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Justinian and The Tribulations of Transformation
Justinian and The Tribulations of Transformation
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by J.E. Atkinson
University of Cape Town
ABSTRACT
Justinian was responsible for a major transformation of the Roman Empire in Late Antiqui
This paper looks at some of the problems which Justinian faced, and some which he cre
in his bid to transform the empire, its legal system and its administration. Problems arose f
the tension between devolution and centralisation, from the blurring of lines of autho
when horizontal structures were favoured over pyramidic, and from Justinian's mixed messa
Procopius and John the Lydian shed light on the impact on the lives of ordinary people in
city, rural areas, bureaucracy and army, of policies such as cost-cutting, rationalisation, rev
enhancement, influx control, strict law enforcement, and the imposition of orthodoxy.
* An earlier version of this paper was presented at the CASA conference at the Universit
the Western Cape in January 1999.1 am very grateful to the two anonymous referees,
went to considerable trouble to suggest how the paper could be improved, though neithe
them was particularly sympathetic to the approach I have adopted. The reader may be s
that I was warned, and am aware that the temptation to use the present to explicate the
may in places have got the better of me.
2 References to the Codex lustinianus (hereafter C.) are according to the edition of P. Krüge
Corpus Iuris Civilis, Vol. 2 (Berlin 1929). The text is translated by S.P. Scott, The Civil L
Vol. 12 (Cincinnati 1932, reprinted New York, AMS Press, 1973).
15
3 G.L. Falchi, 'Studi sulle relazioni tra la legislazione di Giustiniano e la codificazione di leges',
SDHI 59 (1993) 1-172, esp. 24 and 9, cites as examples the reduction of the period of
prescription from 5 to 2 years (C. 4.30.14 of 528), the ban on an advocatus serving as assessor
to two magistrates or holding another post simultaneously (C. 1.51.14 of Sept. 529) and a
revision of the law relating to the admissibility of oral evidence in commercial cases (C.
4.20.18 of May 528).
4 Thus Justinian removed the anomalous retention of the requirements of the ius liberorum
for succession by the mother of a deceased son or daughter: C. 8.58.2 of June 528; Falchi (note
3)13.
5 For example, on the question whether usufruct acquired through a slave should be reduced
proportionately if the slave became co-owned with another, Justinian decided in favour of the
judgement of Salvius Julianus: C. 3.33.15 of Sept 530; Falchi (note 3) 46.
6 For example, C. 1.3.43 enforcing the rule of celibacy in monasteries, and C. 1.5.20 of Nov.
530 imposing restrictions on the activities of heretical sects.
7 O.F. Robinson, 'Public law and Justinian's Institutes', in P.G. Stein & A.D.E. Lewis (edd.),
Studies in Justinian's Institutes in Memory of J.A.C. Thomas (London 1983) 125-33, esp. 131.
8 C. 1.53 of 528. In itself the constitution was nothing new, as it reasserted restrictions
imposed earlier by Valentinian I, Theodosius I and Arcadius: A.H.M. Jones, The Later
Roman Empire (Oxford 1964) 399-400,1160 n. 70.
9 C. 3.1.13. The statute of limitation had a precedent in C.Th. 1.5.3 of 331.
10 C. 3.1 16 and 18.
16
11 Cf. F. Goria, 'Giudici civili e giudici militari nella eta giustinianea', SDHI 61(1995) 452-54.
12 Gaius 3.198; Institutes 4.1.8; Robinson (note 7), esp. 131-32; S. Troianos, 'Die Strafen im
Byzantinischen Recht', JOB 42 (1992) 55-74, notes especially C. 1.3.55 pr. and Novel 142.1.
This is not to overlook the general tendency in late-antique law towards exemplary punishments:
cf. R. MacMullen, 'Judicial savagery in the Roman Empire', Chiron 16 (1986) 147-66,
reprinted in his Changes in the Roman Empire: Essays in the Ordinary (Princeton 1990).
13 O.F. Robinson, 'Some thoughts on Justinian's summary of Roman criminal law', BIDR 33/
34 (1991/2 [1994]), esp. 102-03; C. 4.20.19.
14 For example, Novel 17 pr. (535) urges provincial governors to manage justice in such a way
17
that no appeal case should come to Constantinople unnecessarily, and governors are warned
of imperial wrath if complaints of injustice reach the capital
15 In several documents, including Novel 17.1 (cf. 8.6 and 13; 25.4.2), governors are instructed
to block access to their provinces to officials from the central bureaux, unless they arrive with
a written imperial pragmatic sanction, and in Novel 17.4 governors are told to monitor and
control any official despatched to their provinces to ensure that there is no extortion or
oppression. The law must reflect a reality of some confusion of areas of authority.
16 References in A.M. Honore, 'Some constitutions composed by Justinian', JRS 65 (1975)
107-23, esp. 112.
17 He was a hands-on administrator, who worked long hours even when ill: Procopius, Aed
1.7.6-9; cf. John the Lydian 3.55.1 (all references are to his De magistratibus, on which see
note 42 infra).
18
the effects of entrenched laws, when these were excessively harsh, whereas for Justinian the
concept provided an ideological rationale for autocracy in favour of legal stability.
