Li Qiang
IHAC, NENU, Changchun
What is Byzantine law? There is no standard definition. After all, the term “Byzantine” is a 16th-century neologism implying the later (or Eastern) Roman Empire with its capital at Constantinople,1The German historian and humanist Hieronymus Wolf (13 August 1516 – 8 October 1580) is believed to be the first to use the adjective “Byzantine;” on his career, see Beck 1984.hence, Byzantine law is a modern designation for the laws promulgated in the later Roman Empire, namely the Byzantine Empire. There is no question about the end of the period, but there is a great deal of confusion about its starting point. Contemporary historians of Byzantine law tend to set the starting point of Byzantine law at AD 534, by which time the Justinian codification had been completed and the first Greek novels were published.2For the choice of AD 534 as the starting-point of Byzantine law, Bernard H. Stolte’s explanation is as follows (Stolte 2015, 356): “It is from this point that a development began which was unique to the eastern Mediterranean world and never really became part of a common legal tradition shared with the west. Since this development was separate from the western tradition that we denote as Roman, it makes sense to give it a different name: let us by all means stick to historiographical convention and call it ‘Byzantine’.”This shows that scholars tend to distinguish studies on Byzantine law from those on Roman law.3Elsewhere, Stolte also discussed the relationship between Roman law and Byzantine law, and did not deny that Byzantine law built on the legacy inherited from Roman law, but emphasized their differences as a special area for study. See Stolte 2005.
In 1989, the distinguished Soviet-American Byzantinist Alexander P. Kazhdan called for a new history of Byzantine law which should be “a history of institutions, not only of legal science, and it must reveal the reality of human status, of rights and transactions, of the work of judiciary courts and not only Greek images of Roman jurisprudence, interesting in themselves but often quite distant from daily reality.”4Kazhdan 1989, 28.Though Kazhdan’s view truly reflected the reality of the studies of Byzantine law in the past, where much attention was paid to the philological and textual research of laws or Quellenkritik without sufficient consideration of their role in society, scholars did not really agree with him.5Kazhdan did mention in his paper that Dieter Simon and his team strongly disagreed with him, see ibid., 1.Ludwig Burgmann questioned Kazhdan’s belief in the existence of a Rechtssystem that could embrace the varied phenomena of Byzantine legal life.6Burgmann 1991.Bernard H. Stolte discussed Kazhdan’s argument in detail, and expressed his disagreement with Kazhdan in various points; he believes that Kazhdan was confused by the differing expectations of lawyers and historians, who have different ways and purposes regarding law research.7Stolte 1998, 265: “While lawyers are predominantly concerned with the way the system is supposed to operate, with institutions, legislation, judicature, and legal doctrine, historians tend to concentrate on the way law influence society and in turn is influenced by society.”Rightly, he also showed that Kazhdan was not interested in the nature of law and legal processes, but in the question of the extent to which the legal sources presented a picture of Byzantine society.8Ibid., 278.However, even though Kazhdan’s view had its problematic aspects, his call reflected some reality in studies of Byzantine law, and “Kazhdan’s desideratum of a new history of Byzantine law could be taken as the agenda of future legal historical work.”9Stolte 2005, 75.The debates around Kazhdan’s desideratum reveal the fact that Byzantine law studies are a comprehensive and sophisticated, and sometimes competitive, field, as it has a close relationship with studies of Roman law besides being a combination of studies from the fields of law and history. Almost 30 years have passed since the publication of Kazhdan’s paper, during which Byzantine law studies also underwent substantial development in breadth and depth. This paper is not intended to review all the publications, but to provide a general survey of the state of recent studies at an international level, and in China, so as to highlight progress and trends.
