Mark Letteney
The organizing principle of the Codex Theodosianus is “general law.” Its compilation began with a constitution of 429, preserved in book one of the Code, that identified eight men and tasked them with a two-step process: first, they were to collect and edit imperial constitutions from the reign of Constantine through their present day that were based on formal edicts, or laws that were generally applicable. Their second task was never completed – they were to compile a magisterium vitae which eliminated all legal ambiguities, and to promulgate this corpus under the name of the Emperor.
The concept of “lex generalis” does not appear in the text of any ancient juristic commentary. Furthermore, three years before calling for the compilation of the Theodosian Code, the same two emperors issued two constitutions that defined the boundaries of what constitutes a “lex generalis.” These two facts alone suggest that the terminology does not derive from classical Roman jurisprudence. In fact, the concept of a law that applies to all, regardless of class, gender, citizenship, or location, finds no precedent in Roman jurisprudence before the Constantinian dynasty. This odd state of affairs, in which the crowning jewel of Roman juristic scholarship is organized around a concept that appears only late in the history of the tradition, has caused a handful of scholars to wonder at the conceptual history of leges generales.
My paper will return to the question of the conceptual history of this organizing principle of the Theodosian Code. I argue that commentators heretofore are correct in presuming that the concept of a lex generalis is not internal to classical Roman jurisprudence, but that they are incorrect to presume that the concept has no clear intellectual lineage. In fact, throughout the fourth century, elite Christian men discussed and debated precisely the definition and contours of what could be considered a “lex generalis” – a category of scholarly concern that ultimately arose out of Jewish biblical commentary of the first century C.E. Questions regarding the interpretation of the letters of Paul of Tarsus and the relationship of traditional Jewish halakha to an increasingly gentile and politically ascendant Catholic Christianity gave form and voice to the epistemological construct of “general law,” and it is this construct upon which the Theodosian Code is based.
My argument will proceed thus: I will consider first the scant references to concepts adjacent to lex generalis in juristic sources before the fifth century, as well as the historiographic tradition of modern commentators on the subject. I will then consider debates among Christians concerning the concept in the fourth and fifth centuries, and their reliance on the Jewish biblical interpretation of Philo of Alexandria. I will then discuss the two constitutions of Theodosius II and Valentinian III that define for the first time the concept of a “general law” as it applies to the tradition of Roman jurisprudence. Having described the Christian source of the concept and its assumption in legal discourses of the Theodosian age, I will discuss finally the translation of a newly “juridified” concept of lex generalis back into Christian theological disputation later in the reign of Theodosius II, as evidenced by a corpus of legal documents issued by his chancellery that are commonly overlooked by scholars of Roman law. I will end by suggesting that the Theodosian Code itself is, at base, neither a surprising development in the history of Roman jurisprudence, nor disconnected from the parallel domain of theological scholarship undertaken in and around the court of Theodosius II.