Eustathios Rhomaios was a prominent Byzantine judge and jurist during the late-10th and early- to mid-11th century. He studied Roman Law and began his career under Basil II (reign 976 to 1025) and became the chief judge during the mid-1020s. His legal decisions, collected and compiled into a document called the Peira ('Experience') by a younger colleague of his, were not only celebrated during his own lifetime but also hailed in later ages as 'the most elegant and valued.' Rhomaios was not the subject of any historical writings, but he did leave an impressive career record and a unique approach to practising law where he advocated compassionate judgement and discretionary adjudication.

We do not know Eustathios’ family name, because the name Rhomaios could either mean the 'inhabitant of Rome', in this case the New Rome Constantinople, or refer to someone familiar with Italian wisdom, which was what the Byzantines called the Roman law in his case. So Eustathios could have been a native of Constantinople or gained the name later in his life because of his expertise in Roman law. In addition, we do know that he came from a family of lawyers: his grandfather and perhaps his uncle had served in the imperial judiciary in the 10th century. Therefore, we could reasonably assume that Eustathios Rhomaios was perhaps a part of the new emerging middling class of the Byzantine society and did not have any link to any of the powerful aristocratic families.

Perhaps like most of the future elites intending to enter into imperial service, Eustathios Rhomaios received a comprehensive primary education (enkyklios paideia) at a young age. Then he most likely learned law from a private tutoring school that taught law as one of the advanced subjects, among which were literature, philosophy and theology. Rhomaios no doubt focused his attention on law, but he also obtained a knowledge of classical rhetoric that he put to good use: we find references to Homer, Plato, Aristotle, Dionysius of Halicarnassus, and Diodorus Siculus in his composition of legal opinions, which not only reinforced his judicial opinions but also rendered them more easily approved when read by other judges with an educational background similar to his.

After his legal education, Rhomaios started his career first serving as a junior judge under Basil II. He quickly gained fame for his acute mind and for identifying the legality of specific cases, as well as his wisdom in solving legal conundrums and disputes between plaintiff and defendant. As a result, his career benefited and he climbed the judicial-bureaucratic ranks, accumulating both prestige and authority. He was first a Judge (kritēs), then appointed amongst the Judges of the Velum (kritē tou bēlou) and Judges of the Hippodrome (kritē epi tou ippodromou), both of which were senior judicial positions residing at the higher court of the empire in Constantinople and were responsible for adjudicating cases involving nobility and elites or offering legal counsel for the emperor. Accompanying Rhomaios’ rise in the judiciary was his gradual promotion in the imperial honorary hierarchy, from veste, to patrikios to eventually the highest civil honour one could obtain at that time, magistros. These titles came with a substantial annual salary (roga) that would have allowed Rhomaios to amass a sizeable fortune for himself and perhaps his family, whom unfortunately we do not have any information of.

When Romanos III Argyros (reign 1028 to 1034), a former colleague of Eustathios and a judge/jurist himself, became emperor in 1028, Rhomaios was appointed droungarios of the vigla. This title had fromerly been granted to the captain in charge of an elite regiment of the imperial guard, but under Romanos III it was converted into a civil office not only overseeing all daily legal activities of the empire but also providing crucial political advice for the emperor. Rhomaios likely retired after Romanos III’s death but still managed to keep some of his influence after 1030s.

According to the Byzantine historian Micheal Psellos, in the 1040s there was a reactionary force among the older judges who were dissatisfied with the establishment of the law school and the appointment of Ioannes Xiphilinos, the later Ecumenical Patriarch from 1064 to 1075, as its master under emperor Constantine VIII (reign 1025 to 28). The new school and its master created a standardized legal curriculum and required all legal decisions at court to be reviewed regularly by the jurists of the school, but this new approach to law was not shared by the judges who had established themselves through not only legal knowledge but also years of experience and networking. It is likely that these older judges were pleased to see the short-lived nature of this new way of teaching law and training future judges and chose to rally together to oppose its founding. Among these judges was a Michael Ophrydas, a regular associate of Rhomaios who was singled out by Psellos as one of the conspirators of the plot. Psellos also mentioned and hinted another ‘old and elusive figure who viciously attacked him (Xiphilinos),’ and considering Rhomaios’ prestige, it could very likely be him beign referred to here. But we lack the sources to give a definitive answer about what exactly happened other than Psellos’s biased words three decades later and who else was involved other than Xiphilinos and Ophrydas. For all we know, the lack of actual judicial experience of Xiphilinos might also be the true cause of the slander.

