THE DOMINATE: THE SOURCES OF LAW
As we have observed, in the fourth century AD the imperial system of government completed its transformation into an undisguised autocracy that received its definite form under Emperors Diocletian and Constantine the Great. The entire sovereignty of the Roman people was deemed to be transferred to the emperor, who existed as the sole authority in all spheres of government: legislative, administrative, judicial and military. On principle, the emperor as an absolute monarch was omnipotent and his activities in ruling the state were not subject to any constitutional constraints. However, the emperor actually exercised his governmental functions and powers with guidance from established substantive and procedural norms. Although 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.
Under the Dominate, the emperor emerged as the sole source of laws and also their final interpreter. Although the old leges and senatus consulta remained valid, the ‘pluriformity’ that characterized legislative activity during the Principate and the Republic ceased to exist. The unchallengeable legislative supremacy of the emperor conformed to the essence of the new system of government, whose absolutist nature barred constitutional or any other legal limitations.1 The imperial enactments (constitutiones) with their diverse appellations of edicta, rescripta, decreta or 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), in contrast to the old law (ius vetus) as traditionally interpreted by the jurists during the Principate era. This new body of law differed markedly from the law of the classical period with respect to both substance and form. The prevailing social and economic conditions, and the enhanced importance of the imperial civil service induced the requirement for new regulations. The existing legal system was unprepared for these essentials, and thus the great majority of imperial constitutions pertained to public law and fiscal policy matters. Furthermore, most of the new imperial law was not strictly Roman in character but exhibited the influence of foreign (especially Greek) institutions. Since the era of Constantine the Great, this law was also moulded by ideas derived from Christian ethics. Generally, the legislation of the Dominate displays elements of so-called ‘vulgar law’: statutes are composed in an inflated, grandiose style while their provisions have an ill-arranged, vague and unrefined form; and these are often deficient in affording an exhaustive and unambiguous determination of the relevant issues. At every turn, one can detect an absence of the scientific preparation that is a necessary prerequisite for all sound legislation. While the quality of the imperial laws declined, their quantity rapidly increased as often conflicting enactments were produced in great profusion, resulting in a chaotic mass that had little practical use. Since the late third century AD, the government endeavoured to instil some order into the mass of laws claiming validity in the empire. In AD 438, Emperor Theodosius issued an official code of imperial law, but the attempts to create order out of chaos only attained a fair measure of success with the reign of Justinian (AD 527–65).2
As previously noted, during the Principate era the elected judicial magistrates and the jury-courts in criminal matters were gradually replaced by officials appointed by and acting as delegates of the princeps-emperor. The idea of ius as something which a magistrate would assist a Roman citizen to obtain remained a dominant one; however, after the formulary procedure was entirely superseded by the cognitio extraordinaria the manner whereby the magisterial imperium was initiated had completely changed. Under the Dominate the administration of justice, like all other state activities, became thoroughly bureaucratized. Imperial officials practically assumed all traditional judicial functions, adjudicating in the name of the emperor as his representatives. The pattern of decentralization governing the administration of the empire also presented itself as the natural frame for the judicial organization, concurrently reducing the caseload of the emperor’s court. Besides the regular courts, special courts were established to deal with particular matters and categories of persons. Moreover, from the time of Constantine the Great, a significant part of private law (especially family law) was increasingly encompassed by the jurisdiction of Church organs. Moreover, for the first time in Roman history an elaborate system of appeals was developed that corresponded closely to the empire’s administrative structure.
As we have discerned, the work of the jurists during the first two centuries of the Principate was the most creative element in Roman legal life. However, in the third century AD jurisprudence entered a period of rapid decline and the responsa prudentium soon ceased to be a living source of law. Under the Dominate, jurisprudence was no longer the driving force it had been in the past and the works of the classical age were treated as a body of finally settled doctrine. The demise of classical jurisprudence derived from a combination of factors: the cultural decay precipitated by the catastrophes of the third century AD; the increasing absolutism of the emperor, who sought to install himself as the sole source of legal developments; and the growing influence of Christian thinking that had an ethical orientation with little use for the subtleties of the secular jurisprudential techniques. Other changes within the Roman legal system also accelerated the decline of jurisprudence, such as the final consolidation of the praetorian edict, the obliteration of the distinction between ius civile and ius honorarium3 and the gradual abandonment of the Roman tradition of distilling legal norms from the body of individual cases in favour of a system where decisions in individual cases were controlled by previously formulated general rules. However, it cannot be asserted that the decline of classical jurisprudence was tantamount to a collapse of legal culture in general. Lawyers were still essential in the imperial court, the various government departments, and those agencies in Rome and in the provinces that governed the administration of justice. In the late third and early fourth centuries AD, many state officials in Rome were men steeped in the classical tradition and they sought to defend this tradition against the inroads of eastern and vulgar legal influences.4 However, it is clear that in the late imperial era the social position of the lawyers and the character of their work had radically changed. The new lawyers no longer worked as individuals who, as members of the senatorial aristocracy, experts in law and representatives of a great and living tradition, presented opinions on legal problems and recorded them in writing. These lawyers were mere state officials, anonymous members of a vast bureaucratic organization, who simply prepared the resolutions for issue in the name of the emperor. In the fifth century AD, legal scholarship experienced a period of growth centred around the law schools of the East. However, unlike the classical jurists, the law teachers of this period did not deliver any new opinions on questions of law, nor did they develop a truly scientific jurisprudence. Their primary concern was rendering the works of the classical age more accessible by new publications, summaries, anthologies and commentaries. Despite their lack of originality, these jurists introduced a new insight into the operation of Roman law and preserved the bulk of the material which the classical jurists had left to posterity.
