Bryn Mawr Classical Review

BMCR 2017.11.50 on the BMCR blog

Bryn Mawr Classical Review 2017.11.50

Kaius Tuori, The Emperor of Law: The Emergence of Roman Imperial Adjudication. Oxford studies in Roman society and law.   Oxford; New York:  Oxford University Press, 2016.  Pp. xiii, 482.  ISBN 9780198744450.  $125.00.  


Reviewed by Elizabeth Buchanan, University of Findlay (buchanan@findlay.edu)

Preview

The purpose of this book is to consider how the role of the Roman emperor expanded to include judicial functions, emerging as the ‘supreme court’ for the Roman Empire beginning in the Late Republic and ending with the Severan period (1). Partly because of a lack of clear legal sources for the imperial accrual of judicial functions, and partly to supplement the existing legal and behavioral analyses of its development, Kaius Tuori uses literary narratives to illuminate the common understanding of the role that the emperor could and should have regarding the judicial function, and to further legitimate that role. Tuori challenges the view that imperial jurisdiction was either the result of constitutional authorization or usurpation, and to argue that “the practice of imperial adjudication grew out of the spread of the common conviction that the emperor is the final arbiter of (nearly) all things, and that the stories that circulated (and are now preserved in the historical writings of the era) were instrumental in the formation of that conviction” (16-17). This argument rests on the premise that the validity and legitimacy of both imperial adjudication and the historical narratives are ultimately founded on their acceptance and use by members of the empire.

Chapter One considers Roman ambivalence regarding the judicial role played by Julius Caesar as seen through the eyes of Cicero in ˂i˃Pro Ligario˂/i˃, a speech by Cicero addressed to Caesar on behalf of a client, Ligarius, who was captured and put on trial after fighting against Caesar during the civil war in Africa. Tuori explains that although Julius Caesar was never an emperor, he did play a pivotal role in the development of the idea of imperial adjudication. Caesar would have had the authority to adjudicate a case of this kind either because of his authority as a consul or as a dictator. Cicero choose to defend Ligarius by offering a ‘mirror’ to Caesar on the various roles that he could take in this case, and how his choices would affect his reputation in the future. Cicero says that Caesar could act as a tyrant, following the example of the harsh tyrant Sulla. In the alternative, he could act as a magistrate, following the law strictly, which could adversely affect many Roman senators present at the trial because they also had opposed Caesar, or he could act as a benevolent patriarch and show mercy to Ligarius. Cicero clearly wanted Caesar to show mercy to Ligarius, but his speech served to illustrate the choices that Caesar could make. Ultimately, Cicero, seen by Tuori as representative of many of the Roman intellectual elite, wanted a strong leader to end the civil wars and bring harmony, but he also wanted someone who could rise above the politics and govern the Romans with fairness and benevolence.

The next chapter, Chapter Two, addresses the accrual of judicial authority by Augustus, using Ovid as a source for the hopes and concerns of the Roman people. Tuori begins this chapter with a discussion of the prevailing views that Augustus had judicial authority either because he was given the authority by a law that is not available to us, or because he usurped it. He believes that imperial jurisdiction emerged slowly as a shared conviction by members of the Roman elite, and that this can be established through analysis of the narratives written at the time. These narratives are limited to a poem by Ovid, an anecdote by Seneca, two remarks by Valerius Maximus, and two provincial inscriptions, plus the later discussions by Suetonius and Cassius Dio about Augustus’ jurisdiction (70). The poem by Ovid, his ˂i˃Tristia˂/i˃, explains how he was exiled through relegation by an edict of Augustus, without trial or formal proceeding. He describes the punishment as merited and merciful, and seeks a full pardon so that he can return to Rome. The other literary examples include anecdotal cases involving the Roman elite or Augustus’ marriage legislation. The two inscriptions document petitions to Augustus from the provinces to which Augustus chose to respond. The spotty contemporaneous accounts are to some extent contradicted by later writers such as Suetonius and Dio, who present Augustus as a hard-working judge, resolving problems for his people. Tuori discounts Suetonius's and Dio’s accounts of Augustan jurisdiction because both overlaid their much later observations of imperial jurisdiction and assumed that this had been continuous since his reign. After considering Augustus’ careful self-depiction as the restorer of the Republic and exerciser of limited powers for the good of the people in his ˂i˃Res gestae˂/i˃, Tuori concludes that the judicial authority of Augustus rested ultimately on the fact that he had real executive power and could practically resolve issues when he chose to intervene (123). The façade of continuity and the exceptionality and ambiguity of Augustus’ power created the appearance of imperial legal authority, which led to its acceptance.

