diana on the aventine

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Diana on the Aventine*

vonCLIFFORD ANDO

I offer the following essay as a commentary upon, and tribute to, the achie-vements of the members of the Schwerpunktprogramm ‹Römische Reichsreli-gion und Provinzialreligion› of the Deutsche Forschungsgemeinschaft . Theessay addresses the question, ‹If the Romans had had a Reichsreligion , whatwould it have looked like?› My response is shaped by three considerations.First, like RÜPKE and BENDLIN in their studies of religion as communicativesystems, I take it as axiomatic that the history of religion under the empiremust be studied at least in part as an effect of empire – a truth of whichhistorians of religion in Christian antiquity already had an embryonic aware-ness, insofar as they understood the material diffusion of religion throughpersons and books as facilitiated by the work of empire.1 Second, I draw backfrom the current emphasis on the deep contextualization of evidence – not, thatis, from contextualization as such, but from where it leads to an excessive andunhelpful particularism. If current theoretical resources do not permit the dataof, for example, religion in the Hauptstädte of the provinces to be studied inaggregate, my own inclination would be to attribute that fact to the limitationsof contemporary conceptualizations.2 This leads to the third consideration, mysense that current taxonomic enterprises in the study of provincial religion donot address what seems to me a real historical explanandum, namely, the re-flections of Roman religious practice in language and ritual form in provincialart and cult – an important evidentiary and conceptual other, it seems to me, tothe ‹Zentralität-Diskurs› studied by HUBERT CANCIK.3 In light of these con-siderations, this essay suggests that the principal mechanism within Romanculture for negotiating the new cultural, political and geographic realities of theempire was law; and furthermore, that as a consequence of the Roman assi-milation of the regulations of cult to law, the study of civil law doctrine underthe empire offers an underutilized window in mechanisms for religious inno-

* To the members of the Schwerpunktprogramm , and to Jörg Rüpke in particular, mythanks for companionship, hospitality and inspiration.

1 BENDLIN 1997; RÜPKE 2001.2 Cf. HAENSCH 2006, 127. 143.3 CANCIK 2006. Ancient efforts to conceptualize the centrality of Rome in various (reli-

gious) topographies of the empire are the topic also of ANDO 2008a, part 2.



100 Clifford Ando

vation in the Principate and beyond. To the extent that I argue that Romansfound within their own culture resources for expanding the reach of Romancults, this essay also contributes to an on-going debate among historians of Roman religion over the usefulness of polis-religion theory to the study of Rome.4

1 Extra-civic cults in polis- and imperial religion

I take as my point of departure the law inscribed by the plebs Narbonensiumlate in the reign of Augustus, on the altar it erected in the forum of Narbo to thenumen of the emperor (CIL XII 4333 = ILS 112). Such texts typically containone or more of three components: a notice of the circumstances of their erec-tion, a feriale setting forth the dates and constituent rites to be performed at thealtar, and regulations governing the care of the sacred properties associatedwith the altar and its precinct.5 The lex at Narbo exhibits all three components.I draw your attention to the final clause of its regulations, from the inscriptionon the side, ll. 20–22: ceterae leges huic arae titulisq(ue) eaedem sunto, quae

sunt arae Dianae in Aventino , ‹let the other regulations for this altar and itstexts be the same as those that are for the altar of Diana on the Aventine.› Norwere the plebs at Narbo alone in so citing the leges . The Roman colony of Martia Julia Salona in Dalmatia similarly cited them, on an altar to JupiterOptimus Maximus dedicated there in 137 C. E., as perhaps did the people of Ariminum on an altar dedicated there, though that text is already brief and thecitation of Diana takes place, if it does so at all, in an otherwise unparalleledabbreviation.6

What were the regulations governing the altar of Diana on the Aventine?How were they known to the plebs in Narbonensis? And how did they assumeparadigmatic status?

