Reflections

As a Latin-speaker in what was primarily a Hellenic environment, Justinian had further reason to embrace local customs, as he thereby demonstrated that he was overcoming cultural barriers between himself and the majority of his subjects. The linguistic background of the East was profoundly Greek, which was to supplant the language of Rome as the official language of Byzantium within the space of a century, and even during Justinian’s reign the use of Latin was steadily declining as the language of administration.88 For good reason, large sections of the Corpus Iuris Civilis were contemporaneously rendered into Greek, which was also the language of numerous concurrent commentar- ies.8⁹ In other words, not everyone in the educated elite could cope with Latin for more detailed work, even though it was probably still the default language of the law courts. It may therefore have been felt expedient by Justinian to adopt Greek customs into Roman law simply as a way of gaining broader ac­ceptance in the East, cementing his imperium here by fostering a climate of respect and overcoming mistrust amongst the educated strata of society and general public alike.

Yet for all his engagement with local �rules' that operated in disjunction with their Roman equivalents,Justinian made no overt reference to pre-existing Greek norms in any of the legislation analysed above, offering no clues as to his method of reconciling dichotomies between law and custom.

On further reflection, however, there may well have been some method in this incongruity, and here the western territories assume immediate relevance. The obfuscation may have been because Justinian was keeping half an eye on the West, his imperial ambitions in Italy and beyond explaining his reluctance to openly admit to favouring one corner of his realm over another. To compre­hend this assertion, it must be recalled that almost as soon as he came to pow­er, Justinian not only began expending significant resources on trying to regain lost western territory, but also linked these feats with his laws, suggesting that his military endeavours set the stage for his legal enterprises. Specifically when publishing his Digest in late 533, he boasts of his victorious incursions into the West, namely Carthage and Africa, while asserting, when publishing his Insti­tutes around the very same time, that �Imperial majesty should not only be granted with weapons but also armed with laws, so that good governance may prevail in time of war and peace alike'^[325] This was not mere idle bragging.

The necessary corollary to the above may well have been a deliberate failure to divulge expressly that ancient rules were being superseded by counterpart practices observed in the new centre of empire. Justinian was carefully balanc­ing the increasingly disparate parts of an empire he wished, in the future, to reunite, and just as he was keen to adopt eastern practices, neither did he want to advertise the fact that he was turning ancient institutions on their head and replacing them with their Greek alternatives. Clearly, he did not shy away from bringing in new laws, but was careful not to make it appear obvious that some of these amendments should favour Greek rather than Roman ways. Hence, just as the need for unity and homogeneity had led to new but divergent Greek laws being absorbed into the Roman system, so it required care to depart from the legal foundation of the old power base. This delicate juggling act may well explain Justinian’s reticence in stating overtly that he was adopting Greek practice. Consequently, it can be seen how law and empire went inextricably hand in hand, in terms of uniting the populace of soon to be re-acquired lands with Justinian’s existing subjects, and commanding the allegiance of both.

Even where Justinian does, on the rare occasion, offer some insight into his method, very little is given away. As emperor, of course, he could legislate as he pleased, and the absence of the lex citandi can be detected, smoothing the pas­sage of his new laws. But when alluding to his dissatisfaction with the old, he mostly did so in ways that were only obliquely critical of pre-existing consen­sus. Thus, instead of revealing why the old way of making pledges was imper­fect, he admitted that the ancient observance must be ended, or at least cor­rected, because he found no evidence of it being followed.^[326] He expressed his disapproval of the complexity of the old adoption law through the strategic inclusion of mildly disparaging vocabulary: he allowed parents not to use the ancient rituals, specifically claiming to adjust or put an end to these �old circui­ties’^[327] In the process of moving away from the old Roman law, by implying something of its chaotic nature he laid the path for giving unpopular rulings that reversed ancient thinking more than just a veneer of legal respectability, and also made his improvements easier to accept, just as he had aimed to do through Cod-Just. 1.14.12.

