Sexuality and the Law under Justinian
On 13 February 528, the East Roman Empire’s recently created ruler, Justinian (527-65), appointed a ten-man commission, headed by his learned legal adviser, Tribonian, to undertake an ambitious revision of Rome’s entire accumulation of laws.
By the early sixth century, Roman law had grown to such colossal proportions, had become so complex, and after nearly eleven centuries of growth was so riddled with perplexities, internal contradictions, and obscurities that few jurists could readily find their way through its maze of legislation and interpretation.The commission proceeded first to the task of revising the statutes. In April 529, little more than a year after its creation, Tribonian presented the first fruits of its labor to the emperor: a systematic revision of the statutes under the title Codex Justinianus, or Code of Justinian. It comprised twelve books, each subdivided into titles that dealt with the statutes on a specific topic or problem. Four years later, on 16 December 533, an enlarged commission produced a further installment: the Digesta (known in Greek as the Pandekta), a massive anthology in fifty books of authoritative opinions and interpretations concerning the law, drawn from a whole library of juristic sources. A Subcommission also produced in 533 the Institutes, a compact synthesis of the basic principles of Roman law in a mere four books. In 534 a revised version of the Code supplanted the first edition. A few years after Justinian’s death an anonymous compiler added a fourth work, known as the Novellae leges, usually called the Novels in English. The Novels comprise 158 pieces of legislation supplementing the second edition of Justinian’s Code.
These four works, the Code, Digest, Institutes, and Novels, collectively comprise what later generations came to call the Corpus iuris civilis, by far the most significant achievement of Justinian’s reign.
The Corpus remains to this day the basic source of all study of Roman law, for, aside from the texts in the Corpus, only scattered remnants of the pre-Justinian law have survived. Roman law since Justinian has meant essentially the law in the shape that he and his codifiers left it. Their work has been the basis of all subsequent jurisprudence in the Roman tradition and remains fundamental to the civil law systems based upon that tradition.Justinian was vividly aware of the importance of sex in human behavior. He confessed in one of his enactments: “We know, although we are lovers of chastity, that nothing is more vehement than the fury of love.”[481] His codification of the law reflected both his awareness and his concern about the role of sex in human affairs.
Marriage
Justinian inherited a doctrine of marriage that, as we have seen, made the intentions and attitudes of the parties critical elements of the marriage contract. Justinian reaffirmed that tradition explicitly several times. “Marriages,” he declared in one passage of the Code, “are not contracted by dowry arrangements but by affection.”[482] But Justinian was also aware that this doctrine created formidable problems: if the essence of the marriage contract resides in the intentions and feelings of the parties, then how can one prove with certainty that a marriage has in fact taken place? More to the point, how can a judge determine whether or not a child is legitimate if he cannot offer clear proof that his parents were married, rather than simply living together as lover and concubine?
These problems disturbed Justinian and his legal advisers, as they had troubled earlier generations of Roman jurists. In 538, Justinian attempted to solve this practical difficulty by making an abrupt break with long standing tradition. In a new law of that year Justinian changed the very basis of the marriage contract: henceforth dotal instruments, written agreements concerning the property arrangements for the marriage, were to be required in every case; persons who could not produce a dotal instrument would be deemed not to be married.[483] This proved to be a short-lived experiment.
A radical break with the past, it cast doubt on the legal status of too many people to be a feasible reform. Accordingly, four years later Justinian partially altered the basic marriage law once again. In Novel 117 he ordered that citizens of the highest social ranks must contract marriages in future through written dotal agreements. Others were not forbidden to use dotal instruments as proof of their marriages, but were not required to do so. Persons of lower social rank might continue to marry “by affection alone,” and their marriages would be held valid and their children legitimate.[484]Divorce
Justinians divorce policy, like his marriage policy, underwent gradual modification throughout his reign. His divorce legislation, in general, tended to increase restrictions upon divorce, but there is no evidence that he considered marriage indissoluble or that he believed that marriage was a sacrament. His earliest divorce legislation in 533 amplified the grounds on which divorce could be obtained. This enactment specified that a man could divorce his wife if she procured an abortion, attempted marriage with another man, or made a habit of bathing in the company of men other than her husband.[485] Beyond this, Justinian also provided that a man might unilaterally abrogate his marriage by becoming a monk or hermit. This action did not technically terminate the marriage, even though it involved a legally sanctioned separation and also brought into force any prior agreement between the spouses concerning the division of property at the death of one of them. Justinian was also concerned to outlaw fraudulent divorces sought by married offspring who wished to gain control of property settled on them by their parents. For this reason he prohibited divorces without the consent of the parents of the parties, provided of course that at least one parent was still living.[486]
Justinians next major divorce legislation was the complex and lengthy Novel 22 of 536.
