The Provincial Edict

Ancient legal commentaries leave no doubt that the bulk of edictal law pertaining to commercial life was established through the praetorian edict and then developed by the jurists.

As the case discussed in the last paragraph shows, provincial governors and prefects also used their ius edicendi to intervene when needed. Gaius’ lone commentary on the provincial edict (in 30 books, as compared with only 10 for his commentary on the praetorian edict)¹²⁰ suggests that a general provincial edict, distinct from individual edicts applying to distinct provinces, existed by the second century, but that it was not so different from the praetorian edict as to justify separate treatment by any other classical jurist. Like the edict of the curule aediles, it may have been absorbed in the Edictum Perpetuum at some point.

The situation may have been different in the republican period. We happen to know something of Cicero’s own edict as governor of Cilicia in 51/50 BC through his letters to his friend Atticus. In the winter of 50, Cicero was approached both by the Salaminians of Cyprus and by M. Scaptius and P. Matinius, agents of M. Iunius Brutus, for the recovery of a debt owed by the Salaminians to Brutus. The disagreement bore on the interest to be paid. Cicero stated that he had promised in his edict that he would not allow more than 12 per cent annually compounded interest whereas Scaptius was asking for 48 per cent simple interest. 1²1 Scaptius relied in opposition to Cicero’s edict on a senatorial decree passed a few years before (56 BC) compelling the governor of Cilicia to honour a bond which was in blatant contravention with the lex Gabinia of 68/67 BC forbidding Romans to lend money to provincial communities. The details of the story and its outcome need not concern us here.

Cicero obviously felt constrained by the terms of his own edict (described in a later letter),¹²² although not by those of his predecessor in the position of governor of Cilicia. Cicero’s provincial edict, kept intentionally short, was derived from the Asiatic edict of Q. Mucius Scaevola (consul in 86 BC) and divided into two parts: one was considered exclusively provincial and dealt with civic accounts (rationes civitatum), debt, rates of interest, contracts, and regulations applying to publicans; the other part contained the usual edictal material and dealt with such things as inheritance, possession, and sale of goods. Some rules remained unwritten, but Cicero boasts that he would let provincials use their own laws in their own courts, thus maintaining the fiction of restored autonomy. In disputes between publicans and provincials, the governor’s protection of the provincials amounted to no more than a temporary measure, advertised as such in order to put pressure on the Greeks to settle as quickly as possible: after a fixed deadline the provision of the provincial edict regarding the rate of interest would give way to the terms of their agreement. Provincial governors, like aediles and praetors, used their ius edicendi both before and during their term of office, enabling them to react to unexpected circumstances and problems while at the same time exposing them to undue pressure on the part of groups and individuals and to the risk of self-contradiction.1²³ In addition, local customs (mos regionis) and laws could be taken into account.¹²⁴

The combined creativity of curule aediles, urban and peregrine praetors, and provincial governors provided ample material for the jurists to adjust the law to the needs of the business community in a growing and increasingly interconnected Mediterranean world. The flexibility of law-making through temporary or permanent edicts combined with a constant, recurring, and diverse exposure to neighbouring legal systems, especially in the Greek east, and blended new ingredients into the old Roman legal system.

Cicero’s Salaminian issue brought him into contact with the Greek institution of syngrapha, which (like the better attested chirographum) eventually shifted into Roman law as a form of written contract in addition to real, oral, and consensual contracts.¹²⁵

Unsurprisingly, the Greeks were mostly influential in the field of maritime law. In spite of what the Romano-Carthaginian treaties of the early republican period (cf.above, 216-17) may suggest, the Romans were late - in relation to the Greeks and Carthaginians - in developing trade by sea and their own sea power. The Mediterranean world, especially in the east, was already bursting with commercial activities in the classical and Hellenistic periods. Navigation was regarded as being - and to some extent was - a dangerous activity, and the Greeks had devised some legal institutions aimed at minimizing the financial risks attached to it: the bottomry loan (foenus nauticum) and compensation for jettison of property (iactus) are two forms of maritime insurance in which the Roman jurists elaborated apparently pre-existing arrangements familiar to the trading community. How these arrangements passed into Roman law - provided they were actually borrowed and not simply reinvented as the logical solution to a universal problem - is a mystery, but it is fairly clear that the edict was not the way.¹²⁶

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Source: Johnson David (ed). The Cambridge companion to Roman Law. Cambridge University Press,2015. — 554 p.. 2015

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