CONSTITUTIONES AS SOURCES OF LAW

The view of Kreller, however, received no support. During the last half century scholars have returned to the examination of the sources to deter­mine whether the jurists had a basis for their attribution of, at least, quasi­legislative force to the constitutiones of the emperors. Two questionshave been to the fore. Were the texts of the enactments available to the jurists and imperial bureaus so that they could be exploited for further develop- merit of the law? Were constitutiones of emperors valid in the reigns of their successors? The research of recent decades upon these questions provides the answer to the problem of the position of imperial constitutiones as sources of the law.

2. Availability of the Texts of constitutiones

§ 171 One of the conditions involved in the determination of the question whether constitutiones are to be considered a source of law during the Principate is the availability of the text of an imperial enactment. There is no question but that a constitutio is conclusive respecting the situation to which it is directed, but if the text is not available thereafter to jurist or to imperial bureau, it cannot be utilized for later development of the law. In earlier sections reference has been made in passing to the publication of the various types of constitutiones,¹ and the topic may be summarized at this point.¹ The emperor might direct that his edict be published, that is, be posted for a term, throughout the empire, as in the case of the edict of Claudius concerning the Jews;^{[1216] [1217] [1218] [1219] [1220] [1221] or posted at a particular locale for the at* tention of the persons residing in the area.* Whether imperial edicts were posted for a time at the place of residence of the emperor from which they were dispatched is a question still unsettled? There are a number of inscrip­tions and papyri which indicate that this was done? but there is evidence that this was not a required practice.[1222] [1223] With respect to the judicial decisions (decreta), although the jurists frequently quote parts thereof, it must have been the exceptional instance which the emperor ordered to be published.* Epistulae normally were not published by the recipients but there exist a number of cases in which these pronouncements from the emperor were inscribed and erected as memorials in the locales of the addressees; the letters to the Sabori (supra, § 167) and the Falerians (supra, § 165), and the tabula Banasitana (supra, § 161) are instances of this practice.’ At times, the emperor might direct that his epistula be made public, which was usually done by edict of the provincial governor, as in the instance of the epistula of Hadrian on the inheritance of soldiers’ children (supra, § 167). As Wilcken demonstrated, subscriptions were regularly posted at the residence of the emperor for a limited period of time, to give the petitioner an opportunity to make a copy of the reply to his petition.[1224] [1225] [1226] [1227] [1228] [1229] The classic instance of such a copy is the apokrimata of Severus, set forth in part (supra, § 168); if such a copy was eventually erected as a monument at the residence of the peti­tioner, as in the instance of the inscription at Scaptopara (supra, § 168), this was done at his behest. Finally, mandata, the instructions from the emperor to the governor, were not intended for publication, and if they were made known it was done by proclamation of the provincal official.11}

In view of the haphazard publication of most constitutiones and the temporary posting of petitions with subscripts, it can be stated with some degree of certainty that the jurists did not normally gain knowledge of spe­cific imperial enactments from publication or posting. Further, the number of epistulae or subscriptiones which they themselves drafted as bureau offi­cials, or the cases in which they participated as members of the consilium of the emperor, must have been relatively few. Undoubtedly, the jurists as well as bureau officials relied primarily upon the archives for their know­ledge of the content of imperial enactments.*¹ The archives of the imperial administration, provincial as well as central, paralleled those of republican times. Prominent in Rome was the Tabularium, the imperial record office.¹* Its most important file, according to Wenger, was the commentarii principis (archives of the emperor), comprising ‘the official journal of the emperor with his criminal, administrative and apparently also civil law decisions, the account books of the retiring governors of imperial provinces and generally the most important documents of their regimes^,.^,4 Other scholars take dif­ferent views as to the content of the commentarii; de Francisci would limit the term to the reports of the proceedings of the consilium.” In any event, the imperial archives contained complete files of the edicta and the epistulae, the verbatim record of the proceedings and decisions (decreta) of the im­perial courts,¹* and the authentic (bureau copy) petitions and subscriptiones in reply to (legal) questions from private parties;^{[1230] [1231] presumably mandata were also filed in the archives. Von Premerstein long since pointed out that magisterial acts were kept primarily for ‘perpetual memory’, the remem­brance of the magistrate concerned and the protection of the official act against impugnation or question as to substance. ·· Any use of the documents in the archives as precedents or basis for future development of the law was originally far from the purpose of Roman records, and in the time of the Principate still secondary. It should be further noted that the records were kept in chronological order; no mention of subject indices is made. The documents of the various bureaus appear to have been filed separately,[1232] [1233] and collections of various types of constitutiones are mentioned, or conjec­tured: liber libellorum rescriptorum et propositorum (book of rescripted and posted petitions),10 perhaps official libri decretorum (case reports),[1234] [1235] [1236] [1237] [1238] liber mandatorum (book of mandates),21 six-month collections in the time of [1239]Marcus Aurelius,[1240] and a collection of constitutions of the emperor Commodus.14}

