Dioskoros and the Law (on succession): Lex Falcidia revisited

MEP_ Dioscore-ok:Dioscore 4/09/08 18:57 Page 117 (Noir/Black film) DIOSKOROS AND THE LAW (ON SUCCESSION): LEX FALCIDIA REVISITED Jakub URBANIK* 1 ABSTRACT. – The present paper, inspired by the article of Peter van Minnen, is devoted to the somewhat curious use of the term falkidion in three Dioskorean texts. In two deeds of disinheritation, P.Cair.Masp. III 67353 & I 67097 v° D, the Aphrodite Lawyer seems to have confused two distinct legal terms: quarta Falcidia and the portio debita/legitima (νόµιµος µοῖρα). In the third case, a will (P.Cair.Masp. III 67312), the term falkidion was applied in its classically correct meaning. The scholarship usually deemed the Dioskorean misconception of falkidion to have resulted from the common error of the Byzantine jurisprudence which had apparently applied it wrongly to describe legitim. Peter van Minnen thought that the notary’s seeming imprecision was rather due to his up-to-date legal education, as the Justinianic jurisprudence would have implicitly equalled the two concepts. The research of the Byzantine juristic sources proves however, that the legal texts – especially these of the Justinian’s era – almost always keep a clear distinction between these two legal institutes. After an examination of the dubious cases, the postulated identification is only ascertained in case of two works of scholarly use, Epitomae Novellarum of Julian and of Athanasius of Emesa. Subsequently the confrontation of some pre-justinianic legal sources allows to formulate a hypothesis that the justinianic compilers tried to recover the original meaning of falkidion. This supposition, in turn, may not only provide for better understanding of Dioskoros’s juristic expertise and his practical activity, but also illustrate the apparent contradictions between the pure imperial law, the legal practice and the teaching of law, based – one may speculate – still after the codification upon the pre-codified version of the law. SOMMARIO. – Il presente lavoro, prendendo spunto da un articolo di Peter van Minnen, si incentra sullo specifico utilizzo del termine falkidion di cui il celebre Afroditopolita si è avvalso in tre casi. In due di questi, trattasi in entrambi i casi di documenti di disereditazione, P.Cair.Masp. III 67353 e P.Cair.Masp. I 67097 v° D, Dioscoro sembra aver confuso due termini e istituti giuridici ben distinti : quarta Falcidia e portio debita/legitima (νόµιµος µοῖρα). Nel terzo, che è un testamento (P.Cair.Masp. III 67312), il termine * Chair of Roman and Antique Law, Faculty of Law and Administration, University of Warsaw. 1 I would like to express my thanks to José Luis Alonso (San Sebastían) who has commented the draft of the paper, to Derek Scally (Berlin), who has corrected its linguistic side, and to Uri Yiftach - Firanko (Jerusalem) and Stanisław Kordasiewicz (Warsaw) for the valuable bibliographical help. I thank Leslie MacCoull for the suggestions ameliorating the translations. I also would like to show my appreciation to Jean-Luc Fournet for the meticulous editorial work and all the help and patience. Les archives de Dioscore d’Aphrodité cent ans après leur découverte. Histoire et culture dans l'Égypte byzantine, éd. par J.-L. FOURNET (Études d'archéologie et d'histoire ancienne), Paris, 2008, p. 117-142 MEP_ Dioscore-ok:Dioscore 4/09/08 118 18:57 Page 118 (Noir/Black film) JAKUB URBANIK falkidion venne utilizzato nel suo significato classicamente corretto. Secondo la dottrina anteriore, l’identificazione tra la portio legitima e la pars Falcidia è dovuto ad un’inesattezza di uso molto comune tra gli esperti giuristi bizantini. D’altro canto, Peter van Minnen sostenne che l’adozione di un termine apparentemente impreciso da parte del notaio fosse dovuta alla giurisprudenza del periodo giustinianeo che, avrebbe messo implicitamente col suo operato i due concetti in relazione. Dall’esame di affidabili fonti giuridiche bizantine viene provato che i testi legali – soprattutto dei tempi di Giustiniano – fanno quasi sempre una netta distinzione tra questi due concetti giuridici. In seguito, vengono chiariti alcuni casi dubbiosi : le Novellae 66 e 92 nonché due opere di carattere scolastico, gli Epitomi Novellarum di Giuliano e d’Athanasio di Emesa. Attraverso l’analisi di alcune fonti legali pre-giustinianee, si desume un possibile sforzo dei compilatori dell’età di Giustiniano vòlto a riformulare il contenuto del termine falkidion nella sua versione originaria. Ciò ci permette di descrivere la situazione relativamente all’esperienza giuridica di Dioscoro e alla sua attività pratica, ma anche rende evidenti le contraddizioni che si creavano sia tra la legge imperiale pura e la pratica legale, nonché tra la stessa legge e l’insegnamento del diritto, il quale – essendo lecita una speculazione a proposito – è probabile che venisse basato sulla versione precodificata del diritto. * * * For my teacher, Maria Zabłocka So bist du meine Tochter nimmermehr Verstoßen sei auf ewig, verlassen sei auf ewig Zertrümmert sei’n auf ewig alle Bande der Natur. Aria “Der Hölle Rache” of Queen of Night in Die Zauberflöte B efore getting in medias res a short explanatory note would be appropriate. The present paper is by no means intended to present the reader with a complete review of all the legal problems arising from the Dioskoros’s Archives, or a comprehensive study on the relation and compatibility between our notary’s juristic skills and knowledge and the imperial law, or Reichsrecht, in Mitteis’s terminology. For some time I have intended to approach Dioskoros’s legal œuvre. This goal would of course require a thorough study of Dioskorean corpus as a whole, of both the Coptic and Greek documents. Considering what could be the starting point I have decided to choose a more or less homogenous group of texts, connected by some aspect. It seemed quite interesting to begin with the documents relating in one way or another to the law on succession. Dioskoros’s Archives preserve wills, a donation in case of death, division of inheritance agreements or compromises between co-heirs, two disownment documents and, most notably, petitions and imperial rescripts addressing this point. In this abundance one had to find a starting point, and it was provided and greatly facilitated by Peter van Minnen’s superb article, 2 in which some documents relating to the law of succession have been construed (and where the 2 VAN MINNEN 2003. MEP_ Dioscore-ok:Dioscore 4/09/08 18:57 Page 119 (Noir/Black film) DIOSKOROS AND THE LAW (ON SUCCESSION): LEX FALCIDIA REVISITED 119 author, incidentally, has drastically remodelled Dioskoros’s family tree). In my paper I shall come back to some of the texts analysed by this author and address a seemingly 3 minor problem which awakes our interest in three Dioskorean papyri, namely his sudden and curious use of the word falkidion. My scope is to scrutinize yet again these three instances and try to understand them in the context of imperial law. The title of my article has been obviously borrowed from van Minnen’s essay, but its origins actually date back to the time when Peter kindly offered me a draft of the future “Dioscorus and the Law” in 2002 in Leuven asking for a “lawyer’s” opinion on the texts he was discussing. I. falkidion: Dioskoros’s evidence There is something among these “inheritance” papyri which immediately catches attention of a person used to the dogmatic vision of Roman law – even in this era, deemed to be very late and not necessarily very classical by most of the Romanist scholarship. In an act of apokeryxis or disownment, P.Cair.Masp. III 67353 (= Sel. Pap. I 87), Dioskoros used the word φαλκίδιον having, prima facie, something else in mind. I think it is worth having a quick look at this singular document : 4 P.Cair.Masp. III 67353 vo (569, Antinoopolis) ˝ β̣ασιλείας καὶ ὑ̣πατεία̣ς̣ τ̣ο̣ῦ̣ θ̣ε̣ι̣[οτάτο(υ)] ἡ̣̣µ̣[ῶ]ν̣ δεσπότ̣ο̣(υ) Φλα̣̣υ̣ίου ᾿Ιουσ̣τίν[ου] τοῦ αἰωνίο(υ) αὐγού̣̣[στ]ο̣(υ) αὐτοκ[ρ]άτο̣ρο̣ς̣ ἔτους πέµπτου, ῾Αθὺρ ἑκκ[αι]δεκάτῃ τ̣ρίτης ἰνδικ(τίονος). ἐν [᾿Αντιν]ό̣̣ο̣υ̣ πόλει τ̣ῇ̣ λαµπροτάτῃ. break 4 ........... π̣ρόγραµµα ἀ̣̣ποκηρύ̣ξ̣ εώς τε καὶ ἀπα̣γ̣ορ̣εύσεως, ἀπαθεῖς ἔχων τ̣ὰ̣ς φρέ̣̣[νας] καὶ διανοί[α]ς, ὀρθῷ καὶ ἀκριβεῖ λογισµῷ, δίχα παντὸς δόλο(υ) καὶ φό̣̣β̣ο(υ) καὶ βία[ς] καὶ ἀνάγκης καὶ ἀπάτης, ἐν δηµοσίῳ καὶ πρακτικῷ τόπῳ. κα̣ὶ̣ τ̣οῦτο διαπέµ[πο]µ[αι] τ̣ο̣ῖ̣ς̣ πατρο̣λώοις µο(υ) υἱοῖς ἕως ὀνόµ[α]τ̣ος καὶ µόνου̣, φηµὶ δὴ ∆ιονυσίᾳ καὶ 8 ᾿Ιωάννῃ καὶ Παυλίνῃ καὶ ᾿Ανδρέᾳ τοῖ̣̣ς̣ [ἀποβ]ο̣λ̣ι̣µα̣̣ίοις - - - - - - - - - break ο̣ἰόµε̣νο̣ι εὑρεῖν ὑµᾶς β̣οη̣θο̣ὺ̣ς̣ ἐ̣̣ν ἅ̣πασι καὶ γηροκόµους καὶ ὑποτα̣κτ̣[ικοὺς] [κ]α̣ὶ ὑπηκό̣̣ο̣υς· ἔκ τε̣ τῶν ἐναντί[ων] ἐ̣̣ν̣ ἡληκίᾳ γεγένησθε̣ ἀντίπαλοί µοι ὡ̣̣ς̣ καὶ µέγαιροι ὡς ἐκ πείρας ἔσχον τὴν ἄσπλ[αγ]χνον ὑµῶν π̣ατρ̣οκτασίαν καὶ Still the texts have made quite an impact, not only among the juristic papyrologists (see the following notes for the references) but they also strongly influenced very “classical” Romanists, cf. KASER 1975, § 290 and n. 3, who illustrates the terminological change in describing of the legitim, Pflichtteil, using our P.Cair.Masp. I 67097 v° D (see infra, p. 00-00). 4 On the context of the text see MACCOULL 1988, p. 39-45. 3 MEP_ Dioscore-ok:Dioscore 120 4/09/08 18:57 Page 120 (Noir/Black film) JAKUB URBANIK 12 ἀθε[τ]η̣τικ[ὴν] γνώ̣̣µην, ἐφ' ὅτι νο̣σοβαρὴς ἐγ̣ε̣ν̣ά̣µ̣η̣ν̣ παρ' ὑµῶν break [ - - - ποιότ]ητι καὶ ποσό[τ]ητι̣ ἀπὸ πολυ̣τε̣ λοῦς µέχρι ἀσσ̣α̣ρ[̣ ίου ἑνὸς] κ̣αὶ ἑνὸς ὀβολοῦ, εἰ µὴ τὸ ἀπὸ νόµω̣ν τυπω̣θὲν µόνον φαλκίδ̣ι̣ον ἤτοι δω[δεκάτην] µ̣οῖραν τοῦ ὑµῶν ἀκλήρου, καὶ οὐκ ἐξὼν ἔτι ὑµῖν τοῦ λοιποῦ ὀνοµάσ̣[αι µε] 16 ὡ̣̣ς̣ πατέρα, ὅ̣̣σον κἀγὼ ὑµᾶς ἀπεταξάµην καὶ ἐβδελα̣ξάµην ἀπὸ τ̣ο[̣ ῦ νῦν] κ̣α̣ὶ̣ ἐπὶ τὸν ἀεὶ ἑξῆς̣ ἅ̣̣πα ̣ ντ[α πα]ν̣[τ]ε̣λ̣ῆ̣ χρόνον ὡς ἀποβολιµαίους κ[αὶ νόθους] καὶ δουλοχείρονας --break ---- κορακοβροσίαν γε̣ν̣[έσθ]αι καὶ ὀµµατωρυξίαν τούτ̣ο̣υ̣ [τοῦ] 20 [τ]ρόπου ὑµᾶς παραχαράττω µηδὲν λήµψασθαι µήτε µὴν δοῦναι [ὑπὲρ] [ἐ]µοῦ περιόντος τε ἢ καὶ θνήσκοντ̣ο̣ς,̣ διὰ τὸ ἐµοὶ ὀρθῶς καὶ δικα̣[ίως] δεδόχθαι. καὶ ἐξορκί̣̣ζ̣ω πάντα κριτὴν καὶ δικαστὴν καὶ πάντα [θρόνον] καὶ ἀρχὴν καὶ ἐξουσίαν ἀεὶ φυλάξαι τὰ ἐπὶ το̣ῖς τοιούτοις ἀπαιδεύτ[οις] 24 υ̣ἱ̣ο̣ῖ̣ς̣ ......... [ὑ]π̣ὲ̣ρ̣ ἐµοῦ ἀπαγορεύσεως καὶ ἀποκηρύξε̣ω̣ς̣ γ̣ρ[̣ α...] break ... τόπον. ἐξορκίζω δὲ ἅ̣̣µα καὶ τ[ὸ]ν̣ δηµόσιον̣ [σ]κ̣ρίβα κα̣ὶ̣ [τ]α̣β̣ου̣λ̣[άριον] [κ]αὶ δηµέκδικον τῆς τε τῆς λαµπ̣ρ̣ᾶ̣ς̣ [᾿Α]ν̣τιν̣οέ̣̣ων πό[λεως] κατὰ τοῦ Θεοῦ πρὸ πά̣̣ντων̣ καὶ τῆ̣̣[ς νίκης καὶ διαµονῆς τῶν] 28 [οἰ]κ̣ου̣µενικῶ̣̣ν ἡµῶν δεσποτῶν̣ καὶ βασιλέων Φλαυίων ᾿Ιο̣(υ)[στίνο(υ)] [κ]αὶ Αἰλίας Σοφίας τῶν αἰω̣ν̣ίων̣ [α]ὐτοκρα̣[τόρω]ν̣ τ̣ὴν σ̣υ̣ν̣ήθη [ἀ]ποδηµίωσιν προσθέσθαι το̣ῖς διατυπωθῖσι παρ' ἐµοῦ ὁρισµοῖς .