Though the point is ultimately to one side of my argument, I suspect that theleges of the altar of Diana on the Aventine were in fact not known verbatim or

even in detail at Narbo or Salona, and perhaps not known at all. I say that eventhough MARTIN FREDERIKSEN, for one, cited precisely these texts to supporthis own arguments about the publication of legal texts – arguments that at ageneral level I support and indeed would substantially extend.7 That said, thereare important legal precedents for citing only, rather than quoting, bodies of Roman law in provincial contexts, despite the explicit claim that their content

4 WOOLF 1997; RÜPKE 1999.5 On the leges of altars see WISSOWA 1912, 473–475.6 CIL III 1933 = ILS 4907; CIL XI.361 (h a s a h l l q d r in a = haec aedes Salutis

Augustae habet leges quas Dianae Romae in Aventino ). On these texts see inter alia CESANO1910, 1735–1736.

7 FREDERIKSEN 1965, 196.



101 Diana on the Aventine

was binding: both Cicero and Verres in their respective provincial edicts leftsections ‹unwritten›, while promising to approximate their rulings to the prae-tor’s edict.8 It is naturally not clear how such a system could work in practice,nor would I insist that Cicero, Verres and the magistrates of Narbo had a sharedunderstanding of the normative status of unwritten law. But I do think that the

description of the regulations of the altar as law is significant, and to thatproblem I will return.To the question, whence derived the paradigmatic status of Diana’s lex, two

negative responses may provisionally be offered. First, it cannot have dependedon its details qua body of regulations, else it would be more widely cited, bothin the provinces and at Rome. Yet bracketing its invocation in other leges , onlyone person in antiquity claims to have seen the stele on which the text wasinscribed – Dionysius of Halicarnassus – and though he observes that the textwas inscribed in the sort of letters ‹that Greece used in antiquity›, he nowheregrounds any of his claims regarding the history of the cult in a reading of thestele’s text.9 Grant that the text existed and that it was authentic: I don’t thinkDionysius or anyone else could read it.

Second, neither can its prestige have derived from its status qua Roman body

of law, for the late Republican sources on the foundation of the temple agreeon this, that it was founded commune Latinorum , as a federal cult for the citiesof Latium.10 This is likely to be true, despite the divergence in our sourcesregarding the inspiration for the cult, whether Artemis of Ephesus or Diana of Aricia, and regardless whether we credit the claim by Dionysius that the altarhad the privilege of asylum or for that matter Livy’s assertion that its place-ment near Rome represented the Latin concession of preeminence to Rome.11

These latter pronouncements are likely to have been inferences from cult prac-tice and legal status in the Augustan period and only secondarily based onhistorical knowledge of whatever security. Their divergence becomes signifi-cant only in relation to Dionysius’ claim that the lex stood on a stele, stillvisible in his day; in light of that claim the divergence seems best explained bythe simple solution that the text was to contemporaries illegible.

8 See esp. Cicero At t . 115.15 Shackleton Bailey (6.1.15 vulgate): breve autem edictum est propert hanc meam διαι Â ρεσιν , quod duobus generibus edicendum putavi; quorum unum est provinciale, in quo inest de rationibus civitatum, de aere alieno, de usura, de syngraphis, ineodem omnia de publicanis; alterum quod sine edicto satis cmmode transigi non potest, dehereditatum possessionibus, de bonis possidendis, magistris faciendis, bonis vendendis,quae ex edicto et postulari eet fieri solent. tertium de reliquo iure dicundo α Í γρα ον reliqui.dixi me de eo genere mea decreta ad edicta urbana accommodaturum, itaque curo, et satis facio adhuc omnibus . On Verres see Cicero Verr. 2.1.112.

9 Dionysius Ant. Rom. 4.26.4–5. Once Dionysius is excluded, the evidence for actualreading of the text is limited to Festus 164L s. v. nesi: Nesi pro sine po .... Di Aventinen...... .

10 The phrase is Varro’s ( Ling. 5.43); see also Livy 1.45; Dionysius 4.26.4–5. Furtherevidence available at CESANO 1910, 1735–1737; see also CORNELL 1995, 295–297.

11 On these issues see the trenchant remarks in MOMIGLIANO 1963. On the anachronism of Livy’s language and his assertion of Roman preeminence see, e. g., OGILVIE 1970, 183.



