بِسْمِ اللهِ الرَّحْمٰنِ الرَّحِيْم

The Corpus Juris Civilis of Justinian I: A Brief Summary of Some Civil and Criminal Laws in the Byzantine Empire

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“With the aid of God governing our Empire which was delivered to Us by His Celestial Majesty, We carry on war successfully, We adorn peace and maintain the Constitution of the State…”

– The Digest of Justinian, Preface[1]

The impact of Roman laws on Christianity are well known and well understood. As the Roman Empire became Christianized, many of the old law codes were adopted, while others were slightly changed or completely abolished. An example of an early code of law was the Codex Theodosianus, published in 438 CE. However, the so-called Corpus Juris Civilis enacted by the Byzantine Emperor Justinian I (r. 527-565 CE) is one of the most influential codes of law in western civilization. Justinian was a devout Christian and is still celebrated as one of the greatest rulers in Christian history. His Corpus Juris Civilis influenced Byzantine law for almost 1000 years and has also impacted other western legal systems, even in modern times.[2] But what kind of laws did he enact? What follows is a brief summary of some laws in regard to topics like marriage, slavery, the role of women, the role of religion in society, religious freedom (or lack thereof), criminal law, etc.

Introduction

            The Corpus Juris Civilis, also known collectively as the Code of Justinian, consists of four parts:

1. Codex Justinianus (not to be confused with the collective Code of Justinian)
2. Digesta (Digests of Justinian)
3. Institutiones (Institutes of Justinian)
4. Novellae Constitutiones (Novels of Justinian [New Laws])

Before we begin our examination of specific laws, it should be borne in mind that the influence of older Roman laws and the opinions of Roman jurists on the Code of Justinian cannot be understated. However, the influence of the Bible and Christianity also cannot be denied. One will also notice the major differences between this ancient code of law and the modern, secular laws that enjoy support from many confused Christians. Needless to say, Justinian would have been horrified to see Christians supporting such laws.

Numerous examples demonstrate the place of Christianity in the promulgation of the Corpus Juris Civilis. For example, the Institutiones begins with the following invocation:

“In the name of Our Lord, Jesus Christ.

The Emperor Caesar Flavius Justinian, conqueror of the Alamanni, the Goths, the Franks, the Germans, the Antes, the Alani, the Vandals, the Africans, pious, prosperous, renowned, victorious, and triumphant, ever august,

To the youth desirous of studying the law…”[3]

In addition, the Digesta begins with an invocation to God and the “divine” aid given to the empire in battle:

“With the aid of God governing Our Empire which was delivered to Us by His Celestial Majesty, We carry on war successfully, We adorn peace and maintain the Constitution of the State…”[4]

Thus, it is clear that Christianity and the Bible played a central role in the creation of the code. As D. James Kennedy and Jerry Newcombe state in their book What If the Bible Had Never Been Written:

“…the Bible undergirded Justinian’s Code of laws. Justinian’s Code became the foundation of Western law thereafter. Thus the Bible is at the root of our legal system.”[5]

Let us now begin our examination of this influential code of law.

Laws Concerning Marriage and Divorce

            The laws concerning marriage and divorce have been studied by scholars for centuries.[6] Here are some of the tenets:

1. In general, betrothals could occur as early as age seven.
2. Consent was presumed from both the father and his son or daughter unless either one objected.
3. A girl could only refuse her father’s choice for a groom if the prospective groom showed “bad behavior or character”, but a boy had no such limitations.
4. Incest was prohibited but marriages between cousins were allowed.
5. A Christian could not marry a Jew.

