XXIX. The Rule of Law
An 11th century ivory pyxis, of likely Byzantine manufacture, possibly used as an inkpot. The engraving depicts the disciples of Christ.
The Notariate
Unlike practically every other country in the Latin west, Italy had maintained a tradition of lay literacy. Literacy in 11th century Italy was hardly widespread, but one can trace a continual and uninterrupted existence of a class of lay clerks and notaries from Late Antiquity to the reign of the Tusculan Emperor
Constantine. Even in England, where state administration was relatively advanced, there were few true literates to be found outside the clergy. Only Italy had resisted the complete “clericalization” of writing and administration that had overcome every other part of the Latin world.
Education, too, was more secular than elsewhere in the west. While cathedral schools continued to be focal points of instruction for both lay notaries and clerics, the material used to teach them was more secular than elsewhere. Classical pagan authors known to the 10th and 11th century Italian literati included Virgil, Juvenal, Statius, Persius, Cicero, Ovid, Horace, Sallust, Lucan, Avianus, Seneca, and Homer (unlike the others, not a Latin author, but represented in this literary pantheon by the Latin translation of the
Iliad). Archchancellor Liutprand did not become an accomplished Latin writer by reading the Bible, but because he had been given a classical education at the cathedral school of Pavia which included many of these authors alongside texts by later Christian writers and grammarians like Boethius, Maximianus, Priscian, and Martianus Capella. While some registered their disapproval with the glorification of non-Christian writers, many educated Italian clerics seem to have been proud of their knowledge of the pagan masters. The only person known to have gotten in any trouble with the Church for his enthusiasm for the classics was the grammarian
Vilgardus of Ravenna, active in the late 10th century, who allegedly claimed to receive nocturnal visions of Horace, Juvenal, and Virgil commending him for his scholarship and reverence for their works. He evidently went too far in his open preference for the pagans by proclaiming that their works carried as much weight as, if not more than, the writings of the saints and doctors of the Church, and was accordingly put to death as a heretic by the Archbishop of Ravenna. If accurate, however, the tale is the exception that proves the rule; only an act as grossly intemperate as publicly proclaiming Ovid to be a greater authority than Augustine could result in actual punishment for classical learning. As far as we know, only Vilgardus was that foolhardy.
The literate, lay professional class of Italy had long been present in the Italian government, primarily as
notarii - “notaries” - whose primary duties from the days of the Lombard kings to the Tusculani had been penning charters, letters, and decrees. In this way, they were not so different from their ecclesiastical counterparts elsewhere. The fact that they weren’t churchmen, however, made them attractive as imperial intermediaries, particularly to a ruler like Constantine who cast a suspicious eye upon all bases of power in the empire other than his throne. The first emperor of the second millennium would not only greatly expand the role of the
notarii in government, but would empower a whole new class of
iudices, lay notaries who were empowered by imperial writ to judge cases and make imperial authority known.
Iudices of this type had existed in the Agathene chancery of Octavian, but her
castaldi,
clusarii, and
iudices presided over imperial properties and collected tolls; their jurisdictions did not overlap with that of the nobility. Constantine would attempt to use an expanding lay bureaucracy not merely to administer the imperial fisc but to impose his will into the domains of noblemen, abbots, and bishops, with somewhat more success with the first than the latter two.
Notaries in Practice
The medieval
notarius was primarily a draftsman. This was a function that was needed only sparingly in the early Medieval Latin world outside of royal chanceries and the Church, but in Italy the tendency of service and obligations to be codified in written contract rather than proclaimed in oaths or assumed as implicit was substantially greater and presumably created a greater demand for the services of scribes. Of these
publici notarii (“public notaries”) in the 10th century little is known. Some seem to have set up shop in cities, while others were itinerant or attached on a semi-permanent basis to wealthy families, monasteries, or dioceses.
