SWPS - University of Social Sciences and Humanities
in Warsaw (Poland)
Est… proprium
munus magistratus… servare leges…[1]. Responsibility
of magistratus due to iniuria
CONTENTS: 1. Introduction. – 2. Two models of the Roman
Empire - similar functioning of the magistrate. – 3. Legal basis obliging
megastructure to obey the law. – 4. Iniuria as a form of action of
Roman magistrate contra legem. – 5. Responsibility of magistratus for iniuria. – 6. Exemplification of the responsibility of the Roman
magistrate arising from iniuria. – 7. Conclusion. – Abstract.
1. – Introduction
Quite schematic and
stereotypical presentation of the history of ancient Rome, fomented with the admixture
of sensationalism, has its origin in ancient literature and modern media,
especially in cinema. However, these are largely false information geared to
attract the viewer or reader. Meanwhile, the concept of the Roman state and its
institutions, for over fourteen centuries of its existence, undergone
far-reaching transformations, which were closely linked to political, social
and economic changes. Basically, there are two models of organization of the
state. The first state model has evolved during the Republican, and a nation - populus was his designate. The second
state model was developed in the principate and the dominate times with the
central figure of the emperor and as a consequence of it, with the highly
centralized bureaucratic apparatus. In this second model the emperor was
designate of the state[2].
Depending on the organizational model of the state,
the ideal of official has been shaped. Therefore, it was different during the
Republic period and the different during the principate and dominate period.
Also, in both political models, the responsibility of officials for actions
contrary to law looked differently. This responsibility could have criminal or
civil character. In this study, consideration will be limited to the second one
(civil responsibility), which essentially materialized in actions falling
within the scope under the concept iniuria.
Today in Poland, the
official may incur civil, criminal or disciplinary liability. In addition,
persons holding the highest positions in the country, such as the President of
the Republic, the Prime Minister, members of the Council of Ministers, deputies
and senators, in accordance with article 198, paragraph 1 and 2, bear criminal
liability before the State Tribunal during exercising of their office, and at
its dissolution[3].
2. – Two models of the Roman Empire - similar
functioning of the magistrate
Regardless of the model of the Roman State, the
magistrature should have been guided by similar ethical principles, especially,
however, it was required to comply with the law. Cicero, in one of his works,
which he wrote in 44 BC., De officiis,
outlined the ideals of behaviour which should be characterized by magistratus in the republican period. Arpinata
writing this work, was an elderly man, being 62 years old. Thus, he had a lot
of experience, which won holding numerous state offices, including such as the
office of Treasurer (76 BC), Aedile (69 BC), Praetor (67 BC) and Consul (63
BC). In 51 BC, he was nominated as the governor of the province of Cilicia. In
addition, he gained the experience practicing as an orator or defender in
lawsuits and writing philosophical works.
A number of preserved
speeches of Cicero refers to politicians, and has its source in the system of
values typical of Stoic philosophy, which Arpinata was a representative[4].
In the first part of
the work De officiis Cicero presented
the issues related to the dignity of Republican magistrate, having its origin
in the fact of exercising the public offices. Magistratus performing public tasks should be extremely sensitive
to the system of values universally accepted and grounded in tradition and law.
In particular, magistratus should
identify himself with the state.
Cic.
de off. 1.124: Est igitur proprium munus magistratus
intellegere se gerere personam civitatis debereque eius dignitatem et decus
sustinere, servare leges, iura discribere, ea fidei suae commissa meminisse.
This passage contains
two groups of problems that require explanation. The first is related to
specifying the general nature of the relationships that exist between the Roman
magistrature and the state understood as an abstract creation, based on
political institutions built on the basis of certain philosophical ideas,
appropriate for a given period. For Arpinata, the state in the period of the
republic is a gathering of all citizens, for which the law is a bonding element[5]. Hence, the appropriate, or legal and
constitutionally justified were only those actions of magistratus which were aimed at the realization of the common good.
