THE PROCESS OF LEGISLATION
Most of the extant texts are legislative, and all of them were issued by the emperor. Their binding legal status follows from this, in keeping with the rule of Gaius: “A law of the Princeps is what the Emperor determined in a decree or an edict or by letter.
There is no question that it has the force of law, as this Emperor received his ‘imperium’ lawfully.”2 And in a sharper formulation by Ulpian, which fits well the absolute character of the emperor’s rule from the fourth century until Justinian: “That which seems right to the Princeps has the force of law.... Therefore, whatever the Emperor declared in a letter or a ‘subscriptio’ or a decree in a legal decision, or declared outside of the Court of Law, or ordered in an edict—is clearly law.”3 The emphasis which these formulations placed on the legislative force of imperial documents is insufficient to determine the type of the law and the conclusions which are to follow regarding its force, that is, its applicability in terms of time, location, or with regard to subject.The editors of the Theodosian Code were originally instructed in 429 to gather all the laws given from the time of Constantine “based upon the force of an edict or upon sacred generality” (CTh 1:1:5), so that one might assume that all of the texts of the Theodosian Code were taken from either ‘leges edictales’ or ‘leges generales’. However, in the instructions given in 435 the framework was expanded to include “all those laws which were issued in edicts and all the general laws, as well as those laws which the Emperors commanded to enter into force and to be published in specific provinces or locations” (CTh 1:1:6), the reference being to the emperors beginning with Constantine. The later instructions thus leave room for the argument that the Theodosian Code included both laws in force generally throughout the Empire, as well as those of a limited local validity.
These instructions excluded from the totality of laws to be gathered those of a strictly personal character, that is, those documents issued by the emperors to private individuals without being promulgated, indicating that they had no wider incidence.From the legal point of view, one should distinguish between the different forms of imperial legislation4—principally, ‘decretum’, ‘rescriptum’, ‘mandatuum’, and ‘lex generalis’—and one is able to make a rough classification of the texts dealing with the Jews, despite the elimination of certain important details from the texts in the course of codification.
The number of ‘decreta’, that is, rulings in civil and criminal law made by the emperor in his judicial capacity, is very small, whether as final verdicts or as rulings made during the course of a legal proceeding. The document given by Caracalla to Claudius Tryphoninus in the year 213 (No. 3) may be such a ‘decretum’.
The number of ‘rescripta’—replies to requests by individuals or by administrative personnel who desired the opinion of the emperor on legal questions or special problems—is likewise very small. We learn from a statement by Modestin that Antoninus Pius ruled on a question concerning the participation of the Jews in liturgies through a ‘rescriptum’ (No. 1), but the text of this ‘rescriptum’ is not extant. The document addressed by Diocletian and Maximian to Juda in 293 (No. 5) was apparently a ‘rescriptum’, as was the reply of Justinian in 536/537 to Florus, Comes of the Private Property (No. 63), as well as his reply in 537 to Johannes of Cappadocia, the Praefectus Praetorio of the East (No. 64). The documents addressed to “Annas Didascalus and to the Heads of the Jews” in 415 and 416 (Nos. 42 and 43) may also have been formulated as ‘rescripta’.
In some of the texts one can observe several of the characteristics which a law issued in 426 (CTh 1:14:3) had determined to be ‘lex generalis’: it being explicitly defined as such (Nos. 7, 35, and 40); its widespread promulgation and observance throughout the Empire (Nos.
10, 54, 56, and 65); and its issuance as an “edict” (the Latin version of the two laws of Marcian [No. 55]).The vast majority of these texts cannot be precisely classified, and would seem to belong to one of two classes of legislation: the ‘mandata’, consisted either of legal and administrative instructions to officials, not intended for broad publication, or published instructions in the form of edicts of the governors to the lower echelons of the administration or to the general population; and Empire-wide laws, as well as laws limited to specific regions or groups within the population, which were also published in edicts of the governors.
During the process of codification, the editors deleted the preambles to the laws, which usually included details of the circumstances of the legislation and its motives. Despite this, we are able to infer from the terminology used in several of the laws and from an analysis of their contents that, at times, the initiative for these laws originated in circles outside of the Imperial court. The Jews are explicitly mentioned as those who address ‘querellae’, “complaints” (No. 20), and ‘preces’, “petitions” (No. 48) to the emperor, in order to receive aid or protection. In one case, a group of Jews turned to Justinian with the request that he intervene in an internal dispute concerning the language of the reading of the Torah in the synagogue (No. 66). It seems plausible that the privileges granted to “Annas Didascalus” and to “the heads of the Jews” in the years 415 and 416 (Nos. 42 and 43) were granted in response to a request by the Jews, similar to the legislation made in response to requests on the part of the Church in Africa (Nos. 38 and 62). The term ‘comperimus’, “we learn,” and similar terms appearing in several laws, indicate that information was transmitted to the court together with a request to intervene prior to the issuing of certain laws, even though the petitioners are not specifically mentioned there.
Such a situation is indicated by the phrasing of the laws concerning the persecution of apostates on the part of the Jews (No. 8), the exemption of Jews from curial obligations in Apulia and Calabria (No. 29), and the prohibition of synagogues (No. 21). One may also include within the category of legislation initiated by circles outside of the court the response to requests of officials who asked for the decision of the emperor in difficult cases, such as No. 60, in which the reason given is the many requests on the part of the judges, and the granting of ‘rescripta’ which were sent directly to the petitioners.The Quaestor Sacri Palatii, one of the highest court officials from the fourth century onwards, usually a jurist and rhetorician by profession, was responsible for the formulation of the laws. He was assisted in this task by officials of the ‘scrinia’, the “offices,” who were subject to the Master of Offices. “General laws” were usually discussed in the ‘consistorium’, the private council of the emperor, composed of the most senior officials. In a law passed in 446 (CJ 1:4:8) it was decreed that this was a required stage in the process of legislation of a ‘lex generalis’. The process of legislation, strictly speaking, was terminated once the emperor added, in his own hand, the address at the beginning of the law and the greeting at its end.
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