Legal Development from the End of Justinian'lang=EN-US>s Reign to the Accession of Basil I the Macedonian

In the years following the publication of Justinian’s law books, Byzantine legal science flourished. This notably occurred at the two outstanding places of legal learning, the law schools of Constantinople and Beirut (Justinian allowed only these two schools and the law school of Rome to resume under his new program of legal education).

As previously observed, Justinian proclaimed that the right to interpret the law pertained only to the emperor^{^[641]} and thus he forbade all commentary on his legislation under the threat of punishment. He had only endorsed the composition of summaries of contents (indices) and literal (kata podas) translations of the Latin texts into Greek. As Justinian declared, the purpose of this prohibition was to protect his legislation from the uncertainty that could arise from disputes as to the meaning of the legal norms it contained.^{^[642]} But this prohibition soon fell 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 in the East. The most distinguished of these law professors (antecessores) embraced Theophilus from the school of Constantinople, and Dorotheus and Anatolius from the school of Beirut. Other notable jurists of the same period were Thalelaeus, Cobidas, Stephanus and lulianus. Theophilus produced a Greek paraphrase of Justinian’s Institutes based on an earlier version of Gaius’s Institutes that differed 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).^{^[643]} We have obtained this work through various manuscripts accompanied by the 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 from the law school of Beirut; an extensive interpretation of the Code by Thalelaeus, who also taught at the Beirut school; a translation of the Code and accompanying commentary by Anatolius; and an abridgment of the same work by Stephanus. Abridgments of Justinian’s Novels were produced by Iulianus, 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). Byzantine compilers and commentators in later eras relied upon these works as the chief sources of legal materials.

In the early post-Justinianic period, Byzantine jurisprudence entered a period of decay accompanied by a sharp fall in the standards of legal education. The precise length of time the law schools of Constantinople and Beirut remained open is not known, but it appears that they had probably closed by the end of the sixth century. As the law schools fell into decline, the teaching of law was assumed by teachers of a new kind who were members of professional associations of advocates. Unlike the earlier antecessores dedicated to the theoretical study of the Justinianic codification, these new teachers (known as scholastics) 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 clarification of all legal subtleties is visible in the surviving works of this period.

These include two abridgments of the Novels by Athanasius and Theodorus of Hermopolis, a summary of the Digest by an unknown author (designated in later Byzantine sources as Enantiophanes)^{^[644]} and three monographs on special subjects.^{^[645]} Theodorus of Hermopolis also produced a summary of Justinian’s Code that is revealed from several quotations included in later compilations of law (esp. the Basilica).

Of the imperial legislation enacted in the period under consideration only a very small number of novels promulgated by Justin II (565-578), Tiberius II (578-582) and Heraclius (610-641) have been preserved. They are concerned, for the most part, with matters of public, ecclesiastical and private law (especially the law of marriage). The legislation of Tiberius reflects an attempt on the part of the government to curb the excesses of the powerful and improve the economic situation of the small landholders and free labourers. The four novels that have come down to us from Heraclius’s reign (dated from the years 612, 617, 619 and 629) deal with matters relating to the organization of the Eastern Church, including the privilegium fori. These enactments are the last manifestations of lawgiving in the Justinianic tradition, but, in comparison with Justinian’s work, can hardly be regarded as being of far-reaching significance; rather, they represent an interference on the part of the emperor in matters that had been brought to his attention. This is unsurprising in light of the situation the empire found itself in during this period: the wars against the Avars, Persians and Arabs all took a heavy toll and, by the end of Heraclius’s reign many eastern provinces had been lost. Although the turmoil the empire was facing is not the only reason why legislation faded into the background, it is clear that the crisis and struggle for survival demanded different priorities.

By the middle of the seventh century, the production of legal works had ceased.