Sometime in the 1030s, either an assistant of Eustathios Rhomaios or an early career judge who admired Eustathios’s rulings collected most of Rhomaios’ legal verdicts and opinions and put together a document called Peira or ‘Experience.’ The document itself survived in its full form in a single 15th-century Greek manuscript (Florence, Biblioteca Medicea Laurenziana, Plut.80.6) as well as in fragmentary excerpts in the work of 14th-century jurist and judge Constantine Harmenopoulos and in various later scholia on the Basilika, the 10th Century Byzantine Greek translation of the Justinian law. Because Eustathios Rhomaios did not appear in any contemporary historiography and only a few of his own legal writings (among them a legal treatise on the condition of marriage) other than Peira have come down to us, we do not have a lot of biographical information on Rhomaios. So, in this sense, Peira is crucial for us to reconstruct the long life and celebrated career of Rhomaios, despite itself being an inviable document shedding insight into the practices of Roman law in the Byzantine empire.

The Peira is a collection of the judgements and legal opinions delivered by Eustathios Rhomaios throughout his career. The compiler of the Peira used legal records and summarised them before dividing more than 300 cases of verdicts and treatises into 75 titles. While most of the 75 titles could be found identically in the titles of Basilika, the compiler of the Peira also added his own categories to better describe the sorts of cases or verdicts that otherwise did not fit into those found in Basilika. Some examples of these titles are: On tenants, on the lease of houses and on their other privileges, On Valuation of Objects and on Better Offers, On Inheritance, and On the Credibility of Testimonies and Witnesses.

Yet the Peira, unlike most other Byzantine legal sources such as the imperial law code Basilika, governmental regulations like the Book of the Eparch, or educational handbooks like Synopsis Basilicorum Major, was a legal casebook with the educational purpose of showing the way Eustathios Rhomaios had practised Roman law. As it happened, in the Peira, Eustathios Rhomaios tended to make mitigating and lighter judgements. This meant that his legal reasoning often operated with the general awareness that in each case, there was a limited freedom for the judge to choose from several possible legal options, as long as these options fell within the acceptable parameter of Roman law.

This method was what Rhomaios invoked as the Legal Dispensation (οἰκονομία oikonomia), whereas making sure all those legal options had solid legality and could be backed up by the law code was what Rhomaios referred as the strict observance of the Law Precision (ἀκρίβεια akribeia). Once Rhomaios established that the case was opened for different options, he would very often head to the one with the lighter sentence and penalty, either because he displayed a sympathetic feeling (το συμπαθέστερον to sympathesteron) toward the person in the case or adjudicated in a benignant and kind manner (φιλαγάθως philagathos).

Below are some of the examples of how Eustathios Rhomaios adjudicated cases, and readers may see how his sympathetic character and reasonable flexibility played a key role in forming his judgements. As Peira has no existing English translation, all translations are the author's except the Odyssey, which was taken from Wilson's edition). It is important to stress that all legal options presented by Rhomaios were not formed randomly but rather resulted from careful legal reasoning: through his interpretation of the law, his legal opinion would attain legitimacy and the effect of the law, and the mitigating action and merciful action became legal. Giving equal weight to legal rules and sympathetic discretion, he would choose the most suitable course of action for a specific circumstance and seek a satisfactory legal accommodation for both parties involved, as the following case shows:

The magister (Eustathios) said that the law is to mitigate rather than to make the sentence harsher. There are legal rules to follow so that the judges would not transgress the definitive punishment prescribed by the law. Yet how is a judge able to mitigate the punishment, when the sentence is harsh according to the law? Having interpreted the letters of law, Eustathios said, that the forgery here bears the punishment of the full confiscation of his property and so forth. Yet a certain judge is not able, having found the one who made the false documents, to apply this punishment. The act of counterfeiting, as it was, has a definitive punishment, and so is the act of theft. The fabricated document of debt is possible to, as it was, cancel the debt and expunge it, so this action of cancelling and expunging debt through the fabricated written documents against the real documents is subject to legal sanction. But the judge, wishing to mitigate rather than make the punishment harsh, does not charge the person making the false documents that remove his debt as forgery, but rather as theft. Because both the crimes, along with their respectively different punishments, have toward the money-lender who holds the debts the same degree of malice. So the judge, following a straightforward legal interpretation, would discover two punishments fitted together in one case, one harsh and another gentle, and it seems best for him to incline above all toward the gentle one and give the final decision.

