Post-classical history

7
Roman Law

We all recognize law as a general benefactor, saviour, guardian of our lives, and so forth, because it does away with vice and fosters virtue, and because it makes men think that they ought to honour virtue and punish wrongdoers.

Thomas Magistros, On the Duty of a King,

late thirteenth century

The application of written law was fundamental to Byzantium throughout its long history, and ordinary citizens used the courts to secure a binding, legal solution to their inheritance, property and family quarrels. Byzantine law developed from the Roman legal system, which is recognized as one of Rome’s great contributions to world civilization, elaborated by jurists between the fifth century BC and the first AD. The innovation of this system was to set up lawcourts and endow trained magistrates with the power to preside over them. These officials could issue a summons, hear the case and order the execution of a sentence, with the possibility of an appeal. The same legal process is still used in all countries governed by a civil code of law. Roman traditions also brought to the eastern Mediterranean a novel emphasis on written law which took several forms: edicts of magistrates, resolutions of the Roman Senate and imperial decrees (constitutions). These different bodies of law were applied in courts based in every major city and all provincial capitals.

Law was also generated by appeals made to the emperor, for instance for a remission of taxes after a bad harvest. Cities and provinces used their best orators for such missions, which often resulted in special constitutions added to imperial decrees. By the mid-second century ad, the emperor was the sole creator of law, but the commentaries of five earlier Roman lawyers, Papinian, Paul, Gaius, Ulpian and Modestus, were recognized as particularly important for the interpretation of past laws. To ensure the correct use of these various collections in Latin, and their interpretation and application, trained experts were necessary, hence the development of law schools and the emergence of a specific class of jurists with practical experience, the scholastikoi. Command of rhetoric was an essential feature of courtroom skill. In Late Antiquity, Rome, Alexandria, Athens, Constantinople and Berytus (modern Beirut) emerged as the most important centres of legal training.

As mentioned earlier, Theodosius II established a state-funded law school in the capital in 425. He recognized that it was difficult to use laws which clearly conflicted and decrees which encouraged different interpretations of the same subject. So in 429 he ordered legal experts to compile a law book for the Roman Empire, editing and reforming all the imperial laws issued since the time of Constantine I in a single volume. While earlier collections had been made and were known by the names of their authors, this was the first official codification. The Codex Theodosianus was presented to the leading officials of the empire in Constantinople in November 437 and put into force the following New Year’s Day. Copies were then transported back to Old Rome and presented to the senators, who arranged for further distribution. The Code contained more than 2,500 edited texts of laws issued between 313 and 437, including laws concerning Christianity in its final section. Contradictions and confusions between different laws had been removed and a simplified system was established. This was to be applied in both halves of the empire and to be taught in law schools, now concentrated in the East.

For many years the Roman colony of Berytus on the coast of Lebanon had excelled in the teaching of law; its fame continued until the destruction of the city by an earthquake in 550/51. The Life of Severus (who later became Monophysite Patriarch of Antioch, 512–18) preserves an account of the five years of legal study at Berytus, which included the analysis of particular commentaries. But the author, Zacharias, who also became a lawyer, gives more attention to the Christian students’ vivid efforts to uproot magical practices invoking ancient gods, dualist interpretations of the world developed by followers of the third-century Persian prophet Mani, and other illegal beliefs.

Nearly a century after the publication of the Codex Theodosianus, Justinian assumed imperial power. He immediately set about a further reform of the law. In 528, he established a commission of ten experienced lawyers under the leadership of Tribonian, the chief legal official (quaestor), to sort through all the imperial constitutions of practical value, imposing order and adapting the provisions to sixth-century conditions. As a result, the Codex Constitutionum was issued in 529, and all imperial laws not included in it were repealed. This simplified collection does not survive, but it is summarized in the Corpus Iuris Civilis – Corpus of Civil Law – which forms the basis of European law still in force today. In this second stage of legal reform, which lasted from 530 to 534, Justinian appointed sixteen lawyers to bring order to the commentaries of leading jurists, which had accumulated into an unwieldy body of contradictory opinions. Their work produced fifty books of approved texts called the Digest (or Pandects), promulgated in 533, after which all other commentary material was repealed. At the same time, an outline of the elements of Roman law designed to guide students was published in the Institutes. Justinian continued to issue many laws, called new laws (Novels) to distinguish them from the old ones. The Code of Civil Law of 534 thus had four parts: the old constitutions in a revised edition in twelve books identified as the Codex Justinianus; the Digest; the Institutes; and the new laws, to which later emperors added their own promulgations. This was to remain in force in Byzantium until the fall of the empire to the Ottomans nine hundred years later.