For marriage, the minimum age was twelve. It was common for girls in their mid-teens to marry men in their mid-twenties. However, it is stated in the Digesta (Book XXIII, Title 2) that a girl less than 12 years of age could still marry and live with her husband, though she would be a “lawful wife”. Quoting the opinion of the Roman statesman Pomponius, the Digesta states:

“Where a girl under twelve years of age is married, she will not be a lawful wife until she has reached that age while living with her husband.”[7]

It is interesting that no criminal penalty seems to have been specified for such a case. In fact, elsewhere, the Digesta (Book XXVII, Title 6) quotes the Roman jurist Ulpianus, who stated that:

“Julianus in the Twenty-first Book of the Digest discusses the point whether this action should be granted against a father who gave his daughter in marriage, while she was under twelve years of age. The weight of authority is that a father is to be excused who desired to introduce his daughter too soon into the family of her husband, for in doing so he is held to have acted rather from an excess of affection, than through malice.”[8]

It is also interesting as to the reason for setting the minimum age of twelve. The Institutiones (Book I, Title 12) states that:

“[p]upils of either sex are freed from guardianship when they reach the age of puberty”.[9]

However, since puberty could occur at different ages, it states that the “ancients” typically checked for signs in males of “physical development” (i.e., through a physical exam to see if the boy showed signs of puberty), though this was forbidden for females. This method of determining physical development for both boys and girls was deemed “unworthy of the purity of our times”. Thus, it seems that the ages of twelve for girls and fourteen by boys were determined to be the ages of puberty as a safe minimum.

Marriage was obviously a sacred institution, and thus, violating it through the acts of adultery or pre-marital sex, was considered a terrible deed. As such, the Code of Justinian actually permitted a father who caught his unmarried daughter having illicit sex to kill her and her lover, providing that some conditions applied (e.g., the act had to occur in the father’s house). A husband was given the same right, so long as the act occurred in his house. In the case of the latter, if he killed only the lover, he had to divorce his wife.[10]

As for legal divorce, the reasons for it were expanded beyond the limitations of the Bible. One reason was if the spouse plotted against the government (i.e., treason) or against the other spouse.[11]

Surprisingly, concubinage was also permitted, but only as a substitute to marriage if the latter was “illegal” or undesirable in a particular situation (e.g., inheritance). However, having a concubine and a wife at the same time was not allowed.[12] In addition, the Digesta (Book XXV, Title 7) states that:

“…anyone can keep a concubine of any age unless she is less than twelve years old.”[13]

Also, while prostitutes would be permanently barred from marrying but could become concubines. A man could also free his female slave and take her as a concubine, but again, only if he was not already married.[14]

Laws Regarding Women

            As noted above, consent from both males and females for marriage was required, but a female could only refuse her father’s choice for a husband if the prospective groom showed “bad behavior” (Digesta, Book XXIII, Title 1). Also, fathers and husbands could kill their daughters and wives, respectively, caught in the act of illicit sexual intercourse.

However, women were given some rights as well. For example, a woman could divorce her husband for multiple reasons, such as plotting against the government, attempting to kill her, accusing her of adultery without proof, etc.

Nevertheless, there were restrictions for women as well that were not applied for men. Per “ancient law”, the Digesta (Book L, Title 7), women were “excluded from all civil and public employments”. They could not be judges or magistrates and could not bring cases to court or be attorneys.[15]

Also, in Book XXVIII, Title 1, it is stated that women were prohibited from being witnesses to wills, though they could act as witnesses in courts.[16] The same prohibition is mentioned in the Institutiones, Book II, Title 10. Along with children under the age of puberty, slaves, lunatics, and the deaf and dumb, women could not be witnesses to a will.[17]

While husbands could bring charges of adultery with proof, wives could not do the same. Following the older Roman laws under the emperors Severus and Antoninus, the Codex Justinianus (Book IX, Title 9) states that women:

“…have no right to bring criminal accusations for adultery against their husbands, even though they may desire to complain of the violation of the marriage vow, for while the law grants this privilege to men it does not concede it to women.”[18]

Regarding women convicted of criminal behavior, the Novellae (Book CXXXIV, Chapter 9) prohibited confining them to prisons. The reason given seems to have been that their “chastity” could be violated. Thus, she may be “kept under guard” but not confined to a prison. For more “serious” crimes, a woman could be placed in a convent.[19]

In the case of adultery, an adulteress could be taken back by her husband within two years. If he did not take her back or died before taking her back, the woman would be confined to a monastery for the rest of her life and her property would be given to her children, parents, or even the monastery.[20]

Laws Regarding the Practice of Religion

            Given what we have seen so far, it should probably not come as a surprise that Christians in antiquity did not have much tolerance for other religions, especially those they saw as “heretical” offshoots of Christianity. The following laws are all from the Novellae, and were not simply adopted from earlier Roman laws:

