A History oflang=EN-US style='font-size:12.0pt;font-variant:normal !important; text-transform:uppercase'>Byzantine Law?
To what extent was Roman law changing in Byzantine hands? What is ‘Byzantine law in context’? The best available answers are still to be found in Zachariä’s Geschichte des griechisch-römischen Rechts, now more than 100 years old.30 It has still not been superseded - not for want of new material, but by virtue of the quality of the original and the immensity of the work involved in its revision.
The late Alexander Kazhdan pleaded strongly for a revision with the rhetorical question ‘Do we need a new history of Byzantine law?’ He was answered by Ludwig Burgmann as well as by myself, along different lines but to the same effect: yes, but it is not going to be written in the foreseeable future and even then probably not in a manner that would have been to Kazhdan’s taste.31 In essence, this is all a case of mistaken identity: Kazhdan reproached legal historians for believing that formal sources represented reality and therefore for neglecting data from other sources such as saints’ lives. But no legal historian holds such a view; or, rather, Kazhdan’s understanding of ‘reality’ is not the same as what most legal historians set out to describe.A history of Byzantine law should ideally take on board both the legal ‘reality’ of the structure of the formal legal sources and information about what these texts were supposed to do: how, in the course of the centuries, they contributed to ordering society, settling disputes and so forth. The former is mainly Roman law in Greek dress. The latter, which is of both legal and non-legal origin, shows that Byzantine society often developed independently of its Roman heritage; in any case, Byzantines dealt with this heritage in a decidedly different way from their ancestors.
The ultimate result would be a history showing, on the one hand, a strong continuity in the formal sources, and on the other hand, change - as postulated by Kazhdan and never denied by others.A history of Byzantine law would show a society in which legislation and ‘law-in-action’ interacted in a way different from Rome in antiquity. For one thing, the role of legislation was different.32 For the student of Roman law the Byzantines’ adherence to the Justinianic legislation is a bonus, since this has preserved information that would otherwise have been lost. These texts, however, do not provide direct access to the way this version of Roman law was applied in Byzantium. There is an obvious parallel with the position of the Corpus iuris civilis in the western legal tradition. Its survival and distribution do not directly inform us about medieval or early modern legal practice. Without the work of the Glossators and, building on that, the Commentators, the Corpus iuris civilis would have been an interesting historical phenomenon but surely of little use to the practising lawyer. Of course, the tradition of the ius commune embraces far more than just repetition of Justinian’s words, and in that respect the case of Byzantine law is the same. In Byzantium, Roman law was at the forefront to the very end, but it did not play the same role as it did in the ius commune in (re)creating and maintaining a legal system fit for use in the contemporary world.
It is no small achievement that Zacharia’s history of Byzantine law already went some way towards an ideal history. Let us briefly look at two areas, matrimonial property and real property, in order to put this into perspective.
Zacharia believed that the Byzantines had parted company with the Romans in legislating for a new system of matrimonial property based on joint ownership; that it was the Isaurian Ecloga of 741 that effected this; and that the wider context of this change was the union of Roman law with Christian doctrine in the hands of the Byzantines, as is sometimes (over-enthusiastically) alleged of Byzantine law in general.
This assertion has not been able to withstand closer scrutiny. In the regime of matrimonial property, the Ecloga shows a great deal of continuity with Justinianic Roman law.33 Equally, it is not easy to describe Byzantine matrimonial property as a system, as Dieter Simon has shown for a later period.34As to real property, it suffices to read the concluding pages (§ 64) of Zacharia’s treatment of ‘Das Grundeigenthum insbesondere’ to realize that in Byzantium we gradually leave familiar Roman ground. After a comparison of eastern and western law, Zacharia’s conclusions were (i) ‘that for the various kinds of real property (“Grundbesitzes”) the Byzantines knew no different law of succession from the one applicable to personal property’, and (ii) ‘that a proper feudal bond remained foreign to the Byzantines’.35 A new history might wish to rewrite these pages, since it would be able to take into account many documents not accessible to Zacharia. First of all, of course, consensus would be needed on what exactly is understood by feudalism.36 And we should not forget that legal relations concerning real property and their description also presented - and still do present - problems to western medieval lawyers and their historians.
For the time being, everyone will continue to make grateful use of Zacharia’s Geschichte.
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