In the West, however, the codification of Justinian was never as widespread as that of Theodosius, which influenced both local customary law and the barbarian legal codes used in Visigothic Spain, Francia, Burgundy and Lombard Italy. Knowledge of theCorpus Iuris Civilis was virtually lost between the early seventh century and the late eleventh, when a very fine copy of the Digest, ‘beautiful as a star’, was rediscovered. It had probably been made in the sixth century and had survived in southern Italy, where the provinces governed from Constantinople continued to use Roman law. Gradually, the text of the Institutes was identified and teachers in Ravenna, Pavia and above all Bologna began to write glosses on the law and later commentaries. By the middle of the twelfth century, Gratian’s collection of canon law, the Decretum, of around 1130–40 and Emperor Frederick I Barbarossa’s privileges for the students at Bologna (1158) encouraged and expanded knowledge of the ancient sources of both types of law. Whether Byzantine legal codification had a distinct influence on Church–State relations in the West or not, canon law clearly tended to emphasize papal authority, while western emperors used civil law to enhance their own power.

Roman law is characterized by its attention to the law of persons, free and slave, their relations in marriage and divorce; the law of property and possession; violations and contracts; and succession, the whole regulated by the law of procedure, which established the principle of a fair trial before a competent judge, whether in civilian or criminal matters. In addition, by the sixth century a growing body of ecclesiastical regulations existed: canons decreed by oecumenical councils, provincial synods and results of appeals to patriarchs. In both Antioch and Constantinople, collections of this body of material were made in about 580. They were given the title nomokanon, that is, a mixture of nomos, civil law, and kanon, ecclesiastical law or canon. The most significant of these, theNomokanon in Fourteen Titles, was probably put together in the reign of Herakleios (610–41), drawing on the work of sixth-century patriarchs.

A similar process had already taken place in the West, when Pope Hormisdas (514–23) commissioned Dionysius, nicknamed ‘the small’ (exiguus), to make Latin translations of the most significant Greek canons. He included the first fifty of the Apostolic Constitutions (not the remaining thirty-five recognized in the East), the canons of the oecumenical and other councils, and decisions from 38 papal letters dating from 384 to 498, which became known as ‘decretals’. The two collections thus had identical conciliar material, but where the eastern collections included the rules of St Basil and laws of Justinian, Dionysius inserted papal rulings which he elevated to canonical status. This additional material formed the basis of subsequent disagreements between the western and eastern churches.

In contrast to the Code of Theodosius, Justinian’s twelve books of law gave prominence to issues of Christian faith and decisions affecting ecclesiastical, social and economic issues of the sixth century. Some of Justinian’s subsequent Novels extended Christian morality, for example insisting on the need to protect women dedicated to virginity and to prevent the recruitment of young prostitutes in the country. Civil and ecclesiastical law were gradually harmonized in a dual system of legal administration, which adapted Roman principles to the needs of the Christian empire of Byzantium. After the closure of the Platonic Academy of Athens (529) and a massive earthquake which destroyed Berytus in 550/51, Alexandria in Egypt became the sole centre of legal and philosophical training outside the capital. Its scholars taught a Christianized version of Aristotelian philosophy considered less harmful than the Neoplatonic teaching of Athens. After the Arab conquests of the seventh century, however, all legal and philosophical education was concentrated in Constantinople.

Using the Institutes as the basis of legal education, students were expected to master the law in five years of study and had to satisfy their teachers before they could be admitted to the two professional groups of lawyers: advocates (synegoroi or scholastikoi), and notaries (taboularioi). The title scholastikos is used by numerous authors up to the seventh century, when it appears to be replaced by krites, judge, a title used by the quaestor, the eparch (prefect or governor) of Constantinople, and the chief judge of appeals, epi ton deeseon, a post established in the seventh century. The eparch headed the city judiciary, controlled the guards and prisons, and was also responsible for ceremonial, commerce and industry in the capital.

In the course of the sixth century, Latin, previously fundamental to all studies of Roman law, was replaced by Greek. The Corpus Iuris Civilis issued in November 534 was rapidly translated, and all Justinian’s subsequent new laws were issued in Greek only. No longer used, Latin faded away and its teaching ceased. Only in the army and at court, two institutions deeply indebted to Roman traditions, did a few Latin terms survive: the ‘Bene, Bene’ pronounced as an official welcome at court, and various commands and names for weapons and officers, which were transliterated into Greek but clearly reveal their Latin origin. Nor was Latin literature much read in Byzantium until Maximos Planoudes made translations of Virgil, Ovid, Cicero and Boethius in the late thirteenth century (see chapter 27).

