Examination and Contextualisation of Justinian’s Legislation

Through his constitution examined here, Justinian exhibited some sympa­thy towards the debtor. Where no prior agreement had been reached on the consequences of default, he required creditors to give attested notice of inten­tion to sell the pledged property, or a judicial order to be made, and claimed credit for ensuring that debtors had unimpaired rights to the excess if it was sold. He also gave the debtor time generally to make good his debt, and re­quired the property’s value to be determined judicially before ownership could be taken. But these measures already largely existed, as noted. Other instances of his largesse towards borrowers were only occasional, and even then there were usually special circumstances, such as female frailty and dowry rights.22 Justinian cast a shadow over these token gestures by legislating repeatedly in aid of lenders/³ so he must have been troubled by their situation, shoring up the value and weight of their security and making it much simpler for them to fully acquire property pledged to them (if pacts had been made), penalising the debtor and reversing two centuries of more equitable governance.

The importance of Justinian’s position on debt is made clear when it is con­sidered that in the East, pledge securities were still being disguised to take the ostensible form of sales, enabling foreclosure agreements whereby creditors could easily take effective ownership on default - just as the old Romanfiduciae had operated. Such documentation dates to the pre-Roman era, but also to the fourth century (albeit more rarely), through to a wealth of papyri straddling the promulgation of Justinian’s law in 530.^{[256] [257] [258] [259] [260] So even if this form of security had lost traction in the West, and indeed could not have been lawful pursuant to Con­stantine’s abolition of foreclosure agreements, it seems to have remained ro­bust practice in the East, in spite of the jurisdictional upheavals of the constitu­tio Antoniniana. Justinian’s reform did not bring backfiduciae, in that �ownership’ of pledged property was not transferred to the creditor from the outset, but in legislating as he did he may well have been doffing his cap to common provin­cial custom in the East. But nowhere did he expressly state he was doing this.}

1.3 Gifts Made in Anticipation of Death

Through donationes mortis causa (â€?gifts made in anticipation of death’), trans- ferral of full ownership of the gift occurred on the donor’s death, provided that the beneficiary survived him?⁵ It had been debated prior to Justinian whether such donationes were more akin to legacies (which were revocable at any stage before death), than to gifts between the living (which were irrevocable)?⁶ Af­ter posing the question himself, in the context of this dispute,Justinian or­dained in 530 his preference for the former solution:

Settling the doubts [of the ancients2⁷], we ordain that all gifts in contem­plation of death... [shall] have the same effect as gifts under a last will?⁸ Trans. frier

The unstated implication of Justinian’s ruling was that gifts of this type could be revoked at any stage before death, as they were like legacies. Justinian’s resolution (for the time being) of this apparently long-running debate had a significant impact on the permanency of such gifts, and on whether the giver could be persuaded to amend the identity of the recipient. But within less than a decade of his implied denial that donationes mortis causa could not be with­drawn, the emperor expressly conceded the legitimacy of a person (other than a monk) doing just this, namely making the donatio irrevocable by inserting a clause that rejected the capacity to later repent of making the gift,^[261] allowing future revocation to be forestalled.

However, even despite this concession, the bottom line still remained quite clear: in themselves, and without more, gifts mortis causa could be taken back at any time. But this approach seems to have clashed directly with long- established custom in the East, where documents from the third to fourth cen­turies are couched on the basis that a gift made mortis causa was αναφαiρετος (not to be taken away), just as with inter vivos gifts, entailing that this modus operandi may well have been widespread well before the Justinianic era.^{[262] [263] [264] In­deed, the tendency seems to have been magnified in the sixth-century Byzan­tine world, as many papyri either coinciding with or marginally post-dating Justinian’s reign are again premised on the understanding that donationes mortis causa could not be revoked, the donor unable to change his mind (μηδε εμου αυτης περιουσης δυνησομενης μεταμεληθηναι), there being a denial of any option to â€?repent of making the gift (και ουκ εξων∕oν μοι μεταμελεiσθαι).31 As Beaucamp points out, these documents are not expressed to reflect Justinian’s later approval of a donor waiving his right to future reversibility. The assump­tion is that the donationes could never be revoked; and other gifts that were essentially mortis causa are also made out to be irrevocable, even though they too should have been retrievable.32}

There appears to have been a proper tradition in the East that fitted very uneasily into the Roman scheme. Justinian in effect legislated in disjuncture with these practices, imposing the way followed by a traditional Roman school of thought. He eventually caved in to eastern methods, but only to a limited extent, as he still in effect respected Roman mores.

