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220 Chapter 2 Roman Political Institutions Taking the categories of the classical nineteenth century study by Theodore Mommsen,1 we can distinguish what, in Roman “constitutional” law and public law in the Republican period, comes under the magistracies, the people, and the senate. However, in the Imperial period the Roman state undergoes a change of nature and the institutions of this period, the Principate and the Dominate, must be considered as sui generis systems. Finally, we will devote separate presentations to the institutions of territorial administration and the social orders.2 I. Magistracies At the apogee of the Republican period, there were no more than 30 high magistrates,3 enough to run the state. It gives an idea of the remarkable efficiency of the system. A. The Concept of Imperium High magistrates in Rome (dictators, consuls, praetors, interreges, promagistrates in the provinces ) were “vested with imperium.” Imperium was a legacy of Etruscan royalty. It was the civil and military power of command and was, at the outset at any rate, absolute (it encompassed the 1 See Yann Thomas’s preface to the republication of the French translation of Theodore Mommsen’s Droit public romain [Roman public law] (Paris: De Boccard Édition Diffusion, 1984). 2 In this chapter we draw on Gaudemet, Les institutions de l’antiquité [Institutions in Antiquity]; Humbert, Institutions politiques et sociales de l’antiquité [Political and social institutions in antiquity]; and Claude Nicolet et al., Rome et la conquête du monde méditerranéen [Rome and the conquest of the Mediterranean world], 2 vols. (Paris: Presses Universitaires de France, 1993–94). 3 Not including junior officials. Chapter 2. Roman Political Institutions 221 right of life and death). Its symbol was the axe in the fasces4 of the lictor (one or more lictors escorted the magistrate who was “vested with imperium”; the number depended on the rank of the official). Imperium was, in essence, religious. It was not a power or mandate granted by the people, even if, under the lex curiata de imperio (“curiate law5 on imperium”), the people ratified a magistrate ’s appointment. Strictly speaking, the people could not grant powers it did not have; it could only entrust certain citizens with the monopoly for taking the auspices, a de facto gift of power. The gods remain the true source of power. Thus, Roman political power was neither as rationalized nor “secularized” as it was in Greece: the Romans, and the absolutist European tradition that followed after them, ceased to demand of power that it “use reason” in everything it did: power retained a sacred, awe-inspiring character.6 The transition from monarchy to republic did not fundamentally impact the essence of imperium; rather, it divided it among several holders and made it nonpermanent (annual appointments). A distinction is made between imperium domi and imperium militiae: • Imperium domi. This was the civil power inside the pomerium;7 it was political, judicial, and coercive. As the political power it could convene the assemblies8 or the Senate; it could pass laws (a right also held by the plebeian tribunes, although they did not “possess imperium”). Judicial power was exercised by the praetors. Coercive power included a right of life and death over citizens , which was soon withdrawn from magistrates inside the pomerium when a “right of appeal to the people” was granted (provocatio ad populum; the right of a citizen to be judged by the assemblies). For this reason the bronze axe disappears from the fasces of the lictors of urban magistrates after 300 BC. • Imperium militiae. This was the authority to command the armed forces, to collect “tribute” (a tax to cover the costs of war paid by noncombatants), to raise an army, to share the spoils of war, to convene a Century Assembly9 (promagistrates did not have this power), to engage armed forces in war outside Rome. Holders of this power also ran the civil and criminal courts in the provinces (for the governors). In due course, restrictions were placed on this power. B. The General Principles of Roman Magistracies The term “magistracy” was used by the Romans themselves: the magister is someone who is “greater than” his fellow citizens. He has potestas, a power or authority that allows him to enforce that part of the state’s coercive force specified according to the magistracies, and to act in the name of the Republic. 4 Translator’s note: Bundles of rods tied around the sacred stave or axe of the lictor. 5 For the meaning...

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