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Figures d’empire, fragments de mémoire

 | 
Stéphane Benoist
, 
Anne Daguet-Gagey
, 
Christine Hoët-van Cauwenberghe

A. Norme, expression et codification durant l'Antiquité tardive

20. The nouus codex and the codex repetitae praelectionis: Justinian and his codes*

Simon Corcoran

Résumé

La première édition du code de Justinien date de 529, modelée sur le Code Théodosien de 438 et les deux codes antérieurs de Grégorien et d’Hermogénien des années 290. Ces deux derniers ne sont pas conservés, mais en tant que compilation des constitutions impériales réunies dans le désormais nouveau style du codex, organisées par livres, avec des titres thématiques et un ordre chronologique, ils fournissent le modèle pour les codes impériaux postérieurs, même s’ils portent le nom de leurs auteurs, qui furent les héritiers des juristes d’époque classique. Le code de Justinien est fondé sur les mêmes principes, mais il subsume et dépasse les codes existants. Néanmoins, d’importants changements législatifs après 529 imposaient une seconde édition, laquelle subsiste jusqu’à nos jours et a été réalisée en 534. Même si certaines différences entre les deux codes peuvent être déduites du plus récent seulement, un seul index papyrologique (P. Oxy. 1814) nous permet une comparaison véritable pour une partie du livre I de la première édition. Ceci rend compte d’importants détails concernant les processus d’addition, suppression, substitution et déplacement de constitutions. Même si Justinien continue à légiférer après 534, il n’a jamais essayé d’intégrer de nouveaux textes dans l’ancien code, comme il l’avait fait de manière si ambitieuse dans les premières années de son règne.

Texte intégral

  • * I should like express gratitude to Stéphane Benoist for his kind invitation to take part in the se (...)
  • 1 F. Millar, «Rome, Constantinople and the Near Eastern Church under Justinian: two synods of CE 536 (...)
  • 2 For a strong statement of the view that Justinian’s military and religious policies were in fact d (...)
  • 3 For the Digest: C. Deo Auctore (530), C. Omnem (533), and C. Tanta with C. Δέδωϰεν (533). For the (...)
  • 4 C. Haec (528), C. Summa (529) and C. Cordi (534) [P. Krüger, Codex Iustinianus, editio maior, Berl (...)
  • 5 Clearly demonstrated by Justinian’s contortions in Novel 158 (544) to ensure consistency between C (...)

1The energy displayed by Justinian at the beginning of his reign in seizing the unruly mass of Roman legal texts and codifying them is quite remarkable. It is matched by his grand attempt to recover the lost provinces of the West, and indeed by his efforts to impose religious conformity and put an end to the Christological disputes which caused continual schism and threats of schism1. The success and continuing afterlife of the first of these has of course proved greater and more enduring than the others2. In examining the codification, we are fortunate, in that not only do his legal works survive substantially intact, but we also have eight lengthy imperial constitutions, which set up the codificatory projects and then promulgated their results3. These give us Justinian’s formal plans and motives. Three of these texts relate to the Justinian Code, and provide background to what may be seen as the prologue and epilogue to the phases of the codification4. The first constitution, C. Haec, addressed to the Senate, is dated to February 528, less than a year after Justinian became Augustus. This set up the commission to compile the Code and provided the instructions on how to proceed. The final result was published in April 529 by means of a second constitution, C. Summa, addressed to the praetorian prefect, Menas. As laid out in these two texts, the main points of Justinian’s plan and its execution were as follows. The two key vices of the existing system regarding the use of imperial constitutions were prolixity and obscurity, which were now to be replaced by brevity and clarity. The body of material to be edited comprised the three pre-existing codes, Gregorianus, Hermogenianus and Theodosianus, plus the novels passed by Theodosius II and subsequent emperors down to Justinian himself. The powers of editing granted to the commissioners under C. Haec (c. 2) were extensive. These allowed them to remove superfluous prefaces, suppress repetitions, add or delete or even change the wording, and to distribute the material under titles, dividing constitutions between titles or repeating sections in different titles as clarity demanded. The drive for consistency meant that the obsolete or divergent was to be discarded or emended. Therefore, although the material was to be placed in chronological order under each title, this did not mean that the later material was of greater force5. Justinian also specifically removed validity from the three earlier codes and all other imperial laws, which could no longer be invoked in court, nor their original wording tested against the Code, which was now the only legitimate source of imperial rulings. Even imperial texts quoted by jurists were superseded, although the surrounding commentaries still had force (C. Summa c. 3).

  • 6 CTh, I, 1, 5 (429); I, 1, 6 (435). The second constitution, which followed the initial collection (...)
  • 7 A. J. B. Sirks, Theodosian Code, p. 71-72.
  • 8 E.g. Frag. Vat., 42 incorporated into CJ, III, 33, 3, and Frag. Vat., 315 into CJ, III, 32, 15; cf (...)
  • 9 Frag. Vat., 283 with CJ, VIII, 54, 2. See S. Corcoran, The Empire of the Tetrarchs, rev. ed., Oxfo (...)
  • 10 CTh, I, 1, 5-6, Theod. Nov. 1, Gesta Senatus.

2This therefore was Justinian’s first step towards codification. It was 100 years since Theodosius II had set up his similar project, which itself had taken two codes from another 130 years earlier as models, namely the Gregorianus and Hermogenianus. The powers that Theodosius had granted his commissioners were not dissimilar to, but were generally less broad than, those given by Justinian6. Further, since obsolete or repealed provisions were included in the Theodosianus, the lex posterior derogat legi priori rule needed to be applied, so that chronological order and subscript dates served a practical purpose7. In contrast, therefore, Justinian’s aim was more radical, subsuming, reformulating and superseding all the earlier imperial material through one grand project to make a coherent whole. The degree of emendation in the Justinian Code is much greater than in the Theodosian, and includes even the amalgamation of separate texts or the interpolation of phrases from one constitution into another8. In extreme cases, some texts are edited to mean the opposite of what the original said9. To a considerable extent this is hardly surprising, as Justinian’s team was dealing with many texts of far greater age than had Theodosius’s team, as well as a greater range of topics. Indeed, the shape of the two older codes was in fact rather different to that of the Theodosianus, although there is much uncertainty about them, since neither is preserved, whereas the Theodosianus survives quite substantially, if not in full measure. Nor is there any explicit evidence of the earlier compilers’ intentions, whereas four key texts attest to the creation and promulgation of the Theodosian Code10. Yet first the Theodosian and then the Justinian Codes essentially derived from these earlier models and some consideration of their nature is required.

  • 11 For the most recent discussions, see M. U. Sperandio, Codex Gregorianus: origini e vicende, Naples (...)
  • 12 For what follows, see especially M. U. Sperandio, «Il codex e la divisione per tituli», dans Atti (...)

3How were the two earlier codes organized11? The Gregorianus was divided up into books and titles, the Hermogenianus into titles only. We are perhaps so familiar with this book/title division from the surviving late Roman legal texts that we often overlook a momentous paradigm shift in the organization of literary works, which took place during the course of the third century: namely the shift from roll to codex12. It seems that in the early third century references to legal works were primarily by book roll number, while «title» was used only to denote the sections of the Praetor’s Edict and not those sections of a juristic work which might deal with said title. If subdivisions of books were noted the term used seems to have been caput or kephalaion. By the late third century, the term liber (for book) had come routinely to include also codices, not just rolls. Sperandio has argued that the need to organize the constitutions in the two codes led to the adoption of titles (at least in part derived from the Praetor’s Edict) to subdivide the material, and indeed the division into books could also now become solely a matter of thematic division without any consideration of the physical constraints of rolls.

  • 13 CTh, I, 1, 5 (429).

4Of course, neither code is actually called Codex until the fifth century13, so we cannot be absolutely certain that their original format in the 290s was as codices: but the advantage of the form allows for ease of reference with running headers and indexes of titles, and the fact that references to them by title occur already in the fourth century can be taken to indicate that they were in codex form from the start. Indeed, as the first large-scale law-books in the era of the codex, they perhaps set the pattern to be followed not only by the fifth and sixth century codifications, but also for the format of earlier legal works as these came to be copied from their old rolls into the new codices.

  • 14 M. U. Sperandio, Gregorianus, p. 370-375 and 392-395; D. P. Karampoula, Nomothetikē, p. 246-251. B (...)
  • 15 Thus CG, I, 10, De Pactis (Consultatio, 9, 17) matches CJ, II, 3, De Pactis; cf. CTh, II, 9, De Pa (...)
  • 16 See especially the table in G. Scherillo, «Teodosiano, Gregoriano, Ermogeniano», dans E. Albertari (...)