According to Cicero, the duty (munus) of each magistratus
was acting (gerere) on behalf of the
state, which represents - in personam
civitatis. This term was later applied to Catholic doctrine, where the
priest as an "officer" of the Church, acts in personam Christi. Coming back to the text of Cicero, the Roman
magistrature should not perform public duties for personal benefit or for the
benefit of their own political group.
In the second group of
problems written in the analysed text, there are the examples of indications
which should guide the actions done by the officials. According to Cicero, magistratus should perform their tasks
with seriousness and dignity. The dictionary concept of dignitas means: deference due to office, human value, honesty or
honour[6]. According to Cicero, dignitas is a feature that should
characterize the men (De off. 130),
especially those taking sits in offices. The external expression of this was;
the neat clothes, mastery over words and actions, the compliance with the
prohibition of acting in the theatre or participating in wrestling. The dignity
of the Roman magistrate, therefore, should be also seen outside.
Another principle that should guide the Roman magistrature
was to uphold the law - servare leges.
The verb servo, servare means to keep, to maintain, to protect or eventually to
preserve. It is therefore considered that Cicero wanted to express the idea
that magistratus should have to take
care of this, that the law was respected not only by the citizens, but they
were bound by the law.
Finally, Cicero stated
that magistratus were entitled to the
determination of the law of others – iura
describere. In this case, it should be considered, rather, that Arpinata
referred to the subjective law designated by law and decisions of public
officials. In all of their activities magistratus
should be guided by honesty[7].
Clarifying socially
expected behaviours of Roman magistrate was also continued during the principate
and dominate period. In both forms of the political systems, the finished up
with the republican form of organization of the state apparatus, including the
election of magistratus to the
certain offices. In the new system, the officials were appointed by the emperor
or by his senior officials. The scope of their competence was determined in
issued on this occasion constitutions (mandata)[8].
The preserved sources
of law showed that magistratus of the
principate and dominate period should be guided by certain principles,
including the rule that they should not accept the gifts. This prohibition was
mainly directed to the provincial governors[9], who also should not be too close with
local people or commoners in Rome. While performing the duties of judge, the
governors should control their emotions, and so they could not explode with
anger, or the should not be moved to tears as a result of requests or the
stories of the victims. A judge’s and consequently magistratus face could not reveal his thoughts or intentions. The
opposite behaviour was regarded as a sign of disrespect for the dignity of held
office[10].
Violating or failure to
comply with the law by magistratus in
the classical or postclassical period could give rise to civil or even criminal
liability, under iniuria. It is
difficult to traced the beginnings of responsibility of magistratus in the postclassical institutions defensor civitatis. The primary task of the citizens’ defender was
to protect them from the abuse of officials who bear responsibility rather
criminal than civil[11].
The rules of procedure,
by which the government officials in ancient Rome were guided, is not too
distant from the contemporary legal regulations or from the social
expectations. Although, the change, taking place today, in the concept of the
state or in the concept of equality of all people, regardless of gender should
be considered and included. The rules of officials’ behaviour today are written
in the codes of good ethics for public administration. This, in turn, has its
embedding in the human right to good administration. The official should act
not only in accordance with the substantive and procedural law, but also should
consider the interests of an applicant. Hence, it is said today about the
service or even partner functions of the administration. In modern doctrine, we
emphasize not only the dignity of the office, and official, but also the
dignity of the person. The officials should be ethically motivated. However,
the source of the principles of ethical conduct and accountability of public
officials is the law, starting from the constitution of the country, the
international law, or the acts relating to individual professional groups.
Currently, the most widely accepted is the Anglo-Saxon doctrine describe as the
good governace.
The violation of
ethical principles by officials may give rise to disciplinary sanction even to
the expulsion from civil service. In case of violation of the law in Poland,
the official can answer on the basis of the Civil Code (article 415 and the
following of the Civil Code.), the Labour Code (article 114), professional acts
(Police Act - articles 132-147) or criminal regulation. In addition, officials
are liable to property on the basis of the Act of 20th January 2011 on the
financial liability of public officials for serious violation of the law[12].
3. – Legal basis obliging megastructure to obey the
law
The legal basis for compliance with the law by the
magistrature of Rome was the awareness of subordination to the law, which was widely
believed at the end of the republic. Cicero wrote that Legum ministri magistratus, legum
interpretes iudices, legum denique idcirco omnes servi sumus ut liberi esse
possimus[13]. In addition, Livius stated that: Liberi iam hinc populi Romani res pace belloque
gestas, annuos magistratus, imperiaque legum potentiora quam hominum peragam[14]. Both cited texts quite clearly show the
officer’s obligation to observe the law. The law is seen as being independent
from politics or economy. It has a value in itself and it is autonomous.
The commitment to
comply with the law by the Roman magistrature primarily due to the submission
of an oath by central and municipal magistratus.
There were two types of oath. The first is iusiurandum
in leges. It was summited by elects after their election, and just before
taking an office. Such an oath was submitted also by the municipal officials.
Without the oath, one could not hold the office for more than five days - magistratum autem plus quinque dies, nisi
qui iurasset in leges, non licebat gerere[15].
According to G.I.
Luzzatto, the obligation to take an oath by magistratus showed up in lex agraria of
111 BC[16], and then in lex Servilia Glauciae
(101/100 BC). This was due to the increasing number of processes de repetundis against the fraud done by
provincial governors and the need to shift the burden of decision-making power
of the Senate to the Roman magistrature[17]. Earlier, the obligation of taking the
oath rested on senators. Normatively, this obligation appeared in the later regulations
of the classical period, especially in the municipal laws[18].
Taking the oath by
senators and some of the magistratus was also practiced when exercised
the authority, namely, the oath had to be taken after the adoption of a
specific act - iusiurandum in legum,
requiring them to obey the Acts adopted at the meeting of Plebeian Council, or
the oath had to be taken at the end of exercised authority, confirming the that
in their actions they were guided by the law - aeque foedum certamen inquinandi famam
alterius cum suae famae damno factum est exitu censurae. Cum in leges iurasset
C. Claudius et in aerarium escendisset, inter nomina eorum quos aerarios
relinquebat dedit collegae nomen[19].
4. – Iniuria as a form of action of Roman magistrate contra legem
Iniuria was one of the torts of the civil law,
next to furtum, rapina,
damnum iniuria datum, which born civil liability on the basis of actio iniuriarum[20]. The Act of XII tables VIII. 3 and 4,
iniuria concept materialized by unlawful injury of the free man or a slave[21]. Over time, other activities were
classified as this term, therefore, the term iniuria was quite capacious in content.
In Pauli Sententiae
5.4.1 this term was defined as:
Iniuriam patimur aut in corpus aut extra corpus: in
corpus verberibus et illatione stupri, extra corpus conviciis et famosis
libellis, quod ex adfectu uniuscuiusque patientis et facientis aestimatur.
Further clarifying of the meaning of the term iniuria may be found in the text written
by Ulpian.
D.
47.10.1 pr. (Ulp. 67 ad ed.): Iniuria
ex eo dicta est, quod non iure fiat: omne enim, quod non iure fit, iniuria
fieri dicitur. Hoc generaliter. Specialiter autem iniuria dicitur contumelia.
Interdum iniuriae appellatione damnum culpa datum significatur, ut in lege
Aquilia dicere solemus: interdum iniquitatem iniuriam dicimus, nam cum quis
inique vel iniuste sententiam dixit, iniuriam ex eo dictam, quod iure et
iustitia caret, quasi non iuriam, contumeliam autem a contemnendo.
At
the beginning of the Ulpian’s text, there is the definition of iniuria using rhetorical figure called
chiasmus. Definiendum in this
definition is the word iniuria, and
as definiens there is non iure. According to this definition,
the term iniuria includes all events,
which are characterized by their illegality. In accordance with the principle
of mentioned rhetorical figure, in the second part of the first sentence, we
have to deal with the inversion. The result of which is that definiendum is an expression non iure, and as definiens was used the expression iniuria. In both cases, the linker is quod. This kind of definition is called by Ulpian as generaliter, that is, as a general
definition aimed to characterize the whole defined phenomenon without going into
specification. Both definitions show that iniuria
and ius are the opposite terms and
their designates are opposed too.
In
the next part of the passage written by Ulpian, there is a partial definition (specialiter), aimed to establish the
semantic relation between the term iniuria
and terms similar in content. Each example is entered by adverb interdum (sometimes). The first term
coinciding, but not identical with the concept iniuria, is contumelia.
It comes from the verb contemero – are and it means to stain, to profane or
to dishonour. According to T. Mommsen, the term contumelia determined the action defaming another person. If there
was no basis for filing another complaint against such action, the victim may
just go with actio iniuriarum[22]. Next, Ulpian indicates that the term iniuria was used in the case of damnum
culpa datum. According to R. Zimmermann[23], the term damnum culpa datum was
the synonymous of the term damnum iniuria datum. In this case, Ulpian
states that the responsibility of the perpetrator (damnum) based on the lex
Aquilia could take place only if the action was caused by the perpetrator.
Next, the term iniuria coincides with the word iniquitas
- wickedness. This took place at a time when the unjust judgment or decision
was issued by magistratus. Each magistratus, who issued decisions in any
form as the judgment or decision of an administrative nature, contrary to law,
done the act which was classified as iniuria.
The activities of magistratus which
were against the law or against the principles of justice could not be
considered as legal. The expression contained in the final part of this piece
is the basis for civil liability of magistratus based on actio iniuriarum.
5. – Responsibility of magistratus for iniuria
The responsibility officials
(magistratus) in ancient Rome was
repeatedly the subject of disputes of prudentes
or decisions in the imperial constitutions. In the case of liability of
officials based on iniuria, the
passage written by Ulpian is a primary source.
D.
47.10.32 (Ulp. libro 42 ad ed.): Nec magistratibus licet aliquid iniuriose
facere. Si quid igitur per iniuriam fecerit magistratus vel quasi privatus vel
fiducia magistratus, iniuriarum potest conveniri. Sed utrum posito
magistratu an vero et quamdiu est in magistratu? Sed verius est, si is
magistratus est, qui sine fraude in ius vocari non potest, exspectandum esse,
quoad magistratu abeat. Quod et si ex minoribus magistratibus erit, id est qui
sine imperio aut potestate sunt magistratus, et in ipso magistratu posse eos
conveniri.
The
key statement in this passage is the first sentence, in which Ulpian said that
officials could not take illegal actions, which were classified as iniuria. The impersonal verb licet meaning permission for doing something
was used here. However, with the addition of particles non, iniuria meant the prohibition of doing something. In this
case, it can be said that iniuria
meant behaviour of magistratus
committing the unlawful acts, which violate the law and failing to fulfil the
dignity of held office[24].
In the next sentence of this passage, there are
listed possible circumstances of committing such an act. Magistratus
could commit an act classified as iniuria while performing official
duties, as a private individual, or commit violations of the law using the
public's trust of society[25]. In the
second and third case, it was probably about an act to draw his own material or
immaterial advantage by an official while performing a public task or because
of their function. In this respect, the official could in fact accept financial
benefits in the form of services, loans, entertainment or tasks not being in
accordance with the dignity of his office, for example - acting as the
supervisor of property belonging to the latifundium owner[26]. In these
cases, the victim of proceedings done by Roman magistrate could occur actio
iniuriarum against the guilty of magistratus[27].
The second issue considerate in the above
text written by Ulpian is to determine the point at which it would be possible
to bring an actio iniuriarum against
an official due to the tort responsibility. For this purpose, this lawyer
raised the question of whether it would be possible to bring an action during
the performance of office or after emptying the office. The answer to this
question cannot be conclusive, because Roman magistratus of the classical and postclassical period enjoyed
process immunity.
D.
2.4.2 (Ulp. 5 ad ed.): In ius vocari non oportet neque consulem
neque praefectum neque praetorem neque proconsulem neque ceteros magistratus,
qui imperium habent, qui et coercere aliquem possunt et iubere in carcerem duci
[...].
