Obligations in Roman Law: Past, Present, and Future

Chapter 13. The Byzantine Law of Obligations

320 Chapter 13 The Byzantine Law of Obligations Bernard Stolte Se vogliamo che tutto cambi, bisogna che tutto rimanga com’è. Roman Law and Byzantine Law Byzantine law is, at heart, Roman law. The Byzantine Empire is the Roman Empire. The Byzantine emperors considered themselves the rightful successors of Augustus—­indeed, of Aeneas.1 The word Byzantine is a late Western concept. So what do we mean by Byzantine law? The crucial period is, of course, the Justinianic age, when Roman law, as we know it, went through two transformations. The first is the result of Justinian’s codification of 529–­ 34, which hardly needs to be illuminated in detail. Suffice it to say that not only did it abrogate the existing sources of Roman law insofar as not incorporated in the Digest and Code and monopolize legislation for the imperial throne, but it also, by its very existence, influenced the transmission of the older Roman legal texts. I will return to the latter aspect shortly. The second transformation is the subsequent translation and explanation of the Latin codification into Greek. This, I would suggest, is the real starting point of Byzantine law, since, on the one hand, it made possible the use and development of a body of law for the Greek-­ speaking population and, on the other hand, it is the first moment in which a separate development was irrevocably started—­ separate from Latin-­ speaking, Western legal thought. Justinian’s Novels belong to this Eastern development. 1. See the prooimion of Nov. 47, in the version of the Latin Authenticum: nosque Aenaeadae ab illo vocamur (and after him we are called the sons of Aeneas). The Byzantine Law of Obligations 321 What we know of Roman law largely depends on the Justinianic codification . Its use of existing legal writing and legislation eternalized the voices of Paul, Ulpian, and Papinian, whose works ceased to be copied separately since they had lost legal force with the compilation of the Digest. When we speak of “classical” Roman law, we speak of a legal universum mainly reconstructed from Justinianic sources. Many Romanist lawyers (as I, in order to avoid confusion, would call the modern students of Roman law) find themselves standing in the sixth century and looking at the preceding centuries. There is, of course, nothing wrong with that position, as long as they are aware of what they are doing. It is slightly curious that, when in doubt about text or explanation, they should pay, as a rule, little or no attention to the writings of the so-­called antecessores, the law professors of the Justinianic age, who, as the compilers and commentators of the codification, were its best connoisseurs and whose writings have been preserved by subsequent Byzantine legal compilations, above all the so-­ called Basilica. Byzantinist lawyers find themselves on the same spot but gazing in the opposite direction. Contrary to their Romanist colleagues, they need not bother about interpolations, the conscious changes effected in the “classical” texts by the compilators of the Justinianic codification. They may do as the Byzantines themselves have done, that is, consider the Justinianic texts as the points of reference that would be repeated, reformulated, summarized, and so on and so forth, but hardly ever really changed. That is not to say that Byzantine law did not change; it is just that the Byzantines did not always use legislation as their preferred vehicle for legal change. Byzantine Law If one wishes to speak of Byzantine law, one therefore needs to start, first and foremost, with Justinianic Roman law. At least Justinianic Roman law has been described adequately, you may think. Well, I am not so sure. Existing treatments of the subject are few and far between and never incorporate the entire body of material: their aim usually is to describe “classical” Roman law and mention Justinianic developments by way of an appendix.2 A textbook of Byz2 . The standard handbook of Roman law, Kaser’s Das römische Privatrecht (1971), is an example: the second volume describes the “nachklassische Entwicklungen” (postclassical developments ), in which the Justinianic legislation is characterized as not only the pinnacle but also the conclusion of “eastern Roman classicism” ([1975] 32). 322 Obligations in Roman Law antine law that is based not only on the Institutes, Digest, and Code but also on the Justinianic Novels and the Greek commentaries as preserved in the so-­ called Paraphrase of Theophilus and, above...