[..] [ἀ]εὶ βραβεύειν καὶ ἐκφωνῆσαι πάντ̣ῃ ἀηττήτως εἰς ἔκπληξιν µάλιστ[α] 32 [τ]ῶν µελλόντων τὰ ἴσα τούτοις τοῖς ἀσεβέσι διαπράξασθαι. ἔχρην γὰρ̣ [κα][τ]ὰ τὸν θεῖον νόµον τοὺς ἑαυτῶν γονεῖς ἄκρω̣ς τιµᾶν. τοὐνάντιων δ̣ὲ̣ [οἱ] τοιοῦτοι κάκιστοι ἐλοιδώ[ρησα]ν κ̣[α]ὶ [κατε]φρόνησαν τ̣ὸ̣ν̣ π̣α̣τ[̣ ρ̣ι̣]κ̣̣[ὸ̣̣ν̣] θεσµὸν καὶ τ̣οῦτο ἐξέτ̣αξα µετὰ τοῦ̣̣ προκειµένου φα̣λκ̣[ιδίο]υ̣ τῇ̣̣ ἐµῇ 36 [δ]ιαθ̣ήκ̣ῃ̣ καὶ εἰς εἴδησιν πάντων κυρίαν ο̣ὖ̣σα̣ν καὶ βεβαί[α]ν̣ [π]α̣ντ̣α̣χο̣ [ῦ] [προφεροµένην τὴν παροῦσαν ἀποκήρυξιν ἀνέθηκα ? ] 7. l. πατρολοοῖς | 9. l. οἰόµενος | 10. l. ἡλικίᾳ | | 15. l. ἐξὸν | 16. l. ἐβδελυξάµην | 19. l. κορακοβρωσίαν | 25. l. σκρίβαν | 26. l. τῆσδε | 27. BL VIII 75, θείας καὶ οὐρανίας τύχης orig. ed. | 28. l. Φλαυίου | 30. l. διατυπωθεῖσι | 33. l. τοὐνάντιον. (the English translation after A. S. Hunt & C. C. Edgar, Select Papyri n° 87 with tiny alterations) In the fifth year of the reign and consulship of our most godlike master Flavius Iustinus the eternal Augustus and Imperator, Hathyr 16, third indiction, in the most illustrious Antinoopolis. [frag. 2] [ - - - ] proclamation of disownment and rejection, having my mind and understanding unaffected, with true and unerring judgment, without any guile or fear or violence or compulsion or deceit, in a public place of business. And this I transmit to my parricidal children, through children in name only, Dionysia and Ioannes and Pauline and Andreas, the outcast ones [ - - - ] [frag. 3] [ - - - ] thinking to find you helpful in all things, a comfort to my old age, submissive and obedient, and on the contrary you in your prime have set yourselves against me like rancorous things, as I learnt through experience of your heartless MEP_ Dioscore-ok:Dioscore 4/09/08 18:57 Page 121 (Noir/Black film) DIOSKOROS AND THE LAW (ON SUCCESSION): LEX FALCIDIA REVISITED 121 parricidal conduct and lawless disposition, seeing that I fell grievously ill through you [ - - - ] [frag. 4] [ - - - ] in every quality and quantity, from things costly down to one as or one obol, excepting only the Falcidia prescribed by law or the twelfth part of your intestate inheritance, and it is no longer lawful for you in future to call me father, inasmuch as I reject and abhor you from now to the utter end of all succeeding time as outcasts and bastards and lower than slaves. [ - - - ] [frag. 5] [ - - ] for ravens to devour the flesh and peck out the eyes, in this manner I debar you from receiving or giving anything on my behalf, whether I be alive or dead, because I have rightly and justly thus resolved. And I adjure every judge and arbiter and every tribunal and magistracy and authority to uphold always this deed of rejection and disownment executed on my behalf against these so ill-conducted children [ - - ] [frag. 6 ] [ - - - ] place. And I also adjure the public scribe and the tabularius and the public defensor of this illustrious Antinoopolis, by God before all and by the victory and continuity of our universal rulers and sovereigns Flavius Iustinus and Aelia Sophia the eternal Imperators, to give the customary publicity to the decisions formulated by me and always to arbitrate and give judgment quite inflexibly, to the terror especially of such as are disposed to imitate the deeds of these impious ones. For whereas according to the divine law they ought to have most highly honoured their own parents, these most wicked ones have contrariwise reviled and contemned the parental ordinance. And this, along with the aforesaid Falcidia I have set forth in my will, and I have put up [this proclamation of disownment ?] so that all men may know, being valid and guaranteed wherever produced. The papyrus has unfortunately been preserved only in fragments, it is certain, however, that we do not have here the actual deed. The recto of it was used to put down an arbitration (mesiteia) in Coptic that – as it seems, as the much-abraded writing does not allow a certain reconstruction, Dioskoros had conducted between Anoup, Ioulios and Apa Papnoute in regards to some property handed over by Mesiane, mother of the formers’ to the latter. 5 In the document dated to the 16th of Hathyr 569, a man whose name has not been preserved proclaims apokeryxis of his “parricidal” children Dionysia, Ioannes, Pauline and Andreas. Instead of the expected aid, the narrator experienced only ill-disposition towards him and accuses his children to have caused his severe illness by their insolent behaviour. And thus he disinherits his heinous offspring allowing them only to keep the “Falcidian portion”, i.e. onetwelfth of the inheritance : ll. 13-15 : ἀπὸ πολυ̣τ̣ελοῦς µέχρι ἀσσ̣̣α̣ρ̣[ίου ἑνὸς ] ||14 κ̣αὶ ἑνὸς ὀβολοῦ, εἰ µὴ τὸ ἀπὸ νόµω̣ν τυπω̣θὲν µόνον Φαλκίδ̣ιο̣ ν ἤτοι δω[δεκάτην] ||15 µ̣οῖραν τοῦ ὑµῶν ἀκλήρου. “From things costly down to one as or one obol, excepting only Falkidion prescribed by laws, that is one-twelfth.” Finally the failed-father evokes authority of the judges, public officials and even the imperial couple so that his decision be safe-guarded. The last fragment contains information that this deed matches the last will of the speaker, in which the special provisions in regards to pars Falcidia had also been set forth. This singular document has only one parallel in the papyri. It also comes from Dioskoros’s archives, its rhetoric evokes again the style of the Aria of Queen of 5 On the dispute between two-to-be monks and Papnoute see MACCOULL 1988, p. 39-45. MEP_ Dioscore-ok:Dioscore 122 4/09/08 18:57 Page 122 (Noir/Black film) JAKUB URBANIK the Night of Mozart’s Magic Flute (“So bist du meine Tochter nimmermehr. || Verstoßen sei auf ewig, verlassen sei auf ewig”), and, more importantly, our notary used in its redaction again the subject-term of this paper: P.Cair.Masp. I 67097 vo D (= Jur. Pap. 13 = FIRA III 15). 6 Below I reproduce the part of the document directly dealing with apokeryxis and mentioning falkidion. P.Cair.Masp. I 67097 vo D (573/4, Aphrodite). 52 ῞Οθεν εἰς ταύτην ἥκω πρὸς σὲ `τοίνυν´ τὴν ἀποβολ̣̣ιµ ̣ αίαν καὶ ἀνάξιον κλήσεως ὀνόµα̣̣το̣[̣ ς] [κ(αὶ) πρ]ο̣̣[σηγορ]ί̣̣α̣ς̣ πατρωνυµικῆς θυγατέρα ἐγγράφως τὴν νόµιµον ἀποταγὴ̣ν̣ κ̣̣(αὶ) ἀποκή̣̣ρυξιν καθ' ἣν `ὁ̣̣µ̣ο̣λ̣ο̣γ̣ῶ̣´ ὀµνύων τόν φρικωδέστατ̣̣ο̣ν [ὅρκον ἀπαγορεύ]ε̣̣ι̣ν̣ καὶ ἀποτετάχθαί σε καὶ ἥδη ἀποκεκηρυκέναι σε ἐκ παντὸς νοµίµου τρόπου ὑπὸ πᾶσαν δια56 ταγὴν ἡλίου σήµερον ἐπὶ πάσης ἀρχῆς κ(αὶ) ἐξουσίας καὶ θρόνου καὶ κυριότητος, ἀπὸ τοῦ νῦν ἐπὶ τὸν ἅπαντα ἀεὶ καὶ παντελὴ χρόνον, ὥστε σὲ `τὴν δεῖνα´ µηδὲν τὸ καθάπαξ δοῦναι ὑπὲρ ἐµοῦ µήτ̣̣ε λήψασθαι, ζ῀οντος ἢ καὶ µετὰ τ̣̣ὴν ἐµ̣̣ὴν τελευτήν, ἀλλ'εἶναι σε ὡς ξένην διακεχωρισµένην ἀεὶ τοῦ ἐµοῦ αἵµατος καὶ γένους καὶ µετ' οὐσίας 60 παντοίας πραγµάτων µου ἐφ' ᾧ δ`ὴ´ µᾶλλον ἀπαλλοτριοῦσθαί σε ὀρθῶς κ(αὶ) δικαίως πάσης ἐνοχῆς ὑ`π´(ὲρ) ἐµοῦ καὶ `ἐν´ἀγωγῆς ὑφ' ἡλίῳ, καὶ ἀν`εν´αρίθµιος ἔσεσθαι τοῖς ἐµοῖς υἱοῖς ἅπασιν εἰς κλῆρον, εἶ[ν]αί τέ σε µάλιστα ἀπόβλητον καὶ ἀπόκληρον καὶ ἄµοιρον παντελῶς 6 The exact dating of the text is impossible to determine, which is quite a problem if we want to establish chronological relation between P.Cair.Masp. I 67097 v° D and III 67353. The creation of the poetic works on the verso of 67097, Fournet n° 10 (P.Cair.Masp. I 67097 v° E & B-C): Encomion - petition to dux Athanasios; Fournet n° 39 (P.Cair.Masp. I 67097 v° F 1-16): A song celebrating the new dux Athanasios; and Fournet n° 40 (P.Cair.Masp. I 67097 v° F 17-29): Chairetismos of Justin II) is set by FOURNET 1999, p. 509-511, to 565/566 (see comm. to text 10). Two other texts on the same papyrus, a receipt (frag. A verso), and a contract (the entire recto), mention respectively the 7th/8th and the 5th indiction. Given the fact they both refer to Aphrodité, they could be plausibly dated either to the period before Dioskoros’s move to Antinoopolis or to the times after his return to the home-town (571 AD and 573/4 AD, cf. MACCOULL 1988, p. 3940 and 112). – We have no indication how to position among them the frag. D; BEAUCAMP 1992, p. 79 and MACCOULL 1988, p. 39-40, date it tentatively to 567-570, i.e. still to the Antinoopolitan period of Dioskoros. Such a hypothesis could be strengthened by the suggestion of MASPERO to read the l. 80 of the text as referred to “the most illustrious” ekdikos [? of Antinoopolis] (the point missed by the FIRA editors). MIGLIORINI 2001, p. 320, n. 51 seems to have totally misunderstood the problem. MEP_ Dioscore-ok:Dioscore 4/09/08 18:57 Page 123 (Noir/Black film) DIOSKOROS AND THE LAW (ON SUCCESSION): LEX FALCIDIA REVISITED 123 πά[σ]η̣̣ς̣ µετοχῆς καὶ σχέσεως κληρονοµίας µου, διὰ τὸ εἶναι πάντα τά τε νῦν ὄντα 64 κ[αὶ ἐσό]µ̣̣ενά [µο]ι [πρά]γµα[τα π]αν̣̣τ̣ο̣ῖ̣α̣ κινητά τε κ(αὶ) [ἀ]κίνη̣̣[τ]α κ(αὶ) αὐτοκίνητα, ἐν παντὶ εἴδει κ(αὶ) γένει καὶ ὕλῃ πάσ[ῃ] καὶ ποιότητι καὶ ποσότ̣̣[ητ]ι στε̣̣[λ]λ̣̣ό̣µενα καὶ διαφέροντα ἀπὸ τιµίου εἴδους ἕως ἀτίµου µέχρι ξυλικοῦ καὶ ὀστρ[α]κίνου καὶ νικαινοῦ καὶ ὑαλίνου εἴδο`υ´ς [τοῖς ̣ ̣ ]λ̣̣η̣ ̣ [µ]έ̣̣ν̣ο̣ι̣ς̣ υἱ[ο]ῖ[ς] µου κ̣̣(αὶ) µ̣̣ό̣ν̣ο̣ις τοῖς [ἀεὶ πεπεισµένοις ὑποτα]κ[τι]κ[ῶς ( ?)] 68 ἐν ἅπασι τῇ ἐµῇ βουλῇ κ(αὶ) ἐπακολο̣̣[ύθω]ς τῇ ἐµῇ διαθέσ[ει τε καὶ κα]τ̣̣[ασ]τ̣̣άσε̣ι̣ κ(αὶ) τῷ ἐµῷ σκοπῷ φιλοτιµοῦσι`ν ἀεὶ´ τὸ πατρικὸν `ὁµό´φυλον µετ' εὐφυΐας κ(αὶ) εὐσπλαγχνείας. Σοὶ δὲ µόνῃ τῇ αὐθάδει καὶ κακοτρόπῳ `κ(αὶ) ἀντιπάλῳ θυγατρὶ´ ο̣ὐθὲν τούτων ὤφειλεν οὔτε βούλοµαι εἶναι κυρίως εἰ µὴ τὸ ἀπὸ νόµων προωρισµένον Φαλκίδιον ἀντὶ τοῦ σοῦ κλήρου 72 ο̣ὗ κ(αὶ) ἀνάξιος ηὑρέθης νῦν· ὅπερ κ(αὶ) ἐν καιρῷ τῆς ἐµῆς ἐκτάσσω καὶ διατάσσω διαθήκης ἐγγράφου βεβαίας, ὥστε σὲ µηδὲν τούτου πώποτε `δύνασθαι´ ἐπιζητεῖν περαίτερον, ἀλλ' ἀ̣̣ρ̣κ̣ε̣σ̣θ̣ῆ̣ν̣αι αὐτῷ δι̣' ὅ̣̣λ̣[ου α]ἰω̣νίω̣[ς]·κ̣[α]θ̣' ὅσο̣ν πικρῶς̣ ἀ̣̣ν̣τ̣α̣π̣έδωκας̣, πικρῶς δὲ πάλιν ἀνταπολα`µ´βάν`εις´ ἐκ νόµων κατὰ µίµησιν πάντων τῶν ἀντιπάλων υἱῶ[ν] ἀντιπαθ̣ε̣ί̣[α]ς̣. l. 58 ζῶντος [ll. 52-57] And so, I have decided by writing in this very moment, for a lawful renunciation and disownment of you, daughter, useless and unworthy of being called by name and by the appellation of patronymicon, and according to it I declare, taking the most terrible oath on all of the Principalities, Powers, Thrones and Dominions, that I expel you, that you have been renounced, and that I have already disowned you in every legal way today for all the course of sun, from now on, for centuries of centuries and for unlimited time [ll. 57-60] so that you, shall not give anything at all on my behalf and neither shall you receive, both during my life and after my death ; but you shall be as if you were a stranger, separated for ever from my blood and family and from my whole estate (lit. from my all substance of business); [ll. 60-63] and upon the conditions of it [the