The constitution of the Roman Republic was not the result of legislation or the discussions of learned men but of the principle of trial and error and the determination to create something new, where “something new” means anything but the rule of the Etruscan kings (Tarquinii). It was they who had made a city-state out of a village by the Tiber's mouth. The monarchy of the Tarquinii has much in common with the tyrannis of the Greek city-states. Thus the kings’ behavior gave rise to hatred—especially of the last king (Tarquinius Superbus)—and to political opposition. This ultimately led to the abolition of monarchy as an institution. The contempt for monarchy became an important part of the Republican constitution and the Roman mind. At the end of the Republic it was still strong enough to be used to justify Caesar's murder.

In the beginning, we can already discern the institutions which were to play a key role in the Republic: the magistracy, the assemblies (comitia), and the Senate. The Republic's period of political trial and error lasted from the sixth century b.c.e. until 367 b.c.e.

The contempt for monarchy inspired two principles which aimed to prevent those holding the highest offices from reintroducing the monarchy—that of annual succession and that of collegiality. The Roman Republic knew no exception to these principles with respect to magistrates. Moreover, any magistrate at the same or a superior level could invalidate official acts of his collegae (colleagues): this constitutional principle is called intercessio (intercession). Finally, appointment to office was by election and not by birth.

The head of the new state was also to be the head of the army. It was thus natural that the army should be allowed to choose the new head of state. So began the army's role as a political assembly, and the principle of annual succession. Hence most of the political offices in the Roman Republic, such as the praetorship, originate in the military sphere. The principle of collegiality was not strictly enforced in the beginning; only later did it become a real constituent of the Roman constitution. We can deduce this from the fact that initially the main leader, the praetor maximus, had not one but several colleagues, the praetores minores. We have learned the term praetor maximus from its association with the ritual of driving the clavus annalis (annual nail) in a temple as a marker in the official chronology.

The Senate, as the assembly of the heads of the patrician families, was of vital importance from the beginning because it was its members, the chiefs of the gentes, who had overthrown the monarchy.

The period of trial and error was characterized by continuing and difficult political contests. The two parties were the patres (the patricians) and the plebs (the plebeians). The former were the chiefs of the old Latin gentes or those of other origins who had become assimilated in the course of time, and the latter were all those who did not belong to one of the patrician gentes. Shortly after the inauguration of the new regime the patricians had to acknowledge the plebeians’ spokesman and representative, the tribunus, as a representative not only of the plebeian class but of the whole state and thus as falling under the special protection of sacrosanctitas.

The plebeians asked for protection of life and limb against violence by government officials and for an extensive codification of the law as a protection against arbitrariness. Everyone, not just the patricians, should live under the rule of law. These political demands were granted in the form of statutes (leges), the leges Valeriae Horatiae (Valerian-Horatian laws, ca. 450 b.c.e.) against violence by the government, and the Law of the Twelve Tables: these two statutes became the “Magna Carta” of the Romans. The Law of the Twelve Tables laid down that only the comitatus maximus, the Roman people's assembly, could rule on capital punishment. The Twelve Tables contain many other provisions concerning what in modern terms are called public law, private law (and procedure), and criminal law (and procedure). This legislation helped to solidify the hitherto uncertain law and to write down the known law unequivocally. But it did not lay down those rules that were uncontested.

The patricians granted concessions to the plebeians not only in legal matters but, particularly after 450 b.c.e., in political and constitutional matters. The most important concession regarded the highest military and political office, the praetorship. The early praetorship with its military character came to an end after the Law of the Twelve Tables was enacted, and the consul took the praetor's place in a new, more civilian form of government. It is not by chance that at same time the unequal form of collegiality (praetor maximus and several praetores minores) was abolished, though it was not immediately replaced by the classical form of collegiality, which still had to be arrived at through trial and error.

It is interesting from a political point of view that in the years after the Twelve Tables, the office of tribunus militaris consulari potestate (military tribune with consular power) is mentioned often. The term tribunus is closely linked to the political demands of the plebs. We can deduce from this terminology that plebeians also could hold the consulate, the highest office in the state. The fact that at this early stage the patricians were ready to share power with the plebeians would take on great importance in Roman history.

The quarrels between patricians and plebeians came to an end with the Leges Liciniae Sextiae (Licinian-Sextian rogations, a rogation being a law proposed by a consul or tribune and accepted by an assembly). After these laws the Roman constitution was molded into the classical shape in which it became common knowledge and an integral part of the Western cultural heritage.

The Magistrates.

From that time on two consuls headed the state. They were elected for one year and had the same executive powers. Thus the principle of collegiality reached perfection. One consul was to be a patrician and the other a plebeian. Later on, this rule was undermined—not in favor of the patricians, as one might have expected, but of the plebeians: the first consulate of two plebeians took office in 172 b.c.e.

The power connected with the consulship is called imperium. This imperium entitled the consuls on the one hand to manage affairs of state and to maintain law and order (imperium domi) and on the other to act as commanders in chief of the army (imperium militiae). They were entitled to introduce motions in the assemblies of the people (ius agendi cum populo, the right of transacting business with the people) and to charge the Senate with any state business (ius agendi cum patribus, the right of transacting business with the Senate). The consuls were attended by lictors, civil servants each of whom carried a bundle of birch rods (fascis) and an ax (lictor) as symbols of the consuls’ power.

When the praetor was superseded by the consul, the praetor was given jurisdiction limited to deciding whether or not there lay an appropriate action—either civil or criminal—for the claimant's demands, and appointing a judge to decide the case if he determined there was an appropriate action. In order to make his decisions more predictable and thus lessen the burden on his office, the praetor began to publish a collection of all the actions granted by him in the so-called edict. In addition, the praetor was free to create new actions and add them to the edict. The edict, published annually, would become the foremost achievement of the praetor, making him the principal law-giver in the Republican age. By the middle of the third century b.c.e. a second praetorship was created, that of the praetor peregrinus (praetor for aliens), who was charged with supervising proceedings between Roman citizens and foreigners and between foreigners. During the second century the number of the praetors was successively increased as they were appointed to govern conquered territories.

