The post-classical era

The three centuries between the end of the classical period and the enactment of Justinian's codification can be viewed as a period of decline in the history of Roman law. There was a great deal of legislation, necessitated by the vast changes occurring in the later Empire.

2.4.1 Whither the jurists?

Perhaps the most dramatic change in the character of post-classical legal develop­ment was the absence in that period (as far as we know) of outstanding jurists. No totally convincing explanation has been offered to account for this. Perhaps it was because legal science of the classical period could not be sustained indefinitely. After all, the juristic literature of the classical period was of enormous variety and volume. The law had been analysed in great detail, some subjects many times over. After such an outpouring of legal literature, what was there left to be done? Who could follow a Paul or an Ulpian? Why should anyone attempt to do so? Or, perhaps the answer should be sought in the political instability of the period: the increasing weakness of the Empire from the third century onwards made juristic activity less likely. How could anyone write legal texts when the Empire was crum­bling all around? But political instability is not necessarily a cause of intellectual aridity—witness the last century of the Republic, when there was no shortage of distinguished jurists.

A more satisfactory explanation may be that Diocletian's bureaucratic reforms required anonymity among the draftsmen of his legislation—everything had to appear to emanate from the Emperor. The transition of the Roman Empire from Principate to Dominate meant that juristic activity lost its individuality. But this theory, too, fails to explain the absence of outstanding jurists in the generation before Diocletian. In any case, even under Diocletian, a talented individual could make his name, e.g. Hermogenianus. He was the author of a collection of imperial decrees, the Codex Hermogenianus, some of which he may have personally drafted. Honore identifies him (Emperors and Lawyers, 1981) as secretary of the office of petitions for a while under Diocletian and considers his rescripts to have been of the highest quality: they constitute 'a legal educa­tion in themselves' (119). His work was of sufficient importance to be quoted in Justinian’s Digest.

Not all juristic activity in the later Empire was confined to drafting imperial decrees. There was a post-classical literature of sorts; but it was anonymous and lacking in originality. The most important examples, Collatio legum Mosaicarum et Romanarum and the Fragmenta Vaticana, date probably from the early fourth century, and consist of summaries from classical works and imperial legislation. Even the most competent summary runs the risk of distorting the original to some extent. In the confusion caused by post-classical summaries, Gaius' Institutes understandably came to be regarded as a model exposition of classical law.

The problems resulting from the distortion of classical writings necessitated the establishing of an authoritative canon of such works, and rules to deal with con­flicting texts. Constantine, for example, prohibited the use of the notes of Paul and Ulpian on Papinian. In AD 426, the Law of Citations was enacted, by which five jurists were singled out as having primary authority in disputed cases: Gaius, Papinian, Paul, Ulpian, and Modestinus. Quotations by these jurists of other jurists' works were to be considered authoritative. If there was a conflict of opinion among the authoritative texts, the majority view was to prevail. In the event of there being no majority, the judge had a discretion to decide the case as he pleased unless Papinian had expressed a view, in which case it had to be followed. This somewhat mechanical rule had the merit of practical expediency. Nevertheless, the counting of heads (rather than the assessment of the merits of opinions) may be seen as a regrettable basis for a rule that was intended to resolve conflicting authorities. The rule has been criticized as being symptomatic of the alleged intellectual fatigue of the age.

2.4.2 Post-classical legislation

The amount of legislation increased in the later Empire, especially in the East. This was hardly surprising, in view of the manifold problems of that era. The forms of imperial legislation were broadly the same as in the classical period, although there was perhaps a greater variety of rescripta. Imperial decrees became increasingly ver­bose, full of rhetorical flourishes glorifying the achievements of the Emperor. The large number of decrees issued, not all carefully drafted, created confusion and conflicts. Some attempts to resolve the problem were not particularly effective. For example, Constantine decreed that rescripts 'contrary to the law' were invalid—an ambiguous provision which seemed to ignore that rescripts themselves were Taw', and that later law normally repealed earlier law (see C.Th.1.2.2.).

The informal division of the Empire that resulted from Diocletian's reforms cre­ated a problem over the validity of imperial decrees. Were decrees issued by an emperor binding on other emperors? The early practice was for imperial decrees to be issued in the name of all the emperors: they were thus regarded as valid through­out all parts of the Empire. But the rule eventually proved to be inconvenient. In AD 439, Theodosius II enacted that decrees should not be applicable in the territory Of another emperor without his consent.

