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Imperial Backtalk: Using Legal Discourse to Refute an Emperor

Ryan A Pilipow

University of Pennsylvania

In this paper, I argue that the late Roman discourse of law served as a tool for disrupting a traditional social, political hierarchy. Legal experts, such as jurists and advocates, were proficient in this discourse and thus were uniquely qualified to direct, question, and refute imperial power. To highlight the disruptive power of legal discourse, I analyze a case from Ammianus Marcellinus in which the imperial quaestor, Eupraxius, publicly corrects the ruthless emperor, Valentinian. Eupraxius’s refutation of the emperor demonstrates the power that resided in legal rhetoric—even in the highest spheres of the roman world. 

The relationship between emperor and law has been a subject of dispute among Roman historians for a long time. An early trend in scholarship interpreted the emperor’s position as the collection of constitutionally mandated prerogatives (Mommsen 1871-1888). This trend found challengers in scholarship that privileged the social or functionalist attributes of the emperor. In the functionalist scholarship, the emperor decided cases by virtue of his primacy in the Roman political and social world. The emperor responded to the problems brought to him—a practice that re-inscribed his position as the center of the Empire (Millar 1992, Connolly 2010, Harries 2012). Some scholars have attempted to qualify the potentially wide ranging powers of the Late Roman emperor in the functionalist scholarship by arguing for a professional class that advised the emperor’s legal decisions (Harries 1988, & Honoré 1994, 1998). I integrate the two later approaches and employ a model of legal culture that sees legal decisions, practices, and actors as communicative across the entire world (Galanter 1981). The model is useful in that it allows us to see the emperor, legal expert, and any other inhabitant of the Roman world as part a single legal network. One of the ways the network can be activated is through the use of legal discourse. That discourse was influential enough to challenge and even refute the emperor, who was simply a single, albeit powerful, actor. 

Ammianus Marcellinus liked courtroom dramas (Matthews 1989 & 1992). For Ammianus, courts were stages for bloody tragedies and pointed comedies. Litigants, judges, and emperors argued over what could or could not be done according to law. Good emperors followed the law or freely forgave those who came into court (Amm. Marc. 16.5.12 & 18.1). Bad judges and emperors considered their own violent inclinations as the criteria for guilt or innocence (27.7.9 & 26.10.10-12). The ultimate sign of imperial abuse was when an emperor changed or disregarded the law, as Valentinian did when he gave Maximinus, a prefect of the annona, the power to prosecute all cases with the severity of treason trials (28.1.11). This expanded power allowed the prefect to torture even nobles, who were usually protected against such treatment. By vitiating these “legal” protections, Valentinian revealed himself to be a bad actor in the legal discourse. In response, the senatorial class of Rome sent an envoy to the emperor to protest their treatment. The envoy seemed doomed until Eupraxius, the just quaestor, interrupted on their behalf, contradicting the emperor’s account of the situation’s legality. Remarkably, Eupraxius’s intervention—on the basis of law—saved the protesting elites. Valentinian conceded that he had overstepped.

Eupraxius’s story has been interpreted as an example of the ideal quaestor who courageously guides the emperor (Honoré 1986, Kelly 1997, Harries 2004). I argue that in addition to seeing Eupraxius as a virtuous bureaucrat, we also see Eupraxius as a sophisticated user of legal discourse. By employing this discourse, the quaestor removed the emperor from the traditional political discourse he was accustomed to and instead placed Valentinian in a discussion of law where Eupraxius had the upper hand. The discourse of law was utilized by individuals to negotiate with, and even overcome, some of the most powerful rulers of the Roman world. 

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Legal Culture

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