CENTRALISATION, INTEGRATION, DISINTEGRATION

As always, the debate runs in many parallel and often contradictory lines, of which I shall summarise only a few. The battle of the empires is not easily described or resolved, because of the irreconcilable status of the sources.

This discrepancy is obvious when looking at much of the relevant scholar­ship on this topic. For instance, Hartmut Wolff's dissertation, Die Constitutio Antoniniana und Papyrus Gissensis 40 I, is torn between generalised state­ments and provincial sources. Wolff ends up making a distinction between dogmatic theory and administrative practice as a way of resolving this conflict.^[90] There has also been a marked tendency to overlook or vitiate sources from the centre that do not support the unification theory, as is evident from the discussion on Diocletian's and Maximian's rescript in C 4,19,21, its expression iure competenti and the possibility of the existence of private international law at the time. The supporters of the unification theory either saw it as an interpolation or simply ignored it, while the supporters of legal pluralism have seen it as evidence of the existence of several coexisting legal tradi- tions.^[91] Recently scholars relying on papyrological evidence have rejected the unification theory altogether: “The extension of citizenship did not, there­fore, ipsofacto entail generalized application of Roman private law in the provinces, nor did it debase Roman law by provincializing it.”²⁷

The themes of centralisation and disintegration are central to the whole debate and the various arguments put forward are well known.

The centralisation theme is mirrored also in the descriptions of imperial pomp and pageantry. The centralisation of power manifested itself in the strengthening of the emperor cult through elaborate arrangements such as court ceremonies and acclamations. The auctoritas of the emperor was supremely important, because the Roman Empire was a moral universe, headed by a caring emperor. The emperor was all-powerful and officials who served him were ranked according to their proximity to his person.²⁹

Because the emperor could change any decision at will, petitions and requests were brought to the imperial offices from the farthest reaches of the Empire.

27 Carrie, “Developments” (n. 18) 274.

28 C Kelly, “Emperors, government and bureaucracy”, in A Bowman, P Garnsey and A Cameron

(eds), The Cambridge Ancient History: Second edition XIII (1998) 162-169.

29 Kelly, “Emperors” (n 28) 145: “Pomp and power were inextricably linked.”

30 Kelly, “Emperors” (n 28) 150-156, 172-173.

The most important piece of evidence supporting the integrationist argument is the imperial monopoly over law. If the emperor controlled both government and law, how could regional variations survive? From the time of Hadrian onwards, the emperor had acted as the supreme judge, who also created new legal rules through his constitutions. A system of iudex vice Caesaris (vice sacra), instituted in the late second century, gave select officials the right to try cases in the name of the emperor. Old jury courts and the praetor's jurisdiction had disappeared. In the cognitio process the judge was much more active, as he could cross-examine witnesses at will, but there were still no public prosecutors. There was the right of appeal all the way to the emperor, but in the questio (investigation) torture was extended to citizens, and cruelty and corporal punishments were more common, as were public displays of punishment. From Constantine onwards, the whole system of legal privilege was being undermined.³¹

Were there efforts made to make Roman law the law of the land throughout the Empire? In theory such a move would have meant a substantial transfor­mation in the organisation of the Empire, which would have represented a shift from a personality principle to an area principle. We know that Romani- sation, or cultural assimilation, was common in provinces, especially in the West, well before the Constitutio Antoniniana.

A very useful indicator could be the drafting and spread of law books and legal manuals such as the Syro-Roman law book, and the founding of law schools. We could imagine that their purpose was to educate the administra­tion and the new citizens about Roman law. Another could be the existence of the so-called barbarian codes. It is unlikely that the “barbarians” would have Romanised the former Roman provinces. For the lex Romana Visigothorum to exist it may be safe to assume that the inhabitants had followed Roman law before.

31 Peachin, Iudex (n 3) 33-91. See generally P Garnsey, Social Status and Legal Privilege in the Roman Empire (1970); R Rilinger, Humiliores - Honestiores: Zu einer sozialen Dichotomie im Strafrecht der römischen Kaiserzeit (1988).

32 H-L Fernoux, Notables et elites des cites de Bithynie aux epoques hellenistique et romaine: IIIe siecle av J C-IIIe siecle ap J-C: essai d’histoire sociale (2004) 201, 214, 233.

The machinery for government was in place and citizenship was no longer such a privilege. Signs of Romanisation and Roman law are everywhere in the provinces. Can it be said, then, that what is left of local laws is just leftovers on their way to extinction?

The centralisation theory has been countered by a number of other theories, such as the disintegration of the Empire and its gradual decline (or transformation, if you like). Geographically, the Roman Empire was vast and communications between the centre and the periphery were slow.

The limits of the emperor's power were revealed only when he tried to exercise effective control over far-flung and unwilling subjects. Both the bureaucracy and the army were too small to coerce and control the provinces, had the people there chosen to resist. As a result, auctoritas was essential if order was to be maintained throughout the Empire.^[92] In his book Imperial Ideology and Provincial Loyalty, Clifford Ando outlines how the Roman Empire was constructed as an ideological project, which was then inter­nalised by the provincials. Imperial art, the emperor cult and many other manifestations were the building blocks of the unity of the Empire, as was the veritable torrent of documents that rained down from the centre to the provinces.^[93] If the centre's instructions were not followed, could it really have enforced Roman law in the provinces?

An emphasis on disintegration and provincial exceptions raises the question of what we can deduce from the example of Egypt. Was Egypt a regular Roman province or a special case and is the law of the papyri Roman law? As Modrzejewski states, the survival of provincial laws was factual survival.^[94] Provincial laws survived because they were not eradicated. Which brings us to why they were not eradicated: decline, the politically incorrect D-word! Modrzejewski's theory is that the conflict of laws was moderated by the fact that provincial jurisdiction was degraded and replaced by arbitration. The unity of the law coincided with the decline of law.^[95] Were Roman administra­tion and law so decadent and corrupt as to be unable to impose Roman law on the provincials?

F.