It was from the archives and the volumes of constitutions, and perhaps also from the registers of high officials such as the praefect of the city or of the watch or grain supply, that thejursist obtained the texts of constitutions, both current and of earlier emperors.¹⁵ A private collection of constitutions of the divi fratres (Marcus Aurelius and Lucius Verus) and Marcus alone was made by Papirius Justus and used by the compilers of the Digest, illustra­ting direct copying of portions of various imperial enactments.¹⁶ A work such as that of the jurist Paul of his own selection of decisions of the imperial court (Decretorum libri III) shows that the jurist turned to the stenographic report in the files when he wished to quote from the trial record.¹¹ Atrial report would also contain the citation of the constitutions of earlier emper­ors which were introduced in the course of the trial.²¹ According to Voltcrra, the jurist Modestinus turned directly to the files in the archives, and not to collections, for the constitutions he cites so frequently in his work on exemp­tions from guardianships (De excusationibus libri VI, in Greek).¹’

It is clear, then, that one of the prime factors which led the jurists of the later classical period to consider constitutions a source of law was that these imperia] enactments were readily accessible in the archives in Rome.¹⁰That the jurists made use of the opportunity of consulting the archives is seen from the number of full or partial quotations from constitutions, as well as the digests or references to be found in their works?¹

3. Validity of Conslitutiones under Succeeding Emperors

a. Edicta and mandata

§ 172 Ulpianus, Libra XXIX ad edictum (D. 16.1.2 pr.-I)

And first, indeed, in the time of divus Augustus, and later, in that of Claudius, it was forbidden by imperial edicts for women to act as sureties for their hus­bands. (!) Afterwards a senatus consultum was passed by which most complete provision was made for women in all cases...

Paulus, Libra II de adulteriis (D. 48.18.8 pr.)

The edict of divus Augustus, which he posted during the consulship ofVibius Habitus and Lucius Apronianus (8 A.D.), is extant as follows:...

Note: The text of the edict, supra, § 164.

Paulus, Libro HI sententiarum (D. 28.2.26)

If a filius familias is on military service, he ought either to be inscribed as heir

26. Vollcrra, Symboiae David I 215-23, and La critica del testa II 821. 960-64; Franciosi, Studi Gross F 149-80.

27. Volterra. La critica det testa II 821,990 f.. 996 f.

28. Eg,, I) 36.1.76.1 (Paulus 2 decrel.): ‘the guardians (of the defendant) read out (in court) the constitution of divus Hadrianus’, in a case before Septimius Severus; cf. Orcstano, Bl DR 44 (1936/37) 219, 265 f.

29. Volterra, Studi Scaduto III 581, 590 if, and La critica del testa II 821, 975-79.

30. Gualandi, Lcgislazione II 40 ff. The manner in which the jurists employ constitutions in the course of their writings is treated extensively by Gualandi, op. at., chap. 2.

31. Gualandi, Leglslazione I, is a collection of all the passages in the writings of the jurists which quote or refer to imperial constitutions.

or disinherited by name, as a civilian, since now the edict of divus Augustus by which it was provided that a father cannot disinherit a son in military service has been repealed.

