Helen Saradi

The Byzantine Tribunals: Problems in the Application of Justice

and State Policy (9th-12th c.)
In: Revue des tudes byzantines, tome 53, 1995. pp. 165-204.

Abstract
REB 53 1995 France p. 165-204
Helen Saradi, The Byzantine Tribunals : Problems in the Application of Justice and State Policy (9th-12th c). In the Byzantine
sources judicial corruption is clearly distinguished from the judges' right to bend the law and adapt it to each particular case
according to the principle of oikonornia, recognized already by the imperial legislation. According to Justinian's Novels judicial
corruption was the result of the judges' insuffi cient training. Justinian treated the problem as an administrative one, since the
functionaries were also assuming judicial responsibilities. A definition of judicial corruption in social terms is found only in the
Ecloga of Leo III the Isaurian : bribery ; favour to friends ; protection from hostile acts ; fear of the dynatoi. But the legislator
placed the problem at the level of Christian morality. Later Leo VI tried to secure the good function of the Byzantine judicial
system by imposing temporal and even spiritual punishment. The measures of the emperors of the following centuries were
inspired either by Justinian's approach or by that of Leo III. In the Novels of the emperors of the Macedonian dynasty on the
preemption right of the poor, judicial corruption is denounced again as a cause of social injustice. Finally, Constantine
Monomachos tried to create an incorruptible judicial system by offering the judges high education with the establishment of the
school of Law. Influence of the Justinianic Novels has been discerned in this approach.

Citer ce document / Cite this document :

Saradi Helen. The Byzantine Tribunals: Problems in the Application of Justice and State Policy (9th-12th c.). In: Revue des
tudes byzantines, tome 53, 1995. pp. 165-204.
doi : 10.3406/rebyz.1995.1904
http://www.persee.fr/web/revues/home/prescript/article/rebyz_0766-5598_1995_num_53_1_1904

THE BYZANTINE TRIBUNALS:

PROBLEMS IN THE APPLICATION
OF JUSTICE AND STATE POLICY
(9th- 12th c.)

Helen SARADI


(Basil. 2, 1, 10; Syn. Bas. , 32, 1).
The purpose of this paper is to draw attention to some of the problems of
the Byzantine judicial system regarding the application of justice, the views
of the Byzantines about these problems, and the solutions with which the
State tried to solve them. The subject is complex and it is intimately related
to the structure of the administrative machine of the empire, the concept of
the office of the judges and their legal training. The various approaches of the
State to the problems of the Byzantine judiciary which we will discern from
the 9th to the 12th c. will be evaluated in the context of the historical tradi
tionof the Byzantine judicial system.

I. The earlier tradition

It is known that in Byzantium judicial power was not separated from the
state administration. A slow development of the judicial system in the early
Byzantine period determined the future form of the Byzantine courts and the
nature of the office of the judge. The most remarkable change was that the
provincial governors and their judges were gradually assuming the judicial
power which was originally in the hands of the municipal magistrates. Accor
dingto an ancient Roman tradition the magistrates were granted judicial
power in cases of their administrative competence as well as in cases of a
disciplinary nature over their subordinates. From the 4th c. the tendency has
been discerned for administrative functionaries to successfully compete with
Revue des tudes Byzantines 53, 1995, p. 165-204.

166

HELEN SARADI

the ordinary courts and to handle an increasingly greater number of cases1.

Thus since the judicial system was not based on professionals independent
from the civil and military administration, most of the judges did not possess
legal training. On the other hand, since justice was part of the duties of the
high officers, in particular the provincial governors, men with knowledge of
law were usually hired for such positions2. In order to secure acceptable
standards of justice, the office of the assessor was introduced early on in
various administrative offices. The assessors were judicial advisors. They
were also called .
The Justinianic legislation illustrates in a unique way the problems of the
early Byzantine judicial system and of the emperor's approach to them. The
new measures introduced by the Novel 82 on the judges (
' ), issued in the year 539, are justified by the confu
sionwhich existed in the judicial profession, and the emperor's intention was
to establish an order in this matter. The first issue that is raised is the legal
training of the judges. In the future, no one can be promoted to the office of
judge without knowledge of laws ( ) or some practical expe
rience in legal matters ( : pr.). Of course asses
sors were traditionally assigned by the magistrates to handle the legal ques
tions and replace the magistrates in their judicial duties when the latter were
busy with other administrative business3. But the assessors did not hold an
office () nor did they belong to the imperial administration (
). The legislator declares that it was not appropriate that the
judges transfer judicial matters to others (the assessors) and he intends to
correct this situation for the benefit of the citizens. Therefore he offers the
office of the high judge to men of the bar () and to other high officers
who already had significant experience in public administration and in legal
matters {cap. I). Magistrates could bring their lawsuits before these high jud
ges or delegate to their assessors only parts of the cases for examination,
while the magistrates themselves would be responsible for the final decision
{cap. II). The judges were also to be responsible for the integrity of their
assistants; if the latter were suspected of corruption, they should be replaced
{cap. VII). The cap. IX regulates the salary of the judges drawn on the
imperial treasury, as well as the payment of the litigants. The cap. XI of the
same Novel stipulates on appeals: some citizens promised with a solemn oath
that they would respect the decision of the judge they had chosen for their
case. The legislator admits that a judge could be entirely incompetent in both
1. Cf. A. H. M. Jonfs, The Later Roman Empire. 284-602, Oxford 1964, p. 484 ff.;
Idem, Studies in Roman Government and Law, Oxford 1960, p. 59-63; M. Kasfr, Das
rmische Zivilprozessrecht, Munich 1966, p. 434 ff.
2. Cf. the examples in: Jones, The Later Roman Empire, n. 97.
3. Prooimion'.
,
'
. Cf. CTh 1, 34, 1 and 2 (de adsessoribus, domesticis et cancellariis); CJ 1, 51 (de
adsessoribus et domesticis et cancellariis judicum); 27, 2, 22, 25, 28, 31, 34 {a. 534);
Nov. 24, 6; 25, 1 and 6; 26, 5; 27, 2; 28, 3; 29, 2 (; a. 535); 30, 6 {a. 536); 31 ,
1; 102, 2.

THE BYZANTINE TRIBUNALS (9th- 12th C.)

167

training and experience, in which case the litigants had the right to appeal to
another tribunal, but they would pay a penalty for perjury. In this Novel the
ignorance of the judges is particularly stressed ( (pr.),
...
(cap. XI and 1). It is important to note that the Novel 82 is included in the
Basilica 7, 1, 4-13.
The assessors, legal experts {juris studiosi) known already in classical
Roman law, were gradually institutionalized in the bureaucratic system from
the 4th c. onwards4. By the time of Justinian they had become important
officers of the imperial administration. In the C.J 1,5, 1 they are placed
before the other officers of the judges (de assessoribus et domesticis et cancellariis judicium). Their training in law and rhetoric made them indispensable as
legal advisers of the judges5. In the Novel 60, cap. II it is stipulated that the
assessors should not hear any case without the arehons being present, but it is
the latter who should hear the depositions of the litigants and pronounce the
judgement6. From the same text we learn that the assessors were either
lawyers or other professionals or even state officers (cap. II, 1). At the time of
Justinian John Lydus (De magistratibus III, 11) offers a description of the
judicial procedure at the court of the Prefect: after the assessment was made
( ) the decision was produced ( ), the assessors (
)7 who wrere men very learned in law ( ), read the decision and gave the document to the Prefect to sign it
( )8.
In these early centuries, the most serious problem of the judicial system
was the corruption of the judges. This is attested in various sources: legisla
tive,historiographical and literary9. In theory of course the judges were
expected to be impartial, disinterested and to apply the law. There were,
however, several constitutions which recognized a certain degree of freedom
in the interpretation of the law by the judges. This principle is expressed in a
4. On the Roman assessors cf. . Behrends. Der Assessor zur Zeit der klassischen
Rechtswissenschaft, ZSSHFt 99, 1969, p. 192-226.
5. Ibidem, p. 226; Kser, op. cit., p. 404 ff.
6. Cf. V. Zii.LETTi, Stadi sut processo civile giuslinianeo, Milan 1965, p. 195 ff.;
D. Simon, Untersuchungen zum justinianischen Zivilprozess, Munich 1969, p. 13.
7. In other sources the assessor is called : Behrends, Assessor,
op. cil., p. 221 n. 154.
8. Ioannis Lydi de Magistratibus populi romani libri 1res, ed. R. Wuensch, Stuttgart
1967, p. 97-98 (= A.C. Bandy, Joannes Lydus, On Powers or the Magistracies of the
Roman State, Philadelphia 1983, p. 148-150). On this text and on the Justinianic reform
of the Prefecture cf. R.D. Scott, John Lydus on Some Procedural Changes,
4, 1972, p. 441-451.
9. On various forms of corruption in Antiquity cf. W. Schuller (ed.), Korruption
im Altertum, Munich, Vienna 1982. On judicial corruption according to the ecclesiasti
cal
sources cf. Von Ignazio Prez de Heredia y Valle, Die Sorge um die Unparteil
ichkeitdes Richters im Allgemeinen in der Lehre der Synoden und der Vter vom iv.
Jahrhundert his zum Ende der Vterzeit. Archiv fr Kathotische Kirchenrecht 1 48. 1979.
i). 380-408.

168

HELEN SARADI

constitution of Septimius Severus of the year 224 which has been included in
the Justinianic Code 9, 8, 1: "You are not only not permitted to accuse a
judge of the crime of treason, because you allege that he has rendered a
decision against Our Constitution, but I do not wish accusations of this crime
to be made during My reign on any other grounds whatever" 10. Thus judicial
decisions against the imperial constitutions would not incur capital punish
ment. Practical considerations may have dictated this regulation, such as
allowing the judges a certain degree of freedom in making their decisions in
the context of each case. The text, however, does not mention any such
concern. Similar is the spirit of a Justinianic law of the year 527 (?):


(CJ 3, 1, 11). A constitution of the emperors Constantine and Licinius of the year 314 is even more explicit and as it appears, it introduced a
new principle in the application of justice: that justice or aequilas is more
important than the letter of the law: "It has been decided that, in all things,
the principles of justice and equity, rather than the strict rules of law, should
be observed" {CJ 3, 1, 8).
Underlying this interpretation, we may discern the principle of
11, the origin of which can be traced back to the ancient Greek
tradition as well as to Christian literature; if applied, it could lead the judges
to pronounce decisions ' by adjusting the laws to each particular
case. The CJ 3, 1, 8 is included in the Basilica 7, 6, 8:
. The Basilica 2, 1, 28 reproduce the Dig. 1,
3, 18 that . Thus the application of the
principle of aequitas or in judicial practice was strongly recommend
ed
by the legislators and certainly it was not considered as opening the way
to judgements distorted by the personal motivations of the judges. In prac
tice of course it could be used to serve the judges' personal interests.
It is particularly the Justinianic legislation that dealt with judicial corrupt
ion.Justinian looked at the problem from two angles: a) as resulting from
the lack of legal training of the judges, and thus in his Novel 82 of the year
539, as we have seen, he appointed to the high offices of judges men with legal
training; b) as an administrative problem which he tried to solve with admin
istrative
measures. He believed that the root of the problem was to be found
in the system of suffragium, which was originally an appointment on the basis
of the recommendation of an influential man, and developed into the tradi
tionof selling offices. By the 6th c. in most instances, the money paid for the
suffragium was cashed by the imperial treasury. In the year 535 Justinian
issued the Novel 8 with which he imposed an oath on the provincial governors
denouncing the suffragium. By abolishing the venality of offices the emperor
hoped he would cleanse the administration and he particularly refers to jus10. Transi. S. P. Scott (Etiam ex aliis causis inaiestatis crimina cessant meo saeculo,
nedum etiam admittam te paratiim accusare judicem propterea crinrine inaiestatis,
quod contra constitutionem eum dicis pronuntiasse).
11. On the principle of philanlhropia cf. H. Hunger, . Eine griechische
Wortprgung auf ihrem Wege von Aischylos bis Theodoros Metochiles, Vienna 1963.

THE BYZANTINE TRIBUNALS (9th-12th C.)

169

tice: the citizens would be equal in the trials ( : cap. VIII).

In the oath which the high officers swore, honesty in justice is further elabo
rated: "I also swear to be impartial in deciding the cases of private indivi
duals, as well as those which concern the maintenance of public order, and
only to compel my subordinates to do what is equitable; to prosecute crimes;
and in all my actions to practice the justice which may seem to me proper;
and to preserve the innocence of virtuous men, as well as inflict punishment
upon the guilty in conformity to the provisions of the laws. I also swear (as I
have already done) to observe the rules of equity in all public and private
transactions" 12. In an earlier decree on the judicial oath of the year 529 (CJ
4, 1, 12) Justinian stresses that the measures introduced were not new or
unusual, but that they had been established by previous legislators: "For who
is ignorant of the fact that judges in former times could not accept the judi
cial office unless they had previously made oath that they would on all occa
sions decide according to the truth, and in compliance with the law?" To
secure correct judicial decisions, the emperor orders that in the future the
judges judge cases and pronounce their judgements only after the Holy Scrip
tures have previously been placed in front of the judiciary. For they "intro
ducecases to be weighed and determined with the assistance of God". Thus
the Christian form of the oath was introduced in judicial practice to guarant
ee
judicial integrity.
But it seems that these measures did not produce the expected results. A
Novel of Tiberius on the archons of the year 574 deals with the same pro
blem 13. The high public offices should be given to those who are honest and
for whom justice is of great importance (
); they should receive their office without any donation (
). The suffragium given to the emper
or's treasury ( ) is, however, permitted,
for the State benefits from this. This is justified by the concerns of the State
which are listed in order of priority: a) that the provinces be governed with
order and security and that they enjoy the justice of the archons; b) that the
taxes, which support the army, indispensable for the security of the State, be
thoroughly collected.
Another cause of the corruption of the judicial system was the pressure by
the powerful (potentiores ) exerted on both assessors and judges. It is
already attested in the sources of the early centuries 14. The Novel of Tiberius
on the "divine houses" reveals another kind of abuse. There were instances in
which the of these oikoi had started a judicial procedure against

12. ,
, '
. ,
" , ,
,
.
:?. JGH. . . -;.
14. (If. Jones, Later Homan Empire, op. cit., p. 50"2-4.

