Bryn Mawr Classical Review

It is a pleasure to welcome the first volume in a series that brings to readers the Theodosian Code in a new translation. This enterprise constitutes a robust harbinger of what amounts to a veritable renaissance of fifth century studies. In fact, since 2000 the Theodosian Code has benefited from several volumes of collected studies, all in French, as well as from two French translations of the sixteenth book of the Code.¹

There is hardly a doubt that the legal code sponsored by the emperor Theodosius II (408-450) is exceptionally difficult yet indispensable. Scholars of late antiquity could, since 1952, resort to Clyde Pharr's English translation of the Code (rep. 2001). whose merits as well as faults this translation highlights. One great advantage of the planned French translation of the entire Code over its English predecessor is the placing of the original Latin and the translation side by side.

The text used is that of Mommsen, whose 1904 edition has yet to be superseded. This is both exceptionally useful but also problematic. The material that the fifth-century compilers of the Code assembled was subjected subsequently to several stages of revision, each with its own distinct goals and audiences. It is therefore both useful and instructive that the editors of the present French translation volume decided to include not only Mommsen's text (now available online) and apparatus but also Krueger's edition and transcription of the relevant folios of the T mss.

The value of this decision is demonstrated by the sixth title of the fifth book, de bonis militum (titles 4 and 5 are missing). This title includes two other laws that, in their present state, appear to have little to do with either CTh 5.6.1 or with the section's title. Mommsen appended a preliminary phrase to his reading of the law (Iussimus dudum, ut quos captivos reperietur miles recepta [b]arbarorum praeda et ereptis manubiis noster provinc[iali]s promeruisse). The French translators omitted this sentence in their translation but included it in the facing Latin text. They added an explanatory note that rejects Mommsen's addition, a rejection resulting in a somewhat abrupt translation: "que notre provincial…avoir obtenu en butin et en dépouilles arrachées aux barbares…" Pharr's translation is a complicated compromise: "(We decree that) when one of our provincials has acquired any booty that has been obtained from the plunder of the barbarians and from the spoils which they have seized…" Both translations, by ignoring or truncating Mommsen's restoration, skip over the only phrase that forges a clear connection between contents of this law, its title, the army and the resources of individual soldiers.²

The question of translation, therefore, seems especially critical in view of a text that was tampered with already in antiquity. Should the translation smooth over textual difficulties and convoluted style or faithfully transmit the original flavor, even at the expense of easy comprehension? Is there a golden mean in such cases?

One may also ask which language, English or French, can more readily render idiomatic legal Latin? French often has an advantage over English because of the availability of transliterations. Thus, the potestas familiae of CTh 5.1.6 remains "la puissance familiale" while in English it becomes "household" (the law deals with the legal rights of children with respect to their grandmother's property). In this case, the French translation provides a better sense of the original Latin than does the English translation. On the other hand, transliterations can sometimes become problematic. Take for example a relatively straightforward term like curia of CTh 5.2.1. This was a law dealing with the property of a decurio who died childless and intestate. The French translators elected to transliterate curia as "'curie'", an old fashioned word that evokes church curates, rather than a "'conseil municipal"' or municipal council (as Pharr did). Still, the French translation is consistent and beautifully conveys the chain of subordinate clauses that refer, nearly poetically, to the curia as ordo as well as a corpus (bona eius curiae suae…id est ordinis utilitati proficiant, cuius corpori fatali necessitate exemptus est). By insisting on a single, long sentence, the French translation also reflects the Latin syntax. Pharr preferred to insert a period to facilitate comprehension.³

For a final note on translation we might compare another French translation, by Rougé and Delmaire, of one of these laws (CTh 5.3.1).⁴ Both used Mommsen's text and both read well. The translation under review retains somewhat more closely the syntax of the original but omits words like forte in an admittedly clumsy original clause that lists (incidental?) exceptions to the rule allowing a church or a monastery to inherit the property of a deceased member (exceptis his facultatibus quas forte censibus adscipti); "feront exception les ressources. . .qui seraient inscrits sur les registres du cens" (Pétrequin et al.) versus "qui seraient par hasard adscrits aux cens" (Rougé/Delmaire). Similarly a bit later in CTh 5.3.1 nec enim iustum est bona seu peculia. . .ad curias pro tenore dudum latae constitutionis sub certa forma pertinere noscuntur, where dudum implies a constitution that had been issued formerly rather than recently, was translated by Pétrequin et al. as "ceux dont on sait qu'ils reviennent formellement aux curies selon la teneur d'une constitution promulguée naguère" but by Rougé Delmaire as "qui sont connus d'une manière sûre relever de curies en vertu de la tenuer de la constitution jadis promulguée" . The gist remains clear in both.