deed] you had better be separated equitably and justly from every my liability and legal claim under the sun; and you shall not be counted among my all children for the sake of the succession, but it is for the best that you shall be totally disinherited and left out without the share in whatever community and state of my inheritance ; [ll. 63-70] and through it [this deed] now all my assets, present and future, all my things, movable and immovable as well as self-moving, in every kind and type and MEP_ Dioscore-ok:Dioscore 124 4/09/08 18:57 Page 124 (Noir/Black film) JAKUB URBANIK of every material, of every quality and quantity, joint and separated, from things expensive down to inexpensive, including things made of wood, clay, household ceramics (?, cf. PREISIGKE, WB: “Sinn unklar, doch bezeichnet das Wort die stoffliche Beschaffenheit von Hausgeräten” and MASPERO, ad loc.) and glass shall belong to my [other] children and only to them forever, to these who have obeyed being submissive to my will in everything, and having followed my orders, and having fulfilled my aim. And they respect eternally the same paternal stock with natural goodness and good-heartiness. [ll. 70-76] I do want nothing of it to be owed to you on your own, contumacious and mischievous and antagonistic daughter and I do not want it to become legally (yours), but for the Falkidion predetermined according to the laws in lieu of your share of inheritance, of which you have just been found unworthy. And so in the time of my written and legally binding deed of last will I order and command, that you may not claim anything more, but you shall be pleased with it eternally. As you have given back bitterness, you shall receive back bitterness on the ground of the laws, and upon the example that suffer all the antagonistic children. The fact that this text is one of a few of absolutely heterogeneous nature preserved on the same sheet of papyrus inclined the first commentators to believe that it was a mere rhetoric exercise. This feeling was strengthened by many overline corrections, sophisticated vocabulary, and the use of ἡ δεῖνα, “the so-andso”, instead of the daughter’s name 7. The publication of the above-presented P.Cair.Masp. III 67353, however, reinforced the idea – we have to admit not without risking a vicious circle – that both were actual juridical texts: or at least drafts of the future binding documents, especially as both are concluded by an apostrophe to the officials, asking them to safe-guard the provisions. Excurse : A Brief Note on apokeryxis The legal nature of the act recorded on both of the papyri notwithstanding the attempts done by the legal historians remains unclear. 8 Most notably, even if we admit that the texts are but the drafts of what was to become later a legal document, their very core, the deed of apokeryxis or abdicatio remains a juristic 7 In that sense, for example originally MASPERO, comm. to line 31, and LEWALD 1914, p. 441445, the most important arguments being the rare vocabulary used and the lack of witnesses or the parties, the autodefinition of the text as διήγηµα, apparently a typical expression of a rhetoric style-exercise. ARANGIO-RUIZ 1920, p. 28-29, dismissed this piece of evidence treating it almost as “legal-fiction”, which obviously influenced his commentary in FIRA III 16. – Contrarily, CUQ 1913, p. 63, and KOSCHAKER 1915, sp. 1503. KOSCHAKER, accepting CUQ’s interpretation, expressed less skepticism as to the real nature of the text, seeing in it a draft or a project of juridical document, similarly ALBERTONI 1923, p. 103-105, and BEAUCAMP 1992, p. 79. Of the same opinion is also MACCOULL 1988, p. 39-40. 8 See for the most recent discussion with a summary of the earlier literature, SCIORTINO 2003, esp. n. 3, and MIGLIORINI 2001, p. 279-350, as well as WURM 1972, p. 92-95. – On that point cf. from the earlier scholarship : MITTEIS 1891, P. 212-213 ; further legal discussion see : TAUBENSCHLAG 1955, p. 54 and 137, who sees it as a way of termination of patria potestas; ALBERTONI 1923, passim ; DÜLL 1943, p. 54-56; ARANGIO-RUIZ 1920, p. 27-33; ARANGIO-RUIZ 1930. MEP_ Dioscore-ok:Dioscore 4/09/08 18:57 Page 125 (Noir/Black film) DIOSKOROS AND THE LAW (ON SUCCESSION): LEX FALCIDIA REVISITED 125 mystery, especially in the light of Diocletian’s apparent discordance with this practice. 9 But this regulation may not be as incoherent with our documents as it seems at the first glance. And I think, following Paul Koschaker and more recently Mario Amelotti and Livia Migliardi Zingale, that Cuq’s proposition of some lost pragmatica sanctio introducing all of a sudden abdicatio in Egypt is unacceptable (one tried reading θεῖοι νόµοι in the line 87 as an indirect reference to this forgotten imperial law). 10 Just how unnecessary such an idea is, can be shown furthermore by Marco Migliorini’s 11 sound reconstruction of the original propositions of the law. He is probably right in putting forward, on the footsteps of Cuq, 12 that initially Diocletian did not forbid apokeryxis but only stressed its incompatibility with the Roman order. 13 The actual prohibition may originally have been aimed at the apparent use of this legal form – “in the Greek way” – to circumvent the ban of alienation of children by means of sale, donation or pledge. 14 And this interpretation may have still been applied to the constitution in the Justinian’s times, as it is proven by the placement of the fragment in the Code title 8.46 de patria potestate. 15 If we accept this reading of CI. 8.46.6, Dioskoros’s execution of deeds of apokeryxis will not surprise anymore. It becomes obvious that these acts do not come within the scope of the Diocletian’s prohibition. And CI. 8.46.6: (Diocletianus et Maximianus AA. Hermogeni) Abdicatio, quae Graeco more ad alienandos liberos usurpabatur et apokeryxis dicebatur Romanis legibus non comprobatur (pp. xvii k. dec. Maximiano A. II et Ianuario conss. : a. 287 or 288); see SCIORTINO 2003, n. 2, citing CONCRAN 1996, p. 84. 10 CUQ 1913 hypothesized that the legitim on the disinherited child was imposed by a lost novel of Emperor Justinian. KOSCHAKER 1915, however, doubts on that point (Sp. 1504-1505), recalling the provisions of Novel 115. – Θεῖοι νόµοι are to be most likely understood as suggested by AMELOTTI & MIGLIARDI ZINGALE 1985, p. 14 and esp. 81-82, who see in the “divine laws” a reference to the Decalogue fourth Commandment and not to any lost pragmatic sanction that would have reintroduced the “aberrant” custom of apokeryxis. 11 See MIGLIORINI 2001, p. 276-316, see esp. 314-315; contra however SCIORTINO 2003, passim, who thinks – to put briefly the thesis exposed in not so brief words – that the original scope of the constitution was prohibition of the Roman abdicatio and not the Greek apokeryxis. Hence there would nothing bizarre in Dioskoros’s double execution of this legal transaction. 12 CUQ 1913, p. 181-239, and CUQ 1917, p. 354-369. 13 I am more sceptical about the further going opinion of this author, that, contrary to what the former scholarship has sustained, Diocletian admitted this practice “entro certi limiti”. See Migliorini 2001, p. 315 and the n. 49. I do not think a mere single papyrus (moreover of a difficult reading), P.Oxy LIV 3758, AD 325 (see esp. l 169 for the apparent mention of apokeryxis), may be a reasonable ground for such an affirmation. 14 See CI. 4.43.1: Imperatores Diocletianus, Maximianus AA et CC. Aureliae Papinianae : Liberos a parentibus neque venditionis neque donationis titulo neque pignoris iure aut quolibet alio modo, nec sub praetextu ignorantiae accipientis in alium transferri posse manifesti iuris est. (a 294 d. xvi k. dec. Nicomediae cc. conss.). “Manifesti iuris est” stresses that the constitution does not introduce any novelty, but reminds of a long-standing principle, so I do not concur with objections concerning the date of this constitution in relation to the date of CI. 8.46.6 advanced by SCIORTINO 2003 against the interpretation of MIGLIORINI. 15 See MIGLIORINI 2001, p. 289-290. Generally concurring with his point, I would not, however, discard as hastily as he does the observation of the earlier scholars, who postulated incoherency in the collocation of CI. 8.46.6. In fact, the title 8.46 of the Code embraces only 9 MEP_ Dioscore-ok:Dioscore 126 4/09/08 18:57 Page 126 (Noir/Black film) JAKUB URBANIK thus the only practical direct example of the “aberrant” – in somewhat weirdly hasty words of two Italian legal historians – practice, from which Diocletian took distance in 288, remains a much earlier, P.Oxy. XXII 2342 (Oxyrhynchos, 102 AD). Our texts seem rather to have been drafts of some kind of complements to the last wills, strengthening the disinheritation clauses in them. 16 The expelled children are actually considered as the “natural” successors of the disconsolated fathers and hence – somewhat mistakenly as we shall see subsequently – assigned falkidion – i.e. legitim – in lieu of their share of inheritance. This documentary invention appears quite comprehensive in the light of Justinian’s Novel 115 obliging parents to institute children as their heirs (and vice versa) unless very particular reasons for their disinheritation have occurred ; and thus fathers in both 67097 and 67353 wanted to make sure that their children came under one of the allowed categories 17 of ungrateful off-spring not admitted by the virtue of “natural law” – in Justinian’s own words – to succession. It is unlikely that Dionysia and Ioannes and Pauline and Andreas really tried to kill their father – the use of the epithets πατρολώος, πατροκτασία, perfect examples of Dioskoros’s inventive linguistics (P.Cair.Masp. III 67353.8 & 11), seems rather to be merely rhetoric, it brings the hyperbolic flavour to the text. More probably the “lawless disposition” and “falling ill” allude rather to the categories summed vaguely the traditional Roman concept of patria potestas. See, for instance, the norm 8.46.4 (a. 259, Valerianus et Galienus Galla) which refers to reverentia due to the mother by her children – as we well know, it has nothing to do with the classical concept of father’s power! 16 In both documents the fathers mention that the acts are conform with their wills: cf. P.Cair.Masp. I 67097 v° D ll. 74-75 and P.Cair.Masp. III 6353.35-36. – See, similarly, WURM 1972, p. 92-95; ALBERTONI 1923, P. 117-118 and GIARO 1983, p. 203-204; MIGLIORINI 2001, p. 327-328; see these works and also for the question of the possible romanisation of apokeryxis. 