Hellenizing the Twelve Tables

The Romans considered the Twelve Tables (written down around 450 bce), the first codification of Roman law, to be among their greatest achievements. Cicero relates that children were required to memorize them by heart; the brief excerpts of the law code which have been haphazardly preserved via quotations from later authors convey the laconic, direct style of the archaic Latin in which the laws were written. The great Roman jurists of later centuries, such as Gaius and Pomponius, still acknowledged the Twelve Tables as the basis of the ius civile centuries after the law code had ceased to be of any practical use.Footnote ¹

Long after even the ability to read Latin had become rare, at least in Byzantium, this story of the origins of Roman law was expounded upon by another jurist, Symbatios. Symbatios, whom we would designate as Byzantine but who would have thought of himself as no less Roman – despite the Hellenized form of his Armenian name – than Cicero or Julius Caesar, writing in the first decades of the tenth century, used Pomponius’ account of the history of Roman law, including the Twelve Tables, in the introduction to his legal collection, the Epitome (legum).

Symbatios did not simply regurgitate Pomponius’ account of the Twelve Tables via his likely source, Digest 1.2.2.4. Rather than simply stating, as Pomponius does, that some relate that the author of the Twelve Tables was Hermodorus, an Ephesian exile living in Italy, Symbatios made his own inference about the original language of the Twelve Tables. The Twelve Tables, according to Symbatios, were written originally in Greek before, some say, “a certain Hermodorus, an Ephesian exile in Italy, translated the Twelve Tables from Greek into Latin.”Footnote ² Thus Symbatios, who was probably working exclusively from Greek sources to compile the Epitome, underlined that the origins of Roman law were likewise written in the Greek language. Though no direct transmission need be posited, an emphasis on the Greek origin of Roman law is found in later texts, particularly from the eleventh century.Footnote ³ Thus a uniquely Byzantine interpolation in the legend of the Twelve Tables – namely that they had originally been written in Greek rather than Latin – took root.

Symbatios’ rewriting of Roman legal history has not received the attention it deserves: why did Symbatios and later Byzantine jurists think it necessary to claim that the first codification of Roman law had been written in Greek rather than Latin?Footnote ⁴ Rather than being some antiquarian’s jest, Symbatios’ act is to be read within a context of a reassertion of Byzantine imperial ideology which began after the end of the Second Iconoclasm in 843. The contours of this reassertion can be detected in a debate which occurred in the middle of the ninth century. This discussion, evidenced via an exchange of letters between emperors – both Byzantine and as well as Carolingian – and popes, arose in a new political climate in which the Byzantine Empire attempted to reassert its claim to the late Roman ecumenical and imperial heritage. The defense of Byzantine claims to this legacy was advanced via a number of massive encyclopedic projects directed by the Macedonian dynasty in a number of genres (court ceremony, hagiography, historiography), the most important of which was law.Footnote ⁵

Byzantine historians often characterize the two hundred-year period from around 850 until around 1050 ce, roughly the time during which the Macedonian dynasty ruled, not only as a time of cultural, economic and political revival, but indeed as the empire’s post-Justinianic apogee.Footnote ⁶ After the massive territorial losses of the seventh century and the conflict over Iconoclasm which dominated much of the eighth and first half of the ninth century, the subsequent period was marked by demographic and economic expansion, military successes, territorial growth, administrative reform and a revival of scholarship. The reasons for this stunning reversal of fortune are still disputed, though some credit is surely due to the much-maligned but effective rulers of the Isaurian dynasty, Leo III (r. 717–41) and Constantine V (r. 741–75), who stabilized the empire’s borders after the catastrophic losses of the seventh century.Footnote ⁷ Since the founder of the Macedonian dynasty, Basil I (r. 867–86), was a Thracian peasant of Armenian origin, the term “Macedonian dynasty” is something of a misnomer, but it is used so ubiquitously in secondary scholarship and in the sources themselves as well that it is pointless to attempt to replace it with something else.Footnote ⁸

Territorially, this period is marked by a number of important conquests and military victories. The Paulicians, heretics in eastern Asia Minor who set up their own army and state, were defeated during Basil I’s reign. The First Bulgarian Empire, which had for several centuries been Byzantium’s most dangerous rival, was conquered fleetingly during the reign of John I Tzimiskes (r. 969–76) and more durably during the reign of Basil II (r. 976–1025). At sea, despite the sacking of Thessaloniki during the reign of Leo VI, the Byzantines managed to retake Crete (961) and Cyprus (965) later in the century. Expansion into eastern Asia Minor and Northern Syria also occurred: Antioch was taken in 969, Vaspurakan in 1021/2, Ani in 1045. By the end of Basil II’s reign the empire had reached its greatest territorial extent since the time of Justinian I. The only major territorial loss during the period of Macedonian rule was the gradual erosion of Byzantine authority in southern Italy over the course of the eleventh century.

Economic expansion accompanied these territorial gains. From an economic standpoint, the inauguration of the Macedonian dynasty coincides with the beginning of a long period of growth in population, land under cultivation and trade extending to the end of the eleventh century.Footnote ⁹ The stabilization of the Balkans facilitated the emergence of powerful new monasteries with substantial landholdings, particularly on and around Mount Athos.Footnote ¹⁰ The interior of Asia Minor was freed from the prospect of annual raids for the first time in centuries, allowing the formation of huge aristocratic estates.

The Macedonian dynasty, perhaps more than any other in Byzantine history, employed law and particularly legal reform as a means of legitimation. Although all Byzantine emperors recognized that the maintenance of the law and the legal order was an imperial prerogative and duty,Footnote ¹¹ the first two emperors of the Macedonian dynasty, Basil I (r. 867–86) and Leo VI (r. 886–912) chose to present legal reform, particularly the codification project which would eventually culminate in the completion of the Sixty Books/Basilika, the so-called “Cleansing of the Ancient Laws,” as one of the principal achievements of their reigns.

