The Law 163
soldiers had to be heard, even if they were not necessarily illiterate Goths, were
normally men who had spent all their lives in the army and were therefore
quite unskilled in matters of law. That the situation in the regular courts was
undoubtedly better is true enough. As Athalaric proclaimed to his quaestor,
Felix: “It is agreeable that the matter of justice be administered by judges expe-
rienced in the law, since he who knows fairness nor can easily become soiled
by the fault of error can scarcely be able to disregard one whom learning will
have purified.”56
But provincial governors and even prefects were by no means always learned
in the law. Many, if not most, owed their positions to such factors as their wealth
and rank, and were generally selected for their noble birth rather than any sort
of demonstrable legal knowledge or ability. As Valentinian III remarked in 451
about Italy: “I have learned that both advocates and judges today are rarely if
at all knowledgeable of the laws and customs.”57 That the inadequacy of judges
was remedied to some extent by the use of assessores cannot be doubted.58
It would be naive to suppose, however, that judicial incompetence was not a
serious problem that could result in any number of injustices.59
Judicial incompetence undoubtedly played a part in permitting injustice to
flourish, but a judge whose perceived impropriety was the result of venality
or abuse of power was an altogether different matter. Laws dealing with cor-
rupt and venal judges appear with increasing regularity from the 3rd century
onwards.60 Theoderic evidently took the matter very seriously. In all, a total of
ten provisions of the Edictum Theoderici deal with related matters of judicial
corruption and venality and the Variae document several instances of judicial
56 Cassiodorus, Variae 8.18: “Professionem constat esse iustitiae legum peritos iudices ordin-
are, quia vix potest neglegere qui novit aequitatem nec facile erroris vitio sordescit, quem
doctrina purgaverit.”
57 CTh Nov. Val. 32.6: “Et causidicos et iudices defuisse hodieque gnaros iuris et legum aut
raro aut minime repperiri.”
58 In the case of Archotamia, who made a complaint against her former daughter-in-law
alleging that the latter had unlawfully squandered the assets of her children, Cassiodorus
notes (Variae 4.12.3) that three assessors were to be chosen, by consent of the litigants
involved, to help settle the case: “cum tribus honoratis, quos partium consensus elegerit,
qui legum possint habere notitiam... proferatis[.]”
59 Lafferty Law and Society, ch. 3. For the problem of judicial incompetence in the later
Roman Empire, see Harries, Law and Crime, 38–41; MacMullen, “Roman Bureaucratese,”
pp. 364–78. For the early medieval world: Lafferty, Law and Society, ch. 3; Wormald,
“Lex Scripta”, pp. 105–38; Riché, Education et Culture, pp. 229–31.
60 MacMullen Corruption; Kelly, Ruling the Later Roman Empire; Harries, Law and Empire,
ch. 8.