1. Emperor and People: The Lex Regia

The Corpus iuris civilis tells a story about how the Roman empire ceased to be governed by the Roman people and changed its constitutional form, forever after to be ruled by emperors.

The lex regia quickly achieved prominence in jurisprudence because it provided a solution to a problem about legislative power within the empire. Code 1.14.12 described the emperor as sole legislator, whereas D. 1.3.9 stated emphatically (‘There is no doubt... ’) that the senate could still legislate. Digest 1.3.32 seemed to corroborate this second passage by explaining that laws were only binding because they expressed the people’s consent; should the people express a contrary will by forming a custom contradicting a law, then that law would be abrogated.⁶ The senate and the people on the one hand thus appeared to compete with the emperor on the other for the power to legislate, and the medieval interpreters of Roman law were thus confronted with a seeming contradiction in their source. The earliest known attempt at a resolution of this tension came from the most influential early teacher of Roman law in medieval Europe, Irnerius, according to whom the apparently discrepant texts referred to different periods in the history of Rome and were thus in harmony with one another. Commenting on D. 1.3.32, Irnerius explained:

This applied in the times in which the people still had the power of laying down the law and so by the tacit consent of the people laws were abrogated.

For well over a century after intensive study of Roman law began, medieval civilians found no compelling reason to articulate a response to the lex regia except in relation to one organization: the Roman empire. The majority of the lawyers thought the transfer was irrevocable, partly because only this interpretation seemed to do full justice to the various declarations scattered throughout Roman law to the effect that the empire was from God; it was as if God had desired an empire and used the Roman people as His instrument to bring it into being. A brief review of the variations on this theme in what survives from twelfth-century jurisprudence reveals that Irnerius’ fundamental assumption went largely unchallenged: for most of the twelfth century, lawyers followed him in maintaining that the lex regia had irrevocably shifted the monopoly of legislative power from the Roman people to the emperor. Digest 1.3.32, with its apparent endorsement of the contrary position to the effect that the people could abrogate a law by not applying it, was inevitably at the centre of debate. According to a school of thought which can be traced back to one of Irnerius’ most influential pupils, Martinus Gosia (who died after 1158), the all-important passage did not allow the abrogation of an imperially sanctioned law by means of popular custom, but rather the abrogation of one written custom by a subsequent custom. On Martinus’ interpretation, the expression lex in the Digest passage referred not to imperial law at all, but to written local custom which he called municipal law or ius municipale⁸ Martinus thus tried to resolve the tension between the ratification of a popular legislative power in D. 1.3.32 and the assertion of an imperial monopoly over legislation in C. 1.14.12 by re-orienting the former passage from the imperial to the municipal level, thereby safe­guarding the imperial laws of the Corpus iuris civilis against all popular challenge and incidentally providing Justinianic authority for the forma­tion of local custom in cities.⁹ Placentinus followed him, underlining that the people had by the lex regia transferred to the emperor the power to make and abrogate law.¹⁰ Several twelfth-century glossators thought the emperor stood in a ministerial relation to the people, with the result that his seemingly extensive powers — expressed most famously in D.

Unanimity on the irrevocability of the lex regia lasted until the late twelfth century and the jurisprudence ofJohannes Bassianus, whose ideas were adopted by his pupil Azo, the most influential lawyer teaching at Bologna around 1200. Bassianus’ solution addressed the apparent tension between those passages in Roman law attributing legislative power var­iously to the emperor and to the people. He argued that the emperor was superior to individuals within the Roman people, but not to the entire people taken as a corporate whole, a doctrine which would one day be summed up in five words: princeps maior singulis minor universis. Bassianus and Azo thus resolved the problem of apparently competing popular and imperial legislative capacities in the Roman law by turning the emperor into the sole legislator in a specific and highly qualified sense.¹² He was the only person who could legislate on his own as a single person, whereas the corporate people still had that power collectively and could therefore abrogate the emperor’s laws and even revoke the powers granted him by the lex regia.¹³ Accursius alluded to the distinction in his gloss to D. 1.3.9 and its assertion that the senate could make law. He noted that Johannes Bassianus had denied the senate the power to legislate on the grounds of the lex regia, and related the argument advanced by others to the effect that the Roman people and the senate could still legislate, since the apparent attribution of exclusive legislative power to the emperor at C. 1.14.12 meant that the emperor was the only person who could legislate on his own, and therefore only excluded other single persons from legislating. Accursius went on to say that the Roman people could revoke what it had granted and quoted an additional argument put forward by an older contemporary, Hugolinus, that the Roman people stood in the same relation to the emperor as a judge to his delegate.¹⁴ Although the dis­tinction between singuli and universi is not mentioned explicitly by Azo’s great pupil in what would become the standard gloss to the Corpus iuris civilis, it is still very close to the surface in the gloss to D.

