Conclusion

In his Prolegomena to the Theodosian Code, Mommsen remarked that their laws were collected by the Romans as a matter of public initiative only twice in their history; in the Twelve Tables, published at Rome at the outset of the republic, and in the Theodosian Code, published at Constantinople at the close of the empire. He clearly regarded the work of Justinian as falling outside the true period of Roman history (or, worse, as a project of Greek inspiration). It is equally clear, however, that neither Theodosius nor Justinian thought of their work as a legacy of a dying empire for the future, but as a contribution to its continuing life. In that sense the readers closest to the original intentions of the codes and the Digest are those historians who aspire to use it to reconstruct the life of the Roman Empire in all its available dimensions.

Roman law, in the fine words of Bruce Frier, is an ‘‘intricate and honored discipline’’ (Frier 2000a: 446), and the historian must respond with both an awareness of the intricacy and a respect for the discipline. Some of the challenges have been described in this chapter: the question of precedent, the extent to which laws addressing one situation are intended to apply to others, whether they ‘‘map onto’’ social reality, whether they portray a social ideal in the minds of legislators, or simply reveal the imperfections of society as perceived by them, whether, in many cases, they are real or imagined situations and, if the latter, what difference this makes; the sources of jurisdiction, the distinctions between procedural and substantive change, between leges and ius; the sheer technicality of much of the literature. All of these issues present difficulties which the historian must address by establishing rules of procedure and in difficult cases by principled judgment; which is, after all, how the law itself developed.