Justinian also insinuated the (moral) wrongness of the reversed laws, and the innate justness or humanity of his solutions. Thus he held in the context of pledges that, �out of compassion', the debtor would have the �humane' right to buy back his property within two years, even though the reforms of the institu­tion as a whole were fundamentally skewed in favour of the creditor; and he ensured that he himself was credited for pre-existing measures helping the debtor.^{[328] [329] [330] [331] Justinian had also authorised the inclusion of Constantine's abolition of foreclosure agreements in the title of the Code immediately subsequent to his principal reform, which had all but reversed the chronologically earlier law.97 Although by adding the old provision, he in effect brought to light the �harshness' (asperitas) and fraudulent nature (captiones) of the very laws he was reinstating, either the irony was lost on him or he cynically covered up his own callousness, because when the inclusion of the previous law is viewed in isolation, the image he was cultivating for himself was still unashamedly that of benefactor. De-linking heirs ex certa re from heirs ex quota was also painted in a purely positive light, in that unlike the latter, they could not be sued by the estate's creditors. But neither did they have the important right to sue for what was owed the testator. Justinian can again be seen depicting his reforms fa­vourably, deftly glossing over their more negative aspects.}

Such tactics are virtually indistinguishable from Justinian's repeated linkage of God to his Digest preparation. And the ruse whereby leaders portrayed their lawmaking as fundamentally good and beneficent, proceeding indeed straight from God, can be seen almost as far back as the evidential record takes us: the Laws of Hammurabi from around 1750 BCE9⁸ are represented as being dictated directly to the King by the gods themselves. Also, as Pagden illustrates, Alexan­der the Great cast himself as descended from a god recognised in both Greece and Egypt, in order to safeguard his rule throughout these regions.99 Justinian did not miss the opportunity to replicate this idea, whatever the true humanity or equity of his laws. He wanted to be perceived in East and West as a wise and benevolent ruler, who had God's backing, because such rulers were revered, and by appealing to popular instinct in this way through his laws, and by mak­ing himself out to be fair and just, it would contribute to him being accepted as emperor, and to the approval of his more controversial rulings and acceptance of their authoritative value. He was therefore happy to receive full credit for all that was â€?fair and just' about imperial legislation and judicial decision-making more generally, as indeed he was for the Digest; and by implying his own link to the divine, he paved the way for such recognition.

By proceeding as such, and endorsing eastern customs yet still mollifying western sensitivity at having their laws repealed, Justinian used the whole no­tion of law, as well as the substantive content of his legislation, to consolidate his authority and imperium, at the same time as plastering over incipient cracks in his empire, and seeking its oneness.

2.2 Legislating against Procedures Followed in the East

Justinianic rule did not always respect Greek habits in the way shown above, indeed often going the other direction by upholding precedents of Roman law in the face of divergent conventions followed in the East. The means by which the populace in eastern provinces was persuaded to embrace these laws de­serve reflection, in particular Justinian’s regard for the ancient law and legal authorities as infallible - when it suited him.

Consider again the plaudits given to inheritances left ex quota, where heirs were left �unciae’ (twelfth-parts). This procedure was alien to provincial tradi­tions, but explicitly condoned by Justinian, who also held that only such per­sons were true heirs when others were left certae res as well. He seemed to go out his way to emphasise that heirs had received ex quota since time immemo­rial: those left shares were instituted according to ancient law.^[332] By showing that the roots of this principle lay in ancientness, Justinian on this occasion demonstrated respect for the old law, so long as it had been purged of any un­desirable facets. This was a method that allowed his innovations to be per­ceived as authoritative and therefore acceptable.

