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3 Changes in Legislation from Diocletian to Constantine Legal Classicism The figure of Constantine looms over the legal history of the Later Roman Empire no less than the religious. The reign of Diocletian marked the passing of an age, the reign of Constantine the birth of another. The reign of Constantine marked a rupture not with classical law, for most of it remained in force, nor with classical jurisprudence, which continued to be consulted and, for the first time, officially sanctioned.1 The break with the past made by the Constantinian chancellery consisted in a retreat from the tenacious defense of classical law and classical jurisprudence made by Diocletian . The breach was effected in part by a new attitude toward the complexity of law. Under Constantine, the law of the veteres was indeed venerated , but too often its complexity was perceived as verging on perversity.2 The spirit that animated the legislation of Constantine preferred to cut the knots of the classical law rather than labor to loosen them.3 Diocletian is known to Roman legal history as the last defender of classical Roman law. His private rescripts tell a story of empire-wide confusion , ignorance, and neglect. “What you request is illegal and outra- / 60 / 1. Constantine confirmed the (spurious) Sententiae Pauli (CTh. 1.4.2) and banned the notes of Paul and Ulpian on Papinian (CTh. 1.4.1); F. M. de Robertis, “Un precedente costantiniana alla cosiddetta ‘Legge delle Citazioni’ del 426 di Teodosio II e Valentiniano III,” SDHI 64 (1998), 245–52; F. Wieacker, Textstufen klassischer Juristen (Göttingen, 1960), 34–44. 2. E.g., CTh. 3.2.1: Quoniam inter alias captiones praecipue commissoriae legis crescit asperitas; CJ 6.9.9: verborum inanium excludimus captiones. 3. Constantinian innovations in private law are indicated below. geous,” replies Diocletian to one Alexander.4 Alexander had requested that Diocletian restore to him, by imperial fiat, title to a slave that he had legitimately conveyed to another person. In other words, he asked the emperor to break the law, to issue a rescript contra ius. Diocletian begins another rescript with an elementary lesson on the law of property: “An action in rem is applicable not against the seller but against the possessor. Therefore your request that the person claiming ownership go to trial not with you, but with the person from whom you purchased the property, is invalid, since you assert that you are in possession.”5 The petitioner, Pancratius , has been sued by someone who claims as his own property that Pancratius has bought from a third party. The emperor reminds Pancratius that he cannot force his adversary to sue the seller, since an actio in rem is valid against the possessor of the property, and Pancratius has admitted that he is in possession. Further examples of this sort abound in the rescripts of Diocletian. The word frustra alone, with which the emperor often chastises the illegal contentions and requests of his subjects, garners a rich harvest of similar passages.6 It has long been held that Diocletian resolved to maintain the purity of Roman law. In a study of the rescripts of Diocletian published in 1923, Taubenschlag argued that the legislation of Diocletian was simultaneously both conservative and progressive.7 This provocative and somewhat paradoxical conclusion provoked swift response and was rejected by most legal historians. Albertario, in his review of Taubenschlag’s work and in subsequent articles, demonstrated that, on the contrary, most innovations discovered in the rescripts of Diocletian were interpolations, the work of the editors of the Codex Justinianus.8 Diocletian was indeed the defender Changes in Legislation from Diocletian to Constantine / 61 4. CJ 3.32.12: Incivile atque inusitatum est quod postulas. 5. CJ 3.19.t1: In rem actio non contra venditorem, sed contra possidentem competit. Frustra itaque desideras non tecum congredi, sed cum auctore tuo dominium vindicantem, cum te possidere contendas. 6. CJ 2.4.34, 2.6.4 (= 6.19.1), 2.40.4 (= 5.42.3), 2.45.2; 3.28.21; 4.2.5, 4.12.1, 4.16.3, 4.19.8, 4.35.20, 4.38.4 (= FV 293), 4.44.11, 4.46.2 (= FV 22); 5.37.15, 5.37.17, 5.46.3; 6.16.2, 6.22.4; 7.35.6; 8.41.7; 9.51.10; 10.42.6–7; FV 276; Cons. 5.6. M. Amelotti, Per l’interpretazione della legislazione privatistica di Diocleziano (Milan, 1960), 63...

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