by Scott McGill
Wessel, Susan. (2001). Literary forgery and the monothelete controversy: Some scrupulous uses of deception. Greek, Roman, and Byzantine Studies 42: 201–220.
Wessel, Susan. (2012). Theological argumentation: The case of forgery. In: The Oxford Handbook of Late Antiquity (ed. Scott F. Johnson), 916–934. Oxford: Oxford University Press
Wildberg, Christian. (2008). Olympiodorus. The Stanford Encyclopedia of Philosophy (ed. Edward N. Zalta). http://plato.stanford.edu/archives/fall2008/entries/olympiodoru (accessed 3 July 2016).
Wildberg, Christian. (2016). Elias. The Stanford Encyclopedia of Philosophy (ed. Edward N. Zalta). http://plato.stanford.edu/archives/fall2016/entries/elias (accessed 3 July 2016).
Williams, Steven J. (2003). The Secret of Secrets: The Scholarly Career of a Pseudo‐Aristotelian Text in the Latin Middle Ages. Ann Arbor: University of Michigan Press.
Zechiel‐Eckes, Klaus. (2001). Pseudoisidorische Dekretalen. In: Lexikon der Kirchengeschichte (ed. Bruno Steimer), 1345–1349. Freiburg: Herder.
CHAPTER TWENTY-SIX
Legal Texts
Charles N. Aull
26.1 Introduction
The most striking difference between the legal texts that the Roman Empire produced in its first three centuries and those of the later empire are their legislative styles. Emperors of the early and high empires commanded; later Roman emperors persuaded (Cohen and Lendon 2010). Scholars have long been aware of this evolution, but too little attention has been given to the fact that as legal texts evolved in late antiquity they began to take on the distinct characteristics of other literary genres. This is most noticeable in how legal texts echoed imperial panegyric, ceremonial speeches given in praise of Roman emperors. Legal texts and panegyric utilized comparable diction, prose rhythms, and rhetorical strategies. Consequently, the emperor’s own speech in late antiquity came to sound very similar to ceremonial speech about the emperor.
The following discussion sets out to trace some of the details of these similarities by exploring several characteristics of late antique legal texts and comparing them to imperial panegyric. It begins with an overview of the different forms that legal texts could take in late antiquity and discusses some of the major problems that past scholars have encountered with them. It then parses a small sample of laws from the fourth century and compares them to features commonly found in late antique panegyric. Collectively, this chapter will serve as a starting point for how one might think about late antique legal texts as literary forms. At the same time, it highlights the Roman government’s embrace of late antiquity's creative literary spirit and underscores the existence of a complex imperial discourse that functioned to shape perceptions of the Roman emperor.
26.2 Legal Texts in Late Antiquity: Forms and Problems
The emperor’s word carried the weight of law in the Roman world. For this reason, one may consider a letter from the emperor responding to a specific question from a provincial governor, general, or bishop to be as much a legal text as a sweeping imperial edict carved into stone or bronze. All such texts can be placed in the category of “imperial legislation,” which serves as the primary focal point of this study.
The two most important sources for our knowledge of late antique imperial legislation are the Theodosian and Justinianic Codes, massive compilations of Roman law made at the order of their respective emperors – Theodosius II and Justinian I – in the fifth and sixth centuries. Theodosius II commissioned the legal code that would bear his name in the year 429 with the intention of codifying Roman legal principles throughout the empire’s western and eastern halves. The undertaking took close to a decade to complete. The code covered laws issued by Roman emperors from 312 to 438 and touched on various topics, such as taxation, military and veterans issues, and religion, just to name a few. The compilers included in the codex what Theodosius called general laws, legislation that pertained to specific issues but had broad applicability. Such laws took the form of imperial edicts, letters from the emperor to the Roman Senate, and letters from the emperor to imperial administrators in the provinces. Excluded from the codex were private rescripts, letters from the emperor responding to legal questions from private citizens. Private rescripts made up the bulk of two nonextant legal codes that preceded the Theodosian Code: the Codex Gregorianus and the Codex Hermogenianus, both of which date to the reign of Diocletian (284–305) and were named after their editors. While far from being in perfect condition, the vast majority of the Theodosian Code has survived into the present day. Roughly 2700 of what was originally 3250 texts are extant (Matthews 2000, pp. 65–70; Dillon 2012, pp. 15–27). The authoritative modern edition of the code is that edited by Theodore Mommsen and published in 1905. Clyde Pharr published an English translation of the entire code in 1952.
