Code (529-565 c.E.)
JUSTlNlAN
swineherd, had already become a Byzantine gcnerc~l.Justin tiltinrately rose to becomc
etnperor in 5 1 8 , and, as he had no children c f h i s own, he brot~qhthis nephew Jtrstir~ian
(11 Cortstat~tinopleto be groomed as his slrccessor. Jltstinian loas named emperor in
5 2 7 only a -few rnonths before his uncle died. Justininn's rule rvtls characterized by
his desire to expand the borders of his err~pireatid to reform its civil adininistmtiorl,
but he was more .\.ttccessjiul as a r ~ f i ~ m l than
e r a conqueror. H e rrtldertook a series
c f ~ o v w n m e n t a lrPfonns, brgari a prrblic works proxram, and-firrally codifkd
Byzantine la~cl.
T h e Jttstiniaw Code was conipiled at the emperor's coiilrnand between 529 and 56.5.
The state o f R o m a n and Byrantine law had grown increasingly chaotic over t h p centmries,
with a ~ ~ aacctrmulation
st
o f contradictory laius and statiites. The Code was designed to
remove these ar~orlzaliesby exa~r~inirzg
every known law to reduce d~plicarionand
contradiction. Teams cf lawyers worked for decader on the project, and rlze rejtrlt strrpassed
even the nlort optimistic hopes qfthe emperor. T h e Code formed the basis ofErrropearr
l a ~ v f o rcenturies. 71ze rcctiotl reproduced hew relates to family laul and covers rnarriagt-,
divorce, anri the respotzsibiliries of-parent.\. and children.
F O R M A T I O N OF M A R R I A G E
consent and authority of the grand-father will suffice. Insanity prevents marriage being contracted,
_/__---.--
$arriage while the adoptlon lasts. So I will be able
Eo marry a gn-1 whom my katheraaTipted and then
involved consents, that is, those who are being
united and those in whose power they are.
According to Pomponius, if I have a grandson
by one son and a granddaughter by another who
m
enough to allow them to marry, and this is correct.
A girl who was less than twelve years old when
she nlarried will not be a lawful wife until she
reaches that age while living with her husband.
Where a grandson marries, his father must also
consent: but if a granddaughter gets married, the
his son-in-law to emancipate his daughter-in-law
and for someone who wished
adopt his
daughter-- to -------__-- d
in-law to emancipate his son. We are not allowed
marry our paternal or maternal aunts or paternal
or maternal great-aunts although paterrzal and maternal great-aunts are related in the fourth degree.
1
k emancipated, we can be married. It is
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PART I I
T R A D I T I O N A L SOCIETIES
Again, we are not allowed to marry a paternal aunt
or great-aunt, even though they are related to us by
Where he marries someone because his father
forces him to do so and he would not have married
her if the choice had been his, the marriage will
The word "dvorce" derives from either the
diversity of views it involves or because people
who dissolve their marriage go in different direc-
"I do not accept your conditions." It makes no
difference whether the repudation is made in the
presence of the other party.
to have chosen this course of action.
Living with a freewoman implies marriage, not
c o n ~ ~ ilonc
a sas she -ake
money
out of plxlmxtbrr-An emancipated son can marry without his
father's consent, and any son he has will be his heir.
Women accused of adultery cannot marry during the lifetime of their husbands, even before
conviction.
Women who live in a shameful way and make
money out of prostitution, even where it is not
done openly, are held in disgrace. If a woman lives
as a concubine with anyone other than her patron,
I would say that she lacks the character of the
mother of a household.
As far as marriages are concerned, it is always
necessary to consider not just what is lawful but
also what is decent. If the daughter, granddaughter, or great-granddaughter of a senator marries a
freedman or someone who was an actor, or whose
father or mother were actors, the marriage will
DIVORCES A N D REPUDIATIONS
returns shortly afterward, she is not held to h&-:'
divorced her husband.
Julian asks in the eighteenth book of his Digest
whether an insane woman can repudiate her husband or be repudiated by him. H e writes that an
insane woman can be repudiated, because she is in
the same position as a person who does not know
of the repudiation. But she could not repudiate
her husband because of her madness, and her
curator cannot do this either but her father can
repudiate for her. He would not have dealt with
repudiation here unless it was established that the
marriage was to continue. This opinion seems to
trle to be correct.
The wives of people who fall into enemy
hands can still be considered married women
only in that other men cannot marry them hastily.
Generally, as long as it is certain that a husband
who is in captivity is still alive, his wife does not
have the right to contract another marriage, unless
she herself has given some ground for repudiation.
