Ancient History & Civilisation

The Legal and Administrative Sources

The narrative of Roman history contained in this book depends to a large degree on histories and chronicles, but thematic study of the period draws on other sources. The great compilations of legal texts – the Theodosian and Justinianic Codes; the new regulations, Novellae, issued by fifth- and sixth-century emperors, especially Justinian, who was by far the most energetic legislator; as well as smaller compilations of a similar nature – illustrate the workings of the Roman state from the perspective of the rulers. These official collections of material underpin virtually all modern attempts to reconstruct how the empire was governed. The Theodosian Code was a compendium of about 2,500 rescripts and a few edicts, issued by all the legitimate emperors since Constantine, organized into sixteen books by topic. It was compiled by a team of jurists who had been commissioned by Theodosius II and was designed as an authoritative handbook of Roman public law, valid for both parts of the empire. The work was published in 437, perhaps in connection with the marriage at Constantinople of Theodosius' daughter Eudoxia to the western ruler Valentinian III, and a copy was formally presented to the Roman Senate in January 438. It thus emphasized the constitutional unity of the eastern and western provinces. The compilers drew their material from various sources, including local provincial archives, and this is reflected in the type of document found in the collection. The general laws and imperial edicts of empire-wide scope, are vastly out-numbered by specific decisions addressed to named Roman officials in specific places and provinces.

The Theodosian Code is admirably systematic in conception. Each entry was listed with the name of the ruling emperor(s), the name and rank of the official who received the decision, the place and date, and details about the receipt and publication of the order. Laws were listed in chronological order and in each case the latest decision on a given issue was held to be legally definitive. In practice inevitable mistakes occurred, and details were sometimes garbled. The rulings themselves were not given in full but usually in a radically abbreviated form. The versions of Roman laws preserved in the Theodosian Code focus on the substantive rulings, but often omit details of the context in which decisions were made, or the political and ideological justifications for them. However, by far the biggest problem that arises from studying the workings of the empire through the Code is the false impression that it creates of the emperor and his advisors acting as a pro-active legislature, in the manner of modern governments. The role of emperors in the early principate was almost entirely a reactive one. Problems that arose in the cities and provinces were brought to the emperor's or his officials' attention by letter or by personal petition, and were then dealt with on a piecemeal basis.49 In the late empire the monumental presence of the Theodosian Code suggests at first sight that the ruling emperors had initiated countless measures to deal with all manner of problems. In fact, it is obvious in almost every case that the initiative lay with their subjects and officials, who had raised matters of concern which required a decision or some other form of intervention. The pattern of petition and response thus continued to characterize late Roman rule. The imperial replies varied in tone between rulers, and thanks to the work of Tony Honoré it is possible to assign many of them to specific officials, the imperial quaestors, who were responsible for drafting the emperors' responses.50 In general they were written in an overblown rhetorical style, which denounced illegalities in a highly exaggerated way. Late Roman law was marked by increasing judicial savagery,51 although on closer inspection the scope of imperial action and the scale of punishments appears to have been less drastic than appears at first sight. The Theodosian Code is an indispensable source of information for social and cultural history, although we may be led to overestimate its historical importance because of the wealth of detail that it contains. Its contents reflect not the activities of society as a whole, but only those areas in which the state intervened.

The Justinianic Code formed one part of the enormous work, which has been known since the sixteenth century as the Corpus Iuris Civilis, the Body of Civil Law.52 The other sections were the Digest, a definitive compendium of Roman private law, and a large scale legal manual, the Institutes. The Code of Justinian added relevant imperial rulings from the period before Constantine, including many of Diocletianic date. It subsumed all the material from the Theodosian Code and the rulings of subsequent emperors, thus superseding all previous forms of imperial legislation. The corpus was one of the most astonishing monuments, some would argue the defining achievement, of the age of Justinian. A first edition of the Code was issued in 529, the Institutes and the Digestappeared in 533, and a second edition of the Code in 534. The driving force behind the enterprise was Tribonian, in charge of an editorial commission of ten lawyers. They submitted their work to the emperor seven years ahead of the planned schedule for completion.53 Much of the imperial legislation collected in the Theodosian and Justinianic Codes camouflages imperial decisions in a torrent of hostile rhetoric. The imperial rulings give ample evidence for the ideological and moral high ground claimed by the Roman state, but often tell us very little about how such legislation was applied to actual cases.

