Imperial Legislation

The justification for the new constitutional order established by Augustus was found in the fact that a single controlling power was necessary for the command of the army and the administration of the provinces.

But it was impossible to create such a power without bringing it into some contact with every department of the state. The guidance of legislation and the administration of justice by an individual will was a necessary consequence of the new political order, and it is possible that this guidance was needed. There is a stage in the history of law where freedom of interpretation may lead to bewildering confusion, and there is a stage in the history of any national judicial organization where drastic reforms are necessary to adapt it to new conditions. The Principate imparted a definiteness to law, but a definiteness that was in no sense intractable. Quite the opposite it prevented law from being narrowly Roman while at the same time it checked it from recklessly incorporating foreign elements. It adapted law to new needs by expanding, but not impairing, its national character. At the same time it widened the scope of jurisdiction by methods that seem to have enhanced the efficiency of the court system, and which brought the provincial world into closer judicial relations with the Rome. The changes brought about both in legislation and in jurisdiction were piecemeal and progressive; and, though they were in theory initiated by the will of individual monarchs, it is important to recall that, in a final analysis, monarchical power was the outcome of the concurrence of many individual wills. For the sake of convenience we are used to treat the princeps-emperor as the principal source of law and the chief influence on jurisdiction. Sometimes a purely personal power of this kind may have been realized for a while, although when so realized it always had a flavour of tyranny.

But as a rule, when we think of the emperor as a source of law and justice, we should be thinking of his judicial advisers and assessors. The trained jurist played a decisive part in legal progress. His control of the princeps, and the princeps’ control of him, must both be taken into consideration, although the actual extent of the respective influences—of the administrator over the jurist and of the jurist over the administrator—is impossible to determine for any given act or for any given moment of time.

During the early Principate age, the emperors indirectly achieved their legislative goals through the controlled decrees of the senate and enactments of the popular assemblies. But as imperial power grew and the old republican institutions faded away, the emperors started to directly create new legal rules in a number of ways. This direct law-making power was justified on the ground that the princeps- emperor had received his power by law (the lex de imperio), and so his enactments rested ultimately on the popular will. According to the jurist Gaius, “a constitution of a princeps... has the force of law, since the emperor himself receives his imperium by a law”.^{^[61]} This statement implies nothing less than whatever the emperor decreed as law possessed the validity of a formal statute (lex), i.e. a statute like those in the republican period that were formally enacted by a popular assembly and sanctioned by the senate.^{^[62]} The true foundation of the emperor's legislative authority is not discovered in legal rationales but in political reality: the emperor's socio-political power evolved so that his assumption of a direct legislative role could not be challenged.

Imperial legislation was designated the common name of imperial constitutions (constitutionesprincipis) and assumed diverse forms: decreta, edicta, rescripta and mandata.^{^[63]}

The decreta (decrees) were decisions issued by the emperor in exercise of his judicial powers on appeal and, on occasions, as judge of first instance.

The emperor's appellate jurisdiction was justified on the following ground: as the emperor received his powers from the people and hence acted in their name, an appeal to him was the exercise of the age-old citizen's right of appeal from a magistrate's decision to the judgment of the people in the assembly. Cases referred to the emperor's tribunal were decided in accordance with the existing law. However, as the highest authority in the state, the emperor granted himself considerable freedom in interpreting the applicable legal rules. He could even venture to defy some hitherto accepted rule if he felt that it failed to produce an equitable outcome. For all practical purposes, the emperor's decreta were treated as authentic statements of law and binding for all future cases. It should be noted in this connection that as the emperor lacked expertise in legal matters, important questions of law arising in cases brought before the emperor's tribunal would usually be debated and settled at a meeting of the consilium principis that embodied some of the best legal minds of the day.

As holder of the magisterial imperium, the princeps-emperor had the right to issue edicts (edicta) that publicized his orders and intentions. The emperor surpassed all other magistrates in authority and his sphere of competence was virtually unlimited: thus, his imperial edicts embraced the whole business of the state, dealing with such divergent matters as criminal law and procedure, private law, the constitution of the courts, and the bestowal of citizenship. The edicts of the princeps were, like those of the praetor and other jurisdictional magistrates of the Republic, technically interpretations of law; but, like the praetor, the princeps could alter or supplement the law under the guise of interpretation and his creative power, as exercised by his edictal authority, was very extensive. An emperor's edict did not necessarily bind his successors; but if it had been recognized as valid by a succession of emperors, it was deemed to be part of the law, and its subsequent abandonment had apparently to be provided by some definite act of repudiation.

It should be noted that Augustus and his immediate successors used their power of issuing edicts sparingly. Only during the late Principate age when the imperial

system moved closer to an absolute monarchy did the emperors regularly employ edicts to achieve aims that, according to the spirit of the Augustan constitution, called for the enactment of legislation by a popular assembly or by the senate. By that time, both comitial and senatorial legislation had disappeared and the capacity of the emperor to create law directly had been recognized as an essential attribute of his office. Probably the best-known example of an imperial edict is the constitutio Antoniniana (ad 212) whereby Emperor Caracalla granted the Roman citizenship to all the free inhabitants of the Empire.^{^[64]}

The rescripta (correspondence) were written answers given by the emperor to petitions or inquiries on legal and other matters raised by state officials and private citizens. There were two types of imperial rescripts: epistulae and subscriptiones. The former were embodied in a separate document and were addressed to state officials in Rome or in the provinces. The latter were responses to petitions from private citizens written on the margin or at the end of the application itself. Rescripts became particularly important for the development of the law in the second century ad, when it became customary for judges and private litigants to petition the emperors for decisions on difficult questions of law. The emperor would articulate the legal position that applied to a certain stated factual situation and if the judge confirmed the veracity of these facts as stated, he was bound by the imperial decision. Moreover, the emperor's ruling on a point of law contained in a rescript was treated in practice as a binding statement of law for all future cases.

The mandata (instructions) were internal administrative directions given by the emperor to officials in his service.

The most important mandata were addressed to provincial governors and concerned provincial administration (especially its financial side), while others dealt with matters of private and criminal law and the administration of justice.^{^[65]} Based on the emperor's imperium proconsulare, a mandatum was originally strictly personal and remained in force only as long as both the emperor who issued it and the official to whom it was addressed remained in office. When the emperor died or the official was replaced, the mandatum had to be renewed. Gradually, the successive renewals created a body of standing instructions (corpus mandatorum) that was deemed generally valid for not only state officials but also with respect to the contacts of private citizens with the administrative authorities.^{^[66]}

Imperial law-making, like the magisterial law-making of the later republican age, formed a new source of free and equitable rules that unravelled the rigidity of the Roman legal system, thereby adjusting it to the socio-economic conditions of an evolving society. However, the multiplicity of the emperor's law-making functions precluded the formation of a homogenous body of law until the later imperial era when attempts were made to introduce order into the mass of imperial constitutions claiming validity in the Empire.

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Source: Mousourakis G.. Fundamentals of Roman Private Law. Springer, 2012.— 366 p.. 2012

Imperial Legislation

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