170

HELEN SARADI

others about peasants-coloni or other matters, and they were acting as judges
of their own cases. The legislator declares this inappropriate and illegal 15.
II. The middle byzantine period (7th-12th c.)
The ancient principle that governed justice in the earlier centuries, was
maintained in the evolving administrative system of the middle Byzantine
period. The judiciary was part of the imperial administration and thus highranking officers were assigned judicial responsibilities in the area of their
administrative competence. This is clearly attested in various sources. A
scholion in the Basilica 7, 1, 1 explains that judges were those who
hold the office of the judge, such as the droungarios, the epi ton kriseon, the
koiaistor, the eparch 16. According to the Peira each department of the imper
ialadministration was exercising judicial duties in the area of its compet
ence17. The documents of the archives of Athos offer specific examples. In a
judicial decision (eggraphon hypomnema) of the judge Nicholas of the thema of
Strymon and Thessalonica, in 995, there is reference to a judgement (krisis) of
Constantine Karamalos, protospatharios and megas chartoularios of the office
of the genikon in Constantinople, who was in charge of the fiscal register of
the empire. Although Karamalos did not hold the office of the krites, the text
alludes to his judgement as one of the politikoi dikaslai 18. In another decision
of the same judge of the year 996 we learn that by order of the emperor, the
krites of Strymon, Thessalonica and Drougouvitsia should compose a tribunal
with other officers of the imperial administration in order to judge a dispute
between the monastery of Polygvros and the tourmarches of the Bulgarians:
the tribunal is composed by a krites, tourmarchai, protospatharioi, two bis
hops,
spatharokandidatoi , one asekretes, droungarioi and one local archon 19.
These officers had knowledge of the case deriving from their competence in
the offices of the administration. Thus according to our text, the synedroi, the
witnesses and the two litigants formed a tribunal of great size ( ) 20. The defendant had to accept their decision on account of
the evidence of the eggrapha dikaiomata, the trustworthiness () of
the witnesses and the authority of the synedroi ( )21.
15. . Kaplan, Novelle de Tibre II sur les "maisons divines", TM 8, 1981, p. 239
(par. ): ' ( ).
16. " , ,
, .
17. Peira 51, 29: .
.
)
.
18. Actes d' lviron. . Des origines au milieu du xre sicle, d. J. Lefort, N. Oikonomids, D. Papachryssanthou, avec la collaboration d'H. Mtrkvu, Paris 1985,
no 9 1. 17: .
19. Ibidem, no 10 11. 11 ff.; 11. 28 ff .
20. Ibidem, 1. 17.
21. Ibidem, 1. 39.

THE BYZANTINE TRIBUNALS (9th- 12th C.)

171

As in earlier centuries, however, very often these officers did not have
sufficient experience in law. A practical solution to guarantee a functional
judicial system was to attach a professional judge () to the officers who
needed some support: Constantine Porphyrogenitos mentions the case of the
protospatharios Podaron who had shown remarkable bravery in the wars and
was very loyal to the emperor Leo VI, who promoted him to the office of
protospatharios of the . "But because he was illiterate ( v), by
order of the emperor a judge from the hippodrome used to go down and take
his seat with him in the and judge the oarsmen" 22. From the archives of
monasteries of Athos we know several cases in which professional judges were
attached to the tribunals of the offices of the administration"23. This practice
dictated by realism resulted a very flexible composition of the Byzantine
tribunals. Some sources draw a different picture of the appointment of judges
by revealing the personal motivations and the competition between officers
for the office of the judge. Thus, for example, a letter of Psellos addressed to
the judge of Thrace and Macedonia illustrates the competition of two officers
for the right to judge: Constantine Monomachos had offered Psellos the basilikaton of M adyta and the right to transfer it to whomever he wanted. The
beneficiary, who according to Psellos was a very honest man, was in competit
ion
with the tourmarches of Haplokonesos, because he had the right to judge
some of the lawsuits, while the tourmarches was trying to appropriate this
benefice24.
Particularly interesting is a scholion of Balsamon on the 15th canon of the
council of Carthage. Balsamon distinguishes three different types of judicial
officers: 1) the archons ( ) who
were not expected to possess legal training since they had other administrat
ive
duties; 2) the synedroi who assisted them with their legal expertise; 3) the
kritai whose office was to pronounce judgements (
) 2).

22. Constantine Porphyrogenitus. De Administrando Imperio. Greek Text, edited by

Gy. Moravcstk, Engl. transi, by R.J.II. Jenkins. Washington 1967, sect. 51 11. 100102. Cf. also Aik. Christophti.opoui.ou. -,
4, 1986-7, . 163 ff. and 168 on the evidence from the Byzantine seals.
23. Cf.. for example, Actes de Lavra. Premire partie des origines 1204, d. P. Lemerle, A. Guillou, N. Svoronos, avec la collaboration de D. Papachryssanthou,
Paris 1970, no 67 (1196): to the tribunal of the logothetes ton sekreton are attached three
kritai of the velum (11. 2-3, 93-94), and a notnophylax (11. 3, 94); no 68 (1 196): to the same
tribunal are attached five and four kritai of the velum (11. 2-3, 34-35), one dikaiophylajc
(1. 4) and one nomophylax (1. 35); Actes d'lviron II. Du milieu du XIe sicle 1204, ed.
,1. Lefort, . Oikonomids, D. Papachryssanthou, avec la collaboration de
V. Kravari et d'H. Mtrvij, Paris 1990, no 40 (1071): tribunal of the office of the
megas oikonomos of the Patriarch composed by ecclesiastics and the ostiarios and krites
Constantine Sideriot.es (1. 10 and p. 121).
24. C. Sathas, MR. vol. 5. p. 487.
25. G. Rhaii.es -M. Poti.es, . 3, Athens 1853,
. 339.

172

HELEN SARADI

In the 9th and 10th c. in the high tribunals of Constantinople (those of the
Prefect of the City, of the quaestor, of the epi ton deeseon) are attached the
symponoi as assessors, men with legal training who assisted the judges in
delivering their decisions. is attested in the treatise of Philotheos
as subordinate of the Prefect of the City26. Judges () of the ordinary
courts are also mentioned in each one of the fourteen regions of Constanti
nople.
In the office of the quaestor the antigrapheis probably had judicial
jurisdiction in minor cases27. Judges (kritai) were the judicial assistants to the
tribunals of the Prefect and of the quaestor28. The two major tribunals of the
capital, those of the velum and of the hippodrome are already mentioned in
the 10th c.29.
The importance of the synedroi in the judicial procedure is stressed in
several sources. According to a scholion of the Basilica 7, 1 the term paredria
itself suggests that the symponoi and the paredroi should only assist the jud
ges in their judicial work (...
' '
). Thus according to the Peira 51, 21 depositions of witnesses are
accepted and considered valid even after the death of the judge, if they were
written in the presence of the synedroi and signed by them. If they had not
been signed and sealed by a judge who had died in the meantime, they were
considered null. In an imperial semeiosis of Alexios Komnenos of the year
1082 the role of the assessors in the judicial procedure is once again specified.
The semeiosis deals with a trial regarding the nature of the document of a
deed of sale: should a document of private transaction be considered
according to the 44th Novel of Justinian, if it had only the signature of the
tabellio but not his komblcf The lawyer of the one of the litigants asked for a
comparison of the signatures which were on the document; when this was
presented, he argued that the semeioma with the comparison of the signatures
was not valid for it was not ratified by the synedroi'30.
Synedroi are also attested in two judicial decisions of the tribunal of
Constantinople in May and June 119631. President of the tribunal was the
megas logariastes and logothetes of the sekreta. It may be that this was an
extraordinary tribunal or that it was a tribunal of the logothetes of the sekreta,
similar to the tribunals of the different offices of the administration. These
26. On the symponos cf. . Oikonomids, Les listes de prsance byzantines des ixe et
x* sicles, Paris 1972, p. 179 1. 10, 320 and n. 189.
27. Ibidem, p. 322.
28. Ibidem, and n. 203, 204.
29. Ibidem, p. 323 with references to the first mention of these tribunals and to the
earlier bibliography.
30. JGR, 1, p. 298-302, esp. p. 299 ( ...
). For an analysis of
this document cf. D. Simon, Untersuchungen zum justinianischen Zivilprozess, Munich
1969, p. 354-9.
31. Ades de Lavra, I, no 67, 68. On these documents cf. P. Limerle, Notes sur
l'administration byzantine la veille de la IVe croisade d'aprs deux documents indits
des archives de Lavra, REB 19, Mlanges R. Janin, 1961, p. 258-268, esp. p. 261-5;
Actes de Lavra, I, p. 345 ff.

THE BYZANTINE TRIBUNALS (9th-12th C.)

173

documents are particularly interesting because they reveal the composition of

the Byzantine tribunals of the administration. In each one of the sessions the
number of the assessors was five, while that of the judges varies from seven in
the first session, to eleven in the second, thirteen in the third and nine in the
fourth. Although the four sessions took place within two months (May and
June) neither the judges nor the assessors were the same. The tribunal was
remarkably flexible in its composition. Among the assessors are important
officers such as the megas droungarios Antiochos, the primikerios Manikates,
the epi ton oikeiakon Theodoros Dalasenos and the pansebastos sebastos
Michael Belissariotes, known also from other sources; other lower officers
such as kouropalatai and basilikoi grammatikoi also participated. We do not
know whether they had been appointed assessors because some of them were
competent in legal matters or because of their familiarity with the system of
the imperial administration32. It is certain, however, that according to judi
cial decisions, in particular the Peira, various officers of the imperial adminis
tration often participated in tribunals as judges probably because they had
legal training33.
The flexibility of the Byzantine judicial system may also be seen in the
tradition that the emperor had the right to decide as he often did about
the composition of special courts to judge specific cases34.
In the provinces the judicial system had a slightly different structure. In
the provincial reorganization of the empire in themata, the judiciary was an
important consideration. It was clearly distinguished from the military admin
istration.
Thus according to a scholion of the Basilica in old times there were
two archons in each thema, the krites to judge the cases of civil law and the
doux for the military cases35. The strategos was, however, assuming greater
power in the administration of the themata. In the 10th c. the kritai of the
themata received new larger administrative charges, especially those of the
fisc, originally assumed by the protonotarios, while the power of the strategos
was reduced; he became the real governor of the provinces36. As Skylitzes
and Attaleiates note, the krites became 37.
Appeals could be made to the tribunals of Constantinople. In other sources
the krites of the themata is also called 38. In the 11th c. the power of
the sekreta was strengthened. These were independent administrative offices
32. Cf. the remarks of Lf.merle, Administration byzantine, op. cit., p. 264.
33. Oikonomids, Listes de prsance, op. cit., p. 323 ff.
34. Cf., for example, Actes de Laura, I, no 46 11. 43-44:
(1084); Actes d'Iviron, I, no 9 1. 4:
; no 10 (996); 33 (1061); 34 11. 14, 15; 35 1. 11 (1062).
35. ,
, ,
' . Cf. H. Ahrweiler, Recherches sur l'administration de l'empire byzantin
aux ixe-xie sicles, BCH 84 and Athens-Paris 1960, p. 69 ff.
36. Ibidem; Idem, Byzance et ta mer. La marine de guerre, la politique et les institutions
maritimes de Byzance aux vne-xV sicles, Paris 1966, p. 141. Cf. also Christophilopon.ou. , op. cit.. p. 172-4.
37. Attaleiates. Bonn. p. 183: Skylitzes, Bonn. p. 706.
38. Cf. Ahrweii.fr, Hecherohes, op. cit., p. 70.

174

HELEN SARADI

with judicial jurisdiction (, ) assuming also other administ

rative functions. The civil administration was reinforced not only in the
central government but also in the themata, where the kritai assumed the
economic and judicial power. Constantine Monomachos created a new sekreton of justice ( ) which had jurisdiction
and control over the judges of the themata39. In the 11th c. there were four
high tribunals in the capital: that of the Eparch whose jurisdiction had been
reduced to cases of the professionals, of the quaestor, of the droungarios of the
velum, and of the epi ton kriseon40. In the reorganization of the imperial
administration under the Komnenoi, the praitor-kriles of the themata received
the judicial power in the provinces, while the doux-anagrapheus assumed the
civil and military41.
With reference to the application of law by the judges, we have seen that
the imperial constitutions of the earlier centuries had recognized a certain
degree of freedom of the judges in their interpretation of the laws. Based on
the existing Byzantine judicial decisions, contemporary legal historians have
discerned a major problem in the application of justice, namely the "flexible"
use of the laws by the Byzantine judges and they have concluded that the
Byzantine judges did not always justify their decisions by the existing imper
iallegislation, but that they interpreted the laws according to the tradition
or to concepts such as , , 42; or that they used
constitutions which had already been abolished to justify their judicial deci
sions. It has been suggested that the gap between judicial practice and the
laws was not the result of practical reasons, such as the poor training of the

39. Attaleiates, 21-22:

, '. Cf. Ahrweii.er, Recherches, op. cit.,
p. 70-1; Idem, Byzance et la mer, op. cit., p. 141; N. Oikonomids, L'volution de l'o
rganisation
administrative de l'empire byzantin au xi'" sicle (1025-1118), TM 6, 1976,
p. 134, and the different view of Christophilopoui.ou, , op. cit.,
p. 174-7. In a hypomnema of the protos of Mount Athos (1057) the judicial decision of
this sekreton is called : Actes de
Saint-Pantlmn, ed. P. Lemerle, G. Dagron, S. Cirkovic, Paris 1982, no 5 1. 9.
40. Oikonomids, L'volution de l'organisation administrative au xic s., op. cit.,
p. 133-5.
41. On the praitor-krites cf. Ahrweiler, Recherches, op. cil., p. 77. On the doux cf.
J.-C. Cheynet, Du stratge de thme au duc: chronologie de l'volution au cours du
xie sicle, TM 9, 1985, p. 181-194. On the provincial tribunals and the provincial judi
cial procedure in the decisions of Demetrios Chomatianos cf. D. Simon, Byzantinische
Provinzialjustiz, BZ 79, 1986, p. 310-343, with particular attention on the bishop's
jurisdiction; on the praitor, p. 338-9.
42. On cf. C. Cupane, Appunti per uno studio dell'oikonomia ecclesiastics
a Bisanzio, JOB 38, 1988, p. 53-73; N. Oikonomids, The "Peira" of Eustathios Rhomaios: an Abortive Attempt to innovate in Byzantine Law, FM VII, Frankfurt am
Main 1986, p. 185; H.G. Beck, Nomos, Kanon und Staatsraison in Byzanz, SB Vienna,
384, 1981, p. 40 and n. 97; G. Weiss, Hohe Richter in Konstantinopel. Eustathios
Rhomaios und seine Kollegen, JOB 22, 1973, p. 138; D. Simon, Bechlsfindung am byzan
tinischen
Beichsgericht, Frankfurt am Main 1973, p. 22 ff.