Another remarkable phenomenon of the later imperial period was the so-called ‘vulgarization’ of Roman law. The disappearance of the division between civis and peregrinus after the enactment of the constitutio Antoniniana in the early third century AD entailed the fading of the old distinction between ius civile and ius gentium: in theory every free man in the empire was now a citizen governed by the same, universal, Roman law. However, local systems of law prevailed in the form of custom that was now recognized as an authentic source of law on an equal footing with imperial legislation. Roman law and these systems mutually infiltrated each other with the former losing many of its earlier, ‘purely Roman’, characteristics. The law that actually applied in the provinces was a mixture of this ‘debased’ Roman law and local practice, varying from area to area but lacking the subtlety and sophistication of the classical system. In the West, the ‘vulgarization’ of Roman law attained its peak in the fifth century AD and it provided the historically important link between classical law and the legal systems of the Germanic successors to the Roman Empire.
The end of this period of Roman legal history is marked by a work that emerged as the final statement of Roman law: the codification of Emperor Justinian. As the ancient world dissolved, Justinian successfully assembled, in an enduring form that could be passed on to the future, the written heritage of Roman law spanning hundreds of years of legal development. Originally issued in the years AD 533–34, the Justinianic codification comprised three parts: the Institutes (Institutiones), an introductory textbook on Roman law intended for student use; the Code (Codex), an extensive collection of imperial constitutions; and the Digest (Digesta), containing a large number of excerpts from the works of the classical Roman jurists. To these three books were subsequently added the new statutes issued by Justinian and his successors (Novellae leges). Justinian’s codification both completed the development of Roman law and became the principal medium whereby Roman law was transmitted to the modern world.
In the Dominate period the emperor was endowed with the full power to create law, nevertheless the exercise of this power had to be regulated to ensure that all law-making acts were genuine manifestations of the emperor’s will. Among the four types of imperial constitution that had developed during the Principate (edicts, rescripts, decrees and mandates), the edicts (edicta imperatorum) or leges generales were the most important as they embodied legal norms of general application.5 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 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 (either of Rome or of Constantinople, depending on the circumstances).6 When an edict was addressed to the senate, no senatus consultum was passed to confer formal validity on the emperor’s wishes, which 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. The drafts of legislative enactments were 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 into two parts, legislative measures were almost invariably issued in the name of both Augusti, even when they emanated from only one of them,7 although, obviously these measures had no effect within the realm of the other Augustus without the latter’s consent. In fact, it often transpired that an enactment issued by the emperor of the East was adopted by the emperor of the West, but the reverse ostensibly did not occur.
As the emperor acquired the full power of creating law directly by engaging the leges generales, indirect law-making by means of rescripta, decreta and mandata essentially lost its earlier importance. The rescripta (now also designated leges speciales), i.e. responses of the emperor 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 reign of Diocletian,8 but thereafter their use fell largely into disrepute. The incompetence and corruption that took hold among government officials apparently enabled many petitioners to obtain rescripts that upheld totally unsound legal views, and problems were exacerbated by the real danger of forged rescripts. Several complicated and often inconsistent enactments were issued during this period to curtail the abuses connected with the employment of rescripts, but these attained little success. In AD 315, Constantine ordained that a rescript was invalid if it deviated from a lex generalis.9 Moreover, a law issued by Arcadius in AD 398 stipulated that a rescript was only binding in the individual case that it concerned.10 Pursuant to this enactment, rescripts were no longer regarded as generally valid and thus their role as a source of new law apparently ended. However, Emperors Theodosius II and Valentinian III in AD 426 sought once more to make imperial rescripts an indirect law-making force by decreeing that, as it constituted a declaration of a general principle in an individual case, a rescript could be considered generally binding.11 This view seems to have prevailed during the time of Justinian’s reign in the sixth century AD.
The mandates (mandata) were originally directions of the emperor to provincial governors and other state officials. These essentially fell into disuse during the Dominate as they were incorporated into the edicts or leges generales