GC319 Roman Law

and Society
Lecture 17
Justinian’s Code
Sources
Procopius of Caesarea
(500-554)
• The Wars of Justinian (Persian,
African, Italian)
• The Secret History (Anecdota)
• Buildings

Gregory of Tours (538-594)

• Vividness and reaction

 “Re”-conquering the Western Empire

North Africa (Vandals)

Apogee of Spain (Visigoths)
Eastern Italy (Ostrogoths)
empire The price
(527-540) Eastern frontiers challenges

Economic challenges?
Administration
• Solid imperial structure
• Campaign in the West
• Financial assets and funds
• Taxation
• The Nika riot (532): Belisarius and Narses
• 40,000 dead, Constantinople burnt down
• More taxes
The wars in Spain and Italy
• Vandals
• 455 sack of Rome
• 430 sacked the granary
• 534: Africa reconquered
• 535: Italy and the loss of culture
• Belisarius successful against Ostrogoths at first
• 552-555: Narses takes over Italy
• 540: Ravenna falls to the Byzantines
The Persians
• Compromising in 532
• Perpetual peace (9 years)
• Khusro I
• 540: Persian invasion of Syria and Armenia
• Sack of Antioch
• 542: the Justinianic plague
• 545: truce and higher tributes
 Roman law at the time of Justinian

Responsa – precedents (statutes)

Promulgator, judge and compiler of the laws in force

Legislation Crime, property, contracts, custody, civil right

(AD 540- The Justinianic Code (Corpus Iuris Civilis) – 5 years

• Codex Iustinianus (statutes)

564) • Digesta (Pandectae- responsa)

• Institutiones (textbook)
• Novellae (in Greek – 534)

