Byzantine Law: Continuity or Change?
Scheltema compared the Greek representations oftheJustinianic originals with tesserae from which subsequent generations composed their mosaics.12 The simile is most apposite: the resulting compilations were different each time yet the same, and thus suggest change yet continuity.
This is not to say that Justinian’s successors did not legislate, but it is strange to note that only rarely were these post-Justinianic Novels incorporated into later compilations, expressly or tacitly. This seems to raise a question over the principle that a later statute derogates from an earlier one (lex posterior derogat legi priori) so familiar from Roman law. We should not be over-hasty with that conclusion. The very name of the Novels - nearai meta ton Kodika diataxeis, ‘new constitutions after the Code’ - suggests that the emperors were conscious of making amendments to the Code, and references to the maxim of lex posterior are not infrequent. But it is clear that the Byzantine understanding of that model was not the same as the Roman.Two inferences may be drawn from this. First, the recurrence of the Justinianic legislation in later compilations kept the Byzantine legal system very ‘Roman’. The introductory textbook par excellence always remained Justinian’s Institutes in the paraphrase by Theophilus.13 A return to the sixth century14 is particularly striking in the most extensive compilation of Byzantine law, the Basilica (short for ta basilika nomima, ‘the imperial laws’) of about 900,15 essentially an imperially sanctioned Greek rendering of the Justinianic legislation in which the titles of Digest and Code were amalgamated and (parts of) Justinianic Novels were added. The relevant (Justinianic) legislation on a given subject was now at last to be found within one title, but the purpose of the collection seems to have been to assist consultation of the original legislation rather than to replace it with a new codification. This impression is reinforced by the addition of commentaries; these consisted once again in fragments of antecessorial texts written in the sixth century in order to elucidate the Digest, Code, and Novels (the so-called ‘old scholia’: see below, 369-70).
Shorter compilations such as the Ecloga, Procheiron, and the Eisagoge order the material differently, but the texts are mostly recognizably Justinianic. To investigate the nature and purpose of these ‘law books’, we should look at their preambles and at what has been included and omitted. All in all, the overwhelming impression is one of continuity. Needless to say, this is why the Byzantine material is useful for textual criticism of the Corpus iuris civilis, an aspect on which interest in Byzantine law on the part of Romanists has traditionally focussed (see also Section 9).Second, the history of Byzantine law should not be confused with the history only of the normative sources. Change there was, but it was not necessarily reflected in these sources. In order to trace the development of Byzantine law, one has to cast one’s net wider. It is in the Novels, of Justinian as well as of his successors, that individual emperors address contemporary problems. Similar indications may be found in non-legal literature. Given the apparent continuity that emerges from the successive normative compilations, it would be useful to check this picture against series of court cases. Unfortunately these are not readily available. The examples that survive show, on the one hand, adherence to the Roman legal system and terminology but, on the other, occasional divergences from the Roman norm, sometimes explicitly, sometimes tacitly. In short, it is from evidence of ‘law in action’ that we may trace the development of Roman—Byzantine law.
5.