In Our Time - Justinian's Legal Code

Episode Date: November 17, 2016

Melvyn Bragg and guests discuss the ideas brought together under Justinian I, Byzantine emperor in the 6th century AD, which were rediscovered in Western Europe in the Middle Ages and became very influential in the development of laws in many European nations and elsewhere.WithCaroline Humfress Professor of Medieval History at the University of St AndrewsSimon Corcoran Lecturer in Ancient History at Newcastle Universityand Paul du Plessis Senior Lecturer in Civil law and European legal history at the School of Law, University of EdinburghProducer: Simon Tillotson.

Thank you for downloading this episode of In Our Time, for news about In Our Time, and for recommendations about our archive, please follow us on Twitter at BBC In Our Time. I hope you enjoy the programmes. Hello, the Emperor Justinian the Great ruled the Eastern Roman Empire for almost 40 years from Constantinople in the 6th century AD. One of the first things he did was to bring the sprawling mass of Roman laws together in one place in what are commonly known as Justinian's legal code. He denied posterity with this Code, and as he reconquered some of the fallen Western Empire in North Africa and Italy, he hoped this clear, strong laws would consolidate his hold there.

The land that was won was quickly lost after his death. But the legal code has had an impact beyond Justinian's dreams, re-emerging vigorously in the early Middle Ages and influencing the development of laws in Europe and around the world to this day. With me to discuss Justinian's legal code are Caroline Humphreys, Professor of Medieval History at the University of St. Andrews. Simon Corcoran, lecturer in ancient history at Newcastle University, and Paul Duplessy, senior lecturer in civil law at the University of Edinburgh.

Caroline Humphrys, who was Justinian and how did he get there? How did he get to power? So according to contemporary sources, most of them written by elite Constantapolitan writers, it's an amazing story of rags to riches. So Justinian was born in the early 480s, in a village called Tarisium in the Southern Balkans. We're told that he was the son of a farmer, a peasant. His uncle Justin apparently fled a barbarian raid, packed a bag full of grain, headed off to Constantinople,

rose up through the army, sent for his nephew, who was originally born Petrus Sabateus. Having arrived in Constantinople, the imperial capital, Petrus Sabatius then aligned himself with his uncle, and as his uncle rose up through the ranks of the army, so too did Petrus Sabatius. Did he join the army? No, Justinian didn't. He very shrewdly, and I think this is a motif that we'll see emerging time and time again, attached himself to his uncle as he was rising up. 518, his uncle became the emperor. He formally adopted his nephew, who then took his uncle's name, so he became Justinian.

Justinian then seems to have acted as an advisor for Justin. We're told that in the city of Constantinople, which at that point was an incredible metropolis and melting pot of different ethnicities, his Justinian's eye was caught by a young woman, who was the daughter of a circus trainer, a bear trainer. She was called Theodora. They fell madly in love. The story goes that Justinian even got his uncle to pass a new law, which would enable Justinian to marry Theodora.

So he by that point was high-born elite. She was low-born, so the law had to be changed in order for them to actually get married. Justinian then seems to have carried on advising his uncle and he became co-emperor with him on the 1st of April 527. Exactly four months later, his uncle died and Justinian assumed the position of emperor with Theodora by his side as empress.

Apart from the fact that they had little few worries about nepotism, I mean, was there something about Justinian that marked him out as a boy too, young man, then man, to be cultivated and encouraged because of certain abilities which you have not told us about yet? So it's not entirely unheard of, this sort of rags to riches stories for Roman emperor. So there's a tradition there of people from what we would call

peasant stock rising up through the ranks and becoming, But I think Justinian was particularly smart, shrewd, and at least according to sources which we should probably mention are hostile, so Procopius, an elite writer. So therefore more reliable, you think. Well, possibly, although there is a big question about that. But Procopius would say that Justinian was so shrewd, such a kind of operator. He describes him as a devil who would roam the imperial palace. That kind of quality of just determination and being able to do something. is something that comes through very clearly in the hostile narratives that we have.

Now we're talking about, as it were, the eastern half of the Roman Empire, which is then the Roman Empire, from Constantinople, what shape was it in? The West had sort of collapsed-ish in the 5th century and were bits and bobs, Heller Roman Empire, but that was later. So what was Justinian's empire? So during the 5th century, the Eastern Empire had definitely faced challenges, but in the early 5th century, strong emperor Theodosius II had fortified the city of Constantinople, had tried to fortify the eastern borders with the long-running enemy enmity between Rome and Persia carried on. There was then a series of emperor Zeno, Anastasius, who tried to put the Eastern Empire into better shape.