5The Gregorian Code seems to have been in at least thirteen books, although most scholars tend to give it fifteen14. Indeed, this may explain why the Theodosian Code extended also to fifteen books, the ecclesiastical Book XVI being without precedent. However, the organization of Theodosian material did not follow the book layout of the Gregorian Code. That latter contained principally private rescripts covering essentially private law material, with only some criminal and very little public law. The Theodosian Code, by contrast, confines private law largely to just five of its sixteen books (II-V, VIII) and is otherwise concerned with public administration and office-holding, the functioning of the courts, finance and taxation, local government and so forth. In both the Theodosian and Justinian Codes, private law material begins at the start of Book II, while this same material was already present in Book I of the Gregorianus15. What limited evidence we have, however, does suggest that the Justinian Code not only took over Gregorian material but generally followed, although was not limited by, its order and division of titles for much of the private law material (Books II-VIII)16.

  • 17 What follows relies on D. Liebs, Hermogenians Iuris Epitomae: Zum Stand der römischen Jurisprudenz (...)
  • 18 AE, 1987, 456 and Supplementa Italica, n.s. 8, Rome, 1991, p. 200-202; A. Chastagnol, «Un nouveau (...)

6As already noted, no introductory prefaces or constitutions survive for the Gregorianus or Hermogenianus, so that we are left trying to extrapolate hopefully or even to speculate wildly. For the Hermogenian Code, we can make a number of assumptions, which are not unreasonable and are based on some, albeit thin, evidence17. First, it would be incredible if the eponymous compiler of the Code were not the same man as the contemporary jurist and author of the Iuris Epitomae known from the Digest. Further, as exemplified by the detailed examinations comparing the texts of the Epitome and the rescripts deriving from the Code as conducted by Liebs and Honoré, stylistic considerations suggest that the author was in both cases the same. Thus Hermogenian was not simply the compiler of rescripts into the Code, but the author of those same rescripts. He must, therefore, have been Diocletian’s magister libellorum. Further, epigraphic evidence reveals him to have been Diocletian’s praetorian prefect at some point during the period of the 1st Tetrarchy18.

  • 19 S. Corcoran, Tetrarchs 2, p. 25-32, 299-300.
  • 20 M. U. Sperandio, Gregorianus, p. 197-206; M. Varvaro, «Note sugli archivi imperiali nell’età del p (...)
  • 21 S. Corcoran, «The heading of Diocletian’s Prices Edict at Stratonicea», ZPE, 166, 2008, p. 295-302 (...)
  • 22 S. Corcoran, Tetrarchs 2, p. 27-28; S. Corcoran, «Emperor and citizen in the era of Constantine», (...)

7Both the specific ascription of texts to the Hermogenian Code and the general pattern of rescripts surviving from this period suggest that Hermogenian assembled the Code out of rescripts that he wrote in 293 and 294, taking them from archive versions or even his own copies, which bore the date of signing by Diocletian19. Indeed, it is possible to argue for a broad distinction between the Gregorianus deriving most of its texts from publicly posted copies, and the Hermogenianus using archival versions bearing issue dates. However, inconsistencies and uncertainties arising out of later recompilation and transmission mean that this should not be treated as invariable dogma20. There is no explicit evidence that the few surviving letters and edicts of 293-294 were ever part of Hermogenian’s code21. The period covered was apparently deliberately chosen to encompass two years in a comprehensive if not quite exhaustive manner (1 January 293 to 30 December 294). This span may represent the only two complete consular years of his period as magister. It is not clear whether the selection of rescripts was made retrospectively or if they were written with inclusion in the Code in mind. Their length and clarity may suggest that his audience was always intended to be more than the individual petitioners to whom each rescript was addressed. However, the increase in the number of surviving rescripts as 294 reached its end could be as much a function of the mass of petitioners waiting to ambush Diocletian as he returned to Nicomedia for the winter, as of Hermogenian’s desire to fill out his Code22.

  • 23 Dig., I, 5, 2; E. Dovere, De Iure 2, p. 75-91.
  • 24 Most obviously Gaius, although it should be noted that institutional works are not identical. See (...)
  • 25 A. Cenderelli, Ricerche sul ‘Codex Hermogenianus’, Milan, 1965, p. 143-144; M. U. Sperandio, Grego (...)
  • 26 CHV, 3 (P. Krüger et al., Collectio librorum iuris Anteiustiniani III, Berlin, 1890, p. 244-245); (...)
  • 27 Thus for CH: Collatio, X, 3-6; for CG: the Breviary Gregorianus (e.g. CGV, III, 6, 1-5). The evide (...)

8Having identified and gathered his material, both easily definable and easily accessible, he then had to sort it. Unfortunately, since the Code was not divided into books, but only titles, and few title numbers survive, its structure has to be inferred. Hermogenian himself tells us that in his Iuris Epitomae, having started with general comments on law, he would treat of the law of persons and then other matters, arranged under suitable titles following the order of the Praetor’s Edict23. While this choice of opening material is more typical of institutional-style works24, at least the reference to the Praetor’s Edict is thought to hold good for the Code and most reconstructions proceed on the basis that it mirrored the Edict from the start25. Not that organizing schemes are strait-jackets, and indeed both the Code and the Epitome will have had to find room for extraneous titles, such as De Iure Fisci26. There is some explicit evidence that constitutions seem to have been arranged chronologically under each title27. What we do not know is how far Hermogenian edited or adapted the texts he chose, and this question can be raised also for the Gregorianus. We may guess, however, that, since the main source texts were generally short, and since there appears to have been no formal official sanction for creating the codes, it is unlikely that either Hermogenian or Gregorianus tampered with the imperial words beyond necessary contextual or grammatical changes. Whether texts were divided or repeated between titles is also difficult to tell, since possible attestations of such in the surviving sources may reflect either later editing or emendation, especially in the Justinian Code, or divergences in the original source-material, at least for the Gregorianus.

  • 28 S. Corcoran, Policy and image, p. 40.

9Thus what Hermogenian produced was a book of his own responsa, except that the nominal authors of the texts were the emperors, not himself. The Code is essentially a juristic work in shape and content, with perhaps chronological arrangement added. Yet at the same time, Hermogenian acknowledged that the framing and interpretation of law must now principally come via the mouths of emperors. Leges had ceased, senatus consulta were no longer of importance, and now even new juristic writings could not compete with what had become a virtual imperial monopoly over formal legal development and interpretation28.

  • 29 S. Corcoran, Tetrarchs 2, p. 33-37 and 89-90, becoming more cautious at S. Corcoran, Publication, (...)
  • 30 Sedulius, Epistula ad Macedonium altera (CSEL, X, p. 172-173), with E. Dovere, De Iure 2, p. 17-32
  • 31 S. Corcoran, Tetrarchs 2, p. 90.
  • 32 Theodosius and Justinian mention the two earlier codes in relation to their own codifications of i (...)
  • 33 CTh, I, 4, 2 (confirming Pauli Sententiae). The invalidation of the notes of Ulpian and Paul upon (...)
  • 34 FIRA 2, III, no 101; rev. ed. P. Col., VII, 175 = SB, 16, 12692.
  • 35 J. Matthews, Laying Down the Law, p. 52-53; L. Atzeri, Gesta senatus Romani de Theodosiano publica (...)

10How the Gregorianus relates to the Hermogenianus is a vexed question. They are a matching pair in the eyes of Theodosius II and Justinian. The Gregorianus is much longer, divided into books, and for this reason and because most of its material is earlier in date, it is usually regarded as the earlier work (c.291), which Hermogenian then decided to supplement, emulate or even surpass (c.295). They are certainly close in date. Unfortunately, the chronological edges between them are blurred, as indeed is the problem of possible later editions29. When Justinian promulgated the revised edition of his Code, the Codex Repetitae Praelectionis, the example of a second edition which he cited was Ulpian’s Ad Sabinum (C. Cordi, 3). It is perhaps odd that he did not mention the revisions of the earlier codes, if they had indeed been issued as formal and recognizable new editions. Only Sedulius suggests the possibility of such editions for Hermogenian, although his reference is unclear and ambiguous30. Indeed, while it is true that Justinian successfully replaced the first edition of the Justinian Code with the second, one wonders what mechanisms were in place to effect the same for the Gregorianus and Hermogenianus. We must remember that there is no evidence that either had official status or had been formally promulgated by imperial decree, even if one or both had Diocletian’s encouragement. Indeed, the idea that Gregorius, like Hermogenian, held posts at court is pure speculation31. Nor does it seem likely that imperial constitutions outside the two codes, even when they provided alternative versions of the same texts, were rendered invalid as happened on the publication of the later imperial codes. As far as we can tell, it was only the implicit recognition of their status by Theodosius II in 429 as models for his own codification project that gave them official standing. At least the author of the Visigothic interpretatio to Breviary I, 4, 1 (= CTh, I, 4, 3), who must have had access to complete copies of both Codes, knew of no other confirmation32, and no other Theodosian text mentions them or their status. Regulation of legal works is first attested under Constantine33, but authenticity and accuracy does not yet appear to be a source of severe anxiety. In a well known case from 339, an imperial rescript from ten years before in what appears to be a Greek translation is repeatedly cited, and no-one raises any concerns as to its authenticity34. It may well be that a handful of rescripts was added haphazardly to different copies of the Gregorianus and Hermogenianus, perhaps marginal additions later incorporated on recopying. Only in the Gesta Senatus of 438, do the senators at last cry out for multiple copies and full text versions of the Theodosian Code in order to insure against corruption of its material35.