This chapter will demonstrate that the recapitulation of Justinianic law was a component of a larger political program directed at the recovery of “Romanness” or Romanitas in the face of new threats to imperial legitimacy, represented in the West by the rising power of the Carolingians and the Papacy and in the Balkans by the First Bulgarian Empire. While the Arab invasions of the seventh century and nearly continual warfare with the Umayyad and then Abbasid Caliphates had resulted in the empire adopting an introspective worldview, which emphasized the Orthodox Christian rather than Roman imperial portion of the late Roman political legacy, this trend had abated by the ninth century due to the changing political situation.Footnote ¹²

The Byzantine Empire’s eastern frontier was stabilized under the Macedonian dynasty, but it was confronted now by the Carolingian Empire claiming imperial authority in the West, a series of popes who challenged the Byzantine emperor’s ecumenical leadership, as well as a new Bulgarian state which, by adopting Orthodox Christianity, attempted to supplant Byzantine suzerainty in the Balkans. These three powers from an ideological standpoint presented fundamentally different challenges to Byzantine authority than that of the caliphates. While the latter constituted a rival state with superior resources, neither the Umayyads nor the Abbasids challenged the Byzantines as heirs to the late Roman political legacy, choosing instead to lay claim to the philosophical and scientific traditions of Antiquity.Footnote ¹³ The Carolingians and the Bulgarians, by contrast, sought to appropriate certain aspects of the Roman imperial legacy itself, including the title of emperor and much of its attendant symbolism. Tsar Symeon of Bulgaria (r. 893–927), who himself was educated in Constantinople and steeped in Byzantine culture, attempted to fuse his Bulgarian realm with the Byzantine Empire.Footnote ¹⁴ The Carolingians and the Papacy could challenge the Romanitas of the Byzantines on linguistic grounds: how, they asked, can you call yourselves Romans when you don’t even speak Latin? Symbatios’ reimagining of the Twelve Tables as composed in Greek is best understood as a response to these Western challenges.

Evidence of this challenge to the Romanitas of the Byzantines is especially noticeable in the sources of the second half of the ninth century. Amidst the controversy of the Photian schism a letter of Pope Nicholas I (858–67) addressed to Michael III (r. 843–67), the predecessor and eventual victim of Basil I, contained a scathing response to the charge that the Greek language was preferable to Latin. Although the epistle of Michael III has not survived, apparently he had described Latin as both “barbaric” (barbaram) as well as “Scythian” (Scythicam).Footnote ¹⁵ Pope Nicholas, obviously offended by such an assertion, defended the use of Latin and then proceeded to ridicule the absurdity of the Byzantines calling themselves Romans, stating “if you thus call the Latin language barbarous, because you do not understand it, then keep in mind that it is ridiculous to call yourselves emperors of the Romans and not even know the Roman language.”Footnote ¹⁶ Continuing in this vein, Pope Nicholas urged Michael to “stop calling yourselves emperors of the Romans, because according to your opinion you are barbarians … the Romans, however, use this language, which you call barbaric and Scythian.”Footnote ¹⁷

A letter of Louis II (r. 876–82) addressed to Basil I, likely written by the bilingual Carolingian intellectual Anastasius Bibliothecarius, also contested the claim to Byzantine Romanitas along much the same lines. Writing on behalf of the Carolingian emperor, Anastasius asserted that the Franks were worthier successors of the Roman imperial legacy than the “Graeci” over whom Basil ruled. In an elaborate metaphor, Anastasius reasoned that just as Christians were more worthy of being God’s chosen people than the Jews, the descendants of Abraham, because of their belief in Christ, for the same reason the Franks were worthier heirs of the Roman imperial legacy than the Byzantines: “therefore we have undertaken the office of the Roman imperium because of our good belief, orthodosia; the Greeks, because of their kacodosia, that is bad belief, have ceased to be Roman emperors, deserting the only city and capital of the empire, but also utterly parting with both the Roman people and the very Roman language, and transplanting themselves to another city, capital, people and language in all respects.”Footnote ¹⁸ Additionally, Basil had claimed in his letter, now lost, that the title of emperor (Gr. basileus, Lat. rex) was reserved for the Byzantine emperor alone. However, “rex” had apparently been rendered “rix” in his epistle, a source of great amusement to Anastasius.Footnote ¹⁹

As Marie Theres Fögen has likewise emphasized, these two letters, which contain respectively papal and Carolingian attempts to undercut Byzantine Romanitas, definitely shaped, and indeed probably in some respects were a cause of, the “Cleansing of the Ancient Laws” undertaken by the Macedonian dynasty.Footnote ²⁰ In her view “the reanimation of Roman law in the time of the emperor Basil I and the patriarch Photios looks like the answer to Nicholas’s letter, an attempt to regain the mighty symbol of Roman power and to demonstrate that the Byzantines were still and forever true Romans.”Footnote ²¹ This program of legal reform was, therefore, as much an exercise in reasserting the Roman identity of the Byzantine Empire under the Macedonian dynasty as it was a more practical matter of restoring Justinianic law.Footnote ²² Indeed, one cannot separate the “Cleansing of the Ancient Laws” from the wider political and social context – it cannot simply be seen as a “correction” of a flawed legal system, but rather a hearkening back to the power and glory of the Justinianic age.Footnote ²³ This chapter will examine in detail the legal reforms of the first two Macedonian emperors, Basil I and Leo VI, and the fruits of their codification projects: the Prochiron, the Eisagoge, and the Sixty Books/Basilika. While these three works mainly consisted of the rearrangement as well as the Hellenization of Justinianic law, the emperor Leo VI also composed 113 novels, which comprise the largest single instance of imperial legislative activity in Byzantine history after that of the Justinian himself. His legislation, penned in order to correct what he deemed to be flaws in Roman law, represents an attempt to adapt Roman law to a distinctly Middle Byzantine context. Finally, the proem to the Epitome bookends the program of the “Cleansing of the Ancient Laws” and was the culmination of an effort to link the Macedonian dynasty with the Roman past, not only in its imperial but also its republican iteration.