1. Book XXXVII: Heretics, especially Arians,[21] were banned from the “rite of baptism” or to “discharge the duties of public office”. They were also banned from having a “house of worship” or a “place of prayer”.[22]
2. Book XLV: Jews, Samaritans, and Montanists,[23] could no longer seek exemption based on religion from service as “decurions” (a member of a city or town council).[24] According to the Jewish Virtual Library, the decurionate “entailed heavy financial burdens).[25] In addition, while they had to perform their duties as decurions, they simultaneously were prohibited to enjoy the privileges of that office, such as “freedom from corporeal punishment” and “exemption from removal to other provinces”. It is implied that Christian decurions would be entitled to these privileges only. Finally, it is stated that “the law rejects the evidence of heretics when offered against orthodox believers”. The section ends as follows (emphasis ours): “Our conclusion is just, it is consistent with the orthodox faith, and is based upon the hatred which We entertain for all heresies.”
3. Book CIX: The law banning heretics, such as Nestorians,[26] and anyone else not affiliated with the “Catholic and Apostolic Church of God” from “any share in public employments or offices” was again emphasized. In addition, a new law was enacted regarding female heretics. While women who followed the “orthodox” faith were entitled to dowries for marriage, this “privilege” was not forbidden for women who were “separated from the Holy Catholic Church”.[27]
4. Book CXXXI: Jews, Samaritans, Arians, and all other heretics could not acquire properties from churches or private individuals, regardless of the reason (including using the building for religious reasons). In such cases, the property would be seized by the “Holy Church”.[28]
5. Book CXXXII: Heretics were banned from holding assemblies, even within their own homes. If they were caught in the act, their buildings would be transferred to the “Holy Church” and other penalties could also be applied.[29]
6. Book CXLIV: New laws designed to encourage Samaritans to leave their “insane beliefs” were enacted. They could not become heirs in wills, receiving “legacies”, or “acquiring anything by way of donation”. At their deaths, their properties would belong to the “Imperial Treasury”. Samaritans were also banned from owning Christian slaves, and if one was purchased, the slave would have to be freed immediately. A Samaritan slave could earn his freedom if he embraced “the Christian faith”.[30]
7. Book CXLVI: Anyone who possessed “atheistic writings” or who denied the “Resurrection, the Last judgment, or the birth of God, or should say that angels are creatures,” would be “expelled from every part of the Empire…” Also, the law states that “the punishment of death” would remove these false doctrines from the “Jewish Nation”. In addition to exile, other “corporeal penalties” and the loss of property could also be applied.[31]

These and other laws clearly demonstrate that Christians were never tolerant of other religions. While they allowed the practice of other religions in theory, they always tried to make it difficult so as to encourage conversions to the “Holy Church”.

Criminal Laws and Punishments

            While many modern/liberal Christians, especially those living in the western hemisphere, tend to oppose harsh penalties for certain crimes (as can be seen by their silly arguments against Sharia law), Christians in antiquity did not oppose such penalties, and were in fact supportive of harshness against criminals, even to the point of imposing the torture and death.

Concerning “public prosecutions”, the Institutiones (Book III, Title XVIII) states that some crimes are capital crimes and others are not. It also states that death can be inflicted by “water and fire”. Other penalties could be “deportation” and “hard labour”.[32] The death penalty applied to such crimes as the following:

1. Treason: The death penalty applies to “any design against the Emperor or State”.
2. Adultery and homosexuality (emphasis ours): “The lex Julia, passed for the repression of adultery, punishes with death not only defilers of the marriage-bed, but also those who indulge in criminal intercourse with those of their own sex…” The punishment of death for homosexuality, described “the crime against nature”, was again emphasized in the Novellae (Book LXXVII and Book CXLI).[33] The lesser crime of “seducing virgins or widows of respectable character” without the use of “violence” was punished with “flogging” and “relegation”.[34] However, if the criminal was “of reputable condition”, the punishment was “confiscation of half his fortune”.
3. Assassinations, poisonings, magic, and selling “deadly drugs”: “The lex Cornelia on assassination pursues those persons, who commit this crime with the sword of vengeance, and also all who carry weapons for the purpose of homicide. […] This statute also inflicts punishment of death on poisoners, who kill men by their hateful arts of poison and magic, or who publicly sell deadly drugs.”
4. Parricide (killing a parent or relative) and infanticide: While the penalty for these crimes was death, it was not to be by “sword” or “fire”. Rather, the criminal would be “sewn up in a sack with a dog, a cock, a viper, and an ape”[35] and then thrown into the sea!
5. Forgery: The crime of forgery had different penalties depending on whether the criminal was a slave or a free person. If he was a slave, the penalty was death. If he was a free man, the penalty was “deportation”.
6. Blasphemy: Those who “utter blasphemous words” are to be killed. The Novellae (Book LXXVII, Chapter 1) states:

“…there are others who utter blasphemous words, and swear by the sacraments of God, and provoke Him to anger, We enjoin them to abstain from these and other impious speeches, and not swear by the head of God, or use other language of this kind. For if blasphemy when uttered against men is not left unpunished, there is much more reason that those who blaspheme God himself should be deserving of chastisement. […] We order the Most Glorious Prefect of this Royal City [Constantinople] to arrest any persons who persist in committing the aforesaid crimes, after the publication of Our warning; in order that this city and the State may not be injured by the contempt of such persons and their impious acts, and inflict upon them the punishment of death.”[36]

Finally, torture to extract confessions for crimes was allowed by the law.[37] The Digesta (Book XLVIII, Title 18) even seems to suggest that torturing female criminals is allowed, as long as they are not pregnant. It states, quoting an earlier Roman source, that:

“[t]he execution of the penalty imposed upon a pregnant woman should be deferred until she brings forth her child. I, indeed, am well aware of the rule that torture must not be inflicted upon her as long as she is pregnant.”

In fact, in the Codex Justinanus (Book IX, Title 41), torturing a woman who has “destroyed her husband by poison” is explicitly allowed.[38] Also, as a general rule, citing Ulpianus, the law was that torture could be applied “for the purpose of detecting crime”, and both slaves and free men could be tortured.[39]

Moreover, “whipping” and “scourging” were allowed in some cases even when the criminal belonged to an “ecclesiastical order”. The Novellae (Book CXXIII, Chapter XX) states that:

“[w]here more reverend priests or deacons are found to have given false testimony in pecuniary cases, it will be sufficient for them to be whipped, suspended from the discharge of their sacred duties for three years, and confined in monasteries. Where, however, they have given false testimony in criminal cases, We order that after having been expelled from the priesthood, they shall undergo the penalties prescribed by law. When clerks belonging to other ecclesiastical orders have been convicted of having given false testimony in any case whatever, either civil or criminal, they shall not only be deprived of their ecclesiastical offices, but shall also be scourged.”[40]

Moreover, the permissibility of torturing “vile thieves” was implied in Book VIII, Chapter X, which stated that:

“…it would be absurd for magistrates, who torture vile thieves and do not relax their efforts until the stolen property is returned, to themselves remain unpunished after having committed the most flagrant thefts…”[41]

Laws Concerning Slavery

            Slavery was allowed by the law. Christian societies, like all societies, did not consider slavery to be morally wrong. An examination of the New Testament also shows that neither Jesus nor his disciples ever preached against slavery.

It is understandable then that the Christians of the Byzantine Empire accepted slavery as a legitimate institution. In the Institutiones (Book I, Title III), slavery was defined as an “institution of the law of nations”, though it is “against nature subjecting one man to the dominion of another.”[42] It also explains how slaves can be acquired:

“The name ‘slave’ is derived from the practice of generals to order the preservation and sale of captives, instead of killing them; hence they are also called mancipia, because they are taken from the enemy by the strong hand. Slaves are either born so, their mothers being slaves themselves; or they become so, and this either by the law of nations, that is to say by capture in war, or by the civil law, as when a free man, over twenty years of age, collusively allows himself to be sold in order that he may share the purchase money.”

Also, in Book II, Title I, the Insitutiones talks about the “law of things”. Part 17 states:

“Things again which we capture from the enemy at once become ours by the law of nations, so that by this rule even free men become our slaves”.[43]

Thus, acquiring slaves through war was allowed by the law.