Statutes (leges), of course, survived the life of their proposers and the lives of the members of the bodies which enacted them, but the edicts of re* publican magistrates were limited to their terms of office. Were the edicts of a particular emperor valid after his death? In the view of Mommsen, theoret­ically they ceased to have validity with the laying down of the office, in this case the death, of the magistrate (emperor) who issued them.’ Wlassak, fur­ther, concluded that edicta actually needed renewal to be effective in sub­sequent reigns, calling attention to the fact that senatus consulta quite often re-enacted one or more constitutions.^[1241] Subsequently, the view gained support that although this may have been true of the early Principate, edicts con­tinued to be valid under succeeding emperors by reason of tacit approval.³ The fact that some edicts were specifically repealed served to support this position. Wilcken urged that there is evidence in Pliny’s letters to show that edicts were valid after the term of office and, more particularly, that the edicts of provincial governors, which may be compared to those of the emperor, had validity after the termination of their term of office,* Some text writers stated quite positively that edicts were valid without renewal?

An extensive study by Orestano in the thirties has shown quite conclu­sively that not only were edicts of binding validity during the reign of the em­peror who issued them but were also effective norms during the rule of his successors, unless repealed? The view of earlier scholars who sought to ex­plain imperial powers on the basis of the republican constitution and the position of the emperor as a magistrate were rebutted, virtually submerged under the array of edicts recorded as valid under successors of the emper­or who issued the enactment? The fact that edicts, as well as other types of constitutiones, were enacted subsequent to senatus consulta on the same subject, as well as prior thereto, evidences no less validity of edicts, as com­pared to senatus consulta, but rather 'demonstrates that edicts show a con­tinuity and a validity independent of whatever successive confirmation (is accomplished) by means of senatus consults’? Orestano concludes that

§ 172 edicts are constitutionally valid during the reign of their proponent, but equally so thereafter until abrogated.⁹ This validity persists regardless of re­publication or confirmation, express or tacit. These points have been repeated by Orestano in a general study of the normative value of imperial enactments,¹⁰ and have been accepted by later writers.¹¹

Ulpianus, Libro XL Vad edictum (D 29.1.1 pr.) (Caesar, Titus, Domitian, Nerva and Trajan granted soldiers the power to make a will)... and from thenonsuchachapterbegantobeinsertedinthemandata....

Marcianus, Libro ll de iudiciis publicis (D. 48.3.6.1)

But a chapter of the mandata is extant which divas Pius, when he was governor of Asia, published in the form of an edict...

Most scholars have held that, similar to the contract of mandate in the private law, the mandatum of the emperor to the provincial official ended with the term of the official or the death of the emperor.¹² Finkelstein, though, affirmed that mandata remained valid until specifically abrogated.” Since in no instance were mandata coupled with the name of any emperor, their validity was not limited to the reign of the emperor issuing them.'* Per­haps it would be better to say that, in the course of time, specific instructions were considered worthy of being included in a new batch of instructions, so that there eventually evolved a book of instructions (liber mandatorum), in somewhat the same fashion as the praetor’s edict became standardized. In such a liber mandatorum the names of the emperors responsible for the indi­vidual parts (capita) would not be given, since the whole was the combined effort of a number of emperors.” By reason of this translatician nature, the chapter of the mandates (caput mandatorum) remained valid under a suc­cession of emperors, unless and until repealed.

9. Orestano, op. di., 330.

10. Orestano, Potere 64 f.

11. Gaudemct, Institutions 583 and n,4; Grosso, Storia 387 and n.3; KMet,Rechisgeschidttc 151; De Frandsd, B/PJ? 70 (1967) 202 and n.40; Jolowicz-Nicholas. Introduction 367 and n.5. According to Wenger, Quellen 425, only in the late Empire were edicts treated as laws (Gesetze) with effectiveness understandably unlimited in time.

12. Pernice, SZ 6 (1885) 297; Krflger, Gachidue 113; Kreller, s.r. Mandatum, RE 14 (1928) 1022; Ddl’Oro. Mandata 72 f.; Jolowicz^Nicholas, Imrodtaion 370.