Consistent philosophy

Emperor embodies law

Legitimate children and inheritance
Where a woman of illustrious birth has a son born in lawful wedlock, and
another one who is illegitimate, and whose father is uncertain, a doubt arose
to what extent they would be entitled to their mother’s estate, and whether
it would only descend to legitimate children, or whether it would also go to
those who are bastards.
Therefore, We order that, while any legitimate children are living, no portion
whatever of their estates shall pass from mothers of illustrious birth to their
bastard offspring, either by will, on the ground of intestacy, or by donations
to living people; for the preservation of chastity is the first duty of freeborn
and illustrious women, and We hold that it would be unjust, and very
oppressive and unworthy of the spirit of our age, for bastards to be
acknowledged . . .
Justinian, Code 6.57.5, AD 534
Women and inheritance
Therefore We decree by this imperial enactment that the laws in force in Our
Empire, which have reference to the right of women to succeed to estates, shall be
observed in Armenia, and that no difference shall hereafter exist between the sexes
in this respect; that women, in accordance with the rule laid down in Our laws, shall
inherit from their parents, that is to say, in the ascending line, from their fathers and
mothers, grandfathers and grandmothers, indefinitely; and in the descending line,
from their sons and daughters, no matter in what way either of these transmit their
property.
Hence the Armenians shall no longer be subject to laws different from those of the
Empire; and if they form part of Our subjects, and are under Our government like
many other peoples, and enjoy the benefits conferred by Us, their women shall not
be the only ones deprived of Our justice; and they shall all enjoy the benefit of Our
laws, whether the latter have come down to Us from former ages and have been
inserted into Our Institutes and Digest, or whether they are called upon to obey the
Imperial Constitutions promulgated by Ourself, or by Our predecessors.
Justinian, Novel 21.1
Marriage
Reciprocal affection constitutes marriage, without it being necessary to
enter into a dotal contract; for when the parties are once agreed and
have been influenced by pure affection, it is not requisite to stipulate
for a dowry, or a donation on account of marriage. We shall treat of this
relation as regards both its origin and end, whether the latter is
accompanied by the penalty or not, since every tie effected by men is
capable of being dissolved. A penalty is also prescribed where
marriages contracted without a dowry are dissolved; and these We
shall consider first.
Justinian, Novel 22.3
Monasticism
Divorce takes place without blame whenever either the husband or the
wife enters monastic life, and desires to live in chastity; for another law
of Ours specially provides that either a man or his wife, who devotes
himself or herself to a monastic life, is authorized to dissolve the
marriage, and separate from his or her consort by serving a notice by
way of consolation. And whatever the parties may have agreed upon in
case of the death of either, as set forth in their marriage contract, shall
endure to the benefit of the abandoned wife or husband. The reason
for this provision is, that wherever anyone embraces a different mode
of life from that of his or her companion, he or she is considered to
have died, so far as the marriage is concerned.
Justinian, Novel 22.5
Impotence
Marriage is dissolved for a necessary and not unreasonable cause, when the
husband is incapable of copulation with his wife, and cannot do what nature
created him for; and, in conformity with the law which We have already
promulgated, if two years should have elapsed after the marriage, and the
husband still not be able to show that he is a man, either his wife or her
parents shall be permitted to dissolve the marriage, and give notice of
repudiation to her husband, even if the latter should be unwilling to consent;
the wife shall be entitled to the dowry, if one was given, and the husband
shall return it if he received it; and the latter, on the other hand, shall be
entitled to the ante-nuptial donation, and shall suffer no loss of his property.
We amend this law by making a certain addition thereto; for We decree that
not two years, but three, shall elapse from the date of the marriage; as We
have ascertained that some persons who were impotent for the term of two
years have afterwards shown that they are capable of the procreation of
children.
Justinian, Novel 22.6
Captivity
The effect of captivity is to dissolve marriage by mutual consent, where
one of two married persons is in the hands of the enemy; for where the
husband suffers a misfortune of this kind, and his wife remains at
home; or, on the other hand, the wife is reduced to captivity, and her
husband remains in his country, the marriage is dissolved for a reason
derived from the condition of slavery; as, where a person is once
reduced to servitude, the inequality of condition does not permit the
equality derived from the marriage state to continue to exist.
Therefore, considering cases of this kind from an humane point of view,
We desire that the marriage shall remain undissolved as long as it is
