Law and Politics in the Dominate: A Look at the Late Roman Empire
Section II: Law in the Dominate
1. Sources of Law in the Dominate
In the Dominate, the emperor’s will became the sole source of law. Legal innovations were introduced through imperial constitutions (leges), unlike earlier practices where proposals needed approval from popular assemblies. These constitutions were typically called edicta or leges generales, and their texts, discussed in the consistorium, were either addressed directly ad populum (to the people) or to the Senate. A key example is Diocletian’s Edictum de Pretiis Venalium Rerum (301), which fixed maximum prices for goods and services, demonstrating the emperor’s legislative power. After Constantine, the empire’s legislative unity diminished, as an emperor’s laws generally weren’t recognized in another’s territory without confirmation. Rescripts, initially responses to specific cases, lost their general validity. Less important were decreta. Pragmaticae sanctiones or pragmaticae leges varied in content, addressing specific parts of the empire or communities. Prior law (ius) remained effective only if not modified by imperial constitutions. The emperor’s will became the primary source of law, meaning iura were effective only through imperial sanction. This period saw a progressive vulgarization of law, a sociocultural phenomenon impacting private legal spheres, particularly in the West. The term “vulgar” doesn’t strictly apply to later imperial constitutions, but can refer to codified Roman law in barbarian contexts, such as the Visigothic Code (Codex Euricianus) or the Edict of Theodoric.
2. Legal Literature (Mid-3rd Century to Constantine)
The last notable jurists were Hermogenianus and Arcadius Charisius, who compiled the Codex Hermogenianus and the Epitome Iuris, respectively. Jurisprudence of this era produced no new major works. Reprints of classical jurists’ works became common, facilitated by the shift from scrolls (volumina) to the more manageable codex format.
Unofficial Rescript Collections: Gregorian and Hermogenian Codes
The late 2nd century saw the emergence of rescript compilations. The Codex Gregorianus (c. 292), though its earliest referenced rescripts date back to Hadrian, collected imperial pronouncements up to 292. Despite its unofficial status, it was widely used throughout the empire. The Codex Hermogenianus, published in 295, compiled Diocletian’s rescripts from 293 and 294.
Mixed Collections of Leges and Iura
Collections of legal fragments (iura) and imperial constitutions (leges), arranged by subject, were created for practical use in education and libraries. Two known examples are the Fragmenta Vaticana and the Collatio.
Section III: The New Political Order
1. The Dominate and the Division of the Empire
After the Severan dynasty’s fall, recovery began under Aurelian and solidified under Diocletian, who established an absolutist order that reached full development under Constantine. In this “Dominate,” the emperor was not merely the first citizen but the lord of his subjects. Republican remnants faded; popular assemblies became historical memories, and consuls, though still appointed, held no real power. The Senate’s membership expanded. Diocletian aimed to restore imperial unity, focusing on military, bureaucratic, and economic reorganization. He established a system where two Augusti (senior emperors) each appointed a Caesar (junior emperor) as successor. After Constantius’s death, his son Constantine emerged as sole ruler after a period of conflict. Constantine’s pivotal decision to establish a new capital in Constantinople (the “second Rome”) had lasting consequences. His death triggered succession struggles, widening the East-West divide. Though emperors like Julian and Theodosius I briefly reunited the empire, the division became permanent after Theodosius’s death, with each half recognizing the other’s laws.
2. Imperial Administration
The Dominate saw a thorough restructuring of imperial administration, creating a hierarchical, military-style system. The emperor oversaw separate civilian and military administrations. Key central offices included the Magister Officiorum (head of imperial secretaries and the emperor’s guard), the Quaestor Sacri Palatii (legal advisor), the Comes Sacrarum Largitionum (treasurer), and the Comes Rerum Privatarum (manager of imperial estates). These officials, along with the praetorian prefects and magistri militum (commanders of cavalry and infantry), formed the emperor’s advisory council (consistorium). Provinces remained the basic territorial unit, but were grouped into dioceses and then prefectures. Provincial governors held broad administrative and judicial powers. The Christian Church developed its own independent structure mirroring the empire’s administrative divisions. The autonomy of cities (civitates) was curtailed by imperial appointees (curatores civitatis). In 368, Valentinian I created the defensor civitatis to protect the lower classes from abuses. Economic hardship meant city council members (decuriones) became collectively liable for taxes, making the once-honored position a burden and leading to its becoming compulsory and hereditary.