Over the course of the 11th century organizations of notaries variously called
scholae or
collegia developed in the major cities, possibly based off the notarial classes of Gaeta and Naples, city-states now under Italian domination which had preserved a notarial class exhibiting varying degrees of Greek and Late Roman influences. These organizations in turn gave rise to a subsidiary class of
discipuli (apprentices) who presumably could perform some but not all notarial functions. It remains unclear how much of the Italian notariate was within this organizational system; throughout the century we hear of itinerant notaries, and it is uncertain how or whether such persons were affiliated with any particular city’s organization. The irregular presence and non-standardized practices of these associations suggests that they were more or less an organic development that went hand-in-hand with the development of the imperial notariate rather than a project of the Italo-Roman monarchy.
Public notaries were distinguished from
notarii in government service, who were known variously as
notarii imperiales (imperial notaries),
notarii [sacri] palatii (notaries of the [sacred] palace), or
notarii curiales (court/curial notaries), and hereafter referred to as “imperial notaries.” These titles predated Constantine, but under Octavian the imperial notaries had been essentially one body and led by a single official, the
archicancellarius. This system did not adequately meet the needs of the Italo-Roman imperial court as it became larger, more literate, and more concerned with records and legislation during Constantine’s tenure.
In the early 11th century, Pavia was once again the administrative nerve center of the empire, but the emperor was still itinerant in practice. The entire chancery could not be dragged around the empire, but neither could the imperial court be without scribes when it resided elsewhere for weeks or months at a time. The solution was to split the chancery, initially into a “greater” chancery in Pavia and a “lesser” chancery that traveled with the court. While no contemporary source plainly describes the varying duties of the notaries of each chancery, it is usually assumed that the “greater” chancery was an administrative bureaucracy properly so called, intended to coordinate the collection of revenues and the administration of imperial property in general and in Lombardy in particular, while the “lesser” chancery was a more traditional medieval chancery in the sense of producing the monarch’s letters and proclamations. The lesser chancery, however, also became an important organ of justice (which still centered around the person of the emperor) and, as we shall see, was an organ of tax collection as well. Unlike in the Byzantine Empire, where the bureaucracy was large enough to maintain a host of highly specialized administrative officers, the Italo-Roman empire required generalists. Literate men were still rare enough, and the revenues of state still small enough, that notaries in imperial service were expected not only to be scribes but accountants and quartermasters when the situation demanded it.
It is a common mistake to describe the notariate as being “middle class.” Surely this anachronism comes from the fact that those notaries who are described in contemporary documents are often said to be
mediocres, “middling men.” In 11th century Italian society, however, the
mediocres were not the tradesmen or shopkeepers associated with the modern middle class, but a nebulous group occupying the continuum between prosperous freeman-farmers and the lower orders of the landed gentry. Ratherius describes the
mediocres as standing between the
pauperes (the poor) and
divites (the rich); elsewhere the
mediocres are contrasted with
nobiles (the nobles) or
potentes (the powerful). Power and wealth were, at this time, based primarily on land, and it is most likely that the average “middling man” was a small-scale or intermediate landlord, someone who possessed tenants of his own but who was himself a tenant of a superior (presumably a bishop or
comes) or simply possessed less land than a true aristocrat. In several instances an imperial notary is described as being a sibling of or married into the family of a
miles, a (semi-)professional soldier or “knight,” suggesting that soldiers and scribes occupied a similar rung on the social ladder. The sons of the urban mercantile class were not absent from the ranks of the Italian notariate, but “merchants” represented a very small proportion of the empire’s population in the 11th century (and many of these were foreigners).
The Judges
The Constantinian
iudex, or judge, was charged not merely with writing things down but seeing that the written word was followed by action. In a general sense, the term was used to describe all imperial officers with
iurisdictio, the authority to act in the name of the emperor. In 10th century documents it is not altogether uncommon to see
iudex as a title borne alongside
comes, presumably to emphasize the judicial authority of the count, but this usage died out or was suppressed in the 11th century.
