Conclusions
The sex legislation of Justinian was in many respects innovative and in some instances broke radically with past practice. His marriage laws underwent nuÂmerous changes, most of them seeking to make marriage easier to prove and hence more certain.
At the same time, however, Justinian was constrained from departing too radically from the traditional concept that marriage was a private concern, a matter of intention, even of feeling, rather than of formalities. There is no evidence that he considered marriage a sacrament or that he accorded ecÂclesiastical authorities any special control over it. Certainly he considered marÂriage dissoluble, as his experiments with divorce law demonstrate. While his divorce legislation finally resulted in a tightening of the rules and restricted the grounds upon which divorce could be sought, Justinian was unable to abolish consensual divorce.Justinian notably concerned himself with improving and enlarging legal proÂtection for the children of divorced couples and with treating men and women more equally than earlier divorce law had permitted.[519] Justinian likewise conÂtributed greatly to protecting and enlarging the property rights of concubines and their children. In the final analysis he made the status of the concubine closely comparable to that of the legitimate wife. Justinian likewise defended women who were forced into a life of prostitution and sought to shield them
Conclusions
from exploitation by pimps and madams. While he made it plain that he disapÂproved of prostitution, he did not vent his hostility upon the prostitute, but upon those who profited from her activities. Justinian’s legislation against homoÂsexual practices represented perhaps his most significant break with earlier sex law. Although his enactments against homosexual relations were not entirely unprecedented—as he himself pointed out—nevertheless the ancient world had not previously seen such a flat and comprehensive ban on sexual relations between men.
Justinians antihomosexual legislation is perhaps the area of his legislative activity where the influence of Christian authorities is most clearly evident.Justinian’s Corpus came into immediate force, however, only in that portion of the Empire (essentially its eastern half) that Justinian ruled, and few perÂsons in Western Europe had any detailed knowledge of it for centuries after Justinian’s death. Only in the eleventh and twelfth centuries did Justinian’s codÂification become known in the West; but from that point onward the codificaÂtion became the foundation for the study and teaching of law in European law faculties and enjoyed an enormous influence in shaping medieval legal systems throughout the Continent.[520]
By the time of Justinian’s death, Germanic invaders had severed his realm from its former western territories. Despite energetic efforts, Justinian had been unable to reassert effective control over the Empire’s former domains in the West. The Eastern Empire’s government and legal system henceforth had little direct impact on institutions and events in the West. The remainder of this volume will focus, accordingly, on the law concerning sexual conduct in the West, to the virtual exclusion of eastern or Byzantine developments.