The law codes map out the scope and range of state activities, from lofty matters of high politics to the dealings and legal competences of the most humble citizens. At one extreme, for instance, the letter of Justinian to Archelaus, the first praetorian prefect of Africa after it was recovered from the Vandals in 533, sets out the entire ideology of the conquest, as well as details of how the whole region, now seven provinces, should be governed, by a staff of 396 persons attached to the prefect, and fifty to each of the three senior, consular, governors. A parallel letter to Belisarius set out the specific military arrangements for troops and the locations of the garrisons (CJust. 1.27). In an entirely different sphere, the same emperor wrote three years earlier to Julianus, praetorian prefect at Constantinople, to rule on whether persons suffering from a mental illness could make a valid will:

We order that a will of this kind, where the testator became insane while in the very act of making it, shall be void. If, however, he should, during a lucid interval, wish to execute a will, or make any final disposition of his estate, and, being of sound mind all the time and without the return of his affliction he began and finished the will, or other final disposition of his estate, we decree that it shall stand, provided that all the formalities required by law in instruments of this kind are observed. (CJust. 1.22.9, Sept. 1, 530)

Legal rulings illuminate features of late Roman history, which we might otherwise take for granted. Labeling heretical sects after their leaders was a practice enshrined in a law of Theodosius II:

Nestor, the founder of a monstrous superstition, having been condemned, remember that it is proper for his followers to be branded with his name, and not abuse the appellation of Christians; but just as Arians are so-called from Arius, on account of similar impiety, by the law of Constantine of divine memory, and Porphyrians from Porphyry, so everywhere the members of the infamous sect of the Nestor shall be styled Nestorians. (CJust. 1.5.6, Aug. 1, 435)

This style of referring to outlawed religious groups is, of course, familiar from other evidence. By contrast, if it were not for the wording of another law of Theodosius II, dating to 444, we might not suspect that statues in honor of provincial governors or other office holders in the cities of the empire were to be paid for at the expense of the person honored (CJust. 1.24.4).

The barbarian kingdoms of the West issued their own codes in imitation of the great Roman compilations.54 These too are essentially works of Roman law. From time to time these allow a glimpse of Germanic Volksjustiz, but they draw heavily on the rulings and practices of the imperial collections. The most important of these were the Breviarium of Alaric the Visigoth (506), and the Lex Burgundionum of Gundobad (c.500). Theoderic produced no similar code for Ostrogothic rule, which was in line with the conception that he was ruling Italy in the name of the eastern emperor.

Two other works from the fourth and sixth centuries are particularly valuable for illustrating the role played by senatorial officials in the government of Italy. Quintus Aurelius Symmachus wrote forty-nine reports (relationes) to the western emperors while holding the office of Prefect of Italy in 384.55 In 537 Cassiodorus retired from a public career that had included seven major senatorial positions. This is documented in his Variae, a collection in twelve books of the official letters he had written on behalf of the five successive Ostrogothic rulers from Theoderic to Vitigis, and the Senate, as well as those issued in his own right as Prefect of Italy from 533–6.56

The production of the legal codes was an attempt on the most ambitious scale to introduce system and order to the process of Roman rule. The same tendency is visible in the lists and catalogues, which described the components of the empire. These included the Laterculus Veronensis (the Verona List), which was a catalogue of the provinces around 314;57 the Notitia of the city of Constantinople, which described the districts and buildings of the city in the time of Theodosius II; and the Notitia urbis regionum XIV, which was a similar gazetteer of the fourteen districts of the city of Rome in the fourth century. The most important work in this genre to survive is the Notitia Dignitatum, the catalogue of ranks, which covered the civilian and military offices both in the East, probably compiled around 401, and in the West, dating to 425. These provided a list of officials and military units, with an indication of their location, and illustrated them with appropriate emblems: magisterial insignia, shield blazons of military regiments, and forts controlled by officers in charge of frontier troops.58 The Notitia Dignitatum, like the law codes, has been a major source for the reconstruction of the late Roman state, and especially for assessing its military strength and the deployment of army units.59This approach, however, pays excessive credence to the value of official lists. Even if we allow that the lists are accurate compilations in themselves, it is unlikely that they conformed to reality. Commanders will have overstated the numbers of active men in their units when they put in claims for supplies; bureaucrats will have exaggerated the number and importance of ranks of all sorts, in order to enhance the empire's and their own importance.60

One other class of documentation is even more abundant than the legal sources; the records of church councils, notably Constantinople 381, Carthage 411, Ephesus 449, Chalcedon 451, and Constantinople in 536 and 553.61 Although bishops were the main players at these ecumenical meetings, dealing with major matters of doctrine and discipline, imperial officials were inevitably involved, and there was much related official correspondence between the leading ecclesiastical politicians and the ruling authorities. The quantity of surviving documentation may be explained by three converging factors: the bureaucratization of the late Roman state, the importance within Christian culture of the written word, and the obsession with absolute verbal accuracy in recording creeds and doctrinal statements. The records of the councils at Ephesus and Chalcedon reveal the complex networks that linked church and state, and demonstrate in detail how the empire was governed from Constantinople under Theodosius II.62 The acts of the Council of Carthage in 411 are one of the most extraordinary sets of records to have survived from antiquity. The entire proceedings of the three-day meeting, which was designed to put an end to the Donatist controversy, were recorded by two teams of stenographers, acting for the two sides, and checked word for word against each other. The proceedings of all but half a day have been preserved. We have, in effect, a real-time record of every word and action of the meeting in which the emperor Honorius imposed the will of the Catholic Roman Church on the African schism.63

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