The
iudices of Constantine were originally
ad hoc magistrates, dispatched to locations in Lombardy where the emperor could not be. That was nothing new; Alberic himself had been dispatched to Rome to act in the name of his stepfather Hugh with the title of
iudex palatinus, and his grandfather Theophylact had been granted that same title by a 9th century emperor. Constantine, however, sent out more of them, and drew his from the ranks of the notariate rather than the high nobility. Initially they were intended to supplant the judicial powers of the counts, but they soon acquired revenue functions as well.
The creation of the Alpine catepanates began the process of the partial territorialization of the
iudices. As each of the
catapani was in theory only a military governor, fiscal and judicial authority was vested in a parallel notarial officer, the
iudex palatinus, who thus had a set territorial jurisdiction. Formal judicial districts were not created elsewhere in the empire, but it was natural that the judges would be most needed in the cities, and over time the “ad hoc” assignments became essentially permanent (albeit not life-long) billets in the major urban centers. These urban judges were eventually given the title of
iudex palatinus as well. A new institution developed around these officials, the
curia civitatis (court of the city), in which imperial law was administered at a local and regional level. The possession of such a court became greatly coveted by the
mediocres and the small but developing mercantile class, as it provided them with direct access to imperial power which could be a valuable weapon against the grasping hands of regional noblemen or even local bishops. Some cities were willing to pay for the privilege, and Constantine was just as willing to take their money. This undoubtedly helped defray the significant costs of the judicial bureaucracy which the relatively cash-poor (by Byzantine standards, if not by French or German) imperial government would have found difficulty meeting, but allowing the cities to pay the salaries of their judges was also a potential corrupting influence.
The introduction of the urban judgeships created some confusion between these
iudices palatini and the
castaldi, which in Tuscany (and a few locations outside it) had executed similar functions in the great cities. The primary difficulty in understanding the distinction comes from the fact that
castaldi are often referred to as
iudices, because like the palatine judges they possessed
iurisdictio as delegates of the emperor. In at least once instance – the city of Florence – a
castaldus and a
curia civitatis apparently co-existed, but to what extent their duties overlapped is not clear. It has been proposed that the
iudex in this case, despite being based in the city, must have dealt primarily with matters in the surrounding district rather than the
urbs itself, but the evidence is thin. Given that there are records of disputes between these officials, the distinction may not have been obvious even in the 11th century.
The palatine judges were empowered with a writ to execute the emperor’s justice, but they relied on the direct application of imperial power to enforce their decisions. Constantine instituted heavy fines for disobeying any magistrate with
iurisdictio and was not above resorting to military action to extract said fines. A magistrate’s decision could be appealed, but Constantine denied the ability of intermediaries to deliver such petitions; if a nobleman or any other subject wished to dispute the decision of an imperial magistrate, it was necessary for the plaintiff to appear in person before the emperor. That eventually proved unworkable, and that authority was devolved initially to the
archicancellarius and later to his successor, the
logotheta, as well as the
protoiudex, the emperor’s chief “appellate judge.” Such intermediaries could only be bypassed by those of comital rank, whose right to direct imperial appeal was conceded by the emperor around 1010.
It should be pointed out that, despite their name, the
iudices were not necessarily experts in the law. Being a
notarius meant only that one could write, not that one was a legal scholar, and despite Constantine’s interest in the law he evidently did not require his judges to share that interest. This is less of a contradiction than it sounds; law was an exercise of power, and it was more important that judges be loyal and energetic in their defense of imperial interests than that they be qualified experts. If a question of law arose, after all, there were jurists they could refer to, and eventually the
iudices palatini of the urban courts were accompanied as a matter of course by
periti legum (“legal experts”). The duties of the imperial
iudices were in any case not only legal, but fiscal, and a judge that met his fiduciary obligations was not likely to be faulted if his legal knowledge was spotty.