clear that either the husband or the wife is still living . . .
Justinian, Novel 22.7
 Justice and law
Justice is an unswerving and perpetual determination to acknowledge all men’s rights. 1. Learning in the law entails
knowledge of God and man, and mastery of the difference between justice and injustice. 2. As we embark on the
exposition of Roman law after these general statements the best plan will be to give brief, straightforward accounts of each
topic. The denser detail must be kept till later. Any other approach would mean making students take in a huge number of
distinctions right at the start while their minds were still untrained and short of stamina. Half of them would give up. Or
else they would lose their self-confidence – a frequent source of discouragement for the young – and at the cost of toil and
tears would in the end reach the very standard they could have attained earlier and without overwork or self-doubt if they
had been taken along an easier road. 3. The commandments of the law are these: live honorably; harm nobody; give
everyone his due. 4. There are two aspects of the subject: public and private. Public law is concerned with the organization
of the Roman state, while private law is about the well-being of individuals. Our business is private law. It has three parts,
in that it is derived from the law of nature, of all peoples, or of the state.
The law of nature, all peoples, and the state
The law of nature is the law instilled by nature in all creatures. It is not merely for mankind but for all creatures of the sky,
earth and sea. From it comes intercourse between male and female, which we call marriage; also the bearing and bringing
up of children. Observation shows that other animals also acknowledge its force.
The law of all peoples and the law of the state are distinguished as follows. All people with laws and customs apply law
which is partly theirs alone and partly shared by all mankind. The law which each people makes for itself is special to its
own state. It is called “state law”, the law peculiar to that state. But the law which natural reason makes for all mankind is
applied the same everywhere. It is called “the law of all peoples” because it is common to every nation. The law of the
Roman people is also partly its own and partly common to all mankind.
Justinian’s Institutes, 1.1 -2
 Legal education
Earlier, indeed, as your wisdoms are aware, out of all the great multitude of legal writings, extending to two thousand
books and three million lines, students, on the advice of their teachers, made use of no more than six books, and those
confused and very rarely containing laws of practical use; the other books had gone out of use and become
inaccessible to everyone . . . This then is the record of the method of education in former times, according to what is
confirmed by your own testimony. 2. We, however, on discovering this great deficiency in the knowledge of the law,
and deeming it a most unhappy state of affairs, are opening up to those who desire them the treasures of the law, by
means of which, when your wisdoms have to some extent displayed them, your pupils may become the best endowed
legal pleaders . . .
6. The students are to have nothing concealed from them, therefore, when these arcane matters have been revealed
to them; and after perusing all the works we have composed through the agency of the eminent Tribonian and the
others, they will prove themselves to be leading orators and servants of justice; in legal process they will be equally
supreme as advocates and judges, successful everywhere and at all times. 7. We desire these three works which we
have composed to be handed to students, as ordered now and by previous emperors, only in the royal cities and in the
most excellent civitas of Berytus [the city of Beirut], which might well be called the nurse of the law, and not in other
places which have earned no such privilege from our predecessors. We say this because we have heard that even in
the most splendid civitas of Alexandria and in that of Caesarea and others there are unqualified men who take an
unauthorized course and impart a spurious erudition to their pupils; we warn them off these endeavors, under the
threat that if they should dare to perpetrate such deeds in future and act in this way outside the royal cities and the
metropolitan city of Berytus, they are to be punished by a fine of ten pounds of gold and be driven from the civitas in
which they commit a crime against the law instead of teaching it.
Justinian, Digest, The Whole Body of Law 1–2, 6–7
 Social reputation of lawyers
Among these the first class [of lawyers] consists of those who, by sowing the seeds of all sorts of quarrels, busy themselves with thousands of recognisances,
wearing out the doors of widows and the thresholds of childless men; and if they have found even slight retreats of secret enmity, they rouse deadly hatred among
discordant friends, kinsfolk, or relatives. And in these men their vices do not cool down in course of time, as do those of others, but grow stronger and stronger.
Poor amid insatiable robbery, they draw the dagger of their talent to lead astray by crafty speeches the good faith of the judges, whose title is derived from justice.
