Bryn Mawr Classical Review 2001.02.27
John F. Matthews, Laying Down the Law. A Study of the Theodosian Code. New Haven: Yale University Press, 2000. Pp. 314. ISBN 0-300-7900-1. $40.00.
Reviewed by Marietta Horster, University of Rostock, Institut fuer Altertumwissenschaften (firstname.lastname@example.org)
Word count: 1531 words
Matthews has written a book on the making of the Codex Theodosianus: its planning, its editorial principles and their fulfillment, the sources of the laws collected, and the publishing distribution of the codex in 438 AD. Theodosius II had planned and initiated more than one codex. The later CTh was supposed to be a collection of all imperial constitutions of general bearing since 313 AD, in continuation of the codices compiled in Diocletian times. It was a manual, a collection of historical and recent laws and therefore had mainly an intentio scholastica and was not supposed to be a collection of the ius in force. The collected imperial enactments were arranged under legalistic-thematic headings, tituli, in chronological order, the later laws being obviously the (more) valid. The other planned codex was executed only more than a hundred years later with Justinian's codification: a collection of the valid laws, the ius, and a collection of authoritative juristic writings combined with selected laws, constitutions, and rescripts of the first three hundred years AD.
The subject has been treated quite often, and it is obvious that it will be again. The discussion about editorial principles and the sources of the collected laws started with Mommsen's introduction to his edition of the Codex. Seeck did major work on the subject, and more recently Tony Honoré wrote substantial contributions.1 M. concentrates his investigation on a historical perspective, though the legal view is not completely neglected.
The work on the codex started in 429 AD. In an announcement to the senate of Constantinople the main principles of the future edition were laid out. A first editorial panel of nine persons was appointed. Six and a half years later minor changes with regard to editorial procedures were made. M. has good arguments for his view that the new law of December 435 AD was a reaction to requests of the editors and not a general change in editorial principles. He supposes that from 429 to 435 AD the editors only collected the relevant material and now saw the necessity of at least reducing the length of the texts. They were allowed to reduce the text to the necessary. Only three of the nine panelists were carried over to a new editorial committee of 16. Both panels were dominated by (ex-) officials of the imperial service (like quaestores and magestri memoriae) who dealt with the laws and constitutions like quaestor and magister memoriae. Most of them had no professional legal expertise. Only one member of each panel was a professional lawyer. The task of the editors was not to interpret the law either by selecting material or by editing the single texts. Rather, they had to include all general laws (no rescripts, no interlocutions etc.) arranged by titles and edited according to narrowly defined principles.
Two major subjects are treated in M.'s volume as main features of laying down a law code: the sources of the codex and the way they were integrated in the codex, i.e. the work of the editors.
Regarding the sources M. takes an integrating point of view. The material (single laws) came from local and central archives, compilations and collections. It is highly probable that the availability changed over the period: central archives have probably played a major role only from the beginning of the Theodosian dynasty. As opposed to the time before 380 in the East and 395 in the West, the addressees of single laws are now much more often addressed in an epistolary manner (datives). There is an obvious change in style from law with an impersonal ad plus accusatives which may reflect pre-Theodosian collections of material with slight revisions in style. For example a private archive from North Africa is very likely to have supplied the editors in Constantinople with masses of texts from Africa Proconsularis. As happened during the principate, also in late antique times laws were posted in public. The publicly displayed texts could be and were copied by interested parties.
Though M. gives wide-ranging explanations and arguments, they do not cover all problems regarding the sources of the collected material. For example, the predominance of the western material is still not explained in a convincing way. The first panel of editors took more than six years to collect the texts. M. denies that the editors travelled to get them. He supposes support from the legal school from Constantinople. It may be assumed that the professors had collected previous collections and anthologies as well as all single imperial enactments they could get over the years. The Constantinopolitanian lawyers may have gotten support to compile their teaching and working material from the school in Rome and not from the one in Berytus. In sum, apart from access to official (central) archives and regional sources, a substantial but not quantifiable number of imperial enactments came to the knowledge of the editorial panel of the codex only through intermediate sources, which may have already shortened or even changed texts and protocols. M.'s evaluation of the editors is extremely positive. Variants, anomalies, obvious faults in dating, addressing, and sometimes even in substance of a law are in most cases explained as a consequence of the lesser quality of the intermediate sources (archives, collections, anthologies) with which the editors had to work.