The Prochiron

The program of legal reform initiated by the first Macedonian emperors cannot be understood without contextualizing the development of Byzantine secular law from the time after Justinian until the middle of the ninth century. Through the reign of Heraclius (r. 610–41), himself a legislator of some importance, the study and teaching of Roman law remained quite strong. Already in the half century after Justinian’s death one of the enduring characteristics of Byzantine law, namely the analysis and logical reordering of his Novels, is evidenced by the so-called Syntagma of Athanasios of Emesa, a legal scholar active in the second half of the sixth century. To this period also belong the first redactions of the most popular collection of Byzantine canon law, the Nomokanon in Fourteen Titles – since Justinian’s Novels became the basis of much of Byzantine canon law, and he himself had given the first four ecumenical councils the authority of secular law, it is more difficult to separate church and secular law in Late Antiquity and the Early Byzantine period than in later centuries.Footnote ²⁴

Little is known of either secular or canon law during the “dark centuries” of Byzantine law, from roughly 650 to 850.Footnote ²⁵ Simply put, there is an appalling paucity of evidence as to how the law was interpreted and applied between the end of the reign of Heraclius and the advent of the Macedonian dynasty: there are no casebooks (such as the Peira for the eleventh century) and no monastic records, which appear only slightly later, particularly from Mount Athos. The first transmitted document among the acts of the archives of the Athonite monasteries, which in total contain some 1,200 legal documents (primarily property demarcations, donations, sales and exchanges) stemming from the medieval period, was a sigillion issued in 883 during the reign of Basil I.Footnote ²⁶

The Justinianic corpus of Roman law was still certainly in force at this time. However, if a remark from the most important of the lawbook of the period is to be believed, it could be used only with great difficulty even in the capital, likely through the medium of translations and commentaries into Greek made by the legal scholars during the time of Justinian and immediately afterward, the so-called antecessores and scholastikoi.Footnote ²⁷ From the lawbook in question, the Ecloga, promulgated by Leo III (r. 717–41) and Constantine V (r. 741–75) in 741, we learn that particularly in the provinces the Justinianic corpus was nearly impossible to use.Footnote ²⁸ Historians of Byzantine law postulate that the increasing inaccessibility of the Roman law may have led to the use of compact and relatively simple lawbooks termed the leges speciales, such as the Nomos Georgikos and Nomos Mosaikos, which did not presuppose an extensive knowledge of Roman law.Footnote ²⁹

At first glance, the Ecloga itself seems suited to solve the problem of the inaccessibility of Roman law cited by its promulgators. Running to eighteen titles and overwhelmingly concerned with private law, the Ecloga also reflects the ever increasing importance of Orthodox Christianity in secular law; the heading of its proem proclaims it as a “correction towards greater humanity” (epidiorthosis eis to philanthropoteron).Footnote ³⁰ This phrase is the leitmotif of the entire work and is especially evident in its amelioration of punishments, for instance substituting mutilation for crimes that under Roman law would have been merited the death penalty.Footnote ³¹ The marriage provisions of the Ecloga, also innovations, were especially popular and were adopted into later compilations of Justinianic law. Another plausible interpretation of the meaning of the Eclogian phrase epidiorthosis eis to philanthropoteron is that the language of the law was simplified and made easier to understand, and was thus a stylistic rather than a substantive “correction.”Footnote ³²

Far more important than the (in the grand scheme of things quite minor) changes to the substance of Justinianic law was the completely different ideological perspective, and correspondingly a sea change in the way the law was articulated, of the Ecloga. The Isaurian emperors saw themselves as but the latest in a long line of lawgivers extending back to Moses, Solomon, the Old Testament prophets and the New Testament apostles.Footnote ³³ The subjects of the emperor are not described as “Roman” a single time in the entire text, and are instead designated “marked as Christians” (christosemeiotoi).Footnote ³⁴ This stark emphasis on the Orthodox Christian thread of Byzantine legal culture was in a sense counteracted by the program of the “Cleansing of the Ancient Laws”, which instead sought to highlight the Roman political legacy and Hellenic orientation of the Macedonian dynasts.

Despite the popularity of the Ecloga, attested both by its translation into other languages (Armenian, Arabic and Church Slavonic) and its extensive manuscript tradition, within the Byzantine Empire itself the lawbook was tainted by the religious policies of its promulgators.Footnote ³⁵ As the initiators of the First Iconoclasm, the legacy of both Leo III and Constantine V was condemned after the eventual triumph of the iconophile faction in 843. Rather than being subjected to a damnatio memoriae, these iconoclastic emperors occupied center stage in the iconophile narrative of their victorious struggle against them; Leo and Constantine became analogues to past heretical emperors such as Valens, with the former’s Iconoclasm playing the same role as the latter’s Arianism.Footnote ³⁶

Though in the first half of the ninth century some reworkings of the Ecloga attest to a continued interest in secular law, the so-called Amorian dynasty, including Basil I’s immediate predecessor Michael III (r. 842–67), appears to have had no serious interest in law.Footnote ³⁷ The decades that followed Michael’s demise witnessed a rapid and unexpected period of engagement with the secular legal tradition. The impetus for the “Cleansing of the Ancient Laws,” undertaken by Basil I and continued by his son, is described by the anonymous author of one of the principal histories of the period, the so-called Vita Basilii, a hagiographic whitewashing of the unscrupulous first emperor of the Macedonian dynasty. The characterization of the state of contemporaneous secular law in the Vita Basilii is very similar to that in the proem to the Ecloga, and indeed the phenomenon of a legal reformer finding the laws in a state of confusion and then correcting them is a well-known Byzantine topos.Footnote ³⁸

According to the traditional dating schema, the first text published as part of the Macedonian codification effort, and likely the text which Basil commissioned in the aforementioned Vita Basilii, was the Procheiros Nomos (ho procheiros nomos/“The Law Ready at Hand”); it is referred to as the Prochiron in much of the secondary literature.Footnote ⁴⁰ The first promulgation of the Prochiron is dated by most scholars to the “reign of the three emperors”, that is, Basil along with his sons Constantine and Leo (870–9), and a newer interpretation suggests that a second version of it was distributed towards the end of the reign of Leo VI.Footnote ⁴¹

The proem to the Prochiron is mainly a rationale for its creation. Its first thirty-two lines contain a number of commonplaces in Byzantine legal texts, supported by biblical citations. Justice is the best means by which a ruler can give benefit to his subjects and by which they are uplifted.Footnote ⁴² Law has been given by God to humankind as an aid.Footnote ⁴³ While attempting to implement the divine injunctions for justice, the emperors undertook the present work. However, they realized that a comprehensive lawbook would be almost boundless.Footnote ⁴⁴ The character of the work is further elaborated upon in the following lines: much of the law was clarified, while other portions were deemed worthy of proper correction, still other regulations were passed over in silence.Footnote ⁴⁵ The didactic purpose of the handbook is then emphasized: “Since instruction [in the law] is necessary for all, what should we have intended, in order to put away men’s hesitation and to make instruction in the law easy to comprehend? Nothing other than to closely examine the mass of the legal writings and to select together that which is most necessary and important and to write them up by chapter in this law ready-at-hand, without omitting almost anything, which most ought to have knowledge of.”Footnote ⁴⁶ Perhaps with the didactic purpose of the work in mind, terms in Latin were rendered into Greek, therefore creating what are known as exhellenismoi in the secondary literature.Footnote ⁴⁷

