Aulus Apollonius Cordus: Commentary - interesting point of constitutional theory

2006-09-02T01:16:10Z

Commentary - interesting point of constitutional theory

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==General commentary==

After this ''lex'' was enacted by the ''[[comitia centuriata (Nova Roma)|comitia centuriata]]'' but before it came to the senate for ratification, the ''[[lex Labiena de gentibus (Nova Roma)|lex Labiena de gentibus]]'' was also enacted by the same ''comitia''. The latter ''lex'' contained a separate and unrelated amendment to chapter II.A of the constitution, and the drafters (perhaps inadvertently) based their text on the text of that chapter without the amendments proposed by the ''lex Fabia''. The consequence was that at the next meeting of the senate both the ''lex Fabia'' and the ''lex Labiena'' were presented for ratification, containing two mutually incompatible amendments of chapter II.A.

In the event, the senate failed to ratify the ''lex Fabia'' in any case. It is an interesting question, however, what would have occurred if the senate had ratified both ''leges'', especially since the two ''leges'' were put up for ratification in reverse chronological order.

There seem to be three possibilities:

# The two ''leges'' would have taken effect sequentially in the order in which they were approved by the ''comitia centuriata'' (i.e. first the ''lex Fabia'' and then the ''lex Labiena'');
# The two ''leges'' would have taken effect sequentially in the order in which they were ratified by the senate (i.e. first the ''lex Labiena'' and then the ''lex Fabia'');
# The two ''leges'' would have taken effect simultaneously.

The effect of the first option would be that the changes made by the ''lex Fabia'' would have been in effect for a ''scintilla temporis'' before being repealed by the ''lex Labiena''; in the second case, the same would have been true in reverse. The third possibility would presumably mean that all the changes made to chapter II.A by both ''leges'' would have been incorporated into the text of that chapter.

The question turns on the proper understanding of the procedure for amending the constitution. The first solution would indicate that a constitutional amendment is theoretically effective from the time of its enactment by the ''comitia centuriata'' and is merely held in suspension until ratification by the senate. The second solution, by contrast, would indicate that a ''lex'' amending the constitution is really a sort of authorization to the senate to amend the constitution, and that the amendment itself derives its legal force from the decision of the senate.

The question can also be approached in light of the [[doctrine of implied repeal (Nova Roma)|doctrine of implied repeal]]. By enacting the ''lex Labiena'' the ''comitia centuriata'' may be regarded as having repealed by implication the changes it had approved in the ''lex Fabia''. In the same way the senate's approval of the ''lex Fabia'' (had it been given) would arguably have repealed its approval of the ''lex Labiena''; the argument here is less solid, however, because in reality the votes on the two ''leges'' in the senate occurred simultaneously and were only reported in the order mentioned.

The third solution is in many ways the most attractive, especially because the incompatibility between the two ''leges'' was almost certainly unintentional and because it would have been possible without great difficulty to incorporate all the changes proposed by both ''leges'' into a coherent text of chapter II.A. But it is also the least tenable solution in terms of legal theory: it would ignore the doctrine of implied repeal and would fail to answer the underlying constitutional questions. It would have solved this particular difficulty, but it would be of no help in a similar case in which the two competing amendments were directly contradictory and irreconcilable.

Talk:Lex Fabia de civitate minorum (Nova Roma) - Revision history

Aulus Apollonius Cordus: Commentary - interesting point of constitutional theory