(Peira, 51.22)

The Peira also showed how Eustathios Rhomaios handled a marriage scandal between two aristocratic families of Constantinople, that

Making the crime harsher and having shown it worthy of greater punishment, he (Eustathios) stated that the law is to mitigate rather than wishing the penalties to be harsh.

(Peira, 49.4)

Rhomaios was brought in here when other judges, including the future emperor Romanos III, disagreed with each other and could not reach a consensus over how to punish the noble young man who had seduced a girl of another important noble family. After the act of seduction, the young man refused to marry the girl and ran to the church to seek sanctuary to avoid the potential private and legal retribution from the girl’s family. The case was then brought to the court, and an edict exiling the young man was given. However, the judgement, while following the letter of law on non-consensual sexual relationships, would be devastating to both parties: for the young man would be exiled and the reputation of the young girl would be ruined. Thus, when Rhomaios came in, he thought that the original sentence was harsh, and he interpreted the nature of the case differently and invoked another law (on insult) to modify the punishment to a heavy fine of six pounds of gold. In this way, he not only mitigated the punishment but also proposed a legally and socially acceptable accommodation satisfactory to both noble families.

In another case in which a woman was brought to court on the charge of committing adultery, Rhomaios again demonstrated his wisdom and legal knowledge to mitigate the situation. The woman was charged of adultery by the trustee of her late husband’s estate and if the case were true, she stood to lose all of her share in the estate. However, Rhomaios argued for the dismissal of the case and suggested that adultery in fact did not jeopardise the condition of granting the woman’s rightful access to her late husband’s estate, rather if and only if she remarried, then her access would be lost. Furthermore, quoting some verses from Homer’s Odyssey to justify his reasoning:

You know how women are – they want to help the house of any man they marry. when one darling husband dies, his wife forgets him, and her children by him. (Odyssey, 15.20 to 24)

In this way, Rhomaios found the more appropriate one of the two interpretations (adultery or remarriage) that applied to the case above. In the preface of the legal opinion he composed, he wrote that:

Everything which we comprehend, we make misconceptions about these things. For example, someone says that seeing a dove high above to be a flying wild pigeon and the tall Sun being is a Great Titan.

(Peira, 25.25)

The reference to the Greek philosophers Plato (dove and pigeon from Theaetetus) and Aristotle (Sun and Great Titan from De Anima) reinforced the notion that a careful and precise understanding of the case’s nature was needed in order to give a good and right judgement, that things are sometimes not what we see them as and they appear to be. In this case, it was the interpretations between adultery and second marriage that facilitated the subsequent efforts of Rhomaios’ judgement, and the use of three classical references and rhetoric reinforced the overall legal reasoning process.

Roman law since the codification efforts of the Emperor Justinian in the 6th century has undergone considerable changes. Yet unlike in western Europe, where Roman law was to be rediscovered in the 12th century, in the Empire of New Rome where the legal traditions of ancient and late antique Rome were properly preserved, judges and jurists diligently upheld this heritage throughout the ages until the fall of their empire in the 15th century. Among these figures was Eustathios Rhomaios, the Byzantine judge featured in the Peira. Rhomaios invoked terms such as oikonomia to deliberate his judgements and operated within the legal framework of Roman law, the linguistic and cultural framework of the Greek language, and the ideological framework of Orthodox Christianity (preaching sympathy and compassionate acts) with equal attention and priority. While his sentences always tended to render lighter punishments, Rhomaios’ principle of mitigation was only possible and could accommodate a better outcome by working within the limits of Roman law, thus prioritising the right and necessary application of law. While it is important thus to view the legal practice in the Peira as a unique realisation of imperial justice – the Peira is the only document of its kind which has survived –the pursuit of justice was nonetheless something that all Byzantine judges deeply cared about, and there is no reason to believe that they would not have exercised their sympathy and discretion when needed at the court.