Although the vast majority of the Prochiron is based on the Justinianic corpus, the proem also states that in areas where there existed no law, new constitutions were introduced.Footnote ⁴⁸ In a reference to the ongoing codification effort, the proem then states that if someone needs to find a solution to a problem which is not found in the Prochiron, then he must diligently search through “the breadth of the laws which we have recently cleansed.”Footnote ⁴⁹ All Justinianic law which remained valid was to be found in sixty books, while the abrogated portion was to be found in a single volume, “so that its clear and manifest lack of validity would be known to all.”Footnote ⁵⁰

Transitioning from presenting the rationale for its composition, in the proem a previous attempt at compiling a handbook similar in format to the Prochiron is vehemently criticized. This passage is given in full below:

In the last thirty years conflicting views have emerged as to the object of the proem’s attack. Traditionally scholars believed that the Ecloga was clearly the target of this diatribe, yet this lawbook’s continuing popularity and indeed the incorporation of some of its provisions (especially regarding marriage) into the other legal works of this period renders this interpretation in some respects problematic.Footnote ⁵² Another possibility is that it is in fact an attack on the patriarch Photios and his Eisagoge, and particularly the expansive powers delegated to the patriarch in the latter (see below).Footnote ⁵³

In view of the general thrust of the program of the “Cleansing of the Ancient Laws,” the traditional view that the proem refers to the Ecloga is the most plausible interpretation. Law was not the only genre in which the emperors after the restoration of Orthodoxy in 843 sought to condemn the iconoclastic legacy while at the same time reemphasize the essential continuity of imperial authority before and after Iconoclasm.Footnote ⁵⁴ An attack upon the Ecloga in the proem of the Prochiron conforms to the larger agenda of the founders of the Macedonian dynasty, whose rulers took great pains to present themselves as the restorers of an imperial legacy tarnished by the iconoclast emperors.

More relevant to the present study is the relation of the Prochiron to the general Macedonian codification effort: what was the purpose of the work? According to the preface, the Prochiron’s function was primarily didactic – it constituted the absolute minimum amount of law which an unspecified group of people was required to know. Based on the relevant provisions in the Book of the Eparch, it was intended for, among other groups, the guild of notaries in Constantinople. It should be noted here that by no means did the Prochiron represent the minimum familiarity with the law which any legal functionary was required to have – mid-level legal officials like thematic judges, for instance, were primarily administrators who were not necessarily expected to have a legal background, much as in the late Roman context. At the same time many thematic judges would have been themselves notaries at an earlier stage in their careers.

Intertwined of course with the practical intent of the Prochiron as a didactic handbook is the underlying political theme of the text found in the proem of the Prochiron. Related to the Macedonian codification effort, this is the reappropriation of Roman (i.e. Justinianic) law, and thus an important part of the late Roman heritage, by honoring the “legislation piously written by many emperors and teachers, both reverent and great.” The primary fault of the “handbook” mentioned in the proem was not that it did in fact constitute a selection (ekloge) of past legislation so much as an overthrow (anatrope) of this same legislation. Therefore the users of such a handbook were guilty of pride (hybris) against these emperors and teachers, rather than receiving instruction (didaskalia).

In the Prochiron are found all of the hallmarks of the Macedonian “Cleansing of the Ancient Laws.” On a practical level, the Prochiron was to improve the clarity and instruction of the law. From a political standpoint, the creation of the Prochiron was part of the Macedonian dynasty’s reappropriation of Romanitas; by excerpting the laws of past pre-iconoclastic emperors, the creators of the Prochiron were in effect cementing the continuity of the Macedonian emperors with their pious predecessors. Later lawbooks of the period built upon the Prochiron’s themes of rapprochement with the Roman past and the Hellenization of Roman law, two of the three strands of Byzantine legal culture as defined in this study. Yet it is the next lawbook according to the traditional dating schema, the Eisagoge, in which the role of Orthodox Christianity, the third thread of Byzantine legal culture, comes to the fore.

The Eisagoge

Traditionally, the second recapitulation of Justinianic law issued by the Macedonian dynasty is the Eisagoge, a shortened form of Eisagoge tou nomou (“introduction to the law”), incorrectly referred to within older literature as the Epanagoge (“return [to the law]”).Footnote ⁵⁵ All of the proposed datings for the work fall within the period 880 to 888.Footnote ⁵⁶ The Eisagoge, or at least the proem and titles two and three, is generally assumed to have been authored by the patriarch Photios.Footnote ⁵⁷ As is the case with the Prochiron, an examination of the proem of the Eisagoge highlights the impetus behind the creation of the text and its role in the Macedonian codification process.Footnote ⁵⁸

In contrast to other proems from the Middle Byzantine period, such as the Ecloga and Prochiron, the rationale and justification for law is strongly philosophical, itself a strong indication of Photian authorship. Indeed, biblical justification for the law, which is such a strong component in other proems, is completely absent from the introduction to the Eisagoge. The value of the present work, Photios states, is proven by its “most holy nobility.”Footnote ⁵⁹ Even in these first lines, the Macedonian dynasty’s underlying goal of reaffirming the Byzantine Empire’s connection with its late Roman past is affirmed – the validity of the lawbook lies not ipso facto in its utility, but rather in its pedigree as a correct recapitulation of the ancient laws. Photios continues by explaining the divine origin of the law, in strongly Platonic rather than biblical terms. God is here described as the “ruler and steward of all good things” who gave man a mixed constitution composed of two opposing and antithetical natures, the “knowable” (noeta) and “perceptible” (aistheta). He introduced the “good law” to restrain and order his condition.Footnote ⁶⁰ God did this, according to Photios, not so that one would suppose that these natures were separated and delineated within their own boundaries by one source or another, but rather so that one would recognize that that their source, God, is good and not wicked.Footnote ⁶¹ God gave the “good law” to teach man that God had banished the impiety of the sacrilegious “Manichaeans” – clearly a reference to the iconoclastic emperors – and introduced the power of the uniform monarchy.Footnote ⁶² God did not intend this monarchy to be embodied in any one person, but rather three aspects: the knowable, the perceptible, and the law, which binds and holds them together, in imitation of the Trinity.Footnote ⁶³ The content of these opening lines of the Eisagoge mirrors the Prochiron’s narrative of a reestablishment of legitimate, law-abiding and divine governance after a period of misrule.

