He Couldn’t Stop Himself

Michael Kulikowski

  • The Codex of Justinian translated by Fred H. Blume, edited by Bruce W. Frier
    Cambridge, three vols, 2963 pp, £450.00, May 2016, ISBN 978 0 00 000097 2

Had you been a sixth-century Christian, living in lands that had been or still were part of the Roman Empire, you would probably have met a demon. Every tree, hill and stream, every hovel and hamlet, harboured some threat to mortal souls. Demons coiled round the legs of dying sinners and snatched them up in their gaping jaws. They landed in wine cups and tricked people into drinking them. But prayer, repentance or a Christian symbol was enough to deal with them, generally speaking – the demonic fly was banished from the good man’s cup when he made the sign of the cross and poured out his wine in four equal measures. Yet not all demons were quite that ineffectual. There were also proper devils, devils who could afflict all mankind, though you had to travel to Constantinople to see them. There, a demon dressed in the purple robes of an emperor would leap from the imperial throne and stalk the halls, his head either invisible or a horrifying mass of shapeless flesh. From his palatial vantage point, he visited torments on the whole Roman world. The Emperor Justinian was not possessed by a demon. He was the Lord of Demons himself.

Or so Procopius tells us in his Secret History. It is a scabrous pamphlet, as nasty as a Breitbart take-down, and he wrote it to counterpoint the bucketfuls of panegyric he spewed into his seven long books on the emperor’s endless wars and his even more sycophantic account of imperial construction projects. Malice aside, Procopius was a shrewd judge of character. Justinian’s energies were demonic. Like Philip II of Spain a millennium later, he was a man who barely slept, whose entire being was focused, as if by unholy compulsion, on mastering every detail of every problem, however consequential, however trivial, a man who couldn’t refrain from personal intervention even when policy and good sense both dictated silence. And – like Philip here too – Justinian couldn’t refrain from starting wars.

His uncle Justin, a guards officer of no special talent, reached the imperial throne in 518 on the strength of timely bribes and his rivals’ political incompetence. He inherited a nasty situation on his eastern frontier: competition over who should control the petty monarchs of the Caucasus had shattered decades of peace with Persia. The 520s saw some hard fighting, but Justinian, who succeeded his uncle peacefully in 527, caught a lucky break thanks to a succession crisis in Persia. The crisis was resolved, however, by the accession of Khusrau Anushirvan (‘the Immortal Soul’), who in 540 sacked the patriarchal seat at Antioch and bathed in the Mediterranean at Seleucia. Before returning to Persia with thousands of pounds of gold and countless enslaved Romans in tow, he held chariot races in the hippodrome of Syrian Apamea. By then, however, Justinian had enjoyed military victory on a scale that had evaded imperial armies since the time of Trajan, almost half a millennium earlier.

Vandal kings had ruled North Africa from Carthage since the 430s, rare beneficiaries of the civil warfare and criminal neglect of basic governance that destroyed the West Roman state in the fifth century. Though their kingdom had grown into a respectable part of the post-imperial commonwealth, whose princes frequented the imperial court at Constantinople, old Vandal triumphs over the joint armies of West and East scarred imperial memories. When Hilderic, the ageing son of a Vandal monarch and an imperial princess, well disposed towards Justinian, was deposed by a less biddable cousin, the emperor launched an invasion of North Africa. A small imperial army under Belisarius (Procopius’ hero, interestingly reimagined by Robert Graves) routed the usurper Gelimer not once but twice: in 533-34, the Vandal kingdom crumpled with no further hint of resistance.

Buoyed by that near miraculous success, Justinian set his sights on Italy, where another murderous succession squabble was unfolding. Theodoric, a cunning Ostrogothic freebooter, had bargained his way to imperial recognition and then fought his way to an Italian throne in the 490s, metamorphosing into the revered elder statesman of the barbarian West. Untimely deaths having robbed him of competent male heirs, Theodoric left his kingdom to a ten-year-old grandson under the regency of his daughter Amalasuntha. Initiated into the pleasures of booze-fuelled debauchery, the boy was dead a few years later, and Amalasuntha forced to pick a male consort through whom she might retain control. She chose her cousin Theodahad, a Gothic aristocrat of enormous wealth and indolence, as well as pretensions to Neoplatonic philosophy. The queen had miscalculated. Imprisoned by her cousin on an island in Lake Bolsena, hoping for support from Justinian, she succumbed to the garrotte of an assassin in 535. No further pretext was needed. Belisarius seized Sicily and then rolled up the peninsula with seemingly unstoppable force, Gothic armies disintegrating before him. Theodahad panicked, offering to surrender the kingdom in exchange for a pension and a quiet life in Constantinople. Unimpressed by this abject cowardice, the Gothic nobility deposed Theodahad and elected a competent general who undid all of Belisarius’ gains. A series of Gothic kings fought imperial armies to a standstill as the war settled down into decades of thankless campaigning – Procopius was long dead when the last Ostrogothic hold-outs surrendered in the 550s. By then, the world’s first great epidemic of bubonic plague had more than decimated the population, military and civilian.