While “harshness” towards slaves, “without some reason recognised by the law”, was not permitted, slaves were nevertheless “in the power of masters”. Masters were “invested with power of life and death over slaves; and to whatever is acquired through a slave his own is entitled.”[44]

Slaves were also treated differently by the law. We previously noted that women were not allowed to be witnesses to wills. Slaves were also prohibited from this.[45] In addition, criminal penalties could be harsher when slaves were convicted of crimes compared to free men (e.g., for the crime of forgery, slaves could be put to death, but free men were to be deported).[46] Also, in Book IV, Title VIII of the Institutiones, the law of “noxal actions” by slaves was discussed. The law concerns a slave, or “noxa”, who commits a crime such as “theft, damage, robbery, or outrage”. In such a case, the master is liable for the slave’s action and has the option of either paying for the damages or surrendering the slave to the injured party.[47]

Miscellaneous Laws – Taxation

            We previously saw that the Byzantine Empire credited its success in war to “divine aid”. Through military conquests, the empire was able to subjugate its enemies and annex their territories. This meant that foreign territories could be acquired, and the taxation of such territories would be needed. This occurred in many places, including Arabia.

Indeed, in the Novellae (Book CII), the taxation of territories in Arabia was discussed, and the “Governor of Arabia” was directed to be “kind” to the taxpayers but “severe” against those who were “lax” in paying. In Chapter II, it states that (emphasis ours):

“…the Governor of Arabia will principally devote himself to the collection of taxes, and manifest a kind and paternal regard for those who are required to pay them; but he must display great energy and severity towards such as are shown lax in discharging their pecuniary obligations.”[48]

Of course, as is well known, Arabia would be the birthplace of Islam, and the Islamic armies would conquer a significant part of the Byzantine Empire less than 100 years after the death of Justinian.

Conclusion

            This brief examination of the Corpus Juris Civilis of Justinian I should raise eyebrows. Clearly, Christians have never been very liberal in matters of law, criminal punishments, war, slavery, religious freedom, etc. This should raise important questions: where do modern, liberal Christians get their ideas from? Why are their views so different from Christians in antiquity? Were those Christians not reading the same Bible as Christians in modern times? Were they “heretics” themselves? Or is it that modern Christians have conveniently “reformed” their religion to conform to modern ideas and sensibilities?

And Allah (Glorified and Exalted be He) knows best!

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[1] https://droitromain.univ-grenoble-alpes.fr/Anglica/Digeste_Pre1_Scott.gr.html

[2] https://www.worldhistory.org/Corpus_Juris_Civilis/

[3] https://www.gutenberg.org/files/5983/5983-h/5983-h.htm

[4] https://droitromain.univ-grenoble-alpes.fr/Anglica/Digeste_Pre1_Scott.gr.html

[5] D. James Kennedy and Jerry Newcombe, What If the Bible Had Never Been Written? (Nashville, Tennessee: Thomas Nelson, Inc., Publishers, 1998), p. 50.

[6] For a convenient summary of the major laws, see here: http://www.womenintheancientworld.com/justinian%27s%20law.htm

[7] https://droitromain.univ-grenoble-alpes.fr/Anglica/D23_Scott.htm#I

[8] https://droitromain.univ-grenoble-alpes.fr/Anglica/D27_Scott.htm#VI

[9] https://www.gutenberg.org/files/5983/5983-h/5983-h.htm#link2H_4_0023

[10] http://www.womenintheancientworld.com/justinian%27s%20law.htm

See the Digesta, Book 48, Title 5: https://droitromain.univ-grenoble-alpes.fr/Anglica/D48_Scott.htm#V

[11] http://www.womenintheancientworld.com/justinian%27s%20law.htm

[12] Ibid.

