Faculty of Law, University of Auckland, Auckland, New Zealand
6.1 The Historical Context of Byzantine Law
As observed in Chap. 1, the end of the fourth century featured a virtual split of the Roman Empire into two states (even though contemporaries did not regard this as a formal division). After a long period marked by economic and cultural decay, foreign invasions and internal strife, the Western Empire finally collapsed in ad 476 when the last emperor of the West was overthrown by his German mercenaries. The loss of the western provinces transferred the centre of gravity in the empire from the Latin to the Greek element and accelerated the transformation of the Eastern Empire into the medieval Byzantine Empire. Byzantium inherited from Rome a great deal of her political, social and cultural institutions. Roman law remained in force as a living system and the concept of imperium Romanum (now in the form of imperium Christianum) furnished the basis of all Byzantine political theory. Though the elements of continuity between the Byzantine world and the world of antiquity are clear and undeniable, so too are the differences. Byzantine civilization was a new cultural synthesis based on the classical traditions of antiquity infused with important new elements introduced by the upheavals of the later imperial era and by the rise of Christianity. Justinian surpassed other rulers as he proactively established the finished forms and set the tone of the Byzantine society. The distinctive features of the emerging Byzantine culture are clearly manifest in his political, religious and artistic programs. Although his legislation displays classical leanings, it also naturally shows traces of Greek and Eastern influences.
As already noted, Justinian executed his schemes to reconquer the provinces lost to invaders. His reconquest of the West was a fleeting achievement that shattered the empire economically and militarily, contributing further to the weakness arising from sectarian and cultural diversity. After his death, the empire quickly lost its briefly regained strength and the very existence of the Byzantine state was threatened by internal disruptions, economic decay and foreign invasions. As the empire’s defences crumbled, the Visigoths regained control of Spain and another Germanic tribe, the Lombards, invaded Italy from the North conquering most of the peninsula. At the same time, Persian armies advanced through the eastern provinces while the Slavs and Avars besieged the Balkans. In 627, the capable Emperor Heraclius launched a campaign that finally succeeded in stemming the Persian tide and expelling the Slavic assaults. The Moslem conquests then ensued around 630 that entailed the Arab capture of Egypt, Syria and a large part of Asia Minor. But as the imperial boundaries receded, retrenchment produced a comparative strengthening of the state and the Byzantine Empire acquired the homogeneity that the policies of Justinian had failed to produce. This occurred due to the new borders corresponding more closely with ethnic and religious lines, as the inhabitants of the empire were now largely Greek-speaking and Orthodox Christian. During these years, the empire fully entered its Byzantine period embracing the Greek language and displaying a deep orientalisation with Christianity engrained in its thought and ethos.
The Arab threat was held in check and the empire entered a period of recovery in the early eighth century during the reign of Leo III the Isaurian (717–740). Leo strengthened imperial authority, reorganized the government and the law, and introduced measures aimed at stimulating commerce and industry. However, the considerable benefits the empire derived from his rule were to some extent negated by the great iconoclastic controversy—the quarrel over the admissibility of images in religious art—that he initiated and had consumed Byzantine society for more than a century. The recovery from the crisis of the seventh century and the resultant consolidation in the eighth century produced a strengthened empire that attained new heights during the Macedonian dynasty (867–1057). During this period, the internal organization of the Byzantine state was strong enough for the emperors to embark upon a program of territorial expansion. By the early eleventh century, the empire had been cleared of foreign enemies and its boundaries stretched from the Danube to Crete and from Southern Italy to Syria. The peace and prosperity that followed served as a powerful stimulus to art, literature and educational activity in the capital and the provinces.
However, both the Macedonian dynasty and the ensuing prosperity disappeared within merely half a century after the death of Basil II (976–1025), the last great Macedonian emperor. The cause of the decline was a remarkable confluence of internal ills that exhausted the body of the empire as it endured external attacks from powerful new foes (such as the Seljuk Turks and the Normans). Probably the most virulent of these illnesses was the strife between the military establishment and the imperial bureaucracy. The successes of the Byzantine military machine in the tenth and eleventh centuries bred a great arrogance in the military class and an ambition to overthrow the hegemony of the bureaucrats within the government. Basil II restrained these ambitions through military action and persecution1; but he was succeeded by weak rulers who were unable to control the army, and the prolonged struggle between the generals and civil officials undermined the empire’s strength at a critical period. At the same time, a growing economic crisis provoked by a decline in state revenues (largely due to the abandonment of arable land in the provinces) compounded the empire’s difficulties. In spite of a limited recovery under Alexius I Comnenus (1081–1118), the ills of Byzantium so weakened the empire that its disintegration was virtually inevitable at the end of the twelfth century and thereupon Constantinople fell to the forces of the Fourth Crusade in 1204. Although the capital was recaptured by the Byzantines and the empire was restored about half a century later (1261), the political splintering of the Byzantine world prompted by the Latin conquest hastened the final collapse.