1.4 Adoption

Justinian also reformed the adoption process. Hitherto, as explained by author­ities like Gaius and Ulpian, a father would â€?sell’ his son to the adopter through a process known as mancipatio, the adopter then â€?freeing’ him through manu­missio, after which the son reverted to the father’s power (patria potestas)?³ This ritualistic process was repeated, and after the third sale the natural father’s potestas was finally ruptured, through emancipation, and transferred to the adoptive father. But Justinian ended the convoluted tradition through a law of 530. â€?Abolishing the ancient circuities in adoption’, it runs, â€?we direct that a parent who wants to give children in his power in adoption shall be permitted to do so without the ancient form of emancipations and manumissions [...], before a competent judge.’^{[265] [266] [267] [268] (Trans. Frier)}

Such straightforward adoptions are also discernible in the papyri. Of two fourth-century documents, one features a mother and father who had their apparently unemancipated son adopted by another man, the other a woman who handed her grandson over in adoption to her youngest son; and in an­other that marginally post-dated the new law, a woman gave her daughter over to a man and his wife.3≡ In all three cases, the adoption formalities were dis­pensed with, if indeed they were known to the parties themselves. The latter two documents probably concerned adrogatio, as the fathers of the putative adoptees appear to have died, their children consequently sui iuris (no longer in paternal power), but they do not refer to the vagaries that Roman law also imposed in this process, nor to the requisite consent of the guardian.3^β And detracting from its formality, the sixth-century papyrus envisages the future return of the child to the birth mother, despite the latter’s promise not to take her back. But as Beaucamp shows, because the documents contain â€?!’element essentiel de !’adoption [ie] la creation d’une parente artificielle’, they are in­structive on popular approaches to adoption. To the extent that the papyri are representative of a much-simplified process within the customs of Justinian’s populace (the older ones already show a blatant disregard of the manumission procedure), his reforms can be seen taking on board existing practice, rather than eradicating it.^[269]

But this is where any such accommodation ends. A slightly earlier Justini- anic promulgation from 530 provided that a son given up for adoption into an unrelated family would not pass into the power of the adopter, remaining in­stead in the potestas of his birth father:

We ordain that the rights of a natural father are not undone by giving a child in adoption to an outside person, but he remains as if he had not been transferred to another’s familia?^[270]

Trans. frier

Amongst other things, this entailed that unless lawfully disinherited, the son had a right in law to inherit from his birth father (as had already been endorsed by some jurists), although Justinian also provided that the adoptee should in­herit on the adopter’s intestacy as well.

Only one of the papyri examined here appears to relate to a child who was in the potestas of his birth father, but nevertheless, even here the adopter refers to himself as having had the son by birth (εχειν το[υτ]ον γνησιον υloν) and refers to the adoptee having the right to succeed him alone, the adopter (τα aπ[o τ]ης διαδοχης της κληρονομiας μου δiκαια). Hence adoption in Egypt probably had the function of creating a new birth-line and inheritance rights, resulting from the destruction of the pre-existing line^[271] Indeed, by the laws of Gortyn, adoptive children were only to inherit from the adoptive father,^[272] implicitly coinciding with these notions, from which Justinian’s new law marked a departure.

