Law-Making in the Empire
(1) Legislation in the Empire
(a) The Continuing Role of the Assemblies
As we saw in Chapter 1,[199] when Augustus, the first emperor, established his authority as leading man in the Roman state, he was keen for political reasons to emphasise continuity rather than change.
His position depended on him being seen as the restorer and protector of the Republic. Accordingly, he worked so far as possible through existing, Republican institutions. During his reign, significant use was made of the assemblies in law-making. This was largely for show, though, and the use of the assemblies faded as the new political realities of the Empire became more firmly established. The last significant lex on a matter of private law was probably around AD 28.(b) The Ius Honorarium
In a very similar way, and for much the same reasons, the importance of the praetor as a source of legal development also declined in the Empire. There were simply more straightforward ways for emperors to change the law, and no emperor would be likely to tolerate a praetor who presumed to act too independently in introducing his own innovations. In any case, as with other magistracies, appointment as praetor came to be seen as more of a mark of imperial favour than anything else. Acting on the instructions of the emperor Hadrian, in around AD 135, thejuristJulian compiled the Edictum Perpetuum (‘Perpetual Edict'), which came to be seen as the final version of the praetor's edict. The praetor continued to issue the edict each year, but its role as a vehicle for significant legal innovation was by now long past.[200]
(c) Senatusconsulta
The position of the Senate makes an interesting contrast with the other RepubliÂcan institutions. As we have seen, the Senate had during the Republic no formal authority over the legislative process. Such authority as it exercised was political in nature rather than legal.
During the early Empire, however, it benefited from close association with the emperor. The Senate came to be seen as the primary legislative body, initially through instructions to magistrates that were to be incorÂporated into their edicts. It was probably around AD 130, under Hadrian, that a senatusconsultum was first directly effective. In any case, the Senate's role was rarely more than nominal, and by the end of the second century AD there was not even the pretence.(d) Imperial Legislation
The political reality of the Empire was that the emperor was the sole source of authority, and in time practice came to reflect that underlying reality. For most of the Empire, the sole source of new law was pronouncements of the emperor, called constitutiones (singular constitutio). The doctrine was: that which has pleased the emperor has the force of law.[201] This must have been a gradual process, for all that Gaius, writing in the second century AD, tells us that the position had ‘never been doubted'.[202] Certainly, before the end of the classical period it was well accepted that an imperial pronouncement made binding law. The only excepÂtion was where the pronouncement was intended to relate to a specific situation without creating a precedent, for example where the emperor wanted to apply exceptional indulgence or punishment to an individual.[203]
The scope of imperial pronouncements went beyond what we would consider to be legislation. In the modern world, we make a distinction between interpreÂtation of the law and law-making. The former is the province of the courts, the latter of the legislator. This distinction does not apply to Roman emperors. A proÂnouncement of the emperor decided the law, even though it might be expressed as simply interpreting the law. Most pronouncements were responses to specific legal questions. The extent of the emperor's personal involvement varied — some were bound to be more interested than others — but typically emperors relied on expert legal advisers to formulate such responses.
Imperial pronouncements came in various forms. For example, as a magisÂtrate, the emperor could issue edicts (though, unlike other magistrates' edicts, those of the emperor were unlimited in their potential scope). The emperor could also issue mandata, instructions to officials on how they should discharge their duties. His judicial decisions, called decreta, were an important source of law: while in form they were simply addressed to the parties, the fact that they had come from the emperor gave them special authority. Records were kept of the emperors' decreta, and they came to be seen as binding precedents. Finally, rescripta were answers to questions or petitions, either from officials (dealt with by the office ab epistulis) or private citizens (dealt with by the office a libellis). These offices were staffed by legal experts, and so were an important vehicle for the interpretation and development of the law.
F.