  • 36 For his periods in office, see T. Honoré, Tribonian, Londres, 1978, p. 46-64 and 236-237 (= Tribon (...)
  • 37 C. Russo Ruggeri, Studi sulle Quinquaginta decisiones, Milan, 1999 (= Quinquaginta decisiones).
  • 38 See A. M. Giomaro, Il Codex Repetitae Praelectionis, Rome, 2001; M. Campolunghi, Potere imperiale (...)

11To return at last to the First Edition of the Justinian Code, which of course owed so much not only to the textual material of the earlier codes, but also to their format and structure. When promulgated, this new code, the Novus Codex, superseded and rendered obsolete the three previous codes and all other existing imperial legislation. Even if he had done nothing else, Justinian revealed by this action his ambition to make his mark, publishing this definitive collection of imperial laws. There followed a period of intense legal activity, during which Justinian issued a great many constitutions significantly revising major areas of law and deciding key legal issues previously in dispute. To a great extent this was at the prompting of Tribonian, who seems to have become the key driver of legal policy, after becoming quaestor in the autumn of 52936. Many of these changes were made by a set of enactments known as the Fifty Decisions, the Quinquaginta Decisiones, probably issued in batches from the summer of 530 to the spring or summer of 53137. In any case, having legislated so extensively, and then in 533 issued the Digest and the Institutes, which themselves also reflected these recent legal changes, Justinian finished this major period of codification by having the existing Code revised. The subsequent promulgation constitution, C. Cordi (November 534), addressed to the Senate, makes clear that the Novus Codex of 529 was now seriously out-of-date and that there was the need to take account of the new constitutions of the intervening years, which themselves often needed further modification. Therefore the revised code was not simply one with added novels. The Code needed to be overhauled, with the new texts abbreviated, edited and distributed within it. Further, the new rules they embodied necessitated that some existing material in the Code needed to be suppressed or at least altered for consistency. The result was a substantially new entity, the Codex Repetitae Praelectionis38. It is of course this revised edition of 534 that is the code transmitted, if incompletely, in the Latin manuscript tradition, or as Greek versions cannibalized into later Byzantine legal materials.

  • 39 See most recently S. Corcoran, Justinian and his two codes, p. 78-84.
  • 40 Thus compare CJ, V, 5, 7 with Marcian, Nov., 4, 3; CJ, V, 27, 1 with CTh, IV, 6, 3; CJ, VII, 13, 3 (...)
  • 41 Just., Inst., I, 5, 3 and III, 7, 4; also Theophilus, Paraphrasis, I, 5, 3-4 and III, 7, 4, with t (...)

12Given this background, the basic differences between the two editions of the Code could be inferred from the second edition alone39. First, all extracts of laws dating from the period between the issue of the two editions must be additions to the revised version. Secondly, the insertion of laws which enacted major legal changes must have been accompanied by the excision or emendation of laws already present in order to bring things up to date. An example illustrating both these points is Book VII title 6. Here we have a title, under which there is a single law abolishing the status of Junian Latins. With the law dating to November 531, both it and its title are clearly new additions to the revised Code. But, since this law contains the only surviving reference to Junian Latins in the Code, it is likely that any constitutions that dealt principally with the question of Latin status must have been suppressed. Further any laws mentioning Latins or Latinity in passing will have had such references cut out, as can been seen by comparison with some extant pre-Justinian source texts for the Code40. It is no surprise that the Digest contains no reference to Junian Latins, while the Institutes, like the Code, mention the status only in relation to its abolition41.

  • 42 B. P. Grenfell and A. S. Hunt, The Oxyrhynchus Papyri Part XV, Londres, 1922, p. 217-222. The most (...)
  • 43 The best analysis has long been P. de Francisci, «Frammento di un indice del primo codice giustini (...)

13However, direct evidence of the content of the First Edition has been known since 1922, when there was published P. Oxy. 181442. This means that the differences between the two codes can be tested to some degree. The papyrus is a rather fragmentary codex sheet with writing on both sides. As a summary index, it contains only the numbered title rubrics, plus the inscriptions or headings of the laws, giving emperors and recipients in abbreviated form. The text of the laws and their subscripts (giving dates) are omitted, so that these cannot be compared to their second edition versions to check for emendations. However, given that the papyrus is a single damaged sheet, the benefit of the index format is that it provides an overview of half-a-dozen titles in a very short space. While it should be stressed that the individual constitutions present in the two codes are for the most part identical, analysis of the divergences is extremely instructive43.

  • 44 M. U. Sperandio, Gregorianus, p. 59-71.
  • 45 Cf. Soz., HE, 7, 4, 6 with Cassiodorus/Epiphanius, HET (CSEL, LXXI), IX, 7.
  • 46 First noted in the editio princeps (Oxyrhynchus Papyri XV, p. 217), and almost universally accepte (...)

14Since the papyrus preserves three title numbers (ιγ, ιδ, ιε), it is clear that we have here titles 11 to 16 of Book I of the first edition. Although title 11 matches title 11 of the second edition, titles 12 to 16 instead match second edition 14 to 18, with titles 12 and 13 thus missing. Since these titles contain mostly material from before 529, these texts and the titles themselves must already have been present somewhere else in the Novus Codex. They cannot have been added in from outside the Code, since this had clearly superseded previous imperial legislation, and there is no sign in C. Cordi that the reworking required for the Codex Repetitae Praelectionis had entailed a fresh examination of pre-529 material, not even through the salvaging of rescripts from juristic writings excluded from the Digest44. Therefore, since no new pre-529 material was added into the second edition, the newly-placed titles 12 and 13 attest that the work of revision included a reorganization of existing material within the Code. We could not otherwise have guessed this from the shape of the second edition alone. However, the position of these two titles is logical. Unlike the Theodosian Code, in which religious material was gathered under the last book (Book XVI), the Justinian Code began with this religious material, opening with Theodosius I’s famous statement of orthodoxy, Cunctos populos (CTh, XVI, 1, 2 = CJ, I, 1, 1)45. This arrangement established the importance of Christian orthodoxy for Justinian’s empire, making explicit what was a major policy theme of his rule. It is important to note that this was already a feature of the first edition as made clear by the presence of title 11 in the papyrus with the same position and number as in the second46. All the previous titles 1 to 10 contain pre-529 material, mirroring the sequence of the Theodosianus, and, although some were supplemented with substantial new legislation in 534, they must have been in their current positions already in the Novus Codex. But while the first section of Book I was concerned with Christianity and related religious issues, it then moved on to constitutional and administrative matters, essentially picking up the order of topics from the start of CTh Book I. Clearly the transition from religion to the other topics occurred after title 11 in the First Edition. Thus, when titles relevant to ecclesiastical affairs were shifted for the revised edition, these were placed at precisely this point of transition immediately after title 11.

  • 47 For a slightly fuller discussion, see S. Corcoran, Justinian and his two codes, p. 92-95.
  • 48 For this reorganization, see R. Bonini, Ricerche 2, p. 92-96. Book IX of the Novus Codex would hav (...)
  • 49 B. H. Stolte, «The use of Greek in the Theodosian Code», Subseciva Groningana, 8, 2009, p. 147-159
  • 50 R. Forrez, «Graeca libri primi Codicis Iustiniani leguntur», dans Viva Vox Iuris Romani: Essays in (...)
  • 51 T. Honoré, Tribonian, ch. 4; C. Kelly, Ruling the Later Roman Empire, Cambridge (Mass.) - Londres, (...)

15From where and for what reasons were these two titles, on asylum in church and manumission in church respectively, relocated47? It seems likely that CTh, IV, 7, 1, the source text for CJ, I, 13, 2, was placed in Book VII of the Novus Codex with other material relating to manumission. However, in the years after the publication of the Code, Justinian, acting largely on the advice of Tribonian, undid the provisions of the old Augustan manumission laws, such as abolishing Latin status as noted above. Thus the earlier part of Book VII would have looked increasingly in need of radical revision. There are only two pre-529 laws of Justinian (CJ, VII, 3, 1; VII, 17, 1) in this part of the Code, and several of the titles are clearly new (e.g. CJ, VII, 5-6; VII, 15). This remodelling may have provided the background to a decision for the manumission in church laws to be relocated to the end of the ecclesiastical section of Book I in the Codex Repetitae Praelectionis. It should be noted that a great deal of new legislation issued regarding religious affairs between 529 and 534 was edited and added into the early titles of Book I, and this must have created a certain pull, drawing in other material from elsewhere in the Code. The church manumission title from Novus Codex Book VII was not the only title affected. The two concluding titles of CTh Book IX will have occupied an equivalent position in Book IX of the Novus Codex, but they too were relocated to Book I during the revision process. The title on asylum in church (CTh, IX, 45 = CJ 1, IX, 54) migrated to a new position just after the original ecclesiastical section (CJ 2 , I, 12). The title on flight to imperial statues (CTh, IX, 44 = CJ 1, IX, 53) was placed at the end of the constitutional section, since it touched on matters relating to the emperor’s status (CJ 2, I, 25)48. This internal rearrangement also raises the question of the Theodosian Code’s only known bilingual constitution (CTh, IX, 45, 4), of which the Greek version alone was present at CJ 2, I, 12, 349. Did it lose its Latin version on being placed in the first edition, or only on re-location in the second edition? Given that Book IX is predominantly Latin, while the new material in the ecclesiastical section of Book I is heavily Greek and reflects the erosion of Latin at least for topics outside the traditional core of the Civil Law, it is certainly an attractive option to suppose that the Latin version was only suppressed in 53450. The increasing supersession of Latin by Greek for legislation in general only becomes fully apparent in the production of novels from 535 onwards51.

