of a tribunal, in which either side states its case (τῶν ὑπηρετῶν ἄνω τε καὶ κάτω διᾳττόντων) while the court officials kept bustling about to ensure that each man took his stand and answered questions in the proper fashion, accompanied as it would be by the full majesty of the law (ὄγκου τε δικαστικοῦ φαινομένου) and the lofty tones of forensic eloquence, all of which would serve to render more awe-inspiring the prospect of imminent death – all these things could not fail to give the proceedings a different and more exalted quality and to make the punishment appear equal to if not even greater than the crime. (Agathias 4, 1, 7)

10According to Agathias, the complex act of political reparations – again, not that of retribution, but of repair of goodwill among peoples – was to be achieved not via the ostentious handing-over of the guilty parties, nor by means of some act of spectacular punishment; nor even by an awesome display of military might, by the shimmering armor and sibillant flags that late ancient authors typically describe as terrifying and overwhelming lesser peoples beyond the borders.10 Instead, it was the kompseia, the precision and refinement of the lawcourt that was deployed to achieve this effect. Its constituents included the erection of a tribunal, processes of reciprocal interrogation (and torture) of witnesses, and its apparatus of knowledge- and memory-production. (As a correlate to the endeavor outlined in this essay, I observe that ceremonial as a form of political communication inside the empire has received a certain amount of attention11; it is perhaps time that similar attention were given to the reduplication of such ceremonies beyond the frontiers.) In what follows, I want to draw forth some ideological aspects of these components.

11What deserves emphasis in any inquiry into the performance of justice under the Roman empire is the association, stressed throughout the length and breadth of imperial history, of jurisdiction (as process) and justice (as telos of legal procedure) not simply with civilian life – it was a power exercised domi, you might say – but with republican magistracy. After all, one could be a civilian under an absolute monarchy, and emperors did participate in the administration of justice. But the ideology of Roman law, and in particular the iconography of Roman courts, associated justice not with monarchic power per se, nor with some imperial capacity for superhuman insight, but with the exercise of jurisdiction by elected magistrates who held that authority by virtue of office. This is one reason why there is no standard imagery for the emperor’s administering of justice: as the emperor’s costume came more and more to emphasize his military functions, and as a related matter to distinguish him from ordinary magistrates, the symbolics of his performance of jurisdiction came to clash with those that he sought otherwise to sustain.

12One might begin an inquiry of this kind at the dawn of the legal culture of the Principate, with Aelius Tubero. As an anecdote about Tubero rehearsed by Pliny the elder reveals, Tubero – and others under the Principate – continued to exercise jurisdiction using the forms of the republic:

When Aelius Tubero, urban praetor, was giving judgments from the bench in the forum (Aelii Tuberonis in foro iura pro tribunali reddentis), a woodpecker perched on his head so fearlessly that he was able to catch it in his hand. In reply to enquiry, the seers declared that disaster was portended to the empire if the bird were released, but to the praetor if it were killed. Tubero at once tore the bird in pieces, and not long afterwards he fulfilled the portent. (Pliny, Nat. 10, 41)

13Notably, the distinctively republican flavor of these associated symbols and conduct – the magistrate’s chair atop the raised tribunal – is consistently emphasized even into late ancient panegyric. The association between the symbolism and ideology of magistracy is sustained and transformed in new contexts even until the later fourth century. Here, for example, is an aside from the panegyric of Pacatus for Theodosius, delivered in Rome in the summer of 389:

Hence the stories handed down to us of fasces given to men as they sowed their seed, of palm-leaf embroidered tunics sent through the countryside with their curule chairs (missas cum curulibus suis per rura palmatas), of farmers who had been consuls, of shepherds with purple trabea, and of men vested as dictators in the midst of their herds. (Pacatus, Pan. Lat. 2(12), 9, 6; trans. Nixon and Rodgers)

14The trappings of magistracy – costume and chair – go hand in hand.