11 Finkelstein, TR 13 (1934) 150, 168 f.

14. Finkelstein, op. dt., 169 n.l, cites KrOger in accord, but the latter ascribes the reason which is set forth, following, in the text above.

15. De Frandsd, BIDR 70 (1967) 207 n.59, would add D.48.22.1 (Pap. 4 and Sab.)tO the texts referring to mandata, reading: ‘Chapter from the < mandatum > [rescriptum] ofdivusTraianus to Didios Secondos..However, the inclusion of the name of the emperor militates against the conjectured alteration.

b. Dccrcta and rescripts

§ 173 Fronto, Ad Marcum Caesarem 1.6

... By your decreta, Emperor, cases (exempla) are ordered to be officially bind­ing in perpetuity.

Callistratus, Libro Fde cognitionibus (D. 48.7.7)

Creditors who proceed against their debtors should demand back through a judge that which they allege is due them. Otherwise, if they enter upon the prop­erty of the debtor without permission having been given them, divas Marcus decreed that they no longer had the rights of creditors...

Note: The words of the decretum are set forth, supra, § 165.

Papinianus, Libro [A'P] responsorum (D. 34.9.18 pr.)

... Divus Severus, in his lenience, judicially decided that only the fruits of property secretly bequeathed were owing, and without regard to the time, and also not with interest; which is the present practice.

Cognitio apud appium sabinum 100-103 (P. Lond. Inv. 2565 [ = JEA 21 (1935) 224]) (c. 250 A.D.)

Serenus (praefect of Egypt, judge): 'What do you say in answer to this rule of Severus (decision cited by adversary) and the decisions following it?’

Serenus (advocate); Yes. I would state with respect to the rule (nomos, actually a decretum) of Severus the following: Severus had this rule posted while the cities in Egypt were in good financial state. ’

Ulpianus, Libro... de excusationibus (Fr. Vat. 151)

Those who have been protected by some privilege are not entitled at all times to excuse (from guardianship). For example, if a minor be of twenty-five years (and) if the guardian be given for a relative and have some use of the property; which right derives from an epistula of divus Hadrianus.

Ulpianus, Libro LIX ad edictum (D. 42.4.7.16)

Similarly, let us see whether the goods of one who remains concealed, against whom an action in rem (is brought). can be possessed and sold. There exists an opinion of Neratius holding that the goods are to be sold; and this is contained in a rescript of Hadrianus. which law we follow.

Ulpianus, Libro XXVI ad edictum (D. 12.6.26 pr.)

If a person pays, not the principal, but interest which is not due, he cannot sue for its return if the principal was owing when he paid (the interest). But if he paid beyond < 12% per annum > [the statutory rate], divus Severus rescripted- which is the present practice - there is no action for the return of the money, but it is considered as payment of the principal...

Interpolation according to Lenel, Palingenesia II 774 n.2; Krüger, Dig. ad h. 1.

Marcianos, Libro I institutionum (D. 38.2.22)

If a filius familias. a soldier, manumits (a slave). according to the opinion of lulianus, which he approved in the 27th book of his Digesta, he makes him a freedman of his father; as long as he lived, he says, the son is considered as the property of his father. But divus Hadrianus rescripted to Flavius Apro that this made him (the slave) his own freedman, not (the freedman) of his father.

Ulptanus, Libro IX de officio proconsulis (D. 48.19.8.1)

Life is taken if for instance, anyone is condemned that punishment be inflicted upon him by the sword. But punishment must be inflicted by the sword... (and not by any other means)... The divine brothers (Marcus Aurelius and Lucius Vents), however, rescripted permitting free choice of the manner of death.

Paulus, Libro singular! de usuris (D. 22.1.17 pr.)

