INTRODUCTION: CITIES AND EMPIRE

Sometime in the late third or possibly early fourth century, a rhetorician, writing in Greek, probably in the Roman provinces of the East, com­posed a treatise on epideictic rhetoric (the rhetoric of praise and blame).

In the public sphere, we consider whether the city accurately lays down legal conventions and the subject matter of the laws - such as inheritances by heirs and other topics covered by the laws. (This aspect, however, is now redundant, because we use the universal laws of the Romans.) Within the private sphere, the issue is whether there are many famous rhetors, sophists, geometricians, and representatives of other sciences that depend on practical wisdom.^[173]

According to the author of this late Graeco-Roman treatise, praising cities for the display of practical wisdom in the legal sphere was an outdated activity. Public officials in the cities of the East no longer exercised their practical wisdom in framing their own laws and legal procedures, because the inhabitants of their cities used ‘the universal laws of the Romans’.

The question of to whom these Graeco-Roman cities had lost their law-making powers seems to find an answer in a second late Roman rhe­torical treatise, also transmitted under the name of Menander of Laodicea and copied with the first treatise in the manuscripts.^[175] This second treatise addresses the orator directly as ‘the voice of the city’, and includes a section on how to construct a formal speech of praise for an emperor (basilikos logos). As in an encomium for a city, praise for the actions of an emperor should be set out according to the four virtues.^[176] Under ‘justice’, the orator should praise an emperor’s ‘mildness towards subjects, humanity towards petition­ers, and accessibility’, as well as commending him for sending ‘governors around the nations, peoples, and cities, [who are] guardians of the laws and worthy of the emperor’s justice, not gatherers of wealth’.^[177] With regard to the emperor’s practical wisdom (phronesis), the orator should say that it surpasses that of all other men on earth, hence:

Of his legislative activity, you should say that his laws are just, and that he strikes out unjust laws and himself promulgates just ones. ‘Therefore, laws are more lawful, contracts between men are more just’.^[178]

The ‘topic of laws’ was thus seen to have excellent potential in terms of amplifying praise for a Late Roman Emperor’s actions, in stark contrast to praise for a city, where, as we have seen, it counted as a futile exercise.^[179] As far as our late Graeco-Roman orator was concerned, emperors, not cities, made laws.

Book I of Gaius’ Institutes, an elementary legal textbook composed in the mid-second century CE, lists a number of sources for Roman law, past and present: ‘laws’ of the Roman people (leges); enactments of the plebe­ians (plebiscite); resolutions of the senate; constitutions of the emperors; ‘the edicts of those who have the right to issue edicts’ (which would include consuls, praetors, aediles and governors of provinces); and the responses of jurisprudents.^[180] Each of the sources named by Gaius remained relevant to learning Roman law and doing Roman law - in different ways and to dif­fering extents - throughout the later Empire. For good reasons, however, modern Roman historians - like late Roman orators - tend to focus upon the emperors themselves:

L’empereur a le quasi monopole du droit. La loi au troisieme siecle, ce sont les decisions imperiales qui, a l’epoque postclassique, seront qualifiers par le terme de lex qui designe la source principale et presque exclusive du droit.^[181]

Moreover, the juristic sources give the impression that imperial decisions could be interpreted as having a universality that other sources of law lacked. For example, in book 25 of his commentary on the praetor’s edict, the Severan jurist and imperial bureaucrat Ulpian refers to an imperial rescript, issued by Hadrian, which laid down monetary penalties against anyone who buried a body in a city, as well as any magistrate who allowed the practice, but, Ulpian continues:

What if the municipal law allows burial in the city? We must consider whether, in the light of Imperial rescripts, this provision has to be departed from; for the rescripts are of general scope and Imperial legislation has its own force and should apply everywhere.^[182]

From at least the late second century CE Roman jurists had begun to copy imperial rescripts together systematically, an activity that was continued in the codices of the late third-century legal experts (and probably imperial officials) Gregorius or Gregorianus and Hermogenianus, both cited as models for the later fifth-century imperial Codex Theodosianus.^[183]

Before the promulgation of Justinian’s ‘Corpus luris Civilis’, however, jurists did not approach imperial constitutions as exclusive sources of Roman law. In fact, before the Justinianic reforms to the legal curriculum, students at law schools (such as those at Beirut, Rome and Constantinople) had apparently ‘barely begun to read Imperial pronouncements after four years of study [...]’.^[184] Nonetheless, late Roman legal experts - whether giving responsa to private individuals or employed as various types of offi­cials within the imperial bureaucracy - certainly worked within a legal and administrative system that functioned with the emperor at its apex.^[185] What Hopkins terms ‘the symbolic unity of the Roman emperor’ is thus as impor­tant to our understanding of Roman law under the empire, as it is to our understanding of politics, administration and religion.^[186]

There can be no doubt that in the course of the first three centuries of the empire, Roman law had expanded from the city of Rome and Italy into the prov­inces.

In practice, imperial officials tended to work through, or alongside, local elites. Civic elites, where they existed, were particularly important: ‘From the administrative point of view the Roman world empire was a union of urban communities; the city was the foundation on which imperial administration rested’.^[190] Whilst different models of imperial and local civic interaction developed in distinct geographical regions of the early empire, all Roman cities had some administrative responsibilities in terms of executing orders and judgments from imperial officials. Epigraphic evidence from the Eastern empire, however, suggests a marked shift in relations between cities and central government dating from the mid-third century CE, when inscrip­tions honouring imperial governors begin to outweigh those dedicated to local officials.^[191] Carrie is right to reject the idea of a ‘pre-conceived politi­cal programme of authoritarian centralization’ under the Severi; we should likewise be wary of attributing an ‘out-and-out bureaucratization of the administration’ to the age of Diocletian and Constantine.^[192] Nonetheless, it is noteworthy that when local governments performed legal administrative functions in the later third and early fourth centuries, they did so increas­ingly under the supervision of or in tandem with imperial officials.

Given the emphasis on imperial law and state jurisdiction within late Roman epigraphy, in addition to the promulgation of centralised imperial law codes - coupled with fourth-century developments establishing ‘new’ imperial legal officials within the localities, such as the defensor civitatis and ‘new’ central ‘Palatine’ legal offices, such as the imperial Quaestor - it begins to seem absurd not to assume that all law and legal practice in the later Roman empire was subject to the universal control of the emperors and their bureaucrats.^[197]

2.