The fourteenth and fifteenth centuries featured the reign of the Palaeologan emperors (1261–1453) and an empire ravaged by dynastic competition, social struggles and religious strife. These adverse events played into the hands of the Ottoman Turks who pursued the expansion of their territory. In spite of the civil wars and military disasters, the Palaeologan period witnessed a last great flowering of literary and artistic activity accompanied by a revival of interest in classical studies. The end of this phase transpired in the spring of 1453. After a heroic but hopeless defence, Constantinople was captured by the Ottoman Turks who had already overrun most of the empire’s narrow footholds in the Balkans and Asia Minor. During this period, a large number of Byzantine scholars migrated to Western Europe (especially to Italy) conveying important records of the Greco-Roman inheritance in art, philosophy, literature and law. A great deal of the classical knowledge preserved by Byzantium was thus transmitted to the West and it imparted a fresh impetus to the progress of the so-called Italian Renaissance.
6.2 Sources of Byzantine Law
It is important to note at the outset that the Byzantines did not recognize a separation between Church and state and, consequently, there was no strict distinction between secular and ecclesiastical legislative authority and jurisdiction. According to Byzantine legal theory, secular and canon law constituted in essence a single legal order: the canons of the Church were received and incorporated into the law of the state; at the same time, the Church gave imperial legislation a ‘canonical character’ not only by adjusting its own law to the law of the state but also by receiving ecclesiastical law created by imperial authority as its own or by resorting to such law in order to regulate its own affairs. After all, the emperor was the only officially recognized ‘universal’ legislative authority, even for matters of the Church, after the end of the period of the Ecumenical Councils in the East.
The nucleus of Church law was formed by the decisions (kanones) promulgated at Church councils, which have been preserved in a great variety of collections.2 A special type of work are the so-called nomocanons (nomokanones), a term alluding to the fact that Church and state were inextricably bound up with one another. The emperor could intervene in the affairs of the Church and vice versa, with the result that both Church and state might have issued legislation on a particular problem, so that both kanones and statutes were relevant. From the end of the seventh century the role of the kanon in the development of canon law was taken over by the decisions of the patriarch of Constantinople and the authoritative commentary on the existing body of canon law. Although canon legislation did not restrict itself to purely ecclesiastical matters, and the Church courts increasingly concerned themselves with issues of civil law, civil legislation covered a much broader field. In the following paragraphs the emphasis will therefore be on the sources of civil law and in particular the enactments of the emperors, the chief source of law during the Byzantine era.
Until the twelfth century Byzantine imperial legislation was similar in form to the imperial legislation of the Justinianic period3 and enactments of a general character (leges generales) in the form of Novels (novellae constitutiones or nearai diataxeis) continued to be issued after the manner of the edicts of the Roman emperors.4 A general law was preceded by a preamble (praefatio), in which reference was made to the position of the emperor as God’s representative on earth, supreme lawgiver and protector of his people; this was followed by the description of the situation which the law aimed to rectify (narratio), the main text of the law (dispositio), and the conclusion; the latter contained the penalties (sanctiones) which the violation of the law entailed and prescribed the scope of the law and the manner of its publication. Similar to the earlier mandata were the diatyposes, internal directions given by the emperor to officials in his service (especially to provincial authorities). The earlier rescripta were replaced by the lyses, answers given by the emperors to inquiries of officials on matters of administrative law, and the semeioses, responses of the emperors to petitions concerning matters of civil or ecclesiastical law. From the twelfth century the term chrysovoullos logos was used to denote an imperial enactment of a general character, whilst the lyses and the semeioses were superseded by the prostagmata or horismoi.5 The majority of the imperial laws were concerned with public administration and matters of socio-economic policy. Moreover, a number of laws were enacted which introduced innovations in the fields of criminal and family law. In general, Byzantine imperial legislation was ‘humanitarian’ in character, aiming to protect those whom it considered weak against those whom it considered strong,6 and greatly influenced by Christian ethical principles. At the same time it continued the move away from formalism, although this move was accompanied by a decline in technique.
During the Byzantine era custom continued to play a part as a secondary source of law. Despite the general reluctance of Justinian and subsequent emperors to recognise the validity of customary law, numerous customary norms found their way into various imperial enactments and official compilations of the law. Some of these norms had their origin in Greek and Hellenistic institutions of much earlier ages; others were formed in later years, especially after the twelfth century, and reflect the influence of trade practices introduced into Byzantium by the Venetians and other western powers.
6.2.1 Legal Development from the End of Justinian’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 emperor7 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.8 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 Iulianus. 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).9 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)10 and three monographs on special subjects.11 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.12
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.13 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.14 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.15 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.16 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.18 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.19
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.20
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 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 Romanum. 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.21 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 885.22