A clamp for affixing bullae, or lead seals, to documents, known to the Byzantines as a boulloterion. The 11th century Italo-Roman administration used virtually identical tools.
Offices of State
Although tiny in comparison to the bureaucracy of Constantinople, Octavian’s chancery and its subsidiary organs did have a variety of high magistrates and administrative grandees whose names and duties were inspired in varying parts by Greek standards, Frankish traditions, and Late Roman institutions transmitted through the Papal bureaucracy. The following is certainly not a complete list, as no thorough contemporary work exists describing the administration in detail in the manner of
De Ceremoniis of Constantine VII, but a number of the most important offices are detailed.
Logotheta: The
archicancellarius had been the head of the chancery under Octavian and was initially so under Constantine, but after the death of the arch-chancellor
Gerbert of Aurillac in 1007 the position was both renamed and subtly redefined.
[1] The position was soon thereafter known as the
logotheta, a Latinization of the Greek administrative title of
logothetes (Eng. “logothete,” lit. “one who sets the account/word”). While this may merely be an example of Constantine’s philhellenism, it is also possible that the change reflected an attempt at secularization. Notably, all previous archchancellors had been clergymen, while in the post-Gilbert era most were of the notarial class and thus laymen. Renaming the office may have been an attempt to distance it from the clerical connotations of “chancellor,” which in Italy and elsewhere in the Latin west was virtually always an ecclesiastical office. Like the archchancellor, the logothete remained the theoretical head of the imperial administration, but as he was based largely in Pavia his powers over the “lesser” chancery became mostly formal rather than practical.
Calamarius: The emperors had had private secretaries since Alberic’s day, but only in Constantine’s reign does
calamarius appear as a term of office. Usually rendered as “keeper of the imperial inkstand,” the title may have been adopted as a translation of the Greek
kanikleios, also referring to the keeper of the (Byzantine) emperor’s inkstand (from the Latin
canicula, “little dog,” which the inkstand evidently resembled).
[2] In 11th century Constantinople, however,
kanikleios was among the highest of offices, occupied around this time by one of Basil’s foremost generals,
Nikephoros Ouranos, and was no longer associated with anything resembling secretarial duties. The assignment of the logothete to Pavia left a power vacuum in the “lesser” or itinerant chancery which by the 1020s was filled by the
calamarius, who remained nominally below the logothete but in practice was an equally powerful figure given his proximity to the emperor. As the emperor’s private secretary, the
calamarius also needed access to the imperial seal, the keeping of which soon became merged with the office. The first known occupant of this office in the post-Gilbert era was a certain Nicholas, known most often by his office as
Nicholas Calamarius, whose origins are uncertain but who was said to be a skilled writer of Latin and Greek. In general, the
calamarii tended to be men of somewhat lesser social station than the logothetes, who despite being
notarii were usually picked from noble families or at least the upper crust of the
mediocres.
Parator Curiae: The itinerant court extracted an extraordinary in-kind tax called the
paratae (“preparation” or “provision”) to feed and supply its many courtiers, scribes, and soldiers. The
parator curiae (literally “preparer of the court”) was the collector of this tax, and thus also the chief logistics officer of the imperial court whose sundry duties included securing fodder for the horses of the
Milites Ungarorum and supervising the imperial kitchen. His staff must have been extensive. The
parator is described as a
iudex, indicating that he was not merely a bean-counter but an official with
iurisdictio. The title of
parator appears to be unique to Constantine’s Italy, which may be why in the later 11th century the title was conflated with the much older, more familiar, and linguistically similar title of
praetor. This may have been a result of borrowing from the Greeks, who still used the term (as
praitor) to denote a civil governor, but the original Latin term was still well known enough in Italy as to make a Greek derivation unnecessary.
