LEGISLATION 1. The forms of legislation

In the course of the principate the traditional forms of legislation were ousted to make way for the imperial constitutions. The old leges and senatorial decrees remained valid in the dominate, but the constitution then became the only source of new law. Of the four types of constitution that had developed since Augustus—

edicts, mandates, rescripts and decrees—the edicts from the fourth century onwards were the most important. Usually the edicts, now also called leges generates, were prepared by the minister of justice and discussed in the consistorium. An edict was generally issued in the form of a letter addressed to the praetorian prefect or to another senior official who then had to ensure that it was publicised. An edict could, however, be directed to a particular people or group of people, for instance to the inhabitants of a certain town. The mandates, which were originally instructions from the emperor to his officials, were incorporated in the edicts.

The rescripts and decrees, now referred to as leges speciales, lost their separate identity. The rescript, in which the emperor or his chancery solved a juridical problem submitted by a citizen or an official, continued to be an important source of law until the time of Diocletian.² In 315 Constantine decided that rescripts that deviated from the prevailing law were invalid. From the end of the fourth century rescripts were no longer considered to have any general validity, so they finally ceased to be a source of new law.

The decrees, which were originally decisions of the emperor taken

THE DOMINATE (284–565)

as judge of first instance or of appeal, gradually disappeared as the emperors more and more often left their officials to deal with such matters.

Under the dominate, however, two new types of constitution appeared, namely the adnotatio and the sanctio pragmatica. The sources do not tell us precisely what an adnotatio was. The term leads one to assume that it was a decision of the emperor in connection with a petition and was placed in the margin of the petition. If this assumption is correct the adnotatio must have served almost the same purpose as the earlier rescript. No clear definition can be given of the sanctio pragmatica either. It generally consisted of a reply by the emperor to a petition, but this reply sometimes had a general purport. The best-known example of such a constitution is the sanctio pragmatica pro petitione Vigilii in which Emperor Justinian, at the request of the bishop of Rome, Pope Vigilius, solved a number of juridical problems that had arisen following the re-conquest of Italy and in which Justinian also introduced his legislation into Italy.

The administrative division of the empire into two parts, which had occurred materially since the death of Constantine in 337 and had been formalised since the death of Theodosius I, also led to a division in the legislation. Even when Theodosius I actually ruled alone for several years in the whole empire (because the West-Roman emperor Valentinian II was so young) he enacted separate laws for the two parts of the empire. In fact, it often happened that the emperor of the western part took over a constitution from his East-Roman colleague, but the reverse did not occur. The fact that after 395 the names of the two emperors still appeared in the heading for a law is probably because in a political sense the empire was still regarded as one unit.

12.2.2. The content of the legislation

Legislation in the dominate shows the intrusion of non-Roman elements and of vulgar law into official Roman law. Since Roman citizenship had been granted via the constitutio Antoniniana to all free inhabitants of the empire at the beginning of the third century, all these people could now participate in Roman law. However, local laws remained in force. As a result Roman law began to influence local laws and in the long run local laws also influenced Roman law. When in the fourth century the intellectual centre of

the empire shifted from Rome to Constantinople, all kinds of legal concepts particularly of Greek origin appeared in the official Roman legislation. This influence is even visible in the law of persons and in family law, although traditionally that is the part of the law that changes least. For instance, Constantine began to put restrictions on the typical Roman concept of patria potestas by acknowledging that in one case persons in potestate could have proprietary rights: when a mother had bequeathed something to her children who were still under the potestas of their father, the father would no longer automatically become the owner but the children would get it (C. 6.60.1). Constantine was apparently making concessions to the much more restricted concept of paternal authority under Greek-Hellenistic law. Later emperors went even further. Justinian finally decreed that a child in potestate became owner of everything it acquired except when it acquired something from its father (C. 6.61.1).

Another difference with regard to the content of the legislation is that from the fourth century elements of vulgar law penetrated into official law. It is self-evident that in every sophisticated legal system the over-simplified interpretation of the law by lay people differs from the official law. This was the case in the Roman empire too, not only in the provinces but also in Italy and in Rome itself, and even under the principate which was the Golden Age of Roman law. The fact that aspects of vulgar law worked their way into official law should not necessarily be regarded as reprehensible and objectionable. The changes which were introduced in the later empire as a result of the vulgarizing trend satisfied the needs of the times. Examples of such changes are: the conferring of a binding force on every agreement confirmed in writing so that people were no longer tied to the traditional way in which agreements had to be drawn up.³ Another change was the removal of the distinction between ownership and usufruct through the recognition of a kind of joint ownership. Nevertheless it is generally agreed that partly as a result of the vulgarization of the law, the intellectual level of the law was lower than in the late republic and the principate. The most striking example of the decline is the blurring of the distinction between ownership and possession, which was and still is typical of lay-thinking about law.⁴

The decline occurred in both the eastern and western parts of the empire, but after the final division in 395 vulgarization

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prevailed, particularly in the West-Roman empire. There, for instance, an interpretatio was often added to laws which summarized the content of the law in question. Now the laws already deviated from the classical law in various respects, but the interpretation sometimes underlined the content of the law in question in such an awkward manner that the summary totally contradicted classical law. In the East-Roman empire, on the other hand, the intellectual level had not declined so much and in the course of the fifth century classical law, as it had existed in the principate, could again be the centre of attention. Admittedly, this so-called classicist tendency was to be found mainly in the law-schools of the East-Roman empire, but this did not alter the fact that legislation there was at a higher level than in the West-Roman empire.

12.3. THE ADMINISTRATION OF JUSTICE