LECTURE REVIEW II

Hadrian’s Codification of the
Praetorian Edict by Salvius Julianus
Jim Safley
In this essay I will interpret the circumstances culminating to Hadrian’s codification of the praetorian edict by the renowned jurist Salvius Julianus (c. 130 CE). Accordingly, I will attempt to explain how and why the codification occurred. The codification was a considerable turning point in the process of Roman law: the imperial juror gained supreme prestige, and, more importantly, the praetor surrendered his ability to augment his legal jurisdiction while the emperor legitimized his own predominant rank in Roman law. To lend this essay coherence I will explore the imperial system of law during the early Empire, focusing on the role of the juror, the praetor, and, to a lesser extent, the emperor. It is important to understand the evolution of the juror and the praetor to fully appreciate the enormity of the codification. For this reason I have also included some historical information regarding the origin of these offices of law.
There are many sources available in Ancient Roman law. Classical jurisprudence is, in fact, one of the most documented subjects in Roman history. Because Roman law has flourished in some form or another since its establishment, much of its principles and analyses are still contemporary. The current knowledge of the codification of the praetorian edict is a good example of the contemporary nature of some historical events. There is no definitive primary source on the subject, and only through intensive study of myriad ancient works of law can one find reference to it. The earliest reputable source that mentions the codification is Emperor Justinian’s Constitution, Tanta.[1] Though it is a vague and contradictory reference, Justinian is precise in his statement regarding the existence of such a codification.[2]
Some of the foremost treatises on Roman legal history were written by German and British law scholars during an age of classical law revival. In the late nineteenth century, German law professor Rudolph Sohm wrote The Institutes, a systematic survey of the entire field of Roman law.[3] Even before Institutes, Sir Henry Maine, a distinguished English law scholar, wrote Ancient Law, an extensive comparison of ancient law and Modern English law.[4] In 1932 another English scholar, H. F. Jolowicz, authored an updated treatise on classical legalism, titled Historical Introduction to the Study of Roman Law.[5] Some of the most scholastic modern sources on Ancient law can be found in the form of these “historical introductions of law.” In 1966, Wolfgang Kunkel, an accomplished German law professor, wrote An Introduction to Roman Legal and Constitutional History.[6] Twenty-four years later a Dutch author, Olga Tellegen-Couperus, wrote A Short History of Roman Law.[7] Both of these texts are effectively utilized by law professors worldwide.

The system of law in the Roman Empire relied heavily on the influences of several imperial offices. Each of these offices had unique and indispensable responsibilities, and all issued written documents of one form or another that announced their opinions, intentions, or decrees. Jurors, through their responsa, provided legal opinions to judges, magistrates, and citizens. Praetors, whose role was the administration of justice, annually issued an edictum perpetuum that laid out the terms of their office. Emperors, who obtained much of the magisterial powers of the high offices in the Republic, enjoyed the right to issue two imperial proclamations: the edictum (a decree addressed to the general public) and the mandata (an official directive to the officials in the emperor’s service).

JURISTS
In Rome the knowledge of law and its procedure fell primarily on jurists. They were the center of the Roman legal system and influenced the decisions of judges and magistrates, who were not necessarily schooled on jurisprudence. During the Republic, jurists were closely associated with the Roman senate, and most originated from the senatorial class. The jurists’ influence was pervasive in law. They assisted private citizens by drafting legal texts, wills, etc. (cavere), serving as advocates in lawsuits (agere), and giving legal opinion on questions of law submitted to them (respondere).[8]
The role and character of the jurist changed under the reign of Augustus. Imperial backing of the equestrian class assured a rise in equestrian jurists, though most remained of the senatorial class.[9] Whereas in the Republic jurists had a limited capacity in legal authority and legislation, the new princeps gave certain preeminent jurists the privilege of giving their legal opinion ex auctoritate principis – that is, in the name of the emperor.[10] In turn, jurists’ written replies to matters of law (rensponsa) had the force of law.[11] By bestowing on jurists the ius respondendi, or the imperial right to give legal opinions, Augustus ushered in an unprecedented age of classical jurisprudence.