17 Cf. Nov. 115.3.1-14 : the admitted causes for disinheritance are : (1) children who have acted violently against their parents; (2) who have grossly insulted them ; (3) who have accused their parents of crimes which do not involve the emperor or the state ; (4) who associate with poisoners in order to produce poisons (or perhaps with these who practice magic or generally wrong-doers: the Latin text uses a general term malefactor, whereas the Greek one has poison-maker, φάρµακος); (5) who have attempted against lives of their parents trying to poison them or in any other way ; (6) who have had sexual intercourse with their step-mother or the father’s concubine ; (7) sons, who have acted as delators against their parents, and by doing so have caused them much trouble ; (8) sons who – being financially able to do so – have denied providing guarantee for their parents imprisoned for debts; (9) children who have been proven to have prevented their parents from making a will ; (10) who against the will of their parents have associated with mimes and these who exhibit themselves on arenas; (11) if a daughter – provided with the parental consent to marriage and with a dowry – led a life of debaucheries instead marrying ; (12) children who have not taken care of their insane or generally ailing parents and have not shown them enough respect ; (13) who have not hasten to pay ransom for their parents held in captivity; (14) and finally these children who have left the catholic faith. MEP_ Dioscore-ok:Dioscore 4/09/08 18:57 Page 127 (Noir/Black film) DIOSKOROS AND THE LAW (ON SUCCESSION): LEX FALCIDIA REVISITED 127 in Novel 115.3.4 & 12. The father’s reprimands in P.Cair.Masp. I 67097 v° D sound as if they were alluding to Novel 115.3.11, the disapproved sexual conduct of the daughter and perhaps her impious acts. 18 There is also a third occurrence in the whole papyrological corpus of φαλκίδιον. It is again Dioskoros who used it, this time in the will of Fl. Theodoros, P.Cair.Masp. III 67312. In the deed three heirs were instituted, the monastery of Apa Senouthes in the Panopolite nome, the congregation of Apa Mousaios in the Hermopolitane nome as well as the maternal grandmother of the testator, Herais. The first pious institution should get immovables of the testator located in Panopolite, Hermopolite and Antinoopolite nomes, the other all his movables and other things. Falkidion appears in a fragment which refers to the disposal for the granny: P.Cair.Masp. III 67312 (567, Aphrodite) βούλοµαι δὲ καὶ ἀ̣ξι̣ῶ τὴν προονοµασθεῖσαν εὐγενεστ̣ά̣τη ̣ ν µου πρὸς µητρὸς µάµµην ἔχειν δικαίῳ κληρονοµίας κτῆµα καλούµενον ὑπὸ γεωργὸν 90 διακείµενον ἐν µετὰ [πα]ντὸς αὐτοῦ τοῦ δικαίου καὶ µετὰ̣̣ π̣ά̣ση ̣ ς τῆς αὐτοῦ περιοχῆς, καὶ τούτῳ βούλοµαι αὐτὴν ἀρκεσ̣θῆναι, οὐδὲν ἕτερον δικαίῳ φαλ̣κιδίου ἐπ̣ιζ̣ ητοῦσαν πρός τ̣[ε τ]ὸ δίκαιον τῶν 94 προρηθέντ̣ω̣ν̣ δ̣ύ̣[ο] µον̣α̣σ̣τη ̣ ρίων ἤτοι πρὸς τοὺς προµνηµονευ̣[θέντ]α̣ς̣ Π̣έ[τ]ρον κα̣ὶ̣ Φοιβά̣̣µµωνα τοὺς εὐλαβε[στάτους] προεστῶτ̣α[̣ ς τῶν ε]ἰ̣̣[ρ]η̣µ̣έ[̣ νων] δ[ύ]ο µ[ον]α[στη]ρ̣ί̣ω̣ν̣, τοὺς καὶ ἐµοὺς κληρονόµους “And I want and deem worthy that my above-named noblest maternal grandmoter shall have by the title of succession a plot of land named “Under Georgos” (?) [blank] situated in [blank] with all that justly belongs to it and in all its entity, and I want that it shall suffice her, that she shall not sue for anything else none of the two above-said monasteries or the above-mentioned Petros and Phoibammon, the most reverend priors of the said two monasteries and my heirs on the account of Falkidion.” What is so striking in all three texts? First and foremost the very appearance of the word φαλκίδιον calls for our attention; it is only Dioskoros who used it in P.Cair.Masp. I 67097 v° D, l. 44: µετὰ µοίχου ἀλλοφύλου καὶ ἀναρµόστου Θεῷ. See MIGLIORINI 2001, p. 325-326 and n. 57 with the literature therein cited. I have not been convinced by his interpretation of the co-offender as a non-Christian (adopted from CUQ 1913, p. 199-121), but rather by the reading advanced in BEAUCAMP 1992, p. 80, n. 65, who following J. DIETHART, comm. to CPR IX 77.2 & 6 (Hermoupolis, 5th cent. AD), understands ἀλλόφυλος as “alien”. This epithet may be as well just a pun intended to contrast the good qualities of the other children whose proper disposal to paternal homophylos is stressed in the line 70. 18 MEP_ Dioscore-ok:Dioscore 128 4/09/08 18:57 Page 128 (Noir/Black film) JAKUB URBANIK the whole papyrological corpus. Was this fact due only to his inclination for rare and beautiful words, with literary and sophisticated flavour? Was he perhaps willing to impress his clients? At least in the last case, the last will of an official of the ducal court of Thebaid, a son of a scholastikos, this supposition seems rather dubious. Secondly, and this shall be the subject of the following part of my text, what is the meaning of this term in Dioskoros’s papers? Did he or did he not use it erroneously ? II. The Roman freedom of testamentary dispositions and its limitations A few words of legal commentary may now come in handy. The Roman law of succession since the high pre-classical times (i.e. roughly speaking the midsecond-century BC) tended to restrict the absolute freedom of last-will disposals. One of the troubles that the legislation sought to address was disposing of all the inheritance substance by the way of bequests, leaving the heir named in the will with nothing or almost nothing apart from the debts. After failed attempts to limit this practice in the second century BC by Lex Furia testamentaria and Lex Voconia, the Falcidian Law was passed in 40 BC. 19 This statute allowed the testator to dispose up to three quarters of his substance by the way of bequests (legata), at least the quarter was reserved for the instituted heir or heirs. Should the testator transgress the provisions of Lex Falcidia, the bequests were to be proportionally diminished, so the heres institutus would always get his or her fourth (in terms of civil procedure, should the heir be sued by the legatees for the payment, he or she was condemned to pay only so much, as would result in his or her keeping the quarter share). And thus quarta Falcidia or ratio Falcidiae was coined. It is interesting to observe – and I shall come back to this point subsequently – that in the post-Justinian Byzantine law, all throughout the Basilics, the amount of ratio Falcidiae was set to third part of the estate most certainly under the influence of the Novel 18, rising the amount of legitim from a quarter to one third or half. 20 Another pain-striking problem with the absolute freedom of testaments was the growing custom of leaving extraneous persons as heirs and disinheriting one’s own children. The Romans deemed it as an offence to officium pietatis: the duty to leave something in the will to the natural successors, i.e. the closest relatives, especially children in paternal authority who had helped accumulating the father’s substance. And so a will excluding the children would be seen as inofficiosum, transgressing moral duty by the father would place him on a position equal to a spendthrift or insane, and thus incapable of making a will. This Cf., e.g., KASER 1971, § 188. Cf. C. G. Heimbach, Basilica IV 89, note b. And as an example : Bas. 41.1.1. ῎Εξεστι ληγατεύειν µέχρι τοῦ ὀκταουγκίου· τὸ γὰρ τετραούγκιον τῷ γεγραµµένῳ κληρονόµῳ φυλάττεται “It is allowed to bequeath up to eight twelfths. However four twelfths is secured for the written heir”. The change becomes even more obvious if we compare the Greek paraphrase with the Latin original : D. 35.2.1 pr. (Paulus libro singulari ad legem Falcidiam). Lex Falcidia lata est, quae primo capite liberam legandi facultatem dedit usque ad dodrantem (…). 19 20 MEP_ Dioscore-ok:Dioscore 4/09/08 18:57 Page 129 (Noir/Black film) DIOSKOROS AND THE LAW (ON SUCCESSION): LEX FALCIDIA REVISITED 129 is why, probably already by the end of the Republic, one could institute proceedings to declare invalid such a testament in which the children of the testator had been disinherited and left even without a smallest portion. At some point a number of judicial decisions allowing procedure for invalidation of a will, set a rule making a will voidable if it secured to the entitled persons less than one fourth of what he or she would get in the case of intestate succession. It is quite probable that this quantity was fixed under the influence of already existing Falcidian fourth. And thus should the testator have one child, he had to leave it with at least one-fourth of his substance, either by instituting it as an heir in onefourth or, should he have preferred to disinherit it, by bequeathing or entrusting him or her the same amount (per legatum or fideicommissum). The circle of the closest relatives entitled to the legitim varied. It certainly started with children, perhaps firstly these who were still under patria potestas at the moment of testator’s death, later also emancipated. In later classical times siblings were added in case of institution of a persona turpis as the main heir. Even later, parents were also joined in to this group. Under the Justinianic law, especially after the changes in the order of succession induced by Novels 118 and 127, the set of relatives entitled to the legitim included: children, siblings and parents (and not any other ascendants as it has been wrongly stated in the literature, probably because of a faulty reading of the Novel 115.4). 21 It has become obvious, I hope, to the reader that these two legal figures are evidently distinctive. Legitim is meant to protect “natural successors”, the closest relatives entitled to take part in the succession but unreasonably left in the will with less than it is due to them. Against such will they can raise querella inofficiosi testamenti – claim of undutiful will. On the contrary, the Falcidian Quart was devised to protect the testamentary heir, no matter if he was a relative or not, against the testator too generous for the legatees. To observe the difference one more time, this time with an aid of the legal sources, let us read the passus attributed to classical jurist Paulus: PSent.4.5.5 Ex asse heres institutus inofficiosum dicere non potest : nec interest, exhausta nec ne sit hereditas, cum apud eum quarta aut legis Falcidiae aut senatus consulti Pegasiani beneficio sit remansura. 