[13] https://droitromain.univ-grenoble-alpes.fr/Anglica/D25_Scott.htm#VII

[14] http://www.womenintheancientworld.com/justinian%27s%20law.htm

[15] https://droitromain.univ-grenoble-alpes.fr/Anglica/D50_Scott.htm#XVII

[16] https://droitromain.univ-grenoble-alpes.fr/Anglica/D28_Scott.htm#I

[17] https://droitromain.univ-grenoble-alpes.fr/Anglica/just2_Moyle.htm#X

[18] https://droitromain.univ-grenoble-alpes.fr/Anglica/CJ9_Scott.gr.htm#9

[19] https://droitromain.univ-grenoble-alpes.fr/Anglica/N134_Scott.htm

[20] Novellae, Book CXXXIV, Chapter 10; https://droitromain.univ-grenoble-alpes.fr/Anglica/N134_Scott.htm

[21] Arianism was the “view of the person of Christ according to which he is the highest of the created beings and is thus appropriately referred to as god, but not the God” (Millard J. Erickson, The Concise Dictionary of Christian Theology, Revised Edition [Wheaton, Illinois: Crossway Books, 2001], p. 16.).

[22] https://droitromain.univ-grenoble-alpes.fr/Anglica/N37_Scott.htm

[23] Montanism was the set of teachings of Montanus, including “especially the view that the Holy Spirit continues to speak through prophecy” (Erickson, op. cit., p. 128).

[24] https://droitromain.univ-grenoble-alpes.fr/Anglica/N45_Scott.htm

[25] https://www.jewishvirtuallibrary.org/justinian-i-x00b0

[26] Nestorianism was the heresy “dividing Christ into two persons, divine and human” (Erickson, op. cit., p. 135).

[27] https://droitromain.univ-grenoble-alpes.fr/Anglica/N109_Scott.htm

[28] https://droitromain.univ-grenoble-alpes.fr/Anglica/N131_Scott.htm

[29] https://droitromain.univ-grenoble-alpes.fr/Anglica/N132_Scott.htm

[30] https://droitromain.univ-grenoble-alpes.fr/Anglica/N144_Scott.htm

[31] https://droitromain.univ-grenoble-alpes.fr/Anglica/N146_Scott.htm

[32] https://www.gutenberg.org/files/5983/5983-h/5983-h.htm#link2H_4_0102

[33] https://droitromain.univ-grenoble-alpes.fr/Anglica/N77_Scott.htm; https://droitromain.univ-grenoble-alpes.fr/Anglica/N141_Scott.htm

[34] “Relegation” is defined as “banishment for a time only” (https://dictionary.thelaw.com/relegation/). In other words, it meant temporary exile.

[35] It is not clear how exactly all of these creatures would fit inside the sack. Also, the fact that sewing up animals with the criminal and then having them all drown did not seem to be a miscarriage of justice to the Byzantines. Why would one kill so many animals just to kill a murderer?

[36] https://droitromain.univ-grenoble-alpes.fr/Anglica/N77_Scott.htm

Thus, “freedom of speech” or “expression” were not recognized as “human rights” by Christians, especially when it concerned religious sensibilities.

[37] See the Digesta, Book XLVIII, Title 18: https://droitromain.univ-grenoble-alpes.fr/Anglica/D48_Scott.htm#XVIII.

[38] https://droitromain.univ-grenoble-alpes.fr/Anglica/CJ9_Scott.gr.htm#41

[39] https://droitromain.univ-grenoble-alpes.fr/Anglica/D48_Scott.htm#XVIII

[40] https://droitromain.univ-grenoble-alpes.fr/Anglica/N123_Scott.htm

[41] https://droitromain.univ-grenoble-alpes.fr/Anglica/N8_Scott.htm

[42] https://www.gutenberg.org/files/5983/5983-h/5983-h.htm#link2H_4_0004

[43] https://www.gutenberg.org/files/5983/5983-h/5983-h.htm#link2H_4_0029

[44] Institutiones, Book I, Title VIII: https://www.gutenberg.org/files/5983/5983-h/5983-h.htm#link2H_4_0009

[45] Institutiones, Book II, Title X: https://www.gutenberg.org/files/5983/5983-h/5983-h.htm#link2H_4_0038

[46] Novellae, Book III, Title XVIII: https://www.gutenberg.org/files/5983/5983-h/5983-h.htm#link2H_4_0102

[47] https://www.gutenberg.org/files/5983/5983-h/5983-h.htm#link2H_4_0092

[48] https://droitromain.univ-grenoble-alpes.fr/Anglica/N102_Scott.htm