Anastasius managed to get the finances in pretty good order by the time Justinian's uncle came to power. So I think the Eastern Empire was in much better shape, the Western Empire. the last Roman emperor had been deposed five years before Justinian had even been born. When you say in a pretty good shape, that they had Roman troops occupying, they ran the place as they'd run the place before, the rich ran large and people had to pay allegiance to Constantinople in this case. Yes, although they did have, they suffered severe threats from the north, so there were the Huns and the Goths and the Gothic invasions in Constantinople, and great counterfactual history of what if the Goths really had managed to breach the Constantinopolitan walls in the 5th century,

but they didn't, they held them off. So in actual fact, the Eastern Empire was still Roman. In the West, there was no Roman emperor or empire anymore. Thank you. Paul Diplasi, what were Justinian's aims? When he got power, what did he set out to do? He was a restless figure, and even if Procopius is slightly hostile to Justinian, it is clear that this was a man who had a sense of destiny and wanted to not only promote and resource.

store the glories of the Roman Empire, but also make his own mark on history. And we see some glimpses of the aims that he had in some of the imperial constitutions in which effectively set out the project of codifying Roman law. He tells us, for example, in one rather beautiful statement where he says imperial majesty should not just be decorated with arms, but also armed with laws. And I think that's kind of a a very important statement because it sums up Justinian in a sentence or two.

He believed in a strong state militarily, but he also believed in a strong state legally. And what part did Christianity play? Because I've read in the notes of Oliver that he thought that Christianity, he was a fierce, was described as a fierce Christian, would bring prosperity and security.

Is that true? And where did it come from? I think it's definitely true. By this period, of course, the whole of the Roman Empire was long since a Christian empire after the miraculous conversion of Constantine. But Justinian had a difficult relationship with Christianity, primarily because it was a very divided church by this point. And there were schisms within the church, which predated his accession to the throne.

And for all of his reign, he tried desperately to get the two parties within the church to sit down and he sort of patched things up towards the end but not quite. This is the Pope and Constantinople, the patriarch. Well, more so that there was a schism in the church between about the true nature of Christ, about whether Christ only had a spiritual being or whether Christ had a sort of human side as well. And these two factions within the church were basically at logger. heads for much of his. But do we know why he's so keen, why he was so determined, and why he believed it would bring prosperity and security, A, and B, how did that infuse

these making of laws? There's a lot of scholarship about exactly this point. Certainly some scholars seem to believe that he saw Christianity as an important part of reinforcing the legitimacy of his reign in a way. So it was political, it wasn't emotional. probably a bit of emotion as well, because his wife Theodora was certainly very definitely in one of the two camps. And I, yeah, I think there might be an element. What does that mean? One of the two camps? Which camp? She was a monophosite, yes. And so she believed in the spiritual, only in a spiritual manifestation of Christ rather than an earthly manifestation of Christ. But he, we see throughout his reign certainly in the trappings of monarchy that he, in the process.

and the way the court was structured and so and so forth and the physical trappings of monarchy, that he tries to put the point across that the source of his power is the same source as Christianity. So it comes from a kind of, he sees himself as ordained almost by divine. It feels entitled to talk and to write theology and to dispute with great church figures and to put them down as well as rule, as well as being military command and so on. Indeed. That entitlement comes with his conviction and his position, if you're emperor, nobody is going to quarrel that much with you.

Yes. Okay. Simon Corcoran, what particular problems did he face? Did he take to the law because he saw it as a mess? What did he take to it because he saw it as a mission? They could be both, of course. Still, let's start with the mess. Well, I think in many ways the situation with the law

is that which we find with many types of legal systems where they are complex with highly trained lawyers and a complex system of courts. These things are often subject to delay, complexity, obscurity. It had been a long-standing trope of commentators in the Roman Empire that the law had problems of both slowness and corruption. Amianus Marsilinus in the late 4th century delivered a memorable attack on lawyers

whom he described as coming in many types from the ignorant to the overly crafty. And in the mid-fifth century, the diplomat Priscus, who visited the court of Attila, recounts a supposed meeting that he had with a renegade Roman. And the renegade Roman said, well, of course the system in the empire is just too corrupt and too slow.