The aediles were officials initially involved in the self-administration of the plebeians. After the Licinian-Sextian rogations were passed, two patrician colleagues (the aediles curules, originally, aediles entitled to sit in a sella curulis, a special chair of state) were added, and after 304 b.c.e. we regularly find among the curulian aediles a patrician and a plebeian. Generally speaking, their duty was the administration of Rome: they exercised some police functions and were responsible for such things as the repair and preservation of temples, sewers, and aqueducts; street cleaning and paving; the regulation of traffic, dangerous animals, and dilapidated buildings; precautions against fire; superintendence of baths and taverns; investigation of the quality of articles for sale and the correctness of weights and measures; the purchase of corn for disposal at a low price in case of necessity; and the superintendence and organization of public games.

The office of quaestor, who supervised the treasury and the financial affairs of the state, was created during the abovementioned reforms in the fifth century b.c.e.

The censors, elected every five years, had two important duties, to count citizens and to supervise their morals. Counting citizens was required for enrolling them as electors in the proper assemblies [see Legislative Assemblies (Leges, Plebiscites)]. The counting took eighteen months, so the censors were the only civil servants in Rome to serve for more than a year. Supervising the citizens’ morals (cura morum) required measures to be taken by the government in instances where the law did not provide pertinent rules but the traditional conventions (mos maiorum, customs of the ancestors) required action.

From the beginning, the tribunes’ role was political. They were representatives of the whole Republic on the one hand but the spokesmen and leaders of the plebeian assembly (concilium plebis) on the other. They had the exclusive right to make motions in this assembly (ius agendi cum plebe, the right of transacting business with the plebeians). This responsibility assumed great importance after the Lex Hortensia (287 b.c.e.) ordained that the plebiscita (the resolutions of the concilium plebis) should have the same power as the leges enacted by the general assemblies of the people.

The most important special magistrate was the dictator. The Romans chose dictators only in times of extreme peril. A dictator was never elected but always created (creare) by a supreme magistrate—normally by a consul or, in the absence of a consul, by a praetor. The dictator had no colleague of equal standing, but he nominated a minor colleague, the magister equitum (commander of the cavalry) as his second in command. He was attended by twenty-four lictors. There was no recourse against the act of a dictator. The dictator's term invariably ended after six months or by the end of the appointment of the magistrate who had created him, whichever came first.

The Assemblies.

While the oldest of Roman assemblies, the comitia curiata (those divided into curiae), were to lose their political importance in Republican times and retained the responsibility only for certain matters of family and hereditary law, three other assemblies would become important: the comitia centuriata (divided into centuries), the comitia tributa (organized by tribes), and the concilium plebis.

According to tradition, the comitium centuriatum was established as a military unit by King Servius Tullius. The terminology concerning its subunits, the centuriae, derives clearly from the military sphere. In Republican times and particularly after the Licinian and Sextian rogations, the comitia centuriata were composed of 193 centuria. The centuria were divided into classes. The first eighteen centuria, at the top of the pyramid, were made up of equites (knights), that is, the patricians. The next eighty centuria, the first class, were composed of those men who had property worth at least 100,000 asses (according to Livy 1,42,4-1,43,13) or 120,000 (according to Pliny [Nat. Hist. 33.3.43]). The second class was composed of those worth 75,000 asses, the third of those worth 50,000 asses, the fourth of those worth 25,000 asses, and the fifth of those worth 11,000 asses. The second, third, and fourth classes comprised twenty centuria each, and the fifth class comprised thirty centuria. Then came five more centuria, three for craftsmen and two for proletarii, who had no property at all.

The comitia centuriata were reformed at the end of the third and beginning of the second century b.c.e. In the course of this reform, ten centuria were transferred from the first class to the second. The comitia centuriata had the following responsibilities:

• 1) electing the highest officeholders such as magistrates, consuls, praetors and censors;

• 2) passing bills (leges). A lex in the proper sense could only be passed by the comitia;

• 3) declaring war.

In the course of Rome's expansion into Italy, more tribus were created, in the end totaling thirty-five. The last were the Quirina and Velina in 241 b.c.e. From this year on, every Roman citizen had to be enrolled in one of the thirty-five tribus. It is evident that the city's population, which had grown enormously during the third and second centuries b.c.e., was not represented properly in the four urban tribus. Since most of the well-to-do people were enlisted in the seventeen tribus of the hinterland and since the vote of every tribus counted equally, a class division was superimposed on the territorial division.

In the beginning this assembly was presumably responsible for passing statutes. We can assume that it was easy to convoke the comitia tribus and secure a proper vote; every tribus had only one vote, and the majority of tribus decided the issue at hand. The comitia tributa also had the responsibility of electing the magistratus minores (such as the curulian aediles), and were therefore called comitia leviora (assemblies of lesser authority). The comitia tributa were also a sort of court of appeal for fines issued by the aediles.

The decline of the comitia tributa was connected to the rise of the concilium plebis, which was also made up of tribus. The resolutions of the concilium plebis having been given the force of law by the Lex Hortensia in 287 b.c.e., most important statutes after that time were passed in this assembly. It was the tribunes’ responsibility to convoke the concilium plebis (ius agendi cum plebe).

The Senate.

The Senate had an all-important role in coordinating Roman politics, though its constitutional responsibilities were rather inconsequential. Its importance stemmed from the former higher civil servants who were its members for life and who were held in high esteem. The Senate's resolutions (senatus consulta) were in most cases respected. The senatus consultum ultimum especially, which emerged at the end of the Republic, was regarded as expressing the sense of the whole body politic and was therefore duly executed.