20B. Rubin, DasZeitalter Iustinians, Vol. 1 (Berlin 1960) 144. For examples of laws addressed
to church officials: C. 1.4.33 (Nov. 534); 1.3.42 (528), 44 (530), 52 (531); Novellae 6 (535),
7 (535), 8 Edictum (535), with instructions for its promulgation in all churches.
21 Cf. P.J. Casey, 'Justinian, the limitanei and Arab-Byzantine relations in the 6th C.', J RA 9
19
23 These lines are taken, slightly modified, from the translation of C. Pharr, The Theodosian
Code (Princeton 1952) 5-6. John the Lydian 3.51.2 refers to acclamations organised by the
consuls for Anastasius.
24 The translation of this extract from the Acta of the Council is taken from W.H.C. Frend,
The Rise of the Monophysite Movement (Cambridge 1972) 41. The Akta dia Kalapodion,
quoted by Theophanes, shows that, at the time of the Nika riots in 532, the Greens were
capable of holding their own when it came to chanting slogans, insults and challenges.
25 C. Roueche, 'Acclamations in the Later Roman Empire', J RS 74 (1984) 181-99, esp. 187,
with reference to ACO 3.84-87 and 102-03.
26 Text in Roueche 1984 (note 25), with translation at 194; cf. her Aphrodisias in Late
Antiquity (London 1989).
27 J. Matthews, The Roman Empire ofAmmianus (London 1989), esp. chap. 11 and p. 248.
28 Theophanes 185.30-186.1; cf. Constantine Porphyrogenitus, De insidiis 46, and Chron.
Paschale, in the translation by M. Whitby and Mary Whitby (Liverpool 1989) 126.
20
33 Evans (note 30) 48; K.M. Hopkins, 'Eunuchs in politics in the Later Roman Empire',
PCPhS 189, n.s. 9 (1963) 62-80, which appears in revised form as chapter4 of his Conquerors
and Slaves (Cambridge 1978) 172-96.
21
22
Δό
Prefect. The emperor was so impressed with the City Prefect as a man of
good breeding, exemplary life-style and munificence, that he agreed to the
44 (a) The principle is readily seen in the dispensation made for North Africa (C. 1.27) and cf.
note 15 supra; (b) Novel 8.4; (c) e.g. Novel 25.
45 For example, Novel 8.2 and 3 on Pacatian Phrygia and Galatia, which shows that the motive
was not cost-cutting; and on North Africa, C. 1.27 (534). Combining posts and paying
officials more for the additional responsibilities tend not to produce net savings.
46 C. 1.4.22 and 23 (529) rule that bishops are not to operate prisons, but are instructed to
monitor the well-being of prisoners; cf. J-U. Krause, Gefängnisse im römischen Reich (Stuttgart
1996), reviewed in ZRG 115 (1998) 615-23.
47 Procopius, Anecd. 27.17 and 29.1-4.
24
48 POxy no. 58, translated in N. Lewis and M. Reinhold, Roman Civilization, Vol. 2 (3rd ed.,
New York 1990)418.
49 C. 12.33.5 (524); Jones (note 8) 605.
50 C. 1.27.2.20 ff. (534); cf. Libanius, Orat. 2.58 re Julian; CTh 1.15.12-13.
51 Growth in itself may reduce internal conflicts (A. Downs, Inside Bureaucracy [Boston
1967] 17), but an expanding service must increase the potential for internal conflict.
52 Carney (note 42) 2.121.
25
55 The count is made from G.G. Archi & A.M. Bartoletti Colombo (edd.), Legum Iustiniani
Imperatoris Vocabularium, Vol. 6: Pars Graeca (Milan 1989) 2576-79.
56 Cf. Evans (note 30) 211; P.T.R. Gray, 'Forgery as an instrument of progress: reconstructing
the theological tradition in the 6th C.', ByzZ 81 (1988) 284-89, esp. 288, in dealing with
ecclesiastical matters, refers to Justinian's efforts 'to restore a past that never existed'.
26
27
28
71 John the Lydian 3.39; 42 adfinenr, 55 (the official line); 57.2; 61.6; 69. Admittedly John
may have found it only prudent not to savage the living emperor: he was writing in the early
550's. Cf. Carney (note 42) 2. chap. 5.
72 Lydus' attack on John the Cappadocian is carefully analysed by J. Caimi, Burocrazia e
diritto nel De magistratibus di Giovanni Lido (Milan 1984) 243 ff.
73 E.g. 3.11.1; 12.1; 14.1.
29
30
78 Novel 122 pr. and cap. 1, trans. Teall. This could hardly have functioned as more than an
emergency measure.
79 Jones (note 8) 280-82; A.A. Vasiliev, A History of the Byzantine Empire (2nd English
edition, Madison 1958) 1.161.
80 For the tendency of closed hierarchic systems to attract the psychologically deficient and
to breed perfectionist narcissists and the arrogant vindictive, see, for example, Hummel (note
38) esp. 206, with reference to an observation by M.A. Diamond.
81 John the Lydian 3.16.7 and 70.1.
82 C. 11.23 pr. (531-34); cf. Novel 162.2 (539); on the specious reason which Justinian gave
for the restriction on migration by coloni see M. Mirkovic, 'The Roman colonate, liberty and
Justinian's humanity,' RIDA 41 (1994) 287-300.
83 John the Lydian 3.70.1-2; cf. 16.2.
84 E.g. Julian, Ep. 22, par. 431c.
31
32