The means by which the new dynasty sought to reestablish the law are related in the next lines. First they “cleansed everything remaining in the breadth of the ancient laws, and mixed the mass of the law clearly and purely into forty books like a divine draught.”Footnote ⁶⁴ The Eisagoge then directly confronts the legacy of the Ecloga by lambasting the “babblings of the Isaurians.”Footnote ⁶⁵ Traditionally viewed as a condemnation of the content of the Ecloga, it has now been convincingly argued that this is in fact an attack on the caesaropapist tendencies of the proem of the Ecloga.Footnote ⁶⁶ The Eisagoge via its clear delineation of the powers of the emperor and patriarch thus eliminated the dangerous precedent of the Isaurian priest-kings and their policy of iconoclasm. Unlike the Prochiron, the Eisagoge appears to have been given the force of law.Footnote ⁶⁷ The legitimacy of the Isaurians is questioned further in a section which questions the rule of unorthodox emperors; “therefore the emperor is descended also from emperors, who did not [merely] become emperors, but who were remembered and praised for their orthodoxy and justice.”Footnote ⁶⁸

The narrative presented by the Eisagoge outlines in brief the ideology behind the Macedonian codification project. Photios presents the law in powerful neo-Platonic terms: God, as Demiurge, gave law to humankind as a way of ordering its two natures, that of the knowable and the perceptible. Together, the knowable, the perceptible and the law constitute the three aspects of the uniform monarchy, corresponding to the three emperors (Basil, Constantine and Leo) mentioned in the rubric. The Isaurians represented a terrible caesura in imperial history: their laws were anathema and they were guilty of separating humankind’s two natures. The Eisagoge, the result of a cleansing of the ancient laws, is given the force of law by the new dynasty: this corresponds to the neo-Platonic “good law” in the text, the law which was given by God to aid humankind. Although there are strong elements of continuity, it is important to note that Photios presents the Macedonian dynasty as representing a distinctly new type of governance; God “has introduced the lordship and power of one rule and unitary monarchy.”Footnote ⁶⁹ The Macedonian dynasty is thus innovative and traditional at the same time – past emperors are honored for their orthodoxy and justice, the ancient laws are purified, but these activities are subordinated to a very new political project. “Novelty” was also a motif of Basil I’s building program in the capital, highlighted by the construction of his magnificent “New Church” (nea ekklesia).Footnote ⁷⁰

The strongly neo-Platonic overtones of the proem to the Eisagoge also play a role in the presentation of the Macedonian dynasty’s codification process. While one could possibly ascribe the neo-Platonic rather than biblical presentation of the law to the proclivities of Photios himself, such a view is undercut by the fact that Photios was writing an officially promulgated text, or at the very least a text he intended to be promulgated, at the behest of the empire’s rulers. Likewise, viewing the text solely as a legal analogue to the classicizing trend in Byzantine art under culture under the rubric “Macedonian Renaissance” is also problematic: at least among officially promulgated texts, the neo-Platonic overtones of the proem to the Eisagoge are exceptional, and are not found in similar texts from the same period like, for instance, the eleventh-century Novella constitutio (in which the more traditional biblical justification of law is utilized).

While the neo-Platonic turn of the proem of the Eisagoge offers a stark contrast to not only the legislation of the Isaurian dynasty but indeed all previous secular law, some of the content of the work is quite exceptional. Most noteworthy are the second (“On the Emperor”) and the third titles (“On the Patriarch”) of the Eisagoge, which present a unique Middle Byzantine schema for government.Footnote ⁷¹ While the vast majority of the provisions of both the Prochiron and the Eisagoge was based on Justinianic law, much of the second and all of the third titles are interpolations, written expressly for the Eisagoge. In the Eisagoge, the emperor and patriarch are figures of almost equal authority, the former possessing the highest authority in temporal and the latter in spiritual matters.

The Sixty Books of Leo VI

Moving now to the reign of Leo VI (r. 886–912), the son and successor of Basil I, the Macedonian codification effort reached its climax with the publication of the so-called Sixty Books.Footnote ⁷² The Sixty Books in essentially the same form would later become known as the Basilika (so-called because they are the “imperial” lawbooks), although the term Basilika did not gain currency until the eleventh century.Footnote ⁷³ In this study the term Sixty Books will be used to distinguish Leo’s codification from the Basilika, because even if they did not differ in content it is nonetheless useful to distinguish the legal reform project of Leo VI from the later Basilika, which were supplied with extensive scholia that played a vital role in the text’s interpretation.

The Sixty Books were promulgated early in Leo’s reign on Christmas Day 888.Footnote ⁷⁴ The preface to the Sixty Books, which was not included by the editors of the new Groningen edition of the Basilika, but is accepted by other scholars as genuine, gives further evidence of the continuing codification process. As a sign of the growing concern to compare and connect the Macedonian codification effort with that of Justinian, the first lines of the proem recount Justinian’s own legal reforms and list the various components of the Justinianic corpus: the Digest, Institutes, Codex and Novels.Footnote ⁷⁵ Justinian’s magnum opus, however, was not without its flaws: “thus our Majesty thought the state of the laws as it has been apportioned to be lacking with regard to both the elimination of the difficulty of studying the laws as well as to a clarification of their order.”Footnote ⁷⁶ Towards that goal, all of the useful portions of the law were gathered into six volumes; the way the Basilika is transmitted, either in six or (later) in four manuscripts, confirms the veracity of this information in the proem.Footnote ⁷⁷ The parts of the Justinianic corpus which were not included in this collection were grouped into two categories: that which was contradictory and that which seemed superfluous.Footnote ⁷⁸ The useful matter was divided thematically into sixty books, so that Leo could proudly proclaim “we have offered through our diligence concerning the laws an easy study, and a final answer for any sort of pressing matter, with not a single piece of legislation which bears a correct judgment from the earliest times until the legislation of our Majesty omitted.”Footnote ⁷⁹

The proem to the Sixty Books, in contrast to the Prochiron and Eisagoge, is much more explicit about the law which is being reworked: it is not merely the “old laws” but the laws of the emperor Justinian. Furthermore, Justinian’s massive codification is implicitly compared, by juxtaposition, with that of the Macedonian emperors. Whereas emperors from earlier periods, such as Leo III and Constantine V in the Ecloga, felt no need to state their affinity with Justinian and to situate their own legal reform efforts with regard to his, this had clearly changed by the end of the ninth and beginning of the tenth century.