102 Clifford Ando

These descriptions of the cult as a federal institution do suggest an alternateunderstanding of the paradigmatic status of its lex: that the cult was understoodto have been a principal site for the negotiating of status and inducement tocooperation between Rome and its neighbors, and so in provincial contexts itwas held as a model for cult practice as a meeting-ground between Roman and

non-Roman peoples.12 Perhaps so, and it would be hard to disprove that. Butthere are obstacles to such a reading. First, it is not prima facie obvious that thecults at Narbo, Salona and Ariminum would have invited or acknowledged theparticipation of non-Romans, for all three were Roman colonies, and theirpublic cults were therefore constituted as cults of Roman citizens in theircorporate capacity. Second, as regards the cult of Diana on the Aventine itself,it was positioned so to function precisely because it was in significant respectsnot Roman and, moreoever, not in Rome at all.

By not in Rome I refer, of course, to the location of the cult on the Aventine,which hill was not embraced by the pomerium , the sacred boundary of the city,until the reign of Claudius. Indeed, the Aventine regularly functions as a do-mesticated foreign space in Roman historical myth, even when neither the pomerium nor cult as such is at issue.13 Roman historians of Roman religion in

the late Republic and early Principate, trying to make sense of the wildlyvariegated landscape of the city about them, made much of the pomerium , anddevised for it a history and set of rules that went hand in hand with taxonomiesof cults – the sacra peregrina and di evocati , to name but two – each supportedby lists, aetiologies and immense and invented learning.14

Once upon a time the reconstruction of these rules – the so-called ius pon-tificale, ius augurale , and so on – together with the archival materials withwhich they were associated in the ancient imagination, were projects central tothe study of Roman religion, and in particular to its potential as a Reichsreli-gion. The most famous participants in this tradition were of course THEODORMOMMSEN and GEORG WISSOWA, and this aspect of their work is wellknown.15 I wish to stress two things only about their projects. First, bothMOMMSEN and WISSOWA as well as their followers accepted nearly at face

value Roman claims regarding the historicity of these bodies of law.16

Second,partly as a consequence, these scholars viewed the late Republic as a nadir of empty formalism, from which the so-called Augustan revival could resurrectstate cult only in the form of a Loyalitätsreligion . Their evidence and their

12 See, e. g., BEARD, NORTH, PRICE 1998, 330.13 ANDO 2008a, 115, citing recent literature. For an emic and evolutionary view of Roman

attitudes toward the pomerium see WISSOWA 1912, 42–43. 46. 62. 528–529.14 ANDO 2008a, 105–148.15 RÜPKE 1997 studies the history of the concept of Reichsreligion and offers a brief survey

of landmarks in the literature.16 Two splendid investigations of the history of scholarship on the books of the Roman

priests and their bodies of law have recently appeared: RÜPKE 2005, 1547–1566 and 1584–1585; SCHEID 2006.




perspective was late Republican; but their gaze was directed firmly on the past.In this perspective, priestly law, like priesthood itself, was by the late Republican ossified relic of a once vital tradition.17

That body of work has not played a significant role in recently scholarship,unless as a foil, with one significant exception, namely, scholars of the history

of religion in the city of Rome itself, whose interest in place has impelledattention back toward the conceptual apparatus through which the Romansthemselves described and defined the city’s sacred topography. But this focuson place has to my mind reached a methodological and evidentiary dead-end,for several reasons. Here I name three. First, the investment in place has coll-aborated with other currents in religious scholarship urging a concentration onso-called local religion to produce a heightened and ill-advised particularism indeterminations of evidentiary relevance.18 Second, the various forms of culturaland anthropological inquiry that have informed this scholarship have generallyprivileged loosely structuralist, abstract categories – gender, religion/magic,Roman/other – as the primary objects of cultural representation. On this re-ading, religious discourse turns out to be no more than one among many arenasfor disquietingly post-modern negotiations over just these polarities. Third,

despite a largely unreflective adherence to theories that posit a basic homologybetween religious and political institutions in ancient states – whether SOUR-VINOU-INWOOD’s polis-religion, or GORDON’s theoretically far more robust‹civic compromise› – neither the history of Rome within imperial public law,nor the history of administration more generally, figures much in their deli-berations.19

And yet, few subjects in classical scholarship have been so transformed bythe discovery of new evidence in recent years as the articulation of the empirein law and practice, especially in the years between the war with Aristonicusand death of Augustus. What is more, the nature of political life at the muni-cipal level underwent profound change between the late Republic and highempire, and we know more about that change, in sociological, legal and in-stitutional perspectives, than ever before. In other words, one component of the

so-called homology suffered radical change. Did not religion respond? Did noone notice?

