11.i The legacy of Justinian's codification in the 'Dark Ages'

n.1,1 The Eastern Empire

The administrative separation of the Roman Empire into two halves began during the reign of Diocletian (AD 284-305) and was formalized in AD 395. During the course of the fourth and fifth centuries, two distinct empires emerged which stead­ily drifted apart in constitutional, administrative, and theological matters.

The history of Byzantine law is generally divided in modern scholarship into three periods: the sixth century to the start of the ninth century; the ninth century to the start of the thirteenth century; and from then until the fall of Byzantium in 1453. Although later Byzantine law (apart from the Corpus Juris Civilis) as such did not have a direct influence on the emergence of the ius commune in Western Europe, its literature, which became available in Western Europe only after the fall of Byzantium in the mid-fifteenth century, had a profound impact on the study of Roman law, especially in the works of the French legal humanists of the sixteenth century (see 11.2.3.1 as well as the general narrative of Stolte in the works men­tioned previously).

In the sixth century, Byzantine legal science rose to prominence as a result of Justinian's legislative endeavours.

Following the death of Justinian in the mid-sixth century, and the general fate of the Byzantine Empire, the standard of Byzantine legal science inevitably declined. Large parts of the reconquered West (including Italy) were again lost to the 'barbarians' and the boundaries of the Byzantine Empire receded. Many of the law schools set up during the sixth century closed down and the teaching of law came to be handled largely by advocates whose interests lay in legal practice rather than legal science. This process of decline continued until the mid-seventh century. By this time, the existence of numerous abridgements and translations of Justinian's codification, combined with a legal culture dominated by legal practice, had caused uncertainty about the state of the law. In an attempt to provide clarity, efforts were made to restate the law. These culminated in the enactment in c. AD 741 of the Ecloga Legum ('Select Passages') during the reign of the Emperor Leo III. This work was a summary of the major parts of Justinian's codification, but containing some amendments of the law, e.g. mothers were allowed to exercise potestas over children in certain circumstances.

The ninth century witnessed a renewed interest in the codification of Justinian as the foundation of Byzantine law. This was partly fuelled by successive Byzantine rulers' reinforcement of the popular notion that the Byzantine Empire was a con­tinuation of the Roman Empire. Thus, attempts were made through compilations such as the Eisagoge (also known as the Epanagoge) (c. AD 885) and its revised form, the Pmcheiros Nomos (compiled during the tenth century) to adapt Justinianic law to the circumstances of the period and to eliminate obsolete elements. However, by far the most important work emanating from this period was the Basilica ('Imperial Books'), started by the Emperor Basil I but completed in c. AD 890 by his son, Leo the Wise. This was a Greek paraphrase of Justinian's codification, issued as one work in sixty books, it represented a significant achievement in a period that wit­nessed a revival of intellectual standards in the Byzantine Empire and an attempt to emulate some of the achievements of the past. The aim was to make Justinian's codification more serviceable by arranging the material in a more orderly man­ner, by excising obsolete laws, and by giving the work a greater sense of unity and harmony. Leo claimed that the Basilica contained no contradictions or obsolete material—a familiar claim—but he was wrong. Nevertheless, the work was an impressive achievement, making Justinian's codification more accessible to the practitioner. The Basilica was intended as an aid in interpreting Justinian but became so popular that it acquired great authority in its own right. In due course it came to be regarded as too unwieldy and difficult for everyday use.

The final period of Byzantine legal history, from the thirteenth to the mid­fifteenth century is again characterized by a decline in Byzantine legal standards brought about largely by the unsettled political climate of the period, The bor­ders of the Byzantine Empire were gradually retreating under pressure from various neighbouring forces (both Christian and Muslim) and the sacking of Byzantium in 1204 during the fourth crusade signalled the beginning of the end. The reasons for this invasion were largely political. The Venetian Republic, formally still a vassal of Byzantium, but seeking its independence and access to Byzantine trade routes, financed the fourth crusade in the hope that it would lead to the destruction of the Byzantine Empire. The Church of the West happily obliged since it: 'hardly even saw [the Byzantine Empire] as a part of Christendom, given a century and a half of schisms between the Churches' (Roberts, History, 183). When the seat of govern­ment was temporarily restored in 1261, Byzantine rulers attempted to reverse the decline in legal standards by reforming the court system. Apart from procedural reforms, however, no attempts were made to systematize the law and it remained in chaos. From c. 1400, it was clear that the end of the Byzantine Empire was drawing doser. The Ottoman Turks had begun to surround Byzantium from all sides and the kingdoms of the West seemed unwilling to render assistance. Attempts were even made in 1439 to breach the schism between the Churches of the East and the West when the Byzantine Emperor John VIII attended the ecumenical council in Florence and accepted the primacy of the Pope and a union with Rome.

11.1.2 The West

Although Justinian's codification was enacted as law in Italy in AD 554 after the defeat of the Goths, it had little opportunity to make a lasting impact in the West because of the tenuous and short-lived nature of Justinian's reconquest of the area. By the time of his death the Germanic tribes were again gaining control of the areas liberated by his generals. If anything, it was the Theodosian Code—longer established—which provided the backbone of Roman law in the West.