The senators were initially divided into patres and conscripti, the former being the patricians and the latter the plebeians (who were conscripted [i.e., enrolled] in the Senate), but this division became obsolete after the Licinian and Sextian rogations. Following a custom originating with the Lex Ovinia (312 b.c.e.), the censors chose former magistrates as members of the Senate (lectio senatus) starting with the consuls and the praetors; later, the quaestors were also eligible. There was no fixed number of senators; it probably varied between three hundred and six hundred. The Senate was responsible for confirming with its auctoritas (informal decree of authorization) the statutes passed and the elections of magistrates by the assemblies. In ancient times this responsibility was reserved for the patres, but later it was extended to the conscripti as well. The Senate was also obliged to give its confirmation before a bill was passed or an election carried out. The Senate played an important role in the distribution of the provinces to former magistrates with imperium. The term provincia originally had no territorial implication but referred only to the constitutional competences and powers of former magistrates in the conquered territories, and the actual distribution was made by drawing lots.

The Roman constitution, which was based partly on statute law and partly on usage, worked astonishingly well after 366 b.c.e. Rome's enormous expansion—first in Italy, then in the East, and finally in the West—took place under this political system. One of the decisive preconditions for this success was a solid upper class made up of the patrician and plebeian gentes which functioned so well partly because it was able to accept new members. This upper class, the nobilitas, ruled the state through the magistracies, the assemblies (especially the concilium plebis), and the Senate. The preeminence of the latter derived from the presence among its members of the chiefs of the most eminent patrician and plebeian gentes.

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The constitution of the Roman Republic—under which a person's public power over his fellow citizens was legitimized by the office he filled, access to office was legitimized by election by the people or by appointment, and laws were issued by magistrates through their edicts or were enacted by the Roman people—disintegrated in the first century b.c.e. When Augustus became undisputed ruler of the Roman Empire in 31 b.c.e., he gave up all his offices. He thus restored the Republic in name, and until about 541 c.e. several Republican offices (praetorship, consulate) survived intact. But in reality things changed.

The Constitution of the Roman Empire.

Every year, Augustus allowed the Senate to grant him further tribunician and proconsular powers (potestas tribunicia, imperium proconsulare). He thus did not violate the rules of officeholding, because he did not technically occupy the office—though no one else was appointed tribune—but he nevertheless enjoyed all its power and perquisites. Through tribunician power he obtained sacrosanctity and the power to enact edicts, and through the imperium proconsulare he obtained the authority to appoint governors (as his delegates) in all provinces where legions were stationed. The governors of the other provinces were, at least during the first two centuries c.e., appointed by the Senate. Augustus thus quietly gained control of the army and the greater part of the Empire, was able to veto laws and senatus consulta, and could issue edicts. He was also appointed princeps senatus, which meant that he had the right to speak and vote first and was given the power to appoint new members of the Senate. All of this strengthened his position in that body.

This power, informal and formal, with which a formally private citizen was endowed was passed on to Augustus's successors by decree of the Senate, usually as heirs of the previous emperor. From the second half of the second century, the army wielded progressively more influence in this choice. Offices were filled by the emperor or by the Senate—in the latter case, at the instigation of, or at least without the veto of, the princeps. Of elections we hear nothing more after Augustus, although the Lex de Imperio Vespasiani, the law which conferred power on Vespasian, should have been ratified by the comitia of the Roman people. Leges rogatae are unknown. In the first century c.e., it must already have become customary for the accepted successor to the princeps to carry his titles of Caesar and Imperator and to be endowed with the same powers. Legislation was created by edict and by senatusconsults, but later, a mere speech (oratio) by the emperor in the Senate sufficed.

These developments took place during the first three centuries c.e.; by the beginning of the fourth century the transformation was complete. Senatusconsults are no longer mentioned as a source of law. A speech of the emperor, delivered to the Senate as a letter, was now considered a law (constitutio), as were his letters to officials (if it contained the word “edict” or if the letter was declared generally binding); his decrees, judicial decisions, and legal opinions were already considered so.

The political instability of the Empire in the third century—after the reign of Severus Alexander (r. 222–235)—with its wars between candidates for the throne, threatened the unity of the Roman state. To secure unity and stability, Diocletian (r. 284–305) designed a new executive structure. He divided the Empire into two administrative parts. Each part had an emperor (augustus) to govern it, and each emperor had a caesar as aide and successor: this constituted the Tetrarchy. The unity of the Empire was preserved by issuing new laws in the name of the Tetrarchy. Under Diocletian's system, succession was by appointment, but after his own abdication (305 c.e.) the dynastic principle soon reemerged. The Tetrarchy was dissolved and kinsmen appointed caesar or co-emperor, the senior emperor taking precedence. After 364 the Empire was divided into two parts, which would last (except for the period 390–395) until the reunification by Justinian I in 534–535. The formal unity of the Empire was maintained, all laws being issued in the joint names of all emperors, but in practice the parts were independent. Within the Empire the longer-reigning of the two emperors took precedence. Accession to the throne was now legitimized, if possible, by a family relation to the former emperor, and in any case by the approval of both the Senate and the army of the respective part of the Empire and by the acknowledgment of the Emperor of the other part. The Senate was reduced to a body of rank and social distinction.

Apart from these three elements of legitimization, no other condition was necessary for the emperor's power; his powers were less clearly defined than they had been in the Lex de Imperio Vespasiani. Long before the fourth century, the powers deriving from the tribunicia potestas and imperium proconsulare had fused into one imperial power and authority. This probably merely signified a transition to what would be called in modern terms a customary unwritten constitution, as contemporary writings opine that an emperor, although being the supreme lawgiver and judge, is bound by the law and may not transgress its boundaries without reason.

Administration in the Roman Empire.

The development of a bureaucracy furthered the transition from republic to empire. The Republican authorities scarcely had offices, and the first emperors, formally private citizens, ruled primarily through their private staffs, the accounts being managed as funds of the emperor (fisci caesaris). Under Trajan (r. 98–117), however, Roman citizens began to be employed in paid offices, offering career possibilities; thus was a civil service established (including military responsibilities). The main officials were the praetorian prefect, who acted as a prime minister with both civil and military duties, and the quaestor palatii, who acted as minister of justice. The magister libellorum (the master of petitions) functioned as head of the chancery division. The capital was administered by an urban prefect, the provinces by governors as representatives of the emperor. The state treasury (aerarium) was combined with the fiscus caesaris. As these officials were dependent on the emperor for their appointment and advancement, a hierarchy was established which further diminished senatorial power. Lastly, the possibility of appeal to the emperor, whose decision was binding, took away the judicial powers of the surviving Republican officers, while the Senate exercised an insignificant judicial office. Virtually all taxes were now collected through the imperial bureaucracy.