Similarly, the sanctity of the ancient patria potestas, which was not part of eastern culture, was signalled in his legislation on non-familial adoptions, through which he imposed this traditional Roman paternal hegemony over provincial practices after the adoption of a child. Surviving papyri clearly sug­gest that Justinian’s insistence on patriarchal hierarchy clashed not only with the role performed by females in eastern adoptions, but also with the rupture, in the East, of the original paternal bond and creation of a new one, which was incompatible with the imperial position that kept the child in the potestas of the birth father. He made his approach acceptable by hingeing his ruling (at least as regards succession from the natural father) on the authoritative juristic thought of Marcian (even Paul, he implied, had considered adhering to the idea), and final justification was given on the basis that ex iure vetere, in accordance with ancient law, the son could always object to being given to another family.^{[333] [334] [335] [336] [337]}

Again, when ruling against the irrevocability of donationes mortis causa, Justinian attempted to crush practices that were irreconcilable with the old Roman tradition. As explained above, existing records of this provision do not describe the option chosen by him as ancient, but given that the constitution was probably a decisio, inferable through its date and terminology, in its origi­nal form the law probably relied on the antiqui.^w2 The Digest certainly con­tains several passages, including by Ulpian, that concord with the outcome of Justinian’s ruling, and there is no reason to consider these to have been amend­ed when inserted into the sixth-century compendium, because the constitu­tion made specific reference to the different views.^ω3 Accordingly, the opin­ions that were chosen for the Digest must have been those that were followed in, or did not contradict, Justinian’s own law. Hence his legislative departure from local custom was to some extent ameliorated again by reliance on the ancient jurists.

There is also testamentary attestation in the East of the wrongful denial of the pars legitima, which flouted Justinian’s rulings. It is hard once more not to conclude from this, and from the wealth of Justinianic laws supporting family members in the face of unsympathetic wills, that disherison was rife in sixth­century eastern lands and mostly at variance with Roman legal principles (as also corroborated by Diocletian),^ω4 and that Justinian sought to address this by resorting once more to the comfort of ancient law. He stated through his legislation that the querela had â€?long been’ an avenue for close relatives to gain redress for unfair wills, those who used it being described as doing so in reliance on the â€?old laws’, and he retained the â€?ancient remedy’ for those passed over in silence.^ω5 He gave those left an insufficient part the alternative solution of supplementing their bequest, but this was still an infraction of lo­cal tendencies, which he in effect justified by linking the sanctity of family ties to the antiqui. Elsewhere, Justinian confirmed the possibility of disinheriting ungrateful offspring, emphatic, however, that such an act must result from particular conduct set out in â€?ancient laws’.^{[338] [339] [340]}

Justinian did not need to rely on the hallowed ius antiquum that features so prominently in his legislation. He could simply have claimed the laws as his own. But he clung obstinately to words uttered centuries earlier, hanging his pronouncements on ancient law, in effect venerating it almost for its own sake, despite revising it himself. This rationale underpinned the whole Digest pro­ject also: it was deemed appropriate to name personally the ancient author of every single authoritative statement, whether or not Justinian twisted and changed their writings. The method may well have been deployed to reassure the West that it was not forgotten. But there was also no point in insisting on the inherent antiquity of the principles unless they imparted a degree of re­spectability and authority in the East as well, so long as they could be seen to pass Justinian’s rigorous selection process, or be revised to do so. And he knew that he needed his laws to give this impression when they undermined prac­tices followed by sections of the eastern empire that were growing in power and belligerence.

In this respect, Justinian was again using an old trick. In the triumviral pe­riod, for example, it was specifically alleged that when Roman law was in its infancy, ambassadors were sent to study the old laws and institutions of Greece in order to help draft the Twelve Tables, thereby making the rules more just and equitable; and others claimed that Hermodorus, a lawmaker in exile from Ephesus, had actively participated in this enterprise.^ Even if the reliability of these assertions may be questionable, the reality that they were recorded il­lustrates the prestige that could be enjoyed by laws on the basis of their old age, and even their foreign origins (if socially acceptable^). Clearly, not all Greek law had been espoused by Rome at this time, but an undeniable ten­dency emerges of claiming to adopt ancient laws and imbuing them retrospec­tively with a deep and unchallengeable erudition by virtue of their purported roots.^{[341] [342] [343] [344] Not dissimilarly, the Greek legislator Solon allegedly thought foreign travel would lead to wisdom, whereas the eighteenth-century Giambattista Vico depicted the Hermodorus legend as a conscious attempt to ennoble a primitive and brutal law.u0 Justinian made use of this familiar approach him­self when aiming to convince his foreign (eastern) audience of the age-old soundness of potentially unpopular laws that were seemingly biased towards the West. Having stood the test of time and transcended borders, the ancient jurists were used not only to remind empire of the continued relevance of the West, but also to provide auctoritas for Justinian’s legislation in the East, ensur­ing that his laws were accepted there so he could maintain the semblance at least of an empire acting as one. And by gluing his fractured empire together as such, he also sought to cement into its rightful place his own imperium.}

