Legislation in the Empire
The constitutional development also had an impact upon the way legislation was made. The republic knew of statutes (leges rogatae), plebiscites (plebiscite), resolutions of the senate (senatusconsulta), and edicts (edicta).
Statutes were still enacted in the first century. However, we do not find any trace of the popular assemblies (comitia) in the second century; and, significantly, after the second century the reference to a person’s voting tribe, which used to be added in names just before the cognomen, is no longer mentioned in inscriptions. Resolutions of the senate are still found in the second century (although certainly needing imperial approval), but with the Severan emperors the emperor’s speech in the senate (oratio in senatu habita) itself appears as a source of law. That implies that a senatusconsultum was superfluous now. Later on it was enough that a letter from the emperor was read in the senate by his representative. Thus, by the beginning of the third century these sources of law were at an end; the plebiscite had already suffered the same fate even under Augustus.Although the emperor had since the beginning of the second century been de facto the sole lawgiver, supreme judge, and administrator of the empire, that certainly did not imply that he had absolute power. It is repeatedly stated that a good emperor subordinates himself to the rule of law,3 and the emperor himself said so: ‘our authority depends on the authority of the law’ (de auctoritate iuris nostra pendet auctoritas).4 This was not mere propaganda and ideology. Practice and legislation were a development of the existing structures rather than brusque innovation, and mostly a response to litigation or problems which had arisen at the lower levels of government.5 Private individuals could also appeal against decisions of officials.
New sources of law now made their appearance.
The instructions given to governors (mandata) gained force of law. New law also derived from the emperor’s jurisdiction and his interpretation of existing law. This made customary law into written law. As supreme judge the emperor could interpret existing rules in his judgments or replies to individual petitions and, if it was of general purport, a new interpretation would be effective. All imperial rulings were now conveniently categorized as ‘constitutions’. According to a constitution of AD 426 (the so-called Law of Citations),6 confirming existing practice, imperial letters sent to officials were to be accepted as general rules if they were general in purport and contained a reference to an edict, for example when they contained an order that they should be published everywhere by edict (this must already have been the case at the beginning of the fourth century) or if they were said to constitute a general rule, a lex generalis. They then acquired the force of an edict (lex edictalis). Thus, we see in the late empire three main sources of formal imperial legislation: the oratio, the lex edictalis, and of course the edict proper (edictum). Although in practice there was no difference between these, the formal differences were still observed. All of them were published: for senatusconsulta it was sufficient to deposit them in the archives; for the others the text was put on display. It is not clear whether imperial legislation became effective immediately upon the speech or imperial approval, on the signing of the letter or edict, or upon publication. The last would lead to the law coming into force at different times in the provinces.In the republic and early principate a governor could issue an edict for his province and by that means create substantive provincial law. Pliny’s letters to Trajan show the measure of Roman involvement in provincial and local affairs.7 Edicts of prefects and governors were still issued and had force in their areas, yet they now could not prevail against general rules issued by the emperor.
References in private law to regional custom or law (mos or lex regionis) exist but not much is known about this: the best documented is a specific rule on manumission for the province of Macedonia before and after the constitutio Antoniniana (AD 212).8 In administrative law there certainly were specific provincial or regional arrangements. Criminal law was based on two pillars: (i) customary law together with a number of statutes on particular crimes; and (ii) the power of the authorities to maintain public order, with considerable discretion in the application of sanctions. There was also some military law.But the main body of law - that is, private law - was customary, largely laid down in the succinct and discrete formulae (actions) of the praetorian edict. It was commentary by the jurists on the edict after its canonization in AD 138 and their attempts to systematize the law in their various writings which made this law into a written law, which also included legislation such as constitutions and mandates to governors. As ‘ancient law’ (ius vetus) all of these had in any case by the beginning of the fourth century acquired legal force: ‘we confirm all the writings of Papinian, Paul, Gaius, Ulpian and Modestinus’.9 Their authenticity had for that reason become a matter of imperial interest.10 Modifications were made by later legislation.
4.