The Justinianic Code proved more ambitious. First commissioned by Justinian I in 527, it was meant to synthesize all active imperial legislation, including laws contained in previous legal codes as well as laws produced in the interim between 438 and 528. This involved compiling laws, editing them, removing contradictions, and solving inherent legal and textual conflicts. A first edition of the code, which does not survive, was produced in 529. From that point on, it legally superseded all previous Roman law codes. A second edition was published five years later to incorporate legislation pursued by Justinian’s administration between the time of the first edition and 534. This second edition survives. In between the time of the first and second editions, Justinian commissioned two other works that served as companions to each other and the code itself. One is known as the Institutes, essentially a legal textbook; the other is known as the Digest, a collection of classical Roman juristic writings. Historians and classicists refer to all three of these works collectively as the Corpus Iuris Civilis (or just Corpus Iuris). Sometimes considered part of the Corpus Iuris are laws enacted by Justinian after 534 known as Novellae. The Corpus Iuris as a whole is estimated to contain more than a million words (Honore 1993, pp. 29–38; Robinson 1997, pp. 43–45). An edition of the Justinianic Code produced by Paul Kruger in 1877 remains preeminent in Roman legal scholarship. Bruce Frier has recently edited an authoritative three‐volume translation of the code.
Despite the centrality of the Theodosian and Justinianic Codes to the study of Roman law and late antique legal literature, students and scholars could benefit from a more inclusive conceptualization of legal texts in late antiquity. Just as legal texts today might include an Act of Congress, an executive order from the President, or an opinion from the Supreme Court, legal texts in late antiquity could come in many different forms. Two sources from the fourth and sixth centuries offer examples of the diverse forms that legal texts in late antiquity could take.
The first is a slab of limestone from the North African city of Timgad. Around 360, the Roman administration in North Africa etched into the stone prices for litigating in the court of the Roman governor of Numidia. For example, the inscription states that it cost a plaintiff X amount to register the case with the court. It would then cost Y amount to have an attorney present the case and then Z amount to issue a summons for a defendant or to actually have the judgment enforced (assuming the case was decided in the plaintiff's favor). The inscription, often known as the Ordo Salutationis, was erected in the middle of the city. As a historical document, it underscores the exclusiveness of access to litigation in late antiquity. One study of the inscription argued that litigation fees in the court of Numida equaled close to what was needed for a peasant family of four to survive on for a full year (Kelly 2006, p. 140). A harsh reality no doubt, but the Ordo was, like the Theodosian and Justinianic Codes, a strategic attempt by the Roman imperial government – the emperor – to codify and establish procedure. Fascinatingly, legal texts like the Ordo that stood prominently and permanently in city centers were probably ones with which many everyday Romans were most familiar.
