“There is a people on earth that wages wars for the freedom of others, at its own expense, its own toils and risk—and stands firm not just for those at its borders, or peoples in its near vicinity, or those joint by connecting lands, but crosses the seas so that there would be no unjust rule in the world and justice, and divine and human law would everywhere prevail.” – Livy, 33,33
For Romans, justice was the value that most legitimised their right to rule other peoples. Internally, it was a leading political principle that justified the power entrusted to emperors and senatorial, equestrian, and decurional elites. Ιt addressed elites, city-dwellers, land-holders and peasants from widely different ethnic, cultural, and social backgrounds as stakeholders of a social order governed by law and justice.
The ‘rule of law’ imposed by Rome was eventually—if not initially—accepted as legitimate by the vast majority the empire’s inhabitants.
Law and Justice in the Judicial Decisions of Septimius Severus
At the end of his description of the reign of Septimius Severus (193–211CE), the Roman senator and historiographer Cassius Dio recounts the daily routine of the emperor and describes how he managed the affairs of state in peacetime. He mentions that Severus used to spend a considerable part of his day hearing cases and that he did so most excellently:
“The following is the manner of life that Severus followed in time of peace. He was sure to be doing something before dawn, and afterwards he would take a walk, telling and hearing of the interests of the empire. Then he would hold court, unless there was some great festival. Moreover, he used to do this most excellently; for he allowed the litigants plenty of time and he gave us, his advisers, full liberty to speak. He used to hear cases until noon” – Dio, Hist. 76(77).17.1–2
Severus’ conduct was nothing out of the ordinary: it has been accepted generally that the administration of justice was one of the most important tasks of Roman emperors. The administration of justice created an important instance of close contact between the ruler and his subjects and offered the emperor ample opportunity to present himself as their benevolent and just ruler, who showed a keen interest in the (sometimes petty) problems and concerns of regular citizens. Accordingly, the way an emperor dealt with the administration of justice was a substantial aspect of his public image and the general perception of his reign. At the same time the administration of justice gave the emperor a stage to communicate his power and more in particular assert his position as the ultimate source of law and justice within the Roman legal system. He was the final and sole authority on questions of the content and meaning of the law and on how it should be applied in a specific case.
Most of our information on imperial court cases originates from literary descriptions similar to Dio’s description and has a rather anecdotal character. However, in the case of Septimius Severus we have another source available. Scattered throughout the Digest are fragments from two remarkable works by the Roman lawyer Paul, which contain reports of judicial decisions taken by the emperor Septimius Severus. The works were originally entitled ‘Three Books of Imperial Judgments’ (Decretorum Libri Tres, hereafter referred to as ‘the Decreta’) and ‘Six Books of Imperial Decisions made in Judicial Proceedings’ (Imperialium Sententiarum in Cognitionibus Prolatarum Libri Sex, hereafter referred to as ‘the Imperiales Sententiae’).
Since Paul served as one of Severus’ legal councilors during the imperial judicial hearings, he had first-hand knowledge of the proceedings in Severus’ court, explaining the high level of detail of many of his descriptions. Not only does he state the real names of the litigants, the facts and the imperial judgment, but Paul also often elaborates on the proceedings and sometimes even mentions the deliberations between the emperor and his advisory council (consilium) afterwards. His reports therefore provide us with a unique insight in the imperial court proceedings and the judicial decision making-process.
It has generally been contended that Paul published his collection of imperial judgments for the benefit of the legal practice. From his reports emerges a clear picture of Septimius Severus as a conscientious and benevolent judge, which fits strikingly well within the traditional image of the good ‘emperor judge’ that can be found in various literary sources, such as Tacitus, Pliny the Younger, Suetonius, Cassius Dio and Herodian. Paul’s collection of imperial judgments should therefore not be perceived as a traditional legal publication, but as a unique piece of legal writing with a specific political purpose.
The Imperial Administration of Justice
The imperial competence to adjudicate cases goes back to the age of Augustus. The jurisdictional powers of the emperor were already well established at the time of Severus’ reign. From the second century onwards, the emperor had jurisdiction in both criminal and civil cases and could act as a judge of first instance or accept appeals against sentences of the lower courts. The procedural hearing at the imperial court took place in the form of a cognitio extra ordinem and was therefore not governed by the traditional Roman law of civil procedure, as codified in the leges Iuliae iudiciariae. In principle, this meant that the emperor could shape the procedure at his court in any way he saw fit. The main actors in the imperial courtroom were the emperor, who was usually seated on a tribunal, and the parties and their legal representation. In addition to this, literary sources often explicitly mention the presence of a consilium, an advisory board of jurists and notable citizens, assisting the emperor in performing his judicial duties.