There was one case that went on for 40 years. Well, certainly some cases do go on for a very long period of time. Like 40 years? Well, like 40 years. But what Priscus did say was that you can be have swift, hasty justice, or you can have proper systems of appeals in order to be able to consider to have things that are logical. However, one of the key things was knowing what the law was. And here the case was that although there were large numbers of authoritative legal texts,

there were almost so many that it was difficult to pick your way among them for people to know what the law was, and when new individual laws were promulgated, for people to actually find out what had been propagated and what may be contradicted another. And I think this idea of bringing things together into a clear, up-to-date, harmonious whole and to create what I might call a one-stop shop, I think this is something, an important driver.

Because once you've got that, at least you know where you're starting from as you go into the future. And we're most clear to listeners, there's an awful lot of law about it. he didn't come to a lawless place. He came to a place that had been working with law for centuries, and he took that laws in, and there are books and books and books,

and systems, different systems. So can you give the list of some idea of how much stuff there was, who was asking his lawyers to deal with? Well, on the one hand, there were a series of what are called codes of imperial constitutions, that is, legislation issued by emperors. The most important of these was the Code of Theodosius II, which had been issued in the 430s, and this contained edited versions of imperial laws issued by emperors

between Constantine and Theodosius. But there had been two earlier private collections of imperial constitutions, which took materials far back as the Emperor Hadrian. And alongside all this imperial material, there was a long tradition of writing by legal experts, by jurists, and many of these effectively had become canonised by the late empire. It is interesting that after about 80300, we know the names of very few authors of legal tracts,

but masses of legal tracts of their predecessors survived and were constantly being worked on people like Pippinian and Alpian, who had been working in the era of the late second and early 3rd centuries. And when you use the word masses, do you mean thousands? Well, certainly thousands of individual books. And a lot of these works were very, very long. When you talk about imperialist and imperialism, are these laws for each other, for the ruling? Or are in a sense these are laws for the people to help the people through, you know, the mess of living? I think there's a little bit of both.

Obviously, people who get access to the courts and to the emperors are often people who are wealthier, but not only those. There was a long tradition of petition and response, even from people of low status. And we certainly know that a lot of the material that makes it way, makes its way into these types of collections. originated in real petitions from ordinary people, worried about their property, worried about succession and inheritance, worried about status and all these types of things. And the emperors respond to that

and issue various rulings in response. The emperors were open to being approached by anybody, as it were, to come to their court and petition that this law should be changed because my wife's getting all the inheritance and I wanted to go to my children as well and so on, that sort of thing. Basically, yes, although there are always practices, practical difficulties in getting close to the person in power. And I suppose one thing that one might see is that as the emperor particularly becomes permanently fixed in Constantinople, unlike earlier emperors who travelled around the empire a great deal,

the control of space in getting access to the emperor became a bit more difficult. Thank you very much. Caroline Humper is back to you. Let's start with these works. There are three big ones, as it were, in one. P.S. Postcript and novella. Let's start about the codex. What was it? And tell people what a codex means. And let's go on with the codex. So, Justinian, as I mentioned, came to power 1st of August 527. Within six months, he'd announced the project of producing this codex. A codex is the Latin word for book, basically. So we would think of it, this is a law book. He'd announced that to the Constantin Parliament Senate that he was going to do this compilation, as Simon said, of imperial constitutions using the earlier codes, which Simon mentioned, putting together the law so that it was coherent, ordered and easily accessible.

So there is that element, even with this first project, this first legal project of Jacinian, that he wanted it to be useful, he intended it to be used in practice. How many people did, where did you find the people to put onto it? Who did you put on it? So initially the people that he put onto it mostly were high-ranking bureaucrats who were involved in administering law in the Palatine, in the Imperial Palace in Constantinople. Later he would also bring in law professors from the big law schools of authorised law schools of Beirut and Constantinople

and possibly also Rome. So he was bringing in legal expertise but I think that as well as being a powerful ideological statement and we can come back to that perhaps later the code was intended to actually be of practical use it was about putting the law in order. Wasn't like one of these inquiries

which goes on forever and ever and ever it's basically kicking something at a long grass? So I did he say let's get it done by it? So Justinian meant business from the first. So the first code was actually issued. He said that it was to come into force in Easter 529. So literally a year later, he had managed to achieve this. He then realized, as part of the problems arose,

as they were trying to put this code together, looking at the earlier juristic material. So those books mentioned by Simon previously written by the legal experts, he wanted everything to be coherent. So to go back to what Paul was saying, There is this very characteristic Justinianic idea that there is an order and harmony in heaven, which the Christian God promotes, and that it's the emperor's purpose to try and realize that order and harmony on Earth too. So it was a huge problem for Justinian to realize that having put this code together and said, you know, this is ordered, harmonious, everything in it, you know, he then finds that actually there are things which are contradicted in the other legal writings. So he then decides to do a second code to revise it

at the same time as going forward in producing these other books, the Digest and the Institutes. Can I turn to Paul on this, still on this code? Pauline Your Blessy. How was it applied? So it comes out just a year later. Blessed State they lived in then. And it is applied how and by whom and what effect did it have?

