Roman Law and Byzantine Imperial Legislation

Abstract

As observed in Chap. 1, the end of the fourth century featured a virtual split of the Roman Empire into two states (even though contemporaries did not regard this as a formal division). After a long period marked by economic and cultural decay, foreign invasions and internal strife, the Western Empire finally collapsed in ad 476 when the last emperor of the West was overthrown by his German mercenaries. The loss of the western provinces transferred the centre of gravity in the empire from the Latin to the Greek element and accelerated the transformation of the Eastern Empire into the medieval Byzantine Empire. Byzantium inherited from Rome a great deal of her political, social and cultural institutions: Roman law remained in force as a living system and the concept of imperium Romanum (now in the form of imperium Christianum) furnished the basis of all Byzantine political theory. Though the elements of continuity between the Byzantine world and the world of antiquity are clear and undeniable, so too are the differences. Byzantine civilization was a new cultural synthesis based on the classical traditions of antiquity infused with important new elements introduced by the upheavals of the later imperial era and by the rise of Christianity. Justinian surpassed other rulers as he proactively established the finished forms and set the tone of the Byzantine society. The distinctive features of the emerging Byzantine culture are clearly manifest in his political, religious and artistic programs. Although his legislation displays classical leanings, it also naturally shows traces of Greek and Eastern influences.

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6.1 The Historical Context of Byzantine Law

As observed in Chap. 1, the end of the fourth century featured a virtual split of the Roman Empire into two states (even though contemporaries did not regard this as a formal division). After a long period marked by economic and cultural decay, foreign invasions and internal strife, the Western Empire finally collapsed in ad 476 when the last emperor of the West was overthrown by his German mercenaries. The loss of the western provinces transferred the centre of gravity in the empire from the Latin to the Greek element and accelerated the transformation of the Eastern Empire into the medieval Byzantine Empire. Byzantium inherited from Rome a great deal of her political, social and cultural institutions. Roman law remained in force as a living system and the concept of imperium Romanum (now in the form of imperium Christianum) furnished the basis of all Byzantine political theory. Though the elements of continuity between the Byzantine world and the world of antiquity are clear and undeniable, so too are the differences. Byzantine civilization was a new cultural synthesis based on the classical traditions of antiquity infused with important new elements introduced by the upheavals of the later imperial era and by the rise of Christianity. Justinian surpassed other rulers as he proactively established the finished forms and set the tone of the Byzantine society. The distinctive features of the emerging Byzantine culture are clearly manifest in his political, religious and artistic programs. Although his legislation displays classical leanings, it also naturally shows traces of Greek and Eastern influences.

As already noted, Justinian executed his schemes to reconquer the provinces lost to invaders. His reconquest of the West was a fleeting achievement that shattered the empire economically and militarily, contributing further to the weakness arising from sectarian and cultural diversity. After his death, the empire quickly lost its briefly regained strength and the very existence of the Byzantine state was threatened by internal disruptions, economic decay and foreign invasions. As the empire’s defences crumbled, the Visigoths regained control of Spain and another Germanic tribe, the Lombards, invaded Italy from the North conquering most of the peninsula. At the same time, Persian armies advanced through the eastern provinces while the Slavs and Avars besieged the Balkans. In 627, the capable Emperor Heraclius launched a campaign that finally succeeded in stemming the Persian tide and expelling the Slavic assaults. The Moslem conquests then ensued around 630 that entailed the Arab capture of Egypt, Syria and a large part of Asia Minor. But as the imperial boundaries receded, retrenchment produced a comparative strengthening of the state and the Byzantine Empire acquired the homogeneity that the policies of Justinian had failed to produce. This occurred due to the new borders corresponding more closely with ethnic and religious lines, as the inhabitants of the empire were now largely Greek-speaking and Orthodox Christian. During these years, the empire fully entered its Byzantine period embracing the Greek language and displaying a deep orientalisation with Christianity engrained in its thought and ethos.

The Arab threat was held in check and the empire entered a period of recovery in the early eighth century during the reign of Leo III the Isaurian (717–740). Leo strengthened imperial authority, reorganized the government and the law, and introduced measures aimed at stimulating commerce and industry. However, the considerable benefits the empire derived from his rule were to some extent negated by the great iconoclastic controversy—the quarrel over the admissibility of images in religious art—that he initiated and had consumed Byzantine society for more than a century. The recovery from the crisis of the seventh century and the resultant consolidation in the eighth century produced a strengthened empire that attained new heights during the Macedonian dynasty (867–1057). During this period, the internal organization of the Byzantine state was strong enough for the emperors to embark upon a program of territorial expansion. By the early eleventh century, the empire had been cleared of foreign enemies and its boundaries stretched from the Danube to Crete and from Southern Italy to Syria. The peace and prosperity that followed served as a powerful stimulus to art, literature and educational activity in the capital and the provinces.