Beaucamp also posits that the above papyri go further, possibly evidencing a widow’s right to give a child up for adoption, and to assume a guardian role for her children/grandchildren. Indeed, twice lone women (presumably wid­ows) are seen instigating the adoption process, one stating clearly that she, Aurelia Teeus (εγω μεν η Τεευς), was passing her grandson over to be adopted, the other giving her daughter to the adopting couple. A requirement may also possibly be found of the presence and consent of both an adoptive mother and of the mother who was giving her child up, despite the presence of the hus­bands in each case, even though women were largely redundant in Roman adoptions, only being given a role (as adopters) where they had lost their own children, having probably also been widowed.^[273] Beaucamp is hesitant to draw definitive conclusions on their elevated status, but acknowledges that the women played a significant role. Why else, in truth, were they written into the contracts? Given that under Roman law, fathers had potestas over their actual offspring, and male guardians generally had the (albeit less extensive) control of pre-pubescent children in the event of paternal death, the capacity of wom­en to consent to giving their children up for adoption would have violated the very core of Roman law,4^[274] as would requiring the consent of non-widowed mothers to adopt. It would have contradicted Justinian’s above law, which talked repeatedly of the natural father giving the child up, or of the child being given to the adoptive father (filii constituti a patribus naturalibus dantur... adoptivopatr'i), only the parens with potestas being able to do either. The Graeco­Egyptian documentation is undoubtedly inconclusive as to the exact position of women, but it is possible to discern a pivotal role performed by them in the steps leading up to adoption, representing a likely erosion of patria potestas, and an intransigent refusal to follow Roman law^[275]

Justinian’s legislation did nothing to appease eastern unwillingness to ab­sorb this most Roman of institutions that protected paternal power. Instead, he appears to have legislated against practices followed in the East, the papyri being indicative of customs in conflict with his legislation. But simultaneously, they may also explain his recognition of the futility of insisting on complex western adoption ceremonials so alien to eastern culture, and may have also been a precursor to Justinian’s eventual �liberalisation’ of female tutelage in 543-^{[276] [277] [278] [279]}

1.5 Protecting the pars legitima

In Roman law, close family members may have enjoyed a right to receive under a will if they had been given less than their pro rata share of the pars legitima (the birth-right portion amounting in total to a quarter of the estate), or if they had been excluded and left nothing, although they had no such rights if they had been lawfully disinherited (for example, due to their ingratitude)?⁵ Justin­ian legislated prolifically regarding inheritance generally, and at the beginning of his rule in particular he sought to safeguard the pars legitima. An exemplary area of this intervention concerned wills that led to a discordance between relatives who claimed their share of the pars, and the appointed heirs who stood to benefit under the lex Falcidia, a plebiscitum from the Roman Republic that limited all legacies so as to ensure that the heir(s) also received a quarter of the estate (pro rata) after funeral expenses and debts had been paid off?⁶ In principle, legacies were deducted from the inheritance, but could be trumped by the heir’s entitlement to the quarta Falcidia. Consequently, by insisting on their Falcidian entitlement, heirs could leave (legatee) family members with­out their own full dues. Mutatis mutandis, relatives left disgruntled because they had been passed over by the testator could bring a legal action known as the querela inofficiosi testamenti, in order to void the will so they could inherit under intestacy laws, in this way depriving the designated heir of any share, despite the lex Falcidia. Similarly, if they did receive under the will, but it was less than the pars legitima, they could augment their bequest so as to equal the pars, thereby possibly reducing the heir’s portion to less than the Falcidian quarter?⁷

The law therefore protected rights that were clearly antagonistic to each other. It was moot as to who enjoyed precedence when the birth-right portion of any relatives, combined with any other property bequeathed as legacies, surpassed three-quarters of the estate, as either the heir would not receive his quarta, or the relatives themselves would go short. The scope for litigation was clearly high, and Justinian addressed the quandary directly in a law of 531, con­firming the primacy of the pars legitima over the Falcidian part:

We ordain that in all such cases, the deficiency shall be made up, without regard to the Falcidian law, so that if less than the legal portion [the pars legitima] was left in the beginning..., all this shall be made up.^{[280] [281]}