15That these were the trappings of a specifically civilian magistracy was also recalled, and is nowhere more clearly retailed than in the panegyric to Maximian at Trier, from 21 April 289, whence, apparently, Maximian had been summoned to arrest an incursion on the frontier at the very moment he was entering into the consulate:

Bona venia deum dixerim, ne Iuppiter quidem ipse tanta celeritate faciem caeli sui variat quam facile tu, imperator, togam praetextam sumpto thorace mutasti, hastam posito scipione rapuisti, a tribunali temet in campum, a curuli in equuum transtulisti et rursus ex acie cum triumpho redisti...
I should say, with apologies to the gods, that not even Jupiter himself changes the face of his own heavens, as swiftly and easily as you doffed the toga praetexta and put on the cuirass, laying down staff and seizing a spear, transporting yourself from the tribunal to the field of battle, from the curule chair to the horseback, and returning again from the fray in triumph… (Pan. Lat. 10(1), 6, 4; trans. Nixon and Rodgers)

16The argument, as it were, proceeds by means of a sequence of alternating symbols of civilian and military authority: toga praetexta is opposed to armor; scipio is opposed to spear; tribunal is opposed to the field of battle; sella curulis is balanced by the cavalry horse.

17These components of an ideology of jurisdiction as inherent in republican magistracy – and likewise of a symbolics that required jurisdiction to be exercised from a curule chair, atop a raised platform – form a regular part of those moments when panegyrists appeal to the trope of a return of law and forensic oratory after a period in the wilderness under a prior regime. (The trope was of course available in an exhortative mode, regardless of whether the immediately prior period had in fact been characterized by an abuse of justice.) Here, for example, is the relevant passage from Symmachus’s oration for Gratian:

We saw a new light in the curule chair, unbloodied axes auspicious of clemency, tokens of virtue in laureled fasces, an augury of majesty in the eagles of the sceptres. Then for the first time forensic activity, once subjected by law to silence, freely raised its eyes to your tribunal (liberos oculos ad tuum tribunal erexit). When in the most distinguished magistracy you ordained what was splendid and formulated sweetly resounding decrees, we understood at once that eloquence, which we observed in the consul, could return to honorable duty. (Symmachus, Orat. 3, 2)

18We possess, of course, a storehouse of anecdotes about the exercise of jurisdiction on the part of emperors, and the requirement that they be available to those who call upon them for dispute resolution.12 But this is in fact a feature of the earliest regulations that we possess on the exercise of jurisdiction by republican magistrates, namely, the lex de provinciis praetoriis from the close of the second century BCE. What one would like to know – what I in fact expect – is whether the actualization of this power required and consistently received appropriate staging. When old women demanded that passing praetors hear their petitions, did attendants always set out their folding chair? The answer is likely to be, yes.

19The association between legal legitimacy and ritual form was certainly a concern for Ulpian. To be sure, one thing that distinguished the emperor from other magistrates who held jurisdiction in the early third century was that the emperor could utter legal pronouncements de plano, from level ground.13 For other magistrates, Ulpian was keen to define what could and could not be done in summary fashion, over against what such a magistrate could do with a tribunal and a chair.14 Here is but one reflection on this topic; I quote the translation of Jameson by way of demonstrating the ease with which we moderns follow ancients in translating the language of ritual and stagecraft into metaphors for legitimate and illegitimate procedure:

Si causa cognita bonorum possessio detur, non alibi dabitur quam pro tribunali, quia neque decretum de plano interponi neque causa cognita bonorum possessio alibi quam pro tribunali dari potest.
If, after a case has been investigated, bonorum possessio is granted, it will only be awarded by the court (literally: = “<by a magistrate speaking> from the tribunal”), since a decree cannot be issued extrajudicially (literally: = “from level ground”); nor, when the case has been heard, can bonorum possessio be awarded anywhere other than before the court (literally: = “from the tribunal”). (Ulpian, Ad edictum bk. 39 frag. 1093 Lenel = Dig. 37, 1, 3, 8; trans. Jameson)

20As the glosses on the translation make clear, the temptation is powerful to suppress the strong ancient association between judicial ritual and legal legitimacy. Instead, the translator has understood the ancient phrases as metaphorical and produced a version based on that understanding, thereby erasing the ideological commitments that the metaphorical association made manifest. Those commitments were, however, a sufficiently well-known feature of the performance of justice that they feature in satire, notably in the representation of Claudius as judge in Suetonius, where the demand for judicial services is expressed by litigants’ trying to keep him in his seat.15

21The symbolics and stagecraft of jurisdiction is also visible, unsurprisingly, in the very few images of court scenes to survive from the Roman world.16 (The paucity of court scenes in the evidentiary record, when compared with the heavy emphasis on the emperor as judge in documentary and literary material, is a puzzle. As I stressed above, the emperor as judge does not possess a developed and conventional iconography on par, for example, with that of emperor as sacrificer. Sustained inquiry into why this should be the case will have to wait for another day.) Nevertheless, the fact of the matter is that a number of representations of court scenes do survive, and several features are consistent across the corpus. Two notable images from the reign of Augustus – the relief on the silver cup from Meroë (fig. 1), and the judicial scene on the border of a fresco from the Villa Farnesina (fig. 2) – strongly suggest that the iconography of the Roman court was already stabilized from the moment that we have access to it.