By their persistence rashness tries to pass itself off as freedom of speech and reckless audacity as firmness of purpose; a kind of empty flow of words as eloquence
...
A second class consists of those who profess a knowledge of law, which, however, the self-contradictory statutes have destroyed, and reticent as if they were
muzzled, in never-ending silence they are like their own shadows. These men, as though revealing destinies by nativities or interpreting a Sibyl’s oracles, assume a
solemn expression of severe bearing and try to make even their yawning saleable . . .
A third group consists of those who, in order to gain glory by their troublous profession, sharpen their venal tongues to attack the truth, and with shameless brow
and base yelping often gain entrance wherever they wish. When the anxious judges are distracted by many cares, they tie up the business in an inexplicable tangle,
and do their best to involve all peace and quiet in lawsuits and purposely by knotty inquisitions they deceive the courts, which, when their procedure is right, are
temples of justice, when corrupted, are deceptive and hidden pits: and if anyone is deluded and falls into those pits, he will not get out except after many a term of
years, when he has been sucked dry to his very marrow.
The fourth and last class, shameless, headstrong, and ignorant, consists of those who have broken away too soon from the elementary schools, run to and fro
through the corners of the cities, thinking out mimiambic lines, rather than speeches suitable to win lawsuits, wearing out the doors of the rich, and hunting for
banquets and fine choice food.
When they have once devoted themselves to shady gain and to eagerness for money from any and every source, they urge all kinds of innocent people to involve
themselves in vain litigations . . .
And when the contending parties are stripped of everything, and days, months and years are used up, at last the case, now worn out with age, is introduced, and
those brilliant principals come forth, bringing with them other shadows of advocates. And when they have come within the barriers of the court, and the fortunes
or safety of someone begins to be discussed, and they ought to work to turn the sword or ruinous loss from an innocent person, the advocates on both sides
wrinkling their brows and waving their arms in semblance of the gestures of actors . . . stand for a long time opposite each other . . . when . . . after the semblance
of a trial has gone on for three years allege that they are not yet fully informed; and after they have obtained a further postponement . . . they persistently demand
the pay for their danger and toil.
Ammianus Marcellinus, History 30.4.9–1l, 13–15, 19
Suppression of non-religious festivals
We wish the so-called Kalends, the so-called Bota, the so-called Brumalia and the
panegyris festival celebrated on the first day of March to be removed completely
from the way of life of believers. We reject the public dances of women which can
cause great destruction and harm, still more the dances and rites done by men and
in the name of those which are falsely called gods among the pagans, according to a
certain custom ancient and alien to the way of life of Christians.
We consequently define that no man dress himself in feminine garb nor a woman in
that suitable to a man, nor wear comic, satiric, or tragic masks, nor cry out the name
of the abominable Dionysos while crushing the grapes in vats, nor provoke to
laughter those who pour wine into jars: for they effect demonic error in the manner
of ignorance or folly. We decree that those who attempt to celebrate any of the
aforesaid cults, if they stand in knowledge of them, be deposed if clerics, suffer
excommunication if laymen.
Council “in Trullo” (691–692), Canon 62
Mass conversion as imperial policy
In the year 542 the kindness of God visited Asia, Caria, Lydia, and Phrygia, thanks to
the zeal of the victorious Justinian and by the activity of his humble servant John of
Ephesus [John of Asia] . . . When God opened the minds of the pagans and made
them know the truth, he aided us in destroying their temples, in overturning their
idols, in eradicating the sacrifices which were offered everywhere, in smashing
their altars defiled by the blood of sacrifices offered to pagan gods, and in cutting
down the numerous trees which they worshipped, and so they became estranged
from all the errors of their forefathers. The saving sign of the cross was implanted
everywhere amongst them, and churches of God were founded in every place.
John of Ephesus, Ecclesiastical History (fragment, transl. Trombley)
Justinian and the necessity of a new legal code
[Nature, everywhere inclined to the production of numerous innovations
(this prelude has often been employed in legislation but will constantly be
repeated as long as Nature persists in these practices), has induced Us to
enact many laws.
Justinian, Novel 73, Preface (538)
Therefore, as God rules the Empire of Heaven in order that He may afford
good solutions to perplexing questions and interpret the laws in
accordance with the varieties of Nature, We have thought it is proper to
draw up this statute and render it generally applicable to Our subjects
whom God has originally entrusted to our care.
Justinian, Novel 84, Preface (539)
 Suppression of polytheism/1
238.)

