B Sources of late Roman law
Very little general legislation (as opposed to rescripts, sent to individuals) of emperors before the fourth century C.E. is actually extant.
Even the famous legislation on marriage and adultery of Augustus (see Chapter 2, Part I.B) is known only from snippets in the Digest and from Roman historians rather than in its original form. This changes in the late antique period of Roman law. For the period from Constantine onward, we have a much fuller record of emperors' enactments than for the preceding three centuries. Though rescripts continued to be issued to private petitioners, few survive from after the reign of Diocletian. On the other hand, another form of legal enactment becomes much more common: leges generales (“general laws”), which applied to all subjects (not just to those individuals to whom rescripts were sent) and were intended for public distribution throughout the Empire. Leges generales include both imperial edicts and letters (epistulae) sent to government officials, particularly the praetorian prefects, the most important imperial officials after the emperor, who were supposed to relay their contents to their subordinates or to the public.8After the death of the emperor Julian in 363 (the last of the Constantinian dynasty), the Empire was almost always ruled by at least two emperors simultaneously, the essential division being between the Greek-speaking eastern half, whose imperial seat was Constantinople, and the Latin-speaking western half, whose emperor(s) resided in Trier or Milan, or (in the fifth century) Ravenna or Rome. Each emperor would have his own consistory and would make his own laws. In the fourth century, particularly under the emperor Theodosius I, laws made by one emperor would be received by his colleague(s), but after Theodosius' death in 395, the imperial split became more pronounced and emperors did not always accept each other's laws.
It is sometimes possible to detect the working out of contrasting policies in east and west, for instance in regard to the situation of illegitimate children (see Chapter 3, Part II.B) or divorce (see Chapter 4, Part II).9name=bookmark122>The laws of emperors from Constantine to Theodosius II (ruled 408—450) were collected and published in 438 by Theodosius II in the Codex Theodosianus, or Theodosian Code1 Theodosius' compilers actually did not retain the full text of the laws they were collecting (which were very long), but made excerpts, deleting the rhetorical prefaces and other verbiage, but keeping what they considered the gist of the original laws. We also have the complete texts of many laws enacted after the publication of the Code, known as the post-Theodosian novellae (“new laws”), up until the fall of the last emperor in the west in 476. For the sixth-century eastern Empire, we have, in addition to his collections of earlier Roman law, many novellae of Justinian (which are not included in this sourcebook).
Late Roman legislation may seem totally unlike “classical” law. In part, this is due to a change in the nature of our sources.11 In what we have preserved of classical law in the Digest, the emperor's voice is mediated through the explanations of professional lawyers; in the pre-Constantinian rescripts of the Code of Justinian, the emperor (or his secretary for petitions) is responding to concerns and questions from below. In the edicts and general laws of the Theodosian Code and post-Theodosian novellae, the emperor is addressing his subjects directly and bluntly. Late Roman laws also tended to be verbose (though much of their original wordiness was deleted by the compilers of the Theodosian Code) and were designed to impress, or even to frighten, the emperors' subjects into compliance. The emperors state in no uncertain terms what Roman subjects must do and not do, and threaten horrific punishments for those who disobey.
The overall effect of reading late antique laws is to be nearly overwhelmed by a combination of verbal obfuscation and moral exhortation that contrasts sharply with the calm deliberations of the jurists or the short, to-the-point responses of the rescripts.The wording of late Roman legislation is highly rhetorical, sometimes to the point where it is difficult to know what the emperor (or his quaestor, the official who actually drafted the laws) is really saying. Often the laws have to be deconstructed to determine what they mean and what issues or events lie behind them. Furthermore, as public pronouncements of what the emperor stood for and what he desired for his Empire, late antique laws had a strong propaganda purpose. Penalties for criminal offenses (which become a more important aspect of late Roman law than previously) are explicitly stated in the laws, rather than being left to the discretion of individual judges, as they were before. But these often-horrific penalties also serve as propaganda, setting forth the ideals of the ruler, and we should not assume that such penalties were always carried out.
Late Roman law also reflects a change in imperial ideology and administration, from a generally “hands-off” attitude toward the private lives of its subjects, particularly in the provinces, to an emphasis on what we would today call “micromanagement”: the number of provinces was greatly increased, the size of provinces correspondingly decreased, and the number of positions in imperial administration for running the empire increased enor- mously.12 At the same time, imperial ideology projected the emperor as concerned with the lives and welfare of all his subjects, including those who were not wealthy and influential, and imperial enactments take on a strongly moralistic flavor. This has often been linked with the rise of Christianity (most emperors of this period were Christians), but moralistic fervor is not unique to Christians, as can be seen from Diocletian’s edict against close-kin marriage, or in earlier imperial rescripts setting forth Roman mores}3
Unlike the Justinianic Code, which was intended as a working document of current law, and therefore omitted references to laws no longer valid in the sixth century, the Theodosian Code was supposed to collect all general laws enacted by legitimate emperors (legislation of rulers later branded “usurpers” was supposed to be omitted) from Constantine through Theodosius.
This gives the Theodosian Code a historical dimension absent in the later Justinianic compilation: even laws overturned or substantially modified by later emperors were included, so we can see how legal policy developed over a century and a half. Laws in the Theodosian Code were arranged in sixteen books, each comprised of a number of “titles” (headings) for different topics. Under each title, excerpts of the laws relevant to that topic would be arranged in chronological order, the principle being that the latest law in the title (whether of an eastern or western emperor) would express the current legal stance as of 438. The historical importance of Theodosius Il’s decision to include laws no longer relevant in his day cannot be underestimated; it is only because of his scholarly and traditionalist interests that we have so much legislation of earlier emperors like Constantine, whose laws underwent considerable alteration in the century after his death.14Translations from the Theodosian Code in this sourcebook are indicated by “Cod. Theod.,” the book number, the title number, and the number of the rescript, along with the date of promulgation or posting. Sometimes a law preserved in the Theodosian Code also appears in the Code of Justinian, though often in abbreviated or otherwise altered form. Where a law appears in both codes, I have translated the Theodosian Code version, which is closer to the original text (though still having undergone abbreviation and editing), and have noted the corresponding Justinianic text in a footnote. It has sometimes been difficult to render a translation of a late Roman law which remains faithful to the rhetorical spirit and colorful verbosity of the original but is still intelligible to modern readers. While I have often broken up the sometimes incredibly long sentences and added connectives and punctuation where they did not originally exist (and, like Theodosius’ compilers, I have occasionally simply omitted long-winded passages that were not directly relevant to the law’s intent), I have retained much of the ornateness and opacity of the original laws. Because the late Roman laws are more difficult to understand and are less familiar to most classicists, I have also provided more footnotes and explanatory material than for the classical material, while trying to let the sources speak for themselves as much as possible.
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