Conclusion

Late Roman emperors professed for themselves an exclusive authority to make law, almost certainly at the expense of an independent juristic science. The codification projects of Theodosius II and Justinian embodied the imperial claim to regulate the lives of all their subjects, and this insistent bureaucratic rhetoric of autocracy was new in Late Antiquity. Moreover, the standardized legal process of cognitio placed judgment in the hands of officials whose mandate came ultimately from the emperor, and the bureaucratic hierarchy of such officials received firmer definition from Constantine onward. If we want to understand ‘‘law in practice,’’ however, we have to go beyond the charmed circle of the emperor and his chosen officials.

Late Roman emperors did not, in general, sit down with their law books and ceremonial inkstands and spontaneously legislate. Imperial constitutions were typically reactive, as they had been under the early empire, issuing from individual or group petitions or from issues referred to the emperor by his bureaucrats. Further, the efficacy of legislation, once secured, was far from guaranteed; if not subverted by subtle legal interpretation, its enforcement could be thwarted through influence or fraudulent practice. Meanwhile, the routine administration of justice by local officials went on, accessed primarily by (and typically favoring) men of property. A letter of Theodoret, bishop of Cyrrhus in Syria in the early fifth century, is entirely convincing in its evocation of the attitude of have-nots to the Roman legal system:

Infants are scared of sorcerers, children of pedagogues and teachers, while grown men are especially thrown into a panic by judges, tribunals, heralds, beadles and those who execute the sentence, and if, in addition, they are poor, they are doubly fearful. (Theodoret, Ep. XXXVI, ed. Azema 1955: 100-1)

Meanwhile, Late Antiquity was a formative period for a (very gradual) process that would eventually lead to the development of an independent canon law. One can only speculate on whether ecclesiastical justice was less socially discriminatory than Roman civil law.

There were two other important developments in legal practice in Late Antiquity that very likely affected a cross-section of the population (and did not please the most visible of the churches’ leaders). The first was the procedural practice of swearing oaths by the name of the Christian God, and the second the invocation of the same in curse tablets or ‘‘magical’’ spells of one kind or another. Before we dismiss these practices as low-level superstition, we would do well to remember that in ad 530 the emperor Justinian ordered the placing of gospel books in every Roman law court where cases were heard according to Roman law (Cod. lust. 3. 1. 14, 1-3). The presence of the holy gospel text was intended to guarantee the presence of God at every trial.

BIBLIOGRAPHICAL NOTE

The late Roman imperial constitutions are collected in the Theodosian Code (ed. Theodor Mommsen, Theodosiani libri XVI cum constitutionibus Sirmondianis, Berlin, Weidmann, 1905; tr. Pharr 1952) and the Code of Justinian (ed. Paul Kriiger, Corpus Iuris Civilis, ii, Berlin, Weidmann, 1877). Justinian’s Novellae are edited by Rudolf SchciU and Wilhelm Kroll, Corpus Iuris Civilis, iii, Berlin, Weidmann, 1895. Justinian’s Digest is translated in four volumes in Watson 1985, which reproduces the edition of Mommsen and Krueger in parallel text. Matthews 2000 gives a full introduction to the complex compilation and transmission of the Theodosian Code, and elucidates as well the problems confronted by historians in its use. Charles-Edwards 2000 gives an excellent introduction to the so-called ‘‘barbarian Codes” of the successor states in the west.

Johnston 1999 focuses on classical Roman law, but is nonetheless essential background reading. Corcoran 1996 is a full and methodologically sophisticated study of the extant imperial legislation up to the year AD 324. A detailed analysis of late Roman constitutions from the Theodosian dynasty (ad 379-455) is provided by Honord 1998. Liebs 2000 gives a concise overview of late Roman law and jurisprudence, as does Harries 1999, who also includes chapters on arbitration and dispute settlement. In general, the secondary literature is preoccupied with the emperors and codification. Meyer 2004, however, assesses late Roman legal culture through a focus on tabulae and notarial practices. The cursing tablets are discussed by Versnel 1991, Gager 1992, Meyer et al. 1994, and Tomlin 1988, 1993, although not with exclusive reference to Late Antiquity. Gagos and Van Minnen 1994 is a detailed study of a sixth-century family dispute, seen from the perspective of legal anthropology. The volumes produced by the Accademia Romanistica Costantiniana include detailed discussions of changes in late Roman legal practice (the monograph series is published by Giuffre Editore, Milan; the Academy’s conference proceedings by Edizioni Scientifiche Italiane, Naples). Finally, the website of the London ‘‘Projet Volterra’’ (Www. ucl. ac. uk/history/volterra/), maintained by Simon Corcoran, is an excellent resource for late antique legal sources and further secondary literature.