When someone has promised that he would pay 5% interest annually and, if in any year he failed to pay it, then he would pay 6% on the entire sum from the day on which he had borrowed (the money), and when, after some years during which the interest had been paid, the conditional promise (stipulatio) became operative (because of default in payment), divus Marcus rescripted to Fortunatos as follows: "Apply to the governor of the province, who will reduce the promise of whose unfairness you complain, to a degree of fair exaction.' This constitu­tio < orders that a stipulation which > provides an increase in amount < be reduced > to a particular sum. What"s that? The matter is so construed that interest is increased for the future only from the day of stopping (payment).

Note: On the substance of this text, consult Masi, Studi sulla condizione nel diritto romano 156 ff.

Ulpianus, Libro I institutionum (D. 1.4.1.2)

Clearly some of these (conslitutiones) are personal and do not establish a prec­edent; for wherever the emperor shows indulgence to anyone on account of his merits, or imposes a penalty, or comes to his aid without precedent, this is not to be extended beyond the (particular) person.

Ulpianus, Libro I ad edictum (D. 11.4.1.2)

... Moreover, there is a general epistula of the divi Marcus and Commodus... Text of the epistula, supra, § 167.

Ulpianus, Libro VIII de officio proconsulis (D. 48.18.1.26) When anyone has handed over thieves it is stated in some rescripts that no faith is to be placed in those who handed them over; but in others which are more comprehensive, it is provided that (their evidence) be not rigorously disallowed, as is wont in the case of others, but after the case is considered, it is to be deter­mined whether faith is to be given or not,.,.

Marcianus, Libro VIII institutionum (D. 35.2.89.1)

Dow Severus and Antoninus rescripted generally to Bononius Maximus that interest should be paid by one who claimed the benefit of the lex Falddia for the purpose of evasion.

Other constitutiones generales: D. 22.6.9.6; 26.4.1.3; 28.5.9.2; 48.2.22.

Although it might be possible to consider the validity of the three groups of constitutions presented above - decreta and rescripta (both epistulae and subscriptiones) and general or personal constitutiones - under succeeding emperors as separate and distinct problems, Romanists have generally dis­cussed them as one, on the basis of ail the sources. Savigny, to begin with the early 19th century Romanist, held that these types of constitutiones only applied to the specific case to which they were directed, and had persuasive, but not binding, influence on subsequent similar cases.¹ Puchta, on the other hand, strenuously maintained that decreta and rescripta were to be con­sidered binding precedents, that is, if they were intended to be of general ap­plication, i.e., constitutiones generales,rather than limited to thecaseat hand, constitutiones personales.¹ This view was taken up by Wlassak’ - and by Fernice in the review of the latter's work^{[1242] [1243] [1244] [1245] - distinguishing between edicta and mandata on the one hand and decreta and rescripta on the other; the latter are always interpretation of the law, of permanent validity, and do not lapse with the death of the emperor issuing them. So also Karlowa, who held that decreta and process-rescripts had the ‘force of law’ because they were binding precedents to be applied in similar situations when such cases should arise.[1246] The view that decreta and rescripta which laid down general principles, i.e., constitutiones generales, were binding precedents, whereas those limited to the single case, constitutiones personales, were not, was the view which had gained general approval by the first decade of the 20th century? Jolowicz gives a typical expression of this view, that some con­stitutions were personal and not to be extended, and that the jurists had no difficulty in knowing which were general and which were personal.’}

The first expression of doubt upon this view that has been noted is implied in the remarks of Kruger.* the distinction between constitutiones generales and personales is a weak one at best, for the great majority of decreta and rescripta fall in between; different constitutions present divergent views upon a particular legal controversy; emperors frequently only repeat earlier views of jurists, without comment; decreta and rescripta solely come to the notice of the legal profession through the writings of the jurists; many consti­tutions are only known by hearsay; they are treated no whit different from juristic opinions and are not always accepted without question, and may even be frowned upon. Ktibler added that it was not accepted without ques­tion, not until legislation by Justinian (C. 1.14.12.2), that the emperor was empowered to hand down decreta of general binding force? Siber was quite positive in his view that imperial decreta and rescripta meant hardly more than (German) High Court decisions generally, to which lower court judges would at most accommodate, and so become a source of customary law.¹⁴ Wenger, in 1938, apparently cites Sibcr with approval,¹¹ and settles upon the idea of ‘authentic interpretation’ in his later treatise on the sources of the Roman law.¹¹ To von Schwind, imperial decisions upon legal questions were taken as examples (exempla), not as laws in the modern sense but as precedents depending upon the auctoritas of the emperor.” He was of the opinion that to the j urists of the later classical period lex had the significance of ‘binding effect’, and consequently imperial decisions were leges and binding upon those to whom directed, but only (persuasive) precedents for similar cases in the future.¹⁴