The development of the bureaucracy and the possibility of appeal caused a certain evolution of public law and even led to a monograph on the subject by the end of the second century, Callistratus's De iure fisci et populi. The bureaucracy, very small by modern standards, covered provincial and sometimes local administration, military administration, taxation and control of tax levy, and the administration of certain services considered important for the emperor: the supplying of Rome and later Constantinople with grain, wine, and meat for the public distributions.

Many administrative tasks in the cities were still customarily carried out by their richer inhabitants, first as honorific offices, and in the course of the third century increasingly as public obligations (munera)—in the same way as taxes were a munus—executed in turn and sometimes assisted by small bureaus. Likewise, the abovementioned supplying of the capitals for the distributions, which was first contracted out to entrepreneurs, devolved in the third century upon certain groups of citizens in certain provinces. In the same way, the actual levying of taxes now burdened the councillors of each town as a public obligation. Rules were developed, however, to ensure regular and fair taxation; the possibility of appeal ensured an equitable outcome, while adding to the body of administrative law.

Under Diocletian the number of provinces increased greatly. The Empire was divided into several prefectures, each administered by a praetorian prefect, while the two capitals were administered by urban prefects; all had jurisdiction within their territories. Some prefects were empowered to deal with appeals to the emperor as well (vice sacra iudicans, judging in the emperor's stead). Their function became mainly civil after Constantine created the magistri militum as army commanders. These prefectural territories were in turn divided into dioceses and these into provinces. Dioceses were ruled by vicarii (deputies) and provinces by governors (called by various names, like iudices, praesides, proconsuls, rectors). These too had jurisdiction. Since Diocletian had separated the military government from the civil government, provinces had military governors as well, with their own jurisdiction. The number of officials rose correspondingly, especially since by now each provincial governor, vicarius, and prefect had his own regular staff (officium). For the staff attached to the emperor himself (the militia palatina, palace guard), Constantine introduced a new office, that of the magister officiorum, who apparently controlled several bureaus (officia), such as the imperial secretariat (scrinia) and the imperial agents (agentes in rebus). Supervision over the mint and some taxation fell to the comes sacrarum largitionum (lit., count of the sacred largesse), whereas the quaestor palatii (palace quaestor) still functioned as a minister of justice. The comes rei privatae administered the private finances of the emperor.

Although the Empire was formally unified, in practice it was definitively divided into distinct halves after 395. The administration was separated, each (senior) emperor administering his own part; we find no cases of interference with the administration of the other part (such as appointing an official there). Likewise, appeals from within one part of the Empire went only to the emperor of that part. Theoretically, his laws, enacted in the name of all emperors, should have been valid in the entire Empire, but this is not certain. It is certain, however, that after 438 such a law, to be valid, had to be confirmed by the other emperor, so an emperor's legislative power was actually restricted to his own part of the Empire.

Until the beginning of the fourth century the government of towns had been left to the towns themselves, under limited control by the provincial governor, basically over the appointment of officials. The possibility of appealing a town's decisions to the emperor, however, did make it possible to exercise restraint on local government. Yet around the middle of the fourth century the imperial administration planted an official in the municipal government, the defensor civitatis, whose responsibility was to guard against mismanagement, including the judiciary. Taxes were still levied by the town administrations, under the control of the praetorian prefects or other branches of the imperial government like the sacrae largitiones, from whose decisions appeal was possible. The existing administration of the public distributions in Rome and Constantinople—which were considered, like taxes, as public obligations—were also refined, and here too the administration was more closely supervised. Several other industries or services considered necessary to the state (like arms factories, or diving for the mollusks that produced the prized purple dye), or necessary to municipalities (like fire protection), as well as local government, were brought into the sphere of compulsory public obligations—a trend which had started early in the third century. The sometimes complex rules for ensuring the continuity and fairness of administrative policy are found in the Theodosian Code of 438 and the Code of Justinian of 534. Administrative law, which was still rudimentary at the end of the second century, had—through the bureaucratization of the administration, the emperors’ need for control, and the Roman sense for law—become a branch of law, although it was of course not as expansive as civil law. Administrative law was now clearly distinct from both civil and penal law.

Constitution and Administration After 438.

During the fifth century the central administration of the western part of the Empire became weaker as a result of the settlement of Germanic tribes and repeated usurpations of the throne. It led to the overthrow of the Western emperor in 476. In accord with the constitutional unity of the Empire, the western parts now formally again fell under the administration of the Eastern emperor. It was on this basis that Justinian claimed the authority to reconquer the West. Until that time, Germanic lords had ruled their respective territories, which were still nominally part of the Empire. Sometimes these lords were appointed imperial governor: Theodoric the Great, for instance, ruled Italy as an imperial lieutenant and thus issued only edicts for his Roman subjects, not laws. Most administrative rules were now concerned with taxation. From Cassiodorus's Variae it is clear that the central administration in Italy was much weaker than before; in the other Germanic kingdoms it must have been even weaker. The real centers of government were now in the provinces with their town officials and the bishops as administrators.

In the East, on the contrary, government was concentrated in the central government. Beginning with Anastasius I (r. 491–518), decisions on the local level were no longer made by the town council but by the bishop and several principal landowners. As in the West, the administrative role of the bishops appeared to be growing. It was this state of affairs that Justinian found on his accession to the throne in 527.

