DIOCLETIAN'S “LEGAL CAREER”

To conjecture an answer to this, I shall set Diocletian's “legal career” against his record of constitutional and bureaucratic change. This enterprise would not be possible without the detailed findings of two fundamental works on Tetrarchic government, The New Empire of Diocletian and Constantine by Tim Barnes and The Empire of the Tetrarchs by Simon Corcoran.^[222] At the same time as trying to build on that scholarship, the argument that follows might be considered a response to the challenge laid down by Alan Watson to investigate the relationship between law and the values of the society it seeks to regulate.^[223]

The extraordinary constitutional changes brought about by Diocletian - such as his introduction of collegiate governments and the retirement from imperial office of the Augusti in 305 - were outlined above and need no commentary here other than to remark on the imagination and energy they doubtless demanded.

More difficult to map onto a timeline but certainly a significant part of Diocletian's political ambitions were his administrative reforms.

Legal constitutions were of three types - letter, edict and rescript. Classi­fication of a constitution according to type is sometimes difficult and not always particularly revealing anyway.^[226] There is, however, a difference in ethos between rescripts and the other types of constitution - rescripts, as “letters back” to petitioners, were literally responsive, whereas edicts and letters might be unsolicited, and therefore proactive. And so, in general, letters and edicts were used for legislation/promulgation, and rescripts (and subscripts) for exposition or clarification on points of existing law. All three types of constitution were employed under Diocletian, and with certain reservations about the difficulties of dating certain items, the following timeline for Diocletian's legal activity can be reconstructed.^[227] The Gregorian and Hermogenian Codes, named after their compilers, who were probably prominent jurists under Diocletian, consisted in the main of rescripts.

c 292 Gregorian Code^[228]

c 293-305 (?) Edict on Judgments^[229]

c293-305 (?)

294

294

c 294

c 295

295

297

300

301

301

302(?)

303-304

Edict on Appeals²⁵

Edict on time delays in court procedure²⁶

Edict on delegating cases²⁷

Edict on patrimonium matris²

Hermogenian Code²⁹

Edict de nuptiis³⁰

Edict on tax reforms³¹

Various edicts on tax and tax collection³²

Two or three edicts on currency reform³³ Prices Edict³⁴

Letter on the Manichaeans³⁵

Four Persecution Edicts³⁶

The timeline gives the first impression that Diocletian moved from a policy of law by rescript in the early 290s to law by edict thereafter, but Corcoran has argued convincingly that rescripts would have continued to have been issued throughout his reign.^[230] When taken with the broader political context, however, there are patterns in Diocletian's management of the law in his society which can account for his misjudgment of the likely efficacy of the two measures for which he is most famous, the Edicts of Prices and Persecution, both dated towards the end of Diocletian's reign.

The Gregorian Code was a collection of constitutions, mainly private rescripts, from the time of Hadrian until 291; the Hermogenian Code also consisted mainly of rescripts, dating from 293-294. If both codes were imperially sponsored (if not exactly imperial projects^[231]), the legal timeline makes it reasonable to suggest that by 294 the principle of codification, as realised in the Gregorian Code, was considered at least a qualified success, deserving of a further publication, this time by Hermogenian. Significantly too, in time, both codes were expanded or republished with later material.³⁹ It is tempting to see this codification and later re-publication of legal consti­tutions as responses to perceived needs, rather than arbitrary acts or the fulfilment of a purely academic interest on the part of Gregorius and Hermo­genian.

However, even if the codes were published to fulfil the need created by the provincial reforms, a perhaps unintended effect of codification would have been a modification in the ethos of the now accumulated rescripts.⁴¹ Original rescripts were responsive, intended as specific guidance on partic­ular issues; but codification literally inscribed law and thus altered the impact it had on the population, changing it from a system of “petition and response”, where centre reacts to periphery, to a more assertive system, where centre dictates. Codification therefore closed the gap between rescript and edict as legal procedures, especially in the context of a rapidly expanding judiciary. Ultimately, although rescripts and edicts are different in ethos, codes and edicts have much in common - both are applied via indices, both are asser­tive, proactive and systematising. The codification of the early 290s can there­fore be seen as complementary to the edicts of the time, which, significantly, were all principally concerned with judicial procedure - judgment, appeals, delay and delegation. In edicts and codification of rescripts, in the early 290s the policy of centralising law was being pursued on more than one front.

39 Corcoran, Tetrarchs (n 4) 37; Corcoran, “Publication of law” (n 38) 63.

40 Turpin, “Purpose of the Roman law codes” (n 38) 628; see also S Corcoran �?The Tetrarchy: policy and image as reflected in Imperial pronouncements', in D Boschung and W Eck (eds) Die Tetrar­chie (2006) 31-61.

