The Development of Imperial Law-Making

During the later imperial age, the ‘pluriformity’ that characterized legislative activity during the Republic and the Principate no longer existed.

With the transformation of the Roman government into an absolute monarchy, the emperor emerged as the sole source of laws and also their final interpreter. The unchallengeable legislative supremacy of the emperor conformed to the essence of the new regime, whose absolutist nature barred constitutional or any other legal limitations.^{^[211]}^{^[212]} Nevertheless, the emperor actually exercised his governmental functions and powers with guidance from established substantive and procedural norms. Though he might change these norms at his discretion, he was bound to observe them to ensure that his decisions produced the intended practical results. In the final analysis, it may be declared that the observance of these norms constituted a kind of intra-organ control over an authoritarian regime.

The imperial enactments (constitutiones) with their diverse appellations of edicta, rescripta, decreta and mandata were now collectively designated leges— this signified legal norms with the highest validity. These enactments furnished the basis for the formation of a new body of law (ius novum) distinct from the old law (ius vetus) as traditionally interpreted by the classical jurists. The principal fields of operation of the imperial laws were public administration and socio-economic policy, but they also introduced numerous changes in other areas, such as family and criminal law. Many imperial laws were not strictly Roman in character but exhibited the influence of foreign (especially Greek) institutions. Moreover, since the era of Constantine the Great, imperial legislation was also moulded by ideas derived from Christian ethics.

Generally, the legislation of this period displays elements of so-called the ‘vulgar law’: statutes are composed in an inflated, grandiose style while their provisions have an ill-arranged, vague and unrefined form; and these laws are often deficient in affording an exhaustive and unambiguous determination of the relevant issues. While the quality of the imperial laws declined, their quantity rapidly increased as often conflicting enactments were produced in great profusion entailing a chaotic mass that had little practical use. Since the late third century AD, the Roman government endeavoured to install some order to the mass of laws claiming validity in the empire.

Depending on their form and scope of application, the majority of imperial enactments fell into two categories: edicta or leges generales and rescripta or leges speciales.'"'¹⁶"'

An edict was usually issued in the form of a letter addressed to a high official (generally a praetorian praefect), who had a duty to publicise its contents; it could also be addressed to the people or some section thereof (e.g. to the inhabitants of a particular city), or to the senate (either of Rome or of Constantinople, depending on the circumstances).^{^{New Roman">[213]}} When an edict was addressed to the senate, no senatus consultum was passed to confer formal validity to the emperor’s wishes that now existed as law per se. Simply, the terms of the statute were recited in the senate, recorded and retained in the archives of that body. Edicts were usually prepared by the minister of justice (quaestor sacri palatii) with the assistance of legal experts and discussed in the imperial council (sacrum consistorium). After the division of the empire, they were almost invariably issued in the name of both Augusti even when they emanated from only one of them (obviously they had no effect within the realm of the other Augustus without the latter’s consent).^{^[214]} This type of imperial enactment is illustrated by the famous Edict of Prices (edictum de pretiis) promulgated by Emperor Diocletian in ad 301 that set maximum prices for a wide range of goods and services, and prescribed penalties for profiteering.^{^[215]}

The rescripts (i.e.

the emperor’s answers to legal questions invoked by actual cases and submitted to him by private citizens or state officials) remained an important source of law until the time of Diocletian.^{^[216]} In ad 315, Emperor Constantine decreed that a rescript must be deemed invalid if it deviated from a lex generalis.^{^[217]} Moreover, a law issued by Arcadius and Honorius in ad 398 stipulated that a rescript was only binding in the individual case that it concerned.^{^[218]}However, Emperors Theodosius II and Valentinian III in ad 426 sought once more to confer imperial rescripts an indirect law-making force. Thus they decreed that as a rescript constituted a declaration of a general principle in an individual case, it could be considered generally binding. This view seems to have prevailed during the late fifth and sixth centuries.^{^[219]}

In the later imperial period two new kinds of imperial constitution emerged, namely the sanctio pragmatica and the adnotatio. The former generally consisted of a reply by the emperor to a petition, but it apparently ranked as a more formal manifestation of the emperor’s will than an ordinary rescript and practically had the same effect as a lex generalis. Accordingly, it was commonly used in replying to petitions that requested the settlement of matters of general public interest or the issuing of decisions with a scope of application that extended well beyond the interests of the parties involved. A sanctio pragmatica might be employed, for example, to effect administrative reform; regulate the operation of government bodies or corporations; or confer important privileges to certain groups.^{^[220]} The term adnotatio was probably used to denote a decision of the emperor in response to a petition or any other communication directly addressed to him and written in the margin of the petition.^{^[221]} Finally, a form of subordinate legislation that originated from the late Principate period was embodied in the edicts of the praetorian prefects (edicta praefectorum praetorio).^{^[222]} The provisions of such edicts mainly addressed administrative matters and were binding within the prefecture of their author, provided that they did not conflict with the general law of the empire.

2.5.2

<< | >>

↑

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

The Development of Imperial Law-Making

More on the topic The Development of Imperial Law-Making: