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in O. Tellegen-Couperus (éd.), Law and Religion in the Roman Republic, Leiden-Boston, Brill (Mnemosyne Supplements, 336), 2012, p. 57-84.
The purpose of this article is to point out the close links between the Curiate law on the one hand – which is voted when new magistrates have been elected by the citizens’s assemblies of Rome (comitia) and then invested – and the religious nature of the magistrates’ power on the other hand. In this matter, we shall point out the consubstantial links between Roman public law and the religion of the city at the time of the Res Publica. In spite of the common belief, the sole concern of Curiate law is not about the power of command of superior magistrates (imperium). On the contrary, it applies to all magistrates, be they major – elected by centuriate comices – or minor – elected by tribute comices, except those of the Plebs, who were not really regarded as magistrates. It is thus wrong to mention a “lex curiata de imperio.” The Curiate law is in fact an investing law of a republican origin – it cannot date back to the regal period – that would entrust the newly-elected magistrate with the right to seek advice from the auspices (auspicium, i.e. the ius auspiciorum), in other words, consult Jupiter in order to have him approve of public actions he was about to undertake in his field of competence (potestas). The Curiate law would vest a superior magistrate (maior magistratus) with “major auspices” (auspicia maxima) that would enable him to obtain the imperium – the power of absolute command – at the time of his investiture. Likewise, the power of military command (imperium militiae) would not be confered by Curiate law, but by “starting auspices” taken by a magistrate or commander in chief before he would depart from Rome to join his army. So, the power of command of a superior magistrate was not confered by the citizens electing him, but rather by Jupiter himself. The principle of the sovereignty of the people and the coming of a true democracy in Rome might have been bridled for that very reason.
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