  • 52 See also S. Corcoran, Anastasius, p. 203-207.
  • 53 P. de Francisci, Frammento, p. 71.
  • 54 S. Corcoran, Tetrarchs 2, p. 315-316; Eusebius (VC, II, 45, 1); Constans (CTh, XVI, 10, 2).
  • 55 When I spoke on this topic in Edinburgh (March 2009), Professor Barnes informed me that he was no (...)
  • 56 For discussion of the reconstruction of CTh I-V, see J. Matthews, Laying Down the Law, p. 101-118.

16A second distinction between the first and second editions deserves to be mentioned52. Although title 11 (de Paganis Sacrificiis et Templis) has the same name and position in both codes, its opening constitution in the first edition is not matched in the second edition and is otherwise unknown: «[…]odoto» is all that is preserved of its heading (P. Oxy., 1814, line 3). The second text in the index, CJ 1, I, 11, 2 (= CJ 2, I, 11, 1), matches CTh, XVI, 10, 4, but, none of the three previous constitutions (CTh, XVI, 10, 1-3), otherwise absent from CJ, has an appropriate addressee ending «-odoto» to provide a twin for our mysterious law. The addressee has been restored variously as Theodotus, Diodotus and even Theodorus53. In 1996 I speculatively considered, but then rejected, the idea that this constitution might represent the lost law of Constantine banning sacrifice mentioned by Eusebius and Constans54. Tim Barnes revived this idea at the York Constantine conference in July 2006, using the following argument55. The second text in the index is headed «[imp. Consta]ntin. A. ad Taurum pp.» (P. Oxy., 1814, line 3), which, although misidentifying the emperor (it should be Constantius), does show that there has been a change of emperor between the two constitutions, otherwise the heading would have been «Id(em) A.». Logically, therefore, given the subject matter, the emperor should be a pre-Constantian Christian emperor, i. e. Constantine, and the law must be one of his that dealt with sacrifice. Given the intact transmission of Theodosian Code Book XVI, the law would have to come from one of the incompletely preserved first five books of the Theodosian Code56.

  • 57 The limited lacuna on the papyrus only allows for one short or abbreviated imperial name. This not (...)
  • 58 CJ, I, 9, 1 (Caracalla), I, 9, 2 (undated, but reading like a private rescript; see S. Corcoran, T (...)
  • 59 Thus absent from Collectio Tripartita, I, 11, cf. N. van der Wal and B. H. Stolte, Collectio Tripa (...)
  • 60 See S. Corcoran, Anastasius, p. 198-203; J. Beaucamp, «Le philosophe et le joueur: la date de la f (...)

17However, another option is possible, indeed probable. This text could be a third-century rescript from the Gregorian Code57. While, as we have seen, the first section of CJ Book I contains only religious, generally Christian, material, there are two rare rescripts of pre-Christian emperors on Jewish matters58. Further, the lack of any office after [The]odotus’ name supports the identification of this text as a private rescript addressed to a private individual, and such rescripts were typical of the Gregorianus, but excluded from the Theodosianus. A more difficult question, however, is not the law’s source, but why it is missing from the second edition, there being no trace of it in either the Latin or Greek traditions and derivatives of the Code59. There is only one logical place to look for the answer. Whereas the first edition has this extra law at the beginning, so the second edition has an extra law at the end, missing from the papyrus, which should therefore be a law of Justinian dating between 529 and 534 (CJ 2, I, 11, 10). This new law must have rendered the earlier law obsolete and necessitated its removal, but without affecting the other laws under this title. The measures contained in the additional law are comprehensively anti-pagan. They penalize those who do not convert to Christianity, and most notably ban teaching by those «infected with the madness of unholy Hellenism», who can no longer receive public salaries, even if holding teaching posts under imperial grant. This is the law usually associated with Justinian’s closure of the philosophical schools at Athens mentioned by John Malalas (Chron., XVIII, 47), and can most convincingly be dated to the late summer or early autumn of 52960. Given the already extensive legislation banning pagan cult present under title I, 11, the missing law can hardly have said the same, since why then would it have been chosen for the first edition, only to be dropped from the second? In what way, therefore, was it now out-of-step with the legal position enshrined in the revised Code of 534?

18There are essentially three new features of this law:

191) forced conversion; 2) the ban on pagan teaching; 3) the equating of recalcitrant pagans with Manichees and Borborites, who were considered the worst of religious outsiders.

  • 61 Eusebius, VC, II, 56 and 60.
  • 62 Diocletian’s rescript from the Gregorian Code survives at Collatio, XV, 3 (FIRA 2, II, p. 580-581) (...)
  • 63 J. H. Oliver, «Marcus Aurelius and the Philosophical Schools at Athens», AJPh, 102, 1981, p. 213-2 (...)
  • 64 Thus Constans and Prohaeresius (E. J. Watts, City and School, p. 59-62).
  • 65 This law is attributed to Anastasius in P. Oxy., 1814, line 16 and may have been issued in 502, as (...)
  • 66 Note that while the Novus Codex invalidated former imperial legislation, it did not affect persona (...)
  • 67 Note that CJ, I, 11, 6 still protected Hellene or Jewish property from seizure by individual Chris (...)

20Regarding the first of these, Constantine ruled against forced conversion of pagans61, and in principle an extract from a text enunciating such a rule could have been placed in the Novus Codex. But this still leaves the problem of where in the Theodosian Code such a law might have been located, if not in Book XVI, which is preserved intact. Regarding the third point, we know that Diocletian legislated against the Manichees, but since most such material occurs under CJ, I, 5, that is where we would expect Diocletian’s rescript to have been placed had it been chosen for the first edition, only to be excised from the second62. This leaves us with option number two, that the text is in some way connected with the ban on pagan teaching. We know that pre-Christian emperors became involved in matters relating to the succession to the philosophical schools and the status of endowed chairs63, although this interest continued under Christian emperors into the fourth century64. A rescript on this topic is at least possible under CJ, I, 11. Indeed, it might have been included here precisely because it showed that the prohibition of pagan funding under CJ 1, I, 11, 10 (CJ 2, I, 11, 9) did not apply to the prestigious schools, at least as understood by the editors of the first edition65. Further, the specific mention in CJ 2, I, 11, 10 that imperial grants or pragmatic sanctions could not override the teaching ban might indicate that CJ 1, I, 11, 1 was an example of such a grant or appeared to sanction them, and so had to be deleted66. Certainly, whatever this law was, at least as edited into the Code, its most likely source was the Gregorian Code, and it must have offered protection to pagans in a manner which became redundant, once the comprehensively anti-Hellene CJ 2, I, 11, 10 was enacted. After that, the law provided little shelter for pagans as teachers or anything else, even if in reality the most extreme measures were unevenly enforced67.

  • 68 P. Oxy., 1814, lines 42-46.
  • 69 P. Oxy., 1814, lines 44-45 (= CJ 1, I, 15, 1) reads: «[Impp Theodosius et V]alent A {ad se}[ad] se (...)
  • 70 Papinian, Paul, Gaius, Ulpian and Modestinus.

21The last major difference between the two editions as revealed by the papyrus could already have been inferred, in part at least, from the second edition alone. It also raises important questions about the development of Justinian’s legal policy. Title I, 17 of the revised edition deals with the authority of the Digest and contains two of its introductory constitutions (C. Deo Auctore and C. Tanta). At the equivalent point in the first edition, I, 1568, there is a title on the authority of the jurists, which, as restored, suggests that it was used as the basis for the expanded title in the second edition: thus «[De auctoritate] iuris [prudentium]», became «De ueteri iure enucleando et auctoritate iuris prudentium qui in digestis referuntur». The first edition title contains two texts. To judge from its inscription69, the first of these (CJ 1, I, 15, 1) must be a version of the so-called Law of Citations of 426 (CTh, I, 4, 3), which laid down which jurists could be cited in legal cases70. The second (CJ 1, I, 15, 2) is an unknown law of Justinian to the praetorian prefect Menas, which presumably qualified the earlier law or made provision for something it did not encompass. These two laws, which governed the use of the jurists’ writings in court under the first edition of the Code, were rendered obsolete by the authoritative recompilation and editing of the jurists’ writings into the Digest, promulgated in 533. Thus in 534 they were removed from the Code and replaced by the Digest constitutions.