It was meant to replace all earlier constitutions apart from the ones that were subsequently added to by himself. So he instructs his subjects basically not to refer from there on onwards to any older compilations of imperial material. They can only use the codex and they have to use it not just in the teaching of law but also in the courts. And that is the interesting thing. How would one use it in a court of law? Now, of course, it was not the first time that the Romans had encountered imperial law as a source of law in their courts. There's a very long tradition in the Western Roman Empire before then of using imperial constitutions to augment the juristic material in a court of law.

So one assumes that what happened was in these cases people would cite in a court of law extracts from the codex as evidence of juristic or evidence of imperial intervention into juristic law. So he got it out and he got it around the empire in double quick time and it is being used. People are going to law on the law and the previous ones are out of court as it were and they go they're going to battle with the codex.

And we do we have any examples of how effective it was? Was it more effective than the previous lot? Well, as Caroline has mentioned, it certainly promoted legal certainty in a way because one of Justinian's bugbearer, so to speak, at the start of his codification project, was that the law was, he says in one of the imperial inconstitution, starting the project,

he founded a splendid mass of confusion or something to that effect. and so certainly there was more legal certainty in that sense that there was only now the codex however you know the fact that he had to later revisit the codex and redo a second version of it suggests to us that his idea of having legal certainty was probably a false idea and because lies would insist on annotating it and

little twists and turns sort of messing it up basically I think I'm amusing mess a lot this morning. I'm going to apologize. Simon, Simon Corkran. Caroline's alluded to the Digest, which was as if we were, the next big book. A, can you tell us about that? But can we bring in an idea that Caroline again brought up

that he wanted the law to represent what he saw as the overarching perfection of heaven? He would reflect in his law. How's that project getting on in the Digest? First of all, what's the Digest? and how is it fulfilling this project he had? Right. Well, I think here we have to mention somebody else who's now going to perhaps slightly supplant our view of Justinian,

which is the lawyer, Trebonian. After the First Code was promulgated, the Quester, that is the Chief Legal Officer, fell from power being accused of being a crypto pagan, and Trebonian took over. Now, Trubonian had been involved in the Commission for the First Code, but it's notable that as soon as he comes into, to a power, imperial constitutions start to reflect engagement with the writings of the classical

jurists. And then we come to the 50 decisions. Now, these were... Hold on. I haven't said enough about Trebonian. Oh, I'm going to tell you about Trebonian. I jumped the gun. Right, there we go. This is Trebonian, I think this is Trebonian's project. Treboni is engaging with the classical jurists. He knows there are lots of conflicts among the classical jurists on various points which were never settled. We joined the Metallardic Juris' First, Second Century.

Basically, between Augustus to Diocletian, so from the turn of the era down to AD300. Okay. And with these 50 decisions, he gets Justinian to issue definitive rulings to settle these disputes. And once this is in about the F-530, this then leads straight on to thinking, we've started this dealing with the jurists.

Now we're going to have this larger project looking at all the writings of the jurists over this three or four. 100-year period from these earlier writings and put them into a coherent form, which will not only get all the best from those writings and put them into this logical way, but then will be updated and revised in line with the different changes that have already been made in the 50 decisions and other things that happened. For instance, one thing that they did was to try and clear out a lot of obsolete aspects of Roman law

that had built up over time, so the obsolete statuses were finally abolished. So the writings of the jurists were taken, they were edited, they were shortened, they were arranged under thematic titles across 50 books, although the names of the original authors were always kept, the names of the original authors were always kept at the head of every single extract of these particular writers. And it took three years to bring these together. Sounds like a brief summer breeze compared with Lovinskine's going.