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Jones, A. H. M. The Later Roman Empire 284–602. Oxford, U.K.: Blackwell, 1964.Find this resource:

Jones, A. H. M. Studies in Roman Government and Law. Oxford, U.K.: Blackwell, 1960.Find this resource:

Karayannopoulos, Johannes. Das Finanzwesen des frühbyzantinischen Staates. Munich, Germany: Oldenbourg, 1958.Find this resource:

Marquardt, Joachim. Römische Staatsverwaltung. Leipzig, Germany: Hirzel, 1873–1878 (1st ed.); 1884–1885 (2nd ed.); reprint, Darmstad, Germany: Wissenschaftliche Buchgesellschaft, 1952.Find this resource:

Millar, Fergus. The Emperor in the Roman World. London: Duckworth, 1977.Find this resource:

Sirks, Boudewijn. Food for Rome. Amsterdam: J. C. Gieben, 1991.Find this resource:

Talbert, Richard J. A. The Senate of Imperial Rome. Princeton, N.J.: Princeton University Press, 1984.Find this resource:

Byzantium inherited its definition of public law from the Romans (Digest 1.1.1.2 = Basilica 2.1.1), but never elaborated the concept and never brought it to bear on practical problems. Nevertheless the Byzantine state had to be governed, and insofar as rules were laid down for its administration in the wider sense of the word, we may apply the term “public law”—anachronistically—to Byzantium. The same holds good for “constitution”: we would look in vain for a system of checks and balances, in written or unwritten form, and we may describe the power of the emperor—the sun around whom the planets revolved in the Byzantine universe—as unlimited. Lower organs of the state did, however, stand in a certain legal relationship to the emperor and to one another. These relationships sometimes were the subject of legislation but more often were understood as self-evident. They were the subject of parts of Justinian's Corpus Iuris Civilis, mostly in the form of regulations of the various offices of the state. Many of these were handed down over the centuries. This does not mean that they were applied in practice, as subsequent emperors legislated very little in this area. Exceptions are the Book of the Eparch and titles 2–11 of the Eisagōgē, the latter programmatic rather than actual law. The Byzantine state never became feudal in the western sense of the word.

The Roman idea of an elective emperorship was never lost and was symbolized by acclamations at the coronation. The emperor was considered God's representative on earth, though the participation of the patriarch in the coronation probably should not be interpreted as having “constitutional” significance.

A special aspect of Byzantine public law was the relation between church and state, another problem never resolved by legislation. There was no separation between the two: it was recognized that the emperor had a position in the church. There were in practice distinct spheres of influence, though with considerable overlap. In legal writing we occasionally find descriptions of the problem, but never clear suggestions for its solution.

The emperor was the source of all law; his decisions had the force of law (Digest 1.4.1 pr.). He was, in the words of Ulpian, legibus solutus (not bound by laws; Digest 1.3.31), although he voluntarily lived by the laws (Institutes 2.17.8). Insofar as all this was elaborated in a legal theory, an abstract concept of justice was usually postulated as the legitimation of positive law.

The Roman idea of citizenship lived on in the sense that all free inhabitants of the empire were Rhōmaioi, on condition that they explicitly recognized the direct supremacy of the emperor and vowed orthodox adherence to the legally defined creed.

Dagron, Gilbert. Empereur et prêtre: Étude sur le “césaropapisme” byzantin. Paris: Gallimard, 1996.Find this resource:

Pieler, P. E. “Verfassung und Rechtsgrundlagen.” Jahrbuch der österreichischen Byzantinistik 31, no. 1 (1981): 213–231.Find this resource:

Simon, D. “Princeps legibus solutus.” In Gedächtnisschrift Wolfgang Kunkel, edited by Dieter Nörr and Dieter Simon, pp. 449–492. Frankfurt am Main, Germany: Klostermann, 1984.Find this resource:

The traditional view of public or administrative law in England has been historical and skeptical of its existence in the English common law. It has focused on the working of administrative tribunals or recognized the role of the old prerogative remedies for reviewing administrative action, but under an undifferentiated ordinary law administered by ordinary courts, not under a public law distinct from private law. Most clearly since Albert Venn Dicey's foundational analytical work Law of the Constitution (first published in 1885), that historical view has coincided with comparative and normative views. The coincidence of historical, comparative, and normative views profoundly affected understandings of the English common law and its modern development. That coincidence will be clarified and its lasting significance suggested by separating the historical from comparative and normative views and by considering their various and joint implications for understanding the development of a public law distinct from private law in the English context.

The Traditional Historical View.

In his Law of the Constitution, Dicey formally adopted an analytical legal view of the constitution and expressly distinguished it from a historical view so that the lawyer might properly study “before ‘the law’ as it now stands.” His analytical view of the English constitution—unwritten and evolving—was, however, also a historical view. In his famous chapter on the rule of law, he accordingly described the idea of administrative law administered by special or official courts as “utterly unknown to the law of England” and as “fundamentally inconsistent with our traditions and customs” (p. 203). His analysis of the absence of an administrative law under the English constitution was reinforced elsewhere in Law of the Constitution by a rhetorical invocation of English legal history. In his chapter on administrative law, Dicey observed “how nearly it came to pass that something very like administrative law at one time grew up in England” through the development of the King's prerogative jurisdiction by the Privy Council and Star Chamber in the sixteenth and early seventeenth centuries (p. 379). Although recognizing that the Privy Council and Star Chamber did then “confer some benefits on the public,” he emphasized their arbitrary authority and identified them principally with the tyranny of the Stuart monarchs (p. 379). In the constitutional struggles of the seventeenth century, Dicey saw the resistance of the “fanatics for the common law” against the “tyranny of the Stuarts” and the eventual triumph of the “friends of freedom” in the abolition of the Star Chamber and the disappearance of the Privy Council's “arbitrary jurisdiction” (pp. 379–380). Dicey explained that, thereafter, Parliament “did not suffer any system of administrative courts or of administrative law to be revived or developed in England” (p. 380). For Dicey, the consequent absence of an English administrative law was manifest in the many cases by which officials were, in the same way as ordinary citizens, liable in their personal capacity to pay damages for their official acts in excess of lawful authority.

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The Privy Council. A judicial committee of the Privy Council in session, 1846. Mary Evans Picture Library

Apart from invoking the historical demise of the Privy Council's specialized prerogative jurisdiction and whatever embryonic English administrative law had accompanied it, Dicey did not dwell, and, presumably, saw no need to dwell, on the prerogative remedies developed by the ordinary common-law courts themselves. From about 1600, the ordinary courts developed judicial review through the granting of the prerogative remedies of certiorari, mandamus, and prohibition to control inferior jurisdictions and local government. For at least three obvious reasons, however, which Dicey would surely have emphasized had there been any doubt or argument to the contrary, the old prerogative remedies did not provide a historical basis for a distinct English public law or for administrative law as Dicey saw it.

