Byzantine law during the period 534-867

In the years following the publication of Justinian's law-books Byzantine legal science flourished, especially at the two outstanding places of legal learning, the law schools of Constantinople and Beirut.^{^[1305]} As was noted in chapter 10, Justinian had forbidden all commentary on his legislation under the threat of punishment, proclaiming that the right to interpret the law pertained only to the emperor.^{^[1306]} He had allowed only the composition of summaries of contents {indices) and literal {kata podas) translations of the Latin texts into Greek.

The purpose of this prohibition was, as Justinian himself stated, to protect his legislation from the uncertainty which could arise from disputes as to the meaning of the legal norms it contained.^{^[1307]} But, even before his death, this prohibition appears to have fallen into abeyance and manuscripts began to circulate containing summaries, commentaries and interpretations of Justinian's texts, as well as treatises on individual topics. Most of these works were composed by jurists who taught at the law schools of the East. Among the most distinguished of these law professors {antecessores) were Theophilus of the school of Constantinople, and Dorotheus and Anatolius of the school of Beirut. Other notable jurists of the same period were Thalelaeus, Cobidas, Stephanus and Julian. Theophilus produced a Greek paraphrase of Justinian's Institutes based on an earlier version of Gaius's Institutes different to some extent from that

used by Justinian's drafters. Theophilus's paraphrase played an important part in the development of Byzantine law and was the first work on Roman law in Greek that was published in Western Europe (1533).^{^[1308]} It has come down to us through various manuscripts accompanied by comments of other contemporary jurists.

Fragments of other juristic works of the same period have survived in the form of commentaries incorporated in later Byzantine compilations. These include a commentary on the Digest by Stephanus, a professor of the law school of Beirut, an extensive interpretation of the Code by Thaleleaus, who also taught at Beirut, a translation of and commentary on the Code by Anatolius and an abridgment of the same work by Stephanus. Abridgments of Justinian's Novels were produced by Julian, a professor at the law school of Constantinople, and other jurists. In the course of time the works of the Byzantine scholars largely replaced the original texts of Justinian's codification (whose Latin language made their use very difficult in the Greek-speaking East) and came to be relied upon as the chief sources of legal materials by later Byzantine compilers and commentators.

In the years following the death of Justinian Byzantine jurisprudence entered a period of decline, accompanied by a sharp fall in the standards of legal education. As the old law-schools fell into decay, the teaching of law was taken up by teachers of a new kind, who were members of professional associations of advocates. Unlike the earlier antecessores, who were dedicated to the theoretical study of the Justinianic codification, these new teachers were primarily concerned with the legal practice of their own day and its needs. Their teaching was based chiefly on Greek translations of the Institutes and on summaries of the Novels, the part of Justinian's legislative work most relevant to current legal practice, whilst very little attention was paid to the Code and the Digest. A tendency towards simplification and the ironing out of all legal subtleties is visible in the surviving works of this period. These include two abridgments of the Novels by Athanasius and Theodoras of Hermopolis, a summary of the Digest by an unknown author (referred to in later Byzantine sources as Enantiophanes) and three monographs on special subjects.

Theodoras of Hermopolis also produced a summary of Justinian's Code known from a number of quotations included in the Basilica.

class=a4 style='text-indent:18.0pt'>By the middle of the seventh century the production of legal works had ceased and the legislative and juristic texts of the sixth century, which had become scarce and difficult to understand, had largely fallen out of use. Moreover, the disruption of official communications between the

capital and the provinces by war undermined the government's ability to ensure the uniform application of the law throughout the empire. As a result, local custom began to play an important role as a source of social regulation. Under these conditions lawyers and imperial officials found it increasingly difficult to discover what the state of the law was. What was urgently needed was the introduction of a new legislative work which would adapt the Roman law of Justinian to usages actually observed by the inhabitants of the empire and which would set out, in a simple and systematic way, the applicable law. These were the objectives of the compilers of the Ecloga Legum, the new legal code enacted in the first half of the eighth century.

The Ecloga Legum^xo was published in 741 under the authority of Emperor Leo III the Isaurian and his son and co-Emperor Constantine V." It is written in Greek and consists of a preface and eighteen titles dealing with the law of marriage, succession, tutelage, contracts and crimes.^{^[1309]}[1310][1311] In the preamble it is stated that the code is based on a selection of laws derived from the Institutes, the Digest, the Code and the Novels of Justinian, modified in the direction of greater 'humanity'. As this suggests, the purpose of the Ecloga was not to replace the codification of Justinian, but to make the law contained therein more understandable, both in language and in spirit, to those involved in the administration of justice (especially in the provinces where the texts of Justinian were no longer available).

It appears, however, that its drafters relied not on the original texts of the Justinianic codification but on Greek translations, abridgments and commentaries by which Justinian's texts had in the meantime been replaced. Moreover, the Ecloga incorporated a number of legislative enactments issued by emperors of the post-Justinianic era and introduced important innovations reflecting Greek and oriental influences. In general the work is characterised by its simplicity and by the special emphasis it lays on Christian and humanitarian principles (especially in the sphere of criminal law and the law governing family life).^{^[1312]} Although the Ecloga was abrogated by the Macedonian emperors in the ninth century (in pursuance of their policy of reversing the reforms introduced by the Isaurians), some of its provisions continued to apply in practice, especially in the provinces and among neighbouring peoples in the Balkans and Asia Minor. ⁴

From the age of the Isaurian emperors date also three unofficial compilations dealing with special branches of the law: the Military Code, the Rural or Farmers' Code and the Rhodian Maritime Code. The Military Code consists largely of penal provisions aimed at securing discipline in the army. The Rural Code is believed to have originated in the provinces and was probably based on the legislation of Justinian and other early sources. It contains provisions of a punitive character intended to protect small farmers and tenants against exploitation.^{^[1313]}[1314] The Rhodian Maritime Code is a collection of rules of the customary law of the sea that applied in the East between the sixth and eighth centuries. This compilation was widely used throughout the Mediterranean during the Middle Ages and furnished the basis for the further development of the law governing maritime trade.^{^[1315]}

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Source: Mousourakis George. The Historical and Institutional Context of Roman Law. Routledge,2003. — 480 p.. 2003

Byzantine law during the period 534-867

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