17 KOCH 1960b, 176–204, available in English in ANDO 2003, 296–329, seems to me thefinest essay on the thematic of decline. On Roman priesthood and its place in the literature onreligious specialists see RÜPKE 1996a; RÜPKE 2005, 1405–1418.

18 For remarks on the problem of particularism in the study of religious history under theempire see ANDO 2003, 21–22, and KAIZER 2006.

19 SOURVINOU-INWOOD 2000a and 2000b; GORDON 1990.



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2 The fragility of locative cults in context

It is my belief that contemporaries had a more than embryonic awareness of just this problem, and that a primary subject of negotiation in law generally,and in religious law in particular, was precisely the integrity of the civitas , thecity and citizen body itself – the historical self-awareness of its culture and thearticulation of its identity through institutionalized practice, and, where religionis concerned, the sustainability of civic cult in a world in which the constituentsof political life were increasingly attenuated or gradually or even suddenlyevacuated of meaning. So stated, this is not a particularly radical idea.20 Butthere is more.

To substantiate this first more moderate claim, I want today to take up thosenotional bodies of religious law and look forward , to study, in other words,how the rules of the priests were described and understood, and above allmanipulated, as bodies of law. When I say forward, I mean, from the momentof their assimilation to the law in the late Republic. For it is my sense that theiura , the bodies of law of the priestly colleges, were in fact late extrapolationsfrom historical data and formulae for rites, and that they were abstracted as

normative rules, as law, in precisely those decades of the late Republic whenthe civil law achieved autonomy at Rome – the same decades, therefore, inwhich the law as discipline and discourse, an anthropology and a hermeneutics,achieved its privileged place in Roman culture and epistemology.21

The assimilation of regulations and rules for the conduct of rites and man-agement of sacred properties to public and private law, to ius publicum and iuscivile , however that happened and by whatever process, ultimately subjectedso-called religious law to the same modes of interpretation as were operative insecular law.22 Of special relevance to inquiries into the intertwined histories of civic and Reichsreligion were developments of two kinds: on the one hand, thecrafting of solutions to certain formal problems in civil law that found analo-gies in religion, in particular, doctrines regarding what we would now callconflicts in law – at Rome, these arose principally from anxiety regarding the

legitimacy of Rome’s multiple sources of law; and on the other, the devising of formal moves at the level of procedure and jurisdiction that permitted everwider classes of persons, actions and things to be embraced within the scope of the civil law without recourse to statutory action.23 But the civil law was bydefinition the law of and for Roman citizens in their mutual relations, and its

20 Among a vast recent literature see esp. THOMAS 1990, reprinted with other relevantessays in THOMAS 1996; and SCHEID 1993 (translated into English in ANDO 2003, 117–138);see also ANDO 2008b.

21 Four distinct studies of this process, considered from very different methodological po-sitions, are FRIER 1985; MOATTI 1991; SCHIAVONE 2005, 155–264; and ANDO 2008a, 59–92.

22 For a kindred inquiry focused on the Roman Republic see RÜPKE 1996b.23 These problems in the history of Roman law under the empire are the subject of my own

work in progress, The ambitions of government.




extension to aliens of whatever kind struck at the heart of the citizen/aliendistinction that its theorization as civil law was intended to uphold.24 In lawand culture, I would argue, this produced many positive developments. But thewidespread application of analogical elaboration in the field of religious lawwas more problematic.

