12 THE ROMAN EMPIRE
of the Principate as instituted by Augustus. The position of the clause in the
statute may hold the key to the puzzle. It is followed by a seventh clause
exempting Vespasian from certain statutes, and an eighth validating
retrospectively his actions before becoming ruler. In this context, it is plausible
to interpret the clause as a grant of residual emergency powers.^27 However
the clause is interpreted, the law lays bare the fundamental ambiguity of the
constitutional position of the emperor, as shaped by Augustus. The emperor
was dominant but was not formally omnipotent, in so far as he looked to
Republican institutions and procedures for the legitimation of his power.
A similar dilemma arises over some juristic texts from the Severan period,
preserved in the sixth- century Digest of Justinian. Gaius in his Institutes had
produced the non sequitur that imperial constitutions had the force of statute
( lex ) ‘since the emperor himself receives his power by statute’ (Gai. Inst. 1.2).
Ulpian in his Institutes goes further than Gaius along the same track in
asserting, no more convincingly, that the conferral of power on the emperor by
statute involved no less than the transference of the powers of the people to
the emperor (Ulp. Dig. 1.4 1 pr-1). There is a ‘source problem’ here: this and
other such texts are snippets lifted by Justinian’s compilers from centuries- old
juristic treatises. They are cited out of context, and their wording was often
transformed in the process. We have no means of telling whether Ulpian’s
statement is an off- the-cuff remark or is part of an extended discussion of a
theoretical nature – although the consensus seems to be that Roman jurists
were not prone to indulge in theoretical or philosophical analysis of any depth.
A second problematic text from Ulpian states baldly that ‘the emperor is
not bound by statutes’ (and goes on to discuss, in a sentence, the position of
the empress) (Ulp. Dig. 1.3.31). The fact that this is a fragment taken from
Ulpian’s treatise on the Lex Julia et Papia gives a clue to the original context
and meaning. Ulpian was discussing the senatorial privilege of exempting
the emperor, not from all laws, but from particular laws, or parts thereof,
here the clause in the marriage laws, sponsored by Augustus himself, which
imposed disabilities on unmarried or childless persons.^28 The seventh
surviving clause of the law for Vespasian refers in a general way to imperial
exemptions that are written into particular statutes, citing as examples
Augustus, Tiberius and Claudius. The text attributed to Ulpian was no
doubt music to the ears of Justinian, who regarded himself as the embodiment
of law ( Novellae 105.2.4), and to later European autocrats. But the jurists
of the late second and early third centuries still conceptualized imperial
power as falling short of omnipotence, in as much as they conceded that it
originated in statutes promoted by the senate and the Roman people.
Politics
In a restored Republic the senate should have been the governing body of
the empire. In practice old- style politics, where decisions were made in the