Legal Development Under the Macedonian Dynasty

The accession to the throne of Basil I the Macedonian (867-886) marks the beginning of the most creative period in the history of Byzantine law since Justinian’s reign.

The legislation of this period is characterized by a renewed emphasis on the Justinianic codification as the basis of the Byzantine legal system. The return to the Roman law of Justinian was connected with the general revival of interest in the classical tradition. It also reflects the imperial desire to strengthen the image of the Byzantine state as a direct heir of the ancient imperium Romamm. A chief objective of the legislative program initiated by the Macedonian emperors was to restore the substance of Justinianic Roman law. To this end, many of the changes to the law initiated by the Isaurian legislation were removed and the precedence of written law over custom was re-established.^{^[656]} At the same time, plans to update the legal system were executed by eliminating matters that had become obsolete.

The first in a series of legislative works aimed at the general revision of the law was the Eisagoge (previously known as Epanagoge), prepared under the authority of Basil I and his sons Leo and Alexander around 885.^{^[657]} It contained a selection of laws drawn from the Greek translations of Justinian’s codification and consisted of 40 titles and a preamble.^{^[658]} In the preamble, the Ecloga of the Isaurians was contemptuously discredited and abrogated as far as necessary (although the criminal law of the Ecloga was generally retained).^{^[659]} An interesting feature of the Eisagoge is that it introduced a system of norms governing relations between Church and state that was markedly different from the one that had existed earlier.

According to the approach that had prevailed since the time of Constantine the Great, Church and state were not two separate authorities but rather two aspects of the one and indivisible concept of Christendom. The Eisagoge departed from this approach by lending support to the theory of the ‘two authorities’, which regarded the emperor and the patriarch as equally powerful bearers of the two highest positions within the state.^{^{face="Times New Roman">[660]}} A revised edition of the Eisagoge, known as Procheiros Nomos or Procheiron, was published in the early tenth century by Emperor Leo VI the Wise (886-912). It comprised extracts from Greek translations and abridgments of Justinian’s legislation, fragments from the Ecloga and enactments of the Macedonian emperors amending and complementing the law. As in the Eisagoge, the materials are divided into 40 titles preceded by a preamble. However, the drafters of the Procheiron omitted all the titles of the Eisagoge containing provisions on the foundation of the political-ecclesiastical organization, possibly with the purpose of striking out the above-mentioned theory of the ‘two authorities’.^{^[661]}Both the Procheiron and the Eisagoge appear to have been given the force of law.

As announced in its preamble, the Eisagoge was designed to serve as an introduction to a new, all-embracing code of law that was originally referred to as ‘Revision of the Ancient Laws’ (Repurgatio veterum legum). Work on this project commenced under Emperor Basil I and was completed in the early tenth century during the reign of his son Leo VI the Wise. The original title of the new law book appears to have been Basilica nomima (Imperial law), but in later years (from the eleventh century) it was designated Basilica. As stated in the preamble, the aim of this work was to collect, update and harmonize the laws contained in the codification of Justinian.

It combines into one body of work the materials from the Code, Digest, Institutes and Novels. Although the sequence of the titles is a little different from that in Justinian’s books, the contents are largely the same. The vast majority of the extracts were not drawn from the original Latin text of Justinian’s codification but from Greek translations and abridgments of jurists from later eras.^{^[662]} The Basilica also incorporated the Rhodian Maritime Code mentioned earlier. The materials are arranged into 60 books divided into titles, paragraphs and themes. The whole work is comprised of six volumes.^{^[663]} The Basilica was not intended to replace the codification of Justinian, which retained an unquestioned validity as the ultimate source of law. It aspired to only adapt Justinian’s codification to contemporary conditions and needs. However, despite the claim of repurgatio (or anakatharsis), which suggests an overhaul in order to bring the law up to date, many of the provisions included in the work had hardly any practical importance, and insofar as a certain amount of Justinianic material was ‘purged’, this was mainly done by omitting rather than replacing the earlier provisions with more recent legislation. Indeed, imperial legislation after the time of Justinian was not included. The number of instances in which we find a contemporary interpolation after the fashion of Justinian’s interventions in earlier material is negligible as compared to what might reasonably have been expected if a true ‘modernization’ of the law had been intended. Only about two-thirds of the Basilica have survived throughout the eras in various manuscripts. Our knowledge on the contents of the missing parts derives from later works, such as the Tipoukeitos published in the late eleventh century as a legal repertory.^{^[664]}

In the years preceding the publication of the Basilica, Leo VI issued a number of new laws (novellae constitutiones) from which 113 were collected and preserved together with four individual enactments.^{^[665]} About one-third of these novels are concerned with ecclesiastical matters, modifying provisions of the civil legislation (for the most part that of Justinian) with a view to adapting them to requirements of canon law. This adaptation was accomplished through an alteration of old laws as well as through the introduction of entirely new rules.