Emperor Justinian to Acacius, Proconsul of Armenia.

Desiring that the country of Armenia should be governed by good laws, and in no respect differ from the
rest of our empire, We have conferred upon it a Roman administration; have delivered it from its ancient
customs; and have familiarized it with those of the Romans, ordering that it shall have no other laws than
theirs. We think, however, that it is necessary, by means of a special enactment, to abolish a barbarous
practice which the Armenians have preserved; for among them women are excluded not only from
succession to the estates of their ascendants, but also from those of their own brothers and other
bloodrelatives; they are married without a dowry; and are purchased by their future husbands. These
barbarous customs they have observed up to the present time, and they are not the only ones who act in
this cruel manner, for there are other races that dishonor nature in the same way, and injure the female
sex just as if it were not created by God, and took part in the propagation of the human race, and finally, as
if it was utterly vile, contemptible, and not entitled to any honor.
Chapter 1. Therefore we decree by this imperial enactment that the laws in force in our Empire, which have
reference to the right of women to succeed to estates, shall be observed in Armenia, and that no difference
shall hereafter exist between the sexes in this respect . . .
Hence the Armenians shall no longer be subject to laws different from those of the Empire; and if they
form part of our subjects, and are under our government like many other peoples, and enjoy the
benefits conferred by Us, their women shall not be the only ones deprived of our justice; and they shall
all enjoy the benefit of our laws . . .
Justinian, Novel 21
Suppression of polytheism/2
Justinian, Code I.11.1–2, 4–7;
CONCERNING THE THE PAGANS, THEIR SACRIFICES, AND THEIR TEMPLES.
1. We have determined that the temples shall be immediately closed in all cities, and access to them forbidden to all, so that permission for further
offending may be refused to those who are lost. We also wish everyone to abstain from sacrifices, and if any person should do anything of this kind, he
shall be laid low with the avenging sword; and We decree that his property, after having been taken from him, shall be confiscated to the Treasury, and
that the Governors of provinces shall also be punished, if they have neglected to suppress these crimes.
[Constantius, 354: Theodosian Code 16.10.4]
2. Let no mortal have the audacity to make sacrifices, and by the inspection of the liver of the victim, and by presages, obtain the hope of vain promise, or
(which is even worse), endeavor to ascertain the future by means of a detestable consultation; for he will be liable to an even more severe punishment who,
in opposition to what has been forbidden attempts to ascertain the truth of present or of future events.
[Valentinian and Theodosius, 385: Theodosian Code 16.10.9]
4. As we have already abolished profane rites by a salutary law, We do not permit the common joy of all to be destroyed by abolishing the festive assemblies
of the citizens; wherefore, We decree that the pleasures and convivial festivals of the people shall be conducted in accordance with the ancient customs,
when the public wishes demand it, but that no sacrifices shall be offered, and no damnable superstition be observed.
[Arcadius and Honorius, 399: Theodosian Code 16.10.17]
5. We order that all those places which the error of the ancients destined for sacred ceremonies shall be united with Our demesnes, and that such of them
as, under any title whatsoever, the generosity of preceding Emperors or our Own Majesty has bestowed upon any private individuals shall forever form part
of their estates; but that any property which, by various Constitutions, We have decreed shall belong to our venerated Church, the Christian religion shall
very properly claim for itself.
[Honorius and Theodosius, 415: Theodosian Code 16.10.20.1]
Suppression of polytheism/3
6. We especially direct those who are really Christians, or are said to be such, not to presume to employ any violence against Jews
or Pagans who live quietly, and do not attempt to cause trouble, or perform any illegal acts; for if, abusing the authority of religion,
they should display any violence against them, or plunder them of their property, when convicted they shall he compelled to restore
not only what they took, but also double the value of the same; and the Governors of provinces and other officials and principal
authorities are hereby notified that (if they do not punish offences of this kind, but permit them to be committed by the populace)
they themselves will be subjected to punishment.
[Honorius and Theodosius, 423: Theodosian Code 16.10.24.1]
7. No one, for the purpose of reverence or worship, shall reopen the temples of the Pagans, which have already been closed, in
order that the honor which was formerly shown to their idols and their infamous and execrable rites may be removed from our age;
for it is held to be sacrilege instead of religion to adorn the impious portals of shrines with garlands; to kindle profane fires on the
altars; to burn incense upon the same; to slaughter victims there, and to pour out libations of wine from bowls. Anyone who
attempts to perform sacrifices contrary to this decree, and against the prohibition of the most sacred ancient constitutions, can be
lawfully accused of the crime before any judge, and, if convicted, shall suffer the confiscation of all his property, and the extreme
penalty, and the accomplices of the crime as well as the ministers of the sacrifices shall undergo the same penalty to which he was
sentenced; so that, terrified by the severity of this law, they may desist from celebrating forbidden sacrifices through the fear of
punishment. If, however, the most illustrious Governor of the province as well as the judge himself, when the accusation has been