However, both the Macedonian dynasty and the ensuing prosperity disappeared within merely half a century after the death of Basil II (976–1025), the last great Macedonian emperor. The cause of the decline was a remarkable confluence of internal ills that exhausted the body of the empire as it endured external attacks from powerful new foes (such as the Seljuk Turks and the Normans). Probably the most virulent of these illnesses was the strife between the military establishment and the imperial bureaucracy. The successes of the Byzantine military machine in the tenth and eleventh centuries bred a great arrogance in the military class and an ambition to overthrow the hegemony of the bureaucrats within the government. Basil II restrained these ambitions through military action and persecution¹; but he was succeeded by weak rulers who were unable to control the army, and the prolonged struggle between the generals and civil officials undermined the empire’s strength at a critical period. At the same time, a growing economic crisis provoked by a decline in state revenues (largely due to the abandonment of arable land in the provinces) compounded the empire’s difficulties. In spite of a limited recovery under Alexius I Comnenus (1081–1118), the ills of Byzantium so weakened the empire that its disintegration was virtually inevitable at the end of the twelfth century and thereupon Constantinople fell to the forces of the Fourth Crusade in 1204. Although the capital was recaptured by the Byzantines and the empire was restored about half a century later (1261), the political splintering of the Byzantine world prompted by the Latin conquest hastened the final collapse.

The fourteenth and fifteenth centuries featured the reign of the Palaeologan emperors (1261–1453) and an empire ravaged by dynastic competition, social struggles and religious strife. These adverse events played into the hands of the Ottoman Turks who pursued the expansion of their territory. In spite of the civil wars and military disasters, the Palaeologan period witnessed a last great flowering of literary and artistic activity accompanied by a revival of interest in classical studies. The end of this phase transpired in the spring of 1453. After a heroic but hopeless defence, Constantinople was captured by the Ottoman Turks who had already overrun most of the empire’s narrow footholds in the Balkans and Asia Minor. During this period, a large number of Byzantine scholars migrated to Western Europe (especially to Italy) conveying important records of the Greco-Roman inheritance in art, philosophy, literature and law. A great deal of the classical knowledge preserved by Byzantium was thus transmitted to the West and it imparted a fresh impetus to the progress of the so-called Italian Renaissance.

6.2 Sources of Byzantine Law

It is important to note at the outset that the Byzantines did not recognize a separation between Church and state and, consequently, there was no strict distinction between secular and ecclesiastical legislative authority and jurisdiction. According to Byzantine legal theory, secular and canon law constituted in essence a single legal order: the canons of the Church were received and incorporated into the law of the state; at the same time, the Church gave imperial legislation a ‘canonical character’ not only by adjusting its own law to the law of the state but also by receiving ecclesiastical law created by imperial authority as its own or by resorting to such law in order to regulate its own affairs. After all, the emperor was the only officially recognized ‘universal’ legislative authority, even for matters of the Church, after the end of the period of the Ecumenical Councils in the East.

The nucleus of Church law was formed by the decisions (kanones) promulgated at Church councils, which have been preserved in a great variety of collections.² A special type of work are the so-called nomocanons (nomokanones), a term alluding to the fact that Church and state were inextricably bound up with one another. The emperor could intervene in the affairs of the Church and vice versa, with the result that both Church and state might have issued legislation on a particular problem, so that both kanones and statutes were relevant. From the end of the seventh century the role of the kanon in the development of canon law was taken over by the decisions of the patriarch of Constantinople and the authoritative commentary on the existing body of canon law. Although canon legislation did not restrict itself to purely ecclesiastical matters, and the Church courts increasingly concerned themselves with issues of civil law, civil legislation covered a much broader field. In the following paragraphs the emphasis will therefore be on the sources of civil law and in particular the enactments of the emperors, the chief source of law during the Byzantine era.