In recent years, two research institutions have contributed much to the field of Byzantine law studies: “The Groningen School of Byzantine Law” and the “Max-Planck-Institute for European Legal History.” The first one is located at the University of Groningen. It has a long academic history: since 1945, it has developed the so-called “Groningen School of Byzantine Law.” Scholars are very active in the field, such as the aforementioned Stolte. They also cooperate with other colleagues and organize research activities.10Burgmann et al. 1990; Lokin and Stolte 2011; Penna 2016, for details see: https://www.rug.nl/rechten/organization/vakgroepen/arw-rg/the-groningen-school-of-byzantine-law?lang=en (17.03.2018).Current research at this center concentrates on the genesis of the Basilica, an inexhaustible source of knowledge for the history of the Eastern and Western legal traditions. Furthermore, a critical edition of the Scholia on the Paraphrase of Theophilus is being prepared. Special attention is also given to the canon of Byzantium. A critical edition of the Nomocanon in fourteen volumes is also forthcoming.
The Max-Planck-Institute for European Legal History, also named “Frankfurt School,” is dedicated to basic research from a historical perspective in the field of law. The institute uniquely combines the knowledge of its experts on the history of law in Roman and Byzantine Europe in Late Antiquity and early Medieval Ages, and the ius commune of the High and Late Medieval Ages along with the history of private, criminal, public and church law in the early modern era and modern times.11For further information, see: http://www.rg.mpg.de/the_institute (17.03.2018).In respect of Byzantine law studies, the institute particularly devotes much attention to the edition and analysis of Byzantine legal texts, and to the publication of its Repertorium der Handschriften des byzantinischen Rechts. What is more, every year, it also welcomes Byzantine scholars from around the world to be there for research, thereby promoting further studies in the field.12Wagschal 2015, vi; Chitwood 2017, viii.
Modern translations of Byzantine legal texts have seen an increase in recent years, however, here I focus only on English ones.13I was just informed that the best known introductory work for Byzantine law by Spyros Troianos, Οι πηγ?? του βυζαντινο? δικα?ου has been translated into German in 2017, see Chitwood 2018.Modern language versions of Byzantine sources not only make them easier to use by scholars but also widely accessible to readers. Editions within the Corpus Fontium Historiae Byzantinae are a perfect example of the modernization of Byzantine sources. A fundamental legal text connecting Roman law and Byzantine law, The Code of Justinian acquired its fully revised English version in 2016.14Frier 2016.It is based on the translation done more than sixty years ago by Fred H. Blume, a Justice of the Wyoming Supreme Court in the US, the publication of which was delayed until now. According to the notes by the editor of this gigantic work, Bruce W. Frier, there was already a complete English version by Samuel P. Scott in 1932, however, this was not deemed satisfactory. When Frier decided to publish an updated and reliable English version, Blume’s translation came to his notice. After a 10-yearcooperation, the three-volume English version of The Code of Justinian was presented to the public.15Ibid., lxxix–xciii.The Novels of Justinian is the valuable supplement to the legislation of Justinian, as these mark the transformation of the early Byzantine Empire into the Medieval Byzantine Empire. The first English translation of the novels based on the original Greek with an extensive historical and legal commentary, was published by David Miller and Peter Sarris in 2018.16Miller and Sarris 2018. Justice Blume also translated the Novels of Justinian but likewise without publishing them. His manuscripts can now be found on the website of the George W. Hopper Law Library at University of Wyoming, see: http://www.uwyo.edu/lawlib (16.03.2018).It is also the first time that it becomes accessible to both the general and specialized readership. The Ecloga, being the most important Byzantine legal work following the 6th-century Code of Justinian, was also presented in a new English translation in 2017. The first English version of it was published in 1926 by Edwin Hanson Freshfield.17Freshfield 1926.Michael T. G. Humphreys’ new English version has its own claims18Humphreys 2017.as it is the first version including all the laws believed to have appeared in this period: Soldier’s Law, Rhodian Sea Law, Farmer’s Law, Mosaic Law and Novels of Irene. The translations of these legal texts into English will certainly promote their wider use by international scholars, and be helpful to the further development of Byzantine studies.