The French translation is prefaced by a lengthy introduction, written by Pierre Jaillette. As it stands, the nearly 200-page introduction is somewhat unwieldy, thus unwittingly reflecting the Code itself. It provides an up-to-date discussion of matters relating to the procedures that created the ancient and the modern versions of the laws, as well as to the subjects that the laws discuss. Scholars seeking illumination regarding a specific constitution will find that they have to resort to the index, the introduction, and to the text itself with its footnotes in order to comprehend its intricacies and history.⁵

Jaillette's introduction surveys common themes of the fifth book of the Code, providing its own reorganization/categorization of the laws. For example, in the section entitled 'status des personnes', Jaillette groups two laws found in the sixth, seventh, eighth, and ninth titles respectively; one in the tenth, eighteenth and nineteenth titles respectively; and three in the seventeenth title (the latter relating to fugitive coloni).⁶ This editorial grouping combines laws dealing with victims of barbarians raids (5.6.2) as well as those dealing with the alienation of fields tilled by coloni (5.19.1), though it is questionable whether such categories belong to a single heading. Likewise, the introductory section, entitled "les successions ab intestat" includes nine laws (which comprise the first title, de legitimis hereditatibus), as well as an assortment of laws from the second, third and sixth titles, one from each title. The first group focuses on close kin and seems homogeneous enough; the other three laws deal with the succession of non-familial parties to the assets of their individual members.

This latter example, which may reflect an effort on the part of the Theodosian editors to come to grips with the huge volume of material collected for their inspection, well illustrates the depth of the introduction. Jaillette provides an overview of the system of civil law and its evolution from the Twelve Tables to the second century CE and of the legal issues concerning succession in late antiquity, with references to other laws in the Code that likewise deal with this rather common theme. He dwells briefly on the seemingly interminable debate regarding the presence or absence of Christian influence over imperial legislation on matters relating to the family. He also highlights legal continuities in matters relating to the selection of an institutional heir, such as a collegium, a church, or a monastery.

Grouping laws of a single book according to common themes also runs the risk of ignoring laws that the Theodosian editors had separated. One such is a law on maternal succession, CTh 5.1.8, issued in Ravenna in the names of Theodosius II and Valentinian III. Of the 12 pieces of the oratio, of 426 CE, five were incorporated into the Justinian Code and seven were distributed between the first, fourth, fifth and eighth books (with four in the last) of the Theodosian Code. The original oratio grouped together strikingly different themes ranging from priorities of juristic citations (the so-called Law of Citations) to matters of familial inheritance. So far as I can see, Jaillette does not discuss the rationale that dictated the dismemberment of the original oratio or the regrouping of its disjointed members under various titles and in various books of the Code.

All in all, the presentation of the fifth book of the Theodosianus, beautifully printed and nicely organized, is no mean task. It fully deserves our thanks as well as heartiest congratulations. Its merits are many: translation faces the text,⁷ the addition of Mommsen's essential apparatus, the inclusion of Krueger's text, a substantial introduction, prosopographical information about addressees, notes accompanying each law, chronological tables, bibliography and index. All of these render this enterprise as indispensable for French readers as Pharr's translation has become for English readers. Moreover, this new translation provides a crucial complement and correction to Pharr's much cited translation.

1.   There is a full list in the website of the Project Volterra.
2.   See also CTh 5.7.2. ne quando enim damni consideratio in tali necessitate positis negari faciat empetionem, translated somewhat strangely as "en effect, de peur que la considération du préjudice n'entraine un jour le refus de l'achat pour ceux placés dans une telle situation". Rougé/Delmaire, using the same corrupt text, proposed more logically "ainsi la considération d'un dommage ne pourra empecher le rachat d'hommes placés dans de tel liens" (note the more logical reading of Sirm. Cons. 16 ne ingentis damni).
3.   Terms describing imperial virtues like liberalitas when transliterated as "liberality" or "libéralité" retain fairly accurately a sense of the original rhetoric. I am less certain of an attribute like indulgentiae (CTh 5.12.3, exceptional imperial generosity) when it is rendered either as "indulgences" or "dégrèvements."
4.   Sources Chrétiennes 531 (2009), 90-93.
5.   Anyone interested in, for example, the much discussed topic of the exposure and sale of children in late antiquity—the subject of two constitutions, CTh 5.9.1-2 (de expositis)— will find in the index (which is not nearly as comprehensive as Pharr's) under 'enfants' a reference first to 'famille" then to 'exposés', and lastly to the laws themselves, but not to the introduction, where the subject of exposed children is briefly discussed under the title 'le status des personnes.'
6.   All of the laws are usefully tabulated (pp. 120-1).
7.   Although, alas, not always as precisely as one would desire, as in the case of CTh 5.3.1 where, as a result of lengthy notes, the French translation was printed facing the bibliography and not the Latin text.