1. Introduction

he afterlife of Roman law took various shapes, as will transpire I from other chapters in this section. Underlying most of them is the assumption that Roman law lived on in a Latin-speaking environment.

In theory the law of New Rome began with the foundation of Constantinople in AD 330. Important as that event may have been, it is almost irrelevant to the history of Roman law. To be sure, it was a milestone on the way towards a more permanent division of the Empire, which, however, did not come about until much later. Even the division between Arcadius and Honorius in AD 395, a suitable starting-point for the period we now understand by ‘late antiquity’, did not mark the inception of Byzantine law. Much could be said about the development of the law in late antiquity, but it should not be under the heading ‘Byzantine law’. ‘Byzantine’ is an invention of western historiography to indicate a geographical and cultural environment which, however, under­stood itself as Roman. In few areas is this as obvious as in the law. What, then, is Byzantine law? When did the development of Roman law in the eastern half of the Roman world branch off in a direction which was truly different from what happened in the west?

Given the lack of continuity in the west, the question is actually misconceived.

east, after Justinian’s codification, development ran a predictable course: the new authoritative text was taught, commented upon, and summarized, and, where necessary, the legislator intervened with additional legislation, the novellae constitutiones. Famous schools were those of Constantinople and Beirut, legislation of course being restricted to the capital; insofar as teaching took place in other cities such as Rome, it has left few traces and may fairly soon have ceased altogether. The development of Roman law in the west seems to have come to a standstill, to be resumed in the different world of northern Italy almost five centuries later.

In spite of the initial successes of Justinian’s generals in the recon­quest of former territories in the western half of the Mediterranean world, it soon became clear that the future of the Roman empire lay in the east. In other words, from the end of the sixth century onwards, geographically the empire in actual fact covered predominantly Greek-speaking territory, Latin being just one of many minority languages. Inevitably, the language of the law then changed from Latin to Greek. The clearest sign of this development is the fact that Justinian himself started to legislate in Greek: the novellae constitutiones were issued in Greek, with some excep­tions which are readily explained by their intended audience.² It is not the law that branches off in a different direction; it is the language of the law — and even that only partially, since technical terminology remained Latin. Moreover, in legal teaching and practice, Greek had already long been in use.

If we must have a precise starting-point for Byzantine law, I propose 534, when the codification had been completed, the first Greek Novels were issued, and - more significantly - the new legislation was taught and applied in Constantinople and elsewhere. It is from this point that a development began which was unique to the eastern Mediterranean world and never really became part of a common legal tradition shared with the west.

In his chapter on Justinian and the Corpus iuris civilis, Kaiser has given an outline of legal teaching in the age ofJustinian.³ In the present context it is worth emphasizing that we actually possess extensive remains of this teaching, consisting of translations, lecture notes, sum­maries of, and commentaries on, the various parts ofJustinian’s legisla­tion.⁴ Together they afford a unique insight into how Justinian’s contemporaries understood and explained the legislation. But there is still more to these writings, which had been written in many cases by the very jurists who sat on the committees responsible for drafting the codification.

First and foremost, they are the closest we can get to the inception of Byzantine law. Elsewhere I have suggested that two transformations of Roman law took place in the first decade or so of Justinian’s reign.⁵ The first was the codification itself: at this point the old juristic writings ceased legally and materially to exist. The second was the ‘appropriation’ of the Latin codification in the form of Greek writings by translators, exegetes, and commentators. It is true that theoretically the Latin text of the codification had sole authority, but to all intents and purposes the Greek versions served in loco parentis. They were to be the basis of subsequent development: not only are they quoted in later juristic writing, but many passages are repeated, often literally, in later legislation. In short, they are the first generation of Byzantine law — unthinkable, of course, without the Justinianic codification.

Moreover, owing to their origin, they are witnesses to the sixth­century text oftheJustinianic legislation.

This chapter sets out to deal with Byzantine law in the context of Roman law. Byzantine law began as Roman law, and the way in which it developed is one of many strands in the history of Roman law. Byzantine law went its own course, in a language and a cultural environment different from those we habitually imagine when confronted with Roman law. In spite of all the differences, Byzantine law never lost sight of its origin and never hesitated to proclaim it. Playing down this aspect would be distorting its history. Indeed, these pages will bring out continuity rather than change. Byzantinists may consider this statement a contribution to perpetuating a one-sided, traditionalist picture of Byzantium as the decline and fall of ancient Rome. I can only say that I hope it will help Romanists to look occasionally over the ever-higher fence that seems to separate the students of east and west.