Two recent handbooks deserve to be mentioned. The History of Byzantine and Eastern Canon Law to 150019Hartmann and Pennington 2012.is dedicated exclusively to the canons. As one of the constituent parts of the series entitled History of Medieval Canon Law, it is an international cooperative achievement, in which the rich history of canon law of Eastern Christianity is chronologically discussed. The significance of this work lies in the fact that, before it, no other book in any language covered the rich history of canon law in Eastern Christianity. According to the editors, this work reflects the long tradition of Greek and German scholars’ interest in the subject, which is still alive and thriving at the Max-Planck-Institute for European Legal History.20Ibid., vii.The Cambridge Companion to Roman Law,21Johnston 2015.published in 2015, is a single volume comprising a number of essays that reflect the wide range of scholarship on Roman law. It not only demonstrates the recent views on Roman law’s evolution, but also a different approach to Roman law.22As David Johnston expounds, in Roman law studies there was a decisive shift from viewing Roman law as a source of doctrine to viewing it as a product of history; besides, legal historians focus on wider contexts, such as Roman law in its intellectual context, understanding how Roman law worked in Roman society, etc. It is in light of such thinking that scholars in this work aim to explain how Roman law was formed, how it was applied in practice in Rome, and its empire, etc. See Johnston 2015, 4.In the last part: “Byzantium and Beyond” (pp. 355–480), Stolte authored a chapter with a focus on the legal history of Byzantium,23Stolte 2015, 355–373.in which he not only clearly explained Roman law’s role as the foundation of Byzantine law, but also emphasized the innovation of Byzantine law with its own features.
Regarding research monographs, there are some newly published interesting works. David Wagschal’s Law and Legality in the Greek East: The Byzantine Canonical Tradition, 381–883 is one of the rare studies dedicated to canon law.24Wagschall 2015. It was highly praised by John Haldon (Haldon 2016): “It is a carefullydocumented, critical and rigorously argued study of the evolution of canon law in its broader context from the late fourth century (the canons of the council of Constantinople in 381) to the later ninth century, and represents a sophisticated and innovative analysis of the ways in which canon law is far more than just the disciplinary code(s) of the eastern church.”It challenges the established and often outdated models of the decline of both theory and practice of jurisprudence in general and of ecclesiastical lawmaking in particular in the Byzantine world, and it also argues that Eastern Roman canon law reflects a coherent and sophisticated legal tradition that has been misrepresented and misunderstood. Another important work is Humphreys’ Law, Power, and Imperial Ideology in the Iconoclast Era, c. 680–850.25Humphreys 2015.This work limits itself to the Iconoclasm and focuses exclusively on laws of this period. Though Iconoclasm is a popular movement attracting much attention in recent decades, Humphreys believes that the Isaurian politics were wrongly judged, with the main problem being that scholars of the period focused on politicoreligious debates about religious images while underestimating legal sources. Hence he aims to fill the gap between legal and historical studies by writing “an historical study of Byzantine law,” and to reevaluate the legal codification of the Isaurians as a deliberate, continuous reform of Justinianic law rather than a product of its “decline and fall.” Through a careful study following the chronological order from the Council in Trullo (692) to the Macedonian Dynasty and paleographical scrutiny of legal manuscripts with a comparison between law and imperial ideology, he succeeds in “writing ‘a historical study of Byzantine law’ that puts Isaurian law in its rightful place.”26Auzépy 2017.Zachary Chitwood’s Byzantine Legal Culture and Roman Legal Tradition: 867–105627Chitwood 2017.focuses mainly on laws during the Macedonian Dynasty. He presents a framework for further inquiry on Byzantine law via the heuristic device of Byzantine legal culture – i.e., the complex interplay of the Roman political heritage, Orthodox Christianity, and Hellenic cultural orientation. Although utilizing a different methodology than the one Kazhdan proposed, he believes that his goal is in the end the same as the latter’s was: to move beyond Quellenkritik and towards a social history of Byzantine law.28Ibid., 190.