  • 71 For some recent useful discussions, see G. Purpura, Diritto, papiri e scrittura, 2e éd., Turin, 19 (...)
  • 72 Julianus already enjoyed vicarious authority, when cited in the works of the Mighty Handful. For h (...)

22The otherwise unknown law to Menas, although overlooked in prosopographies and Regesten, has nonetheless generated a good deal of discussion and speculation from Romanists71. While the content of the law is, of course, irrecoverable, several suggestions can be made as to its general purport. One is that it added a jurist (e.g. Salvius Julianus) to the Mightly Handful named in the Law of Citations, although such a change could surely have been interpolated directly into CJ 1, I, 15, 1 to produce the desired result72.

  • 73 Dig., XLVIII, 18, 1, 16 and CJ, IX, 41, 1; Dig., L, 1, 21, 6 and CJ, X, 41, 1.
  • 74 CJ, V, 66, 1 matches FV, 247, taken from a work of Paul not included in the Digest.
  • 75 N. van der Wal and J. H. A. Lokin, Historiae iuris graeco-romani delineatio, Groningue, 1985, p. 2 (...)
  • 76 For CG, P. Berol. Inv. 16976/7 (W. Schubart, «Actio condicticia und longi temporis praescriptio», (...)

23Another view is that it regulated the relationship between the new Code and the juristic writings. Indeed, it could have been an extract from C. Summa, which was indeed addressed to Menas, even if rigorous logic would prefer the Code not to contain within itself part of its own promulgating text. Perhaps CJ 1, I, 15, 2 was an extract from a text of similar intent addressed to the same official, soon afterwards echoed in the relevant section of C. Summa (c. 3). This signalled that imperial constitutions in their original forms were now invalid, including those embedded in the jurists’ writings, but that the surrounding commentary on these same texts remained valid, provided not itself in conflict with the Code. The juristic writings, therefore, must now have relied on the authority granted them under the Justinianic version of the Law of Citations (CJ 1, I, 15, 1), as modified by the overlapping provisions of the laws addressed to Menas (CJ 1, I, 15, 2 and C. Summa). The Digest contains only two cases of imperial rescripts also in the Code73. However, it is possible that other doublets have either been edited out of the texts included in the Digest or else been removed from the second edition of the Code. Thus the manner in which our sources survive perhaps conceals from us the extent to which the potential for conflict between rival versions of constitutions existed or was thought to exist in 52974. It is also possible that C. Summa refers not only to the older classical jurists mentioned under the Law of Citations, but even to the more recent law-school professors, whose lectures and commentaries on the three earlier codes or subsequent novels cannot have been without influence. A few citations of such pre-Justinian «heroes» survive in the scholia to the Basilica75, and papyri have preserved highly fragmentary versions of such works for both the Gregorian and Theodosian Codes, as well as for Ulpian’s Ad Sabinum76.

  • 77 See PLRE, II, Menas 5 and PLRE, IIIB, Thomas 3, for careers and datings.
  • 78 See C. M. Mazzucchi (éd.), Menae patricii cum Thoma referendario De scientia politica dialogus, re (...)
  • 79 CJ 2, I, 11, 10, discussed above; Malalas, chron., XVIII, 42; Theophanes, chron., a. m. 6022 (de B (...)
  • 80 T. Honoré, Tribonian, p. 46-47.
  • 81 Tribonian is listed sixth in C. Haec, 1 and C. Summa, 2; but first in C. Tanta, 9, C. Imperatoriam (...)
  • 82 Thus Paul is already mentioned in CJ, III, 28, 33, 1 (17 Sept. 529). For the prominence of the jur (...)

24Yet another view of the law to Menas is that it might simply have directed that difficult problems of juristic interpretation be referred to the emperor for resolution, at least where the Law of Citations proved an inadequate tool. It is tempting to go further and to suppose that this law to Menas might indeed be an early step on the way to the extensive engagement with the classical jurists that was to develop with the Quinquaginta Decisiones and then the Digest. Certainly, it can hardly be ruled out that the need to deal systematically with the jurists had already become apparent, and that CJ 1, I, 15, 1 and 2 were not intended as long-term solutions for managing juristic texts, especially if the law to Menas was one of the last to be added to the Novus Codex in April 529 and so represented the latest view. However, this may be to anticipate too much on the basis of hindsight. In fact a significant change took place during the late summer or early autumn of 529 at the apex of the imperial administration. The praetorian prefect Menas and the quaestor Thomas, both in office for much of the first two years of Justinian’s reign and during the genesis and publication of the Novus Codex, were each replaced77. That they were perceived as politically close is suggested by the choice of their names for the pair of interlocutors in a late Justinianic political dialogue78. An anti-pagan witch-hunt erupted in Constantinople in the summer of 529, and, although we do not know if the advent of Demosthenes in place of Menas was either a cause or a result of this uproar, Thomas certainly was dismissed from office under suspicion of being a crypto-pagan, although he escaped execution79. This cleared the decks for Tribonian to assume office as quaestor80. Although he had served on the Code commission, he had not then been the most significant figure81. Now he came into his own, and it is reasonable to see the increasing engagement with the classical jurists and their writings in Justinian’s constitutions as a sign of his grip upon legal policy as it evolved towards the Fifty Decisions and then the Digest82.

  • 83 T. Honoré, Tribonian, p. 48.
  • 84 The details are disputed, but some travel was clearly necessary. The two most recent discussions a (...)
  • 85 The most recent edition is still G. Hänel, Lex Romana Visigothorum, Berlin, 1849 [repr. Pampelune, (...)

25Therefore, it seems as if at the time of the promulgation of the Novus Codex in April 529, by placing these two constitutions under title I, 15, Justinian was for the moment still working essentially within the framework of the Law of Citations, and that the law to Menas regulated the relationship of juristic works to the new code. There was as yet no significant foreshadowing of the later grand work on the jurists. By producing a code that absorbed all previous codes and laws, Justinian had already seen through an ambitious project. This was now the one-stop-shop for constitutions, which would enable speedier and more effective justice in the courts. Its completion, therefore, was an end in itself, not simply a stage in a grander pre-planned scheme83. However, Theodosius II’s original plan had not only envisaged a code of imperial laws, but also the creation of a larger comprehensive work including the juristic writings. In the end, only the Code was produced, and that may seem in the circumstances achievement enough. His commissioners appear to have travelled and gathered their material in several places other than Constantinople, including Rome, Ravenna and perhaps Carthage84, whereas Justinian’s commissioners presumably did not need to leave the capital. Nonetheless, Theodosius’s original intention was present in one of the texts under the first title of his code (CTh, I, 1, 5, 429), so that Justinian would have been aware of it. Perhaps he was also aware that Alaric II, king of the Visigoths, had in 506 produced for his Roman subjects a single comprehensive Roman legal collection, comprising extracts with commentary from the three codes, the novels, and the jurists85. That something not only should, but could be done with both imperial texts and juristic writings, would have been evident to Justinian; indeed, perhaps even more so to Tribonian, who eventually gained the power and influence to steer the larger and more ambitious project, encompassing jurists, constitutions, and indeed law-schools, to completion.

  • 86 This striking image was suggested to me by Michael Crawford.
  • 87 C. Cordi, 4 (534). In 554, Justinian confirmed the validity of his codification in Italy, but also (...)
  • 88 For the chronology, see T. Honoré, Tribonian, p. 60-64.
  • 89 Thus the Epitome of Julian and the Authenticum from the Constantinople law-school in the 550s. See (...)
  • 90 On Basil I, Leo VI and the Basilica, see T. E. van Bochove, To Date and Not to Date: On the Date a (...)

26Thus, by examining the editions of the Codex Iustinianus, we have two snapshots of Justinian’s legal policy as it developed and came to fruition. First, in 528-529 came his initial attempt to bring the imperial constitutions under control, but within a framework that also regulated the use of existing juristic writings. He went much further than his predecessors, since he did not simply add a code of his own, but at once subsumed and superseded all previous imperial legislation. The Novus Codex as published, however, was complete unto itself and did not automatically require further codificatory activity. However, the appointment of Tribonian as quaestor in the autumn of 529 led to an even more ambitious undertaking. This led ultimately to the final revision of the Code of imperial texts in 534, whereby Justinian brought his own recent novels under control, making all imperial texts consistent (in theory at least) with the slimmed down, edited, revised and recompiled juristic writings in the newly published Digest. At the same time, Gaius’s classic introductory text, the Institutes, was replaced by Justinian’s Institutes as the standard first-year law-school text-book. This did not, of course, mean an end to legal development. Nor did Justinian stop legislating. The novels from 535 onwards rapidly rendered parts of the new codification obsolete. This is perhaps the inevitable outcome of any attempt at «capturing the law», trying to make it manageable and usable. It always escapes again86. It may seem surprising that Justinian never attempted to add his later novels into a third edition of his code, although he had indicated such an intention87. The momentum of legal activity seems to decrease after the departure of its key motivator, Tribonian, from the quaestorship in 54288, and Justinian may have been distracted by a change in priorities, focussing instead upon the war in Italy and continuing Christological wrangling. It was left to the law professors to incorporate the novels as best they could into their syllabus and teaching materials89. It was only with the Basilica in the late ninth century that an amalgam of all Justinian’s work was forged by his imperial successors, but by that time it was perhaps a rather antiquarian project90. That anyway is another story.