41 Cf Watson, “Law and Society” (n 14), 29-31.

According to the timeline above, Diocletian's legal activity from 297 until his retirement in 305 was rather different. Legislation, generally via edicts, was now not aimed at judicial procedure but the fisc, the economy and religion. Law was now much more interventionist, trying to regulate the daily routines of all individuals rather than the working practices of legal profes­sionals. An illuminating example of this tendency is the measure against the Manichaeans, often cited now as a precursor to the Great Persecution. The text survives in the Mosaicarum et Romanarum legum Collatio (15.3) and is addressed to Julian the Proconsul of Africa. The date is of some controversy, with 31 March 287, 297, 302 or 307 possible - Barnes and Corcoran favour 302.^[232]

otia maxima interdum homines in communione condicionis naturae humanae modum excedere hortantur et quaedam genera inanissima ac turpissima doctrinae superstitionis inducere suadent, ut sui erroris arbitrio pertrahere et alios multos videantur, Iuliane carissime. [2] sed dii immortales providentia sua ordinare et disponere dignati sunt, quae bona et vera sunt ut multorum et bonorum et egregiorum virorum et sapientissimorum consilio et tractatu inlibata probarentur et statuerentur, quibus nec obviam ire nec resistere fas est, neque reprehendi a nova vetus religio deberet. maximi enim criminis est retractare quae semel ab antiquis statuta et definita suum statum et cursum tenent ac possident. [3] unde pertinaciam pravae mentis nequissimorum hominum punire ingens nobis studium est : hi enim, qui novellas et inauditas sectas veterioribus religionibus obponunt, ut pro arbitrio suo pravo excludant quae divinitus concessa sunt quondam nobis.

[1] Excessive leisure sometimes provokes ill-suited people to cross natural limits and encourages them to introduce false and outrageous forms of superstitious doctrine, so that many others are persuaded to recognise the authority of their mistaken beliefs, dearest Julian. [2] In their foresight, the immortal gods have deigned to insist that the principles of virtue and truth be acknowledged and confirmed by the counsel and thoughts of many good, great and wise men. It is wrong to oppose or resist these principles; and no new belief should criticise the religion of old. It is highly criminal to discuss doctrines established and defined by our ancestors, which still have their acknowledged place and role. [3] For this reason we are absolutely determined to punish the stubborn madness of these worthless people. [4] We have heard all those matters relating to the Manichaeans which in your wisdom you reported to us in our serenity - that against the older beliefs they establish new and unknown sects, wickedly intending to overthrow the doctrines confirmed for us long ago by divine favour; that recently they have advanced or emerged from their native homes in Persia - an enemy of ours - like strange and monstrous portents, and have settled in this part of the world, where they commit many evil acts, upsetting the peace of the people and seriously damaging towns. There is a danger that in time they will try, as usual, to contami­nate with the Persians' criminal habits and insane laws the innocent, orderly and peaceful Roman people, and the whole empire as well, as if with the poison of an evil snake. [5] Because everything you in your prudence explained in your report about their religion demonstrates that what our laws see as their crimes are born of a wild and false imagination, we have set deserved and suitable penalties for these people. [6] We command that the authors and leaders of these sects receive severe punishment and be burnt in the flames with their detestable books. We order that if they prove defiant, their followers suffer capital punishment, and their possessions pass to the imperial treasury. [7] If those people who have crossed to that unknown, outrageous and disreputable belief, or to the Persian's belief, are in public office or are of any rank or higher social status, you must confiscate their estates and send the offenders to the Phaeno [quarry] or the Proconnesus mines. [8] In your devotion, hurry to execute our orders and commands so that this iniquitous disease is completely cleansed from our most happy age.

We do not have evidence for a Manichaean response comparable to the peaceful resistance the Christian literary record claims its faithful offered to the Great Persecution. The series of edicts against the Church constituted a trajectory of increasing violence and intervention, culminating with the prescription of the death sentence against all who refused to perform pagan sacrifice. The measure against the Manichaeans is severe from the outset, with capital punishment immediately threatened; yet it is not clear what would constitute defiance (contentiosos) among the ordinary followers. With vague reference to doctrine and subversive behaviour, the measure seems to criminalise a general lifestyle. In its target, ambition, and means of applica­tion, the law is here being used quite differently from the more sober, rather “professional” policies of the early 290s, aimed at those who already had an interest in the law in some degree.

In its wordy style and righteous tone the text outlawing the Manichaeans reads much like the moralising rhetoric of the preamble to the Prices Edict. It opens with a highly judgmental sententia to gain moral authority, itself to be confirmed by reference to divine will, before the subject of the constitution is first mentioned - the practices of the Manichaeans. The details of the legis­lation this text realises feature thereafter (statuimus, iubemus, praecipimus, sancimus). There is no reason to think that this legislation was not applied in the eastern and African provinces where Manichaeans were but, in the context of Diocletian's “legal career”, what is notable about this aggressive legislation is that it is technically a rescript, and not an edict. Chapters 4 and 5 make it clear that the emperors here were responding to a petition from the governor; it is therefore almost axiomatic that the legislation would have been applied by the governor because the text is precisely the go-ahead he had sought in his initial petition. We could even go so far as to be confident that under Julian and any other likeminded governors themselves keen to rid their areas of jurisdiction of Manichaeans, the policy of persecution would have been energetically implemented. If the governor was determined to apply the law, as Julian seems to have been when he first petitioned the emperors for a ruling, even acts of public law of considerable ambition could achieve their aims.

D.