Fig. 1 – Seated magistrate presiding over a trial. Detail from an Augustan-era silver cup discovered in Meroë, Harvard University – Boston Museum of Fine Arts expedition. © Boston Museum, used with permission.

Fig. 2 – Magistrate on tribunal. Fresco from the south wall of triclinium C, Villa Farnesina. Photo by author. © Clifford Ando.

22To the fresco from the Villa Farnesina, we might compare the satirical caricature of exactly the same sort of scene – another judgment of Solomon, as it were – from Pompeii, only this time, the magistrate holds a scipio (fig. 3).

Fig. 3 – A satire of the judgment of Solomon, Pompeii. Now in the Naples Museum. Wikimedia commons, free of copyright.

23To these should be added the judicial relief from the forum itself, where the seated body on the platform suffices to tell us what we are dealing with (fig. 4), and the famous forensic scene in a fresco from Ostia (fig. 5).

Fig. 4 – Judicial relief showing magistrate and litigants, from the so-called Lacus Curtius. © Sabine MacCormack.

Fig. 5 – Trial scene from fresco at Ostia. Image from photo E040754, downloaded from ostia-antica.org, adapted with aid of Visual Resource Center, University of Chicago. Free of copyright.

24By coincidence, the fresco from Ostia is damaged in exactly the pattern of the judicial relief from the forum, so that in both cases, the identification of the scene as that of a trial is signaled by platform, toga and the feet of a seated magistrate. (In the image from Ostia, the broken pot at the feet of the litigants is an especially amusing detail, it being an open question whether they staged a reperformance of the incident or brought the shards in and lay them on the ground, or, indeed, whether the magistrate was passing by and set up his chair on the spot.) The corpus also includes one much later image, a famous illustration from a papyrus now in the Bibliothèque nationale (fig. 6).

Fig. 6 – Trial scene as illustration on 2^nd century papyrus roll. Bibliothèque Nationale de France, supplément grec 1294. © BNF, used with permission.

25As it turns out, we have a body of theory – of an admittedly limited nature – on what it meant for a Roman magistrate to deal justice as a magistrate outside the empire. By “theory,” I intend the reflection on Trajan’s practice offered by Pliny in the Panegyricus:

It brought honor to the empire and distinction to you, when friends and allies sought audience in their own countries, their native lands; it was a splendid sight after so many years to see green turf piled high for a consul’s tribunal, with the soldiers’ javelins and standards for a guard of honor alongside the rods of office, and you presiding in person, your majesty enhanced by the contrast with the varied garb of your petitioners and their discordant voices, their speeches seldom dispensing with an interpreter. If it is noble to administer justice to fellow-citizens, what is it to enemies! The splendour of occupying a curule chair in the assured peace of the forum pales beside the glory of setting it up in vast open spaces in the conqueror’s wake, with calm and security acting as a threat to hostile river-banks: the glory too of scorning the cries of savages, and displaying the toga instead of displaying arms to quell fear of the foe! (Pliny, Pan. 56, 5-8; trans. Radice)

26Pliny lays strong emphasis on several features of the scene. First, he draws attention to the distinctive majesty that accrues from a Roman emperor’s acting as a republican magistrate in foreign lands. Next, the republican and civilian character of the event is repeatedly stressed: Trajan presided as consul; he spoke from a tribunal; he sat on a curule chair; he wore a toga; and the context is both assimilated to and differentiated from a forum. The juxtaposition of soldiers with standards and lictors with fasces serves then to highlight the role of military power in bringing about conditions of the rule of law.

27Of course, it was precisely this conceit – that the Romans could teach people how to live civiliter (or politikōs, in the language of Agathias), which meant, inter alia, lives ordered by law (ennomos) – that issued in the greatest military disaster of the reign of Augustus. I refer, of course, to the destruction of Varus and his legions, which brought to an end the remarkable effort on the part of the Romans to establish Roman-style polities in Germany.