Emperors continued to issue laws reflecting growing Christian influence in matters relating to marriage, for instance in the Ekloga of 740. This short law code of Leo III also substitutes physical mutilation for capital punishment. In the late ninth century, theBasilika provided a six-volume edition of imperial law in sixty books arranged by subject and in chronological order, with the relevant part of the Digest preceding the Codex Justinianus and the Novels. The new arrangement was ordered by Basil I (867–86) and completed by his son, Leo VI, nicknamed the Wise (886–912), who wrote the Preface. At the same time, Patriarch Photios wrote a new prologue to the second edition of the Nomokanon issued in 882/3; it includes all the canons issued since the first edition, and was immediately translated into Slavonic to assist the newly established Bulgarian Church. In both civil and ecclesiastical law, therefore, there is a clear revival of interest, which continued until 1204. Theodore Bestes, a canon lawyer, wrote a third prologue to theNomokanon in 1089/90, and in 1177 a leading ecclesiastic, Theodore Balsamon, composed a fourth and a commentary. In the field of civil law, emperors continued to issue Novels on all important issues.

They also took pains to impose the law. Under Theophilos (829–42), an imperial ceremony of riding from the Great Palace to the church of Blachernai and back on Fridays provided opportunities for ordinary citizens to appeal to the emperor. On one of these occasions a widow complained to Theophilos that she had been defrauded of a horse by the city eparch (plate 32). Indeed, she claimed it was the very horse he was riding! He ordered an investigation and discovered that her story was correct: the eparch had taken her horse and given it to the emperor. Theophilos immediately returned the horse to its rightful owner and had the very high-ranking official punished. There being several versions of this tale suggests that it became well known. The practice also continued in thirteenth-century Nicaea and fourteenth-century Constantinople, when it became an official ceremony called kavalikeuma (riding out). Then it was accompanied by horns and trumpets,

in order that the advance of the emperor be announced to those who have been treated unjustly, so that those who need help from this source can approach the Imperial Summit.

Within the firm framework of written law, it was possible for particularly intelligent judges to issue minority opinions – evidence of the inner resilience and confidence of Byzantine jurists. In the early eleventh century, Eustathios Romaios, whose grandfather had also been a judge, occupied the highest judicial office, droungarios tes Vigles (originally ‘commander of the watch’, a military office which became a civilian title at this time). As judge of the imperial court until his death in about 1034, he wrote numerous verdicts, opinions and special legal studies, which allow us to see the law as it was applied and interpreted. In one highly disputed case, Eustathios resolved a challenge to a marriage based on the charge of abduction with force. Against the divided opinions of his fellow judges, he pointed out that the original charge had not mentioned the issue of rape, and ‘wise women’ had later testified to the girl’s virginity, so there was no question of rape making the marriage illegitimate. As to the evidence provided by women, which had also been criticized by the plaintiffs, of course it was allowed in court, because in such matters men could not bear witness. Eustathios therefore confirmed that the marriage was perfectly legitimate. His writings were arranged by a fellow judge or student in a textbook, the Peira (Experience), designed to present simple rules based on his creative interpretation of the laws. It represents a high point in the adaptability and flexibility of the Roman inheritance, and was often cited in later works.

In 1047, this lively intellectual activity encouraged Constantine IX (1042–55) to establish two official schools in the capital, one devoted to Law, the other to Philosophy. The new law school was intended to train two types of jurist: the notaries (notarioi) and lawyers (synegoroi), both organized in professional colleges. The nomophylax, guardian of the laws, chosen to head it was John Xiphilinos, who wrote many legal commentaries before becoming a monk on Mount Olympos, and later patriarch (1064–75). The emperor appointed Michael Psellos to direct the school of philosophy. A polymath of great brilliance, Psellos is now best known for his Chronicle devoted to the reigns of fourteen emperors (976–1078), but he was also the author of numerous writings on philosophical matters and mathematics and of a large collection of letters (see chapter 21). Towards the end of the eleventh century, a text called Tipoukeitos (‘what is to be found where’) provided an index to the Basilika, adding references to eleventh-century legislation and the legal interpretations of Eustathios Romaios. The Tipoukeitos, possibly the work of a judge named Patzes, facilitated use of legal sources by quoting the opening words of particular laws.