Novel 22 was particularly significant because it was based on the explicit premise that marriage was dissoluble. “In human affairs,” Justinian declared, “whatever is bound can be dissolved,” and marriage was a human affair.[487] Novel 22 outlined four possible avenues for terminating a marriage while both parties were still alive. A couple could dissolve their marriage either by mutual consent, or on grounds that Justinian refers to as “good grace,” or for reasonable cause that was not “good grace,” or without any grounds at all.[488] [489] The law dealt no further with divorce by mutual consent, since in Justinian’s eyes that was the business of the parties themselves. He disapproved of divorce without stated cause and required that in contested cases some justification be shown for the action. The bulk of Novel 22 then dealt with reasonable grounds for divorce and attempted to differentiate the acceptable ones from the unacceptable. Acceptable causes included inability to have sexual relations, capture or disappearance of one party during battle, adultery, homicide, grave-robbery, political conspiracy, sorcery, aiding and abetting bandits, attending the theater, dining, or bathing with other men, or spending the night away from home without permission of the husband, and activities that endangered the life of the spouse.188Justinian returned to divorce law once more seven years later when he published Novel 117. This enactment, which like Novel 22 is long and complex, concerned itself primarily with the economic consequences of divorce and paid particular attention to safeguarding the interests of the children. Novel 117 also revised the acceptable grounds for divorce enumerated in Novel 22 and substantially reduced the list of reasonable causes, eliminating most of the earlier grounds that had involved criminal acts against parties other than the spouse— thus sorcery, kidnapping, robbery, and other crimes against third parties disappeared from the list.
Attempted homicide remained a valid reason for divorce only when the intended victim was the husband.[490] [491]The new divorce law retained the grounds enumerated in Novel 22 that involved acts whereby the wife created a suspicion that she might be engaged in an adulterous affair, such as attending entertainments in the company of other men, bathing or dining with them, and the like. But, interestingly enough, Novel 117 added to the list of reasonable causes similar actions by the husband that might create a justifiable suspicion that he was having an extramarital fling—frequent visits to other woman or, far worse, keeping another woman in the matrimonial home. If a man accused his wife of adultery but was unable to prove the charge, that also became a reasonable cause for her to seek divorce under the new statute. In general, Novel 117 restricted the possibilities for divorce and made it slightly more difficult to dissolve a marriage; in no sense, however, did it enunciate or even hint at a policy of indissolubility.18s
Justinians later legislation introduced further departures from traditional divorce law. Novel 127 in 548, which dealt with a variety of topics, included a provision stating the principle that men and women should be treated equally in divorce matters. In particular Justinian declared that there ought to be no difference in the penalties assessed against men and women who divorced without invoking one of the grounds recognized by law.[492] In 556, Justinian made a final and radical alteration in Roman divorce law. In Novel 134, the emperor abolished the longstanding practice of divorce by mutual consent and required that parties who thenceforth wished to divorce must plead a legally recognized cause for the action. And not only did Justinian abolish consensual divorce, but he also fortified his pronouncement with a series of penalties designed to ensure its demise.[493]
This repeal of consensual divorce lasted only a decade.
After Justinian’s death his successor, Justin II (565-578) reinstated the consensual procedure. Justin noted that the abolition of divorce by mutual consent had created severe problems. Many persons had approached him, Justin declared, with complaints about the battles and struggles that raged in their homes because they were unable to prove that they had legal grounds for divorce. Marriages often deteriorated, he noted, because of irrational passions and hatreds, not because of any reasonable cause. In view of the complaints and petitions that had been submitted to him Justin decreed that the old practice of divorce by mutual consent should be reinstated. Justin also abolished the penalties that Justinian had attached to the practice, observing that if marriage was created by mutual affection, it seemed reasonable that it should be dissolved when affection died.188The development of divorce law in Justinian’s Corpus, then, was neither simple nor consistent. The early sixth century was a time of experimentation. Legislators were struggling to reconcile the contention of Christian doctrinal writers that couples should remain married for life with the practical realities of civil society and the Roman tradition of consensual marriage and consensual divorce. While the Church’s spokesmen were successful in winning some slight modifications of the law to suit their doctrinal preferences, the reluctance— sometimes the inability—of Justinian and his successor to accommodate the views of the more rigorous moralists was also notable. Certainly the imperial government did not enact into law the comprehensive marriage and divorce policy that patristic writers advocated. This suggests that governmental policy may have reflected a reluctance on the part of many Christians, perhaps even a majority, to conform to the doctrinal views of a relatively small Christian intelligentsia on sensitive issues of family law.189
Concubinage
Other aspects of Justinian’s law dealing with sexual behavior also suggest that the emperor was sometimes reluctant to adopt views urged upon him by his ecclesiastical advisers. While contemporary Christian moralists, as we have seen, deplored concubinage and equated it with fornication and prostitution,
188Nov. 140: “Plurimi autem nos adierunt inter se Coniugium horrentes et abomi- nantes et proelia discordiasque propter hoc domi contingere accusantes... dissolvere propter hoc precantes connubia.... quoniam vero difficile est inmutare semel detentos inrationabili passione et horrore.... Haec igitur aliena nostris judicantes temporibus, in praesenti sacram constituimus legem, per quam sancimus licere ut antiquitus consensu coniugium solutiones nuptiarum fieri.... Si enim in alterutrum adfectus nuptias solidat, merito contraria voluntas istas cum consensu dissolvit....” See also Noonan, “Novel 22,” p. 70.