22 21 See VOCI 1963, vol. II, p. 738, who affirms that ascendants become the necessary heirs, and KASER 1975, § 290 who shares this opinion. However a more careful reading of the law does not confirm it. This wrong supposition has been born by the interpretation of the ch. 4 of the Novel 115 together with the chapter 5. But Justinian imposes on the children a duty to institute only the parents (parentes, γονεῖς) as their heirs, not the further ascendants. In proemium to the chapter five, a situation is described in which either children (ch. 3) or parents (ch. 4) would get less than their due part from the will. In such a case their part should be augmented according to “other our laws” – i.e. most probably provisions of Novel 18. 22 However the much post-classical, anonymous Visigothic interpretation of the same title of Pauli Sententiae does not keep the difference entirely. Even if the exactly corresponding commentary does not confuse these two legal figures (PSent.Int. 4.5.5 Si pater filium ex asse heredem instituat et per fideicommissa aut legata hereditatem ipsam totam diversis distribuat, MEP_ Dioscore-ok:Dioscore 4/09/08 130 18:57 Page 130 (Noir/Black film) JAKUB URBANIK A son instituted as an heir to the whole inheritance has no claim of undutiful will (querella inofficiosi testamenti) if his father-testator dissipates all hereditary substance by the means of bequests and trusts. He should use the legal aid provided by the Falcidian law and Senatusconsultum Pegasianum (the latter applied the benefits of the Falcidian Statute to the universal trustees – fideicommissores universales). III. Dioskoros confused? After this short legal excursus we may understand better the legal issue arising in all three texts of Dioskoros’s archive. In the two former, P.Cair.Masp. III 67353 vo D and P.Cair.Masp. III 67353, the “natural” successors are deprived of what – by the Roman moral standards – should be due to them, as they had been disinherited. In such a case they are entitled to the legitim and not to pars Falcidiae. So Dioskoros is clearly mistaken when he writes that the “parricidal children” and the “mischievous daughter” should only get falkidion (cf. Maspero comm. ad P.Cair.Masp. III 67353 vo D, l. 71). This proposition is strengthened by the way their due part is calculated: onetwelfth of the inheritance mentioned in the lines 14-15 of the first text respects Justinian’s innovation augmenting in Novel 18 the quota of legitim to the third part of the intestate share (in case of more prolific testators the legitim was half the intestate share). 23 One could just gloss over the problem assuming that Dioskoros was evidently mistaken, a fact that would not surprise in a simple village lawyer; such was, for example, the solution adopted in this case by Wurm in his monograph on apokeryxis. 24 Other commentators, however, have strived to establish some reason for that lapse. The easiest and commonest explanation would be the one already suggested by Paul M. Meyer, who in his commentary to the line 71 of P.Cair.Masp. I 67097 vo D, 25 observed that in the Byzantine law φαλκίδιον denoted νόµιµος µοῖρα, i.e., portio legitima. In doing so the German juristic papyrologist evoked the authority of no one else but Karl Eduard Zachariä von filius contra patris testamentum de inofficioso agere non potest, quia quartam sibi aut per legem Falcidiam aut per senatus consulti beneficium retinebit), the immediately following fragment identifies pars Falcidiae with portio legitima (PSent.Int. 4.5.6 : Quoties Falcidia filiis computanda est, de asse hereditatis primo loco defuncti debita detrahuntur et expensa, quae in funere eius praestita est, sed et collatae libertates nihilo minus debebuntur. Et sic liberis Falcidia, id est uniuscuiusque portionis quarta portio, debetur). 23 See the clarification of the Byzantine scholiasts, Bas. 41.4.2 to which sch. 1 explains what portio legitima is: µὴ τριούγκιον αὐτοῖς καταλιµπάνειν µόνον]τὸ νόµιµον προστηµόριον, ὃ καὶ ἐξ ἀδιαθέτου καλεῖται, ἐστὶ µὲν ἄχρι τεσσάρων παίδων τετραύγκιον· ἀπὸ δὲ τῶν δ'. ἄνω ἑξαούγκιον “not the fourth part only leave : legitimate portion, [to which] one is called in case of intestacy, is one-third up to four children, from 4 on: half.” 24 See WURM 1972, p. 95. 25 MEYER 1920, p. 28, ad l. 71, same is accepted by SCIORTINO 2003, n. 90. MEP_ Dioscore-ok:Dioscore 4/09/08 18:57 Page 131 (Noir/Black film) DIOSKOROS AND THE LAW (ON SUCCESSION): LEX FALCIDIA REVISITED 131 Lingenthal and the sources the latter had put forward. 26 This idea has been pacifically accepted by the Romanist scholarship as well. 27 Before analyzing these four particular texts, let me first try to ascertain the veracity of this thesis throughout the Justinian’s legal corpus. Such an assumption seems though to be a bit far-fetched. Actually the postulated identification between the pars falcidia and pars legitima is not so common. Most importantly, none of the normative texts misses the clear distinction between the two legal figures. This assumption is provable throughout the title 41.1 of the Basilics entitled περὶ τοῦ φαλκιδίου. 28 Also the Theophilus’ Paraphrasis of Justinian’s Institutions bears no ambiguity as to their distinction and, obviously, neither does its Latin original (cfr. Title 2.18 de inofficioso testamento and 2.22 de lege Falcidia of both). Almost the same could be said about Justinian’s later legislation : 29 it strictly observes the classical meaning of Lex Falcidia except for two particular cases, Novels 66 & 92, which I shall discuss thereafter (infra, p. 0000). Back to the four sources quoted by Zachariä von Lingenthal. They are, epitomising the same Novel 92: Epitome Iuliani 85, 30 Epitome Novellarum of Athanasius of Emesa 9.7, 31 and two scholia to Basilica 39.1.8, reporting D. 5.2.8.7-9: schol. 18 by Stephanos and schol. 15 by Kalokyros. 26 See ZACHARIÄ VON LINGENTHAL 1955, p. 167-168, where he states that in later Byzantine Law portio legitima (νόµιµος µοῖρα, νόµιµος ποστηµόριον) is called φαλκίδιος (see his n. 530 for the citations); cf. infra, p. 00-00, and notes 29-32 for my commentary. The most recent book regarding Lex Falcidia does not – for obvious thematic limitations – consider this problem at all : cf. SCHANBACHER 1995. 27 See e.g. VOCI 1963, vol. II, P. 677, n. 33, quoting the sources interpreted in this article, and KASER 1975, p. 515. 28 It begins with a quote in § 1 (Bas. 41.4.1, Heimbach IV 145-148) of Novel 1.1, where a reference made to portio legitima (1.1.1) only stresses the disposition of the statute, intended to punish heirs unwilling to pay off the bequests by depriving them of their share in succession but allowing them to keep the legitim. 29 See above all, Nov. 1 de heredibus et Falcidia (a. 535), and the later ones: Novel 108.1 (a. 541); Novel 119.11 (a. 544) as well as Nov. 131.12 (a. 545). 30 Epit. Iul. 85: De immodicis et inofficiosis donationibus. 1. Si pater filios habuerit duos pluresve, et uni ex his donare suas res uoluerit, non liceat ei ultra bessem substantiae suae donare, uel ultra dimidiam secundum numerum liberorum, ut ceteri liberi modis omnibus legitimam portionem, id est, Falcidiam accipiant, quam haberent, si tertiam partem uel dimidiam eo tempore acciperent, antequam donatio facta sit, scilicet nisi ingrati fuerint. Nam si probatae sunt ingratitudinis causae, legibus pristinis subiiciantur. Dat. Id. Octob. Indict. VII mens. mart. (?) (539 ?). 31 Athanasius Scholasticus of Emesa, Epitome Novellarum 9.2 [Heimbach, Anecdota I 102]: ῎Ηδη τὰ περὶ τοῦ φαλκιδίου. ῾Ο ἄµετρον δωρεὰν εἰς τηνὰς (l. τινὰς) τῶν παίδων ποιησάµενος ἀνάγκην ἔχει ἐν τῇ διανοµῇ τοῦ οἰκείου κλήρου τοσοῦτον ἑκάστῳ παίδων τὸ ἐκ τοῦ νόµου φυλάττειν µέρος, ὅσον ἥρµοττεν πρὸ τοῦ αὐτὸν τὴν εἰρηµένην ποιήσασθαι δωρεάν, οὐ δυνάµενον τοῦ τιµηθέντος παιδὸς τῇ τοιαύτῃ δωρεᾷ ταύτῃ µὲν ἀρκεῖσθαι, τοῦ δὲ πατρῴου κλήρου ἀφίστασθαι, ἀλλ' ἀναγκαζοµένου ἢ τῶν δωρεῶν ἐξίστασθαι ἢ τὸν κλῆρον προίεσθαι καὶ τοῖς ἀδελφοῖς ἐξισοῦν τὸ νόµιµον µέρος. Μικρᾷ τῇ παραυξήσει δύναται ὁ πατὴρ τοὺς ἰδίους προτιµᾶν παῖδας. Σηµείωσαι, ὅτι τοὺς κατὰ τῶν ἀχαρίστων νόµους ἀκεραίους ἐφύλαξεν, καὶ ὅτι ἐν ἀρχῇ τὸ νόµιµον µέρος φαλκιδίον ἐκάλεσεν. ᾿Ανάγνωθι βϊ. λα´. τϊ. α´. διατ. πζ´. καὶ βϊ. γ´. τοῦ κωδ. τϊ. κθ´. ∆ιατ. η´. ᾿Εγρ/ ς´. ἰδῶν ᾿Οκτωβρίων βασιλείας MEP_ Dioscore-ok:Dioscore 132 4/09/08 18:57 Page 132 (Noir/Black film) JAKUB URBANIK Let me first discuss the juridical commentaries of Basilica. Kalokyros seems indeed to have been mistaken by conducting the duty of leaving a legitimate share to a child to the provisions of the Falcidian statute. 32 His testimony, however, should not really induce us to believe in commonness of this identification already in the Justinianic times as Kalokyros lived in the late 11th century. Secondly, what the lawyer might have wanted to say in this passage may be not that the duty of legitim was created by Lex Falcidia, but that its calculation – originally one fourth – was influenced by it. A careful reading of scholion 18 33 which Zachariä ascribed to Stephanus, more or less Justinian’s contemporary, neither does prove the statement of the ᾿Ιουστινιανοῦ τὸ ιγ´. ὑπατείας ᾿Απίωνος “Recently on Falcidia. The one, who has made an immense donation to one of his children, shall safeguard in division of the family inheritance for each of the children the part [to which he or she is entitled] according to the law, in amount he or she would get before the said donation was made. So the child honoured with the donation shall not be allowed to stay pleased with it, and to renounce the paternal inheritance, but shall be forced either to give up the donations, or to accept the inheritance and supply the legitim part to the brothers. The father prae-honour his own children with a small augment. Observe, that the laws against ingrate are kept untouched [by this constitution], and that at the beginning the legitim was called falkidion. Read book 31, title 1, fragment 87 and book 3 of the Code, title 29, fragment 8. Written on the 6th day before the Ides of October, in the 13th year of the reign of Justinian, during the consulship of Apion.” 32 Schol. 15 ad Bas. 39.1.8 [Heimbach IV 12]: Θεµάτισον, ὡς ὁ πατὴρ τὸν ἄνηβον εἰς τὸ ἀπὸ τοῦ Φαλκιδίου νόµιµον ἐποφειλόµενον γράψας κληρονόµον ὑπακατέστησεν αὐτῷ “and take an example, that the father has instituted an infant his heir to the legal part according to Lex Falcidia and then made his substitution”. Cf. also the original Digest text (D. 5.2.8.7-8 init.) which discusses the problem of pupillary substitution in the second tablets, the case is clearly explained by SCHULZ 1951, p. 263-264. 33 Schol. 