In parallel with showing adulation for the old law, Justinian was also una­fraid to expose its inadequacies and flaws, even in laws that essentially stuck by western legal tradition. In this respect he was greatly facilitated by his aban­donment of the lex citandi, but his purpose can again be traced back to his perception of the law as a means of bolstering his imperium. Justinian never declined the opportunity to share the glory with his ancient forebears, but he often did so whilst resolving dilemmas he claimed were unfathomable even for them. It was the imperator who stepped in to resolve the mess, he implied, and who tamed the jurists. So when legislating on adoption, uncertainty was de­scribed as arising amongst the ancient jurists, compelling him (purportedly) to correct and sort out all the vicissitudes of this confusion.^m Likewise, in ruling that gifts were not to count towards calculating the pars legitima, Justinian can be found resolving another ancient dispute, expressly following Papinian.ⁿ² Through interventions such as these, he talked up the inherent injustice of the original laws, and made himself out to be the great resolver of ancient disa­greements and uncertainty. And in the end, this was also effectively what he claimed in his Digest, although it is impossible to ascertain which ancient pro­visions he changed. Here too it can be gleaned that Justinian sought to be ac­cepted, easing any negative reaction to his imposition of order, but also assuag­ing concerns that he was continuing to operate with the warts and all of the old empire he had inherited. Far from it (he implied): he was remedying all its old defects and vulnerabilities, and did so as a truly venerable ruler, whose laws were ideal for the empire.

Justinian also insinuated his own compassion and devoutness when replac­ing local custom with western alternatives, and used blatant double standards. He gave the adoptee inheritance rights from his natural father because �adop­tion was so fragile', and prevented their �holy bond' from being �scornfully cir­cumvented'. And even though his claim to be looking after the interests of de­scendants was borne out, he lauded his own efforts to preserve their inheritance and to prevent the will from being voided by claiming to uphold the testators' last wishes, even though he had quite plainly just invented these.^{[345] [346] [347] He em­ployed further subterfuge when not reversing the unfortunate position of heirs ex certa re where two or more were instituted without the accompanying ap­pointment of a principal heir ex quota. As seen, Justinian included in his Digest the Ulpianic excerpt whereby these individuals had the worst of both worlds.n4 They were neither fish nor foul, required (as heirs) to pay the testator's debts and any additional legacies, but apparently having no rights (as legatees) to a minimum inheritance, and also being liable for deductions from their �lega­cies' under the lex Falcidia. Justinian's reforms manifestly did not remove these disincentives to bequeathing certae res. Yet he vaunted his legislation as an outright victory for such �heirs'. Analagously, the real outcome of Justinian's ruling on the revocability of donationes mortis causa is not stated. Having pre­sented the debate, Justinian's audience had to infer that they could be revoked, for this was the inevitable consequence of being legacies. His wording (ultimae Iiberalitates) avoided direct terminology, and was buried at the end of the en­actment, well after its initial verdict, which had simply insisted that such gifts did not need registration, without mentioning that they were like legacies.n5 Given that the papyrological record shows that his decision did not uphold provincial practice, it may be inferred that his evasiveness purposefully dis­guised the result so as to shield himself, as emperor, from unpopularity.}

As well as bringing out rulings that overturned western laws where eastern practice made it pragmatic to do so, Justinian also embraced western thinking. He consequently ruled against eastern customs, but employed various meth­ods to ease the pain of doing so: he cultivated his image as wise and generous, praised ancient lawgiving, yet gently disparaged its defects also, even hiding his conclusions. By taking these measures, he aimed to reinforce the unity of his empire, pre-empt further disruption to its cohesion, and re-assert his imperium.