189D'Ercole, “Consenso,” pp. 68-73, Paintsafarmore glowing picture of the Church’s success in remodeling imperial marriage doctrine to conform to ecclesiastical teachings than the evidence seems to warrant. Nor am I convinced by Lefebvre’s assertions about doctrinal consistency among Christian writers during this period on the subject of divorce; see his “Origines et evolution,” p. 24.
none of this appears in Justinians legislation. While he did make major changes in the law dealing with concubinage, Justinians legislation tended to improve the legal position of the concubine and her children, and the emperor refused to subject them to additional penalties, as the rigorists urged. Under Justinian concubinage was instead raised to virtual parity with marriage.[494]
In 528 and again in 529, Justinian liberalized the law relating to the inheritance rights of concubines and their children, especially by granting natural children the right to inherit up to one-half of their fathers estate, as well as to succeed to property held by their mothers. The latter provision also enabled the father to increase the portion of his estate that his natural children would ultimately receive.[495] The concubines situation improved further in 531 as a result oflegislation that forbade the heirs of a deceased man to hold his concubine and her children in servitude, as earlier law had allowed.[496] Five years later, the right of concubines and their children to succeed to intestate estates was further enlarged.[497] In 539, Justinian granted them additional property rights, to the point that the status of a concubine and her children was only marginally different from that of a legitimate wife and her children.[498]
Justinians legislation on concubinage reflected ecclesiastical advice only slightly. His repeated insistence that concubinage must be permanent and that men must not have more than one concubine at a time clearly accords with the views ofChristian authorities.[499] For the rest, Justinians legislation on concubinage was in no specific sense Christian. Tomulescu has shown analogs in pagan Greco-Roman and Syro-Roman sources, making it plain that Justinian in this area of legislative activity was influenced as much or more by non-Christian practices as by Christian ones.[500]
Sex Offenses
Justinian’s legislative record on sex crimes was rather mixed. He made it even more difficult for a cuckolded husband to kill his straying wife and her lover with legal impunity. Under the terms of Novel 117 (542), the husband must give three written warnings to the adulteress and her consort, each warning attested by three credible witnesses. If, after the third warning, the husband subsequently surprised his wife and her paramour in the husband’s own house, in his wife’s house, in the adulterer’s house, or in a tavern, then the husband might slay the adulterer. The husband was still liable to the penalties for murder, however, if he killed his wife, although he could prosecute her for the crime of adultery.[501] Alternatively the husband had the right under a later constitution to beat his adulterous wife and to confine her in a convent. Ifhe relented within two years, he could take her back; if he did not, she was obliged to become a nun.[502] A married man who committed adultery escaped with much milder penalties: he lost his rights to the dowry property and the nuptial gifts, both of which passed to his wife. She also had the right to bring a divorce action against him.[503]
Rape presented altogether different problems, and Justinian dealt with it more sternly than his predecessors had done. In a major statute of 533, he prescribed the death penalty for those convicted of abducting or ravishing any woman, whether slave, free, married, single, betrothed or not, dedicated to God, or living in the world. The penalty extended to accomplices in the act or in preparations for it; the family of the victim had the right to inflict the penalty if they apprehended the culprit in the act. The abduction or ravishment of a betrothed woman by her fiance was likewise subject to the death penalty. If the victim was a lower-class woman the death penalty might be replaced by forfeiture of the property of the culprit and his accomplices to the family of the victim. If the perpetrator was a slave, he was to be burned alive.[504] Men who abducted or ravished nuns or other consecrated women were subject both to the death penalty and to confiscation of all their property, which was to be turned over to the victim’s religious house.[505] Imperial officials were instructed to take special pains to pursue and capture rapists who fled and to ensure that they were remanded to the courts for punishment.[506]
In addition, Justinian in 533 made rape or abduction of a woman an impediment to marriage, even if the family of the victim subsequently agreed to the union. Here Justinian was evidently concerned with elopement rather than with forcible sexual assault:
Our Serenity will not in any way at any time agree to give a license to allow persons within Ourjuriscliction to contract marriage through hostile actions [the emperor declared]. It is proper that whoever wishes to take a wife, whether she be free or freed, should do so according to our law and ancient custom by asking permission from her parents or other appropriate persons and marrying with their consent,[507]