THE BYZANTINE TRIBUNALS (9th-12th C.)

175

judges, their corruption, or problems of the administrative system, but rather

the particular concept of the function of the legal texts in Byzantium. Thus
according to this view the Byzantine judges regarded their work as a political
act; their power derived from their appointment by the emperor and by his
moral character43. Therefore what actually mattered was not legal training,
but rather talent, intelligence, knowledge of rhetoric and experience in legal
cases. On the other hand, there is no doubt that most of the surviving judicial
decisions were based on the existing legislation. This of course provided pro
tection
to the judges in case they were reproached for unfair judgements.
Thus it has been suggested that the legal texts were actually considered as a
collection of lopoi from which the judges were taking their arguments44. A
historical interpretation offers another explanation of the phenomenon: prac
tical problems in the application of the legislation which in many cases had
become obsolete in the middle Byzantine period, obliged the judges to adapt
their decisions to the new historical reality 4).
While the Byzantine judges were permitted to bend the laws, to be selec
tive in choosing the decrees from the existing vast imperial legislation and to
apply them to individual cases according to the principles of or
, corruption of the judicial system, namely the venality, the disho
nesty and the incompetence of the judges, directly related to the social and
administrative structure of the empire, was unacceptable. This study will
focus on how sensitive the State was to these problems and how it tried to
solve them.
In the middle Byzantine period the office of the judge is defined in various
juridical texts; his obligations and the standards of the profession are also
described. Statements about judicial corruption are to be found in all juridi
cal
texts, but it is in the Ecloga of Leo III that it is defined with precision as
the intentional distortion of the law to serve the personal aims of the judge.
Furthermore it is placed in a social context, as the exploitation of the poor
() by the powerful (). Both the definition of and the approach to
judicial corruption are entirely new. According to our text the judges should
stay away from all human passions and pronounce their judgements after
sound reflection; they should not fail to care for the penetes nor allow that the
dynatoi remain unpunished46; nor should they pretend that they admire jus
tice and equality, while in practice they prefer injustice and covetousness for
this is beneficial to them; if they judge cases in which the one of the litigants
43. Ibidem, p. 16ff.
44. Ibidem, p. 23 ff.; Sp. N. Troianos, 8, Athens 1986,
p. 36.
45. Oikonomides, The "Peira" of Eustathios Rornaios, op. cit., p. 183-190.
46. Ecloga. Das Gesetzbuch Leons III. und Konstantinos' V., ed. L. Burgmann,
Frankfurt am Main 1983, p. 164:

,
... On the oppression of the penetes by the dynatoi cf.
II. Saradi, On the "Archontike" and "Ekklesiastike Dynasteia" and "Prostasia'" in
Byzantium with Particular Attention to the Legal Sources. A Study in Social History
of Byzantium, By-. 64. 1994, p. 69-117, 314-351.

176

HELEN SARADI

is a privileged man and the other a poor one, they should regard the two
litigants as equal, by taking away from the one who has more the amount
that the victim of injustice had lost47. In the following passage the text
defines judicial corruption as: 1) bribery; 2) favour toward a friend48;
3) defense against someone else's hostility; 4) fear of the power of a dynatos (
, '
). Two quotations from the Bible justify why judges must endorse the
principle of justice. In this passage judicial corruption is defined in social
terms (bribery, personal motivations, pressure by the powerful). Further,
however, the application of justice is interpreted as a problem of comprehend
ing
law: judges who understand what is just ( ) apply
justice, while others on account of their intellectual limitations (
) are unable to pronounce justice ( ).
Thus according to the Ecloga judicial corruption was a social problem, a
problem of social relations; although personal and social forces are recognized
as operating behind the incompetence of judges (desire for money, personal
relations, influence of the powerful), the legislator did not try to solve the
problem with social measures; personal motivations and social factors could
operate in the application of justice because the judges were not able to
comprehend justice. The question of the legal training of the judges is not
raised; nor is the need felt for a judicial body, separate from the imperial
administration. According to our text the judges who were thoughtful had
correct judgement ( ) and possessed clear knowl
edge of real justice ( ); they should
demonstrate correct judgement and apply justice. It is to those judges that
Christ, the power and wisdom of God, donates the knowledge of justice and
reveals the things which are hard to find out (
, ,
). It is God who gave the
knowledge of justice to Solomon when he pronounced his judgement in the
famous case of the two women and the child: since no one of them could
support her claim with evidence or witnesses, he made his decision by provo
kinga reaction of maternal feelings.
The judges appointed by the emperor should think of all these. The emper
orsin order to correct judicial corruption as described in the above terms,
47. ,
, ' ,
,
, . For a
comparison of the Ecloga's prooimion with earlier ecclesiastical texts cf. II. Saradi, op.
cit., p. 85.
48. Favour to friends is defined as a form of judicial corruption in earlier centuries.
Cf., for example, I. Hahn, Immunitt und Korruption der Curialen in der Sptantike,
W. Schuller (ed.), Korruption im Altertum, p. 179-199, esp. p. 187 ff. From the eccle
siastical
literature cf., for example, John Chrysostom, PG 51, col. 23: ... ,
,
, .

THE BYZANTINE TRIBUNALS (9th- 12th C.)

177

decide to impede the give-and-take () of the judges. They order that

the judges receive their salary from the imperial sakelle, so that they are not
paid by the litigants49. This measure is along the lines of Justinian's
approach to the same problem; it is, however, justified with a quotation from
the Scriptures ( "
,
).
The theme of justice is also central in the prooimion of the Procheiros
Nomos. Many quotations from the Scriptures justify the significance of jus
tice in the context of religious tradition as well as in terms of social relations.
God is worshipped first and foremost with justice50. The divine origin of
justice is stressed ( ,
...); law has been given to men by God for assistance (
)01.
The prooimion of the Epanagoge is written in a more elaborate style, while
reference to the religious concept of justice is minimal52. Some sections of the
Epanagoge deal with the judges. The 6, 4 stipulates that the archon cannot
appoint someone as courator or special judge (
). The 7, 1 stipulates that the judges should not receive money
for their judicial decisions, not even by claiming a customary tradition (
)03. They had the permission of the emperor to examine the
unjust actions of magistrates and punish them by depriving them of their
office, for more or less they represented the emperor in the provinces. And as
they were not allowed to make any illegal profit ( ), the
emperor orders that they be honoured and respected. The sections 11, 4-9
deal with appeals against judicial judgements which are defined as a litigant's
allegation against a judge that he had not been judged properly (
: 1 1 , 4). The
decisions of lower courts were subject to appeals to the higher courts, those of
the emperor, the patriarch, the eparch and the quaestor. The lower the court,
the more it needed assistance, and most of the judgements of the lower courts
had to be corrected ( ,
).
The problem of judicial corruption was addressed directly by the emperors
of the Macedonian dynasty. According to the historiographical sources Basil 1
appointed incorruptible judges paid by the State aiming to guarantee equa-

49. Ecloga, p. 166.

50. JGFt, 2, p. 114: ,
.
51 Ibidem, p. 115.
52. Cf. J. Scharf, Photios und die Epanagoge, BZ 49, 1956, p. 385-400; Idem. Quel
lenstudien
zum Prooimion der Epanagoge, BZ 52, 1959, p. 68-81.
53. On cf. Oikonomids, Listes de prsance, op. cit.. p. 88 n. 28; St. Perentides, ; "",
. , 2, . 476-485. For the earlier legal tradition cf. . Schmiedel, Consuetudo im klassischen und nachklassischen rmischen Becht. Graz-Kln 1966.
esp. p. 122-7 for the Basilica.

178

HELEN SARADI

lity everywhere in the empire and to prevent the abuses of the penetes by the
wealthy54.
The next text that deals directly with judicial corruption is a decree of
Leo VI. The title reveals the aims of this decree: it is a condemnation of the
judges ( '
). The legislator believes that no judge would ever go so
astray that he would pronounce a judgement against the laws. If he slips to
such a degree of vanity, and he is caught, he will be punished according to the
laws. If he escapes the attention of the State, he will receive divine punish
ment. To make the stipulation more secure, the legislator ratifies it with
maledictions. Thus corrupt judges will find themselves fighting against God,
and the celestial and incorporai powers will fight against him; his life will
terminate early, and he will be punished in the future life; fire will destroy the
foundations of his house, and shame and disgrace will be brought on his
descendants and they will be in need of the bare essentials (literally, bread)
for having rendered the flexibility (literally, ) of the law subservient
to twisted judgements55. This text is extremely important for our study for
two reasons. First it clearly distinguishes the right of the judges to interpret
the laws freely, namely the of the laws (probably implying the prin
ciples of and sanctioned by the earlier legislation), from
illegal judicial decisions dictated by personal interest. Second, it does not
repeat the earlier laws applying to corruption of judges. These are referred to
indirectly. The legislator was not concerned to secure the enforcement of
these laws, but rather to invent new and more secure means to guarantee an
incorruptible judicial system, that of divine punishment, a warranty of rel
igious
origin consolidated with maledictions, particularly for corrupt judge
ments which remained undetected. We should note that maledictions are
very rare in the imperial constitutions56. Obviously this approach failed to
uproot the causes of judicial corruption.

54. Theophanes Continuatus, p. 258-261 = Skylitzes, ed. J. Thurn, p. 132-133:

.
55. JGR, 1, . 188-9 = . Noaiij.es and A. Dain, Les Novelles de Lon VI le Sage,
Paris 1944, p. 377:
.
,
. "
.

'
' .
56. Cf., for example, the oath of the archons cited in the Novel 8 of Justinian (a.
535): ,

'
. Cf. also Procopius, need. XXI,
17; Novel 54, 2 (a. 537):

THE BYZANTINE TRIBUNALS (9th-12th C.)

179

In the Novel 97 magistrates when receiving their office, and judges when
appointed to judge a case, should give an oath that they would honour the
truth;>7. With another Novel of Leo VI other irregularities of the judicial
system are corrected. In order to avoid suspicion and confusion (
) in the trials, the judges should sign the documents of their deci
sions with their own signature08.
These texts refer to judicial corruption in a more or less general way. The
imperial constitution which deals with a specific problem in the application of
justice, is a Novel of Constantine Porphyrogenitos of the year 947 on the
pre-emption right of the penetesrM. The emperor reveals that the previous
legislation on the pre-emption right had not been enforced because the judges
pronounced their judgements under pressure by the dynatoi rather than
according to their own will; their decisions were offering various accommodat
ions
in various situations ( , , ' )60.
Later in another Novel of Romanos this situation is described with an even
stronger vocabulary: "We must beware lest we send upon the unfortunate
poor the calamity of law-officers, more merciless than famine itself"61. Based

. On the maledictions in the Novels of Justinian of.

S. Puliatti, Bicerche sulla legislazione "regionale" di Giustiniano, Milan 1980, p. 49
n. 98. On the maledictions in the early Christian sources cf. S. P. Ntantes, '
. '
, Athens 1983. Cf. also Ph. Koukoui.es.
, 3, Athens 1949, . 326-346. For the later Byzantine legal
sources cf. H. Saradi, Cursing in the Byzantine Notarial Acts. A New Form of Warr
anty, (forthcoming).
57. Noaili.es- Dain, Leu Novellen de Lon VI. op. cil., p. 317-9.
58. Ibidem, p. 181. It is particularly in judicial decisions of the 10th century, in
accordance with this regulation of Leo VI, that judges state that they had signed with
their own signature and they had sealed their decision: Actes d'Iviron, I, no 1 11. 20-21,
22 (927); no 9 11. 54, 55 (995); no 10 11. 60-62 (996).
59. On the pre-emption right of the penetes cf. Zachari von Lingenthal, Ges
chichte
des griechisch-rmischen Rechts, Berlin 1892, p. 236-248; G. Ostrogorsky, The
Peasant's pre-Emption Right. An Abortive Reform of the Macedonian Emperors, JBS
37, 1947, p. 117-126; Idem, Agrarian Conditions in the Byzantine Empire in the Middle
Ages, The Cambridge Economic History of Europe, 1966, p. 205-234, 774-9; Idem, Quel
ques problmes de la paysannerie byzantine, Brussels 1956; P. Lemerle, Esquisse pour
une histoire agraire de Byzance: les sources et les problmes, Bvue historique 219, 1958,
p. 32-74, 254-84; 220, 1958, p. 43-94; A. Kazhdan, Social' nyj sostav gospodstvujuscego
klassa Vizantii xi-xu , Moscow 1974; R. Morris, The Powerful and the Poor in the
Tenth-Century Byzantium: Law and Reality, Past and Present 73, 1976. p. 3-27;
H. Saradi. On the "Archontike" and "Ekklesiastike Dynasteia" and "Prostasia" in
Byzantium, op. cit.. p. 90 ff.
60. JGR. I. p. 215.
61. Ibidem, p. 242: transi. Ostrogorsky. The Peasants Pre-emption Right, op. cit..
p. 122.