2.3 Underlying Themes: Vested Interests, and the Assertion of Pure Imperium

It can be seen, therefore, that Justinian’s manipulation of the law was for impe­rial ends, to keep the empire together as a whole and enhance the authority of his office. The rightness or wrongness of the results was not necessarily upper­most in his mind. This mercenary stance can be seen in his laws on pledges and debt, where he unashamedly took the side of the better-off echelons of society. Whether or not the ancient Roman tradition offiduciae was still remembered, it was in imperial interests to dilute, if not repeal, the legal consequences of Constantine’s social conscience, in recognition of affluent elite power. To ap­preciate the leverage of the wealthy generally, one has only to look at the role taken by various senatorial and aristocratic families in the Nika revolt that al­most toppled Justinian in January of 532.^{[348] [349] [350] [351] The rich were evidently able to threaten his position if sufficiently resentful, and it was necessary to appease them where the law clashed with their interests. Contemporaneous allegations of bribery of the quaestorf7 an office intimately involved in producing much of Justinian’s substantive law, speak of corruption being another factor behind these moves, and of responsibility for introducing a financial motivation into some areas of legislation.}

Clues from the papyri reveal that other interests may have had the emper­or’s ear as well, in particular wherever inheritances were confined to or fa­voured the church. Recounted earlier in this chapter was the unlawful attempt to block the rightful inheritance of an elderly relative by intimidating her into abstaining from interfering with a will that left almost everything to ecclesias­tical establishments. Justinian in effect outlawed such behaviour by limiting inheritances and protecting family entitlements.ⁿ⁸ It may be difficult to infer that in so doing he was targeting the church specifically, even considering the large amount of his additional legislation that sought to protect families from disherison. However, ecclesiastical wealth and power was ever increasing,ⁿ⁹ and cumulatively the evidence makes a cogent case to the effect that Justini­an’s stance was motivated by the wish to stem this. A good proportion of efforts to make donationes mortis causa irrevocable, in contravention of the law, had involved gifts to monasteries.^{[352] [353] [354] [355] [356] [357] [358] Seventh-century documentation also turns up evidence of a farm being bequeathed to a basilica in Italym and of a priest be­ing made heir to an entire estate, probably entailing familial disinheritance.^ Clearly, as the only official religion, Christianity was well-placed to manipulate a testator’s guilty conscience; indeed, one donatio mortis causa bears express witness to this, being made for the health of the testator’s soul and as a holy offering (υπερ lλασμου ψυχης μου και ⅛γiας προσφορaς).123}

Subsequent Justinianic legislation may point even more clearly to a power struggle between church and state. The emperor’s partial change of heart on donationes, allowing clauses that prevented future repentance, may have indi­cated a compromise between law and practice in East and West. But it was a disguised concession that by no means represented a complete backing down, as the basic mantra remained good: such gifts were still essentially revocable, like legacies, and only precise wording in the will could reverse this.^m Like­wise, although Justinian eventually allowed disherison through silence, he was adamant that the reasons be enumerated, thereby ensuring that appropriate challenges could still be made.12⁵ Rather than being minor isolated events, this constant reversion to questions of property transmission may in itself suggest deep-seated hostile interests that jeopardised Justinian’s position and needed staving off. This, when combined with the papyri, may well point to the church. The stand-off can be seen taking place in a wider context as well, the church being actively prevented from benefitting from bequests to captives and the poor, yet he protected â€?sacred’ bequests.12⁶ As an area of legislation, the church was a considered priority, representing an ever-present threat to Justinian’s standing. And any loss of family possessions, particularly land, through gifts inspired by religion, must have also provoked consternation amongst the prop­erty-owning classes. Again, Justinian had to tread carefully. He did not want to alienate the Roman Church or any of its satellitic powerbrokers. But it was in his interests to take a stand to make certain that its income, holdings, and therefore power, were kept in check, and communities that could wield influ­ence and cause him problems also had to be reassured of his commitment to them, and be kept onside as far as possible.