Which leads my second, less moderate claim, that this extension of a spe-cifically Roman body of law to embrace an ever-widening compass of landsand gods was false to the spirit of Roman state religion in at least one signi-ficant respect. For state cult retained until the end a commitment to materialitythat rendered it resistant to any form of what we might metaphorically callabstraction, above all to the removal of gods to multiple locations, to theiteration of cult in multiple places simultaneously, and likewise to the creationof mechanisms whereby priestly authority located at Rome might be eitherreduplicated or meaningfully extended to locations outside Italy. (The exten-sion of that authority to Italy is itself an problem I shall take up briefly below.)This commitment to materiality is visible above all in the myths and regula-tions that explained the place of cult objects in the transfer of cults, in whichthe movement of the god is regularly figured as the movement of its cult

object, and vice versa. But a religious system that asserts the centrality of Rome through the gathering there of gods in the form of their unique cultobjects is ill-positioned then to export a similarly-ordered cult to the cities of the empire.25 This commitment to materiality is likewise visible in the place of the soil in both secular and religious, and in a moment I will attempt to illus-trate this, drawing on examples notionally within the bailiwick of fetial andpontifical law. As an aside, allow me to point out now the important place heldby solum , soil, in a metaphorical usage in the lex of Narbo (side, ll. 9–10); andalso to describe this project, with some hesitation, as the working out of a claimmade by WISSOWA himself, that such cults as Rome did export remained toosuperficially integrated to become a religion of and for the empire, ‹währenddie eigentliche Staatsreligion immer an den stadtrömischen Boden gefesseltblieb und schon darum sich nicht zur Reichsreligion herauswachsen konnte.›26

The shape of the history I sketch for you today parallels developments inpolitics, where things foundered for quite a different reason. Here the problemsarose above all from the evacuation of meaning from Republican citizenship inparticular, and from Republican institutions more generally – a process thattook place even as those very institutions, namely, citizenship and forms of government, were being adopted as both unifying and homogenizing factors inthe creation of an imperial political culture. This evacuation of meaning had

24 On the interconnection between the theorization of civil law qua body of law for aparticular community of citizens and its relevance to histories of religion in antiquity seeANDO 2008e.

25 ANDO 2008a, part 2.26 WISSOWA 1912, 87.



106 Clifford Ando

roots of two kinds: first, those institutions were suffering an almost infiniteattenuation, in both geographic and demographic extent; and second, their con-stituent parts were being dismantled, not least the citizen’s right and power tovote. The result at a theoretical level was a divorce between jural-politicalconceptions of citizenship, on the one hand, and the development of what we

might call a distinctly imperial subjectivity, on the other.27 In law and literaturethis collapse of meaning at the civic level is visible but hard to see in thecreation throughout the west of subordinate res publicae , but visible and easyto see in the ideology of colonization.28

On that topic it suffices to point out how great a distance lies betweenHadrian, whose famous description of colonies as ‹little images, as it were, andsort of representations› of the Roman people, and Cicero, two centuries earlier.In his second speech against Rullus on the agrarian law, Cicero described to thepeople a visit he had recently made to the colony of Capua:

First, as I have said, although in other colonies the chief magistrates are called duumviri ,(at Capua) they wish to be called praetors. If the first year in office brought this desire tothem, don’t you suppose that in a few years they will seek the title of consul? Then, twolictors preceded them: not with staffs, but with fasces , like those who precede the urbanpraetors here! The greater victims were located in the forum, to be approved on consul-tation by those praetors from the tribunal as is done by us consuls; the victims were thensacrificed, to the accompaniment of a herald and musician (Cicero, Leg. agr. 2.93).

Cicero here argues that it was very precisely the continuance of the colonists’Roman citizenship – their remaining within the populus Romanus – that shouldhave precluded Capua’s becoming an effigies parva populi Romani , with strict-ly parallel institutions, priesthoods, magistracies, and rituals, as existed in thecity of Rome. The altered conceptual landscape refracted in Hadrian’s imagery– the lessening of anxiety at the reduplication of Rome and reorientation of theaffective components of citizenship that such reduplication might have per-mitted – reflects the attenuation of Republicanism and Republican citizenshipin the context of empire.