It is worth discussing what the Sixty Books/Basilika were as well as what they were not. They represented an almost completely Hellenized (though not absolutely so – they were still numerous Latin words and phrases) redaction of the CIC divided in sixty books (biblia), then further into titles (titloi) and chapters (kephalaia). More important is the realization of what the Basilika were not: in general surveys as well as in some of the secondary literature on the subject, the official law of the Byzantine Empire during the period of Macedonian rule is sometimes assumed to have been the Basilika.Footnote ⁸⁰ Yet it is at best only partially correct and at worst misleading to state that the Basilika constituted the official law of the Byzantine Empire during this period, because there is no firm basis for this and normative legal texts from this epoch tend to support a broader definition of what valid law actually was. Notwithstanding some opinions to the contrary, it also does not appear as though the publication of Leo VI’s Sixty Books/the Basilika invalidated older Justinianic law.Footnote ⁸¹ The Basilika was, after all, valid law only insofar as it was assumed to represent, in paraphrased Greek, the Corpus Iuris Civilis of the emperor Justinian.Footnote ⁸²

In short, although the publication of the Sixty Books/Basilika represents the greatest achievement of the “Cleansing of the Ancient Laws,” it was not an exclusivist endeavor: Byzantine legal manuscripts show that jurists continued to consult the Greek paraphrases and commentaries stemming from the age of Justinian alongside the Basilika.Footnote ⁸³ It was not until considerably later, in a novel of Manuel I Komnenos (r. 1143–80) issued in 1166, that the Basilika were granted exclusive legal force. In the same vein the titular patriarch of Antioch and consummate canonist Theodore Balsamon (died after 1195) stated in a canonical response to the Greek Orthodox Patriarch of Alexandria Mark III that the Melkite community in Egypt was obliged to use the Basilika, even though they apparently had no access to it. These twelfth-century opinions on the absolute authority of the Basilika are outliers within the wider Byzantine secular law tradition in general, and do not reflect the understanding of the role of the Sixty Books/Basilika through the end of the eleventh century.

The Novels of Leo VI

To this point the program of the “Cleansing of the Ancient Laws” has delimited aspects of Byzantine legal culture for the most part indirectly. While the proems of the Prochiron, Eisagoge and the Sixty Books offer strong justifications for their composition (better organization and standardization of the written laws, translation into Greek), their contents by contrast differ little from the Justinianic corpus, the Eisagoge being only a very minor partial exception. The patrons of this codification project, Basil I and Leo VI, intent on appropriating the empire’s legal legacy, generally avoided introducing new constitutions into these lawbooks. This conservatism corresponded to evolving sensibilities in theology, which were then applied to law, regarding the negative connotations of innovation or kainotomia.Footnote ⁸⁴ This state of affairs changed drastically however during Leo VI’s reign, as he issued perhaps as many 120 novels, although only 113 novels have been transmitted to us.Footnote ⁸⁵

The precise chronology of the novels is disputed; until recently most legal historians believed that Leo promulgated all his novels in a collection along with the Sixty Books on Christmas Day 888.Footnote ⁸⁶ Several years ago a convincing study demonstrated that the Novels of Leo VI as they have been transmitted to us are in fact a heterogeneous collection of his legislation that was composed at different points in his reign.Footnote ⁸⁷ This flurry of legislative activity was the most extensive of any emperor after Justinian.

While the works stemming from the “Cleansing of the Ancient Laws” to this point for the most part did not actually comment on the content of Roman law, the Novels of Leo VI specify what particular portions of the Justinianic corpus Leo found objectionable, and, in a limited number of cases, one finds corresponding reworkings in the Basilika.Footnote ⁸⁸ The working formula of the vast majority of the novels is to begin with an inconsistency or problem in the Justinianic corpus, canon law or both and then to present a solution, via an abrogation, new legislation or both. Generally, Leo is far more critical of past emperors, who are referenced in a general sense, than he is of canon law. It is treated as a given that the divine canons are perfect, “since the holy and divine canons and other acts which govern the priesthood and the ordination of bishops have regulated excellently and most accurately – how could they not have been pronounced accurately when the Divine Intent worked among their authors?”Footnote ⁸⁹ Leo’s imperial predecessors, by contrast, are by no means immune from critique. Justinian for example, who is only mentioned by name twice in the entire work, is criticized by Leo for having issued one novel which forbade a woman from contracting a second marriage (Novel 22.16), then issuing another novel (Novel 117.8) which Leo read (incorrectly) as making certain exceptions to this rule.Footnote ⁹⁰ Yet even in this context the Late Antique ruler is described as “that Justinian, whose piety and attentiveness toward his subjects honored [his] diadem.”Footnote ⁹¹

The raison d’être of the Novels, and its relation to the Macedonian codification effort, is most evident in the proem and in Novel 1.Footnote ⁹² Leo compares the laws to doctors, who hinder the coming of maladies and uproot evil.Footnote ⁹³ As is common in human affairs, however, many of the laws had been forgotten, neglected or become contradictory.Footnote ⁹⁴ Finding this unfortunate situation unacceptable, Leo then details how that he will rectify it. Although the word “cleansing” (anakatharsis) is not used, the methods Leo employs to correct the laws are consistent with the modus operandi of the Macedonian codification program which has been examined above. First, the mass of laws was submitted to a careful examination, and the laws which were judged “useful” (lusiteles) were granted the force of law again by imperial degree.Footnote ⁹⁵ Those laws which by contrast were considered without benefit were either explicitly derogated or were left unmentioned.Footnote ⁹⁶ Finally, customs which seemed reasonable were granted the force of law.Footnote ⁹⁷

The hearkening back to the empire’s heyday under Justinian, a leitmotif of the entire program of the “Cleansing of the Ancient Laws,” took an unusual turn in Leo’s corpus of novels. Novel 1 compares Leo’s own efforts at legal reform with those of his illustrious predecessor, Justinian. Like Justinian, Leo issued a new redaction of Roman law along with a collection of novels. Leo himself, however, saw at least one crucial difference between his own legislative activity and that of Justinian. He at first praises Justinian for his legal achievements, for “he thus perfectly rendered the dispersed substance of the laws into one body.”Footnote ⁹⁸ Yet Leo then criticizes the sixth-century emperor for having sullied the completion of the CIC by later issuing a second redaction of his work, so that “thus Justinian himself was shamed through his own efforts,”Footnote ⁹⁹ a reference is to the Novels of Justinian, which were issued after the completion of the initial codification effort. Thus Leo could present himself to have surpassed Justinian’s legal achievements, at least in this respect.Footnote ¹⁰⁰