A second source that shows the different forms that legal texts in late antiquity could take is the Va
riae. This collection of 468 documents was penned by a government official named Cassiodorus, who worked in the administrations of the Ostrogothic king Theodoeric and his successors throughout the first half of the sixth century. Cassiodorus held several high‐level positions in the Ostrogothic administration, many of which required him to serve as something of a spokesperson or as a legal draftsman. At some point in the mid‐sixth century, he collected and edited the documents he wrote on behalf of the Ostrogothic government and published them in 12 books. Most of the books include letters that Cassiodorus wrote in the name of Theoderic and his successors. They touched on various diplomatic, administrative, and legal issues and were addressed to recipients such as the Roman Senate, the Eastern Roman Empire, kings of other western states, and officers of the Ostrogothic kingdom. Two other books consist largely of stock language used for making government and honorary appointments, unique legal texts in their own right. The final two books include letters that Cassiodorus wrote in his own name as an Ostrogothic official. It should be noted that the Variae are considerably different from the massive imperial archives discussed above. The primary purpose of the Variae, unlike that of the Theodosian and Justinianic Codes, was not legal clarification or codification. In fact, Cassiodorus may have been thinking very little about legal issues when he began the process of compiling and editing documents for the Variae. Instead, it has been argued, he may have envisioned the work primarily as a vehicle for self‐fashioning and presenting an idealized portrayal of the Ostrogothic government. These goals, in turn, may have informed how Cassiodorus curated and edited his source materials (Bjornlie 2016). Nonetheless, the Variae should be viewed as an archive of late antique legal texts as much as the Theodosian and Justinianic Codes are, although the original motivations behind the creation of these archives should not be forgotten.
Just as legal texts could take many different forms in late antiquity, they have survived in different ways, too, and were preserved for various reasons and purposes. In addition to massive compilations like the Theodosian and Justinianic Codes, we have smaller archives of extant legal texts such as the Collectio Avellana, the Fragmenta Vaticana, and the Collectio Sirmondiana. The Collectio Avellana is a collection of roughly 250 ecclesiastical documents that include letters from emperors from the time of Valentinian I to Justinian. It was compiled sometime in the mid‐sixth century and offers a unique window into church–state relations in late antiquity. The Fragmenta Vaticana consists of writings from Roman jurists and imperial legislation from the western empire in the early fourth century. Less than 20% of the original archive is believed to have survived, and little is known of its scope, organizational principles, or purpose. The Collectio Sirmondiana, like the Collectio Avellana, has a religious focus and features a small group of imperial laws from the fourth and fifth centuries. It takes its name from the Jesuit scholar Jacques Sirmond, who first edited and published the laws in 1631 as an appendix to an edition of the Theodosian Code. There are also numerous legal texts preserved on stone and on papyrus, some of which carry exceptional historical and legal significance. For example, the Edict on Maximum Prices, established by the emperor Diocletian, has survived largely in the form of fragmented stone inscriptions from the eastern Mediterranean. In some instances, legal texts have even come down to us through literary works. Several legal texts purportedly authored by the emperor Constantine, for instance, are presented in the works of Eusebius of Caesarea, a fourth‐century bishop who wrote a history of Constantine’s reign.
Scholars face difficult questions when it comes to the history and transmission of extant late antique legal texts. Why did late antique compilers choose the laws that they chose? Where and what were their original source materials? To what extant have extant legal texts been edited or modified? Can we trust the presentation of legal texts in literary sources? Here is not the place to address all of these questions. The answers, after all, are often unique to particular collections and texts. But the thorny issue of how the texts in the Theodosian Code – which form the backbone of the discussion that follows in the next section – were edited presents an illustrative example of the types of problems with which historians grapple when it comes to late antique legal texts. It also has a direct bearing on how we read and interpret legal texts.
To understand the nature of the editing problem with the Theodosian Code, one must first understand the Roman government’s legislative production model. The starting point of any piece of new legislation was the emperor himself and his closest legal advisers, an inner circle often known nowadays as the imperial consistory. After the consistory formulated a basic policy framework or solution to a particular problem, it was the job of an official called the quaestor to craft the actual language and text of the law. Quaestors worked with teams of legal experts and were often expected to be widely knowledgeable of legal matters, but other skill sets could come into play and even outweigh expertise in law. Perhaps the most illuminating example of the varied backgrounds of quaestors can be seen in the Emperor Valentinian’s appointment of Decimus Magnus Ausonius in 375. Ausonius had minimal legal expertise when he took the job. Instead, his background was largely in rhetoric and poetry. (The involvement of individuals like Ausonius in the drafting of imperial legislation helps to explain some of the stylistic features of late antique legal texts discussed later in this chapter.) The drafting process likely involved a good deal of back‐and‐forth between the quaestor’s office and the consistory and would conclude only with the emperor’s permission. From there, the text would be sent out to the appropriate officials in the provinces. It was at this point in the process that most Romans in late antiquity came into contact with imperial law. Officers in the provincial administration were responsible for ensuring that the law was read aloud in places such as city councils or churches and that the law was publicly displayed in a visible and prominent location (Matthews 2000, pp. 168–199; Watts 2015, pp. 47–48).
