Afterlife and Reception of Byzantine Law
The life of a legal system is bound up first of all with the society, and often the state, in which it developed. The Byzantine empire, the legitimate successor of the Roman empire, lived on until the fall of Constantinople in 1453.
But as is well known, the end of a state need not be the end of its legal system. Byzantine law, considered here as part of the afterlife of Roman law, is a case in point. The key to understanding its success lies in the defining characteristics of Byzantium: the Greek language and the Orthodox faith. Where an historical awareness of these characteristics, coinciding with the right political conditions, survived the collapse of the state, Byzantine law often lived on. This is true of Greece in particular, where after 1453 the population under Turkish domination was allowed to follow ‘Roman’ (that is, Byzantine) law under the responsibility of the Patriarch of Constantinople. When, on independence in the early 1820s, the nascent Greek state adopted a constitution, it immediately confirmed ‘the remaining laws of the Christian emperors of Constantinople’.37Generally speaking, the canon law of the Orthodox Church preserved a certain amount of Byzantine law of secular origin. In that sense one aspect of the survival of Byzantine law is the spread and survival of Orthodoxy. It is certainly responsible for the following two interesting cases, in which the presence of Byzantine law cannot readily be explained by the historical existence of the Byzantine empire. These are cases not of the ‘normal’ development of Byzantine law but of its ‘reception’ or ‘transplant’: the adoption of a legal system in an area where it had not been at home as the law of the land. With the greatest hesitation a possible third case may be mentioned, though it is subject to much debate.
The first case concerns the reception of Byzantine law in eastern Europe, for which Christianization by Byzantine missionaries was crucial.38 Byzantine ecclesiastical law, already containing imperial law, was adopted in the new churches, and several secular collections followed in its wake.
Obolensky points out four reasons for interest in Byzantine laws in that part of the world. In addition to a practical reason, a political reason, and the connection with canon law, he puts forward as a cultural reason ‘the immense prestige which the empire’s legal tradition enjoyed in the eyes of its neighbours’.39 The result varied from country to country, but the Ecloga and Procheiron seem to have been the most successful. Several translations are preserved.40Another case is the Ethiopic Fetha Nagast, the ‘Law of the Kings’ in Ge’ez, the ‘learned’ language of the Ethiopian people.41 It retained a prominent position in Ethiopia until the promulgation of a Penal Code in 1930 and again in 1957 and a Civil Code in i960.42 On all three occasions the Fetha Nagast was mentioned as the point of departure - or at least the inspiration - for the new law codes. It is a collection translated and adapted in the seventeenth century from an Arabic nomocanon in two parts written in 1238 by a Coptic jurist called Ibn al ‘Assal. The first part deals with religious matters and need not concern us here. The second, secular part goes back to a collection in four books called ‘The Canons of the Kings’. The first three of these books have been identified as versions of the Procheiron, the Syro-Roman Law Book, and the Ecloga respectively; the fourth draws on the Pentateuch.43 The first and third part are cases of truly ‘Byzantine’ reception: the dates of their originals - 74i and the early 88os (or even 907), when Egypt had long ceased to be Byzantine (something that Ethiopia had never been) - show that we are dealing with a pure transplant. Transplants have a reason: here, once more, it is the Christian faith, but with a twist. The Copts had never accepted the creed of Chalcedon: they were monophysites. In theory, therefore, the Procheiron and Ecloga had been issued by heretic emperors.
Among the ‘Kings’ in question was Constantine V of the Ecloga, who could conveniently be identified with Constantine the Great, most probably not by mistake but in a deliberate attempt to give the texts a respectable origin. Likewise, the attribution of the collection to the ‘318 Fathers of [the Council of] Nicaea [of 325]’ fitted with the ascription to Constantine the Great. The story shows a transmission of Roman rules from Latin via Justinian to Greek to Arabic to Ge’ez. The Coptic language does not seem to have been involved, but the Copts - who were by then Arab-speaking - definitely were.The case of the law of Ethiopia and its Coptic antecedents leads naturally to a possible third case of an entirely different nature. It concerns the hotly debated influence of Byzantine law on Islamic law. Ibn al ‘Assal’s work has been shown to have undergone Islamic influence,44 which is hardly surprising when one considers for how long Egypt had been part of the Muslim world by the thirteenth century. But had Islamic law itself been influenced by Byzantine law? Lack of relevant knowledge means that the present writer can do no more than refer to Leopold Wenger’s warning45 and point to work by others. Recently, flying in the face of what seems to be traditional wisdom, Benjamin Jokisch has strongly defended a positive answer. Among other things, he construes a link between the Digest and Islamic law through the intermediary of the Greek Digest Summa of the so-called Anonymus.46
Another way of looking to the phenomenon of an afterlife of Byzantine law is to focus on the reception of one text only. The Ecloga of the iconoclast emperors Constantine V and Leo III has already been mentioned several times. It had at least a Slavonic, an Armenian, and an Arabic reception,47 and its history in southern Italy should perhaps come under the same heading.48 But the great success of the Ecloga should not make us impervious to the fact that there never was a wholesale reception of Roman—Byzantine law in the east on the scale and in the form of the reception of the Corpus iuris civilis in the west. The honour of the longest unbroken tradition, however, arguably has to go to the present Greek state, where the Tourkokratia did not end the application of Byzantine law, and where Byzantine law was once more confirmed on independence, finally to be replaced only in 1946 by a BGB-inspired Greek Civil Code.49
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