The story of Amalasuntha illustrates how difficult it was to be a powerful woman in late antiquity. Procopius pairs his imperial devil with an equally demonic consort, the Empress Theodora.[*] She was no less extraordinary a figure than Justinian and as canny a politician as any Roman empress had ever been. As well as taking a hand in such traditional forms of female patronage as church-building, she stiffened the emperor’s spine at the lowest ebb of his reign: faced with massive rioting in 532, Justinian was all for fleeing till Theodora’s stirring speech (‘the purple makes a noble winding sheet’) steadied his nerves, and the generals Belisarius and Mundo set about massacring thousands of rioters.

Procopius’ classical misogyny could not tolerate political skill and influence in a woman, especially not in the daughter of a bear-keeper and an actress, and he countered it with salacious defamation. ‘Her venal charms were abandoned to a promiscuous crowd of citizens and strangers of every rank,’ in the words of Edward Gibbon, a worthy successor to Procopius, though he regretted that ‘her murmurs, her pleasures and her arts must be veiled in the obscurity of a learned language.’ The convent she founded for reformed prostitutes, according to the Secret History, was actually a prison whose inmates killed themselves rather than abandon the profession that Theodora had given up to marry Justinian. It is true that for the marriage to take place, the law forbidding a senator to marry an actress had to be changed, but it is also true that Justinian’s reign is unusually rich in legislation concerning – and sympathetic to – women: the banning of brothels and of trafficking in girls, the right of concubines (whom we would call common-law spouses) and their children to inherit, the right of women to divorce adulterous husbands, and a prohibition on a man’s right to kill his adulterous wife. It is hard not to detect Theodora’s hand in this, and she is specifically invoked by the emperor as a partner in remaking the empire’s laws.

Less gripping than Procopius’ biographical slanders, less accessible than the tactical minutiae of the emperor’s wars, the legal reforms of Justinian’s reign are nonetheless the most important thing about it. His ambition was to create a single, up-to-date and definitive body of Roman law, superseding everything else and rendering inadmissible any alternative source of law. Not only would he reduce the tangled profusion of legal sources to sober order, he would surpass the achievement of every predecessor, which was motive enough in itself.

The first step was to issue a Code compiling the laws issued by emperors since the second century. This appeared in 529 and replaced three other such codes then in use. It was followed in 530-31 by Fifty Decisions, which clarified conflicting interpretations in the writings of classical jurists, whose opinions had long had the force of law. Next, and more ambitious still, a second collection – the Digest or Pandects – excerpted, edited and organised the work of jurists active from the reign of Augustus to that of Constantine, when imperial edicts became the sole source of new law. The fifty-book Digest was accompanied by a four-book Institutes that served as an introductory textbook for law students. Finally, in 534, a new edition of the Code was issued, updated to take into account the Fifty Decisions and the many other laws Justinian had issued in the previous half-decade. The revised Code was transmitted to the Middle Ages and, together with the Digest and Institutes, came to be known as the Corpus Iuris Civilis. From the 11th century on, it helped usher much of Europe from the world of customary and feudal law to that of written statute. And it is still with us to this day, from the fundamental laws of the European Union (rooted in French, German and Swiss civil law), to the Code Napoléon, which can still shape case law in a long since independent (and common law) jurisdiction like Louisiana.

Justinian’s Code has now received its first viable English translation (the 1932 version by S.P. Scott worked from an antiquated Latin text and ought to have been pulped on publication). The new one, admirably curated by a team led by Bruce Frier, is based on a draft made by the Wyoming justice Fred H. Blume (1875-1971) that had languished in manuscript for decades. Frier and company secured the use of the text from Blume’s estate, with all profits from the expensive three-volume set, its facing-page translations spread over more than two thousand pages, going to a non-profit fund for further research on the Code.

Frier’s reclamation and improvement of Blume’s draft more than equals a fine 1980s translation of Justinian’s Digest, which has just now been joined by the first complete English version of Justinian’s novellae, his ‘new laws’, in another 1ooo-page doorstop.[†] Taken together, they make the vast majority of extant Roman law available to readers without Latin, who need no longer be deceived by Scott. The comprehensive list of the Code’s titles, with which these volumes open, allows readers to grasp in an instant the scope and scale of his legal project on anything from the care of lunatics and prodigals (Book 5, Title 70) to swine-dealers and wine merchants (Book 11, Title 17).