In the early forties of this century De Robert is undertook a re-examina­tion of all instances of rescripts in the sources, somewhat on the lines of Orestano’s study of the edicts of the emperors.” He concluded that the

6. Jdrs, j.v. Constitutiones principum, RE 4 (1901) 1107; Hesky, j.v. Dccretum, RE 4 (1901) 2289; Kipp, Geschichte 67, so for decreta. Brassloff. s.v Epistula, so for rescripta.

7. Jolowicz, Introduction (1st ed.) 378; repeated by Jolowicz-Nicholas, Introduction 372 f.

8. Kruger. Geschichte 108-09.

9. Kubler. Gtschidtic 253.

10. Siber, Rom. Recht I 50 f.

11. Wenger, Actes V* Cong. Papyr, 522, 541 n.2.

12. Wenger. Quellen 429.

13. Von Schwind, Publikation 141 f.

14. Von Schwind, op. at.„ 151.

15. De Robertis, ‘Sulla efficacia normativa delle costituzioni imperial!, II: I rescripta prin­cipum’, Ann. Bari, n.s. 4 (1942) 281-340, also published as a portion of a similarly entitled monograph.

instances in which imperial rescripts and juristic opinions were said to be sources of equal efficacy did not sustain this result. He offered explanations to discount the alleged disagreement of jurists with earlier rescripts, the so- called ‘polemical attacks' evidenced by D. 48 J 9.8.1 and 22.1.27 pretexts set forth above.¹⁶ And he emphasized the number of cases in which the jurists stated that the imperial norm was the present practice (quo iure utimur). Juristic opinions gained their force by reason of the legal logic behind them, but rescripts obtained their validity by virtue of the authority with which the imperial power was vested.ⁿ To De Robertis there was no question but that rescripta of general application (constitutiones generates) were norma* ti ve i n nature, on e of the pri me sources of the 1 ate classical 1 aw. ’ · De Francisci had earlier stressed that decreta and rescripta resolving uncertain or contro­versial points of the law were considered manifestations of imperial power, and thus binding upon similar situations in the future.” Orestano, in his monograph on the normative power of the emperors, had observed that by the end of the 2nd century rescripts proclaimed general were conceded absolute validity?⁴ But the extended study by De Robertis did not go without reply. Vinci, in a succinct but critical study, sought to answer each of the points made by De Robertis?¹ She pointed out that rescripts were decisions on a given state of facts, and thus only capable of precedent value. The pas­sages taken as ‘polemical attacks’ arc in fact instances where jurists depart from the rules of earlier rescripts?² A jurist often cites a rescript with a view opposing his own as he would the opinion of a jurist in opposition. All in all, there is not enough evidence to show that rescripts acquired a true norma­tive status in the period of the classical law.

In the decades since this discussion the divergent views have persisted. Steinwcnter believed that the extension of a rescript directed to a particular case was due to the post-classical revision of earlier texts?² Arangio-Ruiz stated that where the emperor, by rescript, filled a gap in the civil or prae­torian law, ‘such decisions did not bind the judges in analogous cases which might arise in the future’?⁴ Amelotti attributed the force of precedent, but

16. De Robertis, op. at., 313—21. He did not deal with the third alleged criticism of imperial rescript, D. 38.2.22, set forth above.

17. De Robertis, op, di., 389.

18. De Robertis, op. eft., 341-69, discusses constitutio generalis specialis personalis; his idea of a trichotomy rather than a dichotomy does not seem to have gained favor.