Until the twelfth century Byzantine imperial legislation was similar in form to the imperial legislation of the Justinianic period³ and enactments of a general character (leges generales) in the form of Novels (novellae constitutiones or nearai diataxeis) continued to be issued after the manner of the edicts of the Roman emperors.⁴ A general law was preceded by a preamble (praefatio), in which reference was made to the position of the emperor as God’s representative on earth, supreme lawgiver and protector of his people; this was followed by the description of the situation which the law aimed to rectify (narratio), the main text of the law (dispositio), and the conclusion; the latter contained the penalties (sanctiones) which the violation of the law entailed and prescribed the scope of the law and the manner of its publication. Similar to the earlier mandata were the diatyposes, internal directions given by the emperor to officials in his service (especially to provincial authorities). The earlier rescripta were replaced by the lyses, answers given by the emperors to inquiries of officials on matters of administrative law, and the semeioses, responses of the emperors to petitions concerning matters of civil or ecclesiastical law. From the twelfth century the term chrysovoullos logos was used to denote an imperial enactment of a general character, whilst the lyses and the semeioses were superseded by the prostagmata or horismoi.⁵ The majority of the imperial laws were concerned with public administration and matters of socio-economic policy. Moreover, a number of laws were enacted which introduced innovations in the fields of criminal and family law. In general, Byzantine imperial legislation was ‘humanitarian’ in character, aiming to protect those whom it considered weak against those whom it considered strong,⁶ and greatly influenced by Christian ethical principles. At the same time it continued the move away from formalism, although this move was accompanied by a decline in technique.

During the Byzantine era custom continued to play a part as a secondary source of law. Despite the general reluctance of Justinian and subsequent emperors to recognise the validity of customary law, numerous customary norms found their way into various imperial enactments and official compilations of the law. Some of these norms had their origin in Greek and Hellenistic institutions of much earlier ages; others were formed in later years, especially after the twelfth century, and reflect the influence of trade practices introduced into Byzantium by the Venetians and other western powers.

6.2.1 Legal Development from the End of Justinian’s Reign to the Accession of Basil I the Macedonian

In the years following the publication of Justinian’s law books, Byzantine legal science flourished. This notably occurred at the two outstanding places of legal learning, the law schools of Constantinople and Beirut (Justinian allowed only these two schools and the law school of Rome to resume under his new program of legal education). As previously observed, Justinian proclaimed that the right to interpret the law pertained only to the emperor⁷ and thus he forbade all commentary on his legislation under the threat of punishment. He had only endorsed the composition of summaries of contents (indices) and literal (kata podas) translations of the Latin texts into Greek. As Justinian declared, the purpose of this prohibition was to protect his legislation from the uncertainty that could arise from disputes as to the meaning of the legal norms it contained.⁸ But this prohibition soon fell into abeyance and manuscripts began to circulate containing summaries, commentaries and interpretations of Justinian’s texts as well as treatises on individual topics. Most of these works were composed by jurists who taught at the law schools in the East. The most distinguished of these law professors (antecessores) embraced Theophilus from the school of Constantinople, and Dorotheus and Anatolius from the school of Beirut. Other notable jurists of the same period were Thalelaeus, Cobidas, Stephanus and Iulianus. Theophilus produced a Greek paraphrase of Justinian’s Institutes based on an earlier version of Gaius’s Institutes that differed to some extent from that used by Justinian’s drafters. Theophilus’s paraphrase played an important part in the development of Byzantine law and was the first work on Roman law in Greek that was published in Western Europe (1533).⁹ We have obtained this work through various manuscripts accompanied by the comments of other contemporary jurists. Fragments of other juristic works of the same period have survived in the form of commentaries incorporated in later Byzantine compilations. These include a commentary on the Digest by Stephanus, a professor from the law school of Beirut; an extensive interpretation of the Code by Thalelaeus, who also taught at the Beirut school; a translation of the Code and accompanying commentary by Anatolius; and an abridgment of the same work by Stephanus. Abridgments of Justinian’s Novels were produced by Iulianus, a professor at the law school of Constantinople, and other jurists. In the course of time, the works of the Byzantine scholars largely replaced the original texts of Justinian’s codification (whose Latin language made their use very difficult in the Greek-speaking East). Byzantine compilers and commentators in later eras relied upon these works as the chief sources of legal materials.