In the following centuries (from the sixth to the end of the tenth century), the so-called 'Dark Ages' (or early-medieval period), the picture is rather confused. The Germanic tribes' struggle for territorial supremacy in the immediate aftermath of the collapse of the Western Empire caused widespread destruction. The already frag­mented legal system of the former Western Empire crumbled. Widespread illiteracy led to a decline in knowledge of the law and communities came to rely increasingly on localized (largely oral) custom. The 'professional jurist' skilled in law—a key fea­ture of classical Roman law—disappeared to be replaced by councils of laymen who had knowledge of local custom, see Schoemaker, K., 'Germanic Law', in OHELH, 249-61, as well as Herzog, Short History, 47-61.

The Goths—especially the Visigoths and Ostrogoths—were most influenced by Roman law. Despite the fact that their relationship with Rome had run a decidedly erratic course, the Goths had settled among the Roman population and become largely assimilated into the Roman way of life before the fall of the Western Empire: 'their leaders became Roman magistrates, their legislation, originally derived from that of the Empire, was drafted by Roman literati and clerics, and the local Roman administration generally remained in place. These people found nothing at odds with their own thinking and feeling in the venerable and brilliant culture they met' (Wieacker, History, 20). By far the most important Germanic code in the West throughout the Dark Ages—and well into the medieval period—was the lex Romana Visigotharum promulgated in AD 506 (see 2.4.3.3). It was intended principally for use by the Roman populations of Gaul (the kingdom of the Ostrogoths) and Spain (the kingdom of the Visigoths). The code represents a considerable achievement, although any attempt to produce a workable code at that confused time, and with relatively meagre resources, was bound to be problematic. For example, particular use was made of Gaius' Institutes and Paul's Sententiae, but the desire to produce a simple code resulted in a somewhat bowdlerized version of the former at least. The Gothic kings continued to enact codes strictly for their own non-Roman subjects, and these showed considerable borrowing from Roman law, although blended with Germanic custom.

Another Germanic people, the Lombards, invaded Italy in AD 568, and estab­lished control for some 200 years over most of the northern and central part of the mainland. They too borrowed from Roman law, but to a lesser degree than the Goths. Their codes—principally that of King Liutprand (AD 712-44)—are essen­tially enactments of Lombard custom interspersed with rules clearly Roman in ori­gin. However, Lombard government—based at the royal court at Pavia—tended to be more centralized and better administered than was the case in other Germanic kingdoms. In the long term, these factors, combined with greater adherence to the written word and royal authority, made Lombard law resemble Roman law in some important characteristics. Moreover, the growth of economic activity in northern Italy led to sporadic recourse to the Roman law of obligations in particular.

The Franks proved to be the most militarily successful of the Germanic peoples in the long term. Under Charlemagne (reigned AD 768-814) they captured Pavia and subjugated the Lombards. The Franks established such a hegemony over much of Western and central Europe that a new empire—the Holy Roman Empire—was created, with Charlemagne crowned as Emperor by the Pope in AD 800: 'the idea of universal empire, which was to prepare the way for the rebirth of Roman law in the High Middle Ages, was already discernible’ (Wieacker, History, 22). The Frankish codes primarily enacted Frankish custom with only occasional Roman influence (mostly the law of obligations). Where parts of Roman law were incorporated, it was in a somewhat debased form, as in the case of the lex Romana Curiensis c. AD 800. This code—applied in northern Italy and the Alpine region beyond—was a mixture of Frankish and Lombard custom incorporated with a distorted summary of the lex Romana Visigotharum, and containing references to 'Scifola' and 'Gagius' (instead of Scaevola and Gaius). See generally Vinogradoff, Roman Law in Medieval Europe (1929), ch. 1; and Robinson et al., ELH, ch. 1.

But. even codes such as these at least served the purpose of preserving some ele­ments of Roman law, and a degree of continuity of legal tradition, however thin. On the other hand, in northwest Europe and other outlying regions of the former Western Empire, Roman law virtually disappeared. Fortunately, in the remaining regions, the survival of Roman law during the Dark Ages was greatly aided by the rise of the (Catholic) Church in the West (see Robinson et al., ELH, ss. 1.4.2-1.4.3). Once the borders of the medieval kingdoms had settled during the sixth century, the Church became an important political agent within these kingdoms while at the same time developing its own legal system (based on Roman law) to deal with matters falling within its jurisdiction. The interaction between the ecclesiastical jurisdiction of the Church and the secular jurisdiction of the ruler was defined shortly after the collapse of the Western Empire in a comment made by Pope Gelasius I in a letter to the Eastern Emperor Anastasius in AD 494. According to the Gelasian principle (as it came to be called) the Church would only issue decrees with genera! application concerning matters falling within its ecclesiastical jurisdiction (sacerdotium), while the secular ruler would have the right to issue decrees over all other civic matters falling within his secular jurisdiction (imperium). This division of ecclesiastical and secular jurisdiction did not cause conflict in the early centuries of the Dark Ages, but as the Church became more powerful and Popes continued to interfere with secular matters it eventually culminated in the Investiture Contest during the tenth and eleventh centuries (see 11.2.2,1 and Montateri, P. G., 'Early Roman Law and the West: A Reversal of Grounds', in OHELH, 162-85 as well as Herzog, Short History, 62-72).

11.2