The consilium advising the emperor in the performance of his judicial duties might have consisted of several regular members, who were probably all jurists. Especially for the reign of Septimius Severus, both legal and papyrological sources do indeed seem to point in this direction, suggesting that Paul might have been one of these regular members of the Severan judicial consilium.
During the hearing, the emperor was required to give the litigants or their lawyers the opportunity to assert their claims and defenses, plead their case and present legal and factual evidence to substantiate their argument. In addition, he interrogated the parties or even entered into debate with them if he wished to do so. After both parties had sufficiently explained their point of view, the emperor withdrew with his consilium to deliberate on the case.
During these deliberations, a conscientious emperor asked the opinion of the members of his consilium and listened to what they had to say. Their role was, however, in the end purely advisory; the emperor could either side with (one of) their view(s) or choose to take a different view and decide the case according to his own conviction.
The imperial judgment, which was called a decretum, could take different forms. When no previous applicable law existed, the emperor had the power to establish a new legal rule to decide the case. Since he was conceived of as the chief source of law, all his acts—including his judicial decisions—had force of law. In a famous text on the sovereign power of the emperor the Roman jurist Ulpian writes:
“A decision given by the emperor has the force of a statute. This is because the populace commits to him and into him its own entire authority and power, doing this by the lex regia which is passed with regard to his authority. 1. Therefore, whatever the emperor has determined by a letter or a subscript or has decreed on judicial investigation or has pronounced in an interlocutory matter or has prescribed by an edict is undoubtedly a law. These are what we commonly call constitutiones (enactments).” – Dig. 1.4.1 pr. and 1: pr
When the dispute was governed by existing rules of law, i.e. the ius civile, ius honorarium or imperial laws, the emperor could choose either to apply these rules or set aside the law and decide the case on the basis of general legal concepts, such as equity (aequitas). This was the emperor’s prerogative: as the pinnacle of the Roman legal system he could decide on the equity of the law and, if such an occasion arose, consider it inapplicable in an individual case. In the Roman legal tradition, this principle is expressed by the well-known maxim ‘princeps legibus solutus est’, which can be found in the works of Ulpian and Paul:
“The emperor is not bound by statutes. And though the empress is bound by them, nevertheless, emperors give the empress the same privileges as they have themselves.” – Dig. 1.3.31
“For the emperor to vindicate legacies or fideicommissa under an imperfect will is shameless. For it is proper that so great a majesty should observe the laws from which he is deemed to be himself exempt.” – Dig. 32.23
Paul’s addition to the maxim is instructive. He argues that although the law did not bind the emperor, it befitted him to live in accordance with it. In other words, even though there were no legal restrictions to the power of the emperor, moral values and traditions dictated at least some restraint in using them. There are many examples in literary and legal texts of emperors who adhered to this principle. The way an emperor dealt with these two aspects of his position, i.e. his unrestricted legal power on the one side and the generally accepted principles of good governance on the other, was an important factor in the way his reign was perceived by his subjects and more in particular, the Roman elite. Striking the right balance between imperial power and the law was especially important in the process of imperial adjudication.
The Publication of the Decreta and the Imperiales Sententiae
Even though the Roman jurists considered the imperial judicial decisions to be a source of law, they never showed great interest in them. They rarely cite imperial decreta in their works, let alone composed and published collections of imperial judicial decisions. In slightly generalizing terms, one can argue that the compilation and publication of collections of imperial legislation was not part of the traditional genre of legal writing during the first two centuries CE. This poses the question as to why Paul decided to compile and publish a collection of judicial decisions of Septimius Severus.