In the early post-Justinianic period, Byzantine jurisprudence entered a period of decay accompanied by a sharp fall in the standards of legal education. The precise length of time the law schools of Constantinople and Beirut remained open is not known, but it appears that they had probably closed by the end of the sixth century. As the law schools fell into decline, the teaching of law was assumed by teachers of a new kind who were members of professional associations of advocates. Unlike the earlier antecessores dedicated to the theoretical study of the Justinianic codification, these new teachers (known as scholastics) were primarily concerned with the legal practice of their own day and its needs. Their teaching was based chiefly on Greek translations of the Institutes and on summaries of the Novels (the part of Justinian’s legislative work most relevant to current legal practice), whilst very little attention was paid to the Code and the Digest. A tendency towards simplification and the clarification of all legal subtleties is visible in the surviving works of this period. These include two abridgments of the Novels by Athanasius and Theodorus of Hermopolis, a summary of the Digest by an unknown author (designated in later Byzantine sources as Enantiophanes)¹⁰ and three monographs on special subjects.¹¹ Theodorus of Hermopolis also produced a summary of Justinian’s Code that is revealed from several quotations included in later compilations of law (esp. the Basilica).

Of the imperial legislation enacted in the period under consideration only a very small number of novels promulgated by Justin II (565–578), Tiberius II (578–582) and Heraclius (610–641) have been preserved. They are concerned, for the most part, with matters of public, ecclesiastical and private law (especially the law of marriage). The legislation of Tiberius reflects an attempt on the part of the government to curb the excesses of the powerful and improve the economic situation of the small landholders and free labourers. The four novels that have come down to us from Heraclius’s reign (dated from the years 612, 617, 619 and 629) deal with matters relating to the organization of the Eastern Church, including the privilegium fori. These enactments are the last manifestations of lawgiving in the Justinianic tradition, but, in comparison with Justinian’s work, can hardly be regarded as being of far-reaching significance; rather, they represent an interference on the part of the emperor in matters that had been brought to his attention. This is unsurprising in light of the situation the empire found itself in during this period: the wars against the Avars, Persians and Arabs all took a heavy toll and, by the end of Heraclius’s reign many eastern provinces had been lost. Although the turmoil the empire was facing is not the only reason why legislation faded into the background, it is clear that the crisis and struggle for survival demanded different priorities.

By the middle of the seventh century, the production of legal works had ceased. Moreover, the disruption of official communications between the capital and the provinces by war undermined the government’s ability to ensure the uniform application of the law throughout the empire. As a result, local custom began to play a prominent role as a source of social regulation. The situation was exacerbated further by the fact that Justinian’s legislation was written in a language that was foreign in the empire and embodied concepts that both the people and those involved in the administration of justice found difficult to understand. Under these conditions, lawyers and imperial officials found it increasingly difficult to discover the exact state of the law. This prompted the urgent need to introduce a new legislative work that would adapt the Roman law of Justinian to usages actually observed by the inhabitants of the empire and clarify the applicable law in a simple and systematic way. These were the objectives of the compilers of the Ecloga Legum, the new legal code enacted in the first half of the eighth century. The enactment of this code attests to the fact that, despite the decline of legal education and scarcity of legal literature, the ideological force of Roman law as a symbol of the state remained unaffected.¹²

The Ecloga Legum (Selection of Laws) was published in 741 under the authority of Emperor Leo III the Isaurian (717–741) and his son and co-Emperor Constantine V (741–775). A three-member commission headed by the quaestor Nicetas prepared this material. Written in Greek, the work consists of a preface and 18 titles that address the law of marriage, succession, tutelage, contracts and crimes. The preamble declares that the work is based on a selection of laws derived from the Institutes, the Digest, the Code and the Novels of Justinian that were modified, in accordance with Christian ideas, in the direction of greater humanity.¹³ As this suggests, the purpose of the Ecloga was not to replace the codification of Justinian but to render the embodied law more comprehensible in terms of language and spirit for those involved in the administration of justice (especially in the provinces where the texts of Justinian were hard to find). However, its drafters apparently did not rely on the original texts of the Justinianic codification but on the Greek translations, abridgments and commentaries that had meanwhile replaced Justinian’s original texts. Moreover, the Ecloga incorporated several legislative enactments issued by emperors of the post-Justinianic era and introduced important innovations reflecting Greek and other eastern influences.¹⁴ In general, the work is characterized by its simplicity and by the special emphasis it attaches to Christian and humanitarian principles. In criminal law the influence of these principles is reflected in the restrictions imposed on the application of the death penalty.¹⁵ Furthermore, the new code introduced more precision and a degree of individualization in the application of punishment, and put some limits to the inequality before the law.¹⁶ It appears that the Ecloga was significantly influenced by the canons of the Council in Trullo or Quinisext Council of 691,¹⁷ especially in the area of the law of marriage.¹⁸ However, as the work fell short of addressing all the practical needs of legal life, attempts were made to fill the gaps in the legislation primarily through resort to Justinian’s corpus. In this way, a private manual closely connected with the Ecloga was produced, which is now known as appendix Eclogae, since it is usually found in the same manuscripts with the Ecloga.¹⁹