Protoiudex: The “First Judge” seems to have been essentially an appellate judge who received and judged petitions which did not rise to the level of the emperor himself. Those of the dignity of
comes and higher were able to bypass this magistrate. Some have proposed that he was also the leader of the
iudices palatini based on the comparison with
protonotarii, who led the imperial
notarii, but this is unlikely; evidence suggests that the
iudices palatinii reported to the logothete in Pavia. While a highly dignified position, the
protoiudex seems to have been largely constrained to his judicial role, and the office was probably not one of great political power compared to the logothete or
calamarius.
Praefectus Preconum: First mentioned around 1010, the
praefectus preconum was obviously a leader of the
precones (heralds/messengers), but little else is known about this position. It has been theorized that he was effectively a “minister of communications” who was charged with organizing the circulation of the decrees and documents carried by the
precones. It is possible he may have had some supervisory authority over the road system, although Constantine’s administration charged cities with the upkeep of roads near themand had no centralized policy of maintenance as far as we know. As a rule, prefects in the Constantinian system were noblemen rather than
notarii, but the
praefectus preconum is noted here as he was clearly a direct subordinate of the logothete.
Precones: The
precones (from the classical Latin
praeco, “herald”) were not
notarii but fell under the auspices of the greater chancery. As they were required to furnish their own horse so as to carry out their duties as messengers, they must have been men of some means; recent scholars have argued with some plausibility that the average
preco was probably a young son of a
miles or similar member of the gentry, in particular the
fideles or imperial tenant-knights. They were not
iudices and lacked
iurisdictio, meaning that they could not act in the name of the emperor, but they were under his protection and given the specific authority in extraordinary circumstances to “requisition” mounts. The fact that they were given this power and required to provide their own steed makes it clear that there was no organized system of remounts as existed in the sophisticated postal system of the Byzantine Empire, and thus official communications must have traveled rather more slowly in the west than the east.
[3]
Protonotarii: The “first scribes” are rather obscure figures, and scholarly opinions as to the nature of the title range from it being an extraordinary dignity for valued
notarii to leaders of specific departments within the chancery (as was generally the case in Constantinople). Italo-Roman
protonotarii, unlike their Byzantine counterparts, were not dispatched to the provinces (as that was the role of the
iudices) but rather were based more or less permanently in Pavia. The lesser chancery does not seem to have possessed
protonotarii.
The Personality of the Law
The principle of legal jurisdiction with which we are most familiar with today is that of
territoriality. In such a system, persons within the territory of a state are as a rule subject to the laws of that state. This may be contrasted to the jurisdictional principle of
personality, in which persons are subject to law based not on where they are but
who they are.
[A]
The protections of Roman law had been afforded only to citizens. While at certain points the body of the citizenry was expanded (such as after the Social War), Roman law remained restricted to a subset of the population until the Edict of Caracalla in 212 extended the rights of citizenship to all free inhabitants of the empire. Roman law from this point forward was territorial in its conception; all free persons, regardless of their background or national origin, were subject to the empire’s law so long as they were within it (an easy criterion to meet when the empire spanned the Mediterranean basin).
The “barbarians” which steadily encroached on Roman frontiers in Late Antiquity had their own systems of law, grouped broadly as “Germanic law.” Their concept of law was personal and familial: law was an inheritance passed down from one generation to the next. The law of the tribe amounted to a right to be judged in the manner of one’s ancestors, and it was a precious gift which ought not to be surrendered to others nor given freely to outsiders. Accordingly, the Germanic peoples as
foederati were sometimes able to exempt themselves from Roman law, and when after the empire’s fall they found themselves ruling over Roman subjects they were inclined to acknowledge the jurisdiction of Roman law over Romans rather than forcing the replacement of a complex and deeply-ingrained system of jurisprudence with their own tribal codes. In this way territoriality gradually gave way to personality.
