Reception and vulgarization of Roman law by barbaric legislation on the example of the Edict of Theodoric (VI century)

Makutchev Aleksandr Valer'evich PhD in History Docent, legal disciplines department, Tula State Lev Tolstoy Pedagogical University 301205, Russia, Tul'skaya oblast', g. Sovetsk, ul. Pervomaiskaya, 39, kv. 2 mackutcheve@mail.ru Other publications by this author

The Romano-German legal system unites all the countries of continental Europe, including Russia. It is based on legal institutions, sources of law and the conceptual apparatus of Roman law, and not in its pure form, but transformed in the process of borrowing, reception of the norms of Roman law by European peoples. It was reception that ensured Roman law's survival, especially after the fall of Roman statehood. The high level of development of legal norms and the ability to adapt to local legal customs became a guarantee that Roman law was accepted even by those peoples who were historically enemies of Rome.

The reception of law is called the adoption by the state of the norms of national law, textually repeating the norms of another system of law, as well as specifying and adapting them to the peculiarities of the social system and the legal system of the recipient country ^{[6, p. 16]}. Thus, Roman law received some legal institutions from Greek and Phoenician law ^{[7, p. 1588]}. In the IV–VI centuries, Roman law became the object of reception by the Germanic (barbarian) peoples who settled on lands controlled by the Romans and subsequently gained independence. In the barbarian kingdoms of Gaul and Spain, formed after the fall of the Roman Empire, collections of Roman law were compiled, in particular, Lex Romana Visigothorum ("Breviary of Alaric") and Lex Romana Burgundionum ("Burgundian Truth"). At the same time, the norms of Roman law, as a rule, were adapted to local customs and simplified in the process of vulgarization – "barbarization" of Roman law.

In historiography, aspects of the reception of Roman law by barbarians are touched upon in the works of M. Bretone ^[12], E. Levy ^[26], C. S. Lobinjie ^[29], R. Fenstra ^[19], P. Stein ^[31], M. V. Bayteeva ^[2], L. A. Zaitseva ^[3], S. E. Metelev ^[5], V. A. Tomsinova ^[8], etc. Specifically, M. Kazer ^[23], E. Levy ^[25], O. V. Aurov ^[1] and others study the topic of vulgarization of Roman law.

It is possible to study the mechanism of reception of Roman law by barbaric legislation using the example of the Edict of Theodoric (Edictum Theoderici, hereinafter referred to as the Edict), a collection of legal norms compiled around 500 by order of the Ostrogothic ruler Theodoric the Great for the Latin–speaking and German population of Italy. This document was included in scientific circulation in the XVI century. Since then, H.-Y. Becker ^[11], J. Wismara ^[32], S. Lafferty ^[24], O. Licandro ^[28] and others have been studying the sources of the Edict and specifically reflecting the reception of Roman law in it. In Russian historiography, this document has been little studied, especially in the context of identifying its sources.

The relevance and scientific novelty of the study of the reception of the norms of Roman law in the Edict of Theodoric is emphasized by the fact that, on the one hand, it is a monument of barbaric law, since it was compiled on the initiative of the Gothic ruler for use by barbarians, on the other hand, it mostly consists of norms derived from Roman law. The edict reflected the specifics of the development of Roman law in conditions when Western Roman statehood fell under the onslaught of barbarians: in 489 the Ostrogoths led by Theodoric invaded Italy, and 4 years later Theodoric proclaimed himself ruler of Italy on behalf of the Emperor of the Eastern Roman Empire Zeno. The population of Theodoric's possessions was as Roman as it was Gothic, and the ruler, according to Anonymous Valesius, before the Senate and the people of Rome pledged to respect the right of the Roman emperors ^{[10, 110]}.