19. De Francisci, Storia II. 1 (1st ed.) 331-33.

20. Orestano, Potere 70 f

2! Vinci, Ann. Catania I (1946/47) 320-24.

22. Evidenced, according to Vinci, op. tit., by D. 38,2.22; 48,19.8.1; 22.1.17 pr„ which show juristic opposition to imperial rescripts.

23. Steinwenter, Studi Arangio-Ruii 11 169, 181 fT.

24. Arangio-Ruiz, Storia 246 (translation by the author).

not normative value, to rescripts of the emperors before the time of Diocle­tian.” On the other hand, De Francisci, in an outstanding survey of imperial legislation, was equally positive that rescripts were recognized by the jurists to have normative quality by the end of the 1st century.²⁴ It may well be that rescripts were not particularly in favor in the reign of Trajan - as Macrinus reported¹¹ - but in Hadrianic and post-Hadrianic times classical jurispru­dence considered rescripts as the major source of normative principles pos­sessing general validity.¹· To De Francisci all imperial enactments derived their normative force from the power (auctoritas) of the emperor, and he chides scholars for introducing a distinction, deriving from the modem theory of division of powers, which would concede to rescripts only the force of precedent?* The most recent attention given to the problem, at the time of this writing, is by Kaser?* Both decreta and rescripta have binding force with respect to the cases to which they are directed, the first as imperial judg­ment, the second insofar as the facts alleged were proven to the satisfaction of the judge. But whether they are binding on future similar cases is not yet sufficiently explained. The jurists seem to accept the rules laid down in the imperial decisions, though in some instances they seem to evade the rule by disapproving the reasoning of the rescripts.”

4. Conclusion

§ 174 Hammond, in his discussion of legislation during the Antonine monarchy, concluded that during the 2nd century the emperor was the only source of creative legislation, chiefly through his constitutiones; and these were recognized as having the force of law.¹ He further stated: ‘The permanent validity of imperial constitutiones was a necessary basis for the continuity and stability of government and must have been accepted generally and without reflection save on the part of legal theorists.'² In the opening sec-

25. Amelotti, Fer /'interpretatione della legislatione privatistioa di Diocletiano 30 and n.59.

26. De Francisci. BIDR 70 (1967) 187. 204 ff.

27. See supra. | 166.

28. De Francisci, op. at., 210.

29. De Francisci. op. at., 220 and n.114. In this note De Francisci writes that he cannot accept Vinci's criticism of De Robert is.

30. Kaser, Geddchtnisschrift Dietz 28 f. (of the reprint).

31. Kaser, op. dl., 29 n.58, cites the same cases of disapproval of imperial rescripts by jurists, D. 38.2.22; 48.19.8.1; 22.1,17 pr., set forth supra. The study of Palazzolo, Pot ere imperiale ed organi giurisdizionali nel II recolo d.C. L’efficacia processuale dei rescritti imperiali da Adriano al Severi (= Pubi. Catania, 74] (Milano 1974), was noted too late for inclusion in the discussion.

1. Hammond. Antonine Monarchy 328-46.

2. Hammond, op. at., 346.

tion of this group on ‘Constitutiones as Sources of Law’ (supra, § 170), the views of these 'legal theorists’ have been presented, together with the mod* ern reaction to the thoughts expressed by the jurists. It has further been demonstrated (supra, § 171) that the constitutiones were available during the life of the issuing emperor as well as under later rulers to afford the succession of jurists of post-Hadrianic times the opportunity of consulting the archives and making use of the principles of law expressed in imperial enactments in their development of the current law. Whether the principles laid down were considered by the 'legal theorists’ to be norms on a par with leges or were merely precedents particularly persuasive in similar situations in the future because of the auctoritas of the emperor is a question which cannot be answered with any degree of certainty (supra, 172-73)? Perhaps a more important factor is that the constitutiones of the emperors were primary sources to which the jurists of the later classical period turned for support in their explanations of the evolution of Roman law during the 2nd and 3rd centuries of our era.

