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The Edictum Theoderici: a Study of a Roman Legal Document from Ostrogothic Italy

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The Edictum Theoderici: a Study of a Roman Legal Document from Ostrogothic Italy The Edictum Theoderici: A Study of a Roman Legal Document from Ostrogothic Italy By Sean D.W. Lafferty A thesis submitted in conformity with the requirements for the degree of Doctor of Philosophy Department of History University of Toronto © Copyright by Sean D.W. Lafferty 2010 The Edictum Theoderici: A Study of a Roman Legal Document from Ostrogothic Italy Sean D.W. Lafferty Doctor of Philosophy Department of History University of Toronto 2010 Abstract This is a study of a Roman legal document of unknown date and debated origin conventionally known as the Edictum Theoderici (ET). Comprised of 154 edicta, or provisions, in addition to a prologue and epilogue, the ET is a significant but largely overlooked document for understanding the institutions of Roman law, legal administration and society in the West from the fourth to early sixth century. The purpose is to situate the text within its proper historical and legal context, to understand better the processes involved in the creation of new law in the post-Roman world, as well as to appreciate how the various social, political and cultural changes associated with the end of the classical world and the beginning of the Middle Ages manifested themselves in the domain of Roman law. It is argued here that the ET was produced by a group of unknown Roman jurisprudents working under the instructions of the Ostrogothic king Theoderic the Great (493-526), and was intended as a guide for settling disputes between the Roman and Ostrogothic inhabitants of Italy. A study of its contents in relation to earlier Roman law and legal custom preserved in imperial decrees and juristic commentaries offers a revealing glimpse into how, and to what extent, Roman law survived and evolved in Italy following the decline and eventual collapse of imperial authority in the region. Such an examination also challenges long-held assumptions as to just how peaceful, prosperous and Roman-like Theoderic’s Italy really was. ii Acknowledgements There are many people I would like to thank for making this dissertation possible. The first thanks go to my supervisor and committee members: Nick Everett, Isabelle Cochelin, Giulio Silano, Andy Orchard, and Ralph Mathisen. Their encouragement, insight, curiosity, and thoughtful and challenging questions have helped me to sharpen my arguments and push me to exceed my own expectations. I am indebted above all to Nick, graduate supervisor par excellence. He gave me the confidence to engage in the most interesting and difficult problems he or I could think of. He set high standards for scholarship, saved me from a great number of foolish mistakes, and constantly inspired me with his enthusiasm for the study and teaching of the past. He has suffered through the worst parts of this thesis, often more than once, and is responsible for all that is good and interesting in these pages and none of what is erroneous, boring or illiterate. My debt to his instruction, kindness, and goodwill cannot be adequately summed up in these acknowledgements. I also extend thanks to my friends, classmates, and colleagues, for time spent in conversation, commiseration, and frivolity, especially to Josh Moukperian, Emre Gönlügür, Ozgür Gürel, Jonathan (Scott) Perry, Ann Park Lanpher, Patricia Greve, Vanessa Peters, John Duncan, Serdar Tekin, Kathryn Edwards, Katelyn Batrie, and Amanda Lepp. Whether at the pub, on the soccer pitch, in the gym, or at the dons’ table, I enjoyed every moment I spent with these exceptional individuals. I am truly fortunate to have had their friendship through the ups and downs of graduate school. To my brothers, sisters, and nephews, whose own accomplishments inspire me to pursue my goals with determination, confidence, and humility, I am sincerely grateful. iii My final and most significant thanks go to my mom and dad. Their unsurpassed capacity for affection, encouragement, patience, and humour has provided me with a wealth of opportunities that cannot be fully acknowledged with these few words of gratitude. It is to them that I dedicate this work. iv Table of Contents Abstract .................................................................................................................................. ii Acknowledgements............................................................................................................. iii Abbreviations...................................................................................................................... vii Introduction ........................................................................................................................... 1 Chapter One: The Historical Context of the Edictum Theoderici ...........................................................................................................17 Introduction ...........................................................................................................................17 The Authorship of the ET.......................................................................................................18 The Purpose of the ET............................................................................................................45 The Provisions of the ET........................................................................................................52 Vulgarisation and Roman Vulgar Law ...................................................................................58 Conclusions ...........................................................................................................................65 Chapter Two: The Legal Context of the Edictum Theoderici ...........................................................................................................67 Introduction ...........................................................................................................................67 The Sources of the ET............................................................................................................68 The Works of Paul.................................................................................................................71 The Works of Ulpian and Papinian.........................................................................................87 Gregorian and Hermogenian Codes.......................................................................................90 Theodosian Code ...................................................................................................................97 Post-Theodosian Novels.......................................................................................................106 Conclusions .........................................................................................................................113 Chapter Three: Public Law and Order: Judges, Courts and the Administration of Justice..................................................................................121 Introduction .........................................................................................................................121 Judges and Courts................................................................................................................127 In the Courtroom..................................................................................................................144 Appeal .................................................................................................................................156 Crime and Punishment .........................................................................................................159 Judicial Enforcement and Accountability .............................................................................169 Conclusions .........................................................................................................................180 Chapter Four: Of Persons, Property and Family: Aspects of Roman Private Law in the Edictum Theoderici...................................................182 Introduction .........................................................................................................................182 The Law of Persons and Legal Personality...........................................................................184 Freedom and Slavery ...........................................................................................................185 The Legal Position of Slaves................................................................................................196 Freedom and Property..........................................................................................................205 Title and Tax........................................................................................................................212 v Family Law..........................................................................................................................218 Marriage ..............................................................................................................................219 Adultery and Divorce...........................................................................................................229 Family Property ...................................................................................................................236 Conclusions .........................................................................................................................243 Chapter Five: Conclusions.............................................................................................246
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