lawfully made and the crime established, should, after proper examination, neglect to punish an offence of such gravity, they shall
each immediately be compelled to pay fifty pounds of gold into Our Treasury.
[Valentinian and Marcian, 451]
Penalization of pagan education
Nay more, he also caused physicians and teachers of free-born children
to be in want of the necessities of life. For the allowances of free
maintenance which former Emperors had decreed should be given to
men of these professions from the public funds he cancelled entirely.
Procopius, Secret History 26.5 (transl. H. B. Dewing)
 Diocletian, Edict on Maximum Prices, preamble (AD 301)
If the excesses perpetrated by persons of unlimited and frenzied avarice could be checked by some self-restraint – this avarice which rushes
for gain and profit with no thought for mankind . . .; or if the general welfare could endure without harm this riotous license by which, in its
unfortunate state, it is being very seriously injured every day, the situation could perhaps be faced with dissembling and silence, with the hope
that human forbearance might alleviate the cruel and pitiable situation. But the only desire of these uncontrolled madmen is to have no
thought for the common need. Among the unscrupulous, the immoderate, and the avaricious it is considered almost a creed . . . to desist from
plundering the wealth of all only when necessity compels them. Through their extreme need, moreover, some persons have become acutely
aware of their most unfortunate situation, and can no longer close their eyes to it.
Therefore we, who are the protectors of the human race, are agreed, as we view the situation, that decisive legislation is necessary, so that
the long-hoped-for solutions which mankind itself could not provide may, by the remedies provided by our foresight, be vouchsafed for the
general betterment of all . . .
We hasten, therefore, to apply the remedies long demanded by the situation, satisfied that no one can complain that our intervention with
regulations is untimely or unnecessary, trivial or unimportant. These measures are directed against the unscrupulous, who have perceived in
our silence of so many years a lesson in restraint but have been unwilling to imitate it. For who is so insensitive and so devoid of human feeling
that he can be unaware or has not perceived that uncontrolled prices are widespread in the sales taking place in the markets and in the daily
life of the cities? Nor is the uncurbed passion for profiteering lessened either by abundant supplies or by fruitful years . . . It is our pleasure,
therefore, that the prices listed in the subjoined schedule be held in observance in the whole of our Empire . . .
It is our pleasure that anyone who resists the measures of this statute shall be subject to a capital penalty for daring to do so. And let no one
consider the statute harsh, since there is at hand a ready protection from danger in the observance of moderation . . . We therefore exhort the
loyalty of all, so that a regulation instituted for the public good may be observed with willing obedience and due scruple, especially as it is
seen that by a statute of this kind provision has been made, not for single municipalities and peoples and provinces but for the whole world . .
. The prices for the sale of individual items which no one may exceed are listed below.
 Justinian’s Edict on the Regulation of Skilled Labor (AD 544)
We learn that pursuant to the chastening that we have received in the benevolence of our Lord God, persons
engaged in business and professions, as well as artisans of various crafts, and agriculturalists, not to mention the
merchant seamen, have abandoned themselves to avarice and demand double and triple prices and wages that are
contrary to the custom prevalent from antiquity, although these persons should rather have been improved by this
calamity.
It is therefore our decision to forbid such covetous greed on the part of everyone through a sacred imperial edict. In
the future no businessman, workman, or artisan in any occupation, trade, or agricultural pursuit shall dare to charge
a higher price or wage than that of the custom prevalent from antiquity. We also order those who make estimates for
construction, cultivation and other works not to calculate any raise in pay for the workmen, but that they adhere to
the old original custom. We order those who act as employers and also those who purchase any kind of products to
adhere to this carefully. For we do not concede to them the right to furnish any amount in excess of the established
customary fee.
Those who charge any more than the custom prevalent from antiquity must know that they shall be compelled to pay
a triple amount to the fisc, if they should be convicted of taking or giving more than the original regulation
prescribes. We order Your Excellency and the most glorious prefect of this blessed city to examine this matter and to
enforce this law. For it is our will that through you those who have violated this our regulation shall be fined with the
designated penalty and subjected to punishments. A penalty of 5 pounds of gold shall be imposed upon your
subordinate office staff, if they neglect any of our instructions. 23 March, 544
Justinian, Edict 6, “On the Regulation of Skilled Labor,” Preface, 1
 Justinian’s vision
• To restore the Roman civil and military empire on Christian grounds
• Caesaropapism
• Ecclesiastical buildings: Hagia Sophia, Senate, St Irene, Church of the
Apostles
• Uproot paganism
• Persecutions of heretics
• Compulsory baptism
• 529: closure of Athenian Academy
Reading
• Kaiser, W., ‘Justinian and the Corpus Iuris Civilis’, in Johnston, D.
(ed.) The Cambridge Companion to Roman Law (CUP 2015), pp.
119-150.
• Kolbert, C. (1979), The Digest of Roman Law: Theft, Rapine,
Damage and Insult , Penguin (a translation of Justinian’s corpus
of laws)
• Lee, D. (2013), From Rome to Byzantium AD 363 to 565: The
Transformation of Ancient Rome, Edinburgh UP: pages 243-300
• Nicholas, B., Introduction to Roman Law (OUP 1975), pp. 38-44.