In a recent historical survey of imperial legislation during the Principate, de Francisci has briefly outlined four causes which he believed occasioned the proliferation of constitutiones, particularly decreta and rescripta, and drew the attention of jurists to these imperial enactments.^{[1247] [1248] The first factor was the reorganization of the chancellery of the central administration to establish bureaus capable of processing the various petitions and complaints and of providing answers to them (see supra, § 162); the reform in the council of the emperor to provide a permanent organ for collaboration with the emperor in administration, in legislation, and in judicial process (supra, § 161); the participation of jurists in the council of the emperor and in posts in the secretariat (supra, § 107). The second point de Francisci made was the alteration in the nature of the responsa of the jurists, in which the opinion of a single jurist ceased to play the predominant role in the develop­ment of the law, being replaced to a considerable extent by the communis opinio of jurists (supra, § 106); and many of the leading legal experts becom­ing organs of the imperial service, with their opinions constituting inter­pretation of imperial legislation. The third factor was the cessation of creative legal activity on the part of the praetor with the codification of the edict and the giving of imperial sanction to the ius honorarium in the post- Hadrianic period (see supra, 150-51); further, the norms set forth in the edict were given universal application throughout the Empire and treated}

§ 174 as a legislative source by the emperors and the jurists. And fourthly, that these reforms gave a new slant to the Roman Empire, making of it a paternal­istic monarchy extending its care to its subjects throughout the Mediter­ranean world, as instanced by the general application of the principles of the Rhodian law on maritime commerce? De Francisci summed up the characterization in these words: ‘The imperial legislation - in the new sense - comes thus to constitute the single source of the new law of the Principate from the beginning of the 2nd to the end of the 3rd century; and the jurists, who are also the proper collaborators of the princeps [emperor] in the formulation of the normative enactments, undertook the task of interpreting it, of elaborating it, and of integrating it into the system.’⁴ Whatever legal position may be assigned the imperial constitutiones, whether lex, or in place of lex, or with the force of statute, or binding or merely persuasive precedent, the jurists of the Antonine and Severan monarchies cited and commented upon these pronouncements in the way they treated the opinions of the jurists or the cases which had been heard before the praetor. Jurists like Callistratus, Marcianus, Modestinus, Paul and Ulpian, in their works which were devoted to the institutions of adminis­trative law and topics which drew special attention from the emperors, relied upon constitutiones, particularly decreta and rescripta, as the point of reference for much of their discussion? The collection of extracts from the juristic writings in the Digest and in ante-Justinianian sources which refer to or quote from imperial constitutions, presented by Gualandi,* clearly illustrates that jurists of this late era treated these enactments as ‘sources’ of law, indispensable in the discussion of the development of legal institutions. To statute and custom, to the jurists and jurists’ law, to the praetor and his edict, to the Senate and senatus consulta (chaps. VII-X) is to be added the emperor and constitutiones (chap. XI), thus concluding the survey of the sources from which the classical law drew its materials by the action of the forces which were instrumental in its development.

5. Cf. similar view of the paternalistic nature of the Antonine monarchy, Hammond, Antonine Monarchy x f, 481-83; De Martino, Storia IV. 1 383 fT.

6. Do Francisci, op. at., 218 f, (translation of the author).

7. Particular works replete with reference to imperial constitutions include: Callistratus, De cognitionibus; Marcianus, Institutiones; Modestinus, De excusationibus; Paulus, Decreta (completely so); Ulpianus. De fideicommissis and De officio proconsulis. As much as 15% of the total number of extracts of Ulpian’s commentary on the (praetor’s) edict contain refer­ences to constitution«!

8. Gualandi. l^isUtzione I, first sets forth the passages in chronological sequence of emperors (with supplement of references to unnamed emperors and texts of generic refer­ence) followed by the passages according to alphabetical order of the jurists (plus fragments of uncertain authors). De Francisci, BIDR 70 (1967) 187, 191 98, calls attention to refer­ences and to quotations from constitutiones in literary texts, inscriptions and papyri to be added to Gualandi’s collection.