Imperial constitutions

In the early years of the Principate the emperor achieved his legislative ends indirectly, through controlled decrees of the senate and enactments of the people's assemblies.

But as imperial power continued to grow at the expense of the old republican institutions the emperor acquired independent legislative authority and began to create new legal rules directly in a number of ways. According to Roman jurists, the direct lawmaking power of the emperor was justified on the basis that, as the emperor received his power from the Roman people through the lex de imperio, his enactments rested ultimately on the popular will. By the early second century AD the enactments of the emperors (consitutiones principum) came to be recognised as a distinct source of law, alongside the leges and the senatus consulta, and as having full statutory force (legis vigor em))⁵

There were four types of imperial constitutions: decreta, edicta, rescripta and mandata)⁶ The decreta were judicial decisions issued by the emperor as a judge of first instance or on appeal in exercise of his jurisdiction in civil and criminal matters.^{^[929]} Cases referred to the emperor were decided according to the existing law, but the emperor (like the praetor and other jurisdictional magistrates) allowed himself a considerable degree of freedom in the interpretation of the applicable rules and sometimes introduced new legal principles. Thus, in criminal cases he had a free hand in the definition of offences, the choice of penalty and the mode and amount of punishment. Although his decisions were not always made in the formal context of a trial, they were usually regarded as actual statements of the law binding in all future cases. Considering the amount of time the emperor had to devote to other matters (as well as his lack of expertise in legal issues) it is more likely that, in many cases, the imperial decisions came not from the emperor himself but from his advisers in the consilium principis which, from the second century AD, included many learned jurists.^{^[930]}

The emperor, as holder of magisterial imperium, issued edicts {edicta) by which he made known his orders and intentions to his subjects.

The imperial edicts were similar in form to those of the republican magistrates. Unlike the magistrates, however, the emperor possessed almost unlimited powers and remained in office for life. Thus, his edicts carried much more weight and were usually broader in scope than those of the magistrates, embracing the whole business of the state. Moreover, they remained valid in perpetuity, unless they fell into disuse or were formally rescinded by subsequent legislation. Imperial edicts were often aimed at modifying existing rules of law or at introducing new ones. Within their scope fell matters pertaining to both public and private law, such as the constitution of the courts and the administration of justice, the organisation and administration of the provinces, and the granting of the Roman citizenship. To the category of imperial edicts belonged, for example, the consitutio Antoniniana of Emperor Caracalla (212 AD), by which the Roman citizenship was bestowed upon all the free inhabitants of the

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empire.

The rescripta, or correspondence, were written answers given by the emperor to questions addressed to him by state officials and private citizens seeking advice on matters subject to judicial determination. When the emperor's answer to a petition or inquiry was given in a separate letter it was referred to as epistula. The epistulae were prepared by the imperial scrinium ab epistulis and were usually addressed to state organs in Rome or in the provinces.^{^[931]}[932] The term subscriptiones, on the other hand, was used to denote answers to petitions, usually from private citizens, endorsed on the application itself.^{^[933]} The rescripta were initially of an advisory character, much like the responsa prudentium', they simply stated what the law was, and what the correct decision would be, if the facts, as stated in the relevant application, were proven.^{^[934]} If the judge trying the case felt that the facts had been proven, he was bound by the imperial decision contained in the rescript.

In the course of time, as it became customary forjudges to petition the emperors for decisions on difficult questions of law, the importance of the rescripts increased and, by the middle of the second century AD, they had become an important factor in the development of private law. It should be added here that the authors of the imperial rescripts were, in most cases, the jurists who served as members of the consilium principis^

The mandata were instructions on administrative and judicial matters given by the emperor to imperial officials in Rome and the provinces, and were always binding on the official to whom they were addressed. They pertained to matters such as public works, the conduct of magistrates while in office, court procedure and the administration of justice.^{^[935]}[936] Those addressed to provincial governors were binding only in the province for which they had been issued and continued in force for as long as their recipient remained in office. Based on the emperor's imperium proconsulare, the mandata were at first personal and internal, but as imperial administration evolved, they developed to become more official and public. Moreover, although they were initially binding only for as long as the emperor and the official to whom they were addressed remained in office, they were often renewed by the next emperor and thus they could retain their validity for a long period of time. In this way a substantial body of law was built up which formed a new source of norms of general application which was of particular importance for the development of certain branches of the law, such as the law of fideicomissa, and the law that applied in the provinces.^{^[937]}[938] In the course of time various compilations of imperial mandata were produced, which became known as libri mandatorum}⁶

The acts of an emperor were rescinded (rescissio actorum) if, after his death, he was subjected, by senatorial decree, to a damnatio memoriae - a disgrace inflicted upon the memory of an emperor whose conduct was stigmatised as morally reprehensible. The emperor's acts were restored if the damnatio memoriae was subsequently repealed.

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Source: Mousourakis George. The Historical and Institutional Context of Roman Law. Routledge,2003. — 480 p.. 2003

Imperial constitutions

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