Even though the Roman jurists mention imperial judicial decisions as one of the sources of Roman law, their legal force remained to be called into question until the age of Justinian. This becomes clear from a constitutio of Justinian, confirming the legal status of imperial judgments once and for all:
“Emperor Justinian to Demosthenes, Praetorian Prefect. If the imperial majesty has judicially examined a cause and has given a decision in the presence of the parties, then all judges within our empire must take notice that this is the law not only in that particular case but also in all similar causes. 1. (…) 2. Since we have also found it doubted in the ancient laws whether, when the emperor has interpreted a statute, this interpretation should have the force of law, we have both laughed at this foolish subtlety and have deemed it proper to correct it. 3. We therefore decide that every interpretation of laws by the emperor, whether made on petitions, in judicial tribunals, or in any other manner shall be considered valid and unquestioned. For if at the present time it is conceded only to the emperor to make laws, it should be befitting only the imperial power to interpret them.” – Cod. 1.14.12 pr.–3
The problematic legal status of the imperial judicial decisions is also reflected in the works of the second- and third-century Roman jurists, who rarely mention imperial judgments as a source for a specific legal rule. When referring to imperial law they usually cite another type of imperial legislation, i.e. the rescripta of the emperor. In a legal context, an imperial rescript was the answer of the emperor to a petition on a question of law posed by a civilian, official or judge. These legal opinions of the emperor were considered to be authoritative interpretations of the law, which in a sense competed with the traditional responsa of the Roman jurists. The similarities between rescripta and responsa also explain the preference of the Roman legal writers for this type of imperial legislation. Although both decreta and rescripta were decisions in individual cases, rescripts usually contained a specific answer to an abstract legal question. This meant that rescripts often contained a generally formulated legal rule, which made them easier to apply in similar types of case, whereas imperial judgments on the other hand were often closely connected with the facts of the specific case at hand and with the individual interests of the parties involved in the dispute. The importance of the imperial rescripta for legal practice in general and the development of the law in particular cannot be underestimated: fifth and sixth-century codifications of imperial law, such as the Codex Theodosianus and the Codex Justinianus, consist to a large extent of imperial rescripta exclusively. This raises the following question: if Paul intended to make the legislative acts of Septimius Severus known to legal practitioners, why did he decide to publish a work which only contained the judicial decisions of that emperor? Why did he not include other—probably much more relevant—types of imperial legislation, such as rescripts? For this kind of enterprise there even existed a precedent. During the reign of Marcus Aurelius (161–180CE), another jurist named Papirius Justus had published a collection of imperial enactments, entitled ‘Twenty Books of Constitutions’ (Constitutionum Libri XX). Although the title of this work suggests it consisted of different types of imperial legislation (i.e. rescripts, judgments and edicts), the 43 surviving fragments in the Digest exclusively contain rescripts.
Secondly, if making Severus’ judicial decisions known to legal practitioners was the sole intention of Paul’s work, one would expect the collection to consist mainly of decisions which either gave an authoritative interpretation of the law or even contained a new legal rule. Like rescripts, these types of decision actually could be applied in other cases and therefore would be useful to legal practitioners, such as lawyers and judges. This turns out not to be the case. A closer analysis of the cases included in the Decreta and the Imperiales Sententiae shows that Paul’s collection also included decisions of a completely different nature. One can distinguish four basic types of judgment:
1. judgments in which the emperor applies existing law;
2. judgments in which the emperor elucidates an unclear point of law or even creates a new rule;
3. judgments in which the emperor construes specific legal documents, such as wills, codicils and contracts;
4. judgments in which the emperor leaves aside the rules of existing law and decides the case on the basis of general legal concepts, such as aequitas (‘equity’), humanitas (‘humanity’) or pietas (‘piety’). These decisions usually concern so-called ‘hard cases’, cases in which strict application of the law would lead to an undesirable or unjust outcome.
Because of their close connection with the specific circumstances of each case, all the decisions mentioned above are ill-suited for application by lower judges in other cases. Indeed, according to a text of Ulpian the Roman jurists themselves did not regard this type of imperial judicial decision as legally binding:
“Plainly, some of these [i.e. imperial enactments] are purely ad hominem and are not followed as setting precedents. For only the specific individual is covered by an indulgence granted by the emperor to someone because of his virtues or by a penalty specially imposed or by a benefit granted in an unprecedented way.” – Dig. 126.96.36.199
The fact that Paul included a fair number of these personales constitutiones in his collection cannot be reconciled easily with the assumption that he intended to publish his compilation of judgments of Septimius Severus for the benefit of general legal practice.
Septimius Severus: The Ideal Emperor Judge
To understand the intentions behind the publication of Paul’s collection of judicial decisions, one has to pay attention to the context in which the work was created. Second- and third-century jurists like Paul, Ulpian and Papinian held a special position within the Roman legal system. On the one hand they were still a part of the normal legal practice: they gave responsa to clients and officials seeking legal advice, wrote extensive commentaries on Roman private law and taught students. On the other hand they also often held influential positions within the imperial bureaucracy and were a part of the advisory consilia of high officials such as the praefectus preaetorio and of the emperor himself. Their activities within the imperial administration have demonstrably influenced the themes and contents of their works. The Decreta and Imperiales Sententiae are an example of this influence. The detailed case reports of Paul did not just make the imperial judgments known to the general public, they offered readers an insight into the decision-making process at the top of the imperial bureaucracy with Septimius Severus at its center. From this point of view, the Decreta and the Imperiales Sententiae are not simply collections of random imperial judgments, but should be regarded chiefly as a portrait of the emperor Septimius Severus at work. The picture of Severus painted by Paul is a very favorable one and fits well within the traditional image of the good ‘emperor judge’.