18 ad Bas. 39.1.8 [Heimbach IV 14]: τὸ τρίτον λέγοµεν] ῞Οτι µὲν οὖν τὸ τέτρατον [and here we notice how much Stephanus’s reasoning depends on his classical Roman predecessor: he did not bother much with up-dating the amount of the legitim in accordance to the provisions of Novel 18] τῶν ἐξ ἀδιαθέτου καταλιµπανόµενον τῷ παιδὶ τῆς µέµψεως αὐτὸν ἀποκλείει, δῆλον ἐκ τῶν εἰρηµένων. Ποίας δὲ ἄρα περιουσίας τὸ δ´; καί φησιν ὁ Οὐλπιανός, τῆς οὐσίας ἐκείνης χρῆναι τὸ δ´. καταλιµπάνεσθαι µέρος, ἥτις εὑρίσκεται µετὰ τὴν τῶν χρεῶν καὶ τῶν περὶ τὴν ταφὴν δαπανηθέντων ὑπεξαίρεσιν. ἆρα δὲ αἱ ἐλευθερίαι µειοῦσι τὸ δ´. ἢ οὐ µειοῦσιν, ἄξιόν ἐστιν ἐνταῦθα σκοπῆσαι. Εἰ γάρ, ὅτε τις ἐξ ὁλοκλήρου γέγραπται κληρονόµος, παῖς ὢν δηλονότι τοῦ τεστάτορος, ληγάτοις τῆς πάσης δαπανηθείσης οὐσίας, διὰ τοῦτο οὐ δύναται τὴν δεϊνοφικίοσο κινεῖν, ἐπειδὴ φυλάττεται αὐτῷ παρὰ τῶν νόµων Φαλκίδιος· ὁ δὲ Φαλκίδιος οὐ µειοῖ τὰς ἐλευθερίας, τοὐναντίον µὲν οὖν ὑπ' ἐκείνων µειοῦται· δυνατόν ἐστιν εἰπεῖν καὶ ἐπὶ τῆς προκειµένης ζητήσεως, ὅτι µετὰ τὴν τῶν ἐλευθεριῶν ὑπερξαίρεσιν τὴν καθαρὰν σκοποῦµεν οὐσίαν, καὶ ταύτης καὶ µόνης τὸ δ´. φαµὲν ἀποσῴζεσθαι τῷ παιδί “and we say ‘the third’: it is obvious from the said (above) that if the fourth part of the portion due intestate is left to the child, he is barred from suing by claim of undutiful will. But the forth of what estate ? and Ulpian says that the fourth of what is found after the debts and funeral expenses have been deducted should be left. But it is worth asking if the manumissions diminish the fourth or do they not. And if someone has been named heir to the entire estate, namely a child of the testate, and the bequests have extinguished the substance (of the inheritance), he may not on this account use de officioso, because he is protected by the Falcidian Law. And the Falcidian (part) does not diminish the manumissions, on the contrary, it is diminished by them ; and so one may say the same in the proposed question, that we look at the pure substance having deducted the manumissions, and we shall say that only the fourth part of it shall be safe-guarded for the child.” MEP_ Dioscore-ok:Dioscore 4/09/08 18:57 Page 133 (Noir/Black film) DIOSKOROS AND THE LAW (ON SUCCESSION): LEX FALCIDIA REVISITED 133 German law historian. The Byzantine jurist, quoting in fact the original Ulpian’s reasoning (D. 5.2.8.9), 34 indeed mentions Lex Falcidia in the context of claim of an undutiful will, but by all means he does not confound it with the legitim. The legal issue discussed in the original Digest fragment concerned computation of the actual value of the inheritance, from which the legitim would be calculated, above all whether the costs of the possible manumissions should be deducted from it. The positive answer was based on the following reasoning: because Lex Falcidia does not interfere with manumissions (the heir cannot use its benefit not to perform them), so the real value of the estate is known after the manumissions have been made. And the same principle therefore should be applied in case of calculating of the legitim. Ulpian’s fragment and its Byzantine paraphrase proves to the best the close association of Lex Falcidia and the praetorian invention of legitim. Moreover, comparison does not amount to confusion of two legal institutes, but to its exclusion. Zachariä is obviously right about the two Epitome texts. Both Athanasius and Julian cannot have been more clear. They write, respectively: καὶ ὅτι ἐν ἀρχῇ τὸ νόµιµον µέρος φαλκίδιον ἐκάλεσεν, legitimam portionem, id est, Falcidiam. Let us observe that these, closely related texts, are of scholarly nature and actually the clause “the legitim, that is falcidia” seems to be a gloss or a note, if you like, which illustrates better the very shortened text of the Novel 92. It is certainly due to the praefatio of the original Novel, where the legislator mentions the recent augment of pars Falcidiae, having probably in mind in fact the raise of legitim by Novel 18. 35 We may observe in the Athanasius’s text how Falcidia may have entered the discourse. The praefatio in the abbreviated version makes for a heading of the fragment, loosing the reference valour to another law it had in the original. It was natural therefore to mention it again in the text proper. Notwithstanding of this identification apparently present in Novel 92, I am apt to think that the original praefatio does not present the official legal doctrine on the subject, as the normative part of the statute, caput 1, that is the part epitomised by Julian and Athanasius, does not equate these two legal figures. I shall come back to this point further, discussing the case of the Novel 66 (infra, p. 00-00). I hope to have been able to prove that, contrary to what has been suggested, the inaccuracy in Dioskoros’ papers may not be to imprecise Justinian’s jurisprudence that allegedly had equated the two concepts. By the same account 34 D. 5.2.8.9 (Ulpianus 14 ad Edictum) Quarta autem accipietur scilicet deducto aere alieno et funeris impensa : sed an et libertates quartam minuant, videndum est. Et numquid minuant ? Nam si, cum quis ex asse heres institutus est, ideo non potest dicere inofficiosum, quia habet Falcidiam, Falcidia autem libertates non minuit : potest dici deductis libertatibus quartam ineundam. Cum igitur placet quartam minui per libertates, eveniet ut, qui servos tantum habet in patrimonio suo, dando eis libertatem inofficiosi querellam excludat : nisi forte hic filius, si non fuit in potestate, a patre heres institutus merito omittit hereditatem et ad substitutum transmittens querellam inofficiosi instituet, vel ab intestato citra edicti poenam habeat hereditatem. 35 Dudum de Falcidia et illius parte decrevimus, augentes eam non ignobili incremento. Quo denim nimis inaequale est, non valde placet nobis, sed oportere quidem praeponi filios quos pater voluerit, non tamen in tantum inminuere alios, ut inportabilis eis sit diminutio. MEP_ Dioscore-ok:Dioscore 134 4/09/08 18:57 Page 134 (Noir/Black film) JAKUB URBANIK one has to remain sceptical as to the veracity of Peter van Minnen’s assumption, who dismissed the easy error theory and claimed that the identification and the calculation of the legitim with regard to the augment decreed by Novel 18 proved to the contrary : Dioskoros’s being “juridically up to date”. 36 The piece of evidence presented, Justinian’s Novel 18 which reformed the system of Roman legitim, cannot be construed as even implicitly linking Falcidia with portio legitima. Before trying to offer another explanation of supposed Dioskoros’s mistake, let us have a closer look at the third piece of evidence, P.Cair.Masp. III 67312. IV. Falkidion and the Granny : P.Cair.Masp. III 67312 The will of Fl. Theodoros presents the reader with much more complicated situation. Unlike the two earlier examples, the context – a will, in which there are obviously heirs named (the grandmother and two monasteries) – justifies the use of “falkidion”. Dioskoros, at the first glance, seems to have properly applied it, referring to the protection of the fair share of the inheritance pertaining to each heres institutus. However, ascertaining this proposition is not that easy. Let us remember that Lex Falcidia diminished testamentary dispositions which would overly encumber the heirs’ shares. Still, Theodoros did not burden any bequests or trusts his successors. In order to understand the sudden emergence of Lex Falcidia in this instance, we have to affront a complex problem of institution of heirs ex re certa, that is, of assigning to the heirs singular items from the hereditary substance, contrary to long-established Roman legal disposition requesting the heirs to be instituted ex quota of the complete estate. 37 To cut a long story short, originally such a will was regarded as void, but at the latest in the later classical times, it was held to be valid. To preserve the concept of universality of succession, the classical jurists established that all the heirs named in such a will were treated as if they had been instituted in equal shares and the particular items originally assigned to them became the objects of specific bequests bestowed on the heirs (legata quasi per praeceptionem). And so Fl. Theodoros’s grandmother and the two monasteries became his heirs in equal shares, and legatees of, respectively: an unnamed field-plot (the space to was to be filled in the final version of the will), immovables and movables of the Theodoros’ substance. Theoretically speaking, should it turn out that any of heirs, after deducting specific bequests for the others and the hereditary debts, would eventually VAN MINNEN 2003, p. 129. The reader may find a more detailed study of the problem in the classical handbook VOCI 1963, vol. II, p. 151-159, where a development of the Roman scholarship has also been presented. Naming the heir to the particular items in the inheritance was contrary to the principle that inheriting caused universal succession; see, especially D. 28.5.35 pr.-2 (Ulpianus) and D. 28.5.79 pr. (Papinianus). 36 37 MEP_ Dioscore-ok:Dioscore 4/09/08 18:57 Page 135 (Noir/Black film) DIOSKOROS AND THE LAW (ON SUCCESSION): LEX FALCIDIA REVISITED 135 become the patron of less than one ninth of the estate, 38 he or she may be allowed to use the aid of Lex Falcidia to prevent the others getting their bequests in full. Theodoros, however, aided by our notary, denies his grandmother this benefit. And not without reason, he was permitted to do so by the Novel 1.2.2 (a. 535) which allow exclusion of the benefit of Lex Falcidia. Furthermore, Justinian decreed that in case of bequests made to a certain venerabilis domus (which is exactly our case) Lex Falcidia would not apply : CI. 1.3.48.7: Imperator Iustinianus: Haec tamen omnia locum habere sancimus, quando non certi xenonis vel certi ptochii vel certae ecclesiae nominatio a testatore subsecuta est, sed incertus est eius sensus. sin autem in personam certam vel in certam venerabilem domum respexit, ei tantummodo hereditatem vel legatum competere sancimus, nulla falcidia nec in hac parte intercedente (a. 531 d. x k. Sept. Constantinopoli post consulatum Lampadii et Orestis vv. cc.). 39 I suggest therefore Dioskoros correctly used Falkidion in the draft of Theodoros’ last will. My proposition may be strengthened by the fact that, contrary to what the scholarship that has dealt with the Justinian law on succession puts forward, the ascendants other than parents were not entitled to pars legitima, so possible confusion between the two terms is to be excluded (see supra n. 20 for the discussion of the sources). V. Towards explanation of the Dioskoros’s error How to explain, then, Dioskoros’s mixing-up Falkidion in one case, and apparently using it with a great skill (the reasoning I have tried reconstructing seems almost too elaborate for a village lawyer, and I must say does not entirely convince myself)? Perhaps the answer is to be looked for in a few legal texts found in Corpus Iuris and Codex Theodosianus. It is beyond doubt absolutely that these two distinct but similar legal realities were linked in the common perception, as well have already seen in D. 5.2.8.9 (supra p. 00-00 and n. 34). Suffice to recall the changes that the quota of both pars Falcidia and portio legitima underwent the large time-span from the pre-classical to the late Byzantine times. 