Ulpian Issues Dictum in Rome Summary

  • Last updated on November 11, 2022

Ulpian’s dictum constituted an early statement on theories of government, clothing an absolutist reality with a veneer of constitutionalism.

Summary of Event

One of the most famous phrases in the Digesta (533 c.e., also known as Pandectae; The Digest of Justinian, 1920) of Justinian’s Corpus Juris Civilis, or body of civil law, is Ulpian’s statement concerning the origin of the emperor’s authority: “What pleases the prince has the force of law since by the lex regia which was passed concerning his authority, the people transfer to him and upon him the whole of its own authority and power.” Ulpian

Early Roman law asserted that law was an enactment of the whole people in assembly. In time, however, decrees of the senate were accepted as replacements for laws because of the impracticality of calling together and consulting the entire populace. By the first century c.e., however, the power of the princeps had so overshadowed the authority not only of the people but also of the senate that it could no longer be ignored. While it was an established fact of political life that imperial decrees were also laws, Ulpian attempted to protect the ancient popular rights by assuming that this authority rested on a grant of power by the people through a so-called lex regia. There is no evidence of such a law except possibly an extant “lex de imperio Vespasiani” (69-70 c.e.), whereby Emperor Vespasian was granted sovereignty and in which the rights held by his predecessors are mentioned. It is doubtful that any such formal grant was made later than that. In this fiction of the lex regia, Ulpian clothed an absolutist reality with a veneer of constitutionalism.

Thus, two apparently contradictory concepts are contained in this one statement: unlimited imperial authority and the ultimate sovereign rights and power of the people. This opinion of Ulpian caused the Roman people no difficulty because the power of the emperor was a fact, while the sovereignty of the people was a theory accepted by all, even the emperors.

Significance

In the course of the Middle Ages, however, two divergent traditions developed from Ulpian’s statement: the absolutist and the constitutional concepts of monarchy. Ulpian’s dictum did not create these terms of reference, but supporters on either side of the issue made use of his authority after the rediscovery of Roman law in the eleventh century.

In the twelfth century, a doctrine of sovereignty arose that ascribed to the ruler an absolute plenitude of power; all inferior authority came by way of delegation. The adherents of this doctrine pointed to the first part of Ulpian’s statement that the prince’s will has the force of law. Not only was he unfettered by any statute but he could also apply or break them as he believed the circumstances warranted.

One such proponent was Henry de Bracton, a jurist of King Henry II of England and a writer on English law, who concluded from the “quod principi” dictum that the king as supreme lawgiver could not be legally bound by any earthly authority or the law even though he was morally bound to obey the law. Legally, the ruler was an absolute ruler; morally, he was a constitutional monarch.

Opposition to this exalted view of the monarchical office took the form of an emphasis on popular sovereignty. The proponents of this view also relied upon Ulpian’s dictum, laying their stress on the second part. According to them, the king’s power rested on a grant of authority by the people. Should the people be convinced that he was not acting in their interests, they could legally depose him and choose a new ruler.

Because both camps appealed with equal vehemence to Ulpian in support of their arguments, the discussion quickly began to revolve around the question of the nature of the cession of authority to the king by the people. The proponents of the absolutist view, while conceding that a grant of authority had been made, insisted that it was irrevocable and complete. The people not only were powerless to rescind the grant they had made but also no longer possessed any legislative power. Among the advocates of this view was Accursius, who wrote what became the standard gloss, or commentary, on Justinian’s Codex Iustinianus (529, 534 c.e.; English translation, 1915; better known as Justinian’s Codification), and Hostiensis, one of the foremost canonists of the thirteenth century.

Hostiensis, who studied at Bologna and lectured in Paris, was particularly influential. He served King Henry III of England and Pope Innocent IV and became cardinal bishop of Ostia. His two commentaries on the Decretals, written between 1250 and 1271, assured his fame. Bartolus of Sassoferrato and Baldus de Ubaldis, two of the greatest Roman lawyers of the fourteenth century, also supported the absolutist powers of the prince.

The Enlightenment did much to settle the question by advocating the doctrine that the will of the people was the ultimate authority in government. Modern democratic countries have determined that, in the final analysis, Ulpian was correct when he proposed that the ruler’s authority was founded ultimately on the will of the people.

Further Reading
  • citation-type="booksimple"

    xlink:type="simple">Honore, Tony. Ulpian: Pioneer of Human Rights. 2d ed. New York: Oxford University Press, 2002. The most complete scholarly resource available on the contributions of Ulpian to the Roman legal system. Going far beyond the importance of Ulpian’s dictum, this work summarizes all that is known about the early third century c.e. jurist.
  • citation-type="booksimple"

    xlink:type="simple">McIlwain, Charles Howard. Constitutionalism: Ancient and Modern. Rev. ed. Reprint. Ithaca, N.Y.: Great Seal Books, 1961. Traces the impact of Ulpian’s dictum on the development of constitutionalism in the West.
  • citation-type="booksimple"

    xlink:type="simple">Scott, S. P. The Civil Law. 1932. Reprint. Cincinnati: Central Trust Company, 1973. Provides a translation of Domitii Ulpiani Fragmenta (1874; Rules of Ulpian, 1880) along with other legal codes, including the Twelve Tables and works by Gaius and Justinian.
  • citation-type="booksimple"

    xlink:type="simple">Ullmann, Walter. Principles of Government and Politics in the Middle Ages. 2d ed. New York: Barnes & Noble, 1966. An excellent presentation of medieval political theory, including the influence that various doctrines of the Roman Empire had upon it.

Categories: History Content