180

HELEN SARADI

on a judicial decision from the archives of Lavra, Ostrogorsky tried to show

the legal ways the judges had devised to circumvent the law62.
It should be stressed that the judges belonged to the class of dynatoi; these
are defined in one of the Novels of Romanos Lecapenos of the year 934 as
those who, if not by themselves, then by using the dynasleia of others with
whom they were acquainted, were able to inspire fear in those who were
selling properties or to promise a certain benefit in return for the transac
tion63. Other Novels of the same series defined the dynatoi in terms of rank in
the imperial administration or of wealth: by using political and economic
power the members of the upper class could exercise pressure on the penetes
for their own benefit. Although there is no explicit reference to the judges as
dynatoi in the Novels of the emperors of the Macedonian dynasty, there is no
doubt that they were part of that class64. In fact the Peira supports this
conclusion. In 7, 12 is discussed a case of a kriles who made an arrangement of
dialysis (settlement of a dispute) with a peasant, who later contested it. The
peasant is described as one of the penetes, while the judge as one holding an
office ( )65. The 42, 18 deals with the abuses of the protospatharios Romanos Skieros against some peasants. Later they reached an agree
ment of dialysis which the peasants contested on account of pressure exerci
sed
on them by the judge (krites). Eustathios Romaios ordered that, if the
peasants were able to prove that they had been forced to the agreement of
dialysis by the krites, the agreement should be declared null66. The sources
attest that particularly in the 11th c. the power of the provincial judges was
increasing. In a hypomnema of the judge Constantine Kamateros of the year
1037 from the archives of Docheiariou, unique in our sources, the judge threa62. Ibidem, p. 119-122. Cf. also the opposing view of Lemeri.e, Esquisse pour une
histoire agraire, op. cit., p. 71-4; Idem, The Agrarian History of Byzantium from the
Origins to the Twelfth Century. The Sources and Problems, Galway 1979, p. 157-160.
63. JGR, 1, p. 203.
64. Ibidem, p. 209, 213, 216, 217, 223, 265. Cf. also N. Svoronos, Remarques sur la
tradition du texte de la Novelle de Basile II concernant les puissants, Recueil des Travaux
de l'Institut d'Etudes byzantines, VIII, Mlanges G. Ostrogorsky, II, Belgrade 1964, p. 427434
Dynasteia"
(= Var. and
Repr."Prostasia"
no VIII), in
andByzantium,
H. Saradi,op.Oncit.,
thep."Archontike"
90 ff., 100, 108
andand"Ekklesiastike
n. 173.
65. JGR, 4, p. 29: ,
.
66. Ibidem, . 177: ,
. Another case of abuse of a krites toward a penes is attested in Fr. Trinchera,
Syllabus graecarum membranarum..., Naples 1865, no 184 (p. 24). Cf. also S. Vryonis,
The Peira as a Source for the History of Byzantine Aristocratic Society in the First
Half of the Eleventh Century, Near Eastern Numismatics, Iconography, Epigraphy and
History. Studies in Honor of George C. Miles, Beirut 1974, p. 279-284, and D. Simon's
remarks on the "social character" of the tribunal of Eustathios Romaios: Rechts findung
am byzantinischen Reichsgericht, 10 (Das Hippodrom prsentiert, sich demnach als Klas
sengericht.
Klassengericht, das muss vielleicht hervorgehoben werden, ist nicht im
Sinne der politischen Propagandistik formuliert, etwa: Justiz als Unterdrckungsins
trument
via korrupter Rechtsanwendung, sondern aus soziologischer Sicht, d.h. be
stimmte
Faktoren haben die Chance der verschiedenen sozialen Schichten, vor diesem
Gericht ihre Interessen durchzusetzen, ungleich gestaltet).

THE BYZANTINE TRIBUNALS (9th-12th C.)

181

tens with his wrath whomever would not respect his decision (

) b7. In the 12th c. Balsanion in his commentary

on the 3rd canon of the council of Saint Sophia uses terms disclosing the
political power of the judges: and 68.
Private collections of laws are of particular interest since they were compil
ed
to be used by legal professionals; thus the criterion of selection expresses
the established practice. In the Epitome69 the regulations on judges are
included in the section on archons (titl. 14:
). This underlines the administ
rativenature of the office of the Byzantine judge. Constitutions from various
legislative texts, particularly the Justinianie legislation, are contained in this
title of the Epitome. The 14, 10 derives from the titl. 4. cap. 3 of Athanasius
which stipulates that those who hold an office should avoid any profit, they
should be satisfied with the public allowances of rations (), for they
had received the office freely. Influence of powerful persons on judicial deci
sions is clearly suggested in the cap. 21 which repeats the CJ 2, 13: whoever is
represented by a dynaton prosopon in a trial or hands over to him his
complaint should lose his case in the lawsuit. The cap. 34 repeats the CJ 1, 45,
1 that those who, while holding an office are engaged in a lawsuit, should not
sit with the judge nor should they have the possibility of doing this. The cap.
35 repeats the CTh 17, 4 that the archon must pronounce his judgement on all
cases in a brief period of time and with fairness ( ). The
cap. 37 stipulates that the litigant who has entrusted a lawsuit to a judge is
not allowed to transfer the case to another judge on the grounds that the
former was not appropriate. Only after his condemnation, if he wanted, could
he appeal to another tribunal. The cap. 43 forbids that a person who had
acted as someone's lawyer to act as judge in another case of the same person
{Dig. 2, 1, 17) and as in the CJ 2, 6, 6 no one could act as a lawyer and judge
for the same case. If he does so he will have to pay 10 pounds of gold (CJ 1,
51, 14). The cap. 49 repeats the CJ 3, 1, 11 (a. 527?) that the judges should
pronounce their judgements according to what appears to them to be right on
the basis of the existing laws ( ), and they should not fear imperial deci
sions commending an illegal action, for such an order would be invalid. Thus,
67. Actes de Docheiariou, ed. N. Oikonomids, Paris 1984, no 1 1. 22 and p. 50. Such
a menace, however, was clearly against the law. A scholion of the Epitome 14, 33
specifies according to CJ 7, 57, 1 , 2 that the judge's threat does not count for a decision:

.
/ (J(Fi, 4, . 360 . 70).
68. Rhalles-Potles, op. cit., 2, p. 71: ,
. Cf. . Saradi, The 12th Century Canon Law
Commentaries on the : Ecclesiastical Theory vs. Juridical Practice,
Byzantium in the 12th Century. Canon Law, Slate and Society, ed. N. Oikonomides,
Athens 1991, p. 375-404.
69. On the Epitome cf. A. Schminck, Studien zu mittelbyzantinischen Rechtsbcher,
Frankfurt am Main 1986, p. 109-131: ,1. Maruhn, Der Titel 50 der Epitome, FM 111,
Frankfurt am Main 1979, p. 194-210.

182

HELEN SARADI

while the existing laws offer the guidelines, the application of justice is left
entirely to the judges, and it is certainly placed above any illegal imperial
decree. The cap. 51 reproduces the Dig. 1, 3, 24: the judge should not pay
attention only to a detail of the law, but he should examine the law as a
whole ( ). Bribery is forbidden and the judge who
was bribed should return the amount he had received ( ).
The cap. 54 refers to invalid ownership sanctioned by unjust judicial decisions
( ). The lack of experience and injus
ticeof a judge is also mentioned in the 2, 10 ( ).
The cap. 14, 55 reproduces the CJ 7, 45, 15 allowing the judge freedom in
selecting the cases he wanted to judge. He could deal only with the cases he
wanted, while he should refer the others to superior judges. The cap. 63 (= CJ
3, 4) recognizes different areas of jurisdiction of judges ().
In the Basilica are included various ancient constitutions on judges and
the judicial procedure. The 7, 1, 1 reproduces a constitution of Zeno in the CJ
1, 51, 13 that the symponoi should never make judgements without the
archons by signing on their behalf. A scholion in the Basilica 7, 1, 3 explains
that and were for the judges (those who
had the office to judge, such as the droungarios, the epi ton kriseon, the
quaestor, the eparch). The duty of the symponoi was not to judge, but to
work with the archons ( ,
). Another form of judicial irregularity was to act at the same time as
lawyer and synedros by more than one archon (Basilica 7, 1,2 = CJ 1, 51, 14).
The Novel 60 of Justinian restricting the judicial initiatives of the paredroi is
included in the Basilica 7, 1, 3 (= Syn. Bas. , 33, 28). Of interest to this
study is the 7, 9 forbidding the dynaloi to offer their protection to the lit
igants
or to make agreements on their behalf (= CJ 2, 13, 1-2), and the 7, 10
forbidding the defendants to use the names of dynaloi in expectation that
they would influence the judicial decision, and to attach titles of ownership in
their name (= CJ 2, 14, 1).
The Novels of the 10th c. rule on other kinds of disfunctions of the judicial
system. A first Novel of Constantine Porphyrogenitos (945-959) regulates the
salaries of the judges and their subordinates70. Covetous revenues even if
were received according to an ancient custom, are forbidden. The judges of
the themata should not receive more than 3 nomismata for each pound of gold
of the value of the disputed property. The legislator explains that this fee
applies obviously to the wealthy litigants. According to the Justinianic legis
lation the judges received two nomismata from each one of the litigants at
the beginning of the lawsuits and two at the end (a total of eight nomismata)
only for the cases of over 100 nomismata, plus a salary from the imperial
treasury. Justinian was hoping that the salary would eliminate judicial bri70. JGR, 1, p. 218-221. On the fees of the judges according to the Justinianic legisla
tioncf. Novel 82, cap. IX (= Basilica 7, 1, 12; Syn. Basil. , 35; cf. also Epanagoge 17,
1). Another attempt to regulate the salaries of the judges from the imperial treasury is
attested in the Ecloga, pr.\
,
.

THE BYZANTINE TRIBUNALS (9th-12th C.)

183

bery ( .
, '
...:
Novel 82, cap. IX). Constantine Porphyrogenitos specifies that the judges
should spend this money for themselves and for their subordinates. Any addi
tional request was unacceptable. In any case they should never demand more
than 100 nomismata as (the fee paid by the litigants), except for a
travel allowance of the executor of the judicial decision (). The pea
sants and the other peneles should pay only one nomisma per each pound of
gold of the value of the disputed property. Favourably are treated those who
had been victims of clear aggressive injustice, namely if there was not a case
of . The judges and their subordinates should administer jus
tice "with their hands clean" ( ,
)'1. The Novel also specif
iesthe fee of the secretaries who produced the written records of the jud
gements
in the provinces ( ) and in Constantinople. The sec
tion 2 regulates the payments for the registration of wills at the office of the
quaestor. The section 3 is a regulation of the payment of the scribe. His
functions are defined: he was not a judge with full powers (
), he was placed lower than the judges of the themata and even the
antigrapheis and he handled the cases of minors72. The 4th section of the
Novel stipulates that the judges of Constantinople (polilikoi) should not
receive anything for any reason whatsoever (
,
') '^.
A second Novel of Constantine Porphyrogenitos on the same subject was
issued later. It appears that the first Novel had caused confusion regarding
fees paid by the litigants, the so-called eklagialika1A. Covetous and illegal
profit was the reason for the abnormal situation described in the prooimion of
the Novel. The text speaks of the successive transfer of lawsuits to other
judges with the obvious result of a dramatic increase in the fees of the lit
igants.
Thus the emperor ratifies the earlier Novel: the judges should not
make any profit from the above mentioned situations either for themselves,
or on behalf of their secretaries with the exception of their soldiers ()75. Particularly the notarioi (secretaries) should be paid by the litigant
who won the case: thus the judges would be incited to deliver their decisions
in time.
71. JOB, 1, p. 219.
72. Ibidem, p. 220.
73. Ibidem.
74. Ibidem, p. 227-9.
75. On the cf. Oikonomids, Listes de prsance, op. cit., p. 86 n. 25.
In the 11th c. the of the kriiai were responsible for abuses (illegal exac
tions) over the peasants: Michaelis Pselli scripta minora, ed. G. Kurtz, F. Drexl,
Milan 1936, 1941, vol. 2, p. 144:
.
, .

184

HELEN SARADI

It is particularly in the 1 lth c. that various sources manifest a great aware

nessof the complex problems of the Byzantine judicial system. They are
addressed directly and with frankness. Even in documents of the administrat
ion
which follow standard clichs, there now appear expressions either stres
sing the qualities of the judges or indicating their failings. For example, in a
graphe with which the empress Theodora ordered a judge of the velum, Voleron and Strymon to judge a dispute between Iviron and a monk, she
addresses him as 76.
Other sources, such as the Strategikon of Kekaumenos, offer several specif
ic
examples of judicial corruption and they draw a more complex picture:
they underline the divine origin of justice, they define justice as a religious
obligation of the judges to protect the poor; they place justice in the context
of aristocratic ethics. One of the obligations of the strategos was to keep an
eye on the judge, in case his judgements were not just. The strategos was
advised to intervene in any lawsuit in which injustice was committed77. By
interfering he was acting according to divine orders. Thus God would support
him. Examples from the New Testament justify such initiatives of the strate
gos.The duty of the judge to take the initiative and apply justice where it
was needed, was not an obligation toward the State or the society; rather it
was a duty toward God78. His decision should be in accordance with the
principle of philanthropia 79. Bribery of the judges of the themata is stressed as
very common. The judge who received gifts put himself in the darkness of
ignorance ( )80, even if he was very wise and knowl
edgeable.
Bribery would lead to unjust judgements. Judges should be satis
fiedwith what they were entitled to get. For they had not been appointed to
the office in order to accumulate wealth, but rather in order to give justice to
those who had been victims of injustice ( ). The judge
should not pronounce a judgement on account of friendship. If a charge was
brought against one of his friends, he should resign from the case, for it is
expected that he wouldn't be impartial. The pride and dignity of the judge in
the context of social ethics are presented as the first reason why he should
reject such cases ( ); on the other hand it should be expected that
his friend would be sentenced by the politikoi judges. Here it is rather the
honour of the aristocrat instead of the high value of justice and his legal
obligation to meet the standards of the profession that matter. If the judge's
motivation was to benefit from presents, this would incite him to make a
dishonest judicial decision, for the judge would consider those willing to offer
76. Actes d'Iviron, II, no 31 I. 10 (1056). Cf. also no 34 11. 1-3:
, , , ,
,
, .
77. G.G. LiTAVRiN, Soveti i rasskazi Kekavmena: socinenie vizantijskogo polkovodlsa
XI veka, Moscow 1972, p. 118: , ,
,
, .
78. Ibidem, p. 118-120.
79. Ibidem, p. 120 11. 17-18: .
80. Ibidem, p. 126.