SALVIUS JULIANUS
Among the greatest of Roman jurists was the renowned Salvius Julianus (Lucius Octavious Cornelius Publius Salvius Julianus Aemilianus). Julianus was born around the turn of the second century CE at the village of Pupput, near Hadrumetum, in the province of Africa. Of Roman birth he belonged to a family evidently so distinguished that he was able to enter upon a senatorial career.[12]
Julianus served in a wide variety of senatorial offices under Hadrian, Antoninus Pius, and Marcus Aurelius. His imperial roles included: decemvir stlitibus iudicandis, quaestor Augusti of Hadrian, one of the tribuni plebis, praetor, praefectus both of the aerarium Saturni and of the aerarium militare, consul in 148, pontifex, curator aedium sacrarum, imperial governor of Germania Inferior, imperial governor of Hispania Citerior, and republican governor of Africa.[13]
Julianus acknowledged himself as a disciple under the prominent Roman jurist Javolenus Priscus (Gaius Octavius Tidius Tossianus Javolenus Priscus), who was a member of Trajan’s consilium and head of the Sabinian School.[14] Sabinus Masurius, a Roman jurist of the first half of the first century CE, founded the Sabinian School, which began as a doctrinal school for jurists.[15] There was an unspecified rivalry between the Sabinian School and another school for jurists, the Proculian School.[16] Both schools died out after the death of Salvius Julianus, who was the last recorded head of the Sabinian School. In a measure of his supreme authority, there is no doubt that Julianus’ death allayed the hostility between the schools.[17]
Julianus was a man of high authority and fame among his contemporaries. He enjoyed such repute even at a young age that Hadrian doubled his salary as quaestor Augusti.[18] His most important legal work is his Digesta, organized into 90 books detailing virtually every aspect of civil and praetorian law. It introduced the theory and nature of Roman legalism. The work is preserved mainly in subsequent codes, especially in Justinian’s Digesta and among other works by classical jurists.[19]
Before Julianus was 30 years old Hadrian entrusted him with the revision and rearrangement of the praetorian edict, which secured his enduring and distinguished reputation. To understand the significance of this codification, the role of the praetor and his edict in Roman legalism must be understood and appreciated. To be sure, a systematic revision and permanent rearrangement of a body of precepts is a considerable and serious event.

PRAETORS AND THE PRAETORIAN EDICT
In the early Roman Republic, the office of the praetor was synonymous with the consulship; but in 366 BCE the judicial powers of the consuls were delegated to special officers, each named praetor urbanus. The paramount responsibility of the praetor urbanus was the administration of civil and criminal justice in Rome and in Roman Italy, though he occasionally exercised his right of military command (imperium), and he had the authority to convene the comitia and initiate legislation.[20] Over a century later the proliferation of commerce necessitated the appointment of a second officer, the praetor qui inter peregrinos ius dicit, a title which afterwards was shortened to praetor peregrinus. The praetor peregrinus supervised civil litigation in which one or both parties were foreigners.[21]
In their early capacity, praetors had an enormous sphere of judicial and executive influence (certain praetors were appointed as provincial governors). However, Sullan reforms in the late Republic limited the role of the praetor in executive positions, and after Augustus’ judiciary laws, both the praetor urbanus and the praetor peregrinus were restricted entirely to the administration of private law. In the provinces the former jurisdictional and executive roles of the praetor were consigned to the quaestor.[22]
On entering office, praetors were required to outline the central principles of their jurisdiction and ostentatiously display them in the Roman Forum.[23] In this outline, titled the edictum perpetuum, or simply edict, the praetors declared the steps they intended to take in the implementation of their office. Officially, once the magistrate left his post (usually after one year), the edict ceased to be binding, and the succeeding praetor had a free hand in the matter of his edict; but in practice the successor usually confirmed the previous edict (the edictum tralaticium), only amending what expediency dictated.[24] The right of praetors to alter the edict, no matter how negligible the changes, was a component of their ius honorarium, or magisterial law.
Though the edicts were an important source of law, the praetor was not a legislator. He was unable to formulate or alter the law itself, as could the assemblies in the Republic and the Senate in the early Empire by a lex (statute) or a plebiscitum (ordinance of the people).[25] Consequently the edict did not take the same form of a statute. It consisted mainly of statements detailing how the praetor would carry out his office, and of what he would do in certain legal circumstances. It was in these respects that made it possible for the praetor to influence the laws to such a large degree.
The edict’s advantage over strict statutory code was its expedient and organic nature. Although praetors tended not to alter it greatly, over time, when a procedure became obsolete or unnecessary, it was deleted. Similarly, when a course of action was necessary and an applicable precept did not exist, the praetor revised the edict to provide for the action.[26] Initially the edictum perpetuum was not binding and the praetor could arbitrarily disregard his own principles. Later however, by a lex Cornelia (67 BCE), the praetor was legally bound to his edict, unable by law to modify it while in office.[27]