On this understanding, the collapse of civic religion, which is to say, thecollapse of the civic compromise in the high and late empire, had its originsoutside the sphere of religion per se, because of pressures that rendered civicpolitical life increasingly meaningless. That is, specifically civic cults failedbecause the conception of politics that animated civic life, and which in turnmade the homology of magistracy and priesthood meaningful, could ultimatelynot persist within the forms of integration of the local and imperial that theempire required. The reorganization of religious life in the provinces of thewest in particular, their subordination to the institutions and offices of citypolitics – what we might call the massive Verstaatlichung of cult – thus pro-

27 ANDO 2008d; ANDO 2008c.28 For a much fuller consideration of the evidence for, and literature on, the duplication of

Roman cults in Roman colonies see ANDO 2007; see also BEARD, NORTH, PRICE 1998,320–339.




duced what it was intended to produce, little Romes, but they were, like Romeitself, increasingly anachronistic in the landscape of empire.29

Before I turn to brief consideration of the soil, allow me two final, relatedasides at the level of theory. First, as my remarks a moment ago should havesuggested, in this analysis I take Roman civic cult as an example only, of the

fate of civic cult in the empire more generally. Second, one of the strengths lawholds as a point of entry into this field is precisely its normative character; ittherefore offers the means to surmount the heightened, even excessive parti-cularism that characterizes so much of provincial religious history today.

3 Law and the landscape of empire

I turn now to a set of examples, associated in antiquity with fetial and ponti-fical law, and for my purpose connected with each other by their focus on thesoil.

Let me begin, however, with an observation that connects the fetials to thecult of Diana on the Aventine in a way related not to materiality but more

abstractly to the Romans’ capacity to conceptualize Reichsreligion . The Ro-mans told themselves that the fetial ritual was not native to their culture.Rather, like so many of their institutions, it was (they thought) borrowedwholesale from a neighboring city.30 There were several candidates; the actualorigin of the priesthood is not important. What I wish to stress about this tale –as about the legends they relayed regarding the institution of the cult of Diana –is that they conceived the relationship between the cults genealogically, but thecontent of that inheritance, indeed, the inspiration for the importation moregenerally, consisted neither in some aetiology ascribing agency to a god nor inthe discovery of a shared ancestor – a legendary parent, as it were – who spreadthe good word. Rather, what was transmitted was the institutional frameworkof the cult, a set of practices and a structure of offices to oversee their reali-zation. It was this body of knowledge – the content of which might well one

day be codified as the leges of the cult – that formed the basis of a Romanreligious koine.The fetials’ investment in soil was related directly to their need to distin-

guish Roman from hostile territory – not the territory of any hostile power, of course, but that of the party to the dispute at issue (‹hostile territory› was,however, a category of land in augural law; the others were Roman, Gabine,alien, and indeterminate).31 Famously, the final stage of fetial ritual in declaring

29 On the subordination of cult to civic government see esp. SCHEID 1999 and RÜPKE 2006.30 See, e. g., ILS 61, from the Forum at Rome: Fert. Erresius, rex Aequeicolus. Is preimus

ius fetiale paravit; inde p. R. discipleinam excepit.31 Varro Ling. 5.33: Ut nostri augures publici disserunt, agrorum sunt genera quinque:

Romanus, Gabinus, peregrinus, hosticus, incertus.



108 Clifford Ando

war was the hurling of a ceremonial spear into the enemy’s territory. Equallyfamously, we are told by Servius, drawing as it seems on Augustan sources,that the Romans were forced by the practical realities of transmarine warfare tochange fetial ritual in the early third century B. C. E. Because they ‹could notfind a place where they could perform through the fetiales this ritual of de-

claring war› they forced a captured soldier to buy a plot in the Circus Flaminiusadjacent to the temple of Bellona, outside the pomerium , and satisfied the lawof declaring war quasi in hostili loco , ‹as if in hostile territory›.32

Let me draw your attention to two things only in this fascinating passage.First, the reform of fetial ritual probably required two conceptual revolutions.In one, a soldier captured from a current enemy purchased land, and so a strict,formal demand was met, that the ‹hostile territory› into which the fetial wouldthrow his spear did as a matter of law belong to the particular enemy on whomthe Romans were declaring war. But unless we believe that a different soldierpurchased that land in each conflict, the fetials must soon have resolved upon awork-around – one that appears in hindsight, at least, as prototypically Roman –namely, the abstraction of a category ‹enemy territory› from multiple particu-lars.

