does nor show natural law as it is in any meaningful wa\’. \\ here is Ciod in this Byzantine natural law? 1 le does not appear. 1 le does vevx nuieh in earl\’ Cdiristian writers such as Lactantius (eirca 24o-:?2o) Epitome 6, and St. Augustine ■74-4^0) Dc lihcro (irhitrio 1.6. 47f.). ^et Justinian's liyzantium was a hotbed of religious eontnnersy. .\loreo\ er, (lod is also remarkahh absent from bothJustinian's histitutcs-.md Digest.' Mv explanation in the past and now has been that Justinian's compilers restricted themselves to the sources of Roman classical jurists; the\ subtracted what they no Umger wanted, but scarceh' changed or added to the substance.^ The Rt)man jurists stopped writing around 2;^^. .\nd the\’ were all pagans: so no Cdiristianit\' in the bod\' of the Digest or h/stitiite.f. But then classical philosophical notions of natural law as law based on reason or li\ ing in accordance with nature such as we find in Aristotle \ieomacbaeau Ethics v7.i, Rhetoric 1.^.2, or Cncero De re piihlieii v22.;?;; also do not appear. My explanation has long been that the Roman jurists were interested onl\’ in positi\e law, not in philosophical notions of law. d'his Institutes' definition of natural law was preferred preciseh’ because it is meaningless, and natural law could then be ignored. Narural law is downgraded to instinct, common to animals and humans alike. But we should notice how restricted even this notion of natural law is. The Institutes lists only the conjunction of male and female (that we call marriage), the procreation' and rearing of children. No positiv e legal rules can be deduced from this. Nor is it clear on the face of the text whether we are giv en an exhaustiv e list of the elements of natural law or merely examples. Interestingly, in the Digest 3 See, e.g. Watson, Out of Context, pp. 34ff. 4 See now Alan Watson, 'The Spirit of Justinian's Law,'/>7 Studi in onore de Mario Talamanca (Rome, 2001), pp. 2oiff. 5 Not "bearing" as Peter Birks and Grant McLeod translate; Justinian's Institutes (Ithaca, N.Y., 1987), p. 38. 23
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