Codex Theodosianus

On 26 March 429, Emperor Theodosius II announced to the Senate of Constantinople his intentions to form a committee to codify all of the laws (leges, singular lex) from the reign of Constantine up to Theodosius II and Valentinian III.[5] The laws in the code span from 312 to 438, so by 438 the "volume of imperial law had become unmanageable".[6] Twenty-two scholars, working in two teams, worked for nine years starting in 429 to assemble what was to become the Theodosian Code.[7] The chief overseer of the work was Antiochus Chuzon, a lawyer and a prefect and consul from Antioch.[8]

Their product was a collection of 16 books containing more than 2,500 constitutions issued between 313 and 437, while, at the same time, omitting obsolete provisions and superfluous phrases, and making additions, emendations and alterations.[9] John F. Matthews illustrated the importance of Theodosius' code when he said, "the Theodosian Code was the first occasion since the Twelve Tables on which a Roman government had attempted by public authority to collect and publish its leges."[10] The code covers political, socioeconomic, cultural and religious subjects of the 4th and 5th centuries in the Roman Empire.[11]

A collection of imperial enactments called the Codex Gregorianus had been written in c. 291-4[1] and the Codex Hermogenianus, a limited collection of rescripts from c. 295,[1] was published. The Sirmondian Constitutions may also represent a small-scale collection of imperial laws. However, Theodosius desired to create a more comprehensive code that would provide greater insight into law during the later empire (321-429). According to Peter Stein, "Theodosius was perturbed at the low state of legal skill in his empire of the East." He apparently started a school of law at Constantinople. In 429 he assigned a commission to collect all imperial constitutions since the time of Constantine.[5]

During the process of gathering the vast amount of material, often editors would have multiple copies of the same law. In addition to this, the source material the editors were drawing upon changed over time. Clifford Ando notes that according to Matthews, the editors "displayed a reliance on western provincial sources through the late 4th century and on central, eastern archives thereafter."[12]

After six years an initial version was finished in 435, but it was not published, instead it was improved upon and expanded and finally finished in 438 and taken to the Senate in Rome and Constantinople. Matthews believes that the two attempts are not the result of a failed first attempt, but instead the second attempt shows "reiteration and refinement of the original goals at a new stage in the editorial process".[13] Others have put forth alternate theories to explain the lengthy editorial process and two different commissions. Boudewijn Sirks believes that "the code was compiled from imperial copy books found at Constantinople, Rome, or Ravenna, supplemented by material at a few private collections, and that the delays were caused by such problems as verifying the accuracy of the text and improving the legal coherence of the work."[14]

The tone of the work reflected the rhetorical training that the drafters had received and Averil Cameron has described it as "verbose, moralizing and pretentious".[15]

The code was written in Latin and referred explicitly to the two capitals of Constantinople (Constantinopolitana) and Rome (Roma).[16] It was also concerned with the imposition of orthodoxy - the Arian controversy was ongoing - within the Christian religion and contains 65 decrees directed at heretics.[17]

Originally, Theodosius had attempted to commission leges generales beginning with Constantine to be used as a supplement for the Codex Gregorianus and the Codex Hermogenianus. He intended to supplement the legal codes with the opinions and writings of ancient Roman jurists, much like the digest found later in Justinian's Code. But the task proved to be too great, and in 435 it was decided to concentrate solely on the laws from Constantine to the time of writing. This decision defined the greatest difference between the Theodosian Code and Justinian's later Corpus Juris Civilis.

Matthews observes, "The Theodosian Code does, however, differ from the work of Justinian (except the Novellae), in that it was largely based not on existing juristic writings and collections of texts, but on primary sources that had never before been brought together."[18] Justinian's Code, published about 100 years later, comprised both ius, "law as an interpretive discipline", and leges, "the primary legislation upon which the interpretation was based".[19] While the first part, or codex, of Justinian's Corpus Civilis Juris contained 12 books of constitutions, or imperial laws, the second and third parts, the digest and the Institutiones, contained the ius of Classical Roman jurists and the institutes of Gaius.

While the Theodosian Code may seem to lack a personal facet due to the absence of judicial reviews, upon further review the legal code gives insight into Theodosius' motives behind the codification. Lenski quotes Matthews as noting that the "imperial constitutions represented not only prescriptive legal formulas but also descriptive pronouncements of an emperor’s moral and ideological principles".[20]

Apart from clearing up confusion and creating a single, simplified and supersedent code, Theodosius II was also attempting to solidify Christianity as the official religion of the Empire, after it had been decriminalised under Galerius' rule and promoted under Constantine's. In his City of God, St. Augustine praised Theodosius the Great, Theodosius II's grandfather, who shared his faith and devotion to its establishment, as "a Christian ruler whose piety was expressed by the laws he had issued in favor of the Catholic Church".[21]

The Codex Theodosianus is, for example, explicit in ordering that all actions at law should cease during Holy Week, and the doors of all courts of law be closed during those 15 days (1. ii. tit. viii.). It also instituted laws punishing homosexuality, which represented a departure from policy under the period of the Roman Republic, under which homosexuality was tolerated and perhaps mocked but was not illegal.[22][23]

The first laws granting tax exemption to the church appear in the Codex and are credited to Constantine and his son Constantius II. These laws specify that all clergy, their family members, and church-owned land was exempt from all compulsory service and tax payments, with the exception that land owned by the clerics themselves was still taxed.[24][25]

Books 1-5 lack the level of manuscript support available for books 6–16. The first five books of the surviving Codex draw largely from two other manuscripts. The Turin manuscript, also known as "T," consists of 43, largely discontinuous folios.[4] The second manuscript is the Breviary of Alaric, and a good part of the Breviarium that is included in book 1 actually contains the original text of the respective part of the original codex.[4]

The latter part of the Codex, books 6–16, drew largely from two texts as well. Books 6-8 of the Codex were preserved in the text of a document known as Parsinus 9643.[26] The document circulated early medieval French libraries, as well as the other formative document for the latter part of the code, a document held in the Vatican (Vat. Reg. 886), also known as "V".[26] Scholars consider this section to have been transmitted completely.[26]

The reference edition of the Codex Theodosianus is:

• Mommsen-Meyer, Theodosiani libri XVI cum constitutionibus Sirmondianis et leges Novellae ad Theodosianum pertinentes, Berlin, Weidemann, 1905.

Other editions/commentaries

• Codex Theodosianus (in Latin). Genève: Johann Arnold. 1586.
• Iacobus Gothofredus (1616). De statu paganorum sub christianis imperatoribus: seu commentarius ad titulum X de paganis libri XVI codicis Theodosiani (in Latin). Heidelberg: Gotthard Vögelin.

• Epigenius
• International Roman Law Moot Court