In Chapter three, Tuori carries on the story by examining the emperors from Tiberius to Trajan. He uses Seneca’s ˂i˃De Clementia˂/i˃, Pliny’s ˂i˃Panegyric of Trajan˂/i˃, portions of Tacitus’ ˂i˃Annales˂/i˃, and Pliny’s letters to illustrate the growing internal conflict between the narratives of the emperors as good and wise adjudicators and those of the emperors as insane monsters engaged in arbitrary acts of terror. These sources are used both to describe the good characteristics for an emperor: clemency, fairness, coordination with the senatorial elite, and self-control; and to demonstrate the tensions between the rhetoric of the Republic and the increasing clarity that the power of the emperor was largely constrained only by himself and his ability to work with the various power centers of the Roman world. In this regard, Tuori notes that the records of even the ‘mad’ emperors showed them diligently adjudicating routine cases in a public place. Many of the abuses concerned power-struggles with the elites, and these power-struggles may have been responsible in part for the reduction in the role of the Senate as a court of law and counsel for the emperor.

Chapter Four discusses Hadrian and the Antonines: Antoninus Pius, Marcus Aurelius, Lucius Verus and Commodus. In this chapter, Tuori discusses how petitioning and the seeking of imperial rescripts became a central cultural and legal phenomenon in the narratives of the Antonines, and how imperial adjudication became the defining feature of the Roman legal system. Starting with Aristides’ ˂i˃Regarding Rome˂/i˃, he points out that from the perspective of a Greek rhetorician from the East, the Roman Empire was unique in that letters to and from the emperor were an effective means of ensuring justice across the empire and that everyone in the empire could appeal to the emperor and trust that the emperor would be just. This speech was a laudatory speech given in Rome, but recognized the aspirations of the Roman legal system. In addition to the popularity of petitioning by letter, this chapter discusses the increasing use of imperial rescripts as precedent. Tuori sees the emperors as aware of their far-reaching authority and who generally sought to live up to the vision of the good and conscientious emperor.

Tuori then discusses imperial adjudication during the Severan period in Chapter Five, and how it was reflected in literary production, especially the history of Dio and the legal commentary from Ulpian. Tuori builds on the ideas of the previous chapter about the rhetorical strategy of petitioners to appeal to the idea of the good emperor and the increasing recognition of imperial pronouncements as having the force of law. While the emperor was the voice of the law, he was supported by some of best jurists of the period. Dio’s observation of imperial power was that it was often misused, either by the incumbent or someone in his family or staff. While there were some good and conscientious emperors, there were also fearful, delinquent and unpredictable emperors. Ulpian, on the other hand, took a more positive view of imperial adjudicative power. His writings formed the basis for the view that the emperor was above the law, but that his word was law. The emperor was, however, obligated by virtue of his position to be both approachable and benevolent to all people, including those of lower status such as women and slaves. Even when there was a bad emperor, the imperial bureaucracy was generally able to maintain the flow of imperial justice. These two very different narratives show the intertwining of fear and high aspirations that accompanied imperial adjudication.

The five substantive chapters are followed by a short Chapter Six, Conclusions. In this chapter, Tuori states that the process through which the emperor became the sole source of law was gradual and built on the shared conviction that the emperor was the supreme source of justice and that all could, at least in theory, appeal to him. The narratives about his jurisdiction had not only a descriptive effect, but also a constitutive power in shaping the shared viewpoint. These narratives pull from both the Roman Republican traditions of paterfamilias and patronage, but also the Hellenistic view of the ideal king. When the illusion of Republican continuity was broken by Tiberius and his successors, precedent became the method of controlling unpredictable and sometimes violent imperial power. The provinces saw the benefits of seeking imperial support against local political interests. Senatorial adjudication appeared alongside imperial adjudication in its early stages but was eventually eclipsed by the development of an imperial bureaucracy. The analysis of narratives is useful because it permits an examination of contested developments from several points of view.

The final third of the book is comprised of an extensive Appendix containing known instances of imperial adjudication from Caesar to Severus Alexander, with a description of the parties, sources and important literature discussing it, plus a lengthy bibliography, an index and an index locorum. The Appendix uses literary sources, inscriptions, papyrus documents and legal texts. Tuori excluded any source that he believed to be unclear. The numbers of instances per emperor ranges from 1 to 30 from Julius Caesar to Pertinax, with a sudden increase commencing with Septimus Severus (170), largely due to published rescripts in Justinian’s Code and Digest.

Overall, this book is well-written, clear and easy to read. The use of literary sources in legal history is certainly not new. Legal historians routinely rely on literary sources to understand changes in Roman law because of the general paucity of other sources. Tuori built an argument using literary narratives for the gradual and consensual development of imperial adjudication based on the practical ability of the emperor to resolve issues. He then posits that these narratives had a reciprocal role in developing a shared consensus for the legality of imperial adjudication. The idea that the emperors developed their jurisdiction gradually because of their ability to solve problems is attractive because it makes practical sense, but Tuori’s use of narratives rests on two possible assumptions, neither of which is proven. The first is that the specific narratives he uses were representative of the opinions of the intellectual elite, and the second is that, whether representative or not, they were persuasive in creating that shared conviction of imperial jurisdiction. We have lost too many sources that were available at the time for me to feel comfortable with either assumption. Notwithstanding my concerns about the underlying assumptions of Tuori’s argument, I believe that this book adds to the dialogue about the changes in Roman law that occurred in the Principate and early Empire. The approach is thought-provoking and bears more discussion. The Appendix and bibliography are very useful, and I found very few errors in the text, although I wish that that the Appendix had page numbers.

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