As has been touched upon, also detectable in a number of Justinianic laws is his bare assertion of imperium. Further examples rest in his absence of rea­soning for particular decisions. Thus it is not explained why gifts mortis causa should be revocable, it being enough to say that the conclusion was analogous to one branch of ancient juristic thinking, and that it was therefore legitimate to continue applying it under imperial authority. Likewise, Papinian's opinion regarding the pars legitima is presented without any real supportive analysis, Justinian simplyjustifying his stance with the assertion that filial affection must be earnt, but not stooping to defend the son's volte-face.^[359] These sweep­ing enactments, as well as the silent adoption of Greek legal practices and commensurate changes to Roman law, and repeated reversal of the old princi­ples of the lex citandi yet dogged determination to follow them in other in­stances, should all be viewed through the lens of Justinian's general exercise of imperium, and more specifically, his authority as legislator for the empire. In this office, he did not need to justify himself or his laws, unlike the jurists who had come before him, or explain seemingly contradictory approaches. He needed only to assert his own authority, even if he remained knowledgeable of the limited amount of times he could get away with this luxury without attract­ing unwanted opprobrium from legal thinkers and local magistrates. Ultimate­ly, as far as he could Justinian aimed to give his laws a semblance of rational­ism, when respecting eastern provincial custom and the Roman legal tradition alike, and when protecting vested interests or fending off financial incursions and power grabs by the church. But promoting the very status of imperial rule was also fundamental to his legislation.

2.4 Justinian’s Laws in Posterity

Justinianic law endured through to the Ottoman conquest of Byzantium in the fifteenth century. Its continued success was primarily assured by his cor­pus being used, after further ^lChristianisation', for the eighth-century Ecloga and appendix,^{[360] [361] [362] [363] [364] [365] [366] and by excerpts from sixth-century Greek translations and commentaries forming the main basis of the Basilica, compiled over the ninth to tenth centuries, and its explanatory scholia.129 The texts usually abridged the original somewhat, entailing that Justinian’s techniques for claiming le­gitimacy were often lost, being more expendable in a concise substantive re­sume. However, many extracts still retained the names of the original juristic authors. In the laws examined here, Papinian’s opinion mentioned in Cod-Just. 3.28.35 is expressly confirmed: ηρεσε και Παππιανω...130 Hellenised Latin terms were also employed: the donationes mortis causa of Cod-Just. 8.56.4, are, for example, μορτισκαυσα δωρεa.i3i Throughout the Byzantine period, therefore, Justinianic laws were infused with prestige by core legal texts still associating them with ancientness and the old empire.}

As for the West, after reconquering much of the Italian peninsula, Justin­ian had copies of his codification sent there, complete with those elements inspired by Greek custom. Although his victories were fragile and acquaint­ance with his laws initially piecemeal, some knowledge of the works took hold, and they were more thoroughly revived after the eleventh century.i32 The laws also permeated other successor states to the Roman empire, and well be­yond, where they can often still be glimpsed to this day. The pars legitima, for example, frequently forms the bedrock of concepts of familial testamentary entitlements.133

Cultural factors seem to largely explain the differing fate of the law in East and West. The survival of Justinianic law in mediaeval Byzantium became in­creasingly dependant on its association with Christian ideals. But where there was a lack of shared culture, laws vanished: features such as patria potestas, which found scant recognition in Byzantine society, soon became largely re- dundant.13⁴ Even though (Roman) Byzantine law influenced the legal system of successor Caliphates,^{[367] [368] Ottoman rule legitimised itself by using its own laws, mostly (but not exclusively) Islamic. However, Western European king­doms were already Christian before Justinian’s codification arrived, allowing their Roman populations to use pre-existing (Christianised) Roman law. They then mostly adopted the Chalcedonianism that Justinian himself followed.^6 Consequently, because his laws laid claim to Christian values too, they had a receptive base from the outset. They were valued also for their systematic treatment of the law, and, more latterly, for the legal unity they provided for emerging nation states. But even within this context, the law slowly evolved under the authority of changing societal needs, at least in part accounting for why remnants still survive to this day in various legal systems across the world.}

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