Notes

1 F. Millar, «Rome, Constantinople and the Near Eastern Church under Justinian: two synods of CE 536», JRS, 98, 2008, p. 62-82.

2 For a strong statement of the view that Justinian’s military and religious policies were in fact disastrous, see the recent polemic by J. J. O’Donnell, The Ruin of the Roman Empire, Londres, 2009.

3 For the Digest: C. Deo Auctore (530), C. Omnem (533), and C. Tanta with C. Δέδωϰεν (533). For the Institutes: C. Imperatoriam Maiestatem (533).

4 C. Haec (528), C. Summa (529) and C. Cordi (534) [P. Krüger, Codex Iustinianus, editio maior, Berlin, 1877, p. 1-6; editio minor, Corpus Iuris Civilis 2, Berlin, 1877 and later editions, p. 1-4].

5 Clearly demonstrated by Justinian’s contortions in Novel 158 (544) to ensure consistency between CJ, VI, 30, 18 and 19. See C. Humfress, Orthodoxy and the Courts in Late Antiquity, Oxford, 2007, p. 54. For the contrary view that lex posterior derogat legi priori applied to Code constitutions, see classically H. J. Scheltema, «L’autorité des Institutes, du Digeste et du Code Justinien», RIDA 3, 13, 1966, p. 344-348 [repr. in Opera Minora, Groningue, 2004, p. 151-154]; followed by J. H. A. Lokin, «Theophilus Antecessor, I. The Codex Messanensis, hodie Kilianus; II. Was Theophilus the author of the Paraphrase?», RHD, 44, 1976, p. 337-344 at p. 340-344 and T. Wallinga, «Something old, something new: the introductory constitutions in the Middle Ages», dans Viva Vox Iuris: Essays in Honour of Johannes Emil Spruit, Amsterdam, 2002, p. 15-25 at p. 16-17.

6 CTh, I, 1, 5 (429); I, 1, 6 (435). The second constitution, which followed the initial collection of material, gave more detailed directions and wider powers of manipulation. See J. F. Matthews, Laying Down the Law: A Study of the Theodosian Code, New Haven/Londres, 2000, ch. 4 (= Laying Down the Law); A. J. B. Sirks, The Theodosian Code: A Study (Studia Amstelodamensia 39), Friedrichsdorf, 2007, ch. III (= Theodosian Code). In 429 Theodosius’s longer-term plan was for a further code to include the three codes and the juristic writings, but this was never carried through.

7 A. J. B. Sirks, Theodosian Code, p. 71-72.

8 E.g. Frag. Vat., 42 incorporated into CJ, III, 33, 3, and Frag. Vat., 315 into CJ, III, 32, 15; cf. CTh, XVI, 9, 1-2 mangled into CJ, I, 10, 1, and CTh, IX, 16, 1-2 into CJ, IX, 18, 3. For editorial delight in interweaving texts, see D. Daube, «Interpolations in the Centos and Justinian», dans Flores legum H. J. Scheltema oblati, Groningue, 1971, p. 45-48 [repr. in Collected Studies in Roman Law, Francfort, 1991, vol. II, p. 1263-1266].

9 Frag. Vat., 283 with CJ, VIII, 54, 2. See S. Corcoran, The Empire of the Tetrarchs, rev. ed., Oxford, 2000, p. 15-18 (= Tetrarchs 2). CTh, II, 1, 10 loses a «non» at CJ, I, 9, 8. See A. M. Rabello, «Civil Jewish jurisdiction in the days of Emperor Justinian (527-565): Codex Justinianus 1.9.8», Israel Law Review, 33, 1999, p. 51-66 [repr. in The Jews in the Roman Empire: Legal Problems, from Herod to Justinian, Aldershot, 2000, ch. XIII].

10 CTh, I, 1, 5-6, Theod. Nov. 1, Gesta Senatus.

11 For the most recent discussions, see M. U. Sperandio, Codex Gregorianus: origini e vicende, Naples, 2005 [= Gregorianus] and D. P. Karampoula, Hē nomothetikē drastēriotēta epi Dioklētianou kai hē kratikē paremvasē ston tomea tou dikaiou: ho Grēgorianos kai Ermogeneianos kōdikas, Athènes, 2008 (= Nomothetikē).

12 For what follows, see especially M. U. Sperandio, «Il codex e la divisione per tituli», dans Atti dell’Accademia Romanistica Costantiniana XVI, Naples, 2007, p. 435-472; cf. S. Corcoran, «The Tetrarchy: policy and image as reflected in imperial pronouncements», dans D. Boschung et W. Eck (éd.), Die Tetrarchie: Ein neues Regierungssystem und seine mediale Präsentation, Wiesbaden, 2006, p. 31-61 at p. 42-43 (= Policy and image).

13 CTh, I, 1, 5 (429).

14 M. U. Sperandio, Gregorianus, p. 370-375 and 392-395; D. P. Karampoula, Nomothetikē, p. 246-251. Book XIII is explicitly attested by the Breviary (CGV, XIII, 14, 1) and several Fragmenta Vaticana annotations (Frag. Vat., 266a, 272, 285, 288). Book XVIIII at Collatio, III, 4 is usually emended.

15 Thus CG, I, 10, De Pactis (Consultatio, 9, 17) matches CJ, II, 3, De Pactis; cf. CTh, II, 9, De Pactis et Transactionibus.

16 See especially the table in G. Scherillo, «Teodosiano, Gregoriano, Ermogeniano», dans E. Albertario (éd.), Studi in memoria di Umberto Ratti, Milan, 1934, p. 307 [repr. in Scritti Giuridici I, Milan, 1992, p. 317]; M. U. Sperandio, Gregorianus, p. 338-375 and 389-395.

17 What follows relies on D. Liebs, Hermogenians Iuris Epitomae: Zum Stand der römischen Jurisprudenz im Zeitalter Diokletians, Göttingen, 1964 (= Iuris Epitomae) and Die Jurisprudenz im spätantiken Italien (260-640 n. Chr.), Berlin, 1987, p. 36-52 (= Jurisprudenz Italien); T. Honoré, Emperors and Lawyers, 2e éd., Oxford, 1994, p. 163-181; S. Corcoran, Tetrarchs 2, p. 85-90; E. Dovere, De Iure: l’esordio delle Epitomi di Ermogeniano, 2e éd., Naples, 2005, p. 3-39 (= De Iure 2).

18 AE, 1987, 456 and Supplementa Italica, n.s. 8, Rome, 1991, p. 200-202; A. Chastagnol, «Un nouveau préfet du prétoire de Dioclétien: Aurelius Hermogenianus», ZPE, 78, 1989, p. 165-168 [= Aspects de l’Antiquité Tardive, Rome, 1994, p. 171-176].

19 S. Corcoran, Tetrarchs 2, p. 25-32, 299-300.

20 M. U. Sperandio, Gregorianus, p. 197-206; M. Varvaro, «Note sugli archivi imperiali nell’età del principato», dans Fides, Humanitas, Ius: Studii in onore di Luigi Labruna VIII, Naples, 2007, p. 5767-5818 at p. 5793-5796.

21 S. Corcoran, «The heading of Diocletian’s Prices Edict at Stratonicea», ZPE, 166, 2008, p. 295-302 at p. 297. In contrast, see D. Liebs, Jurisprudenz Italien, p. 36-38.

22 S. Corcoran, Tetrarchs 2, p. 27-28; S. Corcoran, «Emperor and citizen in the era of Constantine», dans E. Hartley et al. (éd.), Constantine the Great: York’s Roman Emperor, York/Aldershot, 2006, p. 41-51 at p. 44.

23 Dig., I, 5, 2; E. Dovere, De Iure 2, p. 75-91.

24 Most obviously Gaius, although it should be noted that institutional works are not identical. See P. Stein, «The development of the institutional system», dans P. G. Stein et A. D. E. Lewis (éd.), Studies in Justinian’s Institutes in Memory of J. A. C. Thomas, Londres, 1983, p. 151-163.

25 A. Cenderelli, Ricerche sul ‘Codex Hermogenianus’, Milan, 1965, p. 143-144; M. U. Sperandio, Gregorianus, p. 393-395, comparing CG to both the Praetor’s Edict and Papinian’s Responsa; D. P. Karampoula, Nomothetikē, p. 255-263.

