employed by jurists and lawyers to negotiate them, had a long life in late antiquity. Let me give two quick examples, which hearken to terms and themes I have already raised, and by that means return to the conclusions I sketched at the start.
First, in 529 Justinian attempted a correction to the law of dowry. The difficulty he sought to address was partially one of fairness: he wished to grant to women getting divorces the right to recover their dowries before any other claims were made upon their ex-husbands’ property. And the problem existed or, rather, was apparent in part because in this area as in so many others, Roman and Greek practice diverged, and attempts to assimilate the two provoked reflection and revision in the law.
The law opens with a statement of the substantive revision it enacts—that wives should have a prior claim, in order to recover their dowries—followed by a blatant assertion of fact in denial of law: wives are so entitled
cum eaedem res et ab initio uxoris fuerant et naturaliter in eius permanserunt dominio. Non enim quod legum subtilitate transitus earum in mariti patrimonium videtur fieri, ideo rei veritas deleta vel confusa est.
because the property belonged to the wife in the first place and it naturally, naturaliter, remains in her dominium. For the truth of the matter, veritas rei, is not destroyed or confused by the subtlety of the law, in which a transfer of the wife’s property into the estate of her husband appears to have occurred. (Cod. Iust. 5.12.30.pr.)
This is a deeply sloppy piece of legislation: in effect, Justinian wholly overturns all prior law on dowry by denying that ownership of it passes to the husband in the first place. On the understanding he adumbrates, the husband possesses only usufruct of it, and it is important to observe that the long history of law on dowry had been heading in this direction. But Justinian shied from revision on that scale. He resorted, rather, to the standard toolbox of the Roman lawyer: like a classical lawyer, he left prior law standing, only to upend it by fiction; and like a third-century jurist, he justified that action by asserting a gap between some social reality and the world the law would or could describe:
Volumus itaque eam in rem actionem quasi in huiusmodi rebus propriis habere et hypothecariam omnibus anteriorem possidere, ut, sive ex naturali iure eiusdem mulieris res esse intellegantur vel secundum legum subtilitatem ad mariti substantiam pervenisse, per utramque viam sive in rem sive hypothecariam ei plenissime consulatur.
Therefore we desire that she have an action in rem relating to property of this kind, as if it were her own, and possess, too, an hypothecary action prior to all others, so that regardless whether the property of the wife is considered to be hers in accordance with natural law, or is held to have become part of the estate of the husband through the subtlety of the laws, her interest shall be fully protected by one or the other of these two actions, that is to say, the one in rem or the hypothecary action. (Cod. Iust. 5.12.30.1)
It’s a fascinating text, but a sorry piece of legal reasoning. In light of my suggestion regarding Ulpian’s domestication of Greek forms of contract, it is worth noting that when Justinian boasted of his revisions to marriage law in the Institutes, nowhere does he suggest his revisions betray foreign influence: unknown to the ancients, he writes, the practices he codified were simply the enactments a iunioribus divis principibus, by more recent emperors (Justinian Inst. 2.7.3).
As with dowry, so with Italy. In a series of laws in 530 and 531, whose success he vaunted in the Institutes, Justinian attempted to dismantle the legal schemes that distinguished ownership on and of Italian and provincial land and hence, too, the actions and rules that governed transfer of said ownership.24 One important difference between the two schemata had lain in the systems whereby possessors of certain goods could claim ownership of them; another distinction had been drawn within each schema between moveable and non-moveable goods.
Expressing repeated frustration with the inutiles ambiguitates et differentiae, useless ambiguities and distinctions that the ancients had imposed upon the law in contravention of ius naturale, Justinian declared it pointless to permit usucapion in Italicis solis but to exclude it in provincialibus, to permit it on Italian soil but exclude it from provincial soil. He also removed as merely “antiquated” the distinction between forms of ownership previously restricted to Italian soil, which had distinguished there between moveable and non-moveable goods.
But here he involved himself in a difficulty: for though he desired to homogenize the full range of existing practices around the simplest rule possible—sit et rebus et locis omnibus similis ordo, “let there be the same scheme for all things in all places”—and chose for that reason to universalize usucapion—the Italian action, as it were—for various reasons he actually compromised the simplicity of this scheme in two related ways. First, he redefined usucapion so as to include the timetables, plural, that had governed the provincial rule of longi temporis praescriptio; and second, he did this in part because he ultimately decided to (re)impose a distinction between moveable and non-moveable goods. One reason to take these actions, beyond mere common sense, was that individuals were even then shaping actions that extended into the past and future in light of prior law—the same problem, one might say, that jurists and lawyers had confronted across the third century.
Justinian and his lawyers were less flexible thinkers, though they deployed the same tools in resolving this impasse: rather than admit that a similis ordo did not, in fact, pertain rebus omnibus, he allowed that ownership of moveable goods passed to long-term possessors quasi per usucapionem ei adquisitam, “as if they had been acquired by him through usucapion.”
Conclusion
I conclude with two brief thoughts, one about the Justinianic corpus and one about the late ancient state.
On my reading, Justinianic law emerges as surprisingly classical: in particular, the formal moves employed in it to enact change or mere revision echo those adopted in earlier periods of upheaval—the municipalization of Italy and the aftermath of the Antonine Constitution—as well as those brought forward by legal philosophers in calmer moments, when they sought in earnest reflection to resolve conflicts of law provoked by the praetor or for that matter the emperor. But the corpus also appears to me, at any rate, suspiciously homogenous: for one thing, there are too few aliens and too little law about them. More seriously, I worry that the Justinianic compilers excerpted and retained those passages in which the arguments (in distinction to mere rules) appeared to them legitimate.
Described as in some respects grappling with problems similar to those that confronted lawyers in the early empire, and furthermore as employing tools that are themselves logical developments upon classical ones, the law of the later Roman Empire may thus be understood as more Roman—less vulgar, less Byzantine. At the same time, the texts that preserve classical law emerge from this inquiry somewhat less trustworthy: not so much as saying things that are not true, but as not saying things no longer applicable or, rather, no longer intelligible, to sixth-century lawyers.
Where the late ancient state is concerned, the world the law sought to create was more unified in its legal structures, of course, but also in fundamental respects more inclusive: for within the normative superstructure that Justinian sought to universalize were embedded non-Roman concepts and non-Roman rules that were often enough self-consciously redescribed as Roman at the moment of their taking up. In this way, legal-philosophical tools devised to justify decision-rules in the present worked continually to rewrite the past.
If the state so created appears nevertheless less flexible, more univocal, than its classical ancestor, that is because emperors from Constantine onward, but particularly those commencing with Theodosius, explicitly co-opted nongovernmental institutions and personalized networks of power in the project of state-building, and so robbed public life of its constitutive outside, and
