Legal Practice: The Evidence
Evidence from legal practice is very unevenly distributed over space and time. Several of Justinian’s Novels are imperial reactions to practical problems that had been brought to the emperor’s attention.
For the same period we have one other rich source. In the sixth century, Egypt was still firmly under Byzantine domination. The papyri are a vast body of evidence of what this meant in practice.19 Although they are much less abundant for provinces such as Palestine, Arabia, and Syria, it is now widely believed that there is no reason to regard these parts of the Near East as differing greatly from Egypt, so that we may extrapolate the evidence of the Egyptian papyri to other provinces of the empire. This evidence suggests that legislation issued in the capital reached the provinces, although there is less agreement on the measure of its penetration into daily life. Various questions arise, but this much is clear: these papyri are evidence of how Byzantine law was applied in a province of the empire. Greek was the dominant language, but we should not forget papyri in other languages such as Coptic.20After the loss of Egypt in the seventh century we have to rely in principle on other sources. The new masters did not force their subjects to abandon their traditional way of life, but their ‘tolerance’ of course applied more in the sphere of private law than in public law. In any case, legislation from Constantinople no longer influenced what went on in these territories. For the legal historian of Byzantium, the loss of Egypt means the loss of a rich source of documentary evidence. For the next couple of centuries we are forced to base ourselves mainly on indirect evidence such as saints’ lives. To make matters worse, for the seventh and eighth centuries few imperial Novels have been preserved.
The promulgation of the Basilica in about 900, while of inestimable value for our knowledge of Justinian’lang=EN-US>s legislation, is of little use to the historian of Byzantine legal practice.From the eleventh century dates the Peira (‘Experience’), mainly a collection of excerpts stemming from the practice of Eustathios Rhomaios, a judge in the High Court of Constantinople. Unfortunately the actual cases are often unclear, which is explained in part by the fact that the anonymous author was not so much reporting them as trying to write a textbook. But the collection does convey an idea of the sort of cases the court had to deal with and the way in which a judge applied legislation in actual cases.21
Evidence is available not only from the secular sphere but also from an ecclesiastical context. Actual cases are reported in the twelfth-century commentary on the Nomocanon of Fourteen Titles and the Corpus canonum by Theodore Balsamon.22 Another source is the register of the patriarchate of Constantinople of the fourteenth century, which contains a considerable number ofjudicial decisions.23 The archives of the monasteries of the Holy Mountain document, among other things, transactions concerning property; these range from the tenth century to the present.24 When secular structures were on the verge of collapse, a bishop’s court was often still available and dealt with non-ecclesiastical cases too. A late example is documentation from the activity of Chomatenos in Epirus in the late twelfth and early thirteenth centuries.25
In all these sources, whether secular or ecclesiastical, one finds evidence of the application of Roman law in Byzantine form. But which part of Roman law was actually in use? And to what extent was Roman law changing in Byzantine hands? To the first question a tentative answer may be found in short selections such as the Ecloga of the Isaurian emperors Leo III and Constantine V of 741.26 To judge from the number of surviving manuscripts, the Ecloga was very successful.
It contains predominantly Justinianic provisions and gives an indication of which parts of Roman law had a role to play in legal practice. In the same manuscripts one often finds other short texts. Among them are the three so-called leges speciales (the Farmers’ Law, the Seamen’s Law, and the Soldiers’ Law).27 Their nature and purpose have been much discussed and no consensus has been reached. They have been variously dated from the late sixth to the eighth centuries and are, in varying degrees, less dependent on Justinian’s legislation. Not all of them are laws in the formal sense. Here too it seems reasonable to see them as a mirror of the law actually in use. Their names indicate the special spheres in which their provisions would apply. Similar indications of less ambitious sets of rules that had some real influence on daily life may be seen in other texts often found in the same manuscripts as the Ecloga: the Mosaic Law28 and the so-called Appendix Eclogae 297.