Under these conditions, the reception of Roman law was inevitable: as a more perfect and developed (in comparison with the barbaric legislation) legal system, Roman law had to regulate relations both between the Goths and the Romans, and within each of the ethnic groups. In the prologue to the Edict on behalf of King Theodoric, it is explicitly stated that the immediate purpose of drafting the document was to achieve peace among the population and the suppression of offenses ("... so that both barbarians and Romans, while maintaining due respect for public laws, could clearly know what they are obliged to observe with respect to the points specified in these articles" ^{[18, s. 52]})". The remaining unknown drafters of the Edict were obviously Roman lawyers, so in order to achieve this goal, they supplemented Roman law, which at that time was randomly preserved in a number of documents, taking into account the socio-economic and political conditions of their time. In some cases, the compilers worked directly with the text of the sources, quoting them in the Edict, in others they stated in their own words a generally accepted legal principle or concept, for which a specific source was not required.

The novelty of the research is based on the application of comparative legal and historical-legal methods, which allowed to identify the main sources of the Theodoric Edict, compare the provisions of the original norms with their interpretation in the text of the document, as well as to identify the reasons for borrowing or rethinking specific norms.

The Edict of Theodoric consists of 154 articles devoted mainly to aspects of private law: unlike public law, it did not undergo significant changes after the capture of the country by the Goths. The edict does not contain norms on public service, the organization of the army, taxation, religion. Instead, the drafters of the Edict adapted earlier Roman sources of private law in accordance with the conditions of Gothic-Roman coexistence in VI century Italy, which allows us to imagine which elements of public relations were most relevant. Thus, the text of the document focuses on the regulation of the flight of slaves, theft of livestock, violation of borders and seizure of land – problems that were most acute for the agricultural Italian society of that time.

By examining the content of the Edict, it is possible to identify its sources. They are not directly named in the text – in the epilogue to the Edict, the drafters indicated only that they derived the provisions of the document from novellae leges (written laws issued after the Code of Theodosius) and vetus ius (legal customs) ^{[18, s. 168]}. Nevertheless, the analysis of the articles of the Edict suggests that the sources of the document were primarily the works of Roman lawyers of the first half of the III century. (Paul, Ulpian and Papinian), the Codes of Gregorian and Hermogenian and the Code of Theodosius ^{[24, p. 12]}.

Julius Paulus, Domitius Ulpian and Aemilius Papinian are among the most famous Roman jurists, their works were highly appreciated by their contemporaries and became one of the sources of the Theodosius Codex and the Digest. No less than 37 provisions of the Edict were borrowed from the works of Paul, in particular, 35 – from the "Maxims" (a compilation of Paul's works compiled at the beginning of the IV century and became a popular guide for students and lawyers in a later period) ^{[27, s. 212]}. Six more articles of the Edict (39, 57, 58, 74, 82, 103) The provisions of the texts of Ulpian "De officio proconsulis" ("On the duties of the governor of the province") and Papinian "De adulteriis" ("On adultery") that have come down to us in Digests are similar. Eight articles of the Edict (86, 15, 87, 28, 138, 109, 81, 136) They correspond to the provisions that have come down to us in the Codex Justinian and Digests, collected at the end of the third century in the codices Gregorian and Hermogenian. The Gregorian Codex united the imperial constitutions in the period from Hadrian to Diocletian, and the Hermogenian Codex contained legislation from the reign of Diocletian and was an anthology of excerpts from the writings of lawyers. Finally, a total of 49 provisions, about a third of the entire content of the Edict, were borrowed in whole or in part from the Code of Theodosius – the first full-fledged collection of laws of the Roman state, combining acts from the time of Constantine the Great to 438.

We investigate the mechanism of reception of the norms of law from these sources, applied by the drafters of the Edict of Theodoric.