nonsense? Well, that is true. That is true. There was even a major revolt in the middle of this, the so-called Nica riot at the beginning of 532, which started out as trouble with the circus factions in the hippodrome to do with chariot races and actually turned into a proper rebellion. Trebonian was dismissed from his post as Queester, but he stayed in charge of the Commission for the Digest, and so that in the next year, at the end of 533, the Digest was finally promulgated. And it was then the one-stop shop for the jurist. Caroline. So just to sort of make this a bit clearer, the problem with the classical jurists, of course, were that they were writing in the period that was before the official Christian Empire. So you have all of these individual legal experts,

but Christianity isn't mentioned by one of them. So Trebonian had to effectively Christianise this material, and he did it not by changing what these classical jurists were saying, but by introducing these text with these big prefaces. So he announced the compilation of the Digest in the name of Jesus Christ. He says in the preface, the preface, that the whole work should be considered as have been authored by God under the inspiration of the Holy Spirit. So there's a very, it's a very clever way of Christianising all of this pagan material without actually changing a word of that pagan material apart from exerting it and putting it into a different order.

Maybe this, can you give us a few instances of the newness of these laws and what effect they had on what we can call ordinary people, if there were any ordinary people in the Eastern, Roman Empire. But seriously, can you give us some instances? We've had a lot of good talk, but what happens when you get to court with what happened because of the new laws? So there are two concrete cases. I'm not sure if there are ordinary people. I think they're probably elite cases, but they do involve women, interestingly. So Justinian's second novel, the text that he issues after the compilation of the Corpus Uris-Cavilis has been completed. You're very defined novel. So novel basically means new law. So he couldn't stop legislating. He issues the the complete, what we would now call Corpus Uriscovillus in 534, and then he says that new events

daily get thrown up, so he has to carry on legislating, he has to carry on responding. So the new law number two has a woman named Gregoria, who writes to Justinian, and she says that she has a bitter dispute with her daughter, because her daughter is trying to take the whole of the father's inheritance for herself, excluding Gregoria his wife. The daughter apparently has gone into court and cited extracts, from Justinian's Codex in support of her case. The mother says that there is another law in the Codex which actually supports her side.

The judgment goes against her. The mother then appeals to Justinian. But interestingly, the mother says that Justinian should act as the most just and most equitable emperor and decide in favour of her. So this is a very concrete example of how Justinian wasn't bound by his own laws. He could also act in a way which was seen as being

the sort of the caring paternal idea of justice is also crucially important. We have another case from another later novel of a woman named Thetla, Thetla Manus. Again, she's complaining that she's being excluded from the inheritance this time of her niece and being excluded by the niece's uncle. So these are very concrete cases.

And there's one which I've got to mention. It took two years. A man from Egypt. Yes, Dioscarus of Aphrodite. No, I just wanted to say that name on her. Oscarus Aphrodito. He was thought to be the worst poet in antiquity. I wanted to say that as well.

It's very mean. His poetry isn't that bad, you know. But he was a brilliant, brilliant lawyer. He went with a group from his village in Egypt. They went to Consangelo-Nab, and spent two years working their petitioner and got what they wanted. Yes, and what did they want? So they wanted, this was a particular instance,

although there were many, this particular one was over a tax dispute. So the village where Dioschorus came from had got the right to collect its own taxes and collect forward those to the emperor. There was someone a powerful local notable was trying to take that right away from them. They first of all tried writing to Theodora, but unfortunately it seems that the petition arrived after she died in Constantinople, so they got nowhere. We also know that they tried to write from Egypt to Justinian himself in Constantinople, and there seems to have been no response. So Dioscarus gathered together his merry band of notables, including. including Christian clerics and bishops, I think is very interesting, and they travelled to Constantinople, and they stayed in Constantinople for two years.

We don't know the outcome of that stay, whether it was successful or not. But also, I mean, we need to consider these are elite individuals within their village, and it must have cost a lot of money for them to go off to Constantinople and lodge there for two years. Paul Diplussi, and now we've had the Codex, we've talked about that, and we've talked about the Digest, which is massive compilation, really, which then is being used. But there's further.

He wants to go even further. So we have the Institute. Yes. The Institutes. The Institute, yes. The Institute should be seen as pretty much part and parcel of the Digest Project because the two things were pretty much done back to back. Justinian had by then realized that in order to succeed with his aim of reforming Roman law,

he also needed to intervene in legal education. And one way in which he could intervene in legal education was to create a state-backed textbook, which he would sanction, and as far as we know, it's the only textbook in the history of textbooks that has an official sanction, state sanction in this way. And this would then become the basic textbook that students had to study from in the first year

if they wanted to become lawyers. It was a five-year course, being a five-year course. Yes, legal education had already formalized by then since the third century onwards. There were law schools in Beirut and Constantinople. And this textbook was designed, much like modern legal textbooks still are, to provide students with the kind of basics of the law, the rudiments of the law, in a much more straightforward manner than the, they could, for example, find in the digest. So you started off.