In Italy, the Lombard invaders had kept their own tribal law – considered among the most sophisticated of the Germanic codes – and later Lombard kings expounded upon it significantly. They occupied a country, however, that was not only dotted with cities of “Romans” but still partially ruled by the Roman Empire (in its Byzantine incarnation). Roman law was acknowledged as binding upon the “Roman” population of Italy, while Lombard law was applied to the Lombards (but only private or “civil” law – Roman criminal law was not enforced). As one might expect, however, maintaining a permanent separation of Romans and Lombards was not possible, and over the course of the 8th century most residents of the kingdom, Lombard or not, were declared to be subject to Lombard law. This was a more “territorial” (and coherent) situation than in France, where in the early 9th century Agobard of Lyons complained that “of five men sitting or walking together none will have the same law as his fellow.” That was not a specious example – in Agobard’s time, separate codes were acknowledged for Ripuarian Franks, Salian Franks, Alemanni, Burgundinians, and Romans, to say nothing of more “foreign” peoples like Goths and Bavarians.
Rome itself, unconquered by the Lombards thanks to the exertions of Pippin and Charles, was only introduced formally to the principle of personality in 824, when Emperor Lothair confirmed the right of those living in Papal jurisdiction to be judged by the law they adhered to, whether Lombardic, [Salian] Frankish, or Roman. This was not a choice that was freely made for most; law was inherited from one’s father, although many fringe cases were recognized (the illegitimate child of an adulterous affair, for instance, was permitted to take the law of either parent as it pleased him, perhaps one of the rare bright spots of being a bastard in the 9th century). While the Papacy continued to operate by Canon Law, which was derived entirely from the Roman tradition, ecclesiastical institutions under the supervision of the king were often compelled to adopt his law. The Abbey of Farfa, for instance, was just a few miles away from Rome but was subject to Lombard law. Elsewhere in Italy, Lombard law continued to be observed under Carolingian rule, but the Frankish transplants brought into Lombardy by the Carolingians could elect to follow their own ancestral code. Property transfers recorded in 9th and 10th century Italy frequently mention whether the parties involved are Franks, Lombards, Goths, Romans, Burgundinians, Bavarians, and so on, not out of general interest but to clarify which set of laws the transfer was taking place under.
The problems of the doctrine of personality were already evident by the 9th century. In the first place, “national” law required that the nationality of persons be clearly established, which despite numerous edicts on who was or was not a “Frank” or “Lombard” or “Roman” proved increasingly difficult to do. Neither were there judges to be found who could competently hold forth on the relevant law of every recognized nationality; in an age of scarce literacy it was not reasonable to assume that suitable men could always be found with practical knowledge even one legal tradition, let alone half a dozen. Attempts under the early Carolingians to make some sort of universal law met largely with failure. Instead, the doctrine of personality began a slow death as nations began to be associated with places. What was in former days the law of the Burgundinians was becoming merely the half-remembered custom of the people of Burgundy (and even then only parts of it). In France, the Germanic codes came to dominate the law of the north while the south owed more to Roman law. In Italy, personality as a concept had always been narrow – unlike the Frankish kings, the Lombard kings were for the most part concerned only with the laws of the Lombards and Romans – and over the course of the 8th century, Lombard law became clearly dominant. Nevertheless, Roman law-as-custom endured, and the law (broadly speaking) of Constantine’s time was a mix of Roman legal inheritance, Lombard law, and Frankish traditions and capitularies.
That something called “Roman law” was still known in Italy and southern France, however, should not be taken to imply that either nation was actually learned in Roman law as it was written. There is little evidence which suggests that any formal continuation of Roman legal knowledge from Late Antiquity existed in either France or Italy. Their “Roman law” was really more like custom informed by what the people remembered of Roman law over the intervening centuries of the early Middle Ages. The Roman legal principles informing matters like property transfer, manumission, the methods of proof in criminal trials, and so on had survived, but as customary rather than written law, and with heavy adulteration by Germanic traditions. There was no institutional study of Roman law in its textual form, nor perhaps even knowledge of it, for the great compilation of the law made under Justinian was as far as we know not extant anywhere from Rome to Scandinavia.