In some cases (art. 40, 62, 91, 94, 95, 98, 100, 102, 115, 117, 130, 141 The drafters left the original text of the original source unchanged or with minimal changes, obviously deciding that the borrowed norms are well suited to the conditions in which the Edict was to be applied. Thus, Article 40 ^{[18, S. 156]} borrowed almost verbatim from paragraph 1.12.3 of the "Maxims" ^{[9, p. 17]} the provision that anyone who unknowingly filed a false statement to the court is not subject to punishment for perjury. Similarly, without significant changes to the text of the Edict (Article 94 ^{[18, s. 162]}), paragraph 5.1.1 of the "Maxim" ^{[9, p. 109]} was transferred, which prohibited parents from selling and pledging children, except in cases of extreme necessity or lack of food. This provision indicates that the practice of selling children, prohibited even during the Republic, was later revived with established restrictions and continued at least until the beginning of the VI century ^{[24, p. 39]}.

In most of the articles of the Edict, the drafters adapted the norms of the sources of classical Roman law, making changes to them of varying degrees of importance. Such a reception mechanism took place in three directions: the expansion of the legal norm in comparison with the original source, simplification and qualitative rethinking of the original norm.

1. Extension of the original norm.

Article 107 of the Edict expands the norm from paragraph 5.22.1 of the "Maxims": "Anyone who incites mutiny among the people or in the army must be burned alive" ^{[18, s. 164]}. The text of the Maxims provided for punishment for such an act in accordance with the status of the guilty (crucifixion, mauling by wild animals or exile to the island) ^{[9, p. 137]}. The Edict also established the death penalty without reservations, moreover, in the form of burning, which was traditionally used for the most odious crimes – for self-mutilation for the sake of exemption from military service or for the informers mentioned in the Edict (Article 35 ^{[18, s. 155]}), the intercourse of a slave with a widow (Article 61 ^{[18, s. 158]}), arson (article 97 ^{[18, s. 163]}). Such a demonstrative tightening of punishment was obviously aimed at maintaining the dominance of the Ostrogothic elite in the territories inhabited by the Romans. Similarly, it is possible to explain the extension of this norm to the army, which was not provided for by the "Maxims": it was required to stop mutinies among soldiers dissatisfied with the conditions of service (this was mentioned by Cassiodorus in paragraphs 3.38, 4.13, 12.5 "Varii") ^{[14, s. 21, 34]}.

Article 74 of the Edict echoes paragraph 5.1.19 of the Digest, which was presumably compiled on the basis of Ulpian's comments. The Digests briefly state that "whoever summons the other party to court for no reason will be obliged to pay the costs and court costs of the other party" ^{[16, s. 101]}. The edict also contains details of the settlement of such situations, which were characteristic of the situation in Italy, in particular, the norm that the amount of costs incurred by the defendant was determined by a judge or "good people" (boni homines) who were aware of the essence of the case ^{[18, s. 160]}.

Article 10 of the Edict expands and strengthens the responsibility for the intentional illegal seizure of someone else's real estate (invasio). The original norm contained in clause 4.22.3 of the Feodosian Code provided: a person who, without waiting for a court decision, seized the disputed immovable property by force, is obliged to return it to the owner before the decision on the case is made ^{[15, s. 82]}.The edict specified: the invader was not only obliged to return the property, but also lost his claim and was obliged to pay the owner of the disputed property twice the amount of his income. The purpose of such an expansion of the norm, obviously, was to emphasize the authority of the court and to combat the extrajudicial redistribution of property by large landowners, which could cause social tension.

From the Code of Theodosius, the drafters of the Edict also borrowed the norms on the prohibition of pagan practices. In 380, Emperor Theodosius I issued a decree outlawing paganism, but it continued to flourish in the rural areas of the empire among the conservative peasantry. The struggle against paganism was continued by subsequent emperors and barbarian kings of Italy ^{[21, p. 149]}. As part of this struggle, Article 108 of the Edict significantly expanded the norms of paragraphs 16.10.6 ^{[15, s. 120]} and 16.10.23 ^{[15, s. 127]} of the Code of Theodosius, which provided for the death penalty for participation in sacrifices and worship of idols. The drafters of the Edict singled out the participants of pagan practices, mentioning soothsayers (arioli), necromancers (umbrarii) and magicians (malefici), differentiated punishments depending on the class status of the participants: "respectable people" (honestiores) were subject to deprivation of property and exile, "inferior" (humiliores) – the death penalty ^{[18, s. 164]}.