26 CHV, 3 (P. Krüger et al., Collectio librorum iuris Anteiustiniani III, Berlin, 1890, p. 244-245); Digest, XLIX, 14, 46; D. Liebs, Iuris Epitomae, p. 129-130.

27 Thus for CH: Collatio, X, 3-6; for CG: the Breviary Gregorianus (e.g. CGV, III, 6, 1-5). The evidence for chronological organization of other 3rd century rescript collections is poor (M. U. Sperandio, Gregorianus, p. 101-106), except perhaps for dossiers rehearsing privileges (L. Migliardi Zingale, «Catene di costituzioni imperiali nelle fonti papirologiche: brevi riflessioni», dans Atti dell’Accademia Romanistica Costantiniana XVI, Naples, 2007, p. 423-434).

28 S. Corcoran, Policy and image, p. 40.

29 S. Corcoran, Tetrarchs 2, p. 33-37 and 89-90, becoming more cautious at S. Corcoran, Publication, p. 64 and Policy and image, p. 41-42. The fullest recent discussion of possible editions is M. U. Sperandio, Gregorianus, p. 241-299.

30 Sedulius, Epistula ad Macedonium altera (CSEL, X, p. 172-173), with E. Dovere, De Iure 2, p. 17-32.

31 S. Corcoran, Tetrarchs 2, p. 90.

32 Theodosius and Justinian mention the two earlier codes in relation to their own codifications of imperial leges. By contrast, the breviarist, in justifying his selection of material, names Gregorianus and Hermogenianus as jurists and so their works as part of ius. See J. Gaudemet, Le Bréviaire d’Alaric et les epitome (IRMAE I, 2, b, aa, β), Milan, 1965, p. 36-37; R. Lambertini, La codificazione di Alarico II, Turin, 1990, p. 83-87.

33 CTh, I, 4, 2 (confirming Pauli Sententiae). The invalidation of the notes of Ulpian and Paul upon Papinian may be more limited than the extract at CTh, I, 4, 1 suggests (cf. IX, 43, 1). See C. Humfress, «Cracking the Codex: late Roman legal practice in context», BICS, 49, 2006, p. 241-254 at p. 245-246.

34 FIRA 2, III, no 101; rev. ed. P. Col., VII, 175 = SB, 16, 12692.

35 J. Matthews, Laying Down the Law, p. 52-53; L. Atzeri, Gesta senatus Romani de Theodosiano publicando, Berlin, 2008, p. 221-234.

36 For his periods in office, see T. Honoré, Tribonian, Londres, 1978, p. 46-64 and 236-237 (= Tribonian).

37 C. Russo Ruggeri, Studi sulle Quinquaginta decisiones, Milan, 1999 (= Quinquaginta decisiones).

38 See A. M. Giomaro, Il Codex Repetitae Praelectionis, Rome, 2001; M. Campolunghi, Potere imperiale e giurisprudenza in Pomponio e in Giustiniano II. 2, Pérouge, 2007, p. 423-494.

39 See most recently S. Corcoran, Justinian and his two codes, p. 78-84.

40 Thus compare CJ, V, 5, 7 with Marcian, Nov., 4, 3; CJ, V, 27, 1 with CTh, IV, 6, 3; CJ, VII, 13, 3 with CTh, IX, 24, 1, 4. See R. Bonini, Ricerche di diritto giustinianeo, 2e éd., Milan, 1990, p. 68-69 and 165-183 (= Ricerche 2).

41 Just., Inst., I, 5, 3 and III, 7, 4; also Theophilus, Paraphrasis, I, 5, 3-4 and III, 7, 4, with the scholia in C. Ferrini, Opere di Contardo Ferrini I, Milan, 1929, p. 158-159. See G. Luchetti, La legislazione imperiale nelle Istituzioni di Giustiniano, Milan, 1996, p. 15-25. Note also Just., Nov., 78, pr.

42 B. P. Grenfell and A. S. Hunt, The Oxyrhynchus Papyri Part XV, Londres, 1922, p. 217-222. The most recent edition is M. Amelotti and L. Migliardi Zingale, Le costituzioni giustinianee nei papiri e nelle epigrafi, 2e éd., Milan, 1985, p. 17-23.

43 The best analysis has long been P. de Francisci, «Frammento di un indice del primo codice giustinianeo», Aegyptus, 3, 1922, p. 68-79 [= Frammento]. See also most recently S. Corcoran, «After Krüger: observations on some additional or revised Justinian Code headings and subscripts», ZRG, 126, 2009, p. 426-431 at p. 424-431 and id., Justinian and his two codes, p. 88-106.

44 M. U. Sperandio, Gregorianus, p. 59-71.

45 Cf. Soz., HE, 7, 4, 6 with Cassiodorus/Epiphanius, HET (CSEL, LXXI), IX, 7.

46 First noted in the editio princeps (Oxyrhynchus Papyri XV, p. 217), and almost universally accepted; e.g. G. G. Archi, Giustiniano legislatore, Bologne, 1970, p. 83-84; A. M. Giomaro, Codex Repetitae Praelectionis, p. 102-103.

47 For a slightly fuller discussion, see S. Corcoran, Justinian and his two codes, p. 92-95.

48 For this reorganization, see R. Bonini, Ricerche 2, p. 92-96. Book IX of the Novus Codex would have had 54 titles, if CTh, IX, 24-25 were both reflected in it, being later replaced by the single title CJ 2, IX, 13 (R. Bonini, Ricerche 2, p. 68-69).

49 B. H. Stolte, «The use of Greek in the Theodosian Code», Subseciva Groningana, 8, 2009, p. 147-159.

50 R. Forrez, «Graeca libri primi Codicis Iustiniani leguntur», dans Viva Vox Iuris Romani: Essays in Honour of Johannes Emil Spruit, Amsterdam, 2002, p. 353-359. Tribonian continues to favour Latin (Just., Inst., III, 7, 3 re CJ, VI, 4, 4; cf. Just., Nov., VII, 1). See T. Honoré, Tribonian, p. 39, 58-59 and 124-138. Long Latin constitutions were added to the non-ecclesiastical parts of Book I: CJ, I, 17, 1-2 (= C. Deo Auctore and C. Tanta, but not the Greek C. Δέδωϰεν) and CJ, 1, 27, 1-2 (administration of Africa).

51 T. Honoré, Tribonian, ch. 4; C. Kelly, Ruling the Later Roman Empire, Cambridge (Mass.) - Londres, 2004, p. 32-36.

52 See also S. Corcoran, Anastasius, p. 203-207.

53 P. de Francisci, Frammento, p. 71.

54 S. Corcoran, Tetrarchs 2, p. 315-316; Eusebius (VC, II, 45, 1); Constans (CTh, XVI, 10, 2).

55 When I spoke on this topic in Edinburgh (March 2009), Professor Barnes informed me that he was no longer proposing the identification of the P. Oxy. law with Constantine’s ban on sacrifice, whose existence, however, he still strongly advocates, supported by the recent redating of Palladas to the reign of Constantine. See T. Barnes, «Was there a Constantinian revolution?», JLA, 2, 2009, p. 374-384 at p. 383-384 and K. Wilkinson, «Palladas and the age of Constantine», JRS, 99, 2009, p. 36-60.

56 For discussion of the reconstruction of CTh I-V, see J. Matthews, Laying Down the Law, p. 101-118.

57 The limited lacuna on the papyrus only allows for one short or abbreviated imperial name. This not only rules out Diocletian and his colleagues as issuers, but also the Hermogenian Code as a source, since it contained solely material of the First Tetrarchy. See S. Corcoran, Policy and image, p. 44-48.

58 CJ, I, 9, 1 (Caracalla), I, 9, 2 (undated, but reading like a private rescript; see S. Corcoran, Tetrarchs 2, p. 38, n. 87).

59 Thus absent from Collectio Tripartita, I, 11, cf. N. van der Wal and B. H. Stolte, Collectio Tripartita: Justinian on Religious and Ecclesiastical Affairs, Groningue, 1994, p. 90 (= Collectio Tripartita).

60 See S. Corcoran, Anastasius, p. 198-203; J. Beaucamp, «Le philosophe et le joueur: la date de la fermeture de l’école d’Athènes», dans Mélanges Gilbert Dagron (T & MByz 14), Paris, 2002, p. 21-35; contra E. J. Watts, «Justinian, Malalas, and the end of Athenian philosophical teaching in A.D. 529», JRS, 94, 2004, p. 168-182, and City and School in Late Antique Athens and Alexandria, Berkeley, 2006, p. 128-142 (= City and School).

61 Eusebius, VC, II, 56 and 60.

62 Diocletian’s rescript from the Gregorian Code survives at Collatio, XV, 3 (FIRA 2, II, p. 580-581) and is cited both there and elsewhere to show that not only Christian emperors legislated against the Manichees. Thus see also Ambrosiaster, Ad Tim. II, 3, 7 (CSEL, LXXXI/3, p. 312) and Valentinian III, Nov., 18, pr.

