Law in the Post-Classical Period

(1) Characteristics

The classical period of Roman law came to an end in the first half of the third century AD. In the period that follows, known as the post-classical period, we see an almost complete disappearance of juristic literature.

were functionally continuous with the answers of the privatejurists in classical times. They are given in the same spirit, applying the law, not making it. In the transitional period at the end of the second century and the beginning of the third we can see that the same jurists whose names we know were, anonymously, the draftsmen of the imperial replies. The end of the classical period is, and perhaps is no more than, the withdrawal of the great names into the anonymity of the imperial chancery.^[244]

Nonetheless, it is clear enough that there was a shift, and this is something that requires explanation.

There are various possible explanations. We might point to the growth of Christianity, and the resulting attractiveness of careers in the Church for young men who might otherwise have gone into the law. That cannot be the whole answer, though, because the adoption of Christianity as the state religion did not happen until the fourth century. At the end of the classical period, Christians were still an intermittently persecuted minority. Equally, while the absorption of jurists into imperial administration may have reduced their capacity to write freely about the law, this cannot be the whole answer either.

Another candidate is the effect of the constitutio Antoniniana of AD 212. As we saw in Chapter 1,^[245] by this imperial pronouncement a general grant of Roman citizenship was made to the free inhabitants of the Empire. As a result, there was a major increase in the number of people who were expected to organise their affairs according to Roman law. This seems likely to have created a demand for more elementary legal literature.^[246]

It has been suggested that the answer is simply that thejurists ran out of things to write about: ‘The law of diminishing returns means that after a cer­tain point there is little purpose in writing yet another commentary, especially because the basic law had not changed.'^[247] While it is true that the post-classical period was not generally a period of major legislative innovation in private law, this view may not completely convince. After all, it is far from unknown for new questions to arise even from well-established legal principles.

Finally, it must surely be relevant that the third century AD was a time of severe political turmoil, the Crisis of the Third Century.^[248] The environment this created was perhaps less conducive than that of earlier centuries to high-level legal scholarship. At the same time, though, the first century BC was also a time of major political turmoil, and it fell within the classical period of Roman law, so this point should not be overstated. Whatever the explanation, the undeniable fact is that after the first decades of the third century we see little original legal literature. Here we move into the post-classical period.

(2) Problems of Access and Attempted Solutions

One of the major problems in the ancient world, which became greater in the post-classical period, was the difficulty of knowing what the law actual was. As we have seen, the emperor had a major role in developing the law, and his pro­nouncements were seen as legally binding.

The legal pronouncements of the emperors were of different types, and so was the degree of publicity given to each. Edicta were posted at the emperor’s residence for a short time, and he might order that they be displayed, also for a short time, in a par­ticular province or provinces. Decreta, statements of the law issued to an individual with a problem, would be known at once by that party, and they would be registered in the court office. Epistulae, replies to officials or public bodies who had asked for advice, would be sent to them, but no other publication was forthcoming unless the emperor requested it. Presumably, a copy was kept in the chancellery. Subscriptiones, the emperor’s replies written at the bottom of petitions, were set up publicly for a few days only, and the petitioner and the chancellery would each receive a copy. Apart even from the difficulty of access to the chancellery, there is no evidence of an index system according to the subject matter of the rescripts. Thus, for all types of imperial legal pronouncements knowledge was hard to obtain.^[249]

Mass circulation of imperial pronouncements was out of the question: in an age before printing, such an undertaking would have required a great expenditure of time and labour to make sufficient copies.

The difficulty of access was partially mitigated in the classical period. Many jurists held senior positions in the imperial administration. As such, they would have had access to imperial pronouncements (some of which, indeed, the indi­vidual jurist might have drafted himself). They could therefore make reference to imperial pronouncements in their writing, and legal developments arising from them could be disseminated in that way.

One solution to this was to issue collections of imperial pronouncements, thus giving wider access to them.