Article 41 of the Edict ^{[18, s. 156]}, which establishes liability in the form of the death penalty for forgery (falsum), is similar in form to paragraph 4.7.2 of the "Maxims" ^{[9, p. 93]}, but expands it in two important aspects. Firstly, unlike the original, which was applied exclusively to the forgery of a will, the Edict concerned all types of forgery of documents. Secondly, if the "Maxims" provided for a link to the island as a punishment for falsum, the Edict fixes that the criminal will be punished to the fullest extent – the death penalty (capitali poena). This can be attributed to the growing evidentiary value of written sources both in management and in transactions among the population, which has made document forgery a serious crime.

Article 56 of the Edict provided for punishment for cattle theft ^{[18, s. 158]}. The primary source in this case is the norm 5.18.2. "Maxims", but the drafters of the Edict have significantly expanded it. Firstly, the "Maxims" meant punishment only for the theft of one horse or two mares, two bulls, ten sheep or goats, five pigs; depending on the social status, the culprit was entitled to either whipping, or exile to the mines, or the death penalty ^{[9, p. 147]}. The edict did not make any difference in the size of the stolen and in the types of punishments – for any theft of cattle, the death penalty was imposed. Secondly, unlike the "Maxims", the drafters of the Edict also provided for the need for the criminal to pay compensation to the owner of the cattle in the form of four times the value of the stolen. Such a severe punishment can obviously be explained by the prevalence of cattle thefts in Italy in the VI century, caused by a decline in the standard of living of the population. Thus, Cassiodorus in the "Variations" (p. 4.49) recognized this fact and called for punishing cattle theft as a state crime, "with due severity" ^{[14, p. 81]}.

2. Simplification of the original norm (vulgarization).

At the end of the XIX century, German legal historians Georg Brunner ^{[13, s. 113, 119]} and Ludwig Mittais ^{[30, s. 28]} proposed the concept of "vulgar Roman law" as a designation of simplified Roman law that regulated everyday life in the lands occupied by barbarians of the former Western Roman Empire. It was an evolution or even a degeneration of classical Roman civil law, which still extended to the inhabitants of the provinces, but was influenced by barbaric customs and simplified to be understandable to the assimilated population.

Critics of vulgarization, in particular, Ernst Levy ^[26] and Catherine Drew ^[17], are convinced that the tendency to simplification has always been inherent in Roman law, but was blocked by the emperors, especially Diocletian (284-305). In the following centuries, Roman law was increasingly adapted to the barbarian cultures ^{[26, s. 7]}, in the conditions of a shortage of lawyers in the field, it sank to an almost primitive and unscientific level. However, according to Tony Honore ^{[22, p. 151]} and Sean Lafferty ^{[24, p. 40]}, such ideas are controversial: the number of lawyers in the empire did not decrease until the Visigothic sack of Rome in 410, and their level of training remained high. In particular, we can make sure that the drafters of the Edict had the necessary knowledge of Roman law and expertly adapted some norms so that they better fit the conditions of the time.

Thus, Article 15 of the Edict established an exemption from punishment for actions in self-defense: "Let the actions of the one who pushes the attacker away with a weapon in his hands not be considered murder, since the one who defends himself does not commit a crime in any way" ^{[18, s. 153]}. The original norm was contained in the decree of Emperor Gordian of 243 and entered into the Code of Justinian (clause 9.16.2) in the following wording: "Anyone who, being in danger of his life, kills an attacker or anyone else, should not be afraid of prosecution in this regard" ^{[4, p. 131]}. The language of the Edict is less specific, the norm about the murder of other persons (presumably unintentional), except for the attacker, in the process of self-defense is not taken from the original norm. On the one hand, there is a narrowing and some simplification of the borrowed norm, on the other hand, there was no distortion of its meaning.