But if it is not certain whether the husband in
captivity is alive or has died, then if five years have
passed since his capture, his wife has the right to
marry again so that the first marriage will be held
to have been dissolved with the consent of the
parties and each of the parties will have their rights
A R T I C L E 29 C O D E (529-565
c.E.)
It is not just a person who srriothers a child who
is held to kill it but also the person who abandons 1t, denies it food, or p~itsit on show in
public places to excite pity which he himself does
not have.
If anyone asks his children to support him or
chir-eek
support irom their tather, a j u d F
h o u l d look into the question. Should a father be
-forced to suP-c%idEK
in his p o w e r o r
compel the provision of maintenance for h m . So
the Emperor Pius stated: "The appropriate judges
before whom you will appear must order you to be
supported by your Lither according to his means,
provided that where you clairll you are a tradesman, it is your ill health which makes you
incapable of supporting yourself by your own
labor." If a father denies that the person seeking
support is his son and so maintains that he need
not provide it, or where a son denies that the
person seeking support is his father, the judges
must decide this summarily. If it is established
that the person is a son or a father, they must
order him to be supported. But if this is not
proved, they should not award maintenance.
Renlember if the judges declare that support
must be provided, this does not affect the truth
of the matter; for they did not declare that the
person was the man's son, but only that he must
be supported. If anyone refuses to provide support, the judges must determine the maintenance
according to his means. If he fails to provide this,
emancipated or have become independent in some,
say that even
they --must b e 7
.supported by their parents and they, on the other
by the seizing of his property in execution and
selling it. The judges tn~istalso decide whether a
relative or a father has any good reason for not
supporting his children.
sex, or are we compelled to support our mothers
and other relatives in the maternal line? I t is better
CONCUBINES
them and the infirmity of others. Since this obligation is based on justice and affection between blood
relations, the judge should balance the claims of
each person involved. The same is true in the
maintenance of children by their parents. So we
else or become his concubine? 1 t h ~ that
n ~ a con:
cubine should not be granted the right to marry if
She leaves her patron without his consent, since it is
more respectable for a freedwoman to be her
-patron's concubine rather than the mother of a
his grandchildren. He also stated in a rescript that a
father must support his daughter, if it is proved in
court that he was really her father. But where a son
can support himself, judges should decide not to
ting a crime. Where a nlan keeps a wornan who has
been convicted of adultery as a concubine, I do not
think the lex Julia on adultery will apply, although
it will if he marries her. If a woman has been her
Where someone who has given the other party
writ& notice of divorce regrets having done thisand the notice is served in w r a n c e of the changeof mind, the marriage is held to remain valid, unless
the person who receives the notice is aware of the
change of mind 2 n d wants to end the m a r r i a s
himself. Then the marriage will be dissolved by
-
-axe.
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THE R E C O G N I T I O N O F C H I L D R E N
other way! 1 think it is better to
where children are not in power,
F
PART I I
T R A D I T I O N A L SOCIETIES
patron's concubine and then becomes his son's or
grandson's or vice versa, I do not think she is
behaving properly, since a relationship of this kind
is almost criminal. So this sort of bad behavior is
prohibited. Clearly, a man can keep a concubine of
any age unless she is less than twelve years old.
If a patron who has a freedwoman as his concubine becomes insane, it is more humane to say
that she is still his concubine.
Another person's freedwoman can be kept
as a concubine as well as a freeborn woman,
especially where she is of low birth or has been
a prostitute. But if a man would rather have a
freeborn woman with respectable background as
his concubine, he will not be allowed to do this
unless he clearly states the position in front of
witnesses. But it will be necessary for him to
marry her, or if he refuses, to commit debauchery with her. A person does not commit adultery
by having a concubine; for because concubinage
exists because of statute law, it is not penalized
by statute.
A man can have a concubine in the province
where he holds office.
FOCUS QUESTIONS
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__I..
F W h a t does the Code reveal abouf.ihiiratu&
'
----
-.in
2.
Justinian's time?
Upon what grounds could a divorce be
procured under the Code?
3.
The law has a great deal to say about
the parent-child relationship. Could you make
some generalization about parents and children
in Byzantium from the Code?
4
The Code talks about concubines and wives
alike. How were they different? What rights
did each have?
5. Judging from the Code's discussion of marriage,
could you offer any generalizations about
the institution in Justinian's time?
Secret History (ca. 560 c.E.)
Procopius was a Byzantine civil servant and historian 14lhose works provide important
information abo~ltthe reign of the emperor Justinian. Procopius was probably born i n
Palestine sometime between 490 and 510. '4jler his early education he sought a career
in civil sewice and migrated to Constantinople, then the center of the R o m a n Empire.
H e sewed on a general's s t ~ f and
f was thus able to travel to Persia, Italy, and A j i c a ,