THE BYZANTINE TRIBUNALS (9th-12th C.)

185

presents as just, while those refusing to bribe him would be regarded by him
as unjust81. This statement is supported by a quotation from the Old Testa
ment. Further Kekaumenos advises the strategoi and the krilai not to receive
their office by paying xenia (friendly gifts). For whoever acts in this way, will
later try to make up the money he had paid. Thus he would be hated by
everyone and he would become a burden (
) 8'2.
It was common knowledge that promotions to the positions of judges were
not made on the basis of merit. Kekaumenos describes how incompetent
judges who could be subjects of laughter ( ) were prosper
ing,while others wise and honest ( ) were neglected by
the emperors83. Kekaumenos advises the future strategos that he secure that
the judges pronounce their judgement fearing God and according to justice
( )84. For it was a common practice
that they ask from the litigants a fee larger than the amount of the value of
the lawsuit and not only in cases of debts but also in other kinds of charges85.
Some problems of the Byzantine judicial system are illustrated in a unique
way in the letters of Michael Psellos. Psellos exercised his influence in favour
of his friends and other individuals he supported, in several letters addressed
to judges86. This appears to be a form of "prostasia" (patronage), attested in
Byzantine sources in various forms87. In this respect some of Psellos' letters
are particularly interesting. Psellos is asking the judges to favour his protgs
on account of friendship, explicitly expressed88. In a letter to the krites of
Opsikion he asks that the judge show himself a true friend and precise judge
in his decision, that he should strengthen friendship with justice and viceversa89. In another letter, friendship is placed above the laws ( ,
)90. But Psellos is not consistent: in another case he
declares that friendship carries a great weight in a most just balance only if
81. Ibidem, p. 128.
82. Ibidem, p. 236.
83. Ibidem, p. 276.
84. Ibidem, p. 284. Similar statements are found in other strategika: G.T. Denn
is-E. Gamillscheg, Das Strategikon des Maiirikios, Vienna 1981, p. 70 11. 36-38:

.
85. LiTAVRiN, Kekavmena, op. cit., p. 284:
, .
86. Psellos, Scripta minora, op. cit., 2, ep. 50-52, 66, 77, 81-84, 99, 107, 140, 142,
150-2, 154, 162-3, 166, 171-2, 182, 221, 243, 247, 250-1.
87. Cf. H. Saradi, On the "Archontike" and "Ekklesiastike Dynasteia" and "Prostasia" in Byzantium, op. cil., p. 314 ff. For references to the sources of late antiquity cf.
Jones, Later Roman Empire, op. cit., p. 503-4.
88. Psellos, Scripta minora, 2, p. 84 11. 4-6 ( ... ,
), . 90 1. 13 ( ), . 100 1. 6 ( ), . 112 1. 24
( ), . 113 1. 24 ( ), . 176 11. 10-11 ( ,
), . 177 11. 10-11, . 195 1. 28, . 263 1. 23.
89. Ibidem, p. 128 II. 3-7.
90. Ibidem, p. 169 11. 18-19.

186

HELEN SARADI

combined with justice91. In another letter, however, he also stresses that

bribery of judges is forbidden and that they should not favour individuals in
the trials92.
In some other letters Psellos' interference is more carefully formulated. In
one such letter he is asking a judge to make a decision favourable to a poor
man: Psellos is not demanding anything specific, such as to judge the litigant
in a particular way, or to keep away the person who acts despitfully, or to
stop the neighbour who is doing wrong to him, but to assist him when he finds
himself in an annoying and painful situation 93. In a similar way is formulated
another letter to a judge in favour of a friend of his father. Psellos is convin
ced
that the judge will deal with the man's affairs in a spirit of justice; thus
he is only asking him to show mercy and to treat him gently as a judicial
officer ( , ) 94.
Psellos asks the judge of Philadelphia to consider their friendship in a
judicial decision: he may, however, wish to choose a way more appropriate to
the law and justice ( ). For a reexamination of a
case a second or third time may prove that the first decision was superficial
(), not taking into consideration the underlying basic elements
of the case. An argument, which Psellos admitted was sophistic, was invented
to persuade the judge that he should be generous toward the local inhabi
tants: Aristotle and Plato were not reluctant to change their earlier views. He
advises the judge to compare his friendship to the correct "dikaion".
Although he declares he allows him to choose the laws rather than friendship
with him, he finally insists that the judge contrive something favourable to
the people95. In another letter Psellos advises a judge to reserve the right to
judge cases which are beneficial to the local inhabitants. For he should not
accept to be the judge of all cases, nor should he deny the right of a lawsuit to
plaintiffs96.
The letters of Psellos are also interesting from another point of view: they
define the generally accepted qualities of the judges. In a letter to the Doukas
Caesar, Psellos recommends a judge on account of his qualities: he had shown
that he had a judicial soul ( ) for, while he was holding the
office of kourator, he dealt with the matters arising with precise justice97. The
integrity and virtue of the judge of Philadelphia (he was praised by the
people of the area)98 did not impede Psellos to ask for a favour. The qualities
of a judge are defined by Psellos as benevolence, wisdom and justice (
)99, while judicial power is placed next to thinking with preci91. Ibidem, p. 192 11. 7-10: , (
) . .
92. Ibidem, . 191 II. 21-22:
.
93. Psellos, Sathas, op. cit., p. 489.
94. Ibidem, p. 258 (no 20).
95. Ibidem, p. 460-1.
96. Ibidem, p. 395.
97. Ibidem, p. 399.
98. Ibidem, p. 460.
99. Ibidem, p. 274.

THE BYZANTINE TRIBUNALS (9th-12th C.)

187

sion ( )100. In other

letters are stressed virtue, a straightforward attitude, good will, kindness, a
philosophical soul and precision101. Philanthropia is often emphasized as
more important than the strict application of law10'2. In a letter addressed to
the proedros Constantine, the niece of the patriarch Michael, Psellos
reproaches the proedros for applying the law, while judges should be ready to
ignore the law on account of the principle of philanthropia l03. While compass
ion
for the penetes is advised, a judge is urged not to be influenced in his
decisions by the poor appearance of the litigant, for in the past he was a very
wealthy man 104. We should note here that only in a few passages in Psellos'
letters is justice defined in social terms (
) 105. According to another letter, the
qualities of the krites of Opsikion are the subject of a discussion between the
emperor and the krites' potential successors, the logothetes and Psellos: the
emperor wished that the krites remain in his position and he praised his
straightforward attitude 106.
Although judicial corruption is attested in the sources of all periods as a
serious problem of the Byzantine judiciary, it appears it became a serious
concern of the imperial administration in the 11th c: in a letter addressed to
the basilikoi notarioi Psellos enumerates their various duties, among which is
the handling of such cases107. In the same century John Mauropous describes
as corrupted the entire administrative system ( '
, , ...
) 108.
In the Peira there is reference to several cases of irregularities and corrup
tion
in the judicial system. We have already mentioned two cases in which
judges by using their authority forced penetes into illegal transactions for the
benefit of either the judge himself or a certain dynatos. In the title 51 on
judges ( ) other cases are mentioned. In the 51, 1 it is stressed that
it is against the law to entrust cases to judges who are related to one of the
litigants (in a family relationship, such as a father-son, or in a business rela
tionship,
such as owner-tenant). Such relationships would arouse suspicions of
100. Ibidem, p. 282; cf. also p. 298: ; . 184:
.
101. Psellos, Scripta minora, op. cit., 2, p. 83 11. 2-5, p. 100 1. 15, p. 128 1. 13, p. 191
1. 21, p. 192 11. 3-4, p. 193 11. 19-20, p. 262 11. 16-17; p. 90: ,
, , ,
, , .
102. Ibidem, . 47 11. 20-25: 6
.
103. Ibidem, p. 136 1. 24.
104. Ibidem, p. 100 11. 8 ff .
105. Ibidem, p. 297.
106. Psellos, Sathas, op. cit., p. 483: .
107. Ibidem, p. 486: . Cf. also Scripta minora,
op. cit., 1, p. 7 11. 23-26.
108. Johannis Euchaitorum metropolitae quae in codice valicano graeco 676 aupersunt,
d. P. de Lagarde, C.ttingen 1882. p. 170 (no 185).

188

HELEN SARADI

bias in judicial decisions 109. The section 16 of the same title deals with proce
dures in cases of disagreements between the judges: the decision of the major
ityof the judges of a court could be subject to an appeal which might correct
the abuse and the ignorance which resulted from that decision. It is inter
esting to note that in this text the ignorance of the judges is expressed with
two synonyms: , . The question of ignorance is very close to the
central concern of the age, that of legal education. The section 19 repeats the
Novel 45 of Leo VI that the judges should sign their decisions. The 51, 29
explains the reasons why a litigant can transfer his case to another judge: he
should be able to prove within eighteen days that the judge was either his
enemy (), or irascible (), or friend of his adversary110. The
section 32 cites the laws according to which the judges should apply the
existing laws in pronouncing their judgements, and they should neither
change them nor misinterpret them (Basil. 2, 1, 33; 29; 36).
Irregularities in court procedure are described in a proslagma of the emper
orManuel Komnenos of the year 1166. In the prooimion the role of the
emperor in securing justice is particularly stressed: he is .
topos that we have seen in earlier legislative texts, that of the divine origin of
justice, justifies the concern of the emperor about the problems of judicial
practice: "For if the righteous Lord loveth righteousness, it is doubtless fi
tting that he who has been chosen by Him to rule as emperor over those on
earth be righteous and, also, that he make right judgement a much desired
act of those put forward by him to sit in judgement and that he acknowledge
it (as such)" 1]1. The emperor gives an account of the social problems caused
by the judges' negligence: "... those appointed by My Majesty to the vindica
tion
of those who have been wronged should at least not be more negligent
() with regard to this than those who commit illegal acts. As it is,
(My Majesty) sees many men becoming wounded by a greedy and unjust
hand, enduring the loss of lands and dwellings and being deprived of other
things, then knocking on the doors of the courts continuously and wasting no
end of time, and in addition to obtaining no treatment from that place,
irritating their sores to a worse and more painful degree, swallowing the lees
of injustice from the source where they were hoping to obtain legal remedy".
The emperor blames the idleness of the judges (
) for the lawsuits which never ended and which were often transmit
ted
to subsequent generations112. In order to put an end to this evil ()
109. Such cases may be compared to those described in the Novel of the emperor
Tiberius, according to which the administrators of the imperial oikoi were judging cases
of these oikoi.
1 10. JGB, 4, p. 218; p. 219: ,
. Cf. also Nov. 53, cap. Ill 1 (a. 537): ... '
, ,
)...
111. Cf. R. Macrides, Justice under Manuel I Komnenos: Four Novels on Court
Business and Murder, FM VI, Frankfurt 1984, p. 122 (= JGR, 1, p. 389).
112. The problem appears already in the earlier legislation: in 530 Justinian regula
ted
the judicial procedure so that litigations would not become perpetual (CJ 3, 1, 11).
Later the slowness of a judicial procedure is described in various sources. In a docu-

THE BYZANTINE TRIBUNALS (9th- 12th C.)

189

and accelerate the court procedure he introduced measures to secure the

correct functioning of the courts. They are defined as . The subordi
nate
judges were distributed unequally among the courts of the capital, while
the presidents of these courts were convening irregularly. In the future the
subordinate judges and the president of the court ( ' *
) should be all
ocated to different tribunals at different time periods (11. 36-38; 101-5; 217226). Each court should convene three times a week (11. 41-43). The second
section (11. 54-82) of the prostagma deals with another aspect of corruption of
the judicial system: the sophistic arguments and intentional delays of the
lawyers; they should maintain modesty and should not sit with the judges in
the process of the trials (11. 59-60), and they should take turns speaking rather
than all speak at the same time. Further the text offers a description of the
judicial procedure. After the two parties have presented the evidence and
their arguments, the judges should deliberate. If the judges disagree with
each other ( ), the lawyers should remain quiet,
"while the judges examine the disputed matter among themselves and
without partiality of any kind all come together in one (opinion) and declare
what has been decided by them" ( ' : 11. 68-69). But if the
judges disagree among themselves, the vote of those with whom the president
of the court agrees will prevail.
The judges are threatened with great penalties, even mutilations u;\ if they
do not "reach their resolutions and decisions with extreme care" (
: 11. 80-81). In the future they would be
removed from their office if they caused delays in the judicial procedure
(11. 97-98). The social function of the judges is again stressed and it explains
the severity of the measure: "For how can there be justice when those chosen
to sit in judgement for the salvation of those who fare ill (
) then use the function to oppress these people (
), yet still head judicial offices or sit in judgement along with their
heads?" (11. 98-101). Further the legislator stipulates the fines included in the
agreements of transactions as a warranty, and again he blames the judges for
neglecting them: "... because judges show kindness where it does not befit,
and are softened and weakened by others' misfortunes" (11. 203-4:
' , ).
What makes this Novel interesting is that the delays of judicial procedure
are described as causing injustices of social nature: "... many men becoming
ment of Iviron (Ades d' Iviron, no 27; 1042), for example, a dispute between the monast
eriesof Iviron and Lavra regarding a zeugelation was brought to the court of the krites
of Voleron, Strymon and Thessalonica. According to this text the judge wasted time
() in the kastron of Hierissos, while the defendant (Lavra) did not provide
the documents it had been asked. As a result the case was entrusted to ecclesiastical
notaries who settled the dispute with some local inhabitants from Hierissos. The judge
only continued the document of the agreement with his seal (ef. p. 244).
113. Mac.rides. op. cil., p. 175.