In
turn, in this passage, Ulpian clearly pointed out that it was not possible to
sue magistratus cum imperio during
exercising by him the public functions[28]. This immunity, however, covered only
civil actions, hence there was the impossibility to bring actio iniuriarum. However, in criminal matters, one could accuse
the Roman magistrature also during their mandate, especially in the case of
embezzlement of public money, or in the case of treason[29].
However,
the question remains whether the process immunity in civil matters covered all
officials, including those who did not have imperium such as the municipal
officials. This question is justified in the context of the previously
discussed Ulpian’s passage (D. 47.10.32). This lawyer, in the last sentence,
wrote that judicial exemption covered only magistratus
who had the power cum imperio
aut potestate.
Such powers, according to him, had only senior officials, not those who were
deprived of these rights. Did Ulpian refer here to the republican division of magistratus on minores and maiores?
Taking into the consideration that this fragment comes from the late-classical
period, it is difficult to equate the concept of the division of officials
during the Republic period with that division to which Ulpian referred several
centuries later. Rather, one should accept as justified
the O. Licandro’s claim, who believed that Ulpian does not refer to republican
institutional order but to the one that existed at the end of the third century[30]. The category magistratus
minores counted among those officials who were in the hierarchy below the
Quaestors[31], most often they were municipal officials. This group
of officials was deprived of governmental authority known as imperium
or potestas[32]. Confirmation of just such reasoning is in another
Ulpian’s passage.
D.
9.2.29.7 (Ulp. 18 ad ed.): Magistratus municipales, si damnum iniuria
dederint, posse Aquilia teneri. Nam et cum pecudes aliquis
pignori cepisset et fame eas necavisset, dum non patitur te eis cibaria
adferre, in factum actio danda est. Item si dum putat se ex lege capere pignus,
non ex lege ceperit et res tritas corruptasque reddat, dicitur legem Aquiliam
locum habere: quod dicendum est et si ex lege pignus cepit. Si quid tamen
magistratus adversus resistentem violentius fecerit, non tenebitur Aquilia: nam
et cum pignori servum cepisset et ille se suspenderit, nulla datur actio.
This text refers to a possible liability of municipal
officials on the basis of the lex Aquilia
for the unlawful infliction of damage and in the time of exercising the office by
them. Ulpian mentions several cases of illegal behaviour that may have taken
place during the enforcement proceedings (pignoris capio)[33] led
by decurions.
An
official of lower rank could not bring charges of iniuria against the senior official[34].
In the light of the provisions of Polish law, the act
of taking any benefit from the fact of the public administration function is
treated as a clerical venality and it is punished on the basis of article 228
of the Criminal Code. Such an act is punishable by imprisonment up to 8 years[35]. Also in the codes of ethics for the government and
administration, there are numerous prohibitions on reaping the benefits by
officials in connection with the function, such as money, service, loans,
travel, entertainment, dignity, or promises. In article 228 of the Polish
Criminal Code, there is regulation about the instruction.
6. – Exemplification of the responsibility of the
Roman magistrate arising from iniuria
Discussing the issue of civil liability of magistratus
arising from iniuria, in order to illustrate this case, it will be
useful to present two examples. The first one comes from the passage of Seneca
the Elder from the work Controversiae.
Sen. Cont. 5.6: Adulescens
speciosus sponsionem fecit muliebri veste se exiturum in publicum. Processit,
raptus est ab adulescentibus decem. Accusavit illos de vi et damnavit. Contione
prohibitus a magistratu reum facit magistratum iniuriarum.
Seneca described the story
of a young man who disguised himself as a woman and then walked through the
streets of Rome. A group of young boys kidnapped him. E. Gunderson said that
the motive for their action was the purpose of sexual character[36]. Such an assumption is not confirmed in
the reading of the text itself. Regardless of the motive of their actions and
of what happened after the abduction, the victim during the Plebeian Council (contio) on the basis of lex Iulia de vi publica accused the
captors of using violence against him - crimen
vis. Chairman of the Plebeian Council (contio)
did not allow, however, for bringing this indictment in front of the Plebeian
Council, because men degrading their honour by pretending being the women were
taking away the right to public speaking (Impudicus contione prohibeatur).