Similarly, Article 39 of the Edict simplified the norm of Papinian's text included in the Digests: "Anyone who offers a house or dwelling for committing adultery, or anyone who persuades his wife to consent to adultery, must be punished with death" ^{[18, S. 156]}. In the original norm, responsibility was also provided for the provision of housing for homosexual contacts and for the involvement of the husband of his wife in sexual relations with other men for money (lenocinius) ^{[16, s. 66]}. The narrowing of the norm in this case was probably explained by the lower relevance of these aspects in Ostrogothic Italy.

Article 146 of the Edict contains a more significant simplification reflecting the adaptation by Theodoric's lawyers of the norms of Roman law to the changed realities of public life: "Both the tenant (colonus) and the owner can file a lawsuit against the property stolen from them, since this issue concerns each of them" (De frugibus ab aliquo ex fundo cuiuslibet sublatis, tam colonus, quam dominus, quia utriusque interest, agere potest) ^{[18, s. 167]}. In Paul's "Maxims" (p. 2.31.30), this norm sounds similar ("If the crop was stolen from the land, the tenant or owner can initiate a theft case for the reason that it is in the interests of both of them to take possession of the property" – Frugibus ex fundo subreptis tam colonus quam dominus furti agere possunt, quia utriusque interest rem persequi. ^{[9, p. 52]}), however, it contains a reference to a specific legal procedure – actio furti, the first stage of the proceedings in cases of theft, in which the decision on the case was made by a layman under the guidance of a magistrate official. This order was eliminated during the principate or even earlier, it was replaced by the cognitio order, in which the judge was a state-appointed professional. As we can see, the drafters of the Edict borrowed almost verbatim from the previous legislation the basis of the norm, discarding the reference to the no longer relevant procedure actio furti ^{[26, s. 202]}. However, in the original norm, the presence of this procedure was fundamental – it gave the plaintiff the right to demand double or quadruple damages from the defendant. Without this procedure, the norm has lost most of its content.

3. Qualitative change of the original norm, its adaptation. This direction of reception is most often found in the Edict.

The drafters of the Edict significantly changed the list of possible criminal penalties, eliminating all obsolete types. Thus, Article 42 ^{[18, s. 156]} provides for exile for perjury instead of a reference to the island, which is mentioned in the original source, paragraph 5.15.5 of the "Maxims" ^{[9, p. 131]}. By the VI century, exile to the island was rarely used, Cassiodorus mentions as grounds for this measure such acts as the deliberate sale or purchase of a free-born person, participation in sacrifices ^{[14, s. 40]}. Exile by the time the Edict was drawn up, as a rule, was reduced to exile to a remote region, not necessarily an island, as, for example, Boethius was accused of treason ^{[10, p. 89]}.

Also, the Edict refused such types of punishments as crucifixion and feeding to wild animals in the arena. The crucifixion was abolished by Constantine the Great ^{[20, p. 139]}, venations (fights in the arena with wild animals) were also not carried out by the VI century. Therefore, for example, Article 107 of the Edict prescribed burning alive for sedition ^{[18, s. 164]} instead of the "Maxims" provided for in paragraph 5.22.1 of the crucifixion, feeding wild animals or exile to the island ^{[9, p. 137]}. The replacement of punishments did not mean a softening of the legislation, there was a simple replacement of one method of capital punishment by another. Thus, in Article 104, the death penalty for the destruction of boundary markers for a slave replaced the exile to the mines, which in fact amounted to the death penalty and was relied on for such an act in paragraph 5.22.2 of the "Maxims" ^{[9, p. 137]}.