Trans. frier

Protecting relatives to the detriment of a non-familial heir was a principal achievement here, and the tendency of favouring family can be seen elsewhere in Justinian’s constitutions. He increased the birth-right portion of offspring to a third or half, depending on numbers, and penalised detrimental delays in testamentary administration when family members sought to claim their full pars.49 Resolving an old legal conflict, it was also settled that offspring who had received earlier donationes inter vivos could challenge the will (to receive their pars), despite a prior contrary agreement, unless they confirmed to the heirs that the gifts sufficed; also, donationes generally were no longer to count to­wards the pars, except for offspring who were themselves heirs.^{[282] [283] [284] Justinian also provided that a mother could not disinherit children of any age for ingrati­tude on account of her hatred of the father, and also enacted, and soon reiter­ated, that a testator wishing to disinherit these relatives on the grounds of in­gratitude had to say as much in the will; it could not simply be inferred through passing them over in silence^1 And although by a law promulgated around a decade later it was possible to neglect to expressly disinherit ungrateful off­spring, this was subject to the proviso that the instances of ingratitude had to be stated clearly in the will, and were confined to specific behaviours.52 Under Justinian, qualifying relatives left an insufficient amount (as opposed to being passed over) could no longer actually overturn the will, having to apply instead for the court to supplement their bequest, but this process was probably much swifter, and had in any event been the law prior to his reign.[285] [286] [287] [288] [289] [290] [291] He also aban­doned the former position whereby an increment could only be made if the testator had expressly approved it as a contingency. 54 Overall, although Justin­ian eventually made conciliatory gestures towards (non-kindred) heirs, some arguing that he actually favoured them,55 his support was superficial in com­parison with the measures he undertook to protect legatee family members. But a veritable tug of war seems to have existed between the factions.}

If relatives of the deceased were largely winners in Justinian’s legislation, practice amongst the eastern populace may tell a different story, as disherison, above all of offspring, seems to have been particularly prevalent there. It was more controversial in Rome, given the father’s theoretical ownership of all family property (including that acquired by his children) by virtue of his patrla potestas,56 and Diocletian, when outlawing the similar abdlcatlo (the disown­ing of children), specifically used its Greek name, and insinuated that the prac­tice was alien to the Roman West but endemic in the East.5⁷ The will of Flavius Theodorus (567), is singularly illustrative of local practice adverse to kin and in apparent conflict with western laws.5⁸ It brings to light efforts to limit the pars Iegltlma to less than what was due, and/or to thwart relatives’ lawful attempts to overturn such actions, in either case ignoring Justinian’s reforms that sup­ported lineage. The document is far from straightforward to interpret, but two monasteries were instituted heirs to specific land and chattels. The testator’s grandmother was also named heir to a plot of land, with which she was in­structed to be content. She was also warned off relying on the lex Falcldla to obtain more, as the other bestowals were for monasteries (ουδεν ετερον δικαiω φαλκιδiου επιζητουσαν πρoς τ[ε τ]o δiκαιον των προρηθεντων δυ[ο] μοναστηρiων). From these factors it can be inferred that the monasteries’ inheritances in all probability comprised the vast majority of the estate^⁹

To understand the will's ramifications, the way Roman law impacted on it needs to be considered in some detail. Each institution was ex certa re, and al­though precious little evidence remains on the specific application of the lex Falcldla to such heirs, for Papinian they had a theoretical right to retain (their pro rata share of) the quarta; yet despite these recipients being �heirs', Ulpian also considered their �inheritances' to amount technically to legacies.^[292] How­ever, if the grandmother's bequest was deemed an �inheritance' and was less than the Falcidian portion, she was arguably entitled to reclaim as heir the requisite amount from the monasteries' bequests, if these were deemed to be �legacies', in order to supplement her own inheritance^{[293] [294] If this reasoning holds good, Theodorus may have been acting in accordance with Justinianic law when limiting his grandmother's portion, because testators were allowed to restrict the quarta Falcldla generally, and it was forbidden that legacies left to �venerable houses' (such as monasteries) be impinged upon by the lex Falcldia.62}

