For in your time such an exchange of laws has been devised, like that which Homer, the Father of all virtue, describes between Glaucus and Diomedes when they exchanged dissimilar things between themselves: ‘‘Gold for bronze, the worth of a hundred oxen for nine.’’ All this, we ordain, is to be in force for all future ages, to be observed by everyone: professors and students of the law, secretaries and the judges themselves.
Justinian, Dig. Constitutio Omnem, 11
In December ad 533, eight professors from the law schools of Beirut and Constantinople received an official letter (the Constitutio Omnem) drafted by the imperial bureaucrat Tribonian. This constitution heralded the final completion of the emperor Justinian’s project to harmonize the sources, teaching, and practice of the Roman law of his day. In fewer than seven years, a millennium’s worth of Roman legal development had been reformed and systematically reordered in a single corpus (body) of texts: the Justinianic Code, the Institutes, and the Digest. Justinian decreed that this legal corpus was to ‘‘be in force for all future ages’’ and, with the benefit of 1,500 years’ worth of historical hindsight, we know that it has been (in one shape or another). The purpose of the Constitutio Omnem, however, was to instruct officially the Justinianic law professors in the use of the three new legal texts in their classrooms. Some of the professors had been involved in the drafting of the Digest text, but we can only guess at their reaction to the condensing of more than three million lines of classical jurisprudence into roughly 150,000 lines, one-twentieth of the original mass. The classical juristic opinions - from the late republic to the late third century - that did survive the purge were officially promulgated in the Digest as if they had been uttered from Justinian’s own inspired mouth, ‘‘for we ascribe everything to ourselves, since it is from us that all their authority is derived’’ {Dig. Const. Deo Auctore, 6). Put simply, the Digest was intended to ‘‘replace the jurisconsults with the Emperor as the source of law’’ (Maas 2003: 17).
According to the final section of the Constitutio Omnem, however, Justinian had not replaced the classical Roman jurists, but had rather made an ‘‘exchange of laws.’’ With a Hellenistic flourish, Tribonian compared this exchange to the unequal trade between the Homeric heroes Glaucus and Diomedes (Hom. Il. 6. 236). On the one hand, the completion of the Digest insured brevity in the sources of the law: ‘‘the worth of a hundred oxen for nine.’’ On the other hand, classical jurisprudence had been exchanged for the law of the emperor Justinian: ‘‘gold for bronze.’’ Ordinarily, of course, swapping gold for bronze would imply a bad deal. Yet in the Iliad, Glaucus and Diomedes made their unequal gift exchange as a mark of respect for the political friendship of their forefathers: the past governed their Homeric present. Similarly, the Digest was intended to showcase a gift exchange of laws between the classical juristic past and the Justinianic present, founded on ancestral ties that bind. To the sixth-century professors of Beirut and Constantinople, however, Justinian’s Digest may well have seemed more like an imperial rip-off: no one was permitted to consult any jurisprudence outside of it, nor were legal experts allowed to produce any independent juristic commentary on it. The law professors could translate Latin passages from the Digest into Greek (presumably for teaching purposes), but this had to be in the same order and sequence as those in which the Roman words were written. Indexes were acceptable, but there were to be no attempts to sneak in any interpretive juristic glosses (Humfress 2005: 173). Homer’s Iliad hints that Glaucus gave up his gold for bronze because Zeus had stolen his wits; the professional legal experts of the sixth century might have been tempted to agree.
