The Princeps as a Lawmaker

As previously observed, Augustus exhibited deference to the traditional republican institutions he claimed to have restored by consistently refusing to accept direct law-making powers that could supplant those of the established organs of legislation.

So long as the principles of the Augustan system of government retained their vitality, the emperor achieved his legislative goals indirectly by regularly using the popular assemblies and then the senate. However, the emperor not only controlled legislation but since the start of the Principate period had diverse methods for creating new legal norms directly without appearing to legislate. The emperor’s law-making authority was initially based on his magisterial powers, especially the imperium proconsulare maius, and his tribunician potestas. As the imperial power increased over time at the expense of the old republican institutions, the enactments of the emperors (consitutiones principum) were recognized as possessing full statutory force (legis vigorem) and functioning as a direct source of law alongside the leges and the senatus consulta.

The direct law-making power of the princeps-emperor was justified on the ground that the law that conferred imperium on the emperor (lex de imperio) transferred to him the authority to legislate in the name of the Roman people. 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”.^{^[164]} 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 that were formally enacted by a popular assembly and sanctioned by the senate.^{^[165]} But 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.

It should be noted that the growth of imperial legislative authority was gradual. The imperial office in the late Principate age displayed a far more autocratic nature than in the Augustan period, operating as the ultimate source of all administrative, legislative and judicial activity.

Imperial law-making, like the magisterial law-making of the later Republican age, formed a new source of 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.

Imperial legislation was designated the common name of imperial constitutions (constitutionesprincipis) and assumed diverse forms: edicta, decreta, rescripta and mandata.^{^[166]}

2.4.4.1 Edicta

As holder of the magisterial imperium, the princeps-emperor had the right to issue edicts (edicta) that publicized his orders and intentions. But as the emperor surpassed all other magistrates in authority and his sphere of competence was virtually unlimited, his 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.^{^[167]}

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.

2.4.4.2 Decreta

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.^{^[168]} Under normal circumstances, the princeps-emperor rarely interfered with the course of ordinary judicial proceedings. Yet from the start, an extraordinary jurisdiction was bestowed to him and those officials to whom he delegated his powers. Over time, the extraordinary jurisdiction of the emperor and his delegates assumed greater significance until it ultimately superseded the jurisdiction of the regular magistrates and courts.^{^[169]}

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.

Although theoretically the emperor's decision on the point at issue was only binding in the particular case, in practice it was treated as an authentic statement of the law and binding for all future cases. In this way, the emperor in his judicial capacity contributed to the development of fresh legal principles and rules, and a doctrine of judicial precedent evolved. It should be noted in this context that as the emperor lacked expertise in legal issues, an important point of law invoked in a case before the emperor’s tribunal would usually be debated at a meeting of the consilium principis. From the second century ad, this council embodied the most eminent jurists and thus the relevant decision represented the best legal opinion of the day.^{^[170]}

2.4.4.3 Rescripta

The rescripta were written answers given by the emperor to petitions raised by state officials and private citizens. Such petitions might relate to all sorts of matters, but the present context focuses on those that invoked questions of law. 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 were particularly important for the development of private law in the second century ad, when it became customary for judges and private citizens 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.

In this way, a new body of legal rules developed that had assumed voluminous proportions by the end of the second century ad.^{^[171]} Jurists of this period formed private collections of imperial rescripts, large parts of which have come down to us through the codification of Justinian and other post-classical compilations of law.^{^[172]}

2.4.4.4 Mandata

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.^{^[173]} Based on the emperor’s imperium proconsulate, 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 established a body of standing instructions (corpus mandatorum) that acquired general validity for not only state officials but also with respect to the contacts of private citizens with the administrative authorities.^{^[174]} As officials were virtually bound to implement all the received instructions from the emperor, and citizens could invoke these instructions in their favour, the imperial mandata operated in practice as a distinct source of law.^{^[175]}

2.4.5

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

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