Such thinking is probably misconceived, however, because where there were no additional legacies, as in Theodorus' will, the parties would have been deemed in law to be heirs who had each received the same amount: as noted above, the jurists agreed that regardless of how much each was actually left, multiple heirs ex certa re, whose inheritances together equalled the whole es­tate, were each considered to have received shares in equal measure, regard­less of the reality^[295] Operating under this legal fiction, the grandmother's share would have been held to be a third, despite it probably being much smaller in reality^[296] But this entails that there would have been no point in Theodorus prohibiting her reliance on the lex Falcldla: it entitled her to a 33.3% pro rata share of the Falcidian portion, but she was deemed to already have the latter through her �false' third. In any event, the Ulpianic text applying the lex Falcldla to heirs ex certa re burdened these heirs with the financial obligations shoul­dered by legatees, but did not deliver the benefits usually enjoyed by heirs, so their �inheritances' only dwindled. Although the text is undeniably muddled and ambiguous, and may not permit a meaningful analysis, in no sense did Ulpian say or imply that heirs ex certa re could use this Act to fend off other be­quests to retain or increase their portion,^{[297] [298] despite Papinian's divergent rum­blings. Whichever way Ulpian's musings are read, they would not ultimately have assisted the grandmother, as the smaller sum was not supplemented by the larger one. But even if these proposals are mistaken, being instituted to even a fraction of an uncia did not in itself infringe the law.66 The lex Falcidia in any case only functioned by outlawing excessive legacies, and because the various inheritances in total amounted to more than the Falcidian portion, as in Theodorus' will, the lex was not engaged. His attempts to rely on this law to deprive his grandmother of her correct share were therefore legally erroneous.}

The querela, on the other hand, was intrinsically about protecting the right of (qualifying) relatives to claim a specific portion of an estate; and Justinianic law clearly operated so as to augment insufficient gifts made to them. And un­like the Falcidian quarter, there is no record of legislation limiting the pars where it clashed with bequests to �venerable houses'^{[299] [300] It was commonplace at the time to mistake the two remedies with each other, due to the initial (and even subsequent) equivalence of the proportions involved,68 but it suited The­odorus perfectly to err in this way, intentionally or otherwise, and led to the pars being unlawfully withheld.}

Although academic opinion is split on whether grandparents had a right to the pars, it seems incontrovertible that they could be so entitled. Ulpian had provided that cognates related more distantly than siblings were wasting their time suing for it, but a Gaian extract that placed grandparents on the same level of â€?remoteness' as siblings, allowing them to qualify, provisionally, was included in the Digest.^{[301] [302] They were also mentioned in a Justinianic law as potential contenders for the pars.â„¢ Thus the grandmother had a legitimate claim, in the absence of closer relatives, as she had probably not received a quarter, still less a third, of the estate. All of which entails that Theodorus' will contravened Justinian's laws, and his grandmother could reverse its worst in­justices through the querela or supplementation. This conclusion, however, has been objected to on the basis of later legislation that may have contra­dicted and replaced the provisions just referred to on ascendant relatives. Jus- tinianic novellae, it is argued, only specified parentes∕γονεις,, which allegedly meant â€?parents' only, as the ascendants who could benefit from the pars.[303] [304] [305] [306] But whilst â€?grandparents' were not definitively denoted by either word, neither were they excluded, as both terms may also have meant â€?progenitor/ancestor', regardless of their usage elsewhere in these laws; and moreover, one of these later Justinianic laws even talked of ascendants as the father, mother and other parentes, â€?no matter how many there may be', quanticumque fuerint 72 Such al­lusion necessarily included grandparents, because those related obliquely (such as uncles and aunts) did not count as ascendants. Justinian therefore did not change through later legislation the status quo referred to above?3 Thus there is no real reason to question the grandmother's right to the pars, and ac­cordingly neither is there basis for doubting that Theodorus wanted to prevent her, in violation of Justinianic law, from upholding this specific entitlement.}

Theodorus' concerted efforts clashed with Justinian's own struggle to make the pars legitima non-negotiable. Even if the will reveals genuine confusion, vigorous manoeuvres can be seen circumventing the testamentary duty to­wards relatives. Although later papyri may implement Justinian's reforms, their attempts to make disherison unchallengeable on the ground of ingratitude were probably legally acceptable?⁴ whereas Justinian's efforts to prevent the depletion of â€?deserving’ relatives’ inheritances flew in the face of local practice in the East.

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