Well, the institutes, for example, will give you a summary of, say, what the Roman law on a specific topic will be in very sort of programmatic statements. It will say if you want to contract a sale, you need to agree on the price and you need to agree on the object and so on, so forth. Fair enough. that teaches a student how a sale works, it's a consensual contract based on price, you know, agreement about price and object.

If one then moves over to the corresponding passages in the digest, you find the whole plethora of juristic discussion as to whether that's exactly true and what the implications of this can be and all of the manifold problems that can arise out of not agreeing or thinking that one agreed on something and so on and so forth. So it's a kind of programmatic statement

that start students off in a gentle way. So in the end it has to be judged, doesn't it? And what Justinian hope? There you go, get on with it, do exactly as I say. It didn't happen like that. Oh, well. As my friends say. I think every project probably has certain aspirations

and not all of them are met. But certainly as far as the institutes are concerned, it has turned out to be one of the most successful. successful textbooks of all times. You mean still today? Still today. It forms part of any course on Roman law. You start off with the institutes. Because the institutes tell you not only about Roman law,

they give you the tools and the structures to think about modern law as well. Simon, Simon Cochran, as I said, he thought he had everything covered. But then these lawyers came interfering with his master plan. And then there were what, the novella, the new things coming up, to that. Can you just take us through those, please? Yes, well, the revised edition of the Code of Imperial Constitutions came out at the end of 534.

But of course, law just doesn't stop. That was now, these three works were a starting point for a whole new process. And Justinian continued to issue a great many laws. He continued to be asked to make rulings. The examples that Caroline has given are precisely

from novels, new laws, where People petition the emperor to resolve cases. They wanted them resolved in their favor. And he issued these rulings in response. Which went into law? Which went into law. They went into law. And he also, the great administrative law that needed to be passed,

he reorganized the government of a great many provinces, including Egypt. He had to deal with the new situation in Africa and Italy that had been or were in the process of being. of being reconquered. So there were always new things that needed to be legislated about. And these were the novels. And although he said that he would eventually collect these and perhaps revise the code again, he never actually did that. So it was down to the law teachers to make collections of the material and to work out how to teach it, integrating it, so that it then answered with the existing codified material. By that time, thank you very much, Caroline, And by that time, the church had become not only an institution, but a power,

and wanted to exercise its political power and tried to do so. And you had ecclesiastical law as well as, let's call it Justinian law for the moment. What happened between the two? So I think here one of Justinian's novels has this very interesting sentence where he says that our subjects are our constant care, whether they are alive or dead. So I think we have to take quite seriously this idea that Justinian thought of himself as a Christian emperor, and he had the general care for the empire in the state. sense of keeping it Christian Orthodox.

So his relationship with the church was quite fraught because, of course, if you're a major player in the ecclesiastical circle, it's your job to enforce orthodoxy and to make sure that people believe the correct Christian doctrine and live good Christian lives. But Justinian actually tried to legislate for that. Paul, Pauli, how did these works, as you're written in Latin for a largely Greek-speaking world, reemerge in the West in about the 11th century? It's a very interesting story and one about which a lot has been written. The re-emergence of the corpus ures by Justinian is inextricably bound up with the rise of the medieval university.

The story goes that when Justinian had finally conquered Italy again, a copy of the Corpus Uris was sent down to Italy. and somehow made its way past the problems of the later medieval period and re-emerged in a library. There is a wonderful tale about how it was stolen by one of the Italian city states after a skirmish with another and it ended up in a library. And that's how we have it today. And he went to Bologna?

It went eventually. Which we can say is the first medieval university and developed from there. And the law schools developed in the universities, which were taking off in the mid-11, mid-12th and later centuries. How did Simon, how did medieval lawyers reconcile the world that they lived in? Because they'd been living in a world without Justinian's laws for quite a while, with Justinian's laws. Well, I think there's a two-part process here.