Legal historians have for the most part viewed the Novels of Leo VI as a curiosity that had a minimal impact on Byzantine society.Footnote ¹⁰¹ The testimony of Michael Attaleiates would seem to confirm the limited influence of the Novels, as he states in his Legal Textbook that: “The blessed lord Emperor Leo issued many novels, but they were not in use, excepting only those which were written without other laws already existing, or which were a supplement to the novels enacted by Justinian.”Footnote ¹⁰² Only one of Leo’s novels is included in the Basilika.Footnote ¹⁰³ An anonymous history of Roman/Byzantine law, which was perhaps authored around the year 1080, likewise notes that few of Leo’s Novels were actually in use, with the exception of his novels concerning distances between fishing nets (Novel 103) or between a new house and a field boundary (Novel 71), as well as regulations for houses in Constantinople.Footnote ¹⁰⁴ What legal historians have judged to be the illogical and erratic nature of the laws has reinforced the notion that Leo’s Novels were more an academic exercise than a serious attempt at legislation.Footnote ¹⁰⁵ The content of Leo’s legislation, which treats some admittedly arcane subjects, likewise did little to dispel this notion: some of the topics include the consumption of blood (Novel 58) as well as precise building regulations and spacing requirements.

The negative verdict of legal historians on the relevance of Leo’s novels illustrates the danger of examining legislation without taking into account the wider societal context. In fact, the Novels of Leo VI reflect this emperor’s attempts to adapt the late Roman heritage to a Middle Byzantine context. Laws which restricted the use of clergy (Novel 4) and baptism (Novel 15) in private chapels were overturned, reflecting the increasing importance of privately endowed churches and monasteries.Footnote ¹⁰⁶ Leo’s legislation in this regard is reflected in the interplay between Middle Byzantine architecture and liturgy, as both became more private and closed in contrast to the public and processional nature of both in Late Antiquity.Footnote ¹⁰⁷

Leo’s monastic legislation represents an attempt to make Justinianic law conform to the empire of his day.Footnote ¹⁰⁸ It was precisely at this time that the Athonite monasteries began to become large landholders, mainly by acquiring and cultivating fiscally unproductive (klasma) land.Footnote ¹⁰⁹ Byzantine society itself was much more monasticized in Leo’s than in Justinian’s epoch, with monks playing a more prominent role in the church, the economy, intellectual life and politics.Footnote ¹¹⁰ Although Leo did not attempt a comprehensive reform of Justinian’s monastic legislation, he made some nods to contemporary monastic practice, for instance legalizing (under certain conditions) the acquisition of property after a monk was tonsured (Novel 5).Footnote ¹¹¹ Monks and clerics were also given the legal capacity to serve as the guardians (epitropoi) of orphans, thus administering their property until the orphaned children became adults (Novel 68).Footnote ¹¹²

Other innovations which Leo introduced grappled with more recent forms of Roman law, including the provisions which the Isaurian dynasty introduced into marriage law via their lawbook, the Ecloga. Though the Isaurian dynasty and the Ecloga are not mentioned explicitly by Leo in his Novels, he did indirectly refer to some of the latter’s regulations.Footnote ¹¹³ Novel 20 attacks some of innovations in marriage law found in the Ecloga, claiming that “These [regulations concerning prenuptial gifts], which seemed good to the ancients, were overturned by [their] successors.”Footnote ¹¹⁴ Leo goes on to criticize these Eclogian provisions and later in the novel mentions that his father, Basil, overturned Eclogian marriage law with a novel.Footnote ¹¹⁵ Yet he praises Eclogian marriage law elsewhere in his legislation.Footnote ¹¹⁶ Notwithstanding the portrayal of the Isaurian emperors as despicable heretics by post-iconoclastic hagiography and historiography, Leo still thought it acceptable to enact some of the Ecloga’s provisions. Novel 32 concerns the punishment that should be meted out to adulterers caught in flagrante delicto, for which a constitution of Constantine I ordered that adulterers in question be put to death.Footnote ¹¹⁷ Though Leo admits that adultery merits a punishment, in his opinion, no less than that of murder, he finds the aforementioned constitution too harsh.Footnote ¹¹⁸ He then orders that a more humane provision (philanthropotera psephon), perhaps a reference to the Ecloga, which its promulgators touted as a selection of laws “with a more humane tendency” (eis to philanthropoteron), be enacted which mandates the amputation of the offender’s nose.Footnote ¹¹⁹ Another novel (Novel 41) which reduces the number of witnesses required for a will in rural areas from five to three coincides with a provision of the Ecloga, but Leo appears to have been unaware of it.Footnote ¹²⁰

Bridging the orthodoxy of the late Roman emperors with that of the Macedonian dynasts also meant confirming the validity of canons issued after Justinian’s legal reforms. In the CIC the first ecumenical councils up to Chalcedon (451) were given the force of secular law by Justinian’s Novel 131.1, yet there was no obvious provision within the Justinianic corpus which allowed the incorporation of canons from later councils. The Novels of Leo VI thus aimed at harmonizing post-Chalcedonian canon law, including Constantinople II (553) and III (680–1), for which no canons were issued until the Council in Trullo (691–2), Nicaea II (787) and the Apostolic Canons, the validity of which was confirmed by the second act of the canons of the Council in Trullo, with Byzantine civil law.Footnote ¹²¹ It is possible that the Novels of Leo VI led to an interpolation in the Basilika, since Justinian’s Novel 131 was reworked so that the three post-Chalcedonian ecumenical councils were also given the authority of law.Footnote ¹²²

The actual content of the Novels demonstrates that the Macedonian codification program was not a mere regurgitation of Roman law. The “Cleansing of the Ancient Laws” was both a mimetic and creative act; the new legal regime was substantially like the old one but the Macedonian dynasty presented it as a betterment in certain respects. Though a connection between the Macedonian dynasty’s reappropriation of Romanitas and Leo’s efforts to bring canon law into line with more recent councils may appear tenuous at first glance, further examination allows the link to be much more clearly seen. The states that challenged Byzantine claims to the late Roman Imperial heritage, including the Papacy, the Carolingians and the Bulgarian Empire, differed from the threat of the Arab invaders and Islamic successor polities in that they challenged the emperor’s spiritual leadership of the Christian peoples. The empire’s claim to doctrinal orthodoxy and leadership of the oikoumene had been undercut, in the view of later writers, by the policies of the iconoclastic emperors. Part of the Macedonian dynasty’s program of legitimation was to reassert its role as a defender of orthodoxy and rehabilitate the emperor’s spiritual authority. Thus although the Macedonian dynasty’s codification project was primarily a recapitulation of Justinianic law, in Leo’s novels one can deduce some of the importance which was attached to rehabilitating the spiritual authority of the emperor.