This law was apparently not successful in discouraging marriage by abduction, however, and thirty years later Justinian reiterated the policy in a further enactment, which he subsequently published yet again.[508] Hc also repeated, without elaboration, the criminal penalties of the old Lex Iulia against fornication with unmarried women and widows.[509]
Pkostitution
Prostitution was another facet of sexual conduct in which Justinian took an active interest. His concern was possibly related to his wife’s earlier career as an actress, for his consort, Theodora, was also said to have been a prostitute prior to their marriage. Justinian sometimes speaks in his legislation in tones that express a surprising depth of feeling about the prostitute’s situation. In an enactment of 535, he described in graphic terms the panderers who prowl through the provinces in quest of young girls who live in poverty and the wiles with which procurers deceive their victims by enticing them with shoes and clothes to come to the capital city. Once there, the emperor continued, they place the girls in bawdy houses, supply them with wretched food and ragged dresses, and turn them over to the lusts of any strangers who happen along. The whole passage has a ring of firsthand knowledge and personal emotion uncommon in legislative acts.[510]
Far more than any of his predecessors, Justinian took active measures to protect women from involuntary impressment into a life of prostitution. If a master forced his servant girl to prostitute herself, according to a constitution of 531, the girl was to be freed and the master lost all rights over her.[511] In 534, Justinian required bishops to see that servant girls and others were not forced into careers as actresses or prostitutes. Should they find such women in their dioceses, the bishops were to see to it that they were freed and allowed to marry if they wished. Bishops were even empowered to overrule provincial governors in these cases.[512] In his constitution of 534 on prostitution, Justinian went further still. He prohibited the keeping of brothels and the practice of pandering within the city of Constantinople. The emperor imposed a heavy fine—ten pounds of gold—on those who operated houses of pleasure, forbade anyone to take money from prostitutes, and ordered pimps to be expelled from Constantinople.[513]
In addition to his legislation to repress prostitution and to penalize those who profited from the trade, Justinian also inaugurated a scheme to reform the prostitutes of his capitol. At the urging of Theodora, Justinian built a hospice, the Convent of Repentance, on the bluffs above the Sea of Marmora opposite the city, to serve as a refuge for women who wished to quit the life of sin. More than five hundred presumably repentant harlots, according to Procopius (ca. 4g0-ca. 562), soon found themselves confined within the convent, not all of them willingly. Some, he says, were so shattered by their enforced transformation into nuns that they leaped to their deaths from the convent walls.[514]
Homosexuality
Justinian also sought more vigorously than previous emperors to repress homosexual conduct. In the Institutes, he invoked the ban of the old Lex Iulia against “those who dare to practice abominable lust with men,” and imposed the death penalty upon offenders.[515] In 538/539 and again in 559, Justinian returned to this topic in constitutions notable for their extravagant rhetoric. Homosexual relations, the emperor declared, are not only contrary to nature, diabolical in origin, and illegal in practice, but they also imperil the public safety, since, “Because of such offenses famine, earthquakes, and pestilence occur.” Justinian therefore peremptorily commanded that such activities cease immediately. Men who had been guilty of sexual relations with other men, moreover, were to submit forthwith to ecclesiastical penance for their past deeds. Those who knew of others who had committed such actions should denounce the guilty parties to the authorities. In the second of these constitutions, Justinian expressly invoked divine authority for his legislation and pointedly referred to the Biblical account of the destruction of Sodom as a portent of the doom that faced the polity that failed to reform.[516]
Justinian’s legislation also dealt with other sexual problems. In 558, he prohibited castration and the making of eunuchs, an oriental practice that had begun to fall into disfavor in the Empire.[517] While he made no attempt to impose celibacy on the clergy through direct action, he certainly tried to discourage clerics in major orders from marrying and having children; in a rescript of 530 he forbade the children of clerics to inherit from their fathers and he also inhibited them from receiving gifts from their parents as well.[518] It is arguable, however, that this rescript was as much concerned with preventing the diversion of Church property to private use as it was with the celibacy issue.