BMCR 1996.08.15

1996.8.15, Peachin, Iudex vice Caesaris

, Iudex vice Caesaris : deputy emperors and the administration of justice during the Principate. Heidelberger althistorische Beitra╠łge und epigraphische Studien ; Bd. 21. Stuttgart: F. Steiner, 1996. x, 267 pages ; 23 cm.. ISBN 9783515067720. DM 88.

Michael Peachin has written a more wide-ranging book than either its title or publication venue might indicate. In Iudex vice Caesaris, P. attempts no less than to explain the Roman legal system and the changes in how appeals were lodged from the late republic to late antiquity. He demonstrates a mastery of legal, literary, epigraphic and papyrological sources in describing both these changes and the development of an official appointment for someone to dispense justice in place of the emperor.

The book is organized into four main chapters but roughly falls into two halves. The first half, comprising the first chapter, will prove the most interesting and easily comprehensible to the general reader. In it, P. sketches the growing role of the emperor in the creation and interpretation of law. By the Severan era, the jurist Ulpian could proclaim that whatever the emperor wanted had the force of a law (from Digest Combined with the emperor’s personal authority in making law was the gradual replacement of the binding arbitration of formulary legal procedure with the cognitio extra ordinem, first introduced by Augustus and allowing both greater flexibility in how cases were tried and the opportunity for appeal to the emperor.

Another fragment of Ulpian ( Digest is used to examine the grounds for appeal, namely a given judge’s unfairness ( iniquitas) and/or inexperience ( imperitia). In a society organized through patronage, the unfair judge would not be uncommon, and the sources are replete with examples. P. has more extensive comments concerning the issue of inexperience.

In the debate over the level of professionalism within Rome’s governing elite, P. steers a judicious (if one may use the word) middle course between those scholars who believe social standing alone determined selection for office and those who see ability as a significant factor. Officials called upon to make legal decisions might not necessarily have been familiar with all the principles of law. In Rome this situation would have been corrected somewhat by the availability of jurists to assist officials hearing cases, but many provincial governors might well have lacked the assistance of experienced legal minds. As imperial pronouncements came more and more to form the basis of legal decisions, it became the duty of a judge to identify and verify those pronouncements relevant to his case, a task made all the more difficult by the lack of an official collection until the reign of Diocletian. P. argues that errors from ignorance and inexperience must not have been uncommon when judgments were given, leading to an ever increasing load of appeals to be handled by the emperor.

The complaints of jurists like Ulpian notwithstanding, the institution of an appellate system will itself lead to an ever increasing caseload, as the United States Federal Courts have discovered. While P. pays particular attention to error as a cause for appeal, he is aware that in a hierarchical government and society such as in ancient Rome, authority will concentrate at the top of the hierarchy, and so, too, must dispute resolution wander to the source of highest authority.

All this discussion about appeals is preparation for the second half of P.’s book, which attempts to examine the official appointments of individuals to give judgments in place of the emperor. Made up of one chapter on prosopography, another interpreting the prosopography, a third examining Constantine’s legal reforms and, finally, five appendices, the rest of the book is far more technical in content and less narrative in style.

Despite the daunting nature of the presentation, P. makes his case for seeing the establishment of an official appointment for a substitute imperial judge as an innovation of Septimius Severus. The appointment seems to have been an ad hoc measure to continue to have appeals heard in Rome when the emperor was away or to allow appeals to have been heard in the provinces (and especially in the East) after periods of regional instability. Under Constantine, the authority to hear appeals was expanded and became part of the responsibilities of various top officials: urban prefects, praetorian prefects, governors of Africa and Asia, vicarii and comites.

P. recognizes that his discussion is greatly restricted because it is constructed from but 14 examples of such imperial substitutes over a period of slightly more than a century. Most of the evidence for these appointments is epigraphic, and there seems initially to have been no standard title until more than halfway through the third century, when iudex sacrarum cognitionum may have become the name of the appointment. Care is taken in the discussion of the various careers of these 14 examples, and P. willingly offers proposals to solve problems presented by the evidence. He should be praised for his extensive effort, although scholars may find some of his proposals worthy of reexamination. Certainly the connection of Zosimus 1.19.2 with Codex Justinianus 2.26.3 (in constructing the career of P.’s example 8, Severianus, pp.119-20) must be considered highly conjectural.

Nonetheless P. has produced what for some time to come will remain an important work on the development of the appeals system in the Roman empire. Iudex vice Caesaris is a book of impressive scholarship deserving a place on the bookshelves of students of Roman history and law.