The Codex Theodosianus was a compilation of the laws of the Roman Empire under the Christian emperors since 312. A commission was established by Theodosius II in 429[1] and the compilation was published in the eastern half of the Roman Empire in 438.[2] One year later, it was also introduced in the West by the emperor Valentinian III.
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On March 26, 429, Emperor Theodosius II announced to the senate of Constantinople his intentions to form a committee to codify all of the laws from the reign of Constantine up to Theodosius II and Valentinian III. Twenty-two scholars, working in two teams, worked from 429-438 CE to assemble what was to become the Theodosian Code. [3] Their product was a collection of 16 books containing more than 2,500 constitutions issued between 313 and 437 CE. John F. Matthews illustrates the importance of Theodosius' Code when he said, "the Theodosian Code was the first occasion since the Twelve Tables on which a Roman government had attempted by public authority to collect and publish its leges."[4] The code covers political, socioeconomic, cultural and religious subjects of the fourth and fifth century in the Roman Empire. [5]
A collection of imperial enactments called the Codex Gregorianus had been written in 291 CE and the Codex Hermogenianus, a limited collection of rescripts from 293-294 CE, was published. Theodosius desired to create a code that would provide much greater insight into law during the later Empire (321-429 CE). According to Peter Stein, “Theodosius was perturbed at the low state of legal skill in his empire of the East.” He apparently started a school of law at Constantinople. In 429 he assigned a commission to collect all imperial constitutions since the time of Constantine. [6] The laws in the code span from 312-438, so by 438 the “volume of imperial law had become unmanageable” [7] During the process of gathering the vast amount of material, often editors would have multiple copies of the same law. In addition to this, the source material the editors were drawing upon changed over time. Clifford Ando notes that according to Matthews, the editors “displayed a reliance on western provincial sources through the late fourth century and on central, eastern archives thereafter.” [8]
After six years, in 435, an initial version was finished, but it was not published, instead it was improved upon and expanded and finally finished in 438 and taken to the Senate in Rome and Constantinople. Matthews believes that the two attempts are not a result of a failed first attempt, but instead, writes that the second attempt shows “reiteration and refinement of the original goals at a new stage in the editorial process.”[9] However, others have put forth alternate theories to explain the lengthy editorial process and two different commissions. Boudewijn Sirks believes that “the code was compiled from imperial copy books found at Constantinople, Rome, or Ravenna, supplemented by material at a few private collections, and that the delays were caused by such problems as verifying the accuracy of the text and improving the legal coherence of the work.” [10]
The Code was written in Latin and incorporated the terms Constantinopolitana and Roma for Constantine's capital and for the original capital in Italy.[11] It was also concerned with the imposition of orthodoxy - the Arian controversy was ongoing - within the Christian religion and contains 65 decrees directed at heretics.[12]
Originally, Theodosius had attempted to commission leges generales beginning with Constantine to be used as a supplement for the Codex Gregorianus and the Codex Hermogenianus. He intended to supplement the legal codes with the opinions and writings of ancient Roman Jurists, much like the Digest found later in Justinian's Code. But the task proved to be too great, and in 435 it was decided to concentrate solely on the laws from Constantine to the time of writing. This decision defined the greatest difference between the Theodosian Code and Justinian's later Corpus Juris Civilis.
John F. Matthews, author of Laying Down the Law noted, “The Theodosian Code does, however, differ from the work of Justinian (except the Novellae), in that it was largely based not on existing juistic writings and collections of texts, but on primary sources that had never before been brought together.” [13] Justinian’s Code, published about 100 years later ca. 530 CE, was comprised of both ius, “law as an interpretive discipline”, and leges, “the primary legislation upon which the interpretation was based.” [14] While the first part, or Codex, of Justinian’s Civilus Juris Corpus contained 12 books of imperial laws, or Constitutions, the second and third parts, the Digest and the Institutions, contained the ius of Classical Roman jurists and the Institutes of Gaius. While the Theodosian Code may seem to lack a personal facet due to the absence of judicial reviews, upon further review the legal code can give us insight into Theodosius' motives behind the codification. Lenski notes that according to Matthews, the “imperial constitutions represented not only prescriptive legal formulas but also descriptive pronouncements of an emperor’s moral and ideological principles.” [15] Apart from clearing up confusion and creating a single, simplified and supercedent code, Theodosius II was also attempting to solidify Christianity as the official religion of the Empire, begun under Constantine's rule. In City of God, St. Augustine praised Theodosius the Great, Theodosius II's father who shared his faith and devotion to its establishment, as "a Christian ruler whose piety was expressed by the laws he had issued in favor of the Catholic Church." [16]
Books 1-5 lack the level of manuscript support given to books 6-16. The first five books of the surviving Codex draw largely from two other manuscripts. The Turin manuscript, also known as "T," consists of 43, largely discontinuous folios. [17] The second manuscript is a that of the Breviarium, and a good part of the Brevarium that is included in book 1 actually contains the original text of the respective part of the original codex.[18] The latter part of the Codex, books 6-16, drew largely from two texts as well. Books 6-8 of the Codex were preserved in the text of a document known as Parsinus 9643. [19] The document circulated early medieval French libraries, as well as the other formative document for the latter part of the code, a document held in the Vatican (Vat. Reg. 886). [20] Scholars refer to it as "V". Scholars consider this section to have been transmitted completely. [21]
Alexander, Michael C. (Spring 1995). "Review: The Theodosian Code by Jill Harries; Ian Wood". 'Law and History Review' (University of Illinois Press) 13 (1): 190-192.
Buckland, W. W. (1993). A Textbook of Roman Law from Augustus to Justinian. Cambridge: University Press. pp. 37-38.
Lenski, Noel (Feb.-Mar., 2003). "Review: Laying Down the Law. A Study of the Theodosian Code by John Matthews". 'The Classical Journal' (The Classical Association of the Middle West and South, Inc.) 98 (3): 337-340.
Martin, Susan D. (Oct., 1995). "Review: The Theodosian Code by Jill Harries; Ian Wood". The American Journal of Legal History (Temple University) 39 (4): 510-511.
Matthew, John F. (2000). Laying Down the Law: A Study of the Theodosian Code. New York, NY: Yale University.
Tellegen-Couperus, Olga (1993). A Short History of Roman Law. New York, NY: Routledge. pp. 138-141.