Then, the young man accused the officer of unlawful activity (iniuria)[37]. Today,
it could be said about the violation of the human rights to court. Coming back
to the history, this young man accused magistratus of violating the law
- rerum facit magistratum iniuriarum. According to the victim, the
official has exceeded his powers and therefore he should be held liable under actio
iniuriarum[38].
The second example concerns the governor
of the province, who had flogged a slave belonging to the citizen of the city.
D.
47.10.15.39 (Ulp. 77 ad. ed.): Unde quaerit
Labeo, si magistratus municipalis servum meum loris ruperit, an possim cum eo
experiri, quasi adversus bonos mores verberaverit. Et ait iudicem debere
inquirere, quid facientem servum meum verberaverit: nam si honorem ornamentaque
petulanter adtemptantem ceciderit, absolvendum eum.
In
the above text, Ulpian refers to a situation in which a municipal magistratus (Duumvir, Aedilis or Quaestor) ordered to flog a slave belonging
to the citizen of the city. Decisions, however, requires the issue of the
extent to which a municipal official could order to whip a slave. The official
municipal was taking the responsibility if flogging would exceed the limits
established customs, but appropriate in a certain city - quasi adversus
bonos mores.
D.
2.1.12 (Ulp. 18 ad ed.): Magistratibus municipalibus supplicium a
servo sumere non licet, modica autem castigatio eis non est deneganda.
The municipal officials could not administrate
the death penalty against the slaves. They were allowed to mete out the
punishment of flogging. The issue could remain a measure of the penalty. In the
event of a dispute raised by the owner of slave, the judge must take into
account the customarily accepted limit of punishment - castigatio. Such punishment could be meted out to slaves when they
for example disturb the public peace or committed a public indecency. However,
if castigatio was to restore public
order, the judge should have dismissed the complaint of the slave’s owner
against the municipal officer. It should be known however, that solutions
appropriate in municipia were
modelled on those which existed in Rome or in the common law.
7. – Conclusion
The structure of the
administrative apparatus and its powers depend largely on the type of political
system. However, independent of its, the number of components are reproducible.
One of them is the responsibility of officials for the performed actions.
Already, in the time of ancient Rome, we could distinguish between criminal and
civil liability. Such situation was present in the republic period, as well as
in principate and dominate period. Today, the disciplinary responsibility is
the most widely used.
The source of liability
was non-compliance with the law. Regardless of the type of unlawful activities,
such activities were determined as iniuria
and the proceedings shall be instituted by bringing actio iniuriarum. It was not possible to bring such an action (in ius vocatio) against magistratus cum imperium. However, a
lawsuit could be brought against the municipal officials, even during the
exercising their public function.
Liability of magistratus,
because of the tort involving the breaking of law, was extremely important,
because actio iniuriarum was an
instrument in the hands of the ordinary people whose interests were somehow
exposed to the action of public authority. This kind of responsibility of
officials was in Roman law fairly well developed, which indicates a high level
of organization of the Roman administration already in the republic period.
Without the Roman achievements, it would be difficult
to imagine contemporary responsibility of public administration officials.
Although it has been shaped differently, however, its foundations still remain
the same, especially the responsibility for acts contrary to the law. Without
that, it would be difficult today to speak about the rule of law, fundamental
constitutional principle enshrined, inter alia in article 2 of the Polish Constitution.
Abstract
Independent of the structure of the administrative
apparatus some elements are repeatable. One of them is the responsibility of
officials for the illegal actions. In ancient Rome, the basis for civil
liability of magistratus was an
offense of the unlawfulness the action, belonging to one of the cases - iniuria. The limitation was the ban on
bringing actio iniuriarum during
exercising the public function by magistratus.
This kind of responsibility of officials was in Roman law fairly well
developed, which indicates a high level of organization of the Roman
administration, already in the republic period. Without the Roman achievements,
it would be difficult to imagine contemporary public administration officials’
responsibility.
Keywords:
Iniuria, actio iniuriarum, civil
responsibility of public administration officials, Roman law, magistratus.