The Legal Revolution
Law-giving in this time was not primarily a matter of legislation. Law was thought to be (or supposed to be) something permanent and unchanging. God’s Law, after all, was eternal, and that was the standard that the laws of men had to aspire to. Accordingly, “new laws” could never be truly new laws. If there was innovation, it was heavily camouflaged, for to truly innovate and expose the ostensibly eternal law as something malleable and impermanent was unthinkable. What interested the legal minds of the 11th century was not legislation as we understand it, but jurisprudence and precedent.
A “revival” of Roman law could very well have been political cover for Constantine, a way to change the status quo by appealing to a legal precedent that was dimly remembered but given nearly as much reverence as the Roman Emperor himself. Who in their right mind could look upon an emperor named Constantine citing the Code of Justinian and claim that he was an innovator, or anything other than a restorer of the eternal law? It did not hurt that the Roman law was both favorable to Constantine’s imperial pretensions and interpreted as such by the Romanophile jurists (known later on – and somewhat confusingly – as the
moderni, as opposed to the
antiqui who placed more value on the Lombard tradition). A Ravennese scholar, when interrogated on Roman law by the emperor, was said to have told him that the emperor was by right “lord of the world” and that “whatever pleases [the emperor] has the force of law.” The law of the Roman Empire had been built up around the divine dictum of its emperors; it could not reasonably be anti-imperial or hostile to the exercise of the imperial will. Justinian had not compiled a new code in order to hobble his own power.
It was once fashionable to lay all credit at the feet of Constantine, as if he were a second Justinian ordering the law to be made anew; according to such interpretations, his Roman background and “sublimely ordered mind” (as one historian of the last century put it) created in him a need to establish uniformity and “restore” the law by returning it to its Roman roots. Such lofty motives, however, are not needed to explain the emperor’s actions – short-term interest may suffice. A vision of Constantine as some sort of grand revivalist does a disservice to his political sense, and is surely owed entirely to later sympathetic medieval sources who were eager to crown Constantine with the laurels of the law-giver.
The importance of Constantine’s own influence should not be discarded, but had Constantine been king in France or Germany it is likely that his ambitions would have been frustrated. The remnants of Roman law were stronger in Italy than anywhere else in the Latin world, owing largely to the presence of the Papal Curia in Rome and the recent Byzantine rule of much of the country. The notarial class of Italy, as we have observed, was larger and more learned than anywhere else in the Latin west, and was already acquainted with and quite fond of the literature of Roman antiquity. Finally, Italy’s chances of acquiring the lost texts of Roman law were greater than anywhere else given their own links to the Greek world, where Justinian’s codices were still preserved.
The Corpus
The key text in the “legal revolution” in Italy was the
Corpus Juris Civilis (“Body of civil law”), broadly and more colloquially known as the Code of Justinian.
[4] The Corpus was a vast repository of jurisprudence compiled in the reign of Justinian and by his orders. The exact nature of its transmission into Italy is unclear, but the part that first began to gain attention in Pavia was a copy of the
Pandects, also known as the
Digest, a summary of the decisions of ancient (2nd-3rd century) jurists whose opinions were considered to form the bedrock of Roman law. The Digest was not a law code as such – it had no legislation, only judicial opinions – but these opinions were already considered as good as law in the time of Justinian. Historians have sometimes credited
Agatha Porphyrogenita with the introduction of the work given her background and her personal library, but her involvement is not attested anywhere. During her son’s reign, there were numerous contacts between west and east by which the work could have moved – Greek and Italo-Greek monks resettling in the north, diplomatic contacts between the empires directly or by way of Venice, or even transmission through the capture of Lucania and other parts of Byzantine Italy by Constantine’s independent-minded dukes in the south.
