Decoding Late Roman Law

Abstract

Who was the longest reigning Roman emperor? Perhaps somewhat surprisingly, the answer is not one of the more obvious potential candidates Augustus, Constantine, Justinian but Theodosius II, whose official tenure of the imperial office lasted nearly half a century (A.D. 402-50).1 Why then does his name not feature more prominently in most people's mental landscape of Roman imperial history? It is of course partly because the fifth century is generally less familiar territory, but also because the sources for Theodosius' life leave an impression of a roi faineant, of a relatively unassertive individual who was more interested in scholarly pursuits and personal piety than in exercising political power; Edward Gibbon went so far as to write of 'the vacant throne of Theodosius' and to insinuate that he effectively remained a minor throughout his time as emperor.2 Despite this, his reign was not without its achievements, though it is a moot point to what extent they can be attributed to him personally.3 Arguably the most significant was the compilation of imperial laws promulgated under his name in A.D. 438 the Codex Theodosianus. This substantial work, the result of nearly nine years' labour by an initial team of nine commissioners expanded to sixteen in the final two years, brought together (in abbreviated form) imperial laws from the reign of Constantine until the year 437. In its immediate context, its successful completion represents a very considerable organizational feat, while at a practical level it must have simplified greatly the day-to-day work of judges and lawyers. From a longer perspective, the Theodosian Code occupies a critical place in the development of European law it formed the basis of law codes in a number of the Germanic successor states in the early medieval West, but, even more importantly, it 'spurred Justinian to outdo his predecessor; and without Justinian Europe would neither have acquired nor transmitted to the rest of the world its unique legal-political culture' (Honore, 128). Finally, as has long been appreciated, the Code is a fabulous resource on all manner of subjects for modern historians of Late Antiquity. Given its wide-ranging significance, it should occasion no surprise that the Theodosian Code constitutes a central point of reference for the three important and very different books on late Roman law reviewed here (differences which are all the more intriguing given the long association of all three authors with Oxford and indeed with one another). John Matthews' study, with its deliciously punning title, focuses most closely on the Code, concerned as it is to elucidate the multifarious problems raised by the attempt to understand in detail how the Code came into being. This leads him into a close investigation of the Code's sources and of its textual history. By his own admission, some of the latter is a distillation of Theodor Mommsen's Prolegomena to his edition of the Code, but that in itself is of considerable value, especially for those whose