Over the course of the last two decades, studies on Byzantine law have gradually emerged as an independent field in China. These have generally been conducted by two types of scholars: legal historians of Roman law, and Byzantinists. In the last two decades, legal historians of Roman law in China have focused on the Chinese translation and reinterpretation of the “Corpus Juris Civilis,” which seems to be in accordance with the above-mentioned Quellenkritik. Though a still young sub-field of Byzantine studies, an active team devotes its energy to Byzantine law under the leadership of Prof. Xu Jialing at the Institute for the History of Ancient Civilizations (IHAC) at the Northeast Normal University, China. Their publications29Wang Qiao and Li Qiang 2011; Wang Xiaobo 2011; Mao Xinxin and Li Qiang 2012; Yin Zhonghai 2012; Li Qiang and Xu Jialing 2013; Zhang Shuli 2013; Li Jirong 2016a; 2016b; Mao Xinxin 2017.focus on Chinese translations of laws and examine their significance for the Byzantine society.
In China, there are two active centers of Roman law studies contributing to Byzantine law studies. The Center for Roman and Italian Studies situated at the China University of Political Science and Law (Beijing) is the leading one. It was originally (since 1992) named the “Center for Roman Law Studies.” Its purpose is to study original Roman law documents and Italian early modern law monographs. By establishing a cooperation with the legal historian Sandro Schipani, “Tor Vergata” University of Rome, the center has set up a series of translations of “Corpus Juris Civilis,” and published 28 volumes so far: the Translations of Corpus Juris Civilis Fragmenta Selecta (1992–2001) and the Translations of Corpus Juris Civilis Digesta (2001–). Unsurprisingly, it has become one of the most influential centers for Roman law studies in China, and, more importantly, through its translations, it has contributed much to Roman law studies in China, and promoted the development of contemporary legislation.30Cf. the website of the center, see: http://lmydlf.cupl.edu.cn/zxjj.htm (16.03.2018).
The “Institute for the Roman Law Studies” was set up by Xu Guodong at Xiamen University in 2000. It is considered to be the first Chinese academic authority exclusively dedicated to Roman law studies. According to the introduction on the institute’s website, it has many cooperation accords with scholars and authorities of Roman law studies in Italy, Russia, Romania, and other countries. Additionally, most of its scholars are well versed in Latin. As the guiding spirit and prime mover, Xu Guodong’s publications demonstrate the main direction of the Institute. Through his publications, it can be noticed that his study of Roman law has two main approaches: translations and case studies. Regarding translations, his publications focus on the legislations of Justinian.31Xu Guodong 1998a; 1998b; 2005; 2011a.His case studies deal mainly with the interpretation of specific sources and legal problems.32Xu Guodong 2001b; 2017a; 2017b.Generally speaking, his contribution is oriented towards law and legislation. This is also a common feature of both Chinese centers of studies on Roman law. Their purpose is to provide standard Chinese translations of sources for the Chinese law circle with the hope of promoting the development of contemporary legislation in China.
Byzantine Studies is a relatively new field in China. Only two main academic teams have been formed in the last two decades: Chen Zhiqiang and his team from Nankai University (Tianjin), and Xu Jialing and her team from Northeast Normal University (Changchun). Among them, Chen and his team pay more attention to the studies of Byzantine literature and the society reflected in them; Xu Jialing and her team have dedicated their efforts to the translation and interpretation of Byzantine law in the framework of two programs: “Commentaries and Research on the Medieval Byzantine Legislative Documents” (2008), a program sponsored by the Ministry of Education of China and “Selected Commentaries on Ancient and Medieval Legislative Documents,” sponsored by the China National Fund. The basic aim of these two programs is, on the basis of translating and commenting Byzantine laws, to explain their significance for the transformation of Medieval Byzantine society. Until now, this research team has translated and commented Ecloga,33Li Jirong made a Chinese translation during his PhD studies, but it has not yet been published.Rhodian Sea-Law (Wang 2010), Farmer’s Law (Wang and Li 2011), Book of Eparch (Mao and Li 2012), Soldier’s Law (Li and Xu 2013), and the land legislation of the Macedonian Dynasty (Li 2016a). These publications provided the necessary background for four PhD-dissertations with further study of issues related to the aforementioned topics, three of which have been published.34Wang Xiaobo 2011; Yin Zhonghai 2012; Li Jirong 2016b; Mao Xinxin 2017.