The post-classical era witnessed a number of compilations of imperial decrees. The Codex Gregorianus c. AD 291 contained all the extant decrees issued in the previous hundred years. The Codex Hermogenianus c. AD 295 consisted of decrees made in the years immediately before its publication. Both compilations were 'unofficial' in that they were not issued in the name of a specific emperor (possi­bly Diocletian). Nevertheless, it is inconceivable that they could have been issued without imperial approval. But, easily the most important compilation of the later Empire was the Theodosian Code AD 438, which consisted of all the imperial leg­islation (then in force) enacted since the reign of Constantine. The material was contained in 16 volumes, each divided into titles within which the decrees were listed in chronological order. This scheme was not original: it had been used in the compilations under Diocletian, which themselves had followed the arrangement of material in some of the works of the classical period. The Theodosian Code reflected the tensions and problems of the age, especially in relation to taxation and ecclesiastical issues.

2.4.3 Legal development

The practice and development of Roman law in the post-classical era was particu­larly influenced by the Roman Empire's conversion to Christianity, by Eastern cus­toms, the 'barbarian' invasions, and the work of the law schools.

2.4.3.1 Christianity

The conversion to Christianity had some impact on the content and character of the law. A complex ecclesiastical law was developed in an attempt to define the relationship between Church and State. The status of the clergy and church functionaries had to be clarified. New offences were created that were intended to protect ecclesiastical property and those working in the service of the Church. Further, parts of the civil law were affected by the conversion, especially the law of persons. For example, causeless divorce was subjected to strict sanctions (see 5.2.4.4). But the introduction of Christianity did not lead to the abolition of divorce or slavery, although the legal position of slaves was improved under Justinian (see 4.3.4.1).

2.4.3.2 Eastern influence

The gradual shift eastwards of the fulcrum of the Roman Empire had important consequences for legal development. Constantine and his successors were sym­pathetic to Eastern customs and ideas, with the result that Roman law acquired a Byzantine hue in the late Empire. The law of persons was considerably influenced by Greek practices. For example, the custom whereby the bridegroom made a substantial gift to his bride on marriage was given recognition by late imperial legislation (see 5.2.5.5).

by Greek custom: legislation reduced his rights in the dowry. The significance of custom as an indirect source of law in the late Empire was reflected in Justinian's codification:

Julian, Digest, book 84: Age-encrusted custom is not undeservedly cherished as having almost statutory force.... For given that statutes themselves are binding upon us for no other rea­son than that they have been accepted by the judgment of the populace, certainly it is fitting that what the populace has approved without any writing shall be binding upon everyone. (D.l.3.32.1.)

Although this passage is attributed to Julian, the attribution is suspect, given what we know about the centralizing tendencies of his time. It is doubtful whether Julian would have described custom as having 'almost statutory force'. The authors of the text were most probably the compilers of Justinian's Digest, reflecting the revived importance of custom following its relative demise as a source of law after the Twelve Tables.

2.4.3.3 'Barbarian' codes

The collapse of the Western Empire resulted in large parts of it coming under the control of victorious 'barbarian' kings, some of whom issued codes of law for the conquered territories. These codes were intended primarily for Roman citizens. The most important example was the lex Romana Visigotharum, promul­gated in AD 506 by the Visigoth chief, Alarie II. It consisted of a mixture of leg­islation (mainly from the Theodosian Code) and abridged extracts from classical jurists, especially Gaius and Paul—a debased form of Roman law, but of endur­ing influence. It remained in use in parts of the former Western Empire until the early medieval period. The lex Romana Burgundiorum (early-sixth century) was intended for Roman citizens living in the area that now broadly constitutes eastern France. It was a collection of legal rules, systematically arranged into titles and based on mainly classical sources. The Edictum Theodorici dates from roughly the same period and was most probably the work of the Ostrogoth chief, Theodoric. Unlike the other codes mentioned previously, the Edictum Theodorici applied to 'barbarians' as well as Romans, and was primarily intended to aid the interpretation of existing law.

'Vulgarization' is the term which has sometimes been used to describe the influ­ence of Christianity, Eastern custom, and the 'barbarian' codes on Roman law in the post-classical era—not an especially illuminating term, since it is capable of differ­ent meanings. In its most derogatory sense, vulgarization refers to the debasement of Roman law that the 'barbarian' codes particularly can be said to represent. Or, vulgarization can be taken (in a more technical sense) to refer to the overt departure from the classical norms of legal development. The term can also encompass the inevitable divergence between the law practised in remote parts of the Empire and that applied in and around Rome and Constantinople. Further, vulgarization can be interpreted as the way in which the practice of Roman law allegedly became crude and unscientific in the later Empire.

2.4.3 4 Law schools

The temptation to portray the whole of the post-classical era as one of decline and intellectual fatigue must be resisted. In the East, there was a substantial revival of legal learning in the fifth century, under Theodosius 11 especially, the work princi­pally of the law schools at Beirut and Constantinople. There were other schools— Rome, Alexandria, Athens—but Beirut and Constantinople achieved by far the greatest eminence. The basic method of instruction was by lectures, involving detailed consideration of classical texts. This concerted return to the original texts heralded a renaissance in the science of law and fostered the intellectual climate necessary for Justinian’s great works of the sixth century.

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