190

HELEN SARADI

wounded by a greedy and unjust hand, enduring the loss of lands and dwell
ings and being deprived of other things..."114.
With another Novel of the same year Manuel Komnenos reduces the hol
idays for the courts. This measure was intended to correct an improper situa
tion: the courts often did not operate on account of religious holidays115.
According to the earlier legislation and the Novel 54 of Leo VI, Sunday was
the day off for the judges116.
In the Novels of Manuel Komnenos the measures with which the emperor
attempted to correct judicial procedure were justified by the need to correct
social injustice 117: the theme of the divine origin of justice, which is found in
earlier Byzantine legislative texts, is equally stressed. Thus once again, as
earlier in the Ecloga, social justice is dictated by the Christian religion, sup
ported
by quotations from the Scriptures, and requires an incorruptible judi
cial system. The measures introduced by Manuel Komnenos, in spite of the
emphasis on social concerns and their religious justification with a forceful
rhetorical style, deal only with the technicalities of judicial procedure rather
than with the complex problems deriving from the nature of the Byzantine
judicial office.
For the purpose of the present study it will be interesting to examine how
incorrect judicial decisions are explained in other sources. Chomatianos offers
some interesting examples. In one of his decisions he explains that complex
situations of life produce various lawsuits and sometimes unusual judicial
decisions. In such cases the judgements do not appear correct, while the
judges are excused if they had pronounced their judgement from naivete
rather than devious intention, or wrong interpretations of the laws, or misun
derstanding
of their precise meaning. It is for these reasons that the laws
have instituted appeals of the existing decisions, so that injustice, the inexpe
rience or the ignorance of the judges might be remedied with legal means ('
, , ,
) 118. Then he examines a decision of the imperial tribunal: the
judges should not have yielded to the influence of power but rather to God
and to natural justice119; they should have examined the case carefully
( ). The judges of other tribunals which had dealt with the case
earlier, neglected to read a document of dialysis and did not examine the
arguments about intimidation having been exercised against one of the lit
igants.
Other irregularities and judicial incompetence are also discerned by
114. II. 21-23: ,
.
115. Ibidem, p. 140-155.
1 16. On this Novel cf. Sp. . Troianos, 54
, . . , Patrai 1990, . 119127.
117. Cf. the remarks of Macrides, op. cit., p. 100-2.
118. Demetrios Chomatianos, J. Pitra, Analecta sacra et classica Spicilegio Solesmensi parata, Paris, Rome 1891, col. 456.
1 19. Ibidem, col. 456: , ; cf. also col. 451 :
' .

THE BYZANTINE TRIBUNALS (9th- 12th C.)

191

Chomatianos 12tl. In his account of the earlier judicial decisions dealing with
his case, the plaintiff mentions how the tribunal of Thessalonica composed by
the doux of Thessalonica and other ecclesiastics and archons, had been divi
ded in two dissident factions121. Chomatianos is particularly commenting on
the incorrect decision of the imperial tribunal: the emperor must follow the
laws of the so-called dikaiolikon dikaion (regarding transactions, etc.)1 , for
he should act according to the laws ( ).
From another decision of Ghomatianos we learn that the judges of a prak/or's tribunal failed to examine whether an ekmartyrion document (deposition
of witnesses) was false or original 12:5. In other cases Ghomatianos reproaches
the judges' incompetence when they had used ordeal as proof of guilt or
innocence121. He declares that ordeal which was considered by many people
as replacing oath, was against the ecclesiastical and civil laws. Its origin was
barbaric, while on the other hand some people who were guilty succeeded in
proving their innocence by using charms and spells. Again in a case of adul
tery Ghomatianos declined to accept ordeal suggested by the plaintiff, as
being a barbaric custom foreign to the civil and ecclesiastical laws125.
More interesting for our investigation is a letter of Chomatianos addressed
to the archon of Berroia 12ti. He is advising him regarding a legal case. Chomat
ianos describes the qualities of the provincial judge: he must preserve the
ancestral customs and laws, he must protect the weak, he must be a scale of
justice. Chomatianos recommends leniency for an inhabitant of Berroia who
wanted to bring a lawsuit before the judge's court. Although this individual
knew how just and direct the judge was, he thought it would be more secure
to be recommended by Chomatianos. In his letter Chomatianos explains the
case and recommends a legal approach according to the laws which he cites.
In concluding he recommends that the judge examine his points carefully,
find the truth and pronounce a judgement according to the laws and justice
(). Then he will be rewarded by God who will save him from any mis
fortune
127.
A similar attitude is expressed in one of the letters of John Mauropous,
bishop of Euchaita, addressed to a judge, which deserves particular attention.
The metropolitan praises the justice of the judge's wisdom and authority, his
decisions, his deliberations, his commands and judgements; judicature is pla
ced next to logic ( ); by citing them together, John Mau
ropous
suggests that they complement each other in pronouncing judge
ments. He recognizes the judge's decision regarding the case of a penes, as
120. Ibidem, col. 457.
121. Ibidem, col. 451: / , .
122. Ibidem, col. 458-9.
123. Ibidem, col. 406: , ,
.
124. Ibidem, col. 389-390. On the medieval ordeal cf. R. Barti.ktt, Trial by Water
and Fire: the Medieval .Judicial Ordeal, Oxford 1986.
125. Chomatianos. op. rit., col. 525-7.
126. Ibidem, col. 126-7.
127. Ibidem, col. 132: ,
.

192

HELEN SARADI

being correct and fair. He is only asking for a clarification of some technical
details: which one of the litigants would pay the expenses of the lawsuit. He
reminds him that in interpreting uncertain situations, the laws demand the
apart from the assistance and appropriate treatment which must be
given to those who find themselves in difficulties ]2S. He is urging the judge to
apply the principle of and the in accordance with the
law and his personal character. In concluding Mauropous advises the judge to
keep these injunctions in mind fearing divine punishment (
). One
century later Eustathios of Thessalonica describes justice in similar terms:
one should not commit injustice in view of God's punishment; one should not
favour individuals in judgement, nor should one prefer a present to justice 129.
The duty of the Byzantine judge is understood in religious terms rather
than social or legal not only in ecclesiastical texts, but also in legislative ones
(such as the decree of Leo VI) and other sources like some letters of Psellos.
Thus, for example, in a letter addressed to the judge of Optimaton, Psellos is
asking him to favour one of his friends on account of justice, friendship and
reward from God ( ) 130. In another
letter he assures the krites of Thrace that if he favours some monks he will be
awarded a greater compensation ( ) for such an act would
not be only very just but also according to divine will () 131. Simi
larassurances are expressed in several other letters of Psellos addressed to
judges 132.
The problems of the Byzantine judicial system which emerge from the
above sources are persistant in all centuries: bribery of the judges, pressure
by the dynatoi, personal motivations in deliberating about their judgements.
It remains to examine one more aspect of the Byzantine judicial system in
order to complete the picture and evaluate the above conclusions: the legal
training of the judges seen as the desired solution for the judicial corruption
by the emperors of the civil party in the 11th c.
The legal training of the Byzantine judges varied from one period to ano
ther and from the capital to the provinces. Usually it was a personal matter.
We have seen that the evidence of the Peira has been studied in this respect
with contradictory conclusions. Some scholars have discerned indications of
profound knowledge and responsible application of the laws; others stress
their flexible and liberal interpretation. Both views hold some truth: it would
appear that even when the Byzantine judge had very good knowledge of the
laws, he might demonstrate remarkable flexibility in interpreting them
128. Mauropous, Lagarde, op. cit., p. 73:
... On the
in the judicial decisions cf. also Peira 51, 22.
129. Eustathios of Thessalonica, ed. Th.L.F. Tafel, Eustathii meiropolitae Thessalonicensis opuscula, Frankfurt, 1832, Or. XVIII, p. 152.
130. Psellos, Scripta minora, op. cit., 2, p. 84 (ep. 53).
131. Ibidem, p. 108 {ep. 77).
132. Ibidem, p. 1 12 (ep. 83); p. 299 (ep. 250): , '
; . 300 (ep. 251).

THE BYZANTINE TRIBUNALS (9th-12th C.)

193

because he applied the principle of for a variety of reasons. Thus, for

example, Eustathios Romaios justifies his decision in a case of adultery where
a priest was involved with quotations from Homer, because he apparently
wanted to justify a previous decision of the patriarchal tribunal 133. Other
texts such as imperial laws refer to debates between judges of the same tribu
nalon particular controversial questions. Specific references to the laws form
the arguments of both disagreeing parties of the tribunals 134. In an imperial
semeiosis of Alexios Komnenos of the year 1082 the judges of a tribunal of
Constantinople maintained that the arguments of the parties were not foun
ded on the laws ('
) 135.
In any case there is no doubt that the legal competence of the Byzantine
judges and its effects on the Byzantine judicial system is closely related to
the available legal education. Looking at the problems of the Byzantine judi
cial system in this context, we will discern the attitudes of the State toward
the profession of the judges and the efforts to create a more efficient judiciary
through legal training.
From the 7th c. onwards judicial training conformed to the conditions of
legal education which had been created at the end of the early Byzantine
period. From the second half of the 6th c. the professors of law were not
anymore antecessores, but . H.J. Scheltema has shown that the
professors of law did not have a theoretical background, but were practicing
lawyers 136. Thus right after the great development of legal science at the time
of Justinian, there was a clear decline in legal studies. We know nothing
about the juridical education in Byzantium during the so-called Byzantine
dark age (7th and 8th c). The imperial legislation of this period, however,
suggests a remarkable interest in law137.
It is only in the 9th c. that we hear again about the education of jurists.
According to the Scriptor Incertus Constantine-Antony Kassimatas, who
later became the patriarch Antony I, was in the school of Sphorakiou

133. Peira 25, 25. Cf. S. Perentides, Trois notes sur la tradition de la Peira,
' ' 8 ',
27-28, 1980-1, 1985, . 669-670. It appears that, references to classical texts are not
only a consequence of the focus of the jurists' education in classics and rhetoric (cf.
Oikonomides, The "Peira" of Eustathios Romaios, op. cit., p. 185) but they might be
dictated by other principles, such as in the Peira 25, 25. Cf. also D. Simon, Rechtsfindung am byzantinischen Reichsgericht, op. cit., p. 26.
134. Cf., for example, Novel of Michael VII Doukas (1075; JGR, 1, p. 280); Novels
of Alexios Komnenos (1082, 1092; Ibidem, p. 293, 295, 298-9, 319 ff.), etc.; on evidence
from the Peira cf. Oikonomides, The "Peira" of Eustathios Romaios, op. cit., p. 187-8.
135. JGR, 1, p. 300.
136. H.J. Scheltema, L enseignement de droit des antcesseurs, Leiden 1970.
137. Cf. E.E. Lipsic, Pravo i sud Vizantii iv-vni vu., Leningrad 1976, p. 193-202;
idem, Vizantijskoe pravo period mezdu Eklogoj i Prochironom (Castnaja Rasprostranennaja Ekloga), VV 36, 1974, p. 45-72; D. Simon, Zur Ehegesetzgebung der Isaurier, FM 1. Frankfurt 1967, p. 16-43.

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HELEN SARADI

(one of the districts of Constantinople) and he taught children 138. In this

context the term nomikos designates the teacher of law rather than a
notary 1:W. The school at Sphorakiou has been identified with the school at
Saint Theodore of Sphorakiou attested later 140. The next piece of information
comes from the Book of the Prefect. The future taboullarioi received their
education both general and legal from the teachers of the corporation: the
paidodidaskaloi nomikoi and the didaskaloi141 . The first were considered more
important since their contribution () to the corporation as a fee for
getting their office was larger than the latter. In another section of the Book
of the Prefect there is a question concerning other schools: the nomikoi and
the paidodidaskaloi should not accept children from other schools unless they
had paid the fees proportionate to the time of their training there 142. There is
no reference to the type of training offered by the other schools: was the legal
education included in the curriculum and, if so, at what level was it offered?
We know nothing about higher education in law. In the sources on the
reorganisation of the "University" of Constantinople by Bardas (the Univers
ity
of Magnaura) and later by Constantine Porphyrogenitos, the legal science
is not mentioned. However, the Continuatus of Theophanes writes that the
higher education offered by the University of Constantine Porphyrogenitos
was meant to train future judges, secretaries and metropolitans (
) 143. It has been suggested that the jurists were

138. Scriptor Incertus, ed. Bonn, p. 350; Pseudo-Symeon, ed. Bonn, p. 406; cf. also
R. Brownng, Notes on the "Scriptor Incertus de Leone Armenio", Byz. 35, 1965,
p. 404; P. Lemerle, Le premier humanisme byzantin. Notes et remarques sur enseigne
ment
et culture Byzance des origines au xe sicle, Paris 1971, p. 141. Cf. also P. Speck,
Die kaiserliche Universitt von Konstantinopel, Munich 1974, p. 41, n. 24. It has been
suggested that according to some sources (the 71st canon of the counsil in Troullo and a
poem of Christophoros Mitylenaios) there existed some private schools of law (cf.
W. Wolska-Conus, L'cole de droit, et l'enseignement du droit Byzance au xip sicle:
Xiphilin et Psellos, TM 7, 1979, p. 6-7); for a different view cf. II. Saradi, Le notariat
byzantin du ixe au xve sicles, Athens 1991, p. 155.
139. Cf. the remarks of Lemerle, Le premier humanisme, op. cit., n. 133.
140. F. Fuchs, Die hheren Schulen von Konstantinopel im Mittelalter, Amsterdam
1964, p. 49-50.
141. Cf. . Le Livre du Prfet ou l'dil de l'empe
reurLon le Sage sur les corporations de Constantinople, ed. J. Nicole, Genve
1893 = , The Book of the Eparch Le Livre du Prfet with an
Introduction by Prof. I. Dujcev, Var. Bepr., London 1970. On the date of the Book of
the Prefect cf. J. Kder, berlegungen zu Aufbau und Entstehung des Eparchikon
Biblion, . Essays presented to Joan Hussey for her 80th birthday, Athens 1988,
p. 85-97, esp. 89. On the paidodidaskaloi nomikoi and the didaskaloi cf. W. WolskaConus, Les termes et du "Livre de l'parque", TM 8, 1981 ,
p. 532-541. For a discussion and bibliographical references cf. IL Saradi, Le notariat
byzantin, op. cit., p. 92-93.
142. Cf. the discussion of this section by Lemerle, Le premier humanisme, op. cit.,
p. 262-3.
143. Theophanes Continuatus VI, 14. Cf. Lemerle, Le premier humanisme, p. 264;
Speck, op. cit., p. 26.

