3. The Antecessores: Teaching the FirstGeneration of Byzantine Lawyers

Understanding and applying the new codification must have been a linguistic challenge, at least for aspiring law students, the vast majority of them Greek-speaking.

Teaching took the form of two courses: in the first, by way of introducing the law, professors (antecessores) gave a paraphrasing Greek translation or adaptation of the Latin text; in the second, on the basis of the original Latin text, they gave a legal explanation of that text, again in Greek. The first course was called index, the second one paragraphai;⁷ the original Latin text was called to rheton.

Teaching of the imperial constitutions codified in the Code and subsequently augmented by the Novels employed a special aid in addition to the two already mentioned. Given language rather more complicated than one finds in the Institutes and Digest, recourse was had to word-for- word (katapoda(s), ‘on the heels’) translations, which were written above the words of the original. This produced a series of words rather than a syntactically coherent text; and when these ‘translations’ were detached from their source and perhaps rewritten, their syntax continued to betray their origin. A large number of examples in Greek can be found in the scholia on the Basilica (see Section 4), but to Romanists another example is more familiar: the Authenticum. It started life as a Latin kata- poda translation of the Greek Novels for Latin-speaking students and circulated in the Latin west independently of the (literally) underlying text.

It is this process of appropriation and especially teaching that gen­erated the humus from which Byzantine law grew. Justinian’s legislation was being translated, summarized, and interpreted in a language that precluded circulation of the results in the Latin-speaking west, just as the Authenticum and the Epitome Iuliani, though Byzantine by origin, were a basis for developments in which the Byzantine east did not take part. In Byzantium, the Greek representations in loco parentis took the place of their Justinianic originals and were understood and applied in an environ­ment entirely different from eleventh-century northern Italy. It is hardly surprising that the result was different too, but it was definitely Roman law. Indeed, it is more surprising that it remained so ‘Roman’. The explanation for the latter phenomenon is partly to be found in the history of the normative sources.

This is not the place to go into detail about the succession of the various longer and shorter compilations of Byzantine law, of which there are several historical accounts; all of them begin in late antiquity and include the Justinianic era. The fullest are by van der Wal and Lokin in French and, most recently, by Troianos in Greek.⁹ Both incorporate canon law. The present author has contributed a summary of ‘legal literature’, secular as well as ecclesiastical,¹⁰ and Pieler has written an extensive treatment of secular Byzantine legal writing considered as liter­ature.¹¹ The addition of the word ‘literature’ indicates the nature of these last two works, but also applies to the first two: they all deal with normative sources and ‘learned’ legal writing but do not pay systematic attention to documentary sources stemming from legal practice. ‘Sources’ is understood largely to refer to normative sources, a perfectly legitimate choice, the more so since for most of Byzantium’s history documentary sources are relatively scarce.

It is the history of the normative sources, then, that raises the question of continuity and change of Roman law in Byzantium.

4.