63 J. H. Oliver, «Marcus Aurelius and the Philosophical Schools at Athens», AJPh, 102, 1981, p. 213-225; R. van Bremen, «Plotina to all her friends: the letter(s) of the empress Plotina to the Epicureans in Athens», Chiron, 35, 2005, p. 499-532.

64 Thus Constans and Prohaeresius (E. J. Watts, City and School, p. 59-62).

65 This law is attributed to Anastasius in P. Oxy., 1814, line 16 and may have been issued in 502, associated with restrictions on public festivals deemed too disturbingly pagan (S. Corcoran, Anastasius, p. 193-198).

66 Note that while the Novus Codex invalidated former imperial legislation, it did not affect personal grants embodied in pragmatic sanctions (C. Summa, 4).

67 Note that CJ, I, 11, 6 still protected Hellene or Jewish property from seizure by individual Christians. See also N. van der Wal and B. H. Stolte, Collectio Tripartita, p. 90. Pagan teachers are attested at Alexandria even under Justin II (E. J. Watts, City and School, ch. 9).

68 P. Oxy., 1814, lines 42-46.

69 P. Oxy., 1814, lines 44-45 (= CJ 1, I, 15, 1) reads: «[Impp Theodosius et V]alent A {ad se}[ad] se[natu]m».

70 Papinian, Paul, Gaius, Ulpian and Modestinus.

71 For some recent useful discussions, see G. Purpura, Diritto, papiri e scrittura, 2e éd., Turin, 1999, p. 145-146; G. L. Falchi, Sulla codificazione del diritto romano nel V e VI secolo, Rome, 1989, p. 104-106 and «Il consistorium imperiale e la codificazione del diritto romano nei secoli V e VI», dans Atti dell’Accademia Romanistica Costantiniana: X Convegno Internazionale, Naples, 1995, p. 195-212 at p. 206; C. Russo Ruggeri, Quinquaginta Decisiones, p. 82-96.

72 Julianus already enjoyed vicarious authority, when cited in the works of the Mighty Handful. For his enhanced status at this time, perhaps reflecting Tribonian’s opinion, see C. Deo Auctore, 10 = CJ, I, 17, 1, 10; C. Tanta, 18 = CJ, I, 17, 2, 18. Julianus, with Papinian, heads the otherwise chronological list of jurists in the Codex Florentinus. See T. Honoré, «Justinian’s Digest: the distribution of authors and works to the three commissions», Roman Legal Tradition, 3, 2006, p. 1-47 at p. 6-7.

73 Dig., XLVIII, 18, 1, 16 and CJ, IX, 41, 1; Dig., L, 1, 21, 6 and CJ, X, 41, 1.

74 CJ, V, 66, 1 matches FV, 247, taken from a work of Paul not included in the Digest.

75 N. van der Wal and J. H. A. Lokin, Historiae iuris graeco-romani delineatio, Groningue, 1985, p. 23-24: Cyrillus, Domninus, Demosthenes, Eudoxius and Patricius; e.g. Basilica Scholia, VIII, 2 (V), 27, 6; XI, 2 (CA), 20, 4; XLVII, 1, 60, 1. See also D. Simon, «Aus dem Codex-unterricht des Thalelaios: B. Die Heroen», ZRG, 87, 1970, p. 315-394 with M. U. Sperandio, Gregorianus, p. 254-276.

76 For CG, P. Berol. Inv. 16976/7 (W. Schubart, «Actio condicticia und longi temporis praescriptio», dans Festschrift für Leopold Wenger zu seinem 70. Geburtstag, Munich, 1945, vol. II, p. 184-190; E. Schönbauer, «Ein wichtiger Beispiel der nachklassischen Rechtsliteratur», dans Studi in onore di Vincenzo Arangio-Ruiz nel XLV anno del suo insegnamento, Naples, 1953, vol. III, p. 501-519). For CTh, see F. Mitthof, «Neue Evidenz zur Verbreitung juristischer Fach-literatur im spätantiken Ägypten», dans H.-A. Rupprecht (éd.), Symposion 2003, Vienne, 2006, p. 415-422. For Ulpian, see the Scholia Sinaitica (FIRA 2, II, p. 636-652). For juristic scholia in Greek, see K. McNamee, Annotations in Greek and Latin Texts from Egypt, New Haven, 2007, p. 493-512.

77 See PLRE, II, Menas 5 and PLRE, IIIB, Thomas 3, for careers and datings.

78 See C. M. Mazzucchi (éd.), Menae patricii cum Thoma referendario De scientia politica dialogus, rev. éd., Milan, 2002; P. Bell, Three Political Voices from the Age of Justinian (Translated Texts for Historians 52), Liverpool, 2009.

79 CJ 2, I, 11, 10, discussed above; Malalas, chron., XVIII, 42; Theophanes, chron., a. m. 6022 (de Boor, 180); S. Corcoran, Anastasius, p. 201-202.

80 T. Honoré, Tribonian, p. 46-47.

81 Tribonian is listed sixth in C. Haec, 1 and C. Summa, 2; but first in C. Tanta, 9, C. Imperatoriam Maiestatem, 3 and C. Cordi, 2.

82 Thus Paul is already mentioned in CJ, III, 28, 33, 1 (17 Sept. 529). For the prominence of the jurists thereafter, see G. L. Falchi, «Studi sulle relazioni tra la legislazione di Giustiniano (528-534) e la codificazione di leges e iura», SDHI, 59, 1993, p. 1-172, esp. p. 106-107. For Tribonian making suggestiones, see Just. Inst., I, 5, 3; II, 8, 2; II, 23, 12.

83 T. Honoré, Tribonian, p. 48.

84 The details are disputed, but some travel was clearly necessary. The two most recent discussions are J. Matthews, Laying Down the Law, ch. 4 and A. J. B. Sirks, Theodosian Code, part V, sections 35-42.

85 The most recent edition is still G. Hänel, Lex Romana Visigothorum, Berlin, 1849 [repr. Pampelune, 2004]. See also G. Polara, Lex Romana Visigothorum: un contributo alla ricerca, Milan, 2004, which includes a searchable CD-ROM.

86 This striking image was suggested to me by Michael Crawford.

87 C. Cordi, 4 (534). In 554, Justinian confirmed the validity of his codification in Italy, but also of his subsequent novels, although it is not clear that this meant that a specific collection already existed or was to be compiled (Just., Nov. App., VII, 11 [Schoell/Kroll, Corpus Iuris Civilis III, p. 800]). See D. Liebs, Jurisprudenz Italien, p. 125-126.

88 For the chronology, see T. Honoré, Tribonian, p. 60-64.

89 Thus the Epitome of Julian and the Authenticum from the Constantinople law-school in the 550s. See W. Kaiser, Die Epitome Iuliani, Francfort, 2004, p. 173-346. For the various novel collections, see P. Noailles, Les Collections de Novelles de l’empereur Justinien, Paris, 1912; N. van der Wal, Manuale Novellarum Justiniani, 2e éd., Groningue, 1998, p. XI-XV; S. Corcoran, «Two tales, two cities: Antinoopolis and Nottingham», dans J. Drinkwater and R. W. B. Salway (éd.), Wolf Liebeschuetz Reflected: Essays Presented by Colleagues, Friends and Students, London, 2007, p. 193-209, at p. 193-203.

90 On Basil I, Leo VI and the Basilica, see T. E. van Bochove, To Date and Not to Date: On the Date and Status of Byzantine Law Books, Groningue, 1996. On Leo especially as contrasted with Justinian, see M. Th. Fögen, «Legislation und Kodifikation des Kaisers Leon VI.», Subseciva Groningana, 3, 1989, p. 23-35; G. Dagron, «Law, society and legitimate power: ennomos politeia, ennomos arkhe», dans A. E. Laiou et D. Simon (éd.), Law and Society in Byzantium, Ninth-Twelfth Centuries, Washington DC, 1994, p. 27-51; J. H. A. Lokin, «The Novels of Leo and the decisions of Justinian» and S. Troianos, «Die Novellen Leons VI», both in S. Troianos (éd.), Analecta Atheniensia ad ius Byzantinum spectantia I, Athènes, 1997, p. 131-140 and p. 141-154.

Notes de fin

* I should like express gratitude to Stéphane Benoist for his kind invitation to take part in the seminar series at Lille, and to thank all those who made comments and suggestions at the time, in particular Pasquale Rosafio. Two further related articles by myself have appeared as follows: «Justinian and his two codes: revisiting P. Oxy. 1814», JJP, 38, 2008 [publ. 2009], p. 73-111 (= Justinian and his two codes) and «Anastasius, Justinian and the pagans: a tale of two law codes and a papyrus», JLA, 2, 2009, p. 183-208 (= Anastasius).

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