THE BYZANTINE TRIBUNALS (9th- 12th C.)

195

educated in the school of rhetoric of the University 144. One should note that
although legal training is absent from the higher education of the period of
the Macedonian dynasty, it is in this period that the greatest Byzantine
reorganisation of the old legislation took place (the Basilica) and that other
juridical works such as the Synopsis major of the Basilica with its appendices
had been composed 145. Although the legislation of the Macedonian emperors
was intended to help the formation of future jurists and make the use of the
legal texts easier in practice, we cannot conclude that this activity served a
public educational law program 146. But the interest of judges in manuals of
law is attested in the Synopsis major: N. Svoronos has shown that there were
several editions of the Synopsis major from the 10th to the 11th c. 147.
A major change in the legal education took place in the 11th c. with the
foundation of a new school of law by the emperor Constantine IX Monomachos. In the prooimion of the Novel with which the school was established,
the emperor stresses the importance of the laws for the State. The most
appropriate concern (, , ) for an emperor is to care for
the laws 148. Correct judgements are an honour for the emperor and his
concern with justice is an achievement. But he cannot apply justice except
through law {cap. 1). As in earlier legislative texts the divine origin of laws is
stressed ( ") 149; law may be defined as the art
of the good and of equality; it regulates the entire lives of men and sets an
admirable order into all deeds; for order is the greatest and it rules all
earthly and celestial matters (cap. 2). The importance of law was recognized
by all previous emperors and it is manifested in the interest they had shown
in translating the ancient laws from Latin, in codifying them by eliminating
laws which were obsolete, and by clarifying others (cap. 3). The emperor is
reproaching his predessessors for neglecting the teaching of laws. Since a
public school of law did not exist, the notaries and lawyers had to provide
evidence of their training: they had to show who their teachers were and for
how long they had studied (cap. 4). Thus the jurists were trained in private
schools in which they had adopted their teachers' personal views rather than
the real meaning of the laws. This resulted in a serious confusion in the
judgements () of all matters, for the judges with a few exceptions (those
who had studied the laws with great pain) did not agree between themselves,
but pronounced different judgements based on their diverse training. In such
144. W. Wolska-Conus, L'cole de droit, op. cit., p. 9.
145. N. Svoronos, La Synopsis major des Basiliques et ses appendices , Paris 1964,
p. 161-2 and passim.
146. Cf. P.W.A. Immink - H.J. Scheltema, At the Roots of Mediaeval Society, Oslo
1958, p. 108-131, esp. p. 127-8; N.J. Pantazopoulos, Carattere ed aspetti dlia politica legislative dlia dinastia Macedone, Studi in onore di Edoardo Volterra, 5, Milan
1971, p. 155-6.
147. Svoronos, op. cit., passim and his conclusions p. 190-1.
148. Cf. also Psellos, Scripta minora, op. cit., 1, p. 5 11. 12-17:
, '
, , ,
, .
149. ibidem, p. 21 II. 25-28.

196

HELEN SARADI

disagreements no one was willing to compromise but on account of his pride

and ambition each one wanted to appear that he knew better than the others;
thus disagreements and conflicts were arising. This situation became an
object of laughter, for those who were promising others to solve the uncertain
cases, appeared to be contradicting themselves 150.
The emperor established the school of law in the monastery of Magnaura
and appointed the illousirios, krites of the hippodrome and exaktor John
Xiphilinos as the law teacher (nomophylax). He would teach his students to
safeguard the laws (cap. 10a). The nomophylax had profound knowledge and
experience of the legal science and what was even more important, a moral
personality. For the emperor wanted the practice of laws to be kept away
from those who used sophistic arguments, which should be clearly disti
nguished from rhetoric (cap. 18). In the section 23 the emperor addresses the
future students of the school: unlike for the students of law in the past, for
the students of this school the laws would not be anymore incomprehensible
like oracles: the students would not need other means to clarify them, nor
should they guess their meaning with uncertainty; but they would learn the
right interpretation ( ,
) from the nomophylax himself. At the
end the emperor promises them that they would be rewarded, for they would
have access to high public offices of the imperial administration (cap. 25). The
students were also to receive a written "degree", which has been considered
"the earliest "diploma" in the history of European civilization"151.
It has been suggested that the new school of law was founded to support
John Xiphilinos who was appointed nomophylax, and who together with Psellos had a private school of law. According to the same theory in the same
school was taught philosophy and rhetoric and that as a result of competition
between the students, it was divided in two parts and each one of them

150. Novella constitutio saec. xi medii..., ed. A. Salac, Prague 1954, sect. 5:

, ,
, , '
( )
,

, '
,
' ,
; On this Novel cf.
J. Cvelter, The Authorship of the Novel on the Reform of Legal Education at,
Constantinople, Eos 48, 1956 (Symbolae Raphaeli Taubenschlag dedicatae II), p. 297-328;
E. Follieri, Sulla Novella promulgata da Costantino IX Monomaco per la restaurazione dlia Facolt giuridica a Costantinopoli, Sludi in onore di Edoardo Vollerra, II,
Milan 1971, p. 647-664; J. Lefort, Rhtorique et politique: trois discours de Jean
Mauropous en 1047, TM 6, 1976, p. 279-280; W. Wolska-Conus, L'cole de droit, op.
cit., p. 3ff.
151. Oikonomides, The "Peira" of Eustathios Romaios, op. cit., p. 190.

THE BYZANTINE TRIBUNALS (9th-12tll C.)

197

became an idependent public school of high education sanctioned by the

State152. This view, however, is not generally accepted153.
In the treatise the situation of the judicial system is descri
bed
in similar terms. In the introduction complaints about the incompetence
of the judges are expressed: it would have been appropriate and beneficial to
the laws, if the jurists showed modesty, convinced that they were studying a
difficult science, and if they studied each one of the laws on its own in orderto discover its precise meaning and thus decided about legal problems. Ins
tead, they make judgements without having any knowledge of the laws (
).
The purpose of the treatise is to clarify some questions of the Justinianic
Novels so that the judges would be able to discern the precise meaning of the
law and thus the litigants would not suffer injustice154.
The organisation of the public school of law gave an impetus to the legal
science, or perhaps it coincides with its development. In fact it is generally
accepted that most of the scholia of the Basilica were written by jurists of the
11th c. 155. The compilation of the ancient and new scholia was perhaps the
work of John Xiphilinos 156. From the same period we have an important
production of legal literature for practical-educational purposes. Most likely
the scholia of John nomophylax in the Basilica were teaching material for his
courses 157. Svoronos suggested that the versions of the Synopsis major Basilicorum were produced by the law school of the 11th c. 158. The Synopsis Nomon
of Michael Psellos written in verses was intended for the emperor Michael VII
Doukas. Psellos also wrote six other treatises on legal subjects 159. Another
work is the of the judge Michael Attaleiates, while others were
included in the appendices of the Synopsis major of the Basilica 160. Treatises
152. Cf. W. Wolska-Conus, Les coles de Psellos et de Xiphilin sous Constantin IX
Monomaque, TM 6, 1976, p. 223-243; Idem, L'cole de droit, op. cit., p. 1-106.
153. P. Lemerle, Cinq tudes sur le xie sicle byzantin, Paris 1977, p. 205-6.
154. JGB, 3, p. 345.
155. On establishing chronological criteria for the scholia of the Basilica cf. H.J.
Scheltema, ber die angebliche Anonymuskatene, TVB 25, 1957, p. 296 f f.; Idem,
Subseciva III. Die Verweisungen bei den frhbyzantinischen Rechtsgelehrten, TVB 30,
1962, p. 355 ff.
156. Cf. A. ScHMiNCK, Studien, op. cit., p. 29.
157. Cf. W. Wolska-Conus, L'cole de droit, op. cit., p. 31 ff.; A. Berger, On the
so-called Tractatus de peculiis, Scritti in onore di Contardo Ferrini, 3, Milan 1948,
p. 174-210; Svoronos, op. cit., p. 197. Similarities between the Novel of Constantine
Monomachos and the Tractatus de peculiis have been discerned: Berger, op. cit.,
p. 179-180; W. Wolska-Conus, L'cole de droit, op. cit., p. 32.
158. Svoronos, op. cit., p. 172-3. For a different view cf. A. P. Kazhdan and Ann
Wharton Epstein, Change in Byzantine Culture in the Eleventh and Twelfth Centuries,
Berkeley, Los Angeles, London 1985, p. 146 n. 64 who stress that Svoronos' suggestion
is hypothetical.
159. Cf. G. Weiss, Ostrmische Beamte im Spiegel der Schriften des Michael Psellos,
Mnchen 1973, p. 283 ff.; W. Wolska-Conus, L'cole de droit, op. cit., p. 60 ff.; M. Th.
Fgen, Zum Rechtsunterricht, des Michael Psellos, JOB 32/2, 1982, p. 291-302.
160. Svoronos, op. cit. Other treatises of the same period: M. Th. Fgen, Zur
Einteilung der Digesten: Drei byzantinische Traktate, FM V, Frankfurt 1982, p. 1-26;

198

HELEN SARAD1

of the dikaiophylax of Thessalonica George Phobenos and of the magistros

Eustathios Romaios as well as treatises and the scholia of the Basilica by
Constantine Garidas belong to the same period; finally the most remarkable
works are the Meditatio de nudis pactis 161, the Tractatus de peculiis 162 and the
Peira of Eustathios Romaios.
The school of law did not survive long. It offered theoretical training which
did not respond to the practical needs of the professionals who were expected
to be trained there 163. Thus later in the century, Psellos in his Synopsis
Nomon advised the emperor Michael Doukas to take care of the laws, for
justice should be preserved in the trials (
) 164.
The new direction in the Byzantine judicial system which Constantine
Monomachos tried to introduce with his Novel had no future. It was abando
ned
very soon and the school of law disappeared. Thus in the 12th c. Balsamon speaks about those who were held responsible for incorrect judge
ments 165: the archons or were not expected to
know the laws with precision, for they were busy with other administrative
activities. It is interesting to note that Balsamon draws on the vocabulary of
the Justinianic legislation: the same argument is expressed in the 82nd Novel
of Justinian justifying the role of the assessors alongside the magistrates 16f);
therefore according to Balsamon if they pronounced judgements because of

R. Meijering, ' . Two Byzantine Treatises on Legal Actions, FM VIII,

Frankfurt am Main 1990, p. 1-152.
161 H. Monnier-G. Platon, La meditatio de nudis pactis, Paris 1915; II. Monnier,
Etudes de droit byzantin (Var. Ftepr., London 1975). On the author of this work cf. W.
Wolska-Conus, L'cole de droit, op. cit., p. 37 ff.; Schmtnck, op. cit., p. 39 ff. On the
educational purpose of the treatise cf. W. Wolska-Conus, L'cole de droit, op. cit.,
p. 36 and references to earlier bibliography: p. 49-50.
162. Ed. Heimbach, ', vol. 2, p. 247-260; new ed. by M. Th. Fgen and D.
Simon. Other treatises are the Tractatus de creditis (JGR, 7, p. 348-354; new ed. by L.
Burgmann) and a treatise on dowry (M. Th. Fgen, Original und Abbild. Ein byzanti
nischer Traktat zur juristischen Fiktion, FM VI, p. 63-86).
163. Cf. the conclusions of W. Wolska-Conus, L'cole de droit, op. cit., p. 53: "Sur
le plan thorique, certes, il marque une dernire reprise des tudes scientifiques de droit
romain, mais sur le plan pratique et social il n'a pas rpondu aux esprances qui l'ont
suscit".
164. G. Weiss. Die "Synopsis legum" des Michael Psellos, FM II, Frankfurt 1977,
p. 159, v. 5.
165. Rhalles-Potles, op. cit., 3, p. 339: ,
,
, '
,
, . ' . ' . '.
, ,
' . , ' ,
, , ,
, , "
, '
.
166. Prooimion: ' .

THE BYZANTINE TRIBUNALS (9th- 12th C.)