The texts of the laws that survive in legal compilations like the Theodosian Code are likely different from what Romans saw and heard in their local communities and from what actually emanated from imperial centers. How different has been a fundamental question for scholars of late antique legal texts. Theodosius II gave the editors of the Theodosian Code leeway to truncate and prune legal texts. This involved removing preambles and lengthy imperial titles as well as language deemed superfluous. Only what the editors determined to be the legally meaningful portions of a text were to be left unspoiled (Honore 1998, pp. 143–44). Theodosius commanded this: “the words themselves…insofar as they pertain to the matter at hand, are to be preserved” (CTh. 1.1.5).
But how closely did the editors follow these instructions? Quite closely, it turns out. John Matthews, in a critical study of the codex, examined the procedures of the editors by comparing the truncated versions of texts in the Code to other versions that are believed to have come down to us largely unaltered. Matthews showed that, on the one hand, the “words themselves” were not always preserved perfectly verbatim. In addition to the removal of introductions and titles – which Theodosius sanctioned and encouraged – light editing of the substantive portions of legal texts does appear to have happened. On the other hand, most of the substantive sections of the texts that survive offer by‐and‐large faithful, if not exact, reflections of the original texts (Matthews 2000, pp. 121–167). Ultimately, what this means for how we read imperial legislation is that we should approach late Roman laws both as the products of imperial consistories and, by extension, as the actual utterances and words of late Roman emperors (cf. Dillon 2012, pp. 83–84). Understanding this point is foundational to appreciating the literary and political import of imperial legislation in late antiquity.
26.3 Language and Style in Late Antique Imperial Legislation
A sample of imperial legislation from the fourth century illustrates several of the stylistic features that characterized these types of legal texts in late antiquity. Our first text dates to 3
24. Issued by the emperor Constantine, it lays down procedures for reporting bureaucratic malfeasance. In a study of Constantinian legislation, John Dillon offers an insightful reading of this law, arguing that its real goals were communicative. Through this edict Constantine articulated to the empire his vision of good government and the ideal relationship between subject and emperor (Dillon 2012, pp. 97–104). The text is a powerful piece of rhetoric, but what makes it work is its careful attention to language and syntax.
The extant portion of the edict opens with a fast‐paced sequence of lists and mimicking sounds:
If there is anyone of any position, station, or rank who believes that he can truthfully and unmistakably prove anything against any of my judges, companions, friends, or palace staff, which does not seem to have been done honestly and justly, let him fearlessly and confidently approach and address me.
Si quis est cuiuscumque loci ordinis dignitatis, qui se in quemcumque iudicium comitum amicorum vel palatinorum meorum aliquid veraciter et manifeste probare posse confidit, quod non integer adque iuste gessise videatur, intrepidus et securus accedat, interpellet me. (CTh. 9.1.4)
Constantine’s listing of his administrators presents a carefully arranged sequence of words with similar sounding endings. Iudicium and comitum work together and are accented by the quemcumque, while amicorum, palatinorum, and meorum conclude the sequence. Most interesting about this sentence is the way that it comes to a halt once it reaches its main cause, the crux of the text where Constantine finally provides clear instruction. No less than four subordinate clauses precede it, each with varying degrees of complexity. The main clause itself consists simply of two adjectives, two verbs, and an object, Constantine himself, placed not before the verb interpellet, where we might expect it, but instead afterwards.