In these works, one can find two different research approaches.
1. Legal studies on the texts and background of the legislation. As a legal historian, Wang Xiaobo’s dissertation is dedicated to the Rhodian Sea-Law, in which he mainly traces the development of the law by summarizing the conditions of its formation, focusing on textual analysis of the law, as well as analyzing its relation to other contemporary laws. Jirong Li, in his dissertation, pays attention to the Ecloga in the Isaurian Dynasty. Following the model of Wang Xiaobo’s dissertation, it analyzes the characteristics of Byzantine legislation from the 4th to 8th century, then with a focus on the background of the promulgation of Ecloga, and its features.35Li Jirong 2016b.
2. Interdisciplinary studies on the legal texts. This approach of studying Byzantine law with a focus on its functions in society has been rendered obsolete by Yin Zhonghai. As a sociologist with a PhD in the field of Byzantine Studies, he was strongly influenced by the contemporary Byzantinist John Haldon.36John Haldon is an outstanding contemporary Byzantinist, who is the present president of the International Congress of Byzantine Studies. His many studies are conducted from a sociological angle.His monograph is an excellent example of how to study the relations between laws and society during the Macedonian Dynasty.37Yin Zhonghai 2012.Being a sociologist, his interest lies in the social problems that this dynasty had to face. He believes that land legislation is the key element revealing the reasons behind the rise and fall of the Macedonian Dynasty. Through analysis of land legislation, he discovers the imperial point of view and the standpoints of different dynatoi (a term which includes secular, military and ecclesiastical figures), and even more importantly, he highlights that the system of power-restriction mechanisms and the guarantee of the law and institution to the monarchical power led to the rise and fall of the Macedonian Dynasty.
Another interdisciplinary study work is Mao Xinxin’s A Study on City Administration of Constantinople.38Mao Xinxin 2017.This work is also a PhD dissertationbased monograph. Its core source is the Book of Eparch (Τ? ?παρχικ?ν βιβλ?ον). This is a municipal commercial manual addressed to the eparch of Constantinople, containing a list of regulations concerning the collegia or private guilds. On the basis of this work, adopting the theory of urban development, Mao Xinxin analyzes urban construction, administration of the official workshops, management of the private business, and also management of urban public service. Though it is clear that, with only one work regarding city management, it was difficult to accomplish all the objectives of her research effort, she nevertheless managed to clarify the development of the above issues in Constantinople with emphasis on public business and urban public service.
Almost 30 years have passed since the call by Kazhdan for a new history of Byzantine law. Though there is still no work matching his standards, fruitful progress in this field has been achieved. Meanwhile, studies on Byzantine law in China also have demonstrated a promising start.
Regarding the trends for future, Stolte emphasizes that the knowledge of Byzantine law has increased immensely and is still expanding, as the progressive publication of sources in modern critical editions and modern languages becomes available; meanwhile, aided by new techniques, many buried Byzantine legal texts have been found and will continue to be found in palimpsests.39Stolte 2015, 370–371. https://www.rug.nl/rechten/organization/vakgroepen/arw-rg/the-groningenschool-of-byzantine-law (16.03.2017).Given these auspicious developments one wonders where the path will lead from here? Chitwood points out the need for more and comprehensive researches on canon law, at least for Anglophone Byzantine Studies. Moreover, he believes that scholars of Byzantine law need to address questions of common interest among pre-modern historians in general, above all medievalists.40Chitwood 2017, 191.
Byzantine law studies in China are still at an early stage with a focus on the translation of sources, commentary, and Quellenkritik, but they are making rapid progress, reinforced by the tendency to further research on Byzantine law’s functional relationship with the social reality of the Byzantine Empire by using interdisciplinary methods, involving other fields such as sociology, anthropology, etc.
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Journal of Ancient Civilizations2019年1期