Meanwhile in the ecclesiastical sphere, individuals and bishops brought their cases to Constantinople, where the patriarch presided over a court of appeal. As the advance into and occupation of Asia Minor by the Seljuk Turks in the eleventh century forced many bishops to take refuge in the capital, they joined the permanent synod (synodos endemousa) attached to the patriarch and participated in his court. The court issued rulings designed to maintain the status of bishops in exile, or to provide guidance for those living under Muslim rule, who complained that ‘the sixty books of the laws which are called Basilika are not widely known in our lands… Is it safe for the orthodox Syrians and Armenians… to say the office liturgy in their own language?’ In writing the legal response in 1194, Balsamon emphasized that vernacular liturgies should always be translations of authorized Greek models, and pressed for greater harmonization with Constantinople. Balsamon developed the tradition of sophisticated commentaries on canon-law work and included many examples of illicit and improper Christian behaviour recorded in the late twelfth century.

Despite the immense disruption of the Latin occupation of Constantinople from 1204 to 1261, these high standards were maintained by the patriarch in exile in Nicaea and by church courts elsewhere. Records of applied law are preserved in thirteenth-century judgments given by Archbishops Demetrios Chomatenos of Ohrid and John Apokaukos of Naupaktos. Even now we can admire their judgments, for instance in the granting of a divorce on grounds of intense hatred, which prevented the consummation of the marriage even after the couple had been shut up together for a week; or where a slave convicted of theft was spared the loss of her one surviving hand, as demanded by her owner, on the grounds that to lose both hands would make it impossible for an individual to survive.

In the fourteenth century, distinguished legal experts included Matthew Blastares, who attempted to reconcile canon and civil law in his Syntagma kata stoicheion, an alphabetical treatise divided into sections for different topics, in which the ecclesiastical law precedes the civil ruling on the same subject, and Constantine Harmenopoulos, who issued his Procheiron Nomon (Handbook of the Laws) in 1354. His study in six books, thus called Hexabiblos, became one of the most outstanding contributions to medieval law and was rapidly translated into Serbian, as was Blastares’ Syntagma. Harmenopoulos also compiled a selection of canons, Epitome kanonon, with commentaries on problems in ecclesiastical law, and Blastares composed short synopses of canon law, hymns and theological works, as well as a list of Latin legal terms. A district court in Thessalonike similarly preserves evidence of judges who cited the Codex Justinianus correctly and used its provisions in conjunction with laws of their own times.

In the same city of Thessalonike, where Thomas Magister composed his oration On the Duty of a King (cited at the head of this chapter), he praised respect for the law within a wider context of the ruler’s duty to encourage broader, deeper knowledge, for as he says,

laws were originally enacted and are still in the main upheld by knowledge… and knowledge is the most peculiar, the most profitable and the most valuable of all things to men – simply because in addition to its other benefits, it lifts men above the stature of men.

He then insists that the state and the ruler must promote education, must cultivate it and make it available to all. While Byzantine law continued to adapt to the circumstances of an empire now much reduced in size and strength, lawyers, judges and legally trained clerics took pride in their legal system.

As in all societies, Byzantium witnessed instances when the law might be abused, for example in the case of marriages dissolved on grounds of consanguinity, or in the lawless dismemberment of Emperor Andronikos I in 1185. Many judgments involved a high level of violence, for instance in the punishment of rebels, but the Byzantine legal system was based on principles distinct from the arbitrary justice common among non-Roman peoples. Its superiority was borne out by the adoption of civil and canon law far beyond the empire in both time and space, particularly through translations of the Hexabiblos of Harmenopoulos. Indeed, following the Greek War of Independence in 1821, the new state adapted the six books and updated them as the basis of the legal code, which remained in force into the twentieth century.

The Byzantine devotion to law may also have influenced another significant feature of its civilization: the notion of a just war. This idea developed during the medieval centuries to sanction wars of reconquest of imperial territory lost, and defensive wars to protect the empire and prevent further losses. Byzantium employed skilled diplomacy to try to avoid military action through discussion and negotiation. Emperors and generals who devoted their attention to military tactics always stressed the need to prevent warfare if possible. And when it proved unavoidable, they sought legal means to justify fighting. By the twelfth century, western crusaders condemned this reliance on diplomacy as a sign of Byzantine cowardice. But the empire continued to avoid bloodshed where possible. This policy may be related to Byzantium’s preference for physical mutilation rather than the death penalty. It also reflects the separate status of ordained priests and monks within the empire, which forbade them from taking part in military activity. They might bless the troops and pray for their victory, but religious leaders and monks did not take up arms. Although emperor and patriarch were united in promoting Christian policies, they maintained their separate legal systems. By insisting on a distinct sphere for the Church, governed by its own law, Byzantium sowed the seeds of a secular state administered by civil law. Together they reflected the profound respect for written law in Byzantium, which came to have such a marked influence in neighbouring states.

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