The Constitutional Framework

The Roman Empire in the third century had been dogged by two interconnected problems: the weakness of the imperial authority and the inadequacy of the empire’s administrative structure.

Politically, the emperor was in the hands of the army, which had become the real master of the state. Administratively, the government was incapable of ruling the empire efficiently and of defending its frontiers against external enemies. The character of the new order created by Diocletian is reflected in the solutions he devised for these problems: the transformation of the imperial power into an absolute monarchy; the institution of the system of co-regency or ‘tetrarchy’; and the reorganisation and transformation of the empire’s administrative machine into a rigid bureaucratic system.

Diocletian sought to bolster his authority by imbuing the imperial ideology with a new form and content. The emperor was elevated to the position of an absolute monarch and invested with the dignity and grandeur of the oriental god-kings.^{^[45]}Secluded in his palace and set apart by a framework of complicated ceremonial and court etiquette, he demanded divine veneration from his courtiers, officials and community.^{^[46]} His powers were now unashamedly unlimited and were seen to pervade every sphere of government, administrative, military, legislative and judicial. He appointed and dismissed the public officials, who were now regarded as servants of the throne rather than as servants of the state as an abstract entity; directed foreign policy; exercised control over Church matters; and regulated economic policy. He was also the sole author of laws and their final interpreter. His unchallengeable legislative supremacy conformed to the nature of an absolute monarchy whose omnipotence precluded constitutional or any other limitations on the emperor’s law-making power.^{^[47]} The emperor was also the supreme judge and all other judges were deemed his representatives.

Diocletinan’s answer to the empire’s administrative problem was the introduction of the system of the ‘tetrarchy’.

Recognising that the empire could not be governed efficiently by a single ruler, or from a single administrative centre, he devised a system whereby imperial rule was divided whilst, at the same time, the principle of imperial unity remained unaffected. In ad 285 he appointed Maximian, one of his ablest generals, as Caesar and co-ruler. In AD 286 Maximian was promoted to Augustus and was made ruler of the West, while Diocletian himself took over the rule of the East. In ad 293 each Augustus appointed as his assistant and successor a Caesar and the four ruled jointly, each having control over one quarter of the empire. From Nicomedia, his capital city, Diocletian ruled over Asia, Egypt and Thrace, while his Caesar, Galerius, governed the Balkan peninsula. Maximian, whose seat of government was at Mediolanum (Milan), had control over Italy, Africa and Spain, while his Caesar, Constantius Chlorus, ruled over Britain and Gaul.^{^[48]} This proliferation of the imperial summit was designed not only to facilitate the administration of the empire but also to discourage attempts at usurpation by establishing a stable succession mechanism.

As the imperial government assumed the characteristics of an Eastern despotism, the remaining republican institutions became mere shadows of their former selves or were entirely abandoned. The assemblies of the people had long disappeared. Some of the old republican magistracies continued to exist, but they were divested of all their former powers. The consulship was still regarded as a high honour and was frequently held by the emperor himself. However, it was now a purely honorary office without political importance. The praetors and quaestors also continued to exist but only in an honorary capacity. The senate was retained and, in fact, a second senate was established in Constantinople (c. ad 340). This body retained a certain prestige and dignity, and its members formed the highest rank of imperial subjects from which the heads of the imperial civil service and army were chosen.

However, the actual administration of Rome and Constantinople was in the hands of the urban prefects and their subordinates, and the only political role the senate played was in the inauguration of a new emperor.

When carrying out the various responsibilities of his office, the emperor relied upon a machinery of official and non-official confidants who proffered him advice and assisted him in the formulation of policy decisions. He also depended upon an apparatus of execution that translated his decisions into the realities of the political process. Among the most important civil functionaries of this period was the magister officiorum (master of the offices): he was chief of the imperial secretariats (scrinia), supervised the division of the various imperial offices and regulated imperial audiences. Another key official was the quaestor sacri palatii (magistrate of the sacred palace) who was the emperor’s Minister of Justice. This official prepared the drafts of laws and answers to petitions, and presided over the imperial Council of State when the latter met in the absence of the emperor. The Council of State (sacrum consistorium) consisted of the highest officials of the imperial civil service that acted as the emperor’s advisory council in legislative, administrative and judicial matters. It also operated as an imperial court of justice, usually dealing with appeals from decisions of the lower courts.^{^[49]} Besides the officials resident at the central imperial court, an important branch of the administrative apparatus consisted of officials engaged in provincial rather than central government. The latter formed a separate administrative hierarchy whose structure was linked with the territorial division of the empire into prefectures, dioceses and provinces. The highest-ranking civil official of the provincial administration was the praetorian prefect (praefectus praetorio), the officer heading the administration of each of the four prefectures (Gaul, Italy, Illyricum and the Orient) into which the empire was divided.

Subordinate to the prefects were the chiefs of dioceses, called vicars (vicarii), and the provincial governors. The cities of Rome and Constantinople were exempt from diocesan government and each was administered by a city prefect (praefectus urbi). The complex administrative machinery of the Late Empire was designed to secure efficient administration, and maintain order and regularity for revenue collection and judicial proceedings. Despite the tight controls that theoretically existed, the system was rife with corruption as office holders sought career advancement and self-enrichment at the expense of civilians. In ad 368, the newly created office of defensor civitatis was entrusted with the protection of the lower classes within the population against abuses committed by state officials and great landowners.^{^[50]}

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Source: Mousourakis G.. Roman Law and the Origins of the Civil Law Tradition. Springer,2015. — 339 p.. 2015

The Constitutional Framework

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