I mean, we've already mentioned Bologna as the first university, almost in the first university, almost in the modern style emerging in the 12th century. I think the lawyers, when they got their hands on the digest, I think they loved it. What they found here was not just a bald statement of rules, but they found accounts of lawyers arguing with each other, wandering around the topic, exploring all the issues, and suddenly legal thinking was something they could do. A lot of the earlier codes in the early Middle Ages,

had been a little bit more dogmatic, a little more just lists of rules. This was something specifically for lawyers, and they could really get their teeth into it. And they tended to take it and run with it. I just wanted to add that in one of the prefaces that we mentioned to the digest, Justinian or Tribonian actually states that everything which is written in the digest should be considered as written reason. So when you get to the Middle Ages and you've got this incredible mosaic of different local customs and people doing different things, it's very appealing for a lawyer to be.

be able to go to a text which actually says this is written reason and to try and use that text to reconcile the problems of conflicting customs and local practices and try to produce something which was more in common, which is where we get this idea of the Yus Kumune from as well. Especially as the idea of reason was percolating through into, particularly the university centres of view at that time. So it links in with developments in philosophy, with scholastic movements. And we know that in 1149, the text of the digest was brought to oxy, University and Roman law was taught there as part of the curriculum.

Yeah, I think it's important to stress as Caroline has just done that Roman law in the medieval period at medieval Italian universities and elsewhere was never taught us the law of the land, so to speak. It was taught in addition to the law of the land as a kind of idealised system that one could look up to and could also provide a form of dispute resolution. So if two city-states had a conflict and they had different local rules upon a topic, they could look towards Roman law for a unifying rule and decide maybe to apply the Roman rule instead of the local rule. I think one important point to make clear is that just as Justinian had put the law between 528 and 534 into a fixed permanent form, the medieval lawyers did the same in Bologna.

And they created a form of what we call the corpus Euris-Cavilius, the corpus of, the corpus of civil law, in five volumes of which the first three volumes were their version of the digest. The fourth volume was part of the Codex of Imperial Constitutions, and the fifth volume included other things, the institutes, other bits of the code, and particularly the novels, which they now were incorporating in their overall view of what Justinian had done. And that was a fixed thing that everybody agreed upon as turned to a text that they could argue about. Can we take a tiny digression, although we haven't got much time, You spoke of Theodora, the daughter of a circus manager, and the powerful influence,

she's been called worse than the daughter of a circus manager in her time. Anyway, she had a very powerful influence on him, didn't she? Can you just briefly say that? So there is a law where Justinian actually states a very famous law going to the administration of the provinces, the reconquering of the West, where Justinian actually states in a preface that he didn't know what to do about reordering the provinces. So he asked his wife, Theodora. So there is that definite reference, but I think that's Theodora.

his influence over Justinian can be overstated because we tend to neglect the fact that he had these powerful legal advisors men like Trebonian, the high ranking and so there's a team aspect there this certainly isn't the age old tale of a woman ruling over her husband.

Well we've got that cleared up and secondly to get cleared up he was buried with full of military honours and he saw himself as a great military man he was at war and war and war war with the visigoths, this goths that sort of gods and he called them barbarians although they had written great laws themselves. Before he did as well. So that is going on, but we're going to concentrate on Justinian's laws.

Okay, what influence would you say as workers have? Well, I think, first of all, correct me if I'm wrong, but I think it is the largest body of Latin text that we have in existence. It is larger than any other body of classical authors all put together. So that in itself makes it worth studying, I think. But apart from that, it still provides the framework of legal thought thousands of years later, which is an interesting idea. Can we take English laws we have now? Where is this?

So English law has a rather distinctive route of development. So it's common law. It's quite different system from the civilian legal system, which is the one which developed out of the Justidianic Corpus Eurisciel is the body of the civil law. English common law is mainly based on custom, royal writ, but Roman law also is important to the history of the English common law because there was a court of equity where Roman law was used

and also because of the Romano canonical tradition which comes through the church. Ecclesiastical law is. Simon, would you like to add to that? Well, I suppose one of the classic things where Roman influence is found upon English law is precisely freedom of testation, the freedom to make wills more or less as you want to. that is a classic Roman law concept. And because the medieval church controlled wills, that was one way that these Roman legal ideas

entered the English legal tradition. In his day, was he thought of Justinian the lawgiver or Justinian the reconquerer of empires and so on? It depends who you ask. If we ask Justinian himself, so we're told by contemporary sources that when he was buried, his funeral palium,

the robe that was covered his coffin, was decorated with scenes from the reconquering of the West. So I think Justinian wanted to be remembered as a great military man, but also obviously the legal side of it was all about this idea of putting, you know, putting the cosmos in order, making the human world mirror the divine world. So I think that was also extremely important to him. And the church, reconciling the church and forcing orthodoxy,

