Cambridge Ancient Hi.. - Index of

west and east 413
This polarity between east and west is part of the old problem of
eastern influence on Roman law. In late antiquity, this can also be seen in
the problem of identifying the different trends in each part of the empire
and establishing the connection between these trends and remote anthropological
constants. Deducing the area of application of the imperial
constitutions from their place of emission or publication is a debatable
procedure in any case, but it is especially so for much of the fourth
century, given the incompleteness of the documentation and the principle
of imperial unanimitas. But even laying aside such scruples, we are
forced to recognize that the source material often contradicts, when it
does not actually confute, the theses one might wish to prove. For
example, it has been held that the post-Constantinian legislation directed
against mixed-status unions was catering to western needs, which were
closer to the tradition of Roman law. 76 But it was a western emperor,
Valentinian, who legislated that illegitimate children should have the right
to at least a share of their father’s inheritance. And it was an eastern
emperor, Valens, who disapproved of that law, which was promptly
repealed (by Valens himself or his successor). 77 In other cases, the existence
of customs that are typically, or prevalently, eastern (and consequently
the natural subject of the legislators’ special interest) is simply
assumed and by no means adequately confirmed by the documents. A
case in point is the requirement, to ensure the validity of a marriage, of a
written contract specifying the dowry and marriage gifts. Interpreted by
some historians as a Greek or eastern custom, it has been correctly
ascribed to the church’s need to exercise control over the institution of
marriage. 78 According to the Claudian senatus consultum, a free woman who
was a slave’s concubine could be reduced to slavery provided she had been
warned three times. The warning clause was removed by Constantine, and
then reinstated by Julian. 79 It has been claimed that Constantine’s measure
betrays the influence of Greek customs, which were in favour of automatically
reducing women to slavery, and that Julian’s reaction was
influenced by western customs. But this interpretation is simply not borne
out by the sources. 80 As for Constantine’s law banning the presence of a
concubine in the same house as a lawful marriage, there is nothing to
attest that in late antiquity this form of polygamy was so widely spread in
the eastern provinces of the empire – and so thinly distributed in the
76 Evans Grubbs (1995) 302f.
77 C.Th. iv.6.4; cf. Lib. Or i.145; 195–6. It was only in the fifth century that western legislation started
to become more restrictive than that of the east: see below.
78 Mitteis (1891) 226, 290; Volterra (1937) 248; for a different opinion, Wolff (1939) 83ff.; for the
classic problem of the arrhae sponsaliciae and the alleged eastern influence on Constantine’s betrothal
legislation, see the balanced assessment in Evans Grubbs (1995) 174ff.
79 C.Th. iv.12.4 (331); iv.12.5 (362); see also above, p. 396.
80 Mitteis (1891) 364ff.; Gaudemet (1948) 670; for a different view, Beaucamp (1990) 187.
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