During the age of the Isaurian emperors, there also emerged three unofficial compilations dealing with special branches of the law: the Military Code, the Rural or Farmers’ Code and the Rhodian Maritime Code. The Military Code consists largely of penal provisions aimed at securing discipline in the army. The Rural Code is believed to have originated in the provinces and was probably based on the legislation of Justinian and other early sources. It contains provisions of a punitive character intended to protect small farmers and tenants against exploitation. In the seventh century, the concentration of land in the hands of a few feudal lords entailed the gradual disintegration of small-scale land ownership and deterioration in the living conditions of the rural population. One of the objectives of the Isaurian emperors was to curb the power of the great landlords and to reorganize the rural economy to the advantage of peasant communities. The Rhodian Maritime Code embodies the rules of the customary law of the sea that applied in the East between the sixth and eighth centuries. This compilation was widely used throughout the Mediterranean during the Middle Ages and furnished the basis for the further development of the law governing maritime trade.²⁰

The seventh century is marked by an important development: the growth of canon law and ecclesiastical jurisdiction at the expense of their secular counterparts. This appears to have been a natural outcome of the conditions of the times. The crisis of the empire hindered the regular activity of the secular judicial authorities especially in the provinces, where the pressure of external enemies was most acutely felt. Bishops and other ecclesiastical authorities must have been under pressure too, but their activities were less directly connected with the Byzantine political and military administration and were supported by orthodox belief. Under these circumstances, it is unsurprising that formal and informal ecclesiastical jurisdiction increasingly took over the role of the secular courts—a development that enhanced the prestige of the Church and its formal or informal law-making functions. One might say that canon law to some extent filled the void left by secular law. At the same time, it formed an integral element of the normative basis of Byzantine society and an important point of orientation for its future development.

6.2.2 Legal Development Under the Macedonian Dynasty

The accession to the throne of Basil I the Macedonian (867–886) marks the beginning of the most creative period in the history of Byzantine law since Justinian’s reign. The legislation of this period is characterized by a renewed emphasis on the Justinianic codification as the basis of the Byzantine legal system. The return to the Roman law of Justinian was connected with the general revival of interest in the classical tradition. It also reflects the imperial desire to strengthen the image of the Byzantine state as a direct heir of the ancient imperium Romanum. A chief objective of the legislative program initiated by the Macedonian emperors was to restore the substance of Justinianic Roman law. To this end, many of the changes to the law initiated by the Isaurian legislation were removed and the precedence of written law over custom was re-established.²¹ At the same time, plans to update the legal system were executed by eliminating matters that had become obsolete.

The first in a series of legislative works aimed at the general revision of the law was the Eisagoge (previously known as Epanagoge), prepared under the authority of Basil I and his sons Leo and Alexander around 885.²² It contained a selection of laws drawn from the Greek translations of Justinian’s codification and consisted of 40 titles and a preamble.²³ In the preamble, the Ecloga of the Isaurians was contemptuously discredited and abrogated as far as necessary (although the criminal law of the Ecloga was generally retained).²⁴ An interesting feature of the Eisagoge is that it introduced a system of norms governing relations between Church and state that was markedly different from the one that had existed earlier. According to the approach that had prevailed since the time of Constantine the Great, Church and state were not two separate authorities but rather two aspects of the one and indivisible concept of Christendom. The Eisagoge departed from this approach by lending support to the theory of the ‘two authorities’, which regarded the emperor and the patriarch as equally powerful bearers of the two highest positions within the state.²⁵ A revised edition of the Eisagoge, known as Procheiros Nomos or Procheiron, was published in the early tenth century by Emperor Leo VI the Wise (886–912). It comprised extracts from Greek translations and abridgments of Justinian’s legislation, fragments from the Ecloga and enactments of the Macedonian emperors amending and complementing the law. As in the Eisagoge, the materials are divided into 40 titles preceded by a preamble. However, the drafters of the Procheiron omitted all the titles of the Eisagoge containing provisions on the foundation of the political-ecclesiastical organization, possibly with the purpose of striking out the above-mentioned theory of the ‘two authorities’.²⁶ Both the Procheiron and the Eisagoge appear to have been given the force of law.