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 a prominent role as a source of social regulation. The situation was exacerbated further by the fact that Justinian’s legislation was written in a language that was foreign in the empire and embodied concepts that both the people and those involved in the administration of justice found difficult to understand. Under these conditions, lawyers and imperial officials found it increasingly difficult to discover the exact state of the law. This prompted the urgent need to introduce a new legislative work that would adapt the Roman law of Justinian to usages actually observed by the inhabitants of the empire and clarify the applicable law in a simple and systematic way. 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 enactment of this code attests to the fact that, despite the decline of legal education and scarcity of legal literature, the ideological force of Roman law as a symbol of the state remained unaffected.^{^[646]}

The Ecloga Legum (Selection of Laws) was published in 741 under the authority of Emperor Leo III the Isaurian (717-741) and his son and co-Emperor Constantine V (741-775). A three-member commission headed by the quaestor Nicetas prepared this material. Written in Greek, the work consists of a preface and 18 titles that address the law of marriage, succession, tutelage, contracts and crimes. The preamble declares that the work is based on a selection of laws derived from the Institutes, the Digest, the Code and the Novels of Justinian that were modified, in accordance with Christian ideas, in the direction of greater humanity.^{^[647]} As this suggests, the purpose of the Ecloga was not to replace the codification of Justinian but to render the embodied law more comprehensible in terms of language and spirit for those involved in the administration of justice (especially in the provinces where the texts of Justinian were hard to find).

However, its drafters apparently did not rely on the original texts of the Justinianic codification but on the Greek translations, abridgments and commentaries that had meanwhile replaced Justinian’s original texts. Moreover, the Ecloga incorporated several legislative enactments issued by emperors of the post-Justinianic era and introduced important innovations reflecting Greek and other eastern influences.^{^[648]} In general, the work is characterized by its simplicity and by the special emphasis it attaches to Christian and humanitarian principles. In criminal law the influence of these principles is reflected in the restrictions imposed on the application of the death penalty.^{^[649]}Furthermore, the new code introduced more precision and a degree of individualization in the application of punishment, and put some limits to the inequality before the law.^{^[650]} It appears that the Ecloga was significantly influenced by the canons of the Council in Trullo or Quinisext Council of 691,17 especially in the area of the law of marriage.^{^[651]}^{^[652] ^[653]} However, as the work fell short of addressing all the practical needs of legal life, attempts were made to fill the gaps in the legislation primarily through resort to Justinian’s corpus. In this way, a private manual closely connected with the Ecloga was produced, which is now known as appendix Eclogae, since it is usually found in the same manuscripts with the Ecloga.href="#_ftn654" name="_ftnref654" title="">^{^[654]}

During the age of the Isaurian emperors, there also emerged 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. In the seventh century, the concentration of land in the hands of a few feudal lords entailed the gradual disintegration of small-scale land ownership and deterioration in the living conditions of the rural population. One of the objectives of the Isaurian emperors was to curb the power of the great landlords and to reorganize the rural economy to the advantage of peasant communities. The Rhodian Maritime Code embodies the 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.^{^[655]}

The seventh century is marked by an important development: the growth of canon law and ecclesiastical jurisdiction at the expense of their secular counterparts. This appears to have been a natural outcome of the conditions of the times. The crisis of the empire hindered the regular activity of the secular judicial authorities especially in the provinces, where the pressure of external enemies was most acutely felt. Bishops and other ecclesiastical authorities must have been under pressure too, but their activities were less directly connected with the Byzantine political and military administration and were supported by orthodox belief. Under these circumstances, it is unsurprising that formal and informal ecclesiastical jurisdiction increasingly took over the role of the secular courts—a development that enhanced the prestige of the Church and its formal or informal law-making functions. One might say that canon law to some extent filled the void left by secular law. At the same time, it formed an integral element of the normative basis of Byzantine society and an important point of orientation for its future development.

6.2.2

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Source: Mousourakis G.. Roman Law and the Origins of the Civil Law Tradition. Springer,2015. — 339 p.. 2015

Legal Development from the End of Justinian'lang=EN-US>s Reign to the Accession of Basil I the Macedonian

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