as Paul said before, was one of his dearest hopes and wishes. And he wasn't very successful in that end at all. Well, thank you very much. Caroline Humphreys, Simon Cochran, Paul Duplessy. Next week we'll be discussing the Teutonic Knights, the Baltic Crusades against the pagans in the 12th century and onwards. And thank you very much for listening. And the In Our Time podcast gets some extra time now with a few minutes of bonus material from Melvin and his guests. So what did we miss, Simon? Can I say something about bilingual education? Sure. One of the key points about the 6th century, which you did allude to, is the fact that you've got a largely Greek, speaking student body being taught largely Latin material. And so that what happens is they have to

create Greek lecture courses, interlinear cribs, and you're supposed to use those to help understand the Latin. But what happens in the continuing empire is that effectively they just can't cope with the Latin anymore and they start using all the Greek cribs. And this is the material that then gets codified in the continuing Byzantine Empire. And actually that has a long-term influence on the Orthodox world. And I was watching the film Afireim. It's a Romanian film about slave hunting in 1830s

Wolletia in the last years of Ottoman suzerainty. And at one point, the constable says to the angry lord who wants to castrate his slave, you cannot do that. He's against the law. And in fact, that is a Roman law that you find in the Justinian Code, which had gone its way through the Greek

tradition, all through the medieval period, on into the early modern period. And then you get the other side whereby a lot of the new laws, the novels which were done in Greek, a lot of Latin materials were created to teach those to Latin speakers in Constantinople and Italy. And that then provided the core of this Greek material turned into Latin, which then goes through on into the medieval West. So you get the Roman law dividing and starts off as a bilingual enterprise in the 6th century and then it divides Greek going on through the Byzantine Empire and the Latin

going through the medieval West. How much you had time for that? I think one of the thing we didn't mention and should of is just the sheer proliferation of the civilian legal tradition. So if you're looking at the French Code Seville promulgated by Napoleon in 1804, or you're looking at the Germans in the code. I didn't ask you for influence it. She should brought it up then. Yeah, absolutely. No, but these are crucial. You know, the fact that the German and the the French and various, the Austrian used the structure of Roman law, then means that also, if you are looking to Latin America, you find that there is this, you know, albeit a zigzagged inheritance, but the

Roman, the way in which Justinian structured Roman law, the typology of it, has been hugely influential. The institutes contains basically the scheme or a sort of skeleton of private law, and that scheme or skeleton of private law is still with us.

Did you say private law? Yeah. Basically private law. There's a bit of public law in there, but mostly private law. So... Inheritance and that sort of stuff. Yeah, how to divide different areas of law and how they're related. Just backing up Simon's point, the division between the Greek and the Latin, of course, was particularly felt in the late medieval period when the first generations of medieval jurors started looking at the digest, copies of the digest.

They had a very, very patchy knowledge of Greek. And generally, where there was a bit of Greek in the Corpusurus, they would just say Greikon-le-Guntur. Greek is not read or basically we can't read Greek and so they would just leave bits out and it wasn't until the fall of the Byzantine Empire

in 1453 that the knowledge of those Greek manuscripts comes into the Latin West and then starts the whole flowering of what is now known as humanism where scholars start to look at the manuscripts

much more closely and this is also at that period then we start to find the first critical editions of the digest. The Corpusura is being created now with the new Greek bits, re-added to it. You should do a programme on the Byzantine legal tradition as well, which is extremely important. So I think we've focused mainly on the West. And that actually...

Justinianic, yeah. Yeah, there's a long, continuous tradition. Justinianic, there's Justinianic code, lasts all the way through the Byzantine Empire, right up to the mid-15th century. And then, of course, makes it into... the Ottoman Empire as well, their legal ideas.

If I can make one point about the text of the the Code of Imperial Constitutions, the Justinian Code itself, even today we don't have all the Greek that was in it because so much of it survived in the Western tradition and in the Eastern tradition it was recompiled into other collections. So actually there are still bits that we don't have

and that's a result of this bifurcation that we get. Well, thank you all very much. I hope you enjoyed it. Ah, now the announcement of the morning from our producer. It's tea or coffee. Oh, yeah. Jeffrey Hackney, Fordham College, Oxford, nailed me and said,

you know, they liked in that time, but where was law? And the great thing to start all the world was just in it. So this is Jeffrey. This is a, you couldn't put it on air. That would have been too silly. But this podcast thing goes bananas. Jeffrey, thank you very much.

And thank you. Thank you. Thank you. There are more than 700 programs to download and listen to for free. from the In Our Time website. We'll also find a reading list for this episode.