As announced in its preamble, the Eisagoge was designed to serve as an introduction to a new, all-embracing code of law that was originally referred to as ‘Revision of the Ancient Laws’ (Repurgatio veterum legum). Work on this project commenced under Emperor Basil I and was completed in the early tenth century during the reign of his son Leo VI the Wise. The original title of the new law book appears to have been Basilica nomima (Imperial law), but in later years (from the eleventh century) it was designated Basilica. As stated in the preamble, the aim of this work was to collect, update and harmonize the laws contained in the codification of Justinian. It combines into one body of work the materials from the Code, Digest, Institutes and Novels. Although the sequence of the titles is a little different from that in Justinian’s books, the contents are largely the same. The vast majority of the extracts were not drawn from the original Latin text of Justinian’s codification but from Greek translations and abridgments of jurists from later eras.²⁷ The Basilica also incorporated the Rhodian Maritime Code mentioned earlier. The materials are arranged into 60 books divided into titles, paragraphs and themes. The whole work is comprised of six volumes.²⁸ The Basilica was not intended to replace the codification of Justinian, which retained an unquestioned validity as the ultimate source of law. It aspired to only adapt Justinian’s codification to contemporary conditions and needs. However, despite the claim of repurgatio (or anakatharsis), which suggests an overhaul in order to bring the law up to date, many of the provisions included in the work had hardly any practical importance, and insofar as a certain amount of Justinianic material was ‘purged’, this was mainly done by omitting rather than replacing the earlier provisions with more recent legislation. Indeed, imperial legislation after the time of Justinian was not included. The number of instances in which we find a contemporary interpolation after the fashion of Justinian’s interventions in earlier material is negligible as compared to what might reasonably have been expected if a true ‘modernization’ of the law had been intended. Only about two-thirds of the Basilica have survived throughout the eras in various manuscripts. Our knowledge on the contents of the missing parts derives from later works, such as the Tipoukeitos published in the late eleventh century as a legal repertory.²⁹

In the years preceding the publication of the Basilica, Leo VI issued a number of new laws (novellae constitutiones) from which 113 were collected and preserved together with four individual enactments.³⁰ About one-third of these novels are concerned with ecclesiastical matters, modifying provisions of the civil legislation (for the most part that of Justinian) with a view to adapting them to requirements of canon law. This adaptation was accomplished through an alteration of old laws as well as through the introduction of entirely new rules. Some of Leo’s novels were aimed at removing apparent contradictions between the written law and established customary norms. Also originating from the closing years of Leo’s reign is the Eparchiakon Biblion, an official compilation of rules governing the operation of the various associations of businessmen, tradesmen and craftsmen of Constantinople (corpora). One of the most interesting documents that has come down to us from Leo’s reign is the Kleterologion of Philotheos, a list of the senior military and civil offices of the state, which attests to the growing sophistication of the central and provincial administration during this period.

Among the general laws enacted in the period following the death of Leo VI, reference may be made to two novels issued by Emperor Constantine VII (913–959) dealing with murderers. The first of these novels provides asylum even to persons who committed premeditated murder if they would come forth for confession before their crime is discovered. The second novel then compels the same offenders to become monks. Two other novels by the same emperor deal with matters of intestate succession, providing that one third of the property left behind should be surrendered to the Church for the salvation of the deceased’s soul. A number of laws issued during the reigns of Romanos I Lekapenos, Constantine VII, Nikephoros II Phokas, Basil II and Isaac I Comnenus reflect an attempt on the part of the government to protect small-land ownership from the pressures of the powerful landowners. Some of the novels enacted in the second half of the eleventh century by Isaac I, Constantine X Doukas and Nikephoros III Botaneiates were concerned with marriage law, while others aimed at regulating internal matters of the Church, mainly of an administrative nature. Many laws enacted by emperors of the Comnenoi dynasty dealt with the administration of the Church, financial and taxation matters, the judging of disputes and issues concerning marriage.³¹