The Code, Digest, Institutes and Novellae (and perhaps the church of Hagia Sophia in Constantinople) are the only grounds for positive judgment on a reign that was in other respects disastrous. There will always be people who identify vicariously with Roman power and see the ‘reconquest’ of the Latin West as an intrinsic good: the western empire had fallen to barbarians and Justinian’s unprovoked invasions of Africa and Italy restored things to their rightful order. But the reality is less triumphal, more depressing. Nobody except exiled Catholic clerics had been pining for the collapse of a Vandal monarchy that had proved a very good partner for resident landowners. In Italy, a great many Romans defied the invaders – Greek foreigners, as far as they were concerned – with at least as much gusto as the Gothic army did. More than twenty years of fighting did horrific damage to the agricultural and industrial infrastructure of Italy. Seventh-century Rome was a ghost town, as were the peninsula’s other great cities, and their recovery took centuries: not until the Thirty Years’ War was such a substantial part of Europe again laid waste so comprehensively.

And it was all for nothing: less than two decades after Justinian’s final victory in northern Italy, Lombard warlords, having picked clean the former provinces of Pannonia, crossed the Alps and threw the imperial armies back into discontiguous and dwindling enclaves. Defending them, to very little purpose, sucked precious resources westward out of Constantinople for another two hundred years. Meanwhile, thanks to the underfunded defence of the Balkans, a predatory Avar khanate and a growing Slavic peasantry permanently severed the land route between Greek East and Latin West, to the benefit of neither.

Even worse than the outcome of Justinian’s wars, however, were the consequences of his religious policy. Since the conversion of the Emperor Constantine in 312, the affairs of the Christian Churches had been the affairs of the Roman state. Theological niceties mattered, because getting them wrong compromised the chance of salvation, and they were principally a matter for churchmen. But once the state committed itself to enforcing orthodoxy, it had to take sides in determining what orthodoxy was. You cannot agree to disagree when eternal life is at stake; opponents are heretics, beyond the pale of civil society, to be persecuted for their obduracy. In Justinian’s day, the central controversy was Christological: did the son have two different natures, divine and human, in one indivisible divine person, or was his nature single and indivisible? In 451, the council of Chalcedon had settled on the first definition, but only over the objections of Alexandria’s powerful episcopate and its many sympathisers (known generally as monophysites, from the Greek physis, ‘nature’). Successive emperors called council after council, but extremists on both sides sabotaged every new attempt at bridging the theological gap. Unlike the hair-splitting Greeks, Latin churchmen were consistently Chalcedonian; and Justinian, who came from the Latin-speaking Balkans, threw himself wholeheartedly behind Chalcedonian orthodoxy when he came to power. Theodora, more sympathetic to monophysitism, was a restraining influence, but when she predeceased him, any pretence of moderation disappeared.

Only a true connoisseur will trudge through the reign’s baroque episcopal politics or its contorted sectarian tractates, but the paradoxical outcome of imperial persecution was to strengthen the monophysite churchmen of Syria and Egypt. They developed a parallel church hierarchy of their own and kept so firm a hold on the loyalty of their provinces that Chalcedonian bishops could only be installed there by force of arms. After 636, when the followers of Muhammad’s new religion burst forth from Arabia, they found a Roman populace with little or no loyalty to the emperor in Constantinople. Syrians and Egyptians did not resist the Arab armies the way the Italians had resisted imperial forces in the Ostrogothic wars. Justinian’s religious policy had alienated the Christians of the east to the point at which a heavily taxed life under rulers of a different faith was preferable to the intolerable orthodoxy of an ostensible co-religionist. The Coptic, Ethiopian, Eritrean and Syriac Orthodox Churches remain monophysite to this day.

A dour fanatic, fragile and immovable by turns, Justinian is as unlikeable as he is mesmerising. With his preternatural stamina, he changed the course of Western history, if not for the better: his ambitions enfeebled the state he tried to restore and the future he bequeathed to Europe was one of poverty and schism. And yet his Code, Digest and Institutes – the Corpus Iuris Civilis – are the greatest legal monument ever created. The Decretum of Gratian, the Siete Partidas of Alfonso X, even the Code Napoléon, cannot compare. Justinian’s reign destroyed the Roman world. The Code, the Digest and the Institutes survive.

[*] Josephine Quinn wrote about Theodora in the LRB of 4 May 2017.

[†] The Novels of Justinian edited by Peter Sarris and translated by David Miller (Cambridge, 1212 pp., £185, November 2018, 978 1 107 60092 6).