Barrett, Legislation and Codification after Rome

Legislation and Codification after Rome

Graham Barrett (St John’s College, University of Oxford)

Legal codification is the most imposing of the legacies of the Roman Empire, and its successor states in the early medieval world all attempted to position themselves as its heir. Yet the nature of the resulting post-Imperial law codes remains an open question: symbolic statements of royal authority, or else pragmatic guides to contemporary legal practice. The alternatives, as classically proposed in the historiography, are stark and extreme. The law codes of northern Europe are disorganised and incomplete, not usable and so not used, but readable instead as statements of royal legislative authority, which in practice operated via the spoken word. The law codes of the Mediterranean world, in contrast, are systematic and comprehensive, usable and so used; they are readable as continuing the Roman tradition, and symptomatic of legal systems functioning by means of the written word. This approach to early medieval law is mistaken: it should not only be treated collectively and equated with codes. Law in the post-Imperial world seems so inferior to what went before because of the vast monolith of Roman codification, the two great codes issued by Theodosius and Justinian, but both of these texts are really containers for a more iterative reality of constant responsive legislation. This is the model of Roman law, legislation before codification, and insofar as the early medieval successor states sought to emulate it, the question becomes whether they did so in all respects. In other words, what we have now may be a set of law codes, but each is a set of individual laws. The key to understanding how they were put together, why they treat and omit what they do, and what they represent, symbolically and pragmatically, lies in the distinction between legislation and codification, the lifecycle of laws under Rome and after.