Friday, May 2, 2014

Further on the Theodosian Code

From page 128-9 of Heather’s The Fall of the Roman Empire: “. . . After their rousing introduction, the assembled Roman fathers get down to the nitty-gritty:

“We give thanks for this regulation of Yours!” (repeated 23 times)

“You have removed the ambiguities of the imperial constitutions!” (23 times)

“Pious emperors thus wisely plan!” (26 times)

“You wisely provide for lawsuits. You provide for the public peace!” (25 times)

“Let many copies of the Code be made to be kept in the governmental offices!” (10 times)

“Let them be kept under seal in the public bureau!” (20 times)

“In order that the established laws may not be falsified, let many copies be made!” (25 times)

“In order that the established laws may not be falsified, let all copies be written out in letters!” (18 times)

“To this copy which will be made by the consitutionaries, let no annotations upon the law be added!” (12 times)

“We request that copies to be kept in the imperial bureau shall be made at public expense!” (16 times)

“We ask that no laws be promulgated in reply to supplications!” (21 times)

“All the rights of landowners are thrown into confusion by such surreptitious actions!” (17 times)

Heather then writes, “A ceremony introducing a new compendium of law was a highly meaningful moment for the Roman state. We’ve already seen the role that education and self-government played in the traditional Roman self-image. For Roman society as a whole, written law possessed a similarly loaded significance. Again in the Romans’ own view of things, its existence made Roman society the best of all possible means of ordering humanity. Above all, written law freed men from the fear of arbitrary action on the part of the powerful (the Latin word for freedom – libertas – carried the technical meaning ‘freedom under the law’). Legal disputes were treated on their merits; the powerful could not override the rest. And Christianization merely strengthened the ideological importance ascribed to written law. For whereas Christian intellectuals could criticize as elitist the moral education offered by the grammarian, and hold up the uneducated Holy Man from the desert as an alternative figure of virtue, the law was not open to the same kind of criticism. It protected everyone in their designated social positions. It also had a unifying cultural resonance, since God’s law, whether in the form of Moses and the Ten Commandments or Christ as the new life-giving law, was central to Judeo-Christian tradition. In ideological terms, therefore, it became easy to portray all-encompassing written Roman law – as opposed to elite literary culture – as the key ingredient of the newly Christian Empire’s claim to uphold a divinely ordained social order.”

Frederick Maitland gives us a less-sanguine view of Theodosius’ accomplishment: In his History of English Law, volume 1 page 5 he writes, “Among the gigantic events of the fifth century the issue of a statue-book seems small. Nevertheless, through the turmoil we see two stature-books, that of Theodosius II and that of Euric the West Goth. The Theodosian Code was an official collection of imperial statures beginning with those of Constantine I. It was issued in 438 with the consent of Valentinian III. Who was reigning in the West. No perfect copy of it has reached us. This by itself would tell a sad tale; but we remember how rapidly the empire was being torn in shreds. Already Britain was abandoned (407). We may doubt whether the statute-book of Thodosius ever reached our shores until it had been edited by Jacques Godefroi. . . Already before this code was published the hordes of Alans, Vandals and Sueves had swept across Gaul and Spain; already the Vandals were in Africa. Already Rome had been sacked by the West Goths; they were founding a kingdom in southern Gaul and were soon to have a statute-book of their own. Gaiseric was not far off, nor Atilla. Also let us remember that this Theodosian Code was by no means well designed if it was to perpetuate the memory of Roman civil science in that stormy age. It was no ‘code’ in our modern sense of that term. It was only a more or less methodic collection of modern statutes. Also it contained many things that the barbarians had better not have read; bloody laws against heretics, for example.

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