CONCLUSIONS

What may we conclude from all this? First, for the historian (if not the lawyer), Theodosius and Justinian provided indispensable anthologies of imperial responses to real needs and problems.

In their setting in Constantinople, the codes represent a failing Latin legal and literary culture. In their original language, they would have a limited function in the Greek-speaking world, yet the Theodosian compilers say nothing about translation. The codes are power statements first, legal state­ments second; they were designed to have the same effect as the strictly choreographed imperial adventus or other controlled appearance before an obedient audience. The planning of the Theodosian Code was contradictory and policy was confused. The codes were not complete statements of law; if guidance was needed as to the duties of a magistrate, John Lydus' treatise On Magistracies, which may have drawn on the Digest, was a more effective handbook than the relevant sections in the first book of the Digest, and, not being a “legal text”, could freely co-exist with Justinian's magnum opus. The retrospective invalidating of what was excluded put great discretionary power in the hands of the editors. The failure to complete the Theodosian project left all of juristic writing outside imperial control and invalidated the Code's own claims to be a comprehensive statement of law.

Attempts to impose system in order to improve “transparency” bring problems of their own. In the Roman legal tradition, past codifications or quasi­codifications were sacrosanct and moulded the shape of law to come. But a system (edict plus publica iudicia), which worked for Republican Rome faltered as it faced the challenges of empire-wide implementation. The legal tradition, so often a source of strength, was also, potentially, a straitjacket. A juristic discourse based on structures, which had outlived their usefulness, itself ran the risk of becoming either irrelevant or impossibly opaque. Antiochus Chuzon and Tribonian, respectively the ministers of Theodosius and Justinian, still observed the framework created by the praetor's edict and the time-honoured statutes of Augustus and Sulla. It must be uncertain who else did.

Such were the risks confronting the authors of what Alan Watson has called, in this volume, “law in books”, which in both individual works and in codex form expressed a legal culture tenacious of its own traditions and slow to change to cope with new problems or social realities. For the historian confronting the question of “law in society”, there may be further problems to address. Oxford-trained classicists are taught to start with the sources. Here we may start with the fact that almost all juristic texts, with the notable exception of Gaius' Institutes, are fragmentary. Moreover, the individuality of their authors has been suppressed as irrelevant to the purpose of codifi­cation. The Corpus Iuris Civilis preserves a legal tradition, but for sixth­century purposes. It did not matter to Justinian that, in the reign of Tiberius, the upwardly mobile eques, Masurius Sabinus, client of the consul and jurist Cassius Longinus and of the Vitellii, may have been better known in his own day as an antiquarian than as a jurist;^[206] or that the cultural environment and legal agenda of, say, Pomponius (and even Gaius) at Rome in the mid-second century could have differed in crucial respects from those of Ulpian of Tyre, the exponent of Severan jurisprudence.

Texts cited

1. CTh 15.11.1 (414) We (Honorius and Theodosius II) allow everyone the right to kill lions... for the safety of our provincials necessarily shall take precedence over our amusements (i.e. organised by us).

2. CTh 15.11.2 (417) Praesidialis officii Euphratensis deploratione con- perimus eos, qui transductioni ferarum a duciano officio deputantur, pro septem vel octo diebus contra legationum formam tres vel quattuor menses in Hieropolitanam urbem residentes post expensas tanti temporis etiam daveas exigere, quas nulla praeberi consuetude permittit.

3. CTh 1.1.5 Sed cum simplicius iustiusque sit praetermissis eis quas poste­riores infirmant, explicari solas, quas valere convenient, hanc quidem codicem et priores diligentiorbius conpositos cognoscamus, quorum scholasticae intentioni tribuitur nosse etiam illa, quae mandata silentio in desuetudinem abierunt, pro sui tantum temporis negotiis valitura.

4. CTh 13.3.5 (cf C 10.53.7) Magistros, studiorum doctoresque excellere oportet moribus primum deinde facundia. Sed quia singulis civitatibus adesse ipse non possum, iubeo, quisque docere vult, non repente nec temere prosiliat ad hoc munus, sed iudicio ordinis probatis decretum curialium mereatur optimorum conspirante consensus. (Then clause, not in Codex Iustinianus, about referring every nomination to the emperor).

5. Sidonius, Letter 1.7.10. at ubi se furens ille quantumque caderet ignarus bis terque repetita confessione transfodit, acclamatur ab accusatoribus, conclamatur a iudicibus reum laesae maiestatis confitentem teneri.

6. Digest 48.1.1 Macer, libro primo de publicis iudiciis non omnia judicia, in quibus crimen vertiur, et publica sunt, sed ea tantum, quae ex legibus iudiciorum publicorum veniunt, ut Iulia maiestatis etc.

7. Digest 50.13.5.pr Callistratus, libro primo de cognitionibus numerus ergo cognitionum in quattuor fere genera dividi potest: aut enim de honoribus sive muneribus generendis agitatur, aut de re pecuniaria disceptatus, aut de existimatione alicuius cognoscitur, aut de capitali crimine quaeretur.

The Digest citations from treatises on Publica ludicia:

L Volusius Maecianus (fl. mid-second century) 14 books Venuleius Claudius Saturninus (ditto). 3 books

Aemilius Macer (early-mid third century) 2 books Aelius Marcianus (ditto) 2 books

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