The jurisprudence of Odofredus, who was an exact Bolognese con­temporary of Accursius and who died in 1265, relies heavily on the dis­tinction. His principal treatment of the relationship between the Roman people and the emperor comes in his commentary to D. 1.3.1, where Papinian defined law among other things as a communal directive and communal covenant of the commonwealth.¹⁵ Significantly, Odofredus immediately understood this commonwealth to be that of Rome, as he explained that law was not what one Roman enacted, but what the Roman people enacted; later, in the same context, he referred to the commune of Rome. 1⁶ Among the obvious objections to this definition of law, Odofredus listed the apparently enduring legislative power of the senate, as well as further texts attributing the same capacity to the praetorian prefect, the praetor, certain privileged legal experts autho­rized to give binding decisions, and the emperor, none of whom amounted to the Roman people. Here his answer is manifestly derived from the arguments of Bassianus, Azo, and Hugolinus but is more explicit than those of his predecessors and more expansive than the terse glosses of Accursius. All of the aforementioned figures legislated by the authority of the Roman people; the expression solus princeps should therefore be taken to exclude other single persons, not the people or senate. For the sake of thoroughness Odofredus also included the praetorian prefect and the praetor - single persons both - in the list, but added that such officials were not exceptions because they acted by the authority of the people.

Several of the more influential French jurists accepted this frame­work of debate, with Jacques de Revigny adding the refinement that the people nowadays empowered to elect the emperor were the Germans, so they should be the ones to revoke the lex regia if need be.²⁰ As evidence that the people could never abdicate its powers irrevocably Jacques cited the removal of power from the Decemvirs mentioned in D. 1.2.2, an observation repeated to the same effect by Pierre de Belleperche.²¹

These examples could be multiplied but are sufficient to make a fundamental point. The glossators, when they attempted to disentangle such passages in the Corpus iuris civilis, did not believe they were confront­ing principles but the record of unique events which had created their own civilization, which as a result they could not regard with the detach­ment which is the hallmark of comparative or analogical method. Had the scholastic lawyers been as unencumbered by historical consciousness as is commonly asserted of scholastics in general, they would not have been so stretched between past and present. The institutional relevance of their texts was inescapable to them. This meant that they were doing more in the course of their exegesis than providing a twelfth-century translation as they applied the law to situations around them. The tension between institutional coordinates and abstraction is the most important character­istic of the medieval Roman-law mind; the stages by which this slackened in the course of the later middle ages constitute cardinal points in the way we plot change in the theory generated by Roman law in this period. Until it became possible to treat the texts of Roman law as abstract principles applicable to all polities, rather than as historical descriptions of the relationship between the emperor and the Roman people alone, Roman law jurisprudence would exhibit a powerful tension because the institutional rootedness of the texts in the real and enduring Roman empire lent urgency and immediacy to legal debate. With some rhetorical enhancement, urgency could become ferocity, and there is indeed a fervour about some twelfth-century civilian jurisprudence.

The phenomenon is magnificently illustrated by one of the most important texts to survive from the twelfth-century law schools: the anonymous treatise known as the ‘Questions on the intricacies of law’ or Questiones de iuris subtilitatibus.²² The Questiones provide an eloquent and early testimony to the central role in much Roman law argument of historical time. The significance of the Questiones consists partly in the fact that they provide a narrative of the fortunes of the Roman law by reference to events which are not themselves mentioned in the Corpus iuris civilis. In the background is the demise of the empire under barbarian pressure and the consequent introduction of a plurality of tribal laws, all viewed from the exalted standpoint of the twelfth-century present when the Roman law enjoys full vigour once more. The validity of the barbar­ian laws is now extinct with their authors; if there is one empire now, there must be one law. The author regards the period since the barbarian invasions (or, possibly, the period since the collapse ofJustinian’s empire) as a dead time of undifferentiatedly illegitimate, fragmentary structures, irrelevant to legal science which is inextricably linked to the unity of mankind. The law is the corporate, collective manifestation of that scientia for which individual Roman authors were each separately famous in their distinct fields, and constitutes one of Rome’s claims to universal hegem­ony now.²³ One or the other is inevitable: either the law is one since the empire is one, or, if there are many and various laws, there must be many kingdoms. Clearly, the author of the Quaestiones prefers the former. Law differs from the other arts because it has a necessary component of power (potestas), not merely knowledge (auctoritas or scientia).²⁴ This is where the Questiones introduce Rome’s second claim to rule: divine approbation. Rome’s power was not the outcome of tyrannical violence, for the Church, who established her principal seat there, would never have chosen a tyrannical or unjust power as her consort. If Scripture relates that it was within Caesar’s authority to order by edict that a census be taken of all peoples, it must be legitimate for him to legislate for them too.²⁵ For this lawyer, then, the law of Rome’s authority derived as much from the history of unrepeatable, ungeneralizable events as from its inherent reasonableness. This conviction lay so deep in the jurisprudence of the twelfth century that to our eyes it can be invisible, especially in the manuals and glosses which were not composed with the literary panache of the Questiones. But to lose sight ofit renders much ofwhat was to follow incomprehensible.