Besides the official collections of law, there existed several private works (generally legal abridgments or epitomes) composed by jurists for practical use or instructional purposes. Probably the most notable amongst these are two works known as Epitome Legum (created in 913 during the reign of Constantine VII Porphyrogenitus) and Synopsis Basilicorum Maior (late tenth century). The Epitome contains materials drawn from the codification of Justinian, the Basilica and the Procheiron, as well as several constitutions of Leo VI. The Synopsis Basilicorum Maior is a collection of brief abstracts from the Basilica arranged in alphabetical order (most of the manuscript copies of this work are accompanied by an appendix containing materials from imperial laws of the tenth and later centuries and other sources). Based on the Synopsis Maior and another work (Opusculum de iure or Ponima Nomikon) written in c. 1072 by the jurist and historian Michael Attaliates, a smaller abridgment of the Basilica was composed about the middle of the thirteenth century (Synopsis Basilicorum Minor). Three other works can also be mentioned in this connection: the Experientia Romani or Peira (c. 1050), a collection arranged into 75 titles containing juristic decisions drawn largely from the writings of Eustathius Romanus, a judge at Constantinople³²; the Tipoukeitos, a repertory on the Basilica composed by a judge named Patzes in the late eleventh century; and the Synopsis Legum (c. 1070), a collection of laws from the codification of Justinian and the Basilica prepared by the jurist and philosopher Michael Psellus and dedicated to his pupil, the Emperor Michael VII Ducas.

The revival of literary activity in the post-Macedonian period was facilitated by the establishment of a new law school at Constantinople around 1045 by Emperor Constantine IX Monomachus (1042–1055).³³ The bureaucratization of the imperial administration in the eleventh century increased the government’s need for well-educated officials. Partly in response to this need and partly due to the inadequacy of the current system of legal education (advocates had to teach themselves or learn from private tutors), Constantine founded a school of law and stipulated the conditions governing the work of the professors and students.³⁴ The constitution of the school specifically declared that no person could practice law until he had finished the prescribed courses and received testimony from the professors as to his competence.³⁵ Admission to the school was open to capacity and students did not have to pay fees. The emperor appointed and paid the professors (magistri) as well as the head of the school. The latter held the office of nomophylax that was regarded as one of the highest offices of the state and its holders were admitted to the senate.³⁶ Until the end of the eleventh century, the teaching of law was based directly on the texts of the Justinianic codification with a step-by-step study and clarification of the contents. In the twelfth century, however, the Justinianic codification appears to have been superseded in the study of law by various abridgments and commentaries. The law school of Constantinople probably remained open until the capture of the city by the Latins in 1204.

6.2.3 Legal Development in the Late Byzantine Age

In the thirteenth century, legal culture in the East encountered a sharp downward trend precipitated by the confusion ensuing from the political disintegration of the Byzantine world after the Latin conquest of Constantinople. After the recapture of Constantinople by the Byzantines in 1261, the emperors of the Palaeologan dynasty set themselves the task of reorganizing the administration of justice with an emphasis on reforming the court system.³⁷ However, no serious effort was directed towards improving the quality of legal education that existed at a low ebb after the dissolution of the law school of Constantinople—legal instruction was presented mainly by practitioners in private and was haphazard, unsystematic and based on fragmentary legal sources. The lawyers of this period paid little attention to the codification of Justinian (whose texts were extremely difficult to locate) and instead utilized contemporary Greek summaries and adaptations.³⁸ The most notable amongst these materials was the Hexabiblos, a manual of the entire law in six books that was compiled around 1345 by Constantine Harmenopoulos, a judge at Thessalonica, and designed for the use of judges and court officials. It contains materials drawn from the Procheiron, the Basilica, the Peira and other sources that are all arranged into titles and paragraphs. Private law is addressed in Books 1–5 and divided into five parts: general principles, law of property, law of obligations, family law and law of succession whilst Book 6 is concerned with criminal law. The text is accompanied by a large number of annotations that were mainly created by Harmenopoulos.³⁹ After the fall of Byzantium, the Hexabiblos was still utilized throughout the Ottoman period (with prominence in the ecclesiastical courts) and it contributed significantly to the preservation of the Roman law tradition in the Balkans.⁴⁰

During the later Byzantine epoch, the Church played an increasingly important part in the administration of justice. We observed earlier that since the fourth century the ecclesiastical courts had rights of jurisdiction in cases involving clerics and in civil disputes submitted by the relevant parties. By the end of the twelfth century, the competence of these courts had been extended to a variety of civil cases so that it encompassed all matrimonial cases and cases concerning charitable bequests. The tendency towards widening the jurisdiction of the Church courts accelerated considerably after the interlude of the Latin conquest (1204–1261).⁴¹ As the ecclesiastical law became closely allied with the civil law, the distinction between civil and ecclesiastical jurisdictions was evermore blurred. This development is related to the general weakening of the Byzantine state prompted by the political disintegration of the empire in the thirteenth century, and the parallel enlargement of Church’s role in civil administration (the emperors now increasingly relied upon the Church organization in their effort to maintain imperial unity). As the importance of canon law increased during this period, there appeared alongside the various condensations of Roman law several compilations that combined both canon and civil law, known as nomocanons (or Syntagmata).⁴² Works of this kind were produced by Theodorus Bestos (eleventh century); Theodorus Balsamon (twelfth century)⁴³; John Zonaras (twelfth century)⁴⁴; Alexios Aristenos (twelfth century)⁴⁵; Mathaeus Blastares (fourteenth century)⁴⁶; Constantine Harmenopoulos (fourteenth century)⁴⁷ and other jurists. Throughout the Ottoman period, these materials were still produced and utilized by the ecclesiastical courts. They also significantly contributed to the preservation of the Greco-Roman legal tradition in countries formerly within the orbit of Byzantine civilization.