When modern historians look at law in Late Antiquity, they see the emperor and his bureaucrats: ‘‘Once the monarchical principle of government had been fully established in the fourth century, the emperor or, as it might be, the central bureaucracy acting in his name was in sole control of the machinery of legislation’’ (Liebs 2000: 242). The dominant historical narrative is no longer necessarily one of decline (Honore 2004), but it nonetheless tells a tale of how the emperors gradually reserved all legal authority and legitimacy to themselves. ‘‘The emperor, and his officials, now make the rules; they are the authority, as what happens in court increasingly comes to show’’ (Meyer 2004: 218). Under the principate, jurists had given independent legal advice to imperial officials. From at least the second century, they were also being absorbed into the bureaucracy as career professionals (Honore 1994). The early third-century jurists Papinian and Ulpian, for example, both held the highest office of praetorian prefect. In the late fourth and fifth centuries, emperors - particularly eastern ones - may have deliberately promoted legal experts as the drafters of their constitutions, but the jurists’ names are not recorded in this context (Honore 1998). Nor do we have archives that were dedicated to recording the names of the countless assessores (legal advisers) who sat with late Roman magistrates. The relative anonymity of late Roman legal experts who acted as ‘‘civil servants’’ is frequently linked to a decline in the production of independent juristic writing in Late Antiquity. As Crook has stated, ‘‘Roman lawyers have been accustomed to exclaim not just at the... loss of creativity but at the diminished state in general of Roman jurisprudence after Ulpian and Modestinus - at its descent into handbook-knowledge and counting of authorities’’ (Crook 1995: 177). The significance of this ‘‘descent,’’ however, should not be overestimated. By the early fourth century, the large-scale commentaries on Roman civil law, in its various branches, had already been written. Moreover, late Roman lawyers demonstrated considerable ingenuity in updating, glossing, reorganizing and even faking ‘‘existing’’ texts, even though Constantinian and Theodosian legislation had aimed at controlling that process (Cod. Theod. 1. 4. 1-3; also 9. 43. 1, which possibly should be joined to 1. 4. 1).
Late Roman emperors may have attempted to tighten their autocratic grip on the development of substantive legal principles (the rules that applied, for example, when late Roman citizens divided up their inheritances or contested possession of property or contracted obligations). Nonetheless, the substantive principles being developed were still fundamentally classical in their orientation. In ad 325, for instance, Constantine ruled in a concrete case that veteris iuris definitio (the rules of the old law) could be modified by the emperor out of consideration for equity and justice ( Cod. Theod. 11. 39. 1) - thus incidentally proving that the old rules were still in force. The promulgation of the Theodosian Code in the fifth century did not make contemporary jurists redundant (they were needed to make sense of its imperial constitutions); nor, in its final form, did it attempt to do away with forensic arguments based on classical juristic opinions. In ad 473, a high-ranking official in Dalmatia sent a judicial report to the eastern emperor Leo, because he was unable to resolve a controversy between a woman and her brother: both parties supported their claim with many discordant jurisprudential and imperial texts. Having argued for the healthiness of diverse jurisprudential opinions, the emperor then decided to follow an opinion of the classical jurist Salvius Julianus (Cod. Lust. 6. 61. 5). Presumably similar concrete cases went some way to prompting the promulgation of Justinian’s Digest exactly sixty years later. In sum, ‘‘Late Antiquity was an autocracy, but an autocracy founded on accumulated tradition, which was required to pay at least lip service to the rule of law’’ (Harries 1999: 25).
Formal legal procedure also fell increasingly within the limits of imperial control. In criminal law, the old iudicia publica (the ‘‘standing courts’’ established by statute) were replaced over the course of the principate with the inquisitorial processes of imperial officials. The criminal statutes of the late republic and early empire, however, still provided the basic categories of criminal offenses. In Roman civil law, the subtleties of the classical ‘‘formulary procedure’’ - with its two-stage proceedings, first before the praetor and then before a judge agreed upon by the litigants themselves - were dealt their final death knell by the emperor Constantius in ad 342 (Cod. Iust. 1. 57. 1). Civil cases in the late empire were heard - whether at Rome or in the provinces - under a single-stage procedure before the emperor or an imperial functionary (frequently referred to in modern discussions as cognitio extra ordinem or ‘‘extraordinary procedure’’). Continuity within change, however, is also evident here: ‘‘Although cognitio was conceptually different from the formulary system, the differences between the two systems can be exaggerated’’ (Johnston 1999: 122). The concentration of formal legal processes in the hands of imperial officials did, however, pave the way for judicial appeals from one magistrate to another with a higher bureaucratic rank. Constantine appears to have been the first to formalize a new hierarchy of permanent appeal judges, with the emperor at the top (Chastagnol 1960: 131; and in general Pergami 2000). This change went hand in hand with the development of systematic rules of procedural evidence. While intended to streamline the judicial process, these developments inevitably created further delays and money-making opportunities for imperial bureaucratic officials. In sum, all of the above suggests a late antique legal culture in which, at the very least, appeals to imperial authority were given more weight than juristic expertise (Matthews 2000: 13). At worst, it suggests despotism masquerading as legal autocracy: ‘‘In theory legislation controlled the governed; in reality it darkened rather than defined their lives. . . The Dominate transferred law from a discipline to a means of discipline’’ (MacMullen 1986a).