CODIFICATION OF THE PRAETORIAN EDICT
By the second century CE the edictum tralaticium had accrued to a formidable and arduous size. There were at least two hundred separate provisions in the edict before Emperor Hadrian commissioned Salvius Julianus to codify the edict (c. CE 130), effectively fixing it in permanent form – taking away the praetor’s right to alter it.[28] The praetorian edict was confirmed by a senatus consultum, and all further legislative revisions fell to the emperor.[29]
Why exactly did the codification occur? Ancient sources are silent on the subject, and modern sources deal exclusively on assumptions and conjectures. Certainly it is debatable whether Hadrian intended the codification to be a protective action regarding the edict’s immense size and complexity, or an attempt to stifle the innovative legal abilities of the praetor (ius honorarium).
Many modern authors of law differ in opinion. Rudolph Sohm points out that emperors were well aware that the legal power of the praetor originated from Republican magistrates – offices that emperors found distasteful. “The rising imperial power could not permanently tolerate any rival independent authority.”[30] Thus, Hadrian ordered the codification to suppress the jurisdictional power of the praetors. H. F. Jolowicz offers a more moderate version of Sohm’s theory. He writes that the overarching power of the emperor inherently limited, and was incompatible with, the authority of Republican magisterial offices, including the praetor. Hadrian, in his decision to codify the edict, was simply “bringing the republican form into line with the new realities.”[31]
Incompatibility with the authority of the emperor is not the only rationale given for the codification. The eminent law scholar Sir Henry Maine, on the other hand, believed that the edict’s “immense length” and “disorderly texture” demanded the codification.[32] I have found that most law textbooks concur with Maine in that the edict was merely too large and unwieldy for practical use, so Hadrian had no other choice but to order it written as a final draft (though Kunkel and Tellegen-Couperus do mention the gradual weakening power of the praetor under the Principate).[33]
Hadrian’s own administrative character may prove to be the defining clue into why he ordered the edict to be set into permanent form. He had a cold relationship with the Senate, and distrusted the few remnants of Republican government. While he slowly deserted the already eroding old system of government, he strengthened the new, imperial system. Under his rule, the Equestrian Order obtained a more ennobled status: they secured many civil service positions, and even joined Hadrian’s board (consilium principis).[34] He also appointed judges in place of the traditional role of the Senate, furthering the imperial centralization of the state. It would be consistent with his mistrust of Republican customs that Hadrian ordered the codification of the praetorian edict. Indeed, what better way to limit the powers of the praetor than to deny him the ius honorarium?
Whatever Hadrian’s motives, his decision to order the final revision of the praetorian edict permanently shifted legal initiative to the emperor. As a result, praetors suffered a precipitous decline in power. Now more than ever, jurists, who had been rising in eminence since Augustus’ ius respondendi, played a vital role in the interpretation of Roman law. Their influence on the emperor’s legal decisions was unprecedented, as is exemplified by the codification of the praetorian edict by Salvius Julianus.

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[1] Justinian, constitutio Tanta, 18.
[2] Olga Tellegen-Couperus, A Short History of Roman Law (London: Routledge, 1993), 89; Wolfgang Kunkel, An Introduction to Roman Legal and Constitutional History, 2d ed. trans. J. M. Kelly (London: Oxford University Press, 1973), 93.
[3] Rudolph Sohm, The Institutes: A Textbook of the History and System of Roman Private Law, 3d ed. trans. James Crawford Ledlie, B. C. L., M. A. (London: The Clarendon Press, 1940; reprint, New York: Augustus M. Kelley Publications, 1970) (page citation are to the reprint edition).
[4] Henry Maine, Ancient Law (London: The Aldine Press, 1954).
[5] H. F. Jolowicz and Barry Nicholas, Historical Introduction to the Study of Roman Law, 3d ed. (London: Cambridge University Press, 1972).
[6] Kunkel.
[7] Tellegen-Couperus.
[8] Ibid., 60-61.
[9] Kunkel, 109.
[10] Ibid., 107; J. Declareuil, Rome the Law-Giver (London: Trubner & Co., 1927; reprint, Westport: Greenwood Press, 1970), 24 (page citations are to the reprint edition).
[11] Will Durant, The Story of Civilization, vol. 3, Caesar and Christ: A History of Roman Civilization and of Christianity from Their Beginnings to A.D. 325 (New York: Simon and Schuster, 1972), 394.
[12] Oxford Classical Dictionary, 2d ed., s.v. “Julianus (2) Salvius,” by Adolf Berger and Barry Nicholas.
[13] Ibid.
[14] Ibid. s.v. “Javolenus Priscus,” by Berger and Nicholas.
[15] Ibid. s.v. “Sabinus (2),” by Berger and Nicholas.
[16] Alan Watson, The Law of the Ancient Romans (Dallas: Southern Methodist University Press, 1970), 29.
[17] Kunkel, 118.
[18] Ibid., 117; Durant, 392.
[19] OCD, 2d ed., s.v. “Julianus (2) Salvius,” by Berger and Nicholas.
[20] Ibid., s.v. “Praetor,” by Piero Treves and Eastland Stuart Staveley.
[21] Sohm, 73-74; Tellegen-Couperus, 41.
[22] Kunkel, 84-85.
[23] Durant, 393.

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