6.3 The Influence of Byzantine Law

Byzantine law, whether transplanted in its original form or adjusted to local conditions, exercised a strong influence in the Christian East, especially on those peoples who had inherited from Byzantium their political, ecclesiastical and social structure. Thus, Byzantine law, derived largely from the Ecloga, was introduced in the Slavic world through the legislative work of the missionaries Methodius and Cyril and through the ninth century Zakon Sudnyj Ljudem (‘Law for Judging the People’), a Bulgarian law book corresponding closely to the above-mentioned Byzantine code. Particularly influential in the Balkans was the Procheiron, which was translated into Slavic in Bulgaria in the eleventh century. In Serbia the reception of Byzantine law commenced with the so-called ‘Nomocanon of St. Sava’ (early thirteenth century), a compilation of ecclesiastical law containing also the entire Procheiron.⁴⁸ The reception culminated with the codification of Tsar Stefan Dusan (1349), the greatest work of the Serbian legal tradition. This work was largely an abridgment of the Syntagma, a compendium of Byzantine law composed by Mathaeus Blastares in 1335. The Russian canon law code (Kormčaja kniga) contains materials from a variety of both canonical and secular Byzantine sources, including the Ecloga, the Procheiron and the above-mentioned Zakon Sudnyj Ljudem. Reference may also be made here to the island of Cyprus where Byzantine law was widely applied both during the period of the Latin kingdom (1192–1489) and during the rule of Venice (1489–1571), particularly by means of the so-called Constitutio Cypria or Bulla Cypria of Pope Alexander IV.

After the fall of the Byzantine Empire in the fifteenth century, Byzantine law remained the law of the orthodox Christians within the Ottoman Empire, which were under the spiritual and political leadership of the patriarchate of Constantinople. In exercising their administrative and judicial functions, the patriarchate and the ecclesiastic authorities under it applied Byzantine law derived from various manuscript sources in their original form or in the form of abridgments and collections composed by the patriarchate for official or unofficial use and, in later times, from printed works produced in the West (such as the Ius Graeco-romanum of Leunclavius and the Synodikon of Beveregius).⁴⁹ Of much wider use were the various nomocanons of the Ottoman period, which mostly drew, directly or indirectly, on the last two systematic manuals of Byzantine law: the Hexabiblos of Harmenopoulos and the Syntagma of Blastares.⁵⁰ Even outside the Ottoman Empire, in countries tracing their cultural origins to Byzantium, the Hexabiblos was often used to address gaps in the law, being regarded as the law that was ‘naturally’ in force when no other rule could be found. In Russian Bessarabia this work was officially recognized as the local civil code in the early half of the nineteenth century and remained in force even after the annexation of Bessarabia to Romania (1918) until Romanian legislation was extended to this region. A Serbian translation of the Hexabiblos was also produced for use by the Serb population of the archdiocese of Karlowitz under Austrian rule, as their own native law. In Greece, the Hexabiblos was recognized as an official source of law after its liberation in the early nineteenth century and remained in force until a modern civil code was enacted in 1946.

Byzantine legal science and its products in the fields of both secular and canon law were regarded by humanist jurists in the West as integral parts of the Roman legal inheritance and as important sources for its reconstruction. It is thus unsurprising that the editions of the Corpus Iuris Civilis from the sixteenth to the nineteenth century included Novels of Byzantine emperors (especially those of Leo VI). It was only with the fragmentation of historical studies and the subsequent adjustment of Roman law to local legal traditions, especially in Germany after the period of the Reception, that Byzantine law would be marginalized and confined to the fringes of Roman law. The general disregard for Byzantium in the Age of the Enlightenment precipitated this outcome. However, since the mid-nineteenth century there has been a renewed interest in the study of Byzantine law as a distinct branch of legal history, even though still outside the general history of Roman law.