Paul’s case reports present us with a wide variety of litigants. Men as well as women were given the opportunity to bring their case before the emperor and although most of the cases concern senators or equites (either from Rome or the provinces), some of them do deal with the claims and interests of less influential persons, such as minors, freedman and even slaves. This great diversity of litigants renders an image of Severus as an accessible judge to all of his subjects, whose attention was not limited to spectacular criminal cases and other sensational disputes of the elite. According to Paul’s descriptions, Severus’ conduct was exemplary inside and outside the courtroom. During the court hearing he allowed litigants to present their case and to substantiate their claims with all sorts of evidence. At times he intervened to question the parties himself. The existence of the case reports of Paul attests to the fact that a consilium of both lawyers and notable citizens was present at the hearing and was involved in the decision making-process.
The description of Severus’ relationship with his consilium is an important feature of Paul’s work. From literary sources it becomes clear that a good emperor should not just have a consilium present when he administered justice, but was also supposed to actively consult his advisors and let them speak freely. This expectation is voiced clearly in the speech of Maecenas, which is part of Cassius Dio’s description of the reign of Augustus:
“Grant to every one who wishes to offer you advice, on any matter whatever, the right to speak freely and without fear of the consequences; for if you are pleased with what he says you will be greatly benefited, and if you are not convinced it will do you no harm.” – Dio, Hist. 52.33.6
Seven texts of the Decreta and the Imperiales Sententiae contain a description of the deliberations between Severus and his consilium. Paul usually starts his narrative with the opinion or opinions of the jurists in the consilium, suggesting that Severus allowed his advisers to open the discussion by giving their opinion before he himself expressed his point of view. The legal debate between the emperor and his advisers is often of a high quality: the emperor and his jurists do not shrink from raising and discussing highly technical legal matters. The fact that the emperor could participate in this type of debate shows his legal knowledge and expertise.
As has been mentioned above, the emperor and his consilium did not decide on the case by a majority vote. The emperor could follow the advice of his councilors or come up with a decision on his own. The case reports in the Decreta and the Imperiales Sententiae reflect this practice: some of Severus’ decisions are consistent with the views of his consilium, while other judgments are based on Severus’ own opinion. When the emperor deviates from the opinions of his jurists—and more in general, from the existing rules of the ius civile—, he usually does so to protect one of the litigants against the unjust consequences of the strict application of the law, the rigor iuris. These litigants are often socially disadvantaged or vulnerable persons who deserve the protection of the emperor, such as women, minors and slaves. This interest in the concerns and (legal) problems of the less influential members of society can also be found in the legal pronouncements of emperors such as Hadrian, Antoninus Pius and Marcus Aurelius and thus strengthens the association between Severus and these ‘good’ emperors. These decisions therefore depict Severus as a humane and benevolent ruler, protecting the interests of his subjects against the consequences of an unjust application of the law, and present him as the ultimate dispenser of justice in the Roman Empire. At the same time, Paul is careful not to create the image of an emperor who disregards the law all together. In a considerable number of decisions, Severus acts like a regular judge and adheres to the rules of existing law. Notable are the judgments in which Severus explicitly applies the rules of the ius civile in disputes concerning the imperial treasury (fiscus), often to the detriment of the latter. The refusal to award a special legal position to the fiscus is—of course—characteristic of a good emperor judge.
From Paul’s use of the word imperator, which Roman legal writers use to refer to a reigning emperor, one can deduce that his work was published while Severus was still alive. The portrait of the emperor as painted by Paul must have pleased Severus. After a time of relative peace and prosperity under the rule of the so-called ‘adoptive emperors’, Severus had come to power in 193CE by means of two bloody civil wars, in which many Roman lives were lost. Tales of his cold-hearted and sometimes even cruel conduct in these wars must have circulated throughout the Empire and caused at least part of the Senate to consider him unfit to rule, as Dio attests. To legitimize his position and improve his public image, Severus stressed the continuity between his reign and that of his Antonine predecessors in his propaganda. From 195CE onwards, he presented himself as the adoptive son of Marcus Aurelius and claimed to be the same type of ruler, a bonus princeps who would rule in a similar fashion as his illustrious predecessors had done. As mentioned above, the way an emperor performed his judicial tasks was an important aspect of the public perception of his persona and his reign: the bonus princeps was expected to be a committed and righteous judge. The image created by Paul in his reports of cases decided by Severus creates the impression of the latter as an accessible, dedicated, competent and benevolent judge. It was in complete accordance with Severus’ own public imagery and will have been a welcome addition to it.
(Source: “The Decreta and Imperiales Sententiae of Julius Paulus: Law and Justice in the Judicial Decisions of Septimius Severus”, by Elsemieke Daalder. Taken from the collective work “The Impact of Justice on the Roman Empire – Proceedings of the Thirteenth Workshop of the International Network Impact of Empire (Gent, June 21–24, 2017), Edited by Olivier Hekster & Koenraad Verboven)
Research-Selection for NovoScriptorium: Anastasius Philoponus