The editors were free to shorten the texts if this did not touch the substance of a law. M. makes it perfectly clear that imperial letters with legal status had in general an opening sequence as it is preserved in laws collected in the Sirmondian constitutions or through inscriptions such as the edictum de accusationibus. In general, the emperor explained why he was concerned and why the following rules and regulations should improve a situation. Usually these opening and explaining sentences were left out by the editors of the code. As the laws were supposed to be arranged under headings, the text of a constitution could be cut into pieces and parts of it integrated under different subjects. Often "et cetera" and "post alia" in the texts indicate that more parts of one law are to be found in the CTh under another title. Modern reconstruction is an acute and difficult work, both of single laws divided in the CTh and of the CTh as a whole, the first five books of which are deduced mainly from the Breviarum of Alaric II (Lex Romana Wisigothorum). Mommsen did not integrate into his reconstruction of the first books the laws of the CJ covering the period 313-435 AD. Mommsen's stringent, lucid and rigid editing method forbade a general integration of all relevant laws in the CJ as there were some which belonged to headings of one of the complete CTh-books but were obviously not integrated in the CTh. No general editing principle could be found for which law was integrated and which not, except to say that the editors of the CTh had not found a law in their collected material but the editors of the CJ did find it. M. follows Paul Krüger's edition of the CTh in 1923 which he thinks has long been due tribute. Krüger integrated 230 texts of the CJ into the incomplete books 1 to 5 of the Theodosian Codex. He also added tituli to the ones known via Alaric's Breviarium under which he subsumed some of his newly integrated laws. It is very likely that Krüger was (and M. is) right in many or most cases. But Mommsen's editing principles are still the more valid. A text containing Krüger's additions of the CJ should mark them as unsure as they cannot be proven to have been integrated in the CTh in every single case.
There is a new focus on the Codex Theodosianus not only in the work of Matthews and Honoré, but also Harries and others2 with different approaches and questions. It is essential to keep in mind not only that the texts in the Codex are shortened and sometimes changed, but also "that, for the period to which they [i.e. historians, modern users of the CTh] may wish to apply the texts as historical evidence, the Theodosian Code itself did not exist." (M., 292). The knowledge of imperial constitutions was therefore more restricted than that of the Theodosian collection. In addition, the validity of imperial enactments all over the empire must be doubted. In a few cases it can be proved that a law issued by the eastern Augustus was not even known to the contemporary western emperor.
M. has made a great contribution to the understanding of how the Theodosian code was conceived, prepared, edited, and publicised. He underlines the features of the law collection: it belongs to juristic traditions on the one hand, and expresses a contemporary reality on the other. Though many of the details mentioned in the book had been discussed and known before, M. not only draws an overall picture of the historical and editorial interpretations, but has a lot of new ideas and observations, and contributes to our understanding of late Roman history. M. discerns the Theodosian law codex as a reflex and a promotion of the new unity of the eastern and western parts of the empire.
1. Th. Mommsen, Prolegomena, in: Codex Theodosianus, ed. by Th.Mommsen, P. Meyer, P. Krüger, Berlin 1905; O. Seeck, Regesten der Kaiser und Päpste, Stuttgart 1919; T. Honoré, "The making of the Theodosian Code", ZRG 104 (1986), 133-222; id., Law in the crisis of Empire, 379-455 AD. The Theodosian Dynasty and its quaestors, Oxford 1998; cf. J. Harries, "How to make a law code", in: Modus Operandi. Essays in honour of Geoffrey Rickman, ed. by M. Austin, J. Harries, C. Smith, London 1998, 63-78; J. Harries, I. Wood (edd.), The Theodosian Code: Studies in the Imperial Law of Late Antiquity, London 1993, with a contribution by T. Honoré, 68-94 on the late antique quaestors as responsible authorities in the process of codification, and with conflicting views on how the code was made in papers of B. Sirks, 45-67 and J. Matthews, 19-44.
2. J. Harries, Law and Empire in late Antiquity, Cambridge 1999 discussing the aims and efficacy of law in late antique society. Cf. Harries / Wood (edd.), above n.1.