The principal characteristics of Roman law during Late Antiquity were the way that the emperor became the sole source of law and the increasingly separate development of law in East and West from the late 4th century onwards. Some scholars have considered Late Antiquity a period of legal decline and vulgarization, but such views are no longer generally accepted. One may rather speak of an intellectual shift or evolution of Roman law, from the ‘classical’ law of the early 3rd century towards the later law of the 6th century.
From the end of the 4th century onwards, Roman law developed differently in the East and the West, despite attempts at harmonization. Scholars generally agree that intellectual standards in the East were higher and the legal tradition stronger. In the late 5th century there was a classicizing revival in the eastern law schools that eventually culminated in the codification under Justinian I.
In the early 3rd century, citizenship was extended to almost all free people of the Empire. Citizens had better access to legal advice and courts of law. The quality of judicial decisions improved because judges often had legally trained assessors to advise them, and by the late 3rd century governors of provinces were working primarily as judges and administrators. In the next generation Constantine I in the course of favouring Christianity formalized an alternative system of dispute resolution through bishops’ courts (episcopalis audientia). The law became more technical and was managed by skilled officials. This led to a programme of law reform and prepared the way for the compilation of the Theodosian Code in the 5th century and Justinian’s Code in the 6th century.
Independent legal writing came to an end under Constantine I, and most new law emanated from the emperor. Classical private law continued to be applied over a large area, with only small modifications. Constantine and his successors did not introduce many changes into the field of private law, but constitutions issued in the name of the emperor did, on occasion, institute new provisions dealing with private law. Many of these constitutions were included in the codifications.
In the East there was a tradition of legal education, and classical Roman law texts were analysed in the law schools, especially in Beirut and Constantinople. Many teachers, as well as officials and practising lawyers, were consequently available when Justinian codified the law. These compilers had been trained in classical law and it was inevitable that they would move back to classical Roman private law as it had been modified in the post-classical period. Further, Justinian was a reformer and he favoured fair solutions. He removed many discarded institutions and sophisticated distinctions, and also settled points which had been in dispute between the classical lawyers. This can be seen clearly in the case of contracts. In addition, many new provisions dealing with private law were issued by Justinian and published in his Novels (NovJust), in particular in the fields of family law and the law of succession (inheritance).
Civil law and ‘criminal’ law
In the Later Roman Empire new law emanated from the Emperor. Constitutions were issued in his name by the various official imperial bureaux. ‘Criminal’ legislation was concerned more with penalties than with the academic definition of offences. The new categories of ‘crimes’ created during this period all related to abduction and to offences against the Christian religion. Justinian’s commission compiled existing ‘criminal’ law into a systematic whole. Books 47–9 of the Digest and Book 9 of the Codex describe criminal law, procedure, and penalties. The Roman distinction between public and private offences had important consequences for procedure and penalties. A distinction was made between private delicts, extraordinary crimes, and public delicts.
Late Antiquity’s modern reputation as a period of torture and terror is largely based on the application of ‘criminal’ law. The function of terror was to discourage the wicked and secure justice, and the most important motives for inflicting punishment were retribution and deterrence. Roman ‘criminal’ cases were heard before a judge and although the right of appeal was widely available, access to appeals was restricted. In the area of punishment, changes introduced during this period suggest that more humane values had a real impact.
Apart from the codes, legal sources from Late Antiquity are relatively scarce. From the late 5th century onwards the Germanic kings who had come to reign in the West as a result of the Barbarian Migrations saw a serious need for law to be restated for both their Germanic and their Roman subjects (see law, Germanic and post-Roman).
In the Eastern Roman Empire classical jurisprudential literature was still in use, as is demonstrated by Theodosius II’s Law of Citations. Two codifications, the Gregorian Code and the Hermogenianic Code, were undertaken, perhaps semi-officially, by officials of the Tetrarchy, but survive only in fragments and insofar as they are incoporated into the two later and official codifications, the Theodosian Code and Justinian’s Code (the Codex Juris Civilis). The aim of Justinian’s commission was to transform the masses of Roman law into a system that could be used for the academic teaching of law and legal practice. However a system of law published in Latin raised difficulties where Greek was increasingly the current language and translations became necessary, as well as commentaries and epitomes to enable lawyers to read the law.
An outstanding feature of the surviving legal literature of this period is that it consists of anonymous abridgements, demonstrating various receptions, reuses and re-formulations of classical material. Most of the surviving legal literature derives from the West, and is known through its use in Germanic codes. Eastern works have largely disappeared; probably because the compilations of Justinian made them obsolete.
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