THE VALIDITY OF THE LAWS
The law went into effect when it was given, although the administration and population in any given place were required to fulfill it after it had been received and promulgated in that place.
Its “permanence”— the continuity of its validity even beyond the reign of the emperor who initially legislated it—was stressed in the texts of many laws.11 In 321, Constantine granted a ‘perpes privilegium’ to the Jews (No. 7); in 407, Honorius proclaimed the ‘aeternitas’, i.e., the “eternity” of the law he had given (No. 38); as did Valentinian III in 425 (No. 51); Theodosius II in 438 (No. 54); and Justinian in 534, 535, and 545 (Nos. 61, 62, and 65). From this it follows that the ongoing validity of the laws given by the previous emperors was generally accepted. In a law from 404 (No. 32), Arcadius declared that all the privileges granted in the past to the patriarchs remained valid, while in another law from the same year (No. 34), Honorius repealed the prohibition on the gathering of the Sages Collection in the West, and recognized the privileges granted to the Jews by the “ancient Emperors.” In a law from 409 (No. 39), Honorius imposed upon the “Heaven-Fearers” the “laws of the ancient Emperors” and “the former laws,” while in a law from 412 (No. 40), he explicitly formulated his attitude to the old laws, as follows: “It would be most worthy of the government of our time that former privileges shall not be violated.” Similar language appeared in a law of Honorius from the year 416 (No. 43), in a law of Theodosius II from 423 (No. 48), and in one from Valentinian III from the year 425 (No. 51). In a law from 397 (No. 27), Arcadius relied upon the legislation of Constantine, Constantius, Valentinian, and Valens, while Theodosius II relied upon a “law of Constantine” in a law issued in 415 (No. 41).The unlimited validity of previous legislation did not restrict the freedom of the emperor to legislate and to nullify an old law by a new one.
This principle was inherent in the chronological sequence of the Theodosian Code, and was explicitly formulated in the instructions to its compilers. The legal status of the ‘rescripta’ was particularly problematic (Nos. 20 and 42). There are extant a number of examples of explicit nullification of various laws: ‘iussio... rescindatur’, “the order... shall be rescinded” (No. 15); ‘lege cessante’, “that law... is to be abrogated” (No. 29); ‘amonita iussione’, “with that order revoked” (No. 34). These examples may help to clarify the question of the geographical applicability of laws which were legislated within one or another of the two halves of the Roman Empire.Relatively few laws were introduced by those emperors who ruled over both halves of the Empire, whose legislation thus automatically had an all-embracing geographic validity. These included four laws of Constantine (Nos. 7-10), one law of Constantius II (No. 12), and one of Julian (No. 13). Most of the extant laws were enacted from the time of Valentinian and Valens, that is, by those emperors who ruled only one half of the Empire, whether East or West. In the inscriptions one finds no indication of this division. The opposite was the case: each law was cited in the name of all the emperors who ruled at the time, a practice which expressed the belief in the legal unity of the Empire.
When we examine the process of legislation, it becomes obvious that the laws in question were issued and promulgated only in that half of the Empire under the rule of the legislating emperor, while in the other half they were not promulgated at all. This follows from the complete consistency between the names of the legislating emperors and those of the magistrates to whom the laws were addressed: the emperors of the East, without exception, addressed themselves to the magistrates of the East, while those of the West addressed themselves consistently to the magistrates of the West.
No. 17—a Western promulgation of an Eastern law—was issued during a period that the emperor of the East also ruled, in practice, over the West. The First Novel of Theodosius II from the year 438 stated that ‘in posterum’— “in the future”—laws legislated in one half of the Empire would no longer be valid in the other half, unless they were actually published as laws in the other half. From this, it follows that until then separate legislation in either of the two halves of the Empire had been recognized as valid for the entire Empire, even in the absence of fixed, systematic arrangements for the transfer of laws between the two courts. Theoretically, these laws were valid in the entire Empire, so that a law legislated in one half of the Empire needed to be explicitly repealed in order not to be in force in the other half. This is shown by the text of No. 29, in which Honorius repealed an Eastern law (No. 27) on the grounds that it would be harmful to the territories under his rule. In this text Honorius expressed doubt as to whether the law was in fact legislated in the East. This may, of course, be a mere rhetorical device. It is possible, again, that they really were ignorant of this law in the West, although it had been introduced in the East one year earlier. The main significance of this text lies in the recognition that an Eastern law must be repealed in order to be invalid in the West, from which it follows that prior to such repeal it was in fact valid there. Another example is provided by Nos. 30 and 34. Honorius prohibited the gathering of the Sages Collection for the House of the Patriarch, but allowed it again after several years. From the language of this new permission it follows that the practice of the Sages Collection was rooted in privileges granted by “ancient” emperors, and that the prohibition was restricted to the limits of Honorius’ rule in the West (isletrum partium). Once this prohibition was nullified, the legal situation which had existed prior to the prohibition was restored.There are few cases in which the legislator explicitly cited, by name, the “ancient” legislating emperors upon whom he relied in his own legislation, but in at least one case the legislator referred to law-givers who ruled in only one half of the Empire. In No. 27 Arcadius relied upon the imperial legislation of Constantine and Constantius II, but also on Valentinian and Valens, in whose time the Empire was already divided in half. From this it follows that the Western legislation of Valentinian was recognized as valid and authoritative in the view of an Eastern emperor such as Arcadius.12