But the Germans, in a fashion scarcely credible to one who has no experience of them, are extraordinarily crafty and terribly savage all at once – a race born to lying. By feigning a series of made-up lawsuits, now summoning each other to disputes (simulantes fictas litium series et nunc provocantes alter alterum in iurgia), now giving thanks that Roman justice was settling them and that their savagery was being rendered mild by this unknown and novel discipline and that quarrels which were customarily settled by arms were now being settled by law, they brought Quintilius to such a degree of negligence that he came to think of himself as though he were the urban praetor administering justice in the forum and not as commanding an army in the middle of Germany (perduxere Quintilium, usque eo, ut se praetorem urbanum in foro ius dicere, non in mediis Germaniae finibus exercitui praeesse crederet). (Velleius 2, 118, 1, trans. Shipley)

28We also possess an account of this episode in Cassius Dio, who, whatever his source, employs a Greek ethnographic vocabulary:

The Romans were holding portions of (Germany) – not entire regions, but merely such districts as happened to have been subdued, so that no record has been made of the fact; and soldiers of theirs were wintering there and cities were being founded by drawing together scattered settlements. The barbarians were changing the rhythm of their lifestyle to that of the Romans and internalizing the ways of the agora and meeting in peaceful assemblies (ἔς τε τὸν κόσμον σφῶν οἱ βάρβαροι μετερρυθμίζοντο καὶ ἀγορὰς ἐνόμιζον συνόδους τε εἰρηνικὰς ἐποιοῦντο). (Dio 56, 18, 1-2)

29This incident occurred, of course, more than half a millennium before Justinian dispatched Athanasius to raise a mound of earth in Lazica. What is notable about the two representations of the episode involving Varus is, first, Dio’s quite extraordinary confidence that the process of building Roman-style fora and performing lives ordered by law in the landscape of Germany had in fact been successful in causing the Germans to alter the rhythm of their lives; and second, Velleius’ insistence that the Germans had been collaborating in this project knowingly. That is to say, in his account, the Germans understood that the Romans flattered themselves in regard to the majesty and seductive power of their law, and they tricked Varus by playing to his essentially Roman self-regard. This might be the first such incident in the trail of breadcrumbs that leads from Augustus to Justinian, but this apparently was not its beginning.

30And how did the trial in Lazica end? Despite the reassurances offered by Agathias that I quoted earlier, to the effect that long intermingling with the Romans had brought the Lazi to conduct poliadic and legally-ordered lives (Agathias 3, 5, 4), they were not an astute audience for the ritual commanded by Justinian:

While the prosecutors were thus pressing their charges, the Colchian populace who were assembled there could not understand the terms in which the accusation was couched or appreciate the rhetorical skill employed. Nevertheless, being acquainted with the facts upon which each individual count rested, they enthusiastically supported the efforts of the prosecution by echoing their intonation and imitating their gestures. (Agathias 4, 7, 1)

31The prosecution spoke first, and the Colchians understood only enough to grasp the accusations levelled against the murderers of their king and to display their enthusiastic assent through mimicry. But when the trial paused and the defense began its speech, the Lazi erupted: the case had been made, and they expected summary execution. What was the point of more speechifying? Athanasius had to call for silence, and begin the dry process of hearing and interrogating the defense. The Lazi were resentful, and then astonished, as the dry systematicity of deliberation issued in a sentence of death:

The condemned men were seated on mules and paraded through the streets, thereby providing the Colchians with a sobering and awe-inspiring spectacle. These latter were further impressed by the herald proclaiming in a loud, clear voice a general exhortation to respect the laws and refrain from committing murder. But when their heads had been cut off, too, everyone was moved to pity and forgot their resentment. This, then, was the finish of the trial. The Colchians for their part retained and renewed their old affection for the Romans. (Agathias 4, 11, 3-4)

32The dénouement of the incident happily confirmed the policy of Justinian, which, of course, Agathias had endorsed. Justinian had supposed that a trial would render the prospect of execution frikōdesteron, more spine-tingling. The result, Agathias concludes, was a μέγιστον θέαμα καὶ πλείστης ἄξιον εὐλαβείας, a great spectacle and one worthy of much reverence. Observe, too, the lesson delivered just before the execution, which transformed the event from a contingent act of revenge or retribution, into an exemplary instance of the enforcement of a norm. If the Lazi had not been living poliadic lives ordered by law before this incidence, they would do so henceforth, or so Agathias seems to imply. What is more, regarded purely at the level of politics, it worked.