In the other revolution whose traces are visible in this passage and thehistory it recounts, the Romans had to satisfy themselves that the moral im-perative embodied in fetial law was in fact satisfied by this chicanery. The signof their unease and the mechanism by which it was resolved are both embodiedin ‹quasi›, one of a handful of terms in Roman law whereby through explicitfiction or simple analogy persons and things were moved across taxonomicdivides. A typical use of the term may be found in Gaius’ Institutes , in hisdescription of the effects of the legal fiction whereby postumi were admitted toinheritance. ‹The praetor summoned them to inheritance proinde ac si , exactlyas if they had been in their father’s power at death.› They were thus capable of entering into inheritance, Gaius wrote, through quasi agnatione , by sort-of agnation.33

The second observation I would make about the reform of fetial ritual is this.

What was in question for Romans over the course of the third century, from thewar with Pyrrhus down to the war with Hannibal, was precisely whether thelegal and religious institutions of their city-state could be adapted to the newpolitical, geographic and practical realities that imperial action had broughtinto being. This is visible in the creation of the first province, as also in theintertwined histories of voting tribes and viritane settlement in this period. Themechanisms that Rome had deployed in war against similarly-ordered neigh-bors of central Italy might be assimilated to law and so manipulated after thefashion of legal rules; but they were also expressions of history, which tied

32 Servius ad Aen . 9.52. On this fiction and its interpretation in antiquity see ANDO 2008f.33 Gaius Inst. 2.133. On fictions in Roman law see THOMAS 1995 and ANDO, The ambi-

tions of government (in progress).




Rome to peoples and ways of doing things, in which certain ethical commit-ments went hand in hand with mechanisms by which they were understood tobe satisfied. Was Rome true to itself, was it still the city it was, when it sent itsarms across the sea?

Regarding pontifical law I can be more brief. My example comes from the

early second century C. E., the famous correspondence between Pliny and Tra- jan regarding the scruple involved in moving the temple of the Mother of theGods in Nicomedia. Pliny hesitated to approve the act, he wrote, because thetemple had no lex, as the morem dedicationis , ‹the method of consecration›practised in Nicomedia was alium apud nos , ‹different from that practisedamong us›. Trajan responded that Pliny could be sine sollicitudine religionis ,‹without fear of violating religious scruple›, as the solum peregrinae civitatiscapax non sit dedicationis, quae fit nostro iure , ‹as the soil of a peregrine citycannot receive consecration as it is performed according to our law›.34

The distinction between Roman and provincial had a lively history in Rome.An essential part of that story consisted in the gradual, halting but seeminglynecessary extension of Roman priestly institutions and authority to all Italy, aprocess far more partial than its famous literary notice would indicate. That

notice comes from Tacitus, who records that under Tiberius, the equites Ro-mani wished to dedicate a statue to Fortuna equestris but were unable to find atemple to that goddess in Rome; they did find one in Antium. Repertum est, ‹itwas discovered› that all the rites, temples and idols of the gods in the towns of Italy were iuris atque imperii Romani , ‹under the law and power of Rome›.35

The question left unresolved by Tacitus’ language, as also by modern, me-rely lexical investigations showing how provincialis came to mean somethinglike ‹extra-Italian›, is what made Italian soil Roman, and what prevented pro-vincial soil from becoming such, too.36 What of Roman colonies, or Romancitizens abroad? Trajan and Pliny had another, similar exchange, regarding theneed for individuals to consult the pontifices before moving the buried dead.Trajan’s response, that it would be a burden for provincials to enjoin them toconsult the pontifices , again left the rationale for dividing provincial and Ro-

man soil unarticulated.37

In that case, Trajan’s decision was in some fashionreversed by Hadrian, and a hundred years later Ulpian remained aware of thissequence of decisions, not least as illustrating the potential for conflicts in lawbetween imperial edict on the one hand and local municipal law on the other.38

That said, the questions raised by the correspondence between Pliny andTrajan received rather different answers in law and belief in the aftermath.Insofar as the provincial/Roman distinction was a matter of law, it was also

34 Pliny Ep. 10.49–50.35 Tacitus Ann. 3.71.1.36 On ‹provincialis› see RICHARDSON 2008, passim , and cf. ANDO 2008b.37 Pliny Ep. 10.68–69.38 Ulpian Ad edictum bk. 25 fr. 741 = Dig. 47.12.5.