First, they were not granted by a separate set of specialized administrative judges. They were awarded principally out of the Court of the King's Bench, but alongside numerous other remedies. The King's Bench did have two sides—a Crown side and a Plea side—but the same judges served on both sides, and the prerogative remedies were in any event not confined to the Crown side. Certiorari was available on the Crown side; mandamus, on the Plea side; and prohibition issued from the Courts of Common Pleas and Chancery as well as from the King's Bench.

Second, each of the prerogative remedies developed peculiar characteristics and requirements. Therefore, until the second half of the eighteenth century, they were not even classified together, let alone as public-law remedies. They were available against persons or bodies who were public in some sense or other, but alongside the ordinary remedies of a declaration, an injunction, and an award of damages in tort.

Third, the ordinary remedies, also available in public law, were themselves not distinctly private. Officials in their personal capacity were, for instance, liable in tort for official acts in excess of authority. Even the writ of trespass, the vehicle for the early development of tort liability in English law, itself had a public component evident in the requirement that the plaintiff allege that wrongs had been committed vi et armis (with force and arms) and contra pacem regis (against the king's peace). In the English constitutional tradition, the development of judicial review through the granting of prerogative remedies was obviously not the historical basis for a distinct English public law. Rather, it afforded yet further evidence of its absence.

Departures from Tradition.

From the historical Diceyan perspective, the various institutional and procedural shifts of the late nineteenth and twentieth centuries towards a distinct public law applied by specialized administrative tribunals or according to special procedures were threatening departures from tradition. The proliferation of various administrative tribunals to resolve the disputes of an expanding and increasingly complex administration were belatedly recognized by Dicey (“Development of Administrative Law”) and denounced by Lord Chief Justice Hewart. They were investigated by two official committees of enquiry—the Donoughmore Committee and the Franks Committee—and decisively subordinated under the independent judicial control of the ordinary courts by the Tribunal and Inquiries Act 1958.

The procedures of the ordinary courts in judicial review were, however, themselves consolidated in response to perceived peculiarities of administrative disputes. Procedural reforms proposed by the Law Commission in the 1970s culminated in judicial recognition of judicial review procedure as distinct and exclusive in public law (O’Reilly v. Mackman [1982] 3 All ER 680 [CA], 1124 [HL]). The stated purpose of exclusivity in judicial review was to safeguard against circumvention procedural protections for public authorities, notably a short time limit and the liminal requirement of obtaining leave of court. Although leading judges, such as Lord Denning and Lord Diplock, recognized an English distinction between public and private law (e.g., in Town Investments v. Department of the Environment [1978] AC 359 and Gouriet v. Union of Post Office Workers [1978] AC 435), academics, such as Sir William Wade, questioned the general administrative necessity of the procedural safeguards and stressed the indeterminacy of the concepts of public and private law or the difficulty or impossibility of applying them consistently to the hybrid public and private institutions or functions of modern government. In general, they criticized the inadequacy of distinguishing criteria and the fruitless litigation on the situations in which judicial review might or must be sought. In response, the courts adopted a flexible pragmatic approach by allowing exceptions to the exclusivity of judicial review procedure in public law (e.g., Roy v. Kensington and Chelsea and Westminster Family Practitioner Committee [1992] 2 WLR 239 and Mercury Communications Ltd v. Director General of Telecommunications [1996] 1 WLR 48). That approach was reinforced after the introduction of new Civil Procedure Rules in 1998 (Clark v. University of Lincolnshire and Humberside [2000] 3 All ER 752).

The partial retreat from a rigid procedural distinction between public and private law may be contrasted with the deepening of an institutional distinction. From 1981, the Crown Office List of judges was compiled to ensure that judges familiar with public law deal with cases of judicial review. In 2000, when the new Civil Procedure Rules were extended specifically to cover judicial review, the Crown Office List of judges was referred to as the Administrative Court (The Civil Procedure [Amendment No. 4] Rules 2000). However necessary an English public law with more specialized judges and special but flexible procedures might have been to deal with the proliferating cases involving public institutions or the exercise of public functions, from a historical perspective, it was a recent innovation. As such, whether and how it might be accommodated within the institutions, procedural tradition, and old understandings of the English common law became questions of current domestic concern.

The Comparative View.

The traditional historical view challenged by procedural and institutional innovation was also a comparative view. Dicey demonstrated the absence of an English public law with repeated and often disparaging references to the administrative law and administrative tribunals of France. Expanding a section in his original Lecture Five into chapter 12 of his third and later editions of Law of the Constitution, Dicey elaborated on French administrative law to emphasize fundamental inconsistency with the English rule of law. In so doing, he relied heavily on Tocqueville's critical description of the French Council of State as the institutional means by which officials were exempted from the operation of French law (Law of the Constitution, pp. 355–358). Invoking episodes in French history as he had their supposed English equivalents, Dicey condemned the Council and the administrative jurisdiction it had developed for its origins in the ancien régime and its revival by the despot Napoleon. For Dicey, the French “so-called ‘separation of powers,’” by which the French distinction has traditionally been explained, was a “dogma” based on a “double misconception”—Montesquieu's misunderstanding of the English constitution and the French revolutionaries’ misunderstanding or misapplication of Montesquieu's doctrine (Law of the Constitution, pp. 337–338).

Dicey's comparative view, however flawed, inter alia, in its reliance on Tocqueville, who Dicey admitted “knew little or nothing of the actual working of droit administratif in his own day” (Law of the Constitution, p. 392) and had distorted French history by exaggerating the continuity of France before and after the Revolution (Law of the Constitution, p. 358), was nonetheless influential in providing the focus of the English debate that Dicey's Law of the Constitution provoked. The typical focus of a comparative view is similarity (or dissimilarity)—approximations to it or departures from it. Dicey's comparative view made of the French distinction between public and private law the standard by which similarity would be assessed in debates on the existence of and desirability of developing an English distinction. It became the standard to be rejected or received, as a whole or in part. That standard was not “a complex set of distinctions” (Cane, p. 57) between concepts of public and private in a variety of contexts drawn for a variety of legal purposes. Rather, it was the summa divisio of Continental legal thought, the supreme distinction between main branches of law with institutional and procedural manifestations and closely related to notions of the state, whether identified with institutions or functions.