It was obviously in the interests of late Roman emperors to stress their legislative power. A typical preamble to an ad 458 constitution from the western empire ranks law-making alongside military prowess and reverence for religion as equal preservers of the Roman state - an irony perhaps not apparent to contemporaries until eighteen years later (Nov. Majorian, 6. 1, preamble). According to the Christian historian Orosius, the early fifth-century Gothic ruler Athaulf came to appreciate the centrality of legislative authority in the Roman Empire, ‘‘having discovered from long experience that the Goths, because of their unbridled barbarism, were utterly incapable of obeying laws’’ (Orosius, Hist. 7. 43). Codifications of law held out new possibilities for the articulation of imperial prestige (Matthews 2000: 1-54 details the complex circumstances behind the compilation of the Codex Theodosianus; for the background to the compilation of the Codex Justinianus see Humfress 2005). The Codes of Theodosius II (ad 438) and Justinian (ad 534) were not the first texts to collect together imperial constitutions and systematically edit them, but they were the first to bear the name of the emperor under whose auspices the codification was promulgated (Corcoran 2000: 25-42). Hence the impression given by both the Codex Theodosianus and the Codex Justinianus of self-assertive emperors, reaching out from a strong center (i. e., Constantinople) to regulate every waking hour of their subjects’ lives - an impression admittedly strengthened by Theodosius II’s rhetoric that ‘‘it is the function of imperial majesty to make wise provision even for those persons who have not yet been born’’ (Nov. Theod. 14. 1, preamble, ad 439), and Justinian’s that ‘‘our subjects are our constant care, whether they are alive or dead’’ (Nov. Iust. 43, preamble, ad 537).
The visual images of late Roman emperors and magistrates, flanked by ceremonial inkstands and surrounded by written texts, are placed in sharp relief by the historian Priscus’ equally stylized account of Attila the Hun’s judicial technique: while on an embassy in ad 449 to a Hunnic camp north of the Danube, Priscus witnessed Attila coming out his house, swaggering and casting his eyes around, settling a few oral disputes and then going back inside again (Priscus, fr. Blockley 1983: 11. 2). At the extreme end of the spectrum reaching from the civilized to the barbarian, periodic raiding and invasion could suspend the Roman legal process altogether - as in AD 416, when a western constitution ruled that offences committed while fleeing the Vandals and the ‘‘disaster of barbarian devastation’’ should not be prosecuted ( Cod. Theod. 15. 14. 14). It may thus seem an ironic paradox that, if we did not possess a sixth-century ‘‘barbarian’’ law book (the so-called Breviary of Alaric), a significant proportion of the Theodosian Code itself would be lost to us today: we literally owe the survival of Books 2-5 to the Visigoths. ‘‘We might say that religion was not the only important factor in the cultural rapprochement between Goths and Romans. Law and the way it functioned in society apparently was another, and perhaps the other, important factor’’ (Sirks 1996: 155-6). A cultural shift in ‘‘barbarian’’ concepts of law-making may be identified among the ‘‘Franks,’’ ‘‘Visigoths,’’ and ‘‘Burgundians’’ of the late fifth and early sixth centuries (Wood 1993: 162-3; Charles-Edwards 2000: 271-87), but not among ‘‘Vandals’’ or ‘‘Huns.’’
Concentrating on Late Antiquity as the age of the codified law book is undoubtedly important, but it has the effect of placing the period at the beginning of a long march toward western legal rationalism and processes of modern state formation (see Stein 1999). That path seems to lead from the emperors’ late antique Codes to Germany’s Biirgerliches Gesetzbuch (1900) and beyond, via Prussia’s Allgemeines Landrecht (1794), France’s Napoleonic Code Civil (1804), and Austria’s Allgemeines Burgerliches Gesetzbuch (1811). In acknowledging the impact of Roman law on European political and legal thought, the historian of Late Antiquity faces certain methodological challenges. Can we, for example, speak of Rechtstaat or ‘‘the ideology of the rule of law’’ in ad 400 (Honore 2004: 111), without importing ideas developed in specifically modern contexts - including debates over German nationhood, English parliamentary sovereignty, and American constitutionalism (discussed by Tamanaha 2004)? In any event, we need to cast our net wider in Late Antiquity itself, and think in terms of law as a set of social practices rather than as primarily the law of the emperor.
World History