40 It has been put forward that quarta Falcidia influenced fixing the amount of the due portion to one fourth of the intestate share. Strangely enough, rising portio legitima by Justinian’s Novel 18 to one-third apparently 38 As I recalled above, the Falcidian part was risen by the Byzantine jurisprudence to the third of the share nominally assigned to the heir by the will. In our case it is therefore 1/9. 39 The whole constitution deals with the problem what to do if the testate instituted as heirs either some unspecified poor, or prisoners of war, or some other indefinite pious cause. The general rule would be to assign the hereditas to the bishop or the church of his home town so that the hereditary substance may be used for the poor and prisoners of this town (but without their right to Falcidia). – The disposition of CI. 1.3.48.7 was later repeated by Nov. 131.12 (a. 545). 40 An analogous thing happened in the post-classical period when the sources refer every case of litis crescentia in duplum to be based on Lex Aquilia. See, Inter. PSent. 1.13.6 ; 1.19.1 ; 2.32.24 ; LRB 14.8 ; 14.29, and KASER 1975, P. 437 & n. 5 as well as LEVY 1956, p. 331-339. MEP_ Dioscore-ok:Dioscore 4/09/08 136 18:57 Page 136 (Noir/Black film) JAKUB URBANIK increased the amount of pars Falcidia to the same quota in post-Justinian Byzantine jurisprudence. Probably due to this close association the so-called Western barbaric legal collections linked entirely Falcidia with legitima, loosing entirely the distinction. It is especially well visible in following fragment of Lex Romana Burgundiorum: LRB 45.5 : testamenta vero, quibus filiis aut nepotibus Falcidia non demittitur, nullo iure subsistunt. […] 7. hoc est filius vel filia, sine filiis morientes, matrem sine Falcidia praeterire non possunt, ut valeat testamentum. 41 There are also two texts authored by Justinian’s chancery, already mentioned, and partly discussed above (supra p. 00-00) which seem to include the same misconception as Dioskoros in the two apokeryxis papyri. As I have already exposed one of them, Novel 92, I shall concentrate here on the other, Novel 66 (a. 538). At any rate, I think that my clarifications hold for both of them. The goal of this enactment was to hold valid mortuary dispositions made already under the rule of a new law but in accordance to the older laws. The statute foresees that they would not be void as long as it could be proven that the new law had not yet been properly promulgated in the location in which the faulty dispositions were made. Let us read the preface, evoking two particular earlier laws by Justinian to which the regulation shall apply and then the chapter 5 of the same, dealing specifically with one them : Novel 66 (a. 538) Praef. ᾿Αεὶ τῶν νόµων ἡµῖν ἀφορµὰς αἱ τῶν κινουµένων ὑποθέσεων παρέχουσιν αἰτίαι. Πολλῶν γὰρ ἡµῖν προσελεύσεων γινοµένων προφάσει τῶν ἡµετέρων διατάξεων, ἃς ἐπὶ ταῖς διαδοχαῖς ἐγράψαµεν, ὁποῖον δὴ τὸ περὶ τοῦ δεῖν οἰκείᾳ χειρὶ τὸν διατιθέµενον τὸ τοῦ κληρονόµου γράφειν ὄνοµα, καὶ αὖθις ἐκ πόσων οὐγκιῶν λογίζεσθαι χρὴ τὸν Φαλκίδιον, ὃν τοῖς παισὶν οἱ γονεῖς καταλιµπάνουσιν Semper legum nobis occasiones motorum negotiorum praebuerunt causae. Plurimis enim nobis aditionibus factis occasione nostrarum constitutionum quas super successionibus scripsimus, quale est ut oporteat propria manu testatorem heredis scribere nomen, ex quantis unciis reputari oporteat Falcidiam quam filiis parentes relinquunt (…) 41 These fragments of LRB probably sum up the content of CTh. 2.19.1-4 (note however that in the original constitutions promulgated by Constantine the Great, the proper and adequate term was used : actio inofficiosi testamenti), which only proves further that the equation falcidia = legitima is a product of the vulgarisation of Roman law. See also : Lex Romana Burgundiorum 31.2 : relique vero cause in expressis metarum suarum terminis finiantur; id est de inofficiosis testamentis, de immodicis donationibus, hoc est, ubi falcidiae filiis non reservantur, intra quinquennium debere et proponi et peragi de non numerata pecunia. On these fragments see, but without further clarifications, BAUER-GERLAND 1995, p. 108 and 118. Other Western Vulgar law sources identifying portio legitima with pars Falcidia are Inter. PSent 3.11.3 ; 4.5.6 and Inter. ad Cod. Greg. 4.2; 8.2. MEP_ Dioscore-ok:Dioscore 4/09/08 18:57 Page 137 (Noir/Black film) DIOSKOROS AND THE LAW (ON SUCCESSION): LEX FALCIDIA REVISITED 5. Συνελόντας τοίνυν εἰπεῖν λαµβανέτωσαν οἱ παῖδες τὸ καταλελειµµένον αὐτοῖς, εἰ οὕτω τύχοι, παρὰ τῶν πατέρων τριούγκιον ἐκ τῶν οὕτω γενοµένων διαθηκῶν ἢ πρὸ τῆς τοῦ νόµου θέσεως, ἢ µετὰ τὴν θέσιν τοῦ νόµου πρὶν δὴ τοῦτον παρὰ τοῖς ἄρχουσιν ἐµφανῆ καταστῆναι. Εἰ δὲ καὶ προσκεόιτο ταῖς διαθήκαις τὸ χρῆναι τὸ λεῖπον αὐτοῖς ἀναπληρωθῆναι πρὸς τὸ τότε κατὰ τοὺς νόµους ἐποφειλόµενον, τοῦτο λαµβάνεσθαι κατὰ τοὺς παλαιοὺς νόµους, ὥστε εἴπερ ἐλλείπει τι τῷ τριουγκίῳ, εἰς ἐκεῖνο τὴν ἀναπλήρωσιν γίνεσθαι, ἀλλ' οὐκ εἰς τὸ τετραούγκιον, τὸ ὕστερον µὲν νοµοθετηθέν, οὔπω γε µὴν τότε γνωσθέν. 137 5. Collective igitur dicendum percipiant filii relictas sibi, si ita contigerit a patribus tres uncias ex testamentis ita factis aut ante legis positionem aut post positionem legis, antequam haec tamen apud iudices innotesceret. Si vero adiectum sit testamentis, oportere quod reliquum est eis impleri secundum quod tunc legibus debebatur, hoc percipiendum secundum antiquas leges, ut si deest tribus unciis, secundum illud supplementum fiat et non in quadriuncio, quod postea quidem sancitum est, nondum tamen tunc agnitum. The preface mentions laws ordering holographic institution of the heir and another one augmenting “Falcidiam” (just like the Novel 92). If we read chapter five of the same novel, we may well track back the act referred to in the preface : Justinian thinks of his Novel 18 reforming the system of legitim. Does the “mistake” in the introduction to the constitution mean that Justinian assimilated falcidia with legitima? Just as I have not thought so in the case of Novel 92, neither do I think so here. An unknown chancery official preparing the text of this imperial promulgation must have simply introduced in the preamble a common association without giving it too much thought. This lapse does not really matter in the policy statement – the part of a law normally with a little or none normative content –, as the truly normative part of the law, chapter 5, keeps the distinction and uses proper classical terminology. In view of the above we may simply assume that Dioskoros, a common lawyer after all, by using falkidion in P.Cair.Masp. I 67097 v° D and III 67353, adopts the same common juristic connection which was widespread among his peers. Just before I finish this paper let me advance another, perhaps more feeble, hypothesis. Falcidia, in the non-classical meaning, appears four more CTh. 16.8.28: (Theodosius & Valentininus, a. 426) Impp. Theodosius et Valentinianus aa. Basso praefecto praetorio. si Iudaei vel Samaritae filius filiave seu nepos, unus aut plures, ad Christianae religionis lucem de tenebris propriae superstitionis consilio meliore migraverint, non liceat eorum parentibus, id est patri vel matri, avo vel aviae, exheredare vel in testamento silentio praeterire vel minus aliquid eis relinquere, quam poterant, si ab intestato vocarentur, adipisci. quod si ita forsitan evenerit, iubemus eum ab intestato rescissa voluntate succedere, libertatibus, quae in eodem testamento datae fuerint, si intra legitimum numerum sunt, suam obtinentibus 42 MEP_ Dioscore-ok:Dioscore 138 4/09/08 18:57 Page 138 (Noir/Black film) JAKUB URBANIK times in the post-classical legal corpus. In CTh. 16.8.28, reporting a constitution of Theodosius II and Valentinianus, 42 this term means again legitim. But in three other sources, it actually designates something totally different to the classical quarta Falcidia or pars legitima. The use of the term falcidia to denote the new legal institutes was certainly induced by the similar way of calculation of the part (one fourth) and its relation to the law of succession (see infra. n. 00-00). In the Western Novel 6 of Majoranus 43, it denotes a part of the inheritance due to the daughters forced by their parents to enter monastic life and left out in their wills. In CI. 9.8.5 (= CTh. 9.14.3) 44 of Arcadius & Honorius promulgated 4 September 397, it was used to describe the part that daughters of men convicted of conspiracy against imperial officials would get as “a mere alimony’ from the estates of their mothers (that is wives of the culprits). The most interesting is the last text CTh. 5.1.4 pr.-2 (Valentinianus/Theodosius I/Arcadius : a. 25.02.389), 45 partially reported in Codex Iustinianus (6.55.9 pr.-1): firmitatem. si quid maximum crimen in matrem patremve, avum vel aviam tales filios vel nepotes commisisse aperte potuerit comprobari, manente in eos ultione legitima, si accusatio interea iure processerit, parentes tamen sub tali elogio, cui subpeditabunt probabilia et manifesta documenta, solam eis falcidiam debitae successionis relinquant, ut hoc saltem in honorem religionis electae meruisse videantur, manente, ut diximus, criminum, si probata fuerint, ultione. et cetera. dat. vi id. april. Ravennae Theodosio xii et Valentiniano ii aa. conss. (8.04.426). 43 Novella Maiorani 6.3 : et quia earum coepit causa tractari quas ad divinae religionis cultum cupientes demigrare volumus, non coactas si parentum odiis ablegata propositum servandae virginitatis induerit, quae a fratrum consortio parricidali quodammodo arte subtrahitur ne aut copulae tradenda maritali patris matrisve congrua largitate aut eorum decedentium aequa cum reliquis filiis successione potiatur, parentum obuentium more iam libera nec dum quadraginta annos quibus vellari nequiverit, aetatis egressa nubendi, ex quo suae potestatis esse iam coeperit, licentiam sortiatur. Neque enim sacrilega iudicanda est, quae se hoc ante noluisse aut certe non posse conplere adpetita coniugii honestate prodiderit, cum Christianae religionis institutio atque doctrina melius esse censuerit virgines nubere quam inpatientiae ardore naturali professae pudicitiae non servare virtutem. Cum itaque in matrimonium nuptias secuta convenerit, exhereditatio illi ob hoc a parentibus veniens aut sola Falcidiae quantitatis relicta non noceat, sed scriptis heredibus vel suis in virilem portionem vel extraneis in dimidiam tamquam praeterita secundum normam veteris iuris adcrescat. 