Unlike the law codes which have been examined in this chapter (the Prochiron, the Eisagoge and the Sixty Books), which for the most part represented recapitulations of Justinianic law, Leo’s Novels represent an attempt to critically engage with the empire’s Roman legal tradition and to harmonize seeming contradictions and obsolete rules as well as to legitimize post-Chalcedonian canon law. Both of these aims were congruent with the Macedonian Dynasty’s “Cleansing of the Ancient Laws,” which was itself a part of a larger program of dynastic legitimation that included the reappropriation and renewal of Romanitas.

The Epitome (Legum)

The success of the Macedonian dynasty’s efforts to reappropriate the Roman past and to place itself within the arc of Roman history can be found in a private lawbook compiled shortly after the death of Leo VI. The so-called Epitome (legum) (“Extract from the laws”) was probably first authored in 912–13 before being extensively reworked in 921 during the reign of the usurper Romanos I Lekapenos (r. 920–44).Footnote ¹²³ The designation Epitome (legum) is not supported by the manuscript tradition but is nonetheless overwhelmingly used in the secondary literature.Footnote ¹²⁴ The Epitome appears to be an expanded version of the Prochiron. In adding relevant excerpts from the CIC, the author of the Epitome, Symbatios who is named in the proem (lines 66–7), evidently consulted the writings of the antecessores rather than the corresponding passages in the Sixty Books.Footnote ¹²⁵ Little is known about this Symbatios and “the other pious and righteous men” mentioned in the proem, other than his rank (protospatharios) and likely ethnic origin (“Symbatios” is a Hellenized form of Armenian “Smbat (Սմբատ)”. References to a jurist by the name of Symbatios are found in later legal texts.Footnote ¹²⁶

The proem of the Epitome begins with a typical rationalization for law, before Symbatios states that “I shall give a history of the ancient genesis of [the law], whence it received its beginning and some of the laws the Romans put into effect during particular times.”Footnote ¹²⁷ The Epitome thus begins a trend found in later Middle Byzantine lawbooks, which often give some sketch of Roman legal history and present contemporary legal works as successors to Roman antecedents.Footnote ¹²⁸ Symbatios then offers a brief history of Roman law using Digest passages of Gaius and Pomponios, which in his account begins in the time of the Seven Kings and continues through the republican period. The scope of the history is likewise innovative as it stretches back before even Constantine, and indicates a newfound interest in the pre-Christian phase of the Roman Empire. As noted in the introduction to this chapter, in the proem the story of the Twelve Tables is recounted, and via a clever interpolation that they were in fact originally written in Greek, Symbatios underlines Byzantine Romanitas – challenged as it was by papal and Carolingian claims that Latin, as the language of the Roman Empire, had long been abandoned by the Byzantines in favor of Greek.Footnote ¹²⁹

Symbatios gives a very brief synopsis of law during the republican period before moving on to the age of imperial Rome. Like Leo VI, Symbatios describes Justinian’s codification effort, which was directed by Tribonian.Footnote ¹³⁰ As in other texts of the Macedonian codification project, the sheer unwieldiness of the laws in their Justinianic redaction is emphasized: “Thus the laws were so extended and multiplied by legislators in their times that they seemed infinite in [their] multitude, and men thought that the advantageous and sweet burden of the law was heavy rather than light and useful.”Footnote ¹³¹ Symbatios then gives an overview of the codification effort: how Leo VI commissioned the Sixty Books and issued his Novels.Footnote ¹³² The result of the “Cleansing of the Ancient Laws” is the reestablishment of the Roman legal order: “Having related in brief this exercise of the collection of the selection of the law, we have transmitted most of the laws [from] the aforementioned times, in which they were honored and praised.”Footnote ¹³³ The legal codification project of the first two Macedonian emperors, Basil I and Leo VI, was thus brought to a successful conclusion – and as such sets the stage for the further examination of Byzantine legal culture in the rest of this book.

Conclusion

An analysis of the proems of the various texts associated with the Macedonian codification effort (respectively the Prochiron, Eisagoge, Sixty Books and the Epitome) along with the Novels of Leo VI has clearly delineated the goals and scope of the “The Cleansing of the Ancient Laws.” The impetus for the Macedonian codification effort consisted primarily of the need for dynastic, ecumenical and political legitimation in the face of new powers which challenged the Byzantine Empire’s claim to the legacy of Roman imperial authority. Thus, the codification effort can be seen in large part as the reappropriation of Romanitas.

This effort to reappropriate the past was not, however, merely mimicry. Resurrecting the Roman legal order was both a creative and emulative act. As the Novels of Leo VI in particular demonstrate, the codification effort was legitimate because it was based on Roman law, but it many respects the new Macedonian redactions of primarily Justinianic law were presented as an improvement: more humane and more in line with contemporary canon law. Even the great Justinian was not spared from criticism.

“The Cleansing of the Ancient Laws” is important for our understanding of Middle Byzantine legal culture both because it both frames the entire period with which this study is concerned and also because the ideological impetus of the Macedonian codification project – the reappropriation of the Roman legal past as a means of legitimizing dynastic, ecumenical and political authority – permeates all the juristic works written during this period as well as what we know of Middle Byzantine jurisprudence. The effort to strengthen the link with the past at the behest of the present was applied not merely to legal compilations which we would call Byzantine rather than Roman, as in texts like the Rhodian Sea-Law or the Farmer’s Law, but also to elements of the Christian, and particularly Old Testament, legal tradition, as is the case with the Nomos Mosaikos.Footnote ¹³⁴