In fact the “new law” which came into Pavia was already long obsolete in the east. Among the Greeks, the
Corpus was considered too long, too complex, too old-fashioned, and hopelessly compromised by centuries of further legislation and amendment. It was also literally unreadable by most judges – the
Corpus and its constituent books had been written in Latin at a time when that was still the administrative language of the empire, but by now the Byzantine east had since been thoroughly Hellenized even at the highest levels of government. A major legal reform had been undertaken by Emperor Basil I, the progenitor of the Macedonian dynasty (and thus ancestor of both
Basil II and Constantine of Italy). The product of his undertaking, the so-called
Basilika, omitted “outdated” laws, condensed and clarified some matters in the
Corpus, and – helpfully to the easterners – was written in Greek.
These very same qualities which encouraged the Greeks to adopt the
Basilika caused the Latins to ignore it. In the first place, few of them could read it, but the Latins were even more steeped in the notion of unchanging law than the Greeks, and the
Basilika lacked the ancient pedigree of the
Corpus despite being developed from it. Justinian was an imperial antecedent greatly respected by the Latins; Basil I, who post-dated Charlemagne, was comparatively obscure in the West. Rather than taking the
Corpus for what it was, a 500-year old book of juridical opinions from a vastly different world, the scholars of Italy seem to have viewed it rather like the Bible, a perfect and unchanging text whose age only enhanced its authority.
While Roman legal texts were already coming into the hands of the notariate in the 1010s, it would take a concerted effort to create from them a coherent legal standard. The
Corpus did not exist anywhere in a complete form, or even close to it; the Roman legal inheritance was scattered around in various partial texts and even loose pages, some of which disagreed with one another either naturally (as the
Corpus included laws and opinions from centuries of legal thought by dozens or hundreds of judges) or as a result of adulteration by the infiltration of copy errors, innovations, or deliberate forgeries. Finding this situation intolerable, Constantine commissioned a group of the best legal minds of the imperial notariate to “renew the books of the law” and collate the numerous pieces of Justinian’s code and its auxiliary texts into one authoritative collection. This institute for the study of Roman law, formed in the 1020s at the emperor’s behest, would result in the creation of the
Collectio Papianensis (“Pavian Collection”), also known as the
Collectio Constantini, which was to become the central text of Roman law in Latin Europe in the high medieval period.
[B]
Next Time:
Storm Clouds
Footnotes (In Character)
[1] Perhaps the only true “scientist” of his day in the Latin world, Gerbert was an accomplished mathematician and astronomer who allegedly re-introduced the armillary sphere and the abacus (or at least some version of it) into Europe. He had learned mathematics in Spain, and probably on that basis was later said to have been an accomplished “necromancer” who had stolen a book of spells from a Saracen sorcerer, could predict the future with the stars, and summoned demons to perform his will.
[2] The term
calamarius comes from the Late Latin
calamarium, meaning an ink pot or pen case, itself from
calamus, a Latin borrowing of the Greek
kalamos, meaning a reed or pen. This is also the source of the culinary term for squid, “calamari,” on account of the squid’s ability to squirt an ink-like fluid.
[3] Although in Italy – specifically, Lombardy and northern Tuscany – the river networks of the Po and Arno made communications less dependent on road networks than in, say, Macedonia or Anatolia.
[4]
Corpus Juris Civilis is not a medieval term, but used here for clarity.
Timeline Notes (Out of Character)
[A] Of course, not all law today is territorial in nature. Consider the concept of diplomatic immunity, in which a diplomat is generally considered exempt from the law of the territory he’s in while serving in an official capacity. This is a modern example of the jurisdictional principle of personality, albeit based on a person’s occupation rather than their ethnic identity.
[B] This is a fairly major departure from history. IOTL, the Justinian Code was “rediscovered” in Italy in the late 11th century and did not come to prominence until the writings of Irnerius in the early 12th century and the spread of Roman law by the “glossators” in the reign of Emperor Frederick I in the second half of the 12th century. ITTL, the closer contacts of Italy and Byzantium, along with the legal interest of Constantine, make the revival of Roman law in the west begin nearly a century earlier.
