The Emperor as a Law-Maker

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

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. An edict was usually delivered in the form of a letter addressed to a high official (generally a praetorian prefect) who had a duty to publicize 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. 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).

Even before the end of the third century, the ever-growing and chaotic mass of imperial enactments created confusion in the practice of law that prompted an urgent need to collect them in an orderly fashion. This led to the publication of two informal collections: the Codex Gregorianus (c. ad 291) and the Codex Hermogenianus (c. ad 295). The former contained imperial constitutions (mostly rescripts) spanning the reigns of Hadrian (ad 117-130) to Diocletian; the latter was a supplementary collection of constitutions that were issued during the reign of Diocletian. Although both the above codes were unofficial collections, evidence suggests that their production was approved or authorized by Diocletian’s govern­ment. This is corroborated by the fact that their authors enjoyed regular access to the archives of the imperial chancery, which suggests they held senior positions in the imperial administration and performed their work under official supervision.

The first official compilation of imperial law was the Codex Theodosianus, published by the Eastern Emperor Theodosius II in ad 438. Following its approval by the Western Emperor Valentinian III a few months later, the new code acquired the force of law for the whole Roman Empire (1 January 439).^[85] The Theodosian Code was essentially an extension and continuation of the Gregorian and Hermogenian Codes that were used as its models and still engaged by the courts. It embodied over 3,000 constitutions from the time of Constantine (c. ad 312) to ad 438. The constitutions issued during the above period that had not been included in the code were declared invalid. The work is divided into 16 books subdivided into titles according to the subject matter, while the constitutions appear in these titles in chronological order. The first 5 books focus on private law; books 6-8 address matters of constitutional and administrative law; criminal law is the subject of book 9; books 10-11 contain the law relating to public revenue; books 12-14 stipulate the rules governing municipalities and corporations; book 15 includes provisions pertaining to public works and games; and book 16 elaborates provisions on ecclesiastical matters. As the above description evinces, the majority of the constitutions embodied in the code are concerned with matters of public law. The Theodosian Code effected a measure of uniformity in the administration of justice and also served as an important vehicle for the propagation of Roman law by furnishing a model for later codifications. Modern reconstructions are based partly on later collections, particularly the Lex Romana Visigothorum and the Code of

Justinian, and partly on two manuscripts dating from the fifth and sixth centuries respectively.^[86]

1.5.3