44 CI. 9.8.5.3 (= CTh. 9.14.3.2, Arcadius & Honorius a. 397): Ad filias sane eorum, quolibet numero fuerint, Falcidiam tantum ex bonis matris, sive testate sive intestata defecerit, volumus pervenire, ut habeant mediocrem <ingrate> potius filiae alimoniam quam integrum <integer> emolumentum ac nomen heredis. Mitior enim circa eas debet esse sententia, quas pro infirmitate sexus minus ausuras esse confidimus. 45 For the authorship of the law see Palingenesia of Laws of the Theodosian Dynasty: <http ://www.iuscivile.com/materials/honore/leges/laws6.shtml#d389v>. It was apparently prepared by Western quaestor n° 2 whose tenure begins in 389, ends 390. HONORÉ 1994, p. 187, n. 101, thinks he was a lawyer by training and uses, among others, CTh. 5.1.4 to demonstrate it. It is true that its language is decisively technical in flavour (use of praeteritus, Lex Falcidia, de cuius bonis, etc.). MEP_ Dioscore-ok:Dioscore 4/09/08 18:57 Page 139 (Noir/Black film) DIOSKOROS AND THE LAW (ON SUCCESSION): LEX FALCIDIA REVISITED CI. 6.55.9 pr. (CTh. 5.1.4 pr.) : Si defunctus cuiuscumque sexus aut numeri reliquerit filios et ex filia diem functa cuiuscumque sexus aut numeri nepotes, eius partis, quam defuncta filia superstes patri inter fratres suos fuisset habitura, duas partes consequantur nepotes ex eadem filia, tertia pars fratribus sororibusve eius quae defuncta est, id est filiis filiabusque eius, de cuius bonis agitur, avunculis scilicet sive materteris eorum, quorum commodo legem sancimus, adcrescat. CI. 6.55.9.1 (CTh. 5.1.4.2) Haec eadem, quae de avi materni bonis constituimus, de aviae maternae sive etiam paternae simili aequitate sancimus: nisi forte avi ad elogia inurenda impiis nepotibus iusta se motos ratione dixerint et hoc fuerit legibus approbatum. <a. 389 Mediolani) 139 CTh. 5.1.4.1 Quod si hic defunctus, de cuius bonis loquimur, habebit ex filia nepotes et praeterea filios non habebit, sed qui praeferri nepotibus possint habebit agnatos, *in quandam Falcidiam* hi et in dodrantem nepotes iure succedant. *-* in quartam falcidiam : Codices Wallersteinensis/Gothanus (10th cent.) both conserving entire text. First paragraph of this law (= CI. 6.55.9 pr.) changes in a revolutional way the rules of the intestate succession among Romans allowing relatives on the distaff side (grandchildren of a deceased daughter) to inherit together with living maternal uncles and aunts. Grandchildren on the distaff side shall receive two thirds of the original portion of their mother; and the portion of the heredes legitimi shall increase by the remaining third. The second paragraph, omitted by the Justinianic compilers, describes a situation in which the de cuius left only grandchildren on the distaff side and his own agnatic relatives (brothers/sisters). In that case the grandchildren shall get three-quarters of the inheritance and the agnates, “on the likeness to Falcidia”, 46 shall receive the rest. It is obvious the name falcidia, which is significantly omitted in the Interpretatio of the passage, 47 has nothing to do with the original content of Lex Falcidia or the querella Or if we accept the alternative reading: “the Falcidian quart”. Inter. CTh. 5.1.4.1 : Si vero quis moriatur intestatus et relinquat ex filia nepotes et filios non dimittat, sed fratrem et sororem superstites derelinquat, tres partes hereditatis avi materni sibi nepotes vel nepotes ex filia vindicabunt, quartam frater vel soror avi defuncti iuxta legis huius ordinem consequentur. It is yet another proof of how legally precise and “classical” is this legal work, traditionally and unjustly branded as “barbaric”. 46 47 MEP_ Dioscore-ok:Dioscore 140 4/09/08 18:57 Page 140 (Noir/Black film) JAKUB URBANIK inofficiosi testamenti. It is only associated with it : 48 as it secures the rights of the heres legitimus ab intestato just as the Lex Falcidia originally secured the rights of the heres testamentarius against the testamentary beneficiaries. This difference seems to have been clear to a learnt copier of the text of the Code who might have substituted the original version of in quartam falcidiam still present in Codices Wallersteinensis and Gothanus to in quandam falcidiam. Moreover the difference between legitim and pars falcidia was perfectly obvious to the author of the constitution. In CTh. 5.1.4.2, while describing the mechanism of querella inofficiosi testamenti available to grandchildren against their grandparents” wills, he diligently omits any reference to Falcidia. 49 I have shown above that the Justinianic jurisprudence was perfectly conscious of the distinction between falkidion and legitima. They may have thus consciously omitted § 1 of CTh. 5.1.4, just because for their classicising inclinations it assimilated too closely two distant legal realities.Where does this bring us? Since the publication of P.Cair.Masp. I 67028 to which Leo’s promulgation was attached in a version different from the one known from the Justinianic Code (it only roughly corresponds to CI. 5.9.6 + CI. 6.20.17 + CI. 6.61.4) 50, one suspected that Dioskoros was in possession of some other, precodification collection of imperial enactments. This could have also been the case with some regulations regarding Lex Falcidia. We have seen that pars legitima and Falcidia were closely associated and even perhaps equated in the general perception, especially in the West, at least before Justinian’s times when his classicizing codifiers tried – in vain – to purge Roman law from its post-classical alternations. Notwithstanding these efforts this identification, or a lapse, was certainly present in the works intended for scholarly and every day legal use (see Epitoma Novellarum of Athanasius and Julian, quoted and discussed above, p. 00-00). It may lead us to assumption that what Dioskoros studied was not the law as presented to the students by Justinian’s grace in his Institutiones but the pre-codified version. Our notary had certainly kept and used notes from the lectures he attended (we know well the practice of note-taking from late antique universities). And hence the legal expertise shown especially in the will of Theodoros or keeping up-to-date with the augment of the legitim introduced by Justinian in the Novel 18 should not surprise us so much. These were important 48 See also BAUER-GERLAND 1995, P. 110, who, however, does not notice the different version of the passage transmitted in Cod. Wallersteinensis/Gothanus. She also understand the passages as establishing yet another type of legitim, Pflichtteil, but this reading cannot be upheld, the technical meaning portio legitima is clearly restricted! 49 And the author of the constitution is perfectly conscious about it, cf. CTh. 5.1.4.2, where a very proper description is made of querella inofficiosi testamenti, without any reference : Non solum autem si intestatus avus aviave defecerit, haec nepotibus quae sancimus iura servamus, sed et si avus vel avia, quibus huiusmodi nepotes erunt, testati obierint et praeterierint nepotes aut exheredaverint, easdem et de iniusto avorum testamento et si quae filiae poterant vel de re vel de lite competere actiones nepotibus deferimus secundum iustum nostrae legis modum, quae de parentum inofficiosis testamentis competunt filiis. 50 Cf. VAN MINNEN 2003, p. 123-126; PARTSCH 1911, p. 234, and AMELOTTI & MIGLIARDI ZINGALE 1985, p. 56-61. MEP_ Dioscore-ok:Dioscore 4/09/08 18:57 Page 141 (Noir/Black film) DIOSKOROS AND THE LAW (ON SUCCESSION): LEX FALCIDIA REVISITED 141 details for the legal productivity of the deeds Dioskoros prepared. On the contrary, he did not really have to bother with the tiny refinements re-introduced by Justinian: an imprecise, popular use of a technical term did not invalidate the documents. I hope to have been able to prove that observations of even marginal problems such as Lex Falcidia in the Dioskorean corpus may contribute to the better understanding of his legal training and expertise. I also hope to have shown once more how useful the study of juristic papyri is for the conventional legal historians, re-reading of the legal texts provoked by the obscurities in the P.Cair.Masp. I 67097 v° D, 67353 and III 67312 makes us comprehend better the Byzantine jurisprudence and Justinian’s legislation. Bibliography ALBERTONI, A., 1923, L’apokeryxis. Contributo alla storia della famiglia, Bologna. AMELOTTI, M. & MIGLIARDI ZINGALE, L., 1985, Le costituzioni giustinianee nei papiri e nelle epigrafi, Milano (2nd ed.). ARANGIO-RUIZ, V., 1920, « Applicazione del diritto giustinianeo in Egitto», Aegyptus, p. 21-36 ARANGIO-RUIZ, V., 1930, Persone e famiglia nel diritto dei papiri, Milano. BAUER-GERLAND, F., 1995, Das Erbrecht der Lex Romana Burgundiorum, Berlin. BEAUCAMP, J., 1992, Le statut de la femme à Byzance (4e-7e siècle) II. Les pratiques sociales (Centre de Recherche d’Histoire et Civilisation de Byzance, Monographies 6), Paris. CONCRAN, S., 1996, The Empire of the Tetrarchs. Imperial Pronouncements and Government, AD 284-324, Oxford. CUQ, E., 1913, « Un nouveau document sur l’apokèryxis », Mémoires de l’Académie des Inscriptions et Belles-Lettres 39, p. 5-63. CUQ, E., 1917, « Un second papyrus byzantin sur l’ἀποκήρυξις», Comptes Rendus des séances de l’Académie des Inscriptions et Belles-Lettres, p. 354369. DÜLL, R., 1943, «Iudicium domesticum, abdicatio und apoceryxis», Zeitschrift der Savigny-Stiftung für Rechsgeschichte, Romanistische Abteilung 63, p. 5460. FOURNET, J.-L., 1999, Hellénisme dans l’Égypte du VIe siècle. La bibliothèque et l’œuvre de Dioscore d’Aphrodité (MIFAO 115), Le Caire. GIARO, T., 1983, review of WURM 1972, Journal of Juristic Papyrology 19, p. 203-204. HONORÉ, T., 1994, Emperors and Lawyers, Oxford (2nd ed.). MEP_ Dioscore-ok:Dioscore 142 4/09/08 18:57 Page 142 (Noir/Black film) JAKUB URBANIK KASER, M., 1971, Das römische Privatrecht. 1. Das altrömische, das vorklassische und klassiche Recht, München (2nd ed.). KASER, M., 1975, Das römische Privatrecht. 2. Nachklassische Entwicklungen, München (2nd ed.). KOSCHAKER, P., 1915, review of CUQ 1913, Berliner Philologische Wochenschrift 35, n° 48, col. 1503-1506. LEVY, E., 1956, Weströmisches Vulgarrecht. Das Obligationenrecht, Weimar. LEWALD, H., 1914, review of CUQ 1913, Zeitschrift der Savigny-Stiftung für Rechsgeschichte, Romanistische Abteilung 34, p. 441-445. MACCOULL, L.S.B., 1988, Dioscorus of Aphrodito. 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