The edict does not mention such a type of punishment as infamy, which in Roman law was traditionally assigned for committing shameful acts (bigamy, prostitution, violation of the duties of a guardian). Dishonor deprived a person of Roman citizenship, which included the right to inherit and conclude transactions. For example, Article 9.10.4 of the Theodosian Code punished with dishonor a person who forced or incited his slave to commit a crime ^{[15, s. 187]}. However, Article 77 of the Edict, drawn up on the basis of this norm, established responsibility for such a person "as for violence", namely the death penalty ^{[18, s. 161]}. Probably, the drafters of the Edict considered dishonor an insufficient deterrent for committing crimes.

It is interesting that the drafters of the Edict reinterpret the norm 10.10.2 of the Code of Theodosius on the punishment of informers-delatores (delatores). Delatoria, on the one hand, were one of the most important sources of information about crimes committed, including state crimes, on the other hand, they enjoyed a bad reputation due to numerous false accusations, especially against rich people, from whose confiscated property they were entitled to a share. Delatorius, whose accusations were not confirmed in court, was subject to punishment. If the Code of Theodosius treats informers as contemptuously as possible ("the evil caused by informers should be strangled in the throat itself, and the tongue of envy should be cut off from its roots and torn out"), denying them even the opportunity to speak at court ^{[15, s. 169]}, then the Edict obviously recognizes some benefit from their services. Thus, Article 35 is devoid of a contemptuous tone towards the cases and even allows for their hearing in court, imposing the death penalty only in case of non-confirmation of the charges ^{[18, s. 155-156]}.

Article 134 of the Edict on Creditors and Debtors correlates with paragraph 2.33.2 of the Code of Feodosius. But if the Code of Feodosius protected the interests of the debtor in relations with the creditor (in particular, clause 2.33.2 established for the creditor who extorts funds from the debtor in excess of the maximum allowed loan rate of 1%, the obligation to return this surplus and pay a fine fourfold of it ^{[15, s. 70]}), then the Edict is more loyal Article 134 punishes a creditor who demands from a debtor more than the maximum loan rate of 1%, only by depriving him of the right to collect the principal debt, without additional penalties in the form of a fine ^{[18, s. 166]}. This mitigation of punishment can probably be explained by the attempts of the royal authorities to encourage commercial activity and entrepreneurship, including in the field of usury, or by the lobbying of influential creditors at court.

Thus, the Edict of Theodoric testifies that Roman law continued to be in force in Italy after the fall of the empire, it became a legal core that was designed to support the peaceful coexistence of Goths and Romans. The text of the Edict reflected the reception of Roman law in order to make the document relevant and understandable to the population. To do this, the drafters of the Edict adapted and updated earlier sources, for example, the Codex Theodosius, the Codes of Gregorian and Hermogenian, as well as norms borrowed from the works of famous Roman lawyers – Paul, Ulpian, Papinian.

Comparison of the text of the Edict with its primary sources makes it possible to identify the mechanism of reception carried out in the directions of expansion of the original norm, its qualitative change (reinterpretation) or simplification. The expansion and reinterpretation of the original norms (for example, those related to responsibility for cattle theft, punishments for informers, elimination of irrelevant types of punishments, etc.) reflected the changes that took place in the society of Italy in the IV–VI centuries. Simplification of some norms of Roman law (vulgarization) is also characteristic of the Edict. There are some noticeable differences in the wording of legal norms, which reflected the desire of the drafters to simplify the law and make it more understandable. This simplification resulted in a weakening of the legal language, but in general, vulgarization was not as significant and fatal as critics of vulgar Roman law note. The level of legal technique remained high, and vulgarization did not distort the meaning of the original norms.

In this context, the Edict of Theodoric can be considered the first monument of European law, embodying not the traditional subtleties of strict classical Roman law, but the utilitarian needs of the time, rejecting the standards of classical jurisprudence in terms of the accuracy of legal language. Thus, without losing its foundations, Roman law adapted to the realities of the development of societies of late antiquity, which allowed it to become the basis for the subsequent legislation of continental Europe.