Some of Leo’s novels were aimed at removing apparent contradictions between the written law and established customary norms. Also originating from the closing years of Leo’s reign is the Eparchiakon Biblion, an official compilation of rules governing the operation of the various associations of businessmen, tradesmen and craftsmen of Constantinople (corpora). One of the most interesting documents that has come down to us from Leo’s reign is the Kleterologion of Philotheos, a list of the senior military and civil offices of the state, which attests to the growing sophistication of the central and provincial administration during this period.

Among the general laws enacted in the period following the death of Leo VI, reference may be made to two novels issued by Emperor Constantine VII (913-959) dealing with murderers. The first of these novels provides asylum even to persons who committed premeditated murder if they would come forth for confession before their crime is discovered. The second novel then compels the same offenders to become monks. Two other novels by the same emperor deal with matters of intestate succession, providing that one third of the property left behind should be surrendered to the Church for the salvation of the deceased’s soul. A number of laws issued during the reigns of Romanos I Lekapenos, Constantine VII, Nikephoros II Phokas, Basil II and Isaac I Comnenus reflect an attempt on the part of the government to protect small-land ownership from the pressures of the powerful landowners. Some of the novels enacted in the second half of the eleventh century by Isaac I, Constantine X Doukas and Nikephoros III Botaneiates were concerned with marriage law, while others aimed at regulating internal matters of the Church, mainly of an administrative nature. Many laws enacted by emperors of the Comnenoi dynasty dealt with the administration of the Church, financial and taxation matters, the judging of disputes and issues concerning marriage.^{^[666]}

Besides the official collections of law, there existed several private works (generally legal abridgments or epitomes) composed by jurists for practical use or instructional purposes.

Probably the most notable amongst these are two works known as Epitome Legum (created in 913 during the reign of Constantine VII Porphyrogenitus) and Synopsis Basilicorum Maior (late tenth century). The Epitome contains materials drawn from the codification of Justinian, the Basilica and the Procheiron, as well as several constitutions of Leo VI. The Synopsis Basilicorum Maior is a collection of brief abstracts from the Basilica arranged in alphabetical order (most of the manuscript copies of this work are accompanied by an appendix containing materials from imperial laws of the tenth and later centuries and other sources). Based on the Synopsis Maior and another work (Opusculum de iure or Ponima Nomikon) written in c. 1072 by the jurist and historian Michael Attaliates, a smaller abridgment of the Basilica was composed about the middle of the thirteenth century (Synopsis Basilicorum Minor). Three other works can also be mentioned in this connection: the Experientia Romani or Peira (c. 1050), a collection arranged into 75 titles containing juristic decisions drawn largely from the writings of Eustathius Romanus, a judge at Constantinople^{^[667]}; the Tipoukeitos, a repertory on the Basilica composed by a judge named Patzes in the late eleventh century; and the Synopsis Legum (c. 1070), a collection of laws from the codification of Justinian and the Basilica prepared by the jurist and philosopher Michael Psellus and dedicated to his pupil, the Emperor Michael VII Ducas.

The revival of literary activity in the post-Macedonian period was facilitated by the establishment of a new law school at Constantinople around 1045 by Emperor Constantine IX Monomachus (1042-1055).^{^[668]} The bureaucratization of the imperial administration in the eleventh century increased the government’s need for well- educated officials. Partly in response to this need and partly due to the inadequacy of the current system of legal education (advocates had to teach themselves or learn from private tutors), Constantine founded a school of law and stipulated the conditions governing the work of the professors and students.^{^[669]} The constitution of the school specifically declared that no person could practice law until he had finished the prescribed courses and received testimony from the professors as to his competence.^{^[670]} Admission to the school was open to capacity and students did not have to pay fees.

The emperor appointed and paid the professors (magistri) as well as the head of the school. The latter held the office of nomophylax that was regarded as one of the highest offices of the state and its holders were admitted to the senate.^{^[671]} Until the end of the eleventh century, the teaching of law was based directly on the texts of the Justinianic codification with a step-by-step study and clarification of the contents. In the twelfth century, however, the Justinianic codification appears to have been superseded in the study of law by various abridgments and commentaries. The law school of Constantinople probably remained open until the capture of the city by the Latins in 1204.

6.2.3

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

Legal Development Under the Macedonian Dynasty

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