110 Clifford Ando

surmountable at law. And that is precisely what we find in Gaius. At the startof his second book, a brief comment on the distinction between what is sacer and what religiosus , what is sacred and what is religious, led to a digression onthe meaning of those terms on precisely provincial soil:

That alone is thought to be sacred, which is consecrated on the authority of the Romanpeople, either by law or by decree of the Senate. We make things religiosum in privateactions by bearing our dead to particular sites ... But in provinciali solo , on provincial soilit is generally agreed that the soil cannot be religiosum , since there ownership rests withthe Roman people or with Caesar, while we seem to have only possession or use. utiquetamen, etiamsi non sit religiosum, pro religioso habetur. Nevertheless, even if it is notreligiosum , it is treated as though it were. Similarly, whatever in the provinces is notconsecrated on authority of the Roman people is properly not sacred, but it is neverthelesstreated pro sacro , as if it were.39

Here it is the simple use of substitutive pro that creates the analogy, a nearlyubiquitous usage in Roman law. But the effect was not innocent. It was onething for orators to compare Rome and empire to a city and its hinterland; thatthey knew was a metaphor. But the attachment of Romans to the soil had neverbeen just a metaphor: it was rooted, rather, in the stuff of Rome itself. Themetaphorical description of changes in citizenship as changes of soil was

grounded in the same disposition toward materiality that lay at the heart of Roman cult, that estimation of matter that empowered the Vestals to root thefeet of runaway slaves within the pomerium and which required fetials to takeclumps of grass from the Capitol when striking treaties abroad.40 The analogycrafted by Gaius, which would, in effect (re)literalize the metaphor, revealshim to have lost touch with its origins, and in its effects it stretched beyondmeaning the philosophical commitments of his religion.

Which is not say that provincials did not embrace this language or theaffective attachment that it was held to reify and indeed, at some level, to bringinto being. Over the course of the fifth century C. E., the Romans graduallyceded territories in Gaul and along the Danube to foreign control. That controlwas construed by Salvian as consisting above all in being subjugated to abarbarian system of law, and his own condition was materially that of an alien,living in alieno solo , on foreign soil.41 In the same period Eugippius describes

39 Gaius Inst. 2.5–7: (5) Sed sacrum quidem hoc solum existimatur, quod ex auctoritate populi Romani consecratum est, ueluti lege de ea re lata aut senatusconsulto facto. (6) Religiosum vero nostra voluntate facimus mortuum inferentes in locum nostrum ... (7) Sed in prouinciali solo placet plerisque solum religiosum non fieri, quia in eo solo dominium populi Romani est uel Caesaris, nos autem possessionem tantum vel usumfructum habere uidemur.utique tamen, etiamsi non sit religiosum, pro religioso habetur. (7a) Item quod in prouinciisnon ex auctoritate populi Romani consecratum est, proprie sacrum non est, tamen pro sacrohabetur.

40 The metaphor of changing soil: Cicero Dom. 78: qui cives Romani in colonias Latinas proficiscebantur fieri non poterant Latini, nisi erant auctores facti nomenque dederant: quierant rerum capitalium condemnati non prius hanc civitatem amittebant quam erant in eamrecepti, quo vertendi, hoc est mutandi, soli causa venerant . Vestals and the feet of runawayslaves: Pliny 18.13. The sagmina of the fetials: Livy 1.24.4 with ANDO 2008f.

41 De gubernatione dei 4.54, 5.47; see also 7.7: the barbarians are ‹masters of Roman soil›.




– 1995. ‹Fictio legis. L’empire de la fiction romaine›, Droits: revue francaise de theorie juridique 21. 17–63.

– 1996. ‹Origine› et ‹commune patrie›. E ´ tude de droit public romain (89 av. J.C.–212 ap. J.C.) . CEFR 221. Rome.

WISSOWA, G. 1912. Religion und Kultus der Römer. 2nd. edition. München.WOOLF, G. 1997. ‹Polis-religion and its alternatives in the Roman provinces›, in: H. CANCIK,

J. RÜPKE (Hgg.). Römische Reichsreligion und Provinzialreligion. Tübingen. 71–84.

diana on the aventine

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