199

inexperience, they should be forgiven; their synedrui should be held liable and
they should be punished, if their judgements were against the laws; the kritai,
however, whose duty was only to judge, if they did so against the laws,
should be punished on account of dolos. Balsamon refers to a law of the
Basilica 7, 3, 24 167. Our canon law commentator explains that this is based on
the law on (inexperience), very close to (negligence) and that of
dolos, since someone who does not know what he claimed he knew, commits
dolos. This of course applies to the opposed to the ecclesiasti
cal
judges. Thus Balsamon recognizes three groups involved in the Byzantine
judicial system: the arehons, the symponoi and the kritai. Knowledge of the
laws was required only for the last two. The word used by Balsamon is
for both the symponoi and the kritai. The term is vague: it may designate
either the legal education or training in practice. In the legislation of Justi
nian it is clearly contrasted to the legal training 1(is. A similar distinction
between knowledge of the law and that deriving from practical experience is
expressed, as we have seen, in other Byzantine sources, such as Chomatianos.
But in his commentary, Balsamon does not specifically refer to a legal educa
tionof judges. This observation must be evaluated in the context of the
general decline of interest in the legal science during the dynasty of the
Komnenoi: this trend has been interpreted to be the result of a new orienta
tion
of the literati toward other disciplines, which was a consequence of a
hostile reaction to the Westlf>((.
In summing up, the evidence we have discussed suggests that the most
serious problems of the Byzantine judicial system were caused by the very
fact that the office of the judge was part of the administrative system of the
empire and it was not held by an independent body of professionals. From
the early period various sources described the corruption of the judicial sys
tem in terms of bribery of the judges, pressure by the dynatoi, unfair fees and
conflict, of interest, since the judges belonged to the upper class whose inter
ests they protected. The most direct and complete definition of the judicial
corruption is found in the Ecloga. The Byzantine emperors addressed the
problem with a variety of measures dictated by social considerations and
justified by Christian principles, but always in line with the ancient Roman
principle that the judiciary was part of the imperial administration.
Justinian addressed the problems of the judicial system as a consequence
of insufficient legal training of the judges, and also as an administrative
problem; he recommended that specialists in law be appointed to the high
offices of judges and that the siiffragiam be abolished. A remarkable change
167. ' ,
, ' (= Dig. 2. 2. 2: Paulus: cf. also Behrends. Assessor.
np. cit.. p. 201-2).
168. Novel 82, pr.\ ,
.
169. (If. P. Magdalino. Die Jurisprudenz als Komponente der byzantinischen
Cidehrtenkultur des 12. Jahrhunderts, C.Hpido I.egum. ed. I>. Bihgmann. M. Th.
Fcrn, . Schminck. Frankfurt 1985, p. 169-177, esp. p. 176-7.

200

HELEN SARADI

was introduced in the Ecloga: the deficiency of the judicial system was placed
in a social context, that of social injustice (the exploitation of the poor by the
powerful); competence in legal science, i.e. knowledge of law, is, however,
considered a personal matter; it was not expected to be acquired through
education but it was granted to the judges by God. In the following centuries
the Byzantine emperors, in their efforts to correct judicial corruption drew
their measures either from the Justinianic legislation or from the attitudes
expressed in the Ecloga. Often both approaches were combined, with emphas
is
placed on one or the other. In the decree of Leo VI divine punishment is
considered the most efficient warranty of judicial fairness. Other Byzantine
authors, such as Kekaumenos, John Mauropous, Eustathios of Thessalonica,
Psellos and even Chomatianos often place the judicial corruption in a rel
igious context.
In the Novels on the pre-emption right of the poor the judges are accused
of corruption, for supporting the interests of the dynatoi, for devising ways to
circumvent the law and they are held responsible for social injustice. This
approach follows the lines of the Ecloga. We find it again later in the Novel of
Manuel Komnenos. Particularly the focus on social justice in Manuel Komnenos' Novel on judicial procedure has been interpreted in the light of the
religious policy of the emperor and of his personal principles 170. The question
that is raised at this point of our analysis is that of the origin of the theme of
a corrupted judiciary in the context of social oppression and injustice as it is
expressed in the texts which we have studied: the influence of the Ecloga
comes first to mind. In these texts the divine origin of justice justifies the
need for an incorruptible judiciary which would guarantee social equality
between the poor and the powerful. One may wonder whether these legal
texts draw on Christian literature. Similarities of the prooimion of the Ecloga
to earlier ecclesiastical texts, such as the 12th Homily of Saint Basil (
), have been discerned. Both texts elaborate on the perva
siveness of justice; it is also clear that the Ecloga draws on Saint Basil's text.
Their vocabulary is, however, different: in the Ecloga there is a clearer defini
tionof the social classes whose interests were in conflict171. The notion that
justice () should be understood in terms of equality as it is expressed
in the Novel of Constantine Monomachos is also found in several ecclesiastical
texts ( ) 172. Wisdom and
justice are also connected in both legislative and ecclesiastical texts173. But
the office of the judge is defined and evaluated in terms of social justice also
in ancient literature. It appears to have been a recurrent thematic element
particularly in rhetorical texts. In the praise of Rome by the orator Aelius
170. Cf. Macrides, op. cil., p. lOOff.
171. Cf. H. Saradi, On the "Archontike" and "Ekklesiastike Dynasteia" and
"Prostasia" in Byzantium, op. cit., p. 85.
172. Cf., for example, Gregory of Nazianzus, " , . 59-60; Eustathios
of Thessalonica, ed. Tafel, Or. XV, p. 136: ,
.
173. Novel of Constantine Monomachos, Salac, sect. 2; Eustathios of Thessalonica,
ed. Tafel, Or. Ill, p. 16.

THE BYZANTINE TRIBUNALS (9th-12th C.)

201

Aristides, for example, the idea is expressed in these words: "here is great and
respectable equality between the small and the great, the humble and the
glorious, the poor and the wealthy, those of noble origin and those of humble
extraction... this judge and leader, in order that he apply justice with fair
ness, does not favour the wealthy over the poor" 174. The influence of rhetoric
on legal science already in the early period has often been stressed 175. Parti
cularly Psellos emphasizes the relation of rhetoric to law, a common origin of
the two disciplines, and that the one complements the other176.
Equally important is the roots of the notion of the divine origin of justice
in the texts which we studied. The Basilica 2, 1, 14 sanctions the Dig. 1, 3, 2
on the divine origin of the law: () . A scholion of the
Basilica explains that the origin of the concept was ancient Greek: '
.

" .
,
". Law historians have also discerned two
sources of influence on Roman law, Christianity and Hellenism. As F. Schulz
wrote with reference to the legal science from the time of Constantine
onwards, "The complex of legal rules developed under the influence of these
two tendencies is extensive and important. But one cannot always with any
certainty attribute them to the one or the other tendency. Where a rule
concords with both (as, for example, favor libertatis or the abrogation of sta
tutes impeding manumission) we must be content to note the fact" 177. Thus

174. Die Romrede des Aelius Aristides, ed. R. Klein, Darmstadt 1983, sect. 39
(p. 26-28):
, '
,
, , ,
, , ' ,
. Contrast this text with the Vita Epiphanii by Polybius: in a trial between a
wealthy man and a poor, the ecclesiastic who was acting as a judge was favoring the
poor; the bishop Epiphanios interferes stressing that according to the Scriptures trials
should be free of favoritism even when poor are involved (...
, ,
" , : PG 41, col. 94).
175. On the influence of rhetoric on legal science cf. U. Wesel, Rhetorische Sta
tuslehre
und Gesetzesauslegung der rmischen Juristen, Cologne 1967; W.E. Voss, Recht
und Rhetoric in den Kaisergesetzen der Sptantike, Frankfurt 1982. On the rhetorical
style of the prooimia of the imperial laws for the earlier period cf.: G. Ries, Prolog und
Epilog in Gesetzen des Altertums, Munich 1983, p. 178-9, 186-211; M. Benner, The
Emperor Says, Studia graeca et latina gothoburgensia 33, Stockholm 1975, p. 15-30.
176-80; R. Honig, Humanitas und Rhetorik in Sptromischen Kaisergesetzen, Gttingen
1960, p. 127-44. On the influence of rhetoric on the judicial decisions cf. D. Simon,
Rechtsfindung am byzantinischen Reichsgericht, op. cit., p. 13 ff.
176. Psellos, Scripta minora, op. cit., 1, p. 146 ff., 430 f f.: for the 12th c. cf. Eustathios of Thessaloniea, ed. Tafel, op. cit., ep. 19, p. 324 ff.
177. F. Schulz. History of Roman Legal Science, Oxford 1963, p. 298.

202

HELEN SARADI

Schulz remarks that some tendencies, such as the humanizing tendency of

law, "worked independently by the side of the christianizing; sometimes the
two tendencies co-operate, sometimes they conflict" 178.
The other approach of the Byzantine emperors to the problems of the
judicial system was to secure legal training for the judges. We have seen that
this was first expressed in the Justinianic Novels. In the legal texts of the
following centuries, which we have studied, it is only in the Novel of Constantine Monomachos that the question of legal training of the judges arises:
according to the legislator, and unlike in the Ecloga, correct judicial decisions
are the result of the knowledge of law. The reorganisation of legal education
by Constantine Monomachos and the emphasis on its practical purpose, with
reference to the problems of the judicial system, is along the lines of the
Justinianic approach to the problem. A demand for legal training for the
Byzantine judges is also attested in other contemporary sources. Psellos, for
example, stresses the need for legal training of the kritai of the themata 179. It
has also been suggested that the new administrative responsibilities of the
kritai of the themata created a demand for legal training, indispensable to
make a career 180. We should also mention the view according to which the
school of law of the 11th c. was the place of the last battle, finally lost, to
preserve the tradition of Roman law in its ancient form, and not a place to
prepare young jurists for brillant careers in the state administration 181. The
organisation of the school of law could be placed in a different context, that
of the awareness of the central government of the social implications of the
deficiency of the judicial system. In the 10th c. the Macedonian emperors
addressed the problem of social justice in a new and dynamic way. I refer to
the series of laws securing the property of the small landowners by regulating
the pre-emption right of the penetes. The demand for legal training of the
Byzantine judges in the 11th c. coincides with the abandoning of the mea
sures of social justice of the Macedonian emperors by the emperors of the
11th c, and with the development of the civil party and of the middle class.
The question that arises from this observation is whether the two are inte
rconnected.
Could we interpret it as a response to the abandoning of the social
policy of the Macedonian emperors? Svoronos has shown that in the 11th c.
there has been a significant effort of jurists to produce interpolations in the
Novels of the Macedonian emperors in favour of the dynatoi which were
finally included in the appendix A of the Synopsis major. Thus he concluded
that there was a reaction against this "interpretative" work of the jurists by
other jurists and he suggested that the new interest in legal studies in the
178. Ibidem. Cf. also the similar conclusions of Averil Cameron on the development
of Literature in early Byzantine period, New and Old in Christian Literature, The 17th
Int. Buz. Congress. Major Papers, Washington U.C., August 3-8, 1986, New York 1986,
p. 45-58.
179. Cf. Psellos, Scripta minora, op. cit., 1, p. 367.
180. Oikonomids, Listes de prsance, op. cit., p. 323.
181. W. Wolska-Conus, L'cole de droit, op. cit., p. 103; cf. also the remarks of
Weiss, Ostrmische Beamte, op. cit., p. 68 and n. 211; Lemerle, Cinq tudes, op. cil.,
p. 211.

THE BYZANTINE TRIBUNALS (9th- 12th C.)

203

11th c. should be studied from this angle18-. On the other hand the demand
for legal training for the judges in the 11th <.. coincides with the emphasis on
the study of Justinianic legislation, particularly the Novels. A. Salac has
already noticed that some expressions of the Novel of Constantine Monomachos derive from Justinian's Novels183. Similar conclusion has been drawn
about the Tradatus de peculiis: the author, perhaps John Xiphilinos, tends to
clarify his subject with ancient laws, particularly the Novels of Justinian184.
A similar emphasis on the Novels has been discerned in the scholia of the
Basilica attributed to John nomophylax:\ This interest in the Justinianic
legislation obviously placed the legal education at a theoretical level 18(), and
perhaps Constantine Monomachos' measures were inspired by Justinian's
approach to the problems of the judicial system.
In concluding we may contrast the solutions offered by the Byzantine
emperors to the problems of the judicial system: Justinian approached the
problem of judicial corruption as one of education complicated by administ
rativepractices (the suffragiiim); the Isaurians looked at it as a social pro
blem and without suggesting new measures, they placed it at the level of
religious ethics and Christian morality; Leo VI used elements of popular rel
igion to secure proper function of justice; in the Novels on the pre-emption
right of the poor judicial corruption is causing social injustice; in the 11th c.
Constantine Monomachos considers legal training of the judges as the only
possible solution; Manuel Komnenos returned to the old theme of the social
implications of the judicial corruption in the context of the divine origin of
justice. From the 9th to the 12th centuries the multifold problems of the
application of justice are addressed in many sources which follow the direc
tions of the State policy. The different approaches of the emperors in these
centuries appear like "innovations" only if they are compared to each other;

182. N. Svoronos, Socit et organisation intrieure dans l'empire byzantin au

xi(' sicle: les principaux problmes, Proceedings of the Thirteenth Int. Congress of Byz.
Studies. Main Papers XII, Oxford 1966, p. 6: La raction d'autres juristes contre cette
activit "interprtative" ne manqua pas de se manifester, et il serait intressant d'tu
dierde plus prs et sous cet angle aussi les diverses tendances qui se prsentent, cette
poque de renouveau des tudes juridiques, surtout aprs la cration de l'Ecole de
Droit par Constantin IX Monomaque. Cf. also Idem. Remarques sur la tradition du
texte de la Novelle de Basile II concernant les puissants, Recueil des travaux de Institut
d'Et. byz., VIII, Mlanges G. Ostrogorsky, II, Belgrade 1964, p. 427-434.
183. Salac, op. cit.. p. 1 1 and the remarks of W. Wolska-Conus, L'cole de droit.
op. cit., p. 5 n. 11. Some other ideas are found in 6th c. texts. The stipulation that the
nomophylax should work in the day and study at night finds a parallel in .lohn Lydus,
De magistralibus, ed. Bandy, op. cit.. . 26 (p. 122 11. 18-19).
184. JGH, 3, p. 345: cf. also W. Wolska-Conus. L'cole de droit, op. cit., p. 32, 33,
35.
185. Ibidem, p. 30. For other similarities of the juridical practice in the 1 lth c. with
the legal tradition of the 6th c. cf. Weiss, Hohe Richter, op. cit.. p. 124 and passim.
186. W. Wolska-Conus, L'cole de droit, op. cit.. p. 37: II semble bien que le retour
aux sources de la lgislation de .Justinien a considrablement largi les liases thoriques
de l'enseignement

204

HELEN SARADI

but if we examine them in the context of the tradition of the earlier centuries
we may conclude that the Byzantine emperors from the 9th to the 12th c.
innovate only by being selective of the elements of this tradition. While
Constantine Monomachos' reform stands up as an enlightened approach to
the Byzantine judiciary, it is because of the same tradition that the creation
of a judiciary independent from the imperial administration never took place.
Helen Saradi
University of Guelph
Canada