A common Diceyan comparative perspective was shared by leading participants in the debate about an English public law. Whereas Lord Chief Justice Hewart, for example, rejected an English administrative law associated with the proliferating administrative tribunals, William Robson praised its development and proposed its refinement into a system headed by an Administrative Appeal Tribunal. Robson's institutional proposal for what would have been an English equivalent to the administrative jurisdiction headed by the French Council of State was officially rejected by the Donoughmore and Franks Committees of Enquiry. The reform of judicial review procedure, however, had a different outcome. In the consolidation of judicial review procedure as exclusive in public law, Lord Denning recognized that “we have thrown over Dicey and gone back to Justinian” (Denning, p. 119), in other words, to Ulpian's distinction between a law pertaining to the Roman state and a law pertaining to the interests of individuals, the classical source of the Continental summa divisio between public and private law. In the development of an English approximation to the French or Continental standard was the partial reception of a hazardous legal transplant to which the English context might or might not prove accommodating. To the extent that the English procedural distinction between public and private law, together with the institutional demarcation of the Crown Office List or the Administrative Court, approximated to the Continental summa divisio, it both attracted traditional criticism and necessitated discussion of the dangers of legal transplantation and how they might be averted or reduced.

Normative Views.

The traditional historical and comparative view of a separate public law was also a normative view. Dicey's elaboration of the contrast with French administrative law and his invocation of the demise of its embryonic English equivalent in the seventeenth century were intended to explain the English rule of law and, in particular, its principle of equal subjection of all to the ordinary law of the ordinary courts. His abundant and emotionally charged historical and comparative references— whether to the King's Council of the ancien régime, Napoleon Bonaparte's Council of State, or the heroic struggles of the English common lawyers against abuses of the prerogative by the Stuart monarchs—rhetorically reinforced the normative significance of his explanation.

Dicey's rhetorical references and negative normative view of the distinction between public and private law as the means by which officials were rendered immune from the ordinary law of the ordinary courts contributed to the lasting influence of Dicey's antipathy towards public law. It was, however, eventually complemented, contradicted, or clouded by other normative views accompanying recognition of public law in England but varying in their focus upon the summa divisio at the center of domestic debate. Five of these views illustrate the variation in normative outlook.

One critical view with a markedly Diceyan aspect was of a public/private classification inapplicable to the hybrid institutions and functions of modern government and therefore little more than a “formalist façade” behind which the judiciary was attempting “to shield from public criticism some highly executive-minded decisions” (Harlow, p. 265). A second view, in support of a fundamental distinction, was of a public law under which the state is held, not immune, but accountable in performing its duty to show equal respect and concern to its citizens (e.g., Allan, pp. 125ff., 157ff.). A third, similarly supportive, view was of “the area of central regulation and public planning” under public law distinguished from “the area of autonomy within which individual transactions may have effect according to the will of the parties” under private law (Simmonds, p. 130, for example).

A fourth view was of a range of public/private distinctions necessarily drawn in different contexts for different normative reasons—whether they relate to access to governmental information, procedural protections for public authorities, or privacy and freedom of the press. In place of the summa divisio, of questionable applicability to the hybrid institutions and functions of modern government, were various lesser distinctions, whose significance and determinacy depend on precision in the binary applicability of the norms by which they are justified (Cane, “Public Law and Private Law”; Allison, pp. 98ff.).

A fifth view, now added to the fourth in the light of an article by Gunther Teubner, is of two polar normative rationalities—one of “social co-operation,” the other of “individual autonomy”—between the demands of which a balance is struck “in the context of particular social activities” (Cane, “Accountability and the Public/Private Distinction,” p. 275). Teubner, however, proposes, not another conceptualization of the public/private divide, but its replacement by “polycontexturality” understood in terms of multiple perspectives or rationalities of multiple social activities: “the simple distinction of State/society which translates into law as public law v. private law needs to be substituted by a multiplicity of social perspectives which are simultaneously reflected in the law” (p. 396). This fifth view, taken from Teubner but used to defend a normative public/private distinction, responds to privatization and consequent institutional and functional hybridization. It envisages, however, two highly abstract polar rationalities and rests on a nebulous balancing—“probably a euphemism” (Teubner, p. 420)—between their demands and those of other rationalities. Concrete implications for the procedural and institutional summa divisio accompanying the consolidation of judicial review procedure and the introduction of what is now called the Administrative Court are unclear.

The clear traditional normative view has refracted or doubly refracted into multiple normative views varying in content and focus upon the distinction in its English historical context. Normative views now highlight contested issues about the state—its distinctness, how it should function, and the centrality that should be attributed to it. They derive legal significance, however, from their relation to context and, under the unwritten and evolving English constitution, historical context in particular.

In the English historical context, the traditional Diceyan normative view coincided with historical and comparative views, at the center of which was the summa divisio between public and private, which culminated in the dual French jurisdiction but, until Dicey's influence waned, was not received into the English common law. To the extent the summa divisio was eventually received, it provided a clear target for traditional criticism and a traditional focus for wide-ranging debate. The eventual development of an English public law around judicial review and much of the debate it has provoked negated the traditional Diceyan view but has also demonstrated its enduring significance.

Allan, T. R. S. Law, Liberty, and Justice: The Legal Foundations of British Constitutionalism. Oxford and New York: Oxford University Press, 1993.Find this resource:

Allison, J. W. F. A Continental Distinction in the Common Law: A Historical and Comparative Perspective on English Public Law. Oxford and New York: Oxford University Press, 2000.Find this resource:

Cane, Peter. “Accountability and the Public/Private Distinction.” In Public Law in a Multi-Layered Constitution, edited by Nicholas Bamforth and Peter Leyland, pp. 247–276. Oxford, U.K., and Portland, Ore.: Hart, 2003.Find this resource:

Cane, Peter. “Public Law and Private Law: A Study of the Analysis and Use of a Legal Concept.” In Oxford Essays in Jurisprudence (Third Series), edited by John Eekelaar and John Bell, pp. 57–78. Oxford, U.K.: Clarendon Press, 1987.Find this resource:

Denning, Lord Alfred. The Closing Chapter. London: Butterworths, 1983.Find this resource:

De Smith, S. A. “The Prerogative Writs.” Cambridge Law Journal 11 (1951): 40–56.Find this resource:

Dicey, Albert Venn. “The Development of Administrative Law in England.” Law Quarterly Review 31 (1915): 148–153.Find this resource:

Dicey, Albert Venn. An Introduction to the Study of the Law of the Constitution. 10th ed. London: Macmillan, 1959.Find this resource:

Flogaïtis, Spyridon. Administrative Law et Droit Administratif. Paris: Librairie générale de droit et de jurisprudence, 1986.Find this resource:

Harlow, Carol. “‘Public’ and ‘Private’ Law: Definition without Distinction.” Modern Law Review 43 (1980): 241–265.Find this resource:

Henderson, Edith G. Foundations of English Administrative Law: Certiorari and Mandamus in the Seventeenth Century. Cambridge, Mass.: Harvard University Press, 1963.Find this resource:

Hewart, Baron Gordon. The New Despotism. London: Ernest Benn, 1929.Find this resource:

Robson, William A. Justice and Administrative Law: A Study of the British Constitution. London: Macmillan and Co., 1928.Find this resource:

Simmonds, Nigel E. The Decline of Juridical Reason: Doctrine and Theory in the Legal Order. Manchester, U.K.: Manchester University Press, 1984.Find this resource:

Teubner, Gunther. “After Privatization? The Many Autonomies of Private Law.” Current Legal Problems 51 (1998): 393–424.Find this resource:

Premodern works of Islamic law were not organized on the basis of private law versus public law. This does not mean, however, that these categories are foreign to Islamic law or otherwise amount to the imposition of a framework for understanding Islamic law that distorts, rather than illuminates, the subject. Instead, Muslim jurists formulated a vast number of rules that regulated the conduct of both private individuals and the state. The basic unit of legal analysis for Muslim jurists was the ḥaqq. In Langdellian fashion, a ḥaqq consists of an obligation owed by someone or something (for example, an endowment or the public fisc) to another person or thing. A ḥaqq is simultaneously a right and an obligation. Accordingly, such rules as govern the rights and obligations of natural persons can be reasonably thought to correspond to private law, while rules governing the obligations of the state or its agents or instrumentalities, for example, the public fisc, can be thought to correspond to public law.

While Muslim jurists, beginning in the fifth century a.h., wrote specialized works treating the rules of law that applied to the state and state actors, for example, Al-ahkam al-sultaniyya of Abu al-Hasan al-Mawardi and Tabsirat al-Hukkam of Ibn Farhun, general legal treatises continued to include chapters on matters of public law, including the law of war and the rules governing judicial procedure. In addition, many chapters of such treatises, even if primarily concerned with private law, included rules of public law, for example, the particular conditions of sales conducted by the state.

Modern scholars of Islamic law have generally accepted the notion that the distinction recognized by Muslim jurists between the ḥuqūq Allāh, the “rights of God,” and the ḥuqūq al-ʿibād, the “rights of man,” corresponds to the distinction between public law and private law, respectively. As will be seen below, however, Islamic public law is not limited to the rights of God.

Private Law.

Property rights are paradigmatic of private rights in premodern Islamic law. When property is the subject of an individual's ownership (milk), all others generally have a duty to abstain from using, enjoying, or harming that property in any way without the permission of its owner. Conversely, an individual who owns property is given the right to dispose of that property by sale, give it as a gift, or enjoy it in any fashion, subject only to the duty to respect the property rights of others. The protection of property against encroachment by others, of course, also extends to the state, and thus even the state could not lawfully take an individual's property without the owner's consent except in extraordinary circumstances, and even in that case only after paying compensation. All other private rights were, either implicitly or explicitly, analogized to the laws governing property.

Public Law.

Public law consists of all rules governing the rights and duties of the government, or agents of the government when acting in that capacity, as well as its instrumentalities. In Islamic law, public law arises in at least three general contexts. The first arises out of the government's function as arbiter of private claims and as coordinator of the activities of the individuals within its jurisdiction. The second arises out of the government's function as agent both for individuals, for example, in cases where they are unable to act for themselves, and for the public, for example, the management of public property. Finally, public law also arises to insure that certain mandatory rules of law are either enforced or potentially enforced. I will discuss each of these subcategories of public law briefly, in turn.

Johansen, Baber. “Sacred and Religious Element in Hanafite Law: Function and Limits of the Absolute Character of Government Authority.” In Islam et politique au Maghreb: Table ronde du CRESM, Aix, juin 1979, edited by Ernest Gellner, Jean-Claude Vatin, et al., pp. 281–303. Paris: Éditions du Centre National de la Recherche Scientifique, 1981. An essay describing the division of rights in the Hanafi madhhab between the rights of God and the rights of man.Find this resource:

Johansen, Baber. “Eigentum, Familie, und Obrigkeit im hanafitischen Strafrecht: Das Verhältnis der privaten Rechte zu den Forderungen der Allgemeinheit in hanafitischen Rechtskommentaren.” Die Welt des Islams 19 (1979): 1–73 (30–36 for talio, 47–52 for taʿzīr). The first time that the public character of the private claim for talio as well as the public and private character of taʿzīr has been treated in detail.Find this resource:

Emon, Anver M. “Huquq Allah and Huquq al-‘Ibad.” Islamic Law and Society 13, no. 3 (2006): 325–391. Discusses